1 I THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW CYCLOPEDIA OF MICHIGAN PRACTICE IN CIVIL ACTIONS AT LAW IN COURTS OF RECORD WITH COMPLETE FORMS UNDER THE JUDICATURE ACT BY FRED H. ABBOTT OF THE MICHIGAN BAR VOLUME I CHICAGO CALLAGHAN AND COMPANY 1920 Copyright, 1920 BY CALLAGHAN & COMPANY ANNOUNCEMENT The Judicature Act adopted by the Michigan Legislature in 1915 not only codified the earlier practice provisions, but made many changes. The character of these changes has been such as to necessitate a revision of Abbott's Michigan Practice. The ne- cessity of this revision has been availed of to present a Cycix»- PEDiA OF Michigan Practice embodying the clear and thor- ough statement of the common-law principles of pleading and practice as obtaining in Michigan included in the earlier work, the statutory modifications and the decisions subsequent to that edition and a valuable collection of forms. This matter, new and old, has been revised and rewritten, being treated topically and the topics being thoroughly analyzed. To facilitate ready reference and to render every subject in the field of Michigan practice instantly available, the topics have been arranged al- phabetically and, in addition thereto, the work has been thor- oughly and practically indexed. In this index the forms in- cluded in the various topics are found under the head Forms. With confidence that the Cyclopedia of Michigan Practice contains in every particular a thorough, comprehensive, ac- curate and practical treatment of the Michigan practice of to-day, it is submitted to the Bench and Bar of Michigan. CALLAGHAN AND COMPANY. August, 1920. TABLE OF TOPICS VOLUME I [Italics indicate Abandonment, 1. Abatement and Revival, 1. Abbreviations, 8. Absconding, 8. Absence, 8. Abuse of Process, 9. Accord and Satisfaction, 9. Account, 10. Account Stated, 11. Actions, 11. Address, 22. Adjournments, 22. Administrators, 22. Admiralty, 22. Admissions, 22. Adverse Possession, 22. Advertisement, 23. Advice of Counsel, 23. Affidavit of Merits, 23. Affidavits, 24. Affirmance, 29. Affirmative Defenses, 29. Age, 29. Agency, 29. Agreed Case, 33. Agreements and Stipulations Be- tween Parties, 33. Alias Writs, 36. Aliens, 36. Alternative Writ, 36. Amendments and Defects Cured BY Verdict, 36. Amount in Controversy, 45. Animals, 45. Another Action Pending, 47. Answer, 48. cross-refer ences'\ Anticipating Defenses, 48. Appeals, 48. Appearance, 49. Appraisal, 54. Arbitration and Award, 54. Argument of Counsel, 68. Array, 68. Arrest, 69. Assault and Battery, 69. Assignments, 71. Assignments for Benefit of Cred- itors, 72. Assignments of Error, 72. Associations, 78. Assumpsit, 79. Attachment, 89. Attorney General, 160. Attorneys, 161. Auditors, 181. Award, 181. Bail, 181. Bailment, 199. Banliruptcy, 203. BanTcs, 203. Bar, 203. Beasts, 203. Bench Warrant, 203. Bids, 203. Bill of Costs, 203. Bill of Exceptions, 203. Bill op Particul.\rs, 223. Bills and Notes, 234. Board of Supervisors, 236. Body Executions, 236. Bonds, 236. VI Table of Topics [Italics indicate Books, 242. Boundaries, 242. Breach of Peace, 242. Brhiach or Promise to Mabry, 242. Briefs, 243. Brokers, 249. Building and Loan Associations, 250. Buildings, 250. Burden of Proof, 250. I Ca. Sa., 250. Calendar, 250. Capias ad Respondendum, 251. Caption, 251. Card Playing, 251. Carriers, 251. Case, Action on, 254. Case Made, 259. Cattle, 269. Caaise of Action, 269. Cemeteries, 270. Certainty, 270. Certificates, 270. Certiorari, 270. Challenges, 299. Chambers, 299. Champerty, 299. Chancery, 299. Change of Venue, 300. Character, 309. Charge, 309. Chattel Mortgages, 309. Chattels, 309. Children, 309. Choses in Action, 309. Churches, 309. Circuit Court Commissioners, 310. Circuit Court Bules, 317. Circuit Courts, 317. Citations, 324. Cities and Villages, 324. Clerks op Court, 324. C7ient, 329. Closing Argument, 330. C/iibs, 330. Coercion, 330. Cognovit, 330. Collateral Attack, 331. Coior o/ Tt«e, 332. Commencement of Actions, 332. Commercial Paper, 383. Commissioners, 383. Commitment, 383. Common Carriers, 383. Common Council, 383. Common Counts, 383. Common Bules, 383. Communications, 383. Comparison, 383. Complaint, 383. Compromise, 384. Computation of Time, 384. Concealment, 384. Conclusions, 384. Condemnation Proceedings, 384. Conduct, 384. Conductor, 384. Confession of Judgment, 384. Confidential Communications, 387. Consent, 388. Consideration, 388. Consolidation, 388. Consolidation of Actions, 388. Constitutional Law, 393. Construction, 393. Contempt, 393. Continuances, 413. Contracts, 421. Contradictory Statements, 421. Contribution, 421. Convenience of Witiiesses, 421. Conversion, 422. Conviction, 422. Coroners, 422. Corporations, 423. Costs, 426. Counties, 443. Cau7it«, 443. County Clerks, 443. Courts, 443. Covenant, Action of, 461. Coics, 463. Table of Topics Vll [Italics indicate Credibility, 463. Creditor's Suit, 463. Crier, 463. Criminal Law, 463. Crops, 463. Cross-Examination, 464. Cumulative Eemedies, 464. Cvstody, 464. Damages, 464. Date, 464. Dai/, 464. Dead Bodies, 464. Deat;^, 464. Death by Wrongful Act, 464. Debt, Action of, 467. Decisions, 467. Declaration, 467. Declaratory Judgments, 467. Deeds, 468. Defaults, 473. Defects, 485. Defendants, 486. Defenses, 486. Defirdtions, 486. Demand, 486. Demurrers, 486. Departure, 486. Depositions, 486. Deputies, 499. Description, 499. Detention, 499. Detinue, 499. Diagrams, 500. Diofa, 500. Direct Examdnation, 500. Directing Verdict, 500. Directors, 500. Disbarment, 500. Disbursements, 500. Discharge, 501. Disclosure, 501. Discontinuance and Voluntary Nonsuit, 501. Discovery and Inspection of Papers, 510. Discretion of Court, 515. Dismissal, 515. Dismissal for Want op Prosecu- tion, 515. Disorderly Conduct, 517. Disqualification, 517. Dissenting Opinions, 517. Dissolution, 517. Distraint, 517. Docket, 517. Documentary Evidence, 517. Documents, 517. Double Costs, 517. Dower, 518. Dry Goods, 521. Duces Tecum, 521. Duplicity, 522. Duress, 522. Dwelling Houses, 522. Earnings, 522. Education, 522. Ejectment, 522. Election op Remedies, 563. Elections, 566. Employees, 566. ^ntri/, 566. Equity, 567. Equity of Redemption, 567. Error, Writ of, 567. Escape, 657. Estates, 658. Estates of Decedents, 658. Estoppel, 658. Eviction, 659. Evidence, 659. Examination, 691. Exceptions, 691. Executions, 695. Executors and Administrators, 780. Exemptions, 787. Exhibition, 799. ExUhits, 799. Experts, 799. Vlll Table of Topics [Italics indicate Extension of Time, 799. Extradition, 800. Facts, 800. False Imprisonment, 800. False Personation, 801. Family Pictures, 801. Fees, 801. Females, 802. Fi Fa, 802. Filing, 802. Findings, 802. Fines, 802. Firms, 803. Fixtures, 803. Food, 803. Forcible Entry and Detainer, 803. Foreclosure, 803. Foreign Corporations, 803. Forfeitures, 803. JFor«^ o/ ^cfton, 804. Former Jeopardy, 804. Former Recovery, 804. Fractions, 804. Franchises, 804. Fraternal Benefit Societies, 804. Fraud, 804. F'raudulent Conveyances, 806. Fraudulent Debtors, 806. Fraudulent Sales and Conveyances, 818. JFit^/, 819. Furniture, 819. Garnishment, 819. General Assumpsit, 887. General Issue, 887. Good Fa?., the abo^'C named defendant, being duly sworn, deposes and says that he has fully and fairly stated the facts pertaining to this action to J. K., his counsel herein, who resides in the of , and that he has a good and substantial defense to said action (or to some portion thereof) upon the merits, as he is advised by his said counsel, upon such statement as aforesaid, and verily believes. C. D. Subscribed, etc. If an affidavit of merits is filed to prevent a summary judgment in an action on a contract or judgment or stat- ute, it must, in addition to what is required to be stated in ordinary affidavits of merits, state whether or not the defense claimed applies to the whole of the plaintiff's claim, and if it does not, it must state definitely what item •r items of the plaintiff's claim, and the amount thereof, is admitted.' AFFIDAVITS § 1. Definition. § 2. Necessity for. § 3. Entitling. § 4. Venue. § 5. Signature. § 6. Jurat. § 7. Who may make, and showing as to authority. 3 Brown v. Cowee, 2 Doug. 4.32. 6 Bitzer v. Wagar, 8.3 Mich. 223. 4 Wells V. Booth, 35 Mich. 424. ^ See Judgments, § 14a. 6 Van Slyke v. Rooks, 181 Mich. § 3 Affidavits 25 § 8. Who may take. § 9. Copies of affidavits. § 10. Affidavits taken outside the state. § 11. Second use. Cross-Beferences: Papers and Notices; Oaths; Publication; Mo- tions, EuLEs AND Orders; Affidavit op Merits; Supreme Court. Particular affidavits, see Attachment, Replevin, Garnishment, Nevf Trial, etc. Affidavits in connection with declaration or plea, see Pleading. § 1. Definition. An affidavit is a declaration on oath, in writing, sworn to by a party before, and attested by some person who has authority to administer oaths.'^ § 2. Necessity for. An affidavit, or other competent evidence, is necessary where any part of the ground of a motion consists of an extrinsic fact not apparent on the face of the proceed- ings.^ §3. Entitling. The rules as to entitling papers in general, as contained in the Circuit Court Rules and stated in another article,^ apply equally well to affidavits. They must be entitled in the court and cause, except where they are annexed to and refer to another paper which is properly entitled in the court and cause,* and except where no action is pend- ing at the time.^ However, an affidavit actually filed in a pending suit and not entitled is not a nullity, and the court may permit it to be used; ^ and an affidavit entitled 1 People V. Burns, 161 Mich. 169, B Hatch v. Saunders, 66 Mich. 185; 175. Beebe v. Morrell, 76 Mich. 119; 2 Storey v. Child, 2 Mich. 107. Clarke v. Wayne Circuit Judge, 193 8 See Papers and Notices. Mich. 33, 37. *Cir. Ct. Rule 3, §2; Glinnan v. 6 Beebe v. Morrell, 76 Mich. 114, Judge of Recorder's Court, 181 119, approved in Doane v. Allen, 172 Mich. 192; Doane v. Allen, 172 Mich. 686, Miclh. 686, 690. 26 Affidavits ^ 3 ill a cause is not a nullity merely because there is no ac- tion pending where made to be used in a pending action and Avhere so used.''^ §4. Venue. All affidavits should commence with a statement in the margin, of the county or venue in which they are made, thus: ''Wayne county, ss." But an affidavit sworn to before a notary is not invalid because it fails to show the county where the oath was administered.* § 5. Signature. The affidavit ought regularly to be subscribed by the party making it, either by signing his name, if he can write, or by making his mark, if he cannot. But this has been held not to be actually essential, it being deemed sufficient if it begin with the deponent's name, and appear to have been sworn to before a proper officer.^ §6. Jurat. The jurat is written at the foot of the affidavit, on the left hand, and is generally in the following form : ' ' Sub- scribed and sworn to this — day of — A. D. 19 — , before me, Pj. P. H., circuit court commissioner," or "notary pub- lic," etc. Notaries public must affix to each affidavit, de- position, certificate and acknowledgment given or taken by them, and to all other instruments signed notarially, tlio date upon which their commissions expire. It has been held that it must appear by the jurat, that the affi- davit was sworn to before the officer whose name is sub- scribed to it, unless it be signed by a judge of the court in which, or by the officer before whom it is to be used,^'' V Clarke v. Wayne Circuit Judge, cuit Judge, 113 Mich. 381; Bloom- 193 Mich. 33, 37, disapproving dicta ingdale v. Chittenden, 75 Mich. 305. in Beebe v. Morrell, 76 Mich. 114. 10 In re Teaehout, 15 Mich. 346; 8 Sullivan v. Hall, 86 Mich. 7. Smart v. Howe, 3 Mich. 590. But 9 Wynkoop v. Grand Traverse Cir- see Dickinson v. Simondson, 25 Mich. § 7 Affidavits 27 or unless it appear in the body of it, that it was sworn to before a proper officer. The jurat must be signed." If the caption of the affidavit contains the county, the affi- davit is not invalid because the name of the county for which he was appointed does not follow the signature of the notary." § 7. Who may make, and showing- as to authority. The affidavit may, in general, be made by the party or his attorney, or by a third person, according as the knowl- edge of the facts rest with either of them; but when the affidavit relates to the proceedings in a cause, it ought to be made by the attorney. If a statute requires an affidavit to be made ''by plaintiff or some person in his behalf," an affidavit made in the name of one person as plaintiff is insufficient where a writ issues thereon in favor of two plaintiffs. ^^ Where the statute provides that an affidavit may be made by the party, his agent or attorney, the use of the word ''agent" or "attorney" alone is sufficient." So where an affidavit is made by one who states that he is plaintiff's attorney, the legal inference is that it is made "on behalf of plaintiff." " Where the statute provides that ' ' any person familiar with the facts ' ' may make the affidavit, it need not recite that affiant is familiar with the facts. ^^ An affidavit in an action by a corporation, stat- ing that the affiant is the treasurer of the company, suffi- ciently shows his authority to make it.^''^ Where the name of the affiant in the body of the affidavit differs from the signature, the name in the body should be disregarded.^* 113, and compare Peterson v. Fow- 15 Stringer v. Dean, 61 Mich. 196. ler, 76 Mich. 258. 16 Muirhead v. Sands, 111 Mich. 11 Cross V. People, 10 Mioh. 24. 487. 12 Smith V. Eunnells, 94 Mich. 617. 17 Forbes Lithograph Mfg. Co. v. iSBurnside v. Davis, 65 Mich. 74. Winter, 107 Mich. 116. 14Weatherwax v. Paine, 2 Mich. 18 Torrans v. Hicks, .'!2 Mich. n07. 555. 28 Affidavits § 8 • § 8. Who may take. Affidavits taken in this state may be sworn to before any judge or clerk of a court of record, circuit court com- missioner, justice of the peace, or notary public, or before any commissioner specially appointed by the court for that purpose.*® By statute, attorneys and counselors, are not allowed to administer oaths as notaries public in cases in which they are engaged as such attorneys or counsel- ors ; ^° but it is otherwise where not prohibited by stat- ute.^* In the absence of a statute, the clerk of court can- not administer oaths or take affidavits in vacation.^'* Depositions sworn to before a notary may be received where the parties stipulated that he might act as com- missioner.^^ § 9. Copies of affidavits. Copies of affidavits served with the notice of motion must be true and complete, and if essentially defective the motion cannot be heard, notwithstanding the original affidavit is sufficient, the omission being an error in copy- ing.^* § 10. Affidavits taken outside the state. The statutes expressly provide how affidavits taken without the state must be authenticated in order to be re- ceived in judicial proceedings in this state. ^^ 19Jud. Act, ch. 17, §§83, 84; another state of the United States, Comp. Laws 1915, §§ 12571, 12572. or in any foreign country, is re- 20 See Attorneys ; Oaths. quired, or may be received in judi- 21 Snyder v. Hemmingway, 47 eial proceedings in this State, to Mich. 549. entitle the same to be read, it must 22 Greenvault v. Farmers ' Me- be authenticated as follows : chanics Bank, 2 Doug. 498. "1. It must be certified by the 23 Crone v. Angell, 14 Mich. 340. consul general, deputy consul gen- 24 Ohesebro v. Ohesebro, 21 Mich. eral, or some consul or deputy consul 506. of the United States resident in such 26 " In cases where by law the foreign country, to have been taken aflB.davit of any person residing in and subscribed before him, specify- Agency 29 § 11. Second use. Unless it is othenvise provided by statute, an affidavit can, it seems, be used a second time.^® AFFIRMANCE See Error, Writ op; Certiorari. AFFIRMATIVE DEFENSES See Pleading. See Infants; Jury. AGE AGENCY Cross-Beferences: Affidavits (affidavit by agent) ; Attachment (affi- davit by agent) ; Commencement of Actions (who may be served with original process). ing the time and place where taken and have the consular seal attached; or "2, It must be certified by some judge of a court having a seal to have been taken and subscribed be- fore him, specifying the time and place where taken; "3. The genuineness of the signa- ture of such judge, the existence of the court and the fact that such judge is a member thereof, must be certified by the clerk of the court under the seal thereof; "4. If such affidavit be taken in any other of the United States or in any territory thereof, it may be taken before a commissioner duly appointed and commissioned by the Governor of this State to take affi- davits therein, or before any notary public or justice of the peace author- ized by the laws of such state to ad- minister oaths therein. The signa- ture of such notary public or justice of the peace, and the fact that at the time of the taking of such affi- davit the person before whom the same was taken was such notary public or justice of the peace, shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court. ' ' Jud. Act, ch. 17, § 14; Comp. Laws 1915, § 12502. Absence of clerk's certificate makes affidavit defective. Metcalfe V. Carr, 133 Mich. 123. There is no presumption of au- thority of notary in another state to administer oaths. Berkcry v. Wayne Circuit Judge, 82 Mich. 160, 168, overruling Pinkham v. Cockell, 77 Mich. 265. 26 Montgomery v. Muskegon Cir- cuit Judge, 100 Mich. 436. 30 Agency The iDrincipal may sue his agent for negligence or wrongful acts.^ The law of principal and agent is prac- tically all substantive law which is ably treated of by Professor Mechem in his well known work on Agency. State Bar Association Form of Declaration for Failure of Agent to Follow Instructions (Title of court and cause.) The plaintiff says: 1. That, on , 19.., he employed the defendant to purchase for him, if practicable, at , 10,000 bushels of best May wheat at a price not exceeding dollars per bushel. 2. That the defendant, altHiough he could, by reasonable diligence, have pairehased for the plaintiff at 10,000 bushels of said wheat at a price not exceeding that above stated, neglected to do so. 3. That the defendant purchased only 5,000 bushels of May wheat, and 3,000 bushels of that so purchased was of inferior quality. 4. Wherefore, etc. Form of Count Against an Agent for Not Selling Goods Received for Sale as Ordered The plaintiff says: 1. That heretofore, to wit, on , at , in consideration that the said plaintiff, at the special instance and request of the said de- fendant, for commission and reward to the said defendant, employed the said defendant to sell for the said plaintiff certain goods, to wit, , of great value, to wit, of the value of dollars, upon the terms that the said defendant should use due and reasonable care and diligence in obeying the lawful and reasonable orders of the said plaintiff, to be given by him to the said defendant in regard to the sale of the said goods, and the said defendant received and had the said goods in his possession and charge, the said defendant undertook and promised the said plaintiff that he would sell the said goods for the said plaintiff, and would use due care and diligence in obeying the lawful and reason- able orders of the said plaintiff, to be given by him, the said plaintiff, to the said defendant in regard to the sale of the said goods. 2. That the said plaintiff afterwards, to wit, on , at , and while the said defendant had the said goods in his possession and charge, as aforesaid, ordered and directed the said defendant to sell the said goods at a certain price, to wit, at the price of dollars, and not less, in ease the same could be obtained by using due care and diligence in that behalf. 3. That the said defendant, could, by using due care and diligence in obeying said order and direction, so given to him, as afore- 1 Cutter V. Powers, 200 Mich. 375 ; Hogue V. Wells, 180 Mich. 19; Miller V. Young, 196 Mkh. 27«. Agency 31 said, by the said plaintiff, Lave obtained the said price for the said goods. 4. That the said defeudant ueglected to sell the said goods in accordance therewith. 5. That, by reason thereof, the said plaintiff -was forced to suffer the said goods to be sold at a less price than the price aforesaid, to wit, for the price of dollars. 6. That thereby the said plain- tiff sustained great loss, to wit, the sum of dollars, upon and in respect of the price and value of the said goods. 7. That also, by reason thereof, the said goods were wasted and deteriorated in value to a great amount, to wit, the sum of dollars. 8. That also, by reason there- of, the said plaintiff incurred great expense, to wit, dollar's, in warehousing and keeping the said goods. Form of Count Against Agent for Not Accounting for Goods Received to SeU The plaintiff says: 1. That heretofore, to wit, on , at , in consideration that the said plaintiff, at the special instance and request of the said defend- ant, delivered to the said defendant, and the said defendant received from the said plaintiff, certain goods, to wit, , of great value, to -wit, of the value of dollars, of him, the said plaintiff, to be sold by the said defendant, the said defendant undertook and promised the said plaintiff to sell the said goods for and on account of the said plain- tiff, and that the said defendant would, when requested, render to the said plaintiff a true and just account of the sale of the said goods, and of the moneys accruing from said sale, and deliver up to the said plain- tiff such of the said goods as should remain unsold by the said defend- ant, after a reasonable time from the sale of such of the said goods as the said defendant Should sell. 2. That, afterwards, to wit, on , at ....... the said defendant sold the said goods, for and on account of the plaintiff, for a large sum of money, to wit, for the sum of dollajs. 3. That a reasonable time has elapsed since the sale of said goods by the said defendant as aforesaid. 4. That the said defendant has not, although requested so to do, rendered to the said plaintiff any account of the sale aforesaid of the said goods or of the moneys accru- ing from such sale, nor has the said defendant delivered up to tlie said ])laintiff any of said goods remaining unsold. 5. That, thereby the said plaintiff lias wholly lost the said goods and the price thereof, to wit, dollars, for which the same were sold as aforesiaid by the said defendant. Form of Count Against an Agent Appointed to Sell Goods at Stated Prices for Selling Part at Less Prices, and for Not Accounting for Those Sold, and Not Delivering Up Those Unsold The plaintiff says: 1. That heretofore, to wit, on , at , the said plaintiff, at tlie request of the said defendant, employed liim for commission and reward to the said defendant, to sell certain goodp, to wit, , of the said ]>laintiff, of great value, to wit, of the value of dollars. 32 Agency at and for certain prices respectively to be stated to the said defendant by the said plaintiff, and upon the terms that tlie said defendant should render to the said plaintiff a just and true account of the sale thereof and should deliver to the said plaintiff such of the said goods as should remain unsold by the said defendant, when thereunto afterwards requested by the said plaintiff. 2. That, thereupon, to wit, at the time and place last aforesaid, the said defendant received the said goods and chattels of and from the said plaintiff, and then and there undertook and prom- ised the said plaintiff to sell the said goods for him at and for certain prices respectively to be stated to the said defendant by the said plain- tiff, and that he, the said defendant, would render to the said plaintiff a just and true account of the sale thereof and would deliver to the said plaintiff such of the said goods as should remain unsold by the said defendant, when thereunto requested by the said plaintiff. 3. That the said plaintiff stated the prices of the said goods respectively to the said defendant. 4. That the said defendant, without the consent of the said plaintiff, sold certain of the said goods, to wit, , at a much smaller price than the price so stated to him by the said plaintiff, to wit, 5. That the said defendant has not, although afterwards requested by the said plaintiff so to do, rendered to the said plaintiff any account of the said sales or delivered up to the said plaintiff such of the said goods as remained unsold. 6. That a reasonable time from the delivery of the said goods to the said defendant, as aforesaid, and the time of the said sales, has elapsed. Form of Count Against Del Credere Agent on His Guaranty The Plaintiff says: 1. That heretofore, to wit, on , at , in consideration that the said plaintiff, at the request of the said defendant, employed the said defendant, for commission and reward to him in that behalf, to sell and dispose of certain goods, to wit, , of great value, to wit, of the value of dollars, of the said plaintiff, upon the terms that the said defendant should be responsible to the said plaintiff for the price of said goods, if sold, when the same should become due upon said sale, and the said plaintiff delivered the said goods to the said defendant, the said defendant undertook and promised the said plaintiff that he would sell and dispose of the said goods, and that he would be responsible to the said plaintiff for the price thereof, if the said defendant should sell the same, when the said price should become due upon such sale of said goods, as aforesaid. 2. That afterwards, the said defendant sold and disposed of the said goods to one E. F., for a large price, to wit, the sum of dollars, to become due on 3. That the time when said price for the said goods so sold to the said E. F. became due upon said sale has elapsed. 4. That the said E. F., although afterwards, to wit, on , at , thereunto requested by the said plaintiff, has not paid the said price, or any part thereof, to the said plaintiff, as the said defendant well knew. 5. That the said defendant has not § 1 Agreements and Stipflations 33 paid the said svun of money, or any part thereof, to the said plaintiff, althougOi requested so to do. Form of Count Against Agent for Not Using Due Care and Diligence in Collecting Moneys The Plaintiff says: 1. That heretofore, to wit, on , at ., in consideration that the said plaintiff" would employ the said defendant as his agent to col- lect certain moneys owing from -divers persons to the said plaintiff, for commission and reward to the said defendant, the said defendant under- took and promised the said plaintiff to use due care and diligence in endeavoring to collect the same for the said plaintiff. 2. That the said plaintiff employed the said defendant accordingly for the purpose and on the terms aforesaid. 3. That a reasonable time for the performance of the said undertaMng and promise by the said defendant elapsed since the making thereof and the employment of the said defendant by the said plaintiff as aforesaid. 4. That the said defendant did not use due care and diligence in endeavoring to collect the said moneys for the said plaintiff. 5. That thereby the said moneys remain imcoUected and the said plaintiff has hitherto been deprived of tihe use of the same and is altogether likely to lose the same. AGREED CASE See Case Made. AGREEMENTS AND STIPULATIONS BETWEEN PARTIES § 1. In general. § 2. Necessity for writing. § 3. Effect of oral agreements. Cr OSS-Be ference: Supreme Ooxtbt (agreements in supreme court). § 1. In general. A stipulation is defined as an agreement between coun- sel respecting business before a court. ^ The implied authority of attonieys to enter into stipulations is recog- nized,^ and it need only be added tliat a party to an action who has retained an attorney cannot make a binding 1 Anderson L. Diet. 2 See Attorneys. 1 Abbott— 3 34 Agreements and Stipulations § 1 stipulation as to matters of procedure without the consent of his attorney.' If valid, stipulations are binding on the courts.* They may relate to many different things, such as discontinu- ances, references, bills of exceptions, depositions, etc., all of which are more particularly treated of in the respec- tive articles dealing with such matters; but they are in- valid where they involve the validity or constitutionality of a statute.^ § 2. Necessity for writing. It frequently happens in the course of a suit that the exigencies of the case render desirable some special agree- ment or stipulation between the parties to it or their at- torneys, either for something to be done or omitted by one party or the other or both of them in connection with the suit, or for some relaxation or other modification, in the particular instance, of the general rules and course of practice. When such agreements were made out of court and were merely verbal, misunderstanding and dis- putes occasionally arose in regard to the precise terms and conditions which had been thus arranged and were sometimes a source of considerable annoyance, not only to the parties interested, but also to the courts in which they were sought to be enforced. To remedy this evil, it was deemed wise at an early day in this state, as well as in other jurisdictions, to establish a rule that such verbal agreements should be no longer recognized when denied by the party against whom they were alleged. The rule which now obtains in Michigan upon this subject is that 8 Jackson v. Cole, 81 Mich. 440, 6 People v. McElroy, 72 Mich. 466; stipulation to discontinue case after Attorney General v. Rice, 64 Mich, submission on appeal. 385. 4 People V. Murray, 52 Mich. 288; People V. Kalamazoo Circuit Judge, 39 Mich. 123. § 3 Agreements and Stipulations 35 no private agreement or consent between the parties to a cause or their attorneys respecting the proceedings in a cause, which is denied by either party, will be binding unless it was made in open court or unless evidence there- of is in writing, subscribed by the party or his attorney against whom it is alleged.^ § 3. Effect of oral agreements. Where an oral agreement not made in open court is acted upon by one of the parties in good faith, but is denied by the other, it is an ordinary exercise of the power of the court, upon such terms as appear reasonable and fair, to relieve the party who has acted in good faith against the consequences of the misunderstanding; "^ and it seems that the rule on this subject requiring a writing is to be confined strictly to such agreements as relate to the proceedings in the suit and that it does not apply to such as effectually terminate it. Thus, it has been held in New York, under a similar rule, that an agreement to dis- continue a suit need not be in writing.* So, also, it has been held in New York that an oral agreement between the attorneys that judgment pass for a certain sum, being in effect a compromise of a liquidated claim, is binding on the parties, even though made under a mistake of law ; ^ but even in cases of this sort, agreements should, as a matter of safe practice, if not of strict requirement, be embodied in writing and subscribed by the parties, where not made in open court. 6Cir. Ct. Rule 4; Sudworth v. 7 Scott v. Scott, 5 Mich. 106; C. Morton, 137 Mich. 575. See also J. Huebell Co. v. MacKinnon, 186 Suydam v. Dequindrc, Walk. eh. Mich. 617, 624. 23; Brooks v. Mead, Walk. ch. 389. 8 Gaillard v. Smart, 6 Cow. (N. Where there are two or more at- Y.) 385. torncys of record for a party in a 9 Montgomery v. Ellis, 6 How. Pr. cause, the agreement of either of (N. Y.) 326. them is binding upon them all. Peo- ple V. Bussey, 80 Mich. SO^. 36 Alias Weits ALIAS WRITS See Commencement of Actions; Attachment; Replevin; Execu- tions; etc. ALIENS An alien enemy may sue in this countiy, under some circumstances (see Mittelstadt v. Kelly, 202 Mich. 524). They are not qualified as jurors (see Jury) and the stat- ute of limitations is affected by non-residence ( see Limi- tation of Actions). ALTERNATIVE WRIT See Mandamus. AMENDMENTS AND DEFECTS CURED BY VERDICT § 1. Scope of article. § 2. Statutory provisions in general. § 3. Amendments by leave of court before judgment. § 4. Nature of power of allowing amendments and how it should be exercised. § 5. Amendments after judgment. § 6. Process, pleadings and records to be amended only by order of court. § 7. Amendment of returns. § 8. Amendment of bonds. § 9. Disregarding errors or defects. § 10. Defects cured by verdict At common law. § 11. By statute. § 12. Application to amend. § 1.3. As affecting third persons. Cross-references : Pleiadings (amendment of pleadings) ; Bill of Particulars; Verdict and Findings; Judgment; Error, Writ of (amendment of record); Bill of Exceptions. Amendment of particular affidavits, see Attachment, Replevin, Gar- nishment, etc. Amendment of particular writs, see Attachment, Com- mencement op Action. § 1. Scope of article. This article treats of nmendments and matters Avhich need not he amended, in general and as a whole. Amend- § 3 Amendments and Defects Cubed by Verdict 37 ment of pleadings, although governed to some extent by these general rules, are considered in another article,^ as are amendments of bills of particulars.^ § 2. Statutory provisions in general. Chapter 16 of the Judicature Act is entitled *'0f the Statute of Amendments," and it is expressly provided that all the provisions of the chapter shall extend to all actions and proceedings in courts of law and equity.* The statute of amendments is the basis of all modern relaxation of rules of practice ; and its manifest object is to give parties who are met with curable objections on a trial the right of amendment on reasonable terms, and to make a verdict, where no point has been previously made at all, valid to rectify all defects that are not so radical as to leave nothing to amend, and to treat the record as if it had been actually amended.* § 3. Amendments by leave of court before judgment. If a party does not avail himself of the right to amend of course within the time limited therefor by the rule, the right is gone and he cannot thereafter amend without the leave of the court therefor first obtained.* The court, however, in which any action or proceeding is pending has the power to amend any "process, pleading or pro- ceeding" in the action or proceeding, either in form or in substance, for the furtherance of justice, on such terms as are just, at any time before judgment has been ren- dered therein.^ The matter of allowing amendments is one which, in general, lies within the sound discretion of the court, whose action in respect to it will not be re- 1 See Pleading. 6 People v. Washtenaw Circuit 2 See Bill of Particulars. Judges, 1 Doug. 434. 3Jud. Act, Ph. 16, §8; Comp. 6 Jud. Act, eh. 16, §1; Comp. Laws 1915, §12485. Laws 1&15, §12478; Crane Lumber ♦ Sohindler v. Milwaukcr, oic. R. Co. v. RplJows, 116 Mich. .'{04. Co., 77 Mich, l.-^fi, 1.54. 38 Amendments and Defects Cueed by Verdict § 3 viewed in the appellate court, except in case of abuse.' Yet the statute is one which should be construed with liberj^lity, so that, in general, if an amendment asked for will be in furtherance of justice and neither surprises nor deprives a party of essential rights, it ought to be al- lowed." § 4. Nature of power of allowing amendments and how it should be exercised. The power to amend is a highly valuable one and should not be limited beyond what is necessary to keep it within safe bounds.® Where the record itself furnishes the data for a required amendment, great liberality should be al- lowed, because the danger of injustice in permitting amendments is then very slight, but where an amend- ment is to be made upon an extrinsic showing, all prac- tical precautions should be taken that no one be wronged by the action of the court ; and, as most facts are suscep- tible of contradiction, there ought always, when prac- ticable, to be notice to the party adversely interested, in order that he may have the opportunity to make a coun- ter-showing; and the more ancient are the proceedings the greater is the importance of giving this notice, be- cause the danger of a false showing increases as the dis- tance in time from the facts increases." 7 Browne v. Moore, 32 Mich. 254; Mich. 80; Rawlings v. Fisher, 110 Polhemus v. Ann Arbor Sav. Bank, Mich. 19. 27 Mich. 44; People v. Wayne Cir- 8 Gamsley v. Boyee, 158 Mich 9; cult Judge, 41 Mich. 727; Detroit, Beecher v. Wayne Circuit Judge, 70 etc., R. Oo. V. Forbes, 30 Mich. 165; Mich. 363; Painter v. Lebanon Land Hoyt V. Wayne Circuit Judge, 117 Co., 164 Mich. 260. Mich. 172; Hohn v. Interstate 9 Montgomery v. Merrill, 36 Mich. Casualty Co., 115 Mich. 79; St. Cnair 97; Beecher v. Wayne Circuit Tunnel Co. v. St. Clair Circuit Judge, Judge, 70 Mich. 363; Snyder v. Win- 114 Mich. 417; Shank v. Wood- sor, 44 Mich. 140. worth, 111 Mich. 642; Flint, etc., R. 10 Montgomery v. Merrill, 36 Mich. Co. V. Wayne Circuit Judge, 108 97. § G Amendments and Defects Cueed by Verdict 39 § 5. Amendments after judgment. After judgment has been rendered in a cause, any de- fect or imperfection in matter of form in the record, pleadings, process, entries, returns or other proceedings may be rectified and amended by the court, in affirmance of the judgment, so that the judgment will not be re- versed or annulled; and any variation in the record from any process, pleading or proceeding had in the cause may be reformed and amended according to the original proc- ess, pleading or proceeding. ^^ In regard to this statute it has been said: "Under this section, if there was a variation in the declaration from the summons in the name of the party defendant in the declaration, it could have been amended by the court. It was not a jurisdictional defect; and where it is not, the amendment will be treated as made after judgment has been rendered in the cause." ^^ Under this statute, where a verdict was incorrectly en- tered as a verdict in assumpsit instead of one in tort, the entry may be amended by direction of the court to con- form to the fact.^^ § 6. Process, pleadings and records to be amended only by order of court. No process, pleading or record can lawfully be amended or impaired by the clerk or other officer of a court or any other person without the order of such court or of some other court of competent jurisdiction.^* 11 Jud. Act, ell. 16, §3; Comp. Us Bole v. Sands & Maxwell Lum- Laws 1915, § 12480 ; Williams v. bcr Co., 77 Mich. 239, 241. City of Lansing, 152 Mich. 169; 13 Forsythe v. Washtenaw Circuit Miller v. Tanners' Supply Co., 150 Judge, 180 Mich. 633, 635, Mich. 292; Sehindler v. Milwaukee, 14 Jud. Act, ch. 16, §7; Comp. etc., R. Co., 77 Mich. 136, 154. Laws 1915, § 12484. Applied in Fernette v. Pere Mar- quette R. Co., 175 Mieh. 653, 675. , 40 Amendments and Defects Cured by Verdict ^ 7 § 7. Amendment of returns. All returns made by a sheriff or other officer or by any court or subordinate tribunal to any court may be amended in matter of form by the court to which the re- turn is made, in their discretion, as well before as after judgment; " but, when an amendment to an officer's re- turn is sought in respect of matters aif ecting the jurisdic- tion of the court, it should be allowed only upon proper showing and upon due notice to the parties adversely in- terested.^^ A further return cannot be made without the leave of the court properly granted ; ^"^ but a return does not become a part of the record until it is actually on file with the clerk, and the officer may, therefore, amend it without leave at any time before filing.^^ § 8. Amendment of bonds. Whenever a bond is required by law to be given by any person, in order to entitle him to any right or privilege conferred by law, or to commence any proceeding, and it is defective in any respect, the court, officer or body authorized to receive the bond or to entertain any pro- ceedings in consequence thereof, may, on the application of all the obligors therein, amend it or allow a new one to be substituted." ISJud. Act, C'h. 16, §4; Comp. 443; Hoben v. Citizens' Tel. Co., Laws 1915, §12481; Lyon v. Bald- 176 Mich. 596; McCain v. Wayne win, 194 Mich. 118, 121. Circuit Judge, 187 Mich. 73. 16 People V. Calhoun Circuit Want of jurisdiction, after rendi- Judges, 1 Doug. 417; Haynes v. tion of judgment, cannot be cured Knowles, 36 Mich. 407; Green v. by amendment of the return. Me- Kindy, 43 Mich. 279; Denison v. Cain v. Wayne Circuit Judge, 187 Smith, 33 Mich. 155; Arnold V. Nye, Mich, 73; Hoben v. Citizens' Tel. 23 Mich. 286; Wilcox v. Sweet, 24 Co., 176 Mich. 596. Mich, 355; Calendar v. Olcott, 1 17 Myers v. Prosser, 40 Mich. 644. Mich. 344 ; King v. Bates, 80 Mich. 18 Watson v. Toms, 42 Mich. 561. 367; Cochrane v. Johnson, 95 Mich. 19 Jud. Act, ch. 16, §11; Comp. 67; Montgomery v. Merrill, 36 Mich. Laws 1915, § 12488. 97; Watson v. Dingman, 120 Mich. § 11 Amendments and Defects Cured by Verdict 41 § 9. Disregarding: errors or defects. The Judicature Act provides that ''the court at every stage of the action shall disregard every error or defect in the proceedings, which do not affect the substantial rights of the parties. ' ' ^o This provision, first introduced by the Judicature Act, is taken from the federal equity rules.^* § 10. Defects cured by verdict At common law. When there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required proof of the facts so defectively or imperfectly stated or omitted, and with- out which it is not to be presumed that either the judge would have directed the juiy to give, or the jury would have given, the verdict, such defect, imperfection or omis- sion is cured by the verdict at the common law.^^ If a declaration or plea omits to state some particular circum- stance without proof of which it is impossible to support the action or defense, this omission will, at the common law, be aided by the verdict.^^ § 11. By statute. The statute in this state ^* provides that, when a verdict has been rendered in any cause, the judgment thereon 20Jud. Act, I'h. 16, §1; Comp. oolni, 2 Johns. (N. Y.) 569; Miles Laws 1915, § 12478. v. Oldfield, 4 Yeatcs (Pa.) 423; 21 Fed. Equity Rules, S 19. Matliis v. Sellers, 86 Pa. St. 486. 22 2 Saund. Rep. 228; note (1); 23 Weston v. Mason, :5 Burrows Gould, PI. ch. 10, 8 13; Hall v. Mar- 1725; Worcester v. Canal Bridge, 16 shall, Cro. Car. 497; Avery v. Hoole. Pick. (Mass.) 541; Elliot v. Heath, 1 Cowp. 826 ; Clark v. King, 3 Term 6 N. H. 428 ; Richardson v. East- R. 147; Bishop v. Hay ward, 4 Term man, 12 Mass. 505; Weighley v. R. 472; Fuller V. Town of Hampton, Weir, 7 Serg. & R. (Pa.) 309; 5 Conn. 416; Warren v. Harris, 7 Happe v. Stout, 2 Cal. 460 ; Hickman 111. 307; Peck v. Martin, 17 Ind. v. Southerland, 4 Bibb (Ky.) 194. 115; Warren V. Inhabitants of Litfth- 24Jud. Act, ch. 16, §5; Comp. field, 7 Me. 63; Ingersoll v. Jack Laws 1915, S 12482. son, 9 Mass. 495; Bayard v. Mai 42 Amendments and Defects Cured by Veedict § 11 shall not be stayed, nor shall any judgment upon confes- sion or default be reversed, impaired or in any way af- fected, by reason of the following imperfections, omis- sions, defects, matters or things, or any of them, in the pleadings, process, record or proceedings, namely: 1. For any default or defect in process or for miscon- ceiving any process or awarding it to a wrong officer, or for want of any suggestion for awarding process or for any insufficient suggestion,^^ 2. For any imperfect or insufficient return of any sheriff or other officer, or that the name of such officer is not set to a return actually made by him.^^ 3. For any variance between the original writ, bill, plaint and declaration, or between either of them.^''' 4. For any mispleading, miscontinuance or discontinu- ance, insufficient pleading or misjoining of issue.^^ 5. For the want of any warrant of attorney by either party, except in cases of judgment by confession, when such warrant is expressly required by law.^* 6. For any party under twenty-one years of age hav- ing appeared by attorney, if the verdict or judgment be for him. 7. For the want of any allegation or averment on ac- count of which a motion to dismiss could have been main- tained.^" 8. For omitting any allegation or averment of any mat- 26 See Bogue v. Prentis, 47 Mieh. to acquire jurisdiction. Hoben v. 124, where two summons were issued Citizens' Tel. Co., 176 Mich. 596. simultaneously by different officers. 27 See People v. Wayne Circuit 26 See Denison v. Smith, 33 Mich. Court Judge, 27 Mich. 87. 155, holding it applies only to formal 28 Elliott v. Farwell, 44 Mich. 186, defects or those not prejudicing failure of declaration to allege resi- either party; Wilcox v. Sweet, 24 dence of plaintiff; Schafer v. Boyce, Mich. 355; Calendar v. Olcott, 1 41 Mich. 256, misjoinder of tort and Mich. 344. assumpsit. The statute does not cure a return 29Benalleck v. People, 31 Mich, which fails to show a service to have ' 200. been made in the manner required 80 See Pleading. § 11 Amendments and Defects Cueed by Verdict 43 ter, without proving which the jury ought not to have given the verdict.^^ 9. For any mistake in the name of any party or person or in any sum of money, or in the description of any prop- erty, or in reciting or stating any day, month or year, when the correct name, time, sum or description has been once rightly alleged in any of the pleadings or proceed- ings.^^ 10. For a mistake in the name of any juror or officer. 11. For the want of a right venue, if the cause was tried by a juiy of the proper county.^' 12. For any informality in entering a judgment or mak- ing up the record thereof, or in any continuance or other entry upon the record.^* 13. For any default or negligence of any clerk or officer of the court, or of the parties or their counselors or at- torneys, by which neither party has been prejudiced."* And it is further provided that the omissions, imper- fections, variances, and defects therein before enumer- ated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties or the trial, shall be supplied and amended by the court where the judgment 31 See Barton v. Gray, 57 Mich. sian Nat. Ins. Co. v. Eisenhardt, 153 632. Mich. 198. 32 Smith v. Pinney, 86 Mich. 484; 35 Babcock v. Cook, 55 Mich. 1, Bole V. Sands & Maxwell Lumber 7; Bogue v. Prentis, 47 Mich. 124 Co., 77 Mich. 239, mistake in name ; Wilcox v. Sweet, 24 Mieh. 355. Fail Morse v. Hewett, 28 Mich. 481, 491. "^^ *« formally amend declaration, 33 Grand Rapids & I. R. Co. v. ^^^^^ ^- Whitwell, 6 Mich. 474 „ i, . , nn -tr- 1. aa a Omission to enter order of discon Southwick, 30 Mich. 444. ^o >r- i. ^ ,,. , ,„, tinuance. Cook v. Perry, 43 Mich. 34 Morse V. Hewett, 28 Mich. 481, ^oo ^ • • x i. ^ 623. Omission to enter an order 491; Kenyon V.Woodward, 16 Mieh. ^^thorizing referee to act, where ooc ^ '^' reference was by stipulation. Be- Use of word "order" instead of ^g^ ^ Fletcher, 39 Mich. 25, 29. "adjudged," in overruling a de- Clerical mistake in rule to plead. murrer, was held not fatal, on writ Elliott v. Preston, 44 Mieh, 189; of error, under this section, in Pruq- Howe v. Maltz, 35 Mich. 500. 44 Amendments and Defects Curkd bv Vhrdict ^ 11 shall be given, or by the court into which sucli judgment shall be removed by writ of error. In other words, a for- mal amendment which might have been made before judgment on motion will be regarded by the supreme court as having been made after judgment. ^^ When the error or omission is merely a clerical or technical one, the court above, on error brought, will disregard it without making any formal amendment. In other cases, a motion should regularly be made in the trial court for leave to amend, and the court will stay the proceedings, if neces- sary, to enable the party to make such motion.^' By another statute, ''every variance between process, pleadings, or any instiniment in writing, recited or re- ferred to in any other process, pleading or record, and every mistake in the name of any officer or other person, or in stating any day, month or year, or in the descrip- tion of any property, in any pleading or record, shall be disregarded upon the trial of such cause, and after a ver- dict therein, unless such variance or mistake be calculated to surprise or mislead the adverse party, and to prevent his making due preparation for a full answer on the merits, to the matter concerning which such variance or mistake shall have been made. ' ' " § 12. Application to amend. The application to amend should be made promptly on discovery of the defect, since the court may refuse the amendment where laches is unexplained.'® Generally, where the amendment is sought on an extrinsic showing, there must be notice to the adverse party." 86 Jud. Act, ch. 16, § 6 ; Comp. 37 Smith v. Pinney, 86 Mieh. 484. Laws 1915, §1248.'{. 38 Jud. Act, ch. 18, §11; Comp. An amendment, under this stat- Laws 1915, § 12583. ute, is proper to cure an error, not 89 Montgomery v. Merrill, 36 Mich, to create one ; to work an affirmance, 97. not a reversal. Johnson v. Muske- 40 Montgomery v. Merrill, 36 Mich, gon County, 195 Mich. 722. 97. § 2 Animals 45 § 13. As affecting third persons. Ordinarily amendments will not be allowed to atl'ect rights acquired by third persons while the proceedings were defective.*^ AMOUNT IN CONTROVERSY See Courts; Circuit Courts; Costs. ANIMALS § 1. Kepleviii for beasts distrained. § 2. Affidavit. § 3. Distinction between replevin for beasts distrained and general replevin. § 4. Service of writ and bond for delivery of beasts to plaintiff. Cr OSS-Reference: Attachment (sale of -where attached). § 1. Replevin for beasts distrained. Any person whose beasts are distrained or impounded in order to recover any penalty or forfeiture supposed to have been incurred by their going at large, or to obtain satisfaction for any damages alleged to have been done ])y them, may have a writ of replevin therefor out of the proper court, and the same proceedings will be had there- on as in other cases of replevin, except as will be presently explained.^ §2. Affidavit. It is provided that the writ shall not be executed in any case unless the plaintiff in the action or some person knowing the facts shall make and annex to the writ an affidavit stating that the beasts, describing them, have been distrained or impounded and are detained by the de- fendant, and that the plaintiff is the owner of them or that he has a lawful right to the possession of them.* 41 Montgomery v. Merrill, 36 Rockey, 46 Mich. 460 ; Fix v. Sis- Mich. 97. sung, 83 Mich. 561. IJud. Act, ch. 27, §38; Comp. 2 Jud. Act, ch. 27, §39; Corap. Laws 1915, §13117; Norton v. Laws 1915, § 13118. 46 Animals § 3 §3. Distinction between replevin for beasts dis- trained and general replevin. This proceeding is designed especially for cases of dis- tress and is exclusive of the proceedings under writs of replevin under the general law.^ A mere claim that beasts had been distrained, where in fact they had not been, would not defeat the plaintiff's right to maintain re- plevin under the general statute; but where the defendant has in good faith taken cattle damage feasant, then, if the owner desires to bring replevin to test the legality there- of, he must proceed in the manner designed for such cases.* § 4. Service of writ and bond for delivery of beasts to plaintiff. The writ is served and the property appraised, and, be- fore delivery thereof to the plaintiff, a bond must be given in like manner and with the same effect as in other cases of replevin. But the property must not be removed by the officer until the bond is given, and if the bond be not given within the time limited for that purpose, the property must be relinquished by the sheriff; and the failure to give the bond will be deemed a discontinuance of the suit by the plaintiff.^ 3 Johnson v. Wing, 3 Mich. 163 ; faith in making the distraint. Ek- Hamlin v. Mack, 33 Mich. 103; Bar- lund v. Toner, 123 Mich. 302; Cox rett V. Rowe, 78 Mich. 648 ; Marx v. v. Cliester, 77 Mich. 494. Woodruff, 50 Mich. 361; Campau v. 4 Campau v. Konan, 39 Mich. 362. Konan, 39 Mich. 362; Norton v. 6 Jud. Act, eh. 27, §40; Comp. Eockey, 46 Mich. 460. Laws 1915, § 13119. See Bublitz v. Remedy is exclusive and precludes Trombley, 113 Mich. 413, holding an action of trover for property that court, on its own motion, can- taken damage feasant. Spiegel v. not discontinue suit because the bond Straw, 196 Mich. 576. has only one surety. But replevin in the general form Giving indemnity bond instead of is the proper remedy to recover cat- replevin bond held not fatal in Don- tie distrained damage feasant, where ley v. Fowler, 147 Mich. 288. defendant has not acted in good Another Action Pending 47 ANOTHER ACTION PENDING Cross-Eeferences: Stay of Proceedings; Mandamus. The pendency of another action may bar an action. However, the two actions must be between the same per- sons or those in privity with them and based on the same cause of action.^ A pending suit in chanceiy, it has been held, cannot be pleaded as a defense to an action at law,^ nor can a pending in rem proceeding in admiralty,' or a pending suit in another state,* or a prior suit so prema- turely brought that there could be no recoveiy therein.*^ Formerly this defense was raised by plea in abatement and it was held that such a plea must be certain and show all the elements necessary for the defense,^ must clearly allege that the former action is still pending,'' that the issues in the two actions are the same,' etc. Where a 1 Eaton V. Eaton, 68 Mioh. 158; Lenox v. Fuller, 38 Mich. 268; Bel- den V. Laing, 8 Mich. 500; Jennison Hardware Co. v. Godkin, 112 Mich. 57; Ernest v. Woodworth, 124 Mich. 1. See Pinel v. Campsell, 190 Mich. 347; Michigan By. Commission v. Detroit & M. R. Co., 182 Mich. 234 ; Eeis V. Applebaum, 170 Mich. 506. 2 Kinney v. Robison, 52 Mich. 389; Robinson v. Baxter, 57 Mich. 127; Wheeler v. Hathaway, 58 Mich. 77. See also DeMill v. Port Huron Dry Dock Co., 30 Mich. 38; Joslin v. Millspaugh, 27 Mich. 517. Pendency of foreclosure proceed- ings cannot be pleaded in abatement to a suit at law on the mortgage notes. If leave to sue at law has not been granted under the statute, ap- plication should be made in the equity cause to restrain the unau- thorized suit at law. Joslin v. Mills- paugh, 27 Mich. 517; Goodrich v. White, 39 Mich. 489. See also Steele V. Kent Circuit Judge, 109 Mich. 647. 8 People V. Wayne Circuit Judge, 28 Mich. 406. 4 Wilcox V. Kassick, 2 Mich. 165. Compare, however. Citizens ' Bank of Rudyard v. Chippewa Circuit Judge, 186 Mich. 494, garnisihrnent proceed- ing. & Blackwood v. Brown, 34 Mich. 4. 6 Sufficiency of plea of another replevin suit pending, see Belden v. Laing, 8 Mich. 500. 7 Wales v. Jones, 1 Mich. 254; Pew V. Yoare. 12 Mich. 16, holding it insufficient to allege former suit was pending at time of commence- ment of second action, 8 Belden v. Laing, 8 Mich. 500. But where no reasonable doubt exists as to the identity of the two suits, the plea was held good. O'Brien v. Alpena Circuit Judge, 106 Mich. 42. 48 Another Action Pending motion to dismiss is made on the ground of another action pending, the motion, as a substitute for the abolished plea in abatement, must show tluit tlie whole relief sought in the second suit is obtainable in the first.^ Form of Motion to Dismiss for Another Suit Pending (Title of court and cause.) Comes now the said defendant and moves the court now here to dis- miss this suit for the following reason: 1. That before the eommcneement of this suit, to wit, on , in the Circuit Court for the County of , the said plaintiff commenced another suit upon the identical cause of action in the declaration of the plaintiff in this present suit set forth, the parties in both which suits are the same and not other or different persons, and which said suit first commenced is still pending in the court last aforesaid. This motion is based upon the files and records in this cause and Upon the affidavit of C. D. now on file herein. ANSWER See Ple/VDINg; Mandamus. ANTICIPATING DEFENSES. See Pleading. APPEALS Appeals from probate courts (see Probate Courts) and from justices of the peace (see Justices of the Peace) to the circuit court are regulated by statute. Appeals in equity suits to the supreme court are not within the scope of this work. Writs of error (see Error, Writ of) are considered in detail elsewhere, as are mandamus proceed- ings (see Mandamus) in connection with appeals. Ap- peals to the circuit in certain particular actions or pro- ceedings, as provided for by statute, are referred to in the articles relating to such actions or proceedings (see Attachment as to appeal from order on application to dissolve, Fraudulent Debtors, Supplementaiy Proceed- ings, Summary Proceedings, etc.). 9 Lewis J. Selznick Enterprises v. Harry I. Garson Productions, 202 Mich. 111. § 2 Appeakance 49 APPEARANCE § 1. Definition. § 2. Kinds and effect. § 3. Necessity and time for. § 4. Eight to appear and Tv'ho may appear. § 5. AVliat constitutes. § 6. Form, contents and entry. Cross-References: Commencement op Actions; Bait, (appearance by putting in special bail); Attachment; Attorneys; Defaults. § 1. Definition. '' Appearance" means the coming into court as a party to a suit, wliether as plaintiff or defendant.^ Ordinarily, however, the term is used to signify the act of defendant. As applicable to defendant, it is the formal proceeding by which ho submits himself to the jurisdiction of the court.^ The actual |)resence of the party is not necessary to constitute an appearance but he may appear by agent or attorney.* § 2. Kinds and effect. Appearances are either general or special. An appearance is general if it is an absolute submis- sion to the jurisdiction of the court, and special if made for the sole purpose of objecting to the jurisdiction of the court over the person of defendant. Where it is evi- dent that a special appearance is intended, the court can- not enlarge it and make it general,* and, on the other hand, where the appearance is in effect a general one the partj^ cannot limit it to a special appearance, as by calling it a special one. When employed without a qualifying adjective, the 1 Thompson v. Michigan Mut. Ben. 3 Wagner v. Kellogg, 92 Mich. Ass'n, 52 Mich. 522; Wagner v. 616. Kellogg, 92 Mich. 616. 4 Schwab v. Mabley, 47 Mich. 512. 2 Crawford v. Vinton, 102 Mich. sn. 1 Abbott— 4 50 Appeabance § 2 term ''appearance" usually signifies a general appear- ance, which is a submission to the jurisdiction of the court as to the person of the defendant and, in effect, a waiver of all irregularities and defects in the process and in tlie manner in which it was served, or even of the absence of all process.^ But the waiver incident to a general appearance does not, and no waiver can, confer upon the court jurisdiction as to the subject-matter which it w^ould not othenvise possess, so that all objections to the jurisdiction of the court as to the subject-matter are still open, notwithstanding a general appearance on the part of the defendant.^ A special appearance is one made not for the pui*pose of submitting the person of the de- fendant to the jurisdiction of the court, but for the pur- 130se of presenting some objection based upon the irregu- larity of the proceedings, and usually with the aim of averting the exercise of such jurisdiction. If the objec- tion made is not sustained by the court, the special ap- 6 Gunn Hardware Ck). v. Denison, bott, 50 Mich. 278; Graham v. Cass 83 Mich. 40; Pardee v. Smith, 27 Circuit Judge, 108 Mich. 425; Grand Mich. 33; Falkner v. Beers, 2 Doug. Eapids, etc., R. Co. v. Gray, 38 Mich. 117; Stone V. Welling, 14 Mich. 514; 461; Dunlap v. Byers, 110 Mich. Curran V. Norris, 58 Mich. 512 ; Man- 109; Sarmiento v. The Catherine hard V. Schott, 37 Mich. 234; Austin C, 110 Mich. 120; Thompson v. V. Burroughs, 62 Mich. 181; Bursou Michigan Mut. Ben. Ass'n, 52 Mich. V. Huntington, 21 Mich. 415; Gree- 522; Norbcrg v. Hcineman, 59 Mich, ley V. Stilson, 27 Mich. 153; Max- 210; Watkins v. Plummer, 93 Mich, well V. Deens, 46 Mioh. 35; Dailey 217; Griffin v. Wattles, 119 Mich. V. Kennedy, 64 Mich. 208; Bryant v. 346; Steel v. Clinton Circuit Judge, Hendee, 40 Mich. 543; Taylor v. 133 Mich. 695; Home Ins. Co. v. Adams, 58 Mich. 187; Pierce V. Reh- Curtis, 32 Mich. 402; Cofrode v. fuss, 35 Micli. 53; Grand Rapids, Wayne Circuit Judge, 79 Mich. 332. etc., R. Co. V. Gray, 38 Mich. 461; A petition to remove a cause to a Ferguson v. Oliver, 99 Mich. 161 ; federal court is not a general ap- Stevens v. Harris, 99 Mich. 230 ; pearance as to defendants not served Tromble v. Hofifman, 130 Mich. 676; with process who unite in the peti- Hicks v. Steel, 126 Mich. 408; Dunlap tion. Schwab v. Mabley, 47 Mich. V. Byers, 110 Mieh. 109; Sherwood 512. V. Ionia Circuit Judge, 107 Mich. 6 Kirkwood v. Hoxie, 95 Mieh. 62; 136; Attorney General v. A. Booth Gott v. Brigham, 41 Mich. 227. & Co., 143 Mich. 89; Durfee v. Ab- Appeakance 51 pearance cannot be treated as a general appearance in the case.' An appearance for the purpose of objecting to irregularities does not waive them, but, if it is for some other puipose, and contemplates a step adapted to a case regiilarly on foot, as for obtaining a continuance, it is a waiver, and no objection can afterwards be taken to prior defects, even though the motion for which the appearance was made be denied.^ Objections to the venue are waived by a general ap- pearance.^ So the absence of process is waived by a general aj^pearance,^" as are defects in the process," or in the service ^^ or return ^^ thereof. So defects in the affidavit for arrest are waived by a general appearance," as is the failure to obtain leave of court to sue." So pleading over after the overruling of the objection to the affidavit for arrest waives the defect in the affidavit.^' i Schwab V. Mabler, 47 Mich. 512 ; McLean v. Isbell, 44 Mich. 129; Mc- Cain V. Wayne Circuit Judge, 187 Mich. 73; Lyon v. Baldwin, 194 Mich. 118; Woodruff v. Young, 43 Mich. 548. 8 Lane v. Leech, 44 Mich. 163. 9 Johnson v. Burke, 167 Mich. 349, 355; Thompson v. Michigan Mut. Ben. Ass'n, 52 Mich. 522; Norberg V. Heineman, 59 Mich. 210; Hicks V. Steel, 126 Mich. 408; People v. Detroit Superior Judge, 30 Mich. 10. 10 Cofrode v. Wayne Circuit Judge, 79 Mich. 332. See also Dur- fee V. Abbott, 50 Mich. 278. UFalkner v. Beers, 2 Doug. 117; •Tromblc v. Hoffman, 130 Mich. 676; Pardee v. Smith, 27 Mich. 33 ; Pierce V. Echfuss, 35 Mich. 53 (writ made returnable on Sunday) ; Maxwell v. Deens, 46 Mich. 35; Curran v. Nor- ris, 58 Mich. 512 (summons instead of order to show cause). 12 Priest V. American Ins. Union, 171 Mich. 321; Stone v. Welling, 14 Mich. 514 (service by publication) Burson v. Huntington, 21 Mich. 415 Oreeley v. Stilson, 27 Mieh. 153 Manhard v. Sehott, 37 Mich. 234 Austin V. Burroughs, 62 Mich. 181 Dailey v. Kennedy, 64 Mich. 208 Audretsch v. Hurst, 126 Mich. 301 National Coal Co. v. Cincinnati, etc., Min. Co., 168 Mich. 195; Longe V. Kinoey, 171 Mich. 321. 13 Burson v. Huntington, 21 Mich. 415. 14 Maxwell v. Deems, 46 Mich. 35 Wasey v. Mahoney, 55 Mich. 194 Wiest V. Luyendyk, 73 Mieh. 661 Graham v. Cass Circuit Judge, 108 Mich. 425. But see In re Stephen- son, 32 Mich. 60. 15 Attorney General v. A. Booth & Co., 143 Mieh. 89. 16 See Keed v. McCready, 170 Mieh. 532; Taylor v. Adams, 58 Mich. 187. Contra, Warren v. Crane, 50 Mich. 300. 52 Appearance § 2 But appearance does not waive an illegal arrest on a capias." A defendant who has appeared by notice of retainer or appearance is entitled to notice in advance of all future proceedings in the cause, although he may not have fol- lowed his appearance by plea.^* § 3. Necessity and time for. Where the declaration is not filed at the commence- ment of the suit and served with the writ, the defendant must serve notice of his appearance or of retainer and file a copy thereof with the clerk of the court within fifteen days after the service of the writ upon him.^^ When the declaration is so filed and served, the defendant must plead to the declaration within fifteen days after such service ; ^" in which case, the filing and service of the plea constitutes an appearance by the defendant, ren- dering unnecessary the filing and service of a notice of appearance or of retainer. The business address of the defendant's attorney should appear upon the notice.^^ When tlie suit has been commenced by declaration, the defendant is I'eciuired to plead thereto within fifteen days after service upon him of a copy of the declaration and notice to plead.^^ The filing and service of the plea con- stitutes an appearance by the defendant and no notice of appearance or of retainer is necessary. § 4. Rig-ht to appear and. who may appear. Kvery person of full age and sound mind may appear in a suit by attorney in every action or plea against him 17 Baldwin v. Branch C?ircuit E. H. Stafford Mfg. Co., 171 Mich. Judge, 48 Mich. 525. 8. iSCir. Ct. Rule 13. 20 Jud. Act, ch. 13, §6; Comp. 19Cir. Ct. Rule 31, §2; Jud. Act, Laws 1915, §12409. ch. 13, §6; Comp. Laws 1915, 21 Cir. Ct. Rule 3, § 5. §12409. 22 Jud. Act, ch. 13, §4; Comp. If fifteenth day falls on Sunday, Laws 1915, § 12407. may appear on Monday. Vohlers v. § 5 Appeaeance 53 in any conrt, or may, at his election, prosecute or defend such action or plea in person, except that he cannot ap- pear on the record in any civil case in person while he has an attorney in the cause.*^' But if suit is brought against a defendant who is an infant or is insane or otherwise mentally incompetent, the suit must be de- fended by the guardian of the estate of such defendant, if there be such guardian. If there be no such guardian, then, before the action may proceed further, it is neces- sary that a guardian ad litem be appointed for the de- fendant.^* If no nomination of a guardian ad litem for an infant defendant is made within twenty days after the service of the process or declaration, the plaintiff may obtain an order from the court in which the proceed- ings are pending appointing some suitable person to act as guardian ad litem for such defendant.^^ Such guard- ian does not become liable for the costs of the suit un- less -specially charged by the order of the court for some personal misconduct in the cause.^^ Any defendant against whom process has issued has the right to appear without service.^' § 5. What constitutes. The defendant is deemed to have appeared in the action, when he pleads, gives the plaintiff written notice of his appearance, or when his attorney gives the plain- tiff notice of appearance or retainer generally. Service of notice of retainer constitutes an appearance,^' as does the filing of a motion to dismiss as a substitute for a demurrer,^' or a plea,^** or the giving of a bond to obtain 23 Jud. Act, ch. 4, §14; Comp. by guardian ad litem, see Cir. Ot. Laws 1915, § 12261. Rule 63. 24 Jud. Aet, ch. 12, § 30 ; Comp. 27 Ralston v. Chapin, 49 Mich. 274. Laws 1915, § 12381. 28 Low v. Kalamazoo Circuit 26 Jud. Act, ch. 12, 8 30; Comp. Judge, 61 Mich. 35. Laws 1915, § 12381. 29 Thompson v. Michigan Mut. 26 Jud. Act, ch. 12, §30; Comp. Ben. Ass'n, 52 Mich. 522. Laws 1915, § 12381. As to security 80 Miller v. Rosier, 31 Mich. 475, 54 Appearance § 5 the dissolution of an attachment,^^ but it is otherwise as to a motion to quash service and strike out the sugges- tion of damages filed by plaintiff in ejectment, where it is clear that such was not the intent of defendant's counsel.^^ § 6. Form, contents and entry. Notice of appearance is addressed by defendant, or his attorney if he have one, to plaintiff's attorney, stat- ing that defendant appears, and the business address of defendant's attorney must be added. ^' The omission of the clerk to enter defendant's appear- ance in a cause is a mere matter of form which is amend- able nunc pro tunc.'* rorm of Notice of Eetainer (Title of court and cause.) Sir:— Please to take notice that I am retained for the defendant in the above- entitled cause. Dated, etc. Yours, etc., K. L., Defendant's Attorney. Business address: To J. K., Plaintiff 's Attorney. , Mich. APPRAISAL See Attachment; Replevin; Exemptions. ARBITRATION AND AWARD § 1. Common law submission. § 2. Statutory submission. § 3. What may be submitted. 31 Butcher v. Cappon & Bertsch in an action against the receiver, is Leather Co., 148 Mich. 552. not an appearance by the corpora- 32 Thomson v. McMorran Mill Co., tion. Price v. Delano, 187 Mich. 49. 132 Mich. 591. 84Norvell v. McHenry, 1 Mich. 83 An appearance by a receiver, 227, 234. . § 1 Abbitration and Awaed 55 § 4. Acknowledgment and seal. § 5. Hearing. § 6. Swearing arbitrators and witnesses. § 7. Compelling attendance of witnesses. § 8. Award. § 9. Confirmation. § 10. Motion to vacate. §11. Motion to modify. § 12. Time for and disposition of motion to vacate or modify. § 13. Entering judgment on. § 14. Costs. § 15. Judgment record. § 16. Effect of judgment; execution. § 17. Enforcing judgment by rule and attachment. § 18. Writ of error. § 19. Statutory submission irrevocable. § 20. Equity jurisdiction. § 21. Effect on pending suit. Cross-Eeference: Joinder of Causes of Action (joinder of count on an award). § 1. Common law submission. At common law, the parties to a controversy who possess the capacity to bind themselves by contracts in general may agree to submit their dispute to the arbi- tration of one or more persons and to abide by the award of the arbitrators upon the subject-matter. If the award was not performed, it was enforceable by action only. This peaceful mode of adjusting differences between parties, though sometimes anciently discouraged by the courts as carrying causes away from their jurisdiction,^ has generally been favored by the courts,^ whose policy it is to avoid unnecessary litigation, and has been ad- miringly regarded by the legislature, which, adopting the common law institution as a nucleus, has engrafted upon it several incidents and safeguards intended to en- hance its efficiency and usefulness. 1 Simmonds v. Swaine, 1 Taunt. 28 Mich. 186 ; Alpena Lumber Co. 549. V. Fletcher, 48 Mich. 555; Brush v. 2 Chicago, etc., R. Co. v. Hughes, Fisher, 70 Mich. 469. 56 Arbitration and Award § 1 The statutoiy provisions do not supplant the common law arbitration, which may still be resorted to if the par- ties prefer it, but provide a method so greatly improved that in most cases it is adopted in preference to the other. An arbitration which does not conform to the statutor\^ requirements may nevertheless be good at common law, and a common law action will lie to enforce it if it fairly disposes of the matters in dispute and leaves nothing open to controversy.^ § 2. Statutory submission. All persons, except infants and persons of unsound mind, may, by an instrument in writing, submit to the decision of one or more arbitrators any controversy ex- isting between them which might be the subject of an action at law^ or of a suit in chancery, except as will be presently stated, and may in such submission agree that a judgment of any circuit or superior court, to be desig- nated in the instrument, shall be rendered upon the award made pursuant to such submission.* An agree- ment, however, which contains no covenant or agreement not to sue or that the aw^ard shall be made the founda- tion of a judgment provides merely for a common law arbitration.* An individual partner has no power, without special authority for the purpose from his co-partners, to sub- mit partnership matters to arbitration;® but an agent appointed for the purpose may bind his principal by a submission to arbitration of the matters of his principal, 3 Galloway v. Gibson, 51 Mich. A parol submission was good at 135; Cady v. Walker, 62 Mich. 157; common law. Cady v. Walker, 62 Clement v. Comstoek, 2 Mich. 359; Mich. 157. Sawyer v. McAdie, 70 Mich. 386 ; 6 McGunn v. Hanlin, 29 Mich. 476. Gibson v. Burrows, 41 Mich. 713. 6 Bachus v. Coyne, 35 Mich. 5; 4 Jud. Act, ch. 45, § 1 ; Comp. Buchoz v. Grandjean, 1 Mich. 367 ; Laws 1915, §13646; Taylor v. Davis v. Berger, 54 Mich. 652. Smith, 93 Mich. 160; Hoste v. Dal- ton, 137 Mich. 522. $ 3 Arbitratiok and Award 57 and this whether the agent sign the agreement in his own name or in that of his principal.''^ Corporations as well as natural persons may submit their controversies to arbitration. The president and secretary of a corporation are proper officers to agree for it upon an arbitration.' Form of Statutory Submission to Arbitration Know all men by these presents, that A. B., of , of the first part, and C. D., of , of the second part, being parties to a controversy existing between tJiein in relation to (here state the subject-matter of th« controversy) which said controversy might be the subject of an action at law or of a suit in chancery, but does not involve the claim of any person to any estate in fee or for life in real estate, do hereby submit the said controversy to E. F., 6. H., and I. J. (name one or more per- sons) as arbitrators, and do agtree that a judgment of the circuit court for the county of may be rendered upon the award made pursuant to the siubmission hereby made, according to the statute in such case made and provided. In witness whereof, the above-named parties have hereunto set their handstand seals this day of , A. D A. B. [Seal.] (Add acknowledgment.) C. D. [Seal.] § 3. What may be submitted. No statutory submission to arbitration is permitted to be made respecting the claim of any person to any estate in fee or for life in real estate, but any claim to an interest for a term of years or for one year or less in real estate and controversies respecting the partition of lands between joint tenants or tenants in common or concerning the boundaries of lands or concerning the admeasurement of dower may be submitted to arbitra- tion.® Damages for a right of flow^age are a proper subject of statutory arbitration, and the award is binding if it 7 City of Detroit v. Jackson, 1 » Jud. Act, eh. 45, §2; Comp. Doug. 106. Laws 1915, § 13647 ; Lang v. Sal- 8 Fitch V. Oonstantine Hydraulic liotte, 79 Mich. 505. Co., 44 Mieh. 74. 58 Arbitration and Award § 3 agrees with the express terms of the submission ; ^° but, where hmd matters are so inter^voven with the matters submitted upon the theory of one party that no settle- ment would be perfect without passing upon the ques- tion of ownership, the case is an improper one for statu- tory arbitration.^* A matter which forms the subject of a pending suit may be submitted to arbitration, and the court may enter judgment upon the award, rejecting the record anterior to the submission.*^ The effect of such submission is to discontinue the suit,*^ if the submission is followed by an award.** A claim under a contract which is illegal because against public policy or forbidden by statute can- not be made the subject of arbitration." § 4. Acknowledgment and seal. Every submission under the statute must be acknowl- edged by the parties signing it before some officer author- ized to take acknowledgments of deeds, who must cer- tify the acknowledgment thereon.*^ If the submission be not acknowledged, it will not support a judgment, al- though the award thereon might be enforced by an action.*' If, however, it be acknowledged before the award is made, it will support a judgment on the award.*' The submission need not be under seal.*' § 5. Hearing. It is the duty of the arbitrators selected by the parties to appoint a time and place for the hearing, and they 10 Fiteh V. Constantine Hydraulic 1* Callanan v. Port Huron, etc., Co., 44 Mich. 74. R. Co., 61 Mich. 15. "GaUagher v. Kern, 31 Mich. 16 Hall v. Kimmer, 61 Mich. 269. 138. 16 Jud. Aft, ch. 45, § 3 ; Comp. 12 Vanderhoof v. Dean, 1 Mich. Laws 1915, § 13648. 463. 17 Gibson v. Burrows, 41 Mich. 713. 13 Vanderhoof v. Dean, 1 Mich. 18 Davis v. Berger, 54 Mich. 652. 463; Dunn v. Sutliff, 1 Mich. 24; 19 City of Detroit v. Jackson, 1 McNulty V. Solley, 95 N. Y. 242. Doug. 106. § 7 Arbitration and Award 59 may adjourn the hearing from time to time as may be necessary and, on the application of either party and for good cause, may postpone it to any time not extending beyond the day fixed in the submission for rendering their award.^° All the arbitrators must meet together and hear the proofs and allegations of the parties.^^ If either party neglects to appear before the arbitrators after due notice, they may proceed to hear and determine the matter submitted to them upon the evidence pro- duced by the other party.*^^ They are the judges of the law as well as of the facts.^^ § 6. Swearing" arbitrators and witnesses. Before proceeding to hear any testimony, the arbitra- tors should be sworn faithfully and fairly to hear and examine the matters in controversy submitted to them and to make a just award thereon according to the best of their understanding.^* The oath of arbitrators need not be in writing.^* Either of the arbitrators will have power to administer all necessary oaths to witnesses ex- amined before them.^^ § 7. Compelling- attendance of witnesses. Witnesses may be compelled to appear before arbitra- tors by subpoena, to be issued by any justice of the peace in the same manner and with the like effect and subject to the same penalties for disobedience or for refusing to be sworn or to testify as in cases of trials before justices of the peace.^' 20Jud. Act, Ph. 45, §4; Comp. 24 Jud. Act, ch. 45, §5; Comp. Laws 1915, §13649; Elliott v. Han- Laws 1915, §13650. son, 39 Mich. 157; Abeel v. Hubbell, 25 Davis v. Berger, 54 Mich. 652. 52 Mich. 37. 26 Jud. Act, ch. 45, §5; Comp. 21Jud. Act, eh. 45, §7; Comp. Laws 1915, §13650. Laws 1915, § 13652. 27 Jud. Act, ch. 45, §6; Comp. 22 Jud. Act, ch. 45, §23; Comp. Laws 1915, §13651. Laws 1915, § 13668. 23 Hewitt V. Village of Reed City, 124 Mich. 6. 60 Arbitration and Award § 8 §8. Award. Although all the arbitrators must meet together and hear the proofs and aHegatioiis of the parties, an award by a majority of them will be valid, unless the concur- rence of all the arbitrators is required in the submis- sion.^* It has been held that the arbitrators must all be present when an award is signed, that is, each must sign it in the presence of the others, so that where two of three arbitrators signed an award when the third was not present, and the third signed it afterwards when but one of the other two was present, the award was not a valid one.^^ The signature of two of three arbitrators, how- ever, would not make it void, unless it was made to appear, on motion to vacate, that they had signed in dis- regard of the conditions regulating execution by a ma- jority.'" The award of arbitrators under the statute is an offi- cial act and is itself the evidence and authority upon which the circuit court may render judgment.^^ The award will be examined as a whole and fairly construed according to the principles which govern arbitration findings. All that is required is certainty to a common intent. If an award is sufficiently definite to be obliga- tory as a contract, it is sufficiently so as an award; '^ but 28 Jud. Act, eh. 45, § 7 ; Conip. 31 City of Detroit v. Jackson, 1 Laws 1915, §13652; McCurdy v. Doug. 106. Daniell, 135 Mich. 55. 32 Bush v. Davis, 34 Mich. 190; In the ease of a common-law sub- Hiscoek v. Harris, 74 N. Y. 108. mission to arbitration, tlie award An award of a certain sum as due will be valid only if it is assented subcontractors on a building, sub- to by all of the arbitrators, unless ject to discharging any and all liens the agreement for submission other- on the property, is sufficiently defi- wise provides. Lattin v. Gamble, nite where the liens could be dcfi- 154 Mich. 177. nitely ascertained. Pigott-Healy 29 Daniels v. Ripley, 10 Mich. Const. Co. v. H. A. Jones R€al Es- 237; French v. Butler, 39 Mich. 79. tate Co., 201 Mich. 102. 80 Fitch V. Constantino TTydranlir- Co., 44 Mich. 74. § 8 Akbiteation and Award 61 where an award leaves the amount due from one party to the other to be determined from an examination of certain books of account, and such accounts are so in- complete that the amount of the award cannot be com- puted without the aid of other evidence, the award is void for uncertainty. An award that is so uncertain and ambiguous in some of its parts that it cannot be enforced is void in toto. It cannot stand as to part of the submission and be ineffectual as to the other matter contained in it, especially where it appears that it was the intent of the parties that whatever differences existed in connection with the subject-matter should be deter- mined by the arbitrators.^' So an award which in no manner conforms to the agreement of submission will be disregarded.'* But it is wisely settled that the mode of deciding disputes by judges chosen by the parties themselves for the very occasion calls for every encour- agement from the ordinary tribunals, and hence that formal matters and professional niceties are not to be re- garded; and whenever, by fair intendment, the proceed- ing can be upheld, it will be.'^ It is a rule never to raise a presumption for the sake of overturning an award, but, on the contrary, to make every reasonable intendment in its support; and therefore an award is presumed to be within the submission unless the contrary expressly ap- pears.'^ Form of Award of Arbitrators Under Statutory Submission We, the undorsignt'd, having been duly appointed ar])itrators by A. B. and C. D. of a coiitiroversy existing between them in relation to (here state the subject-matter of the controversy as in the submission), and 33 Mather v. Day, 106 Mich. 371; 35 Bush v. Davis, 34 Mich. 190. Schuyler v. Van Der Veer, 2 Gaines 36 Bush v. Davis, 34 Mich. 190; (N. Y.) 235; City of New York v. Cliicago, etc., R. Co. v. Hughes, 28 Butler, 1 Barb. (N. Y.) 325. Mich. 186; Brush v. Fisher, 70 Mich. 34Sawtells v. Howard, 104 Mich. 469; Port Huron, etc., R. Co. v. 54; Kearney v. Washtenaw Mut. Cnllanan, 61 Mich. 22; Clement r. Fire Ins. Co., 126 Mich. 246. Coiiistoek, 2 Mich. 359. 62 Arbitration and Award § 8 having been duly sworn faitlifully and fairly to hear and examine the matters in controversy submitted to us, and make a just award thereon according to the best of our understanding, and having appointed a time and place for the hearing, at which time and place the said A. B. and C. D. attended before us, and having heard the proofs and allegations of the par- ties, and fully considered the matters in controversy, do hereby declare and publish this, our award, in relation to said matters, as follows: (Here insert the subject-matter of the award.) Dated, etc. E. F. [Seal.] G. H. [Seal.] I. J. [Seal.] (Add acknowledgment.) § 9. Confirmation. Upon the submission and tlie award made in pursu- ance of it being filed with the clerk of the court desig- nated in the submission within one year after making the award, it is the duty of that court, by rule in open court, to confirm the award, unless it be vacated or modi- fied or a decision thereon be postponed.'"^ The failure to file the award within the time fixed in the submission is no reason for vacating it unless the parties have agreed that it should in such case be void.^^ And where the submission, the proceedings before the arbitrators and the award have been regular, the award is conclusive upon the court, which, in such case, has no power to ex- amine into the testimony and, by vacating the award, to substitute its opinion for that of the arbitrators.^' § 10. Motion to vacate. Any party complaining of an award may move the court designated in the submission to vacate the award upon any of the following grounds : *" 37.Tud. Act, ch. 45, §8; Comp. v Hughes, 28 Mich. 186; Brush v. Laws 1915, § 13653. Fisher, 70 Mich. 469; Michols v. 38 Patrick v. Batten, 123 Mich. Western Underwriters' Ass'n, 129 203. Mich. 417. 39 Phelps V. Wayne Circuit Judge, 40 Jud. Act, ch. 45, §9; Comp. 117 Mich. 35; Cliicago, etc., R. Co. Laws 1915, §13654. § 11 Akbitration and Award 63 (1) That the award was procured by corruption, fraud or other undue means.*^ (2) That there was evident partiality or corruption in the arbitrators or either of them. (3) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear any evidence, pertinent and material to the controversy, or any other misbehavior by w^hich the rights of a party have been prejudiced. (4) That the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and defi- nite award on the subject-matter submitted was not made. The statutory remedy against an award is by motion to the court at its next term after the award is pub- lished. The court may vacate it for cause and may or- der a re-hearing if that is proper, or may modify and correct it in certain cases, as will be presently stated,*^ but can vacate it only for the grounds above specified.*^ § 11. Motion to modify. Any party to submission may move in the court designated therein to modify or correct the award in the following cases : ** (1) Where there is an evident miscalculation of figures or an evident mistake in the description of some person, thing or property referred to in the award. (2) Where the arbitrators have awarded upon some matter not submitted to them, not affecting the merits of the decision upon the matter submitted. (3) When the award is imperfect in some matter of 41 Beam v. Maeomber, 33 Mich. Phelps v. Wayne Circuit Judge, 117 127 ; Hewitt v. Village of Keed City, Mich. 35. 124 Mich. 6. 44 Jud. Act, eh. 45, § 10 ; Comp. 42 Cooper V. Andrews, 44 Mich. 94. Laws 1915, §13655; James v. 43 Taylor v. Smith, 93 Mich. 160; Schroeder, 61 Mich. 28. 64 Ahbitratiox and 'Awaed § 11 fomi not aftecting the merits of the controversy, and where, if it had been a verdict, the defect could have been amended or disregarded by the court according to the provisions of law. It should be observed that the court cannot modify or correct an award unless the arbitrators have reported the evidence taken before them or findings of fact upon which their award is based or there is something before the court by which it can determine what the award ought to have been." § 12. Time for and disposition of motion to vacate or modify. Every application to vacate or modify an award must be made to the court designated in the submission at the next term after the publication of the award, upon due notice to the adverse party, as in other cases of special motions, if there be time for that purpose; and, if there be not time, the court or any judge thereof may, upon good cause shown, order a stay of proceedings on the award, either absolutely or upon such terms as ap- pear just, until the term of court next after the first term." On such application, the court may vacate the award in any of the cases before specified, and may, in its dis- cretion, direct a re-hearing by the same arbitrators ; and, in the cases mentioned, the court may modify and cor- rect the award so as to effect the intent thereof and to promote justice between the parties.'*' § 13. Entering judgment on. Upon an award being confirmed or modified, the court will render judgment in favor of the party to whom any 45 Taylor v. Smith, 93 Mich. 160. 47 .lud. Act, ch. 45, §12; Comp. 46Jud. Act, ch. 45, §11; Comp. Laws 1915, §13657. Laws 1915, § 13656. § 15 ARBITRATIOISr AND AwARD 65 sum of money or damages have been awarded, that he recover the same ; and, if the award has ordered any act to be done by either party, judgment will be entered that such act be done according to such order.*^ The award is an official act and is itself the evidence and authority upon which the court may render judgment.*^ §14. Costs. The costs of the proceedings are to be taxed as in suits, and, if no provision for the fees and expenses of the arbi- trators has been made in the award, the court will make the same allowance as provided by law in cases of refer- ences.^° The judgment of the court upon an award can- not be said to be inconsistent with the award because it provided for the payment of the costs of the court to be taxed, while the award provided that the expenses and charges of the arbitration should be mutually borne and paid by the parties, as the costs in court and the expense of the arbitration are two different things.^^ § 15. Judgment record. A record of the judgment upon an award should be made, commencing with a memorandum reciting the sub- mission, then stating the hearing before the arbitrators, their award, the proceedings of the court thereupon in modifying or confirming the award and the judgment of the court for the recovery of the debt or damages awarded and that the parties perform the acts ordered by the award and for the recovery of the costs allowed.^'^ 48 Jud. Act, ch. 45, § 13 ; Oomp. On vacating an award, the court Laws 1915, § 13658. may, in its discretion, award costs 49 City of Detroit v. Jackson, 1 to the party prevailing on the mo- Doug. 106. tion to vacate. Jud. Act, ch. 45, 60 Jud. Act, ch. 45, §14; Comp. §19; Comp. Laws 1915, §13664. Laws 1915, §13659; Clement t. 62 Jud. Act, ch. 45, §15; Comp. Comstock, 2 Mich. 359; Ott v. Laws 1915, § 13660. Schroeppel, 3 Barb. (N. Y.) 56. 61 Chicago, etc., E. Co. v. Hughes, 28 Mich. 186. 1 Abbott— 5 ^^ Arbitration and Award § 16 § 16. Effect of judgment; execution. The record of the judgment must be filed and docketed as records of judgments in other cases and will have the same force and effect in all respects, be subject to all the provisions of law in relation to judgments in actions and may in like manner be removed and reversed by writ of error. Execution may issue against the property or person of the party against whom a recovery is had in all respects as upon other judgments." § 17. Enforcing judgment by rule and attachment. When, by the judgment upon an award, a party is re- quired to perform some act other than the payment of money, the court rendering the judgment will enforce it by rule, and the party refusing or neglecting to perform and execute the act or any part of it will be subject to all the penalties of disobeying an order of the court and may be proceeded against in- the manner provided by law in such cases." § 18. Writ of error. When a writ of error is brought on a judgment upon an award rendered in the circuit court, certified copies of the original affidavits upon which any application in relation to the award was founded, and of all other affi- davits and papers relating to the application, should be returned with the record of the judgment, and the court to which the w^rit is returned may reverse, modify, amend or affirai the judgment or any part of it according to justice." But error does not lie, on the record alone, on 63 Jud. Aft, ch. 45, §16; Comp. Ingham. Circuit Judge, 1G8 Mich. Laws 1915, § 13661. 451. It is proper to refuse to recall ex- 54 Jud. Act, ch. 45, § 18; Comp. ecution until the determination of a Laws 1915, § 13663. chancery proceeding to enjoin the 55 Jud. Act, ch. 45, 8 17 ; Comp. enforcement of the award. Early v. Laws 1915, § 15662. § 19 Akbitration and Award &j a judgment upon an award, where the submission is in due form and the award is one that could have been law- fully made, where the record shows what the statute re- quires. ^^ Upon every order vacating an award made by a circuit court, the party aggrieved may bring a writ of error as upon any other judgment of the court. The return to the writ of error in- such case should include certified copies of the order and of all affidavits and papers used on the application. The court to which the writ is re- turned will proceed to confirm or reverse the order as shall be just." If the order be reversed, the proceedings will be remitted to the court from which they were re- moved for that court to proceed thereon, or the court to which the proceedings have been returned may modify or confirm the award and render judgment thereon in the same manner and with the like effect as if that court had been designated in the submission.^* § 19. Statutory submission irrevocable. Although either party to an agreement for a common- law arbitration may revoke the authority of the arbitra- tors at any time before the award,^® neither party to a submission under the statute has power to revoke it without the consent of the other party. If either party neglects to appear before the arbitrators after due notice, the arbitrators may nevertheless proceed to hear and determine the matters submitted to them upon the evi- dence produced by the other party.^° 56 Cooper V. Andrews, 44 Mich. 94. A common-law submission to arbi- 6VJud. Act, ch. 45, §20; Comp. tration is revocable at the pleasure Laws 1915, § 13665. of either party. Nurney v. Fire- 68 Jud. Act, ch. 45, § 21 ; Comp. man 's Fund Ins. Co., 63 Mich. 633 ; Laws 1915, § 13666. Wood v. Lafayette, 46 N. Y. 484. SSChijipewa Lumber Co. v. Php- 60,Tud. Act, ch. 45, §23; Comp. nix Ins. Co., 80 Mich. 116. Laws 19L5, S 13668. 68 Arbitration and Award § 20 § 20. Equity jurisdiction. It is expressly provided that nothing contained in the statute in relation to submission to arbitration shall be construed to impair, diminish or in any manner affect the power and authority of any court of chancery over arbitrators, awards or the parties thereto or to impair or affect any action upon any award or upon any bond or other engagement to abide an award.^^ A court of equity has power to set aside an award and may stay pro- ceedings at law to enforce it.^^ § 21. Effect on pending suit. A common law agreement to arbitrate the subject- matter of a suit does not operate to discontinue the suit or even stay the proceedings therein, although it might be used as the basis of an application for a stay.^^ It does not bar an action based upon the same grievance.^* But a submission to arbitration under the statute of the subject-matter of a suit will operate as a legal discon- tinuance of the cause, where an award has been made in pursuance of the submission.** ARGUMENT OF COUNSEL 8ee Trial; Error, Writ op; Keferences; Supreme Court; New Trial. ARRAY See Jury. eiJiid. Act, ch. 45, §22; Comp. 65 Dunn v. Sutliff, 1 Mich, 24; Laws 1915, § 13667. Vanderhoof v. Dean, 1 Mich. 463 ; 62 Early v. Ingham Circuit Judge, Callanan v. Port Huron, etc., R. Co., 166 Mich. 517; Kearney v. Washte- 61 Mich. 15; Muckey v. Pierce, 3 naw Mut. Fire Ins. Co., 126 Mich. Wis. 307; Bigelow v. Goss, 5 Wis. 246. 421; Keep v. Keep, 17 Hun (N. Y.) 68 Callanan v. Port Huron, etc., R. 152; Baldwin v. Barrett, 4 Hun (N Co., 61 Mich. 15. Y.) 119. 64 Nurney v. Fireman 's Fund Ins. Co., 63 Mich. 633; McGunn v. Han- Un, 29 Mich. 476. Assault and Batteey 69 ARREST See Commencement of Actions (capias to commence action) ; Bail; Executions; Judgment (arrest of judgment); Habeas Corpus. ASSAULT AND BATTERY Cross-Beferences: Pleading; Limitation op Actions; Abatement; Costs. An action for assault and battery is a common form of civil action ex delicto, and formerly the proper form of action was trespass. The declaration is a very simple form as will be noticed by referring to the first form ap- pended hereto which is the approved form of the state bar association. The few decisions of the Supreme Court of this state in reference to the pleadings in such an action are merely applications of well known rules of pleading ^ elsewhere treated of .^ Form of Declaration Approved by State Bar Association (Title of court and cause.) The plaintiff says: 1. That, on , 19. ., at , the defendant assaulted and beat the plaintiff by striking him in the face with a stick. 2. That, in consequence, the plaintiff suffered great pain and was for a long time unable to transact his business of a and incurred ex- penses for nursing and for medical attendance, as follows: Loss of earnings for weeks, at per week $ Expense of nursing, medicines and medical attendance $ Total $ 3. Wherefore, etc. Another Form The plaintiff says: 1. That the said defendant, heretofore, to wit, on , with force and arms, assaulted the said plaintiff, to wit, at , in the county aforesaid, and then and there beat, bruised, wounded and ill-treated him. 2. That thereby the said plaintiff became and was sick, sore, lame and disordered, 1 See Reynolds v. Mecosta Circuit tcr v. Looniis, 47 Mich. 16; Sheldon Judge, 148 Mich. 470; Lindsay v. v. Sullivan, 45 Mich. 324. Wabash R. Co., 141 Mich. 204; Heis- 2 See Pleading. 70 Assault and Battery and so continued for a long space of time, to wit, thence hitherto. 3. That, during all of which time, the said plaintiff suffered great pain and was pre- vented from attending to his necessary affairs and business. 4. That also the said plaintiff was obliged to incur and did incur great expense, to wit, dollars, in endeavoring to be cured of the sickness, soreness, lame- ness and disorder, so occasioned as aforesaid. Form of Count for Assault and Battery and False Imprisonment The plaintiff says: 1. That the said defendant, heretofore, to wit, on , with force and arms, assaulted the said plaintiff, to wit, at , in the county afore- said, and then and there seized and laid hold of the said plaintiff, and, with great force and violence, pulled and dragged him about, and then and there gave and struck the said plaintiff divers blows and strokes, and forced and compelled the said plaintiff to go from and out of a certain dwelling house, situate and being at , into the public streets, and then and there forced and compelled the said plaintiff to go in and along divers public streets to a certain police oflBce, situate and being at , and then and there imprisoned him, and kept and detained him in prison, without any reasonable or probable cause whatsoever, for a long space of time, to wit, foT the space of then next following, contrary to law and against the will of the said plaintiff. 2. That thereby the said plaintiff was then and there greatly hurt, bruised and wounded and greatly exposed and injured in his credit and circumstances. Form of Count by Husband for Assault Upon His Wife The plaintiff says: 1. That the said defendant, heretofore, to wit, on , with force and arms, made an assault upon M. B., who was then and there the wife of the said plaintiff, to wit, at , and then and there violently kicked, beat, bruised, wounded and ill-treated the said M. B. 2. That thereby the said M. B. became and was sick, sotc, lame and disordered, and so remained and continued for a long space of time, to wit, thence hitherto. 3. That thereby the said plaintiff, during all of said time, lost and was deprived of the comfort, benefit and assistance of the said M. B., in his domestic affairs, which he might, and otherwise would, have had. 4. That also thereby the said i>laintiff was obliged to incur and did incur great expense, to wit, dollars, in endeavoring to heal and cure the said M. B. of the sick- ness, soreness, lameness and disorder, so occasioned as aforesaid. Form of Count for Riding or Driving Against Plaintiff The plaintiff says: 1. That the said defendant, heretofore, to wit, on , with force and arms, to wit, with a certain horse (drawing a certain carriage, if such be tlie fact), assaulted the said plaintiff, to wit, at , in the county aforesaid, and then and there rode (or, drove) the said horse (and said Assignments 71 carriage) upon, against and over the said plaintiff, and then and there, with force and violence, knocked the said plaintiff down to and upon the ground, and trod and trampled upon and against the said plaintiff, and then and there, with the said horse (and the said carriage), gave and struck the plaintiff divers blows and kicked, bruised, wounded and ill-treated him. Form of Count for Running Carriage Against Plaintiff's Carriage The plaintiff says: 1. That the said defendant, heretofore, to wit, on , at , with force and arms, drove a certain vehicle, to wit, a heavy wagon, which he, the said defendant, was then and there driving along the public highway, with great force and violence, upon and against a certain other vehicle, to wit, a certain carriage,, of him, the said plaintiff, of great value, to wit, of the value of dollars, in which said carriage the said plaintiff was riding in and along the said public highway. 2. That the said defendant thereby then and there greatly broke to pieces, ruined, damaged and spoiled the said carriage of the said plaintiff. 3. That thereby also the said plaintiff was then and there cast and thrown with great force and violence from and out of his said carriage down to and upon the ground. 4. That by means thereof, the said plaintiff was afterwards obliged to incur and did incur great expense, to wit, dollars, in repairing the damage so done to his said carriage. 5. That also, by means thereof, the said plaintiff then and there became and was greatly hurt, bruised, wounded, sick, sore, lame and disordered, and so remained and continued for a long space of time, to writ, for the space of then next following, and, during all of that time, suffered great pain and was prevented from attend- ing to his necessary affairs and business by him during all that time to be attended to. 6. That the said plaintiff was also thereby obliged to incur and did incur great expense, to wit, dollars, in endeavoring to be cured of the sickness, soreness, lameness, and disorder so occasioned as aforesaid. ASSIGNMENTS The effect of an assignment is often of importance as to the right to sue (see Parties ),_the right to set off judg- ments (see Judgments), the right to exemptions (see Exemptions), as ground for attachment (see Attach- ment), as abating the action (see Abatement), etc. As- signment of particular obUgations is treated of in the articles dealing with such obligations (see Bail, Jail Liberties, Replevin, Dower, etc.). Pleading an assign- ment (see Pleading) is also contained in another article. 72 Assignments foe Benefit of Creditoks ASSIGNMENTS FOR BENEFIT OF CREDITORS A separate chapter of the Judicature Act (c. 42) is devoted to such assignments. However, such assign- ments are beyond the scope of this work. Whether the assignee is subject to garnishment (see Garnishment) and whether the property assigned is subject to execu- tion (see Execution) is answered in other articles. ASSIGNMENTS OF ERROR i 1. Necessity for. § 2. Requisites of. § 3. As joint or several. § 4. Number of. § 5. Effect of absence of. § 6. Effect of defects in, § 7. Amendment of. § 8. Service of. Cross-Beferences: Ebrob, Writ of; Bill op Exceptions. § 1. Necessity for. There must accompany every bill of exceptions, at the time of its service and at the time of its settlement, a detailed assignment of all the alleged errors upon which the appellant proposes to rely,^ and no bill of exceptions can be signed unless accompanied by such assignment of errors, and no errors will be considered by the supreme court which are not a part of such assignment.^ 1 See Bill of Exceptions. appellee stipulated to the settlement A writ of error will be dismissed of the bill. Hubbard v. Garner, 115 where the assignments of error did Mich. 406. not accompany the bill of exceptions 2'Cir. Ct. Rule 66, §§5, 6. Com- . at the time of the signing thereof, pare, however, Mittelstadt v. Kelly, although subsequently filed. Roush 202 Mich. 524, and see Eebor, Writ V. Darmstaetter, 113 Mich. 535. of. Compare Conely v. Dudley, 111 In one case, after a reversal by Mich. 122. the supreme court, the reversal was But an objection that the assign- set aside on rehearing and the judg- ments of error did not accompany ment of the lower court affirmed, the bill is without force where the where the ground for reversal was § 2 Assignments of Eeeok 73 However, the errors of which an appellant complains are not always such as to require a bill of exceptions to be settled and filed, being such as appear by the record without the instrumentality of a bill of exceptions. In such a case, the assignment of errors must be made after the writ of error issues. It is, therefore, prescribed by rule that the party suing out a writ of error shall have ten days after the return day of the writ within which to assign error in cases where no bill of exceptions is set- tled.3 § 2. Requisites of. Every assignment of error must be special. No judg- ment or proceedings will be reversed or annulled for any defect or error other than such as has been specially as- signed.* J£ possible, every assignment should point out the precise question involved.^ Thus, an assignment that the verdict is contrary to the evidence does not raise the question whether the verdict is against the weight of not raised by assignments of error Mioh. 606; People v. Lewis, 166 nor discussed in the brief. Nissly Mich. 513; Weber v. Billings, 184 V. Detroit, etc., B. Co., 168 Mich. Mich. 119; Totten v. Burhans, 103 676, 682. Mich. 6; Beauerle v. Michigan Cent. 3 Sup. Ct. Kule 11. R. Co., 152 Mich, 345; Pichler v, De 4 Sup. Ct. Rule 11; Andre v. Har- Hate, 125 Mich. 247; Detroit United din, 32 Mich. 324; Waterman V. Wa- Ry. v. City of Pontiac, 193 Mich, terman, 34 Mich. 490; Fowler v, 466; Martinson v. State Bank of Gilbert, 38 Mich. 292; Polhemus v. Belview, 137 Minn. 476; Roberts v. Ann Arbor Sav. Bank, 27 Mich, 44; Smith, 115 Mich. 5; Weber v, Bil- Lymburner v, Jenkinson, 50 Mich. lings, 184 Mich, 119; Pichler v. De 488; Hitchcock v, Pratt, 51 Mich. Hate, 125 Mich. 247. Burt V. Olcott, 33 Mich. 6 In re Hoffman's Estate, 183 Wheeler & Wilson Mfg. Co, Mich. 67; Finch v. Karste, 97 Mich. 20. 263; 178; V. Walker, 41 Mich. 239 ; Jennison v. Haire, 29 Mich. 207; Finch v. Assignment that there is no evi- Kargte, 97 Mich. 20; Wanner v. dence in the case to support a ver- Mears, 102 Mich. 554; O 'Toole diet for plaintiff is definite. Sand- V. Ohio German Fire Ins. Co., 159 strom v. Minneapolis, etc., R, Co., Mich, 187; Stevenson v. Woltman, 198 Mich, 99, 81 Mich. 200; Weist v. Morlock, 116 74 Assignments of Error § 2 the evidence.^ An assignment that judgment should have been rendered for the appellant is too general to be con- sidered by the court,''^ as is an assignment that the court ''eiTed in directing the jurj^ to find a verdict in favor of the defendant, ' ' * unless it is apparent from the record that the error relied upon is either that there was some evidence in the case on which the jury might find for the plaintiff^ or that the court improperly held the plain- tiff's declaration to be insufficient.^" So, also, an assign- ment that the court erred in not directing a verdict for the defendant, ^^ or that ''the court erred in rendering a judgment for the defendant, " ^^ is too general. An as- signment of error on a direction of verdict for the de- fendant is distinguishable from a direction for a plaintiff or a refusal to direct for plaintiff or defendant, because in either of the latter cases the appellant can point out the error specifically, while in the fomier the record may be such that it is impossible for him to do so.^' An assignment which points to the whole of a charge of the court to the jury is too general especially where it is made up of distinct propositions, some of which are good, and cannot avail to reach any of the propositions which may be bad." An assignment of error relating to 6 Eberts v. Mt. Clemens Sugar Co., erdy v. Port Huron, etc., R. Co., 156 182 Mich. 449. Mich. 211. 7 Webster v. Fisk, 9 Mich. 250 ; But an assignment adding ' ' as re- Wheeler & Wilson Mfg. Co. v. quested by the defendant at the close Walker, 41 Mieh. 2.39 ; Altman v. of the testimony in the case ' ' was WTieeler, 18 Mich. 240. held sufficient. Nelson v. Michigan 8 Johnson v. Ballou, 25 Mieh. 460. Tanning & Extract Co., 184 Mich. 9 Conely v. Dudley, 111 Mich. 122. 108. 10 Wolfe V. Stack, 153 Mieh. 445. 12 Hecock v. Van Dusen, 96 Mich. 11 Alberts v. Village of Vernon, 96 573; Bills v. A. W. Stevens Co., 146 Mich. 549; Jackson Bridge & Iron Mich. 515; Wheeler & Wilson Mfg. Co. V. Lancashire Ins. Co., 122 Mieh. Co. v. Walker, 41 Mich. 239. 433; Oanerdy v. Port Huron, etc, 13 Wolfe v. Stack, 153 Mich. 445; R. Co., 156 Mich. 211; Gold v. De- Wcller v. Harrison Land Co., 195 troit United Ry., 169 Mich. 178; Mich. 624. Wolfe V. Stack, 153 Mieh. 445; Can- 14 Tapper v. Kilduff, 25 Mieh. Assignments of Error 70 the instruction to the jury "that there was manifest error in the charge of said court as given to said jury" does not specify any particular defect and leaves the ap- pellate court as much in the dark as to the nature of the objection of the appellant or the portion of the instruc- tion deemed to be wrong as if the assignment were stricken out, and it is, therefore, too general to be con- sidered.^^ An assignment that there is no evidence to support the finding, applying to the entire group of facts found, and not to any one in particular, is too broad to be noticed." But an assignment that "the court erred in refusing to grant the requests submitted by defend- ant's counsel and in refusing to instruct the juiy as stated in said several requests; that the refusal of each and every one of said defendant's requests was error," points out specifically what is relied upon." So an as- signment "that there is error in this, to wit, that the judge of said circuit court, at the trial of said cause, gave the several instructions to the jury asked by the de- fendant, and refused to give the several instructions, or any or either of them, asked for by the plaintiffs," is sufficiently special, the words, "several instructions," 394; Brown v. Mitts, 187 Mieh. Danielson v. Dyckman, 26 Mich. 469; Wheeler & Wilson Mfg. Co. v. 169; Goodsell v. Seeley, 46 Mich. Walker, 41 Mieh. 239; Finch v. 623; People v. Ponsford, 181 Mieh. Karste, 97 Mieh. 20 ; Van Leuvan v. 660, 670 ; Nissly v. Detroit, etc., R. Ann Arbor R. Co., 167 Mich. 355; Co., 168 Mich. 676, 682; Springer v. Weston V. Dunn, 168 Mich. 563; Fuller, 196 Mich. 628. Plumb V. Hecla Co., 157 Mich. 562 ; 16 Green v. Brooking, 23 Mich. 48 ; Snyder v. Patton & Gibson Co., 143 Pratt v. Burhans, 84 Mich. 487; Mich. 350; Nissly v. Detroit, etc., R. People v. De Fore, 64 Mich. 693; Co., 168 Mich. 678; Pray V, Caldwell, Nissly v. Detroit, etc., R. Co., 168 50 Mieh. 222; McAllister v. Engle, Mich. 676; Snyder v. Patton & Gib- 52 Mich. 56; Geary v. People, 22 son Co., 143 Mieh. 350; Springer v. Mieh. 220; Edgell v. Francis, 86 Fuller, 196 Mich. 628. Mich. 232; Keystone Lumber & Salt 16 Beliler v. Drury, 51 Mieh. 111. Mfg. Co. V. Dole, 43 Mieh. 370; 17 People v. De Fore, 64 Midi. Prescott V. Patterson, 49 Mich. 622 ; 693. 76 Assignments of Erroe § 2 being construed distributively and as applying to each ; " but an assignment that *Hhe said circuit judge erred in refusing to grant the said defendant's requests" will not be taken distributively, and therefore if any of the re- quests were in fact given or were properly refused, the assignment will avail the appellant nothing. ^^ An as- signment that the findings of fact *'do not support the findings and conclusions of law," ordinarily is not suf- ficient,^" but it is sufficient where the only conclusion of law was that plaintiif was entitled to judgment.^^ An error affecting only one of two defendants in a joint judgment can only be reached by special assign- ment of such error; and a general assignment that the finding does not support the judgment, is not sufficient if the judgment is good against either of the defend- ants.^^ When the error assigned is purely technical in its character, strict technical certainty will be required in its assignment. Thus an objection to a writ that it is not tested in the name of the people of the State of Michigan, is not sufficient to allow the party to make the point that the style of the writ is not in the name of the people, etc.^' The rule that every assignment of error shall be special requires that every error relied upon must be pointed out with such certainty that the appellee and the court may see, from the assignment itself, the particular ground upon which a reversal is claimed.^* But where the ground is fairly indicated, even if not precisely stated, it ISNiles V. Bhodes, 7 Mich. 374. 21 Union Tel. Co. v. Ingersoll, 178 WDanielson v. Dyckman, 26 Mich. Mich. 187. 169; People v. Sweeney, 55 Mich. 22 Continental Imp. Co. v. Ives, 30 586; Finch v. Karste, 97 Mich. 20; Mich. 448. Brown v. Mitts, 187 Mich. 469 ; 23 Johnson v. Provincial Ins. Co., Eberts v. Mt. Clemens Sugar Co., 12 Mich. 216. 182 Mich, 449. 24Niles v. Ehodes, 7 Mich. 374; 20 McMillan v. Cheese Factory, 23 Collin v. Kittelberger, 193 Mich. 133. Mich. 544. § 7 Assignments of Erkok 77 is sufficient.^^ If, however, an assignment is ambiguous, it will be construed most favorably for the appellee.^^ An assignment of error that ''the court eiTed in find- ing as a question of law that the plaintiff was guilty of contributory negligence" is sufficiently specific.^' § 3. As joint or several. In an action of tort, where several defendants unite in bringing a writ of error, and assign errors jointly, the assignment will be considered joint and several, or joint or several, as the nature of the error assigned, and the interests of the respective parties require.^® § 4. Number of. The practice of needlessly multiplying assignments of error has been condemned.^^ § 5. Effect of absence of. If there are no assignments of error, the writ should be dismissed.^" § 6. Effect of defects in. The effect of insufficient assignments of error is to limit the scope of review. Uncertainty and informality in the assignment of errors, are no ground for quashing the as- signment, or dismissing the writ.'^ § 7. Amendment of. The supreme court will, in proper cases, upon special motion, allow an assignment of error to be amended. ^^ The entry of the special motion for leave to amend should show in what particular an amendment is desired, and 25 Genrow v. Modern Woodmen, Boydan v. Haberstumpf, 129 Mich. 151 Mich. 250. 137. 26 Browne v. Moore, 32 Mich. 254. 30 Hanselman v. Adrian, 139 Mich. 27 Britton v. Michigan Ry. Co., 546, and see Error, Writ of. 204 Mich. 217. 31 Teller v. Wetherell, 6 Mich. 46, 28 Fisher v. Thirkell, 21 Mich. 1. 12 Parsons v. Copland, 5 Mich, 28 Burt V. Long, 106 Mich. 210; 144, 78 AssicxMKN IS OF EIkror §7 a copy of the proposed aiiieii(liiieiit, with notice of the motion, should be served on the opposite party.^^ Where an objection to an assignment of error is purely technical, and it is evident that the appellee has not been misled, an amendment to the assignment should be permitted to be made on the hearing.^* § 8. Service of. Copies of assignments of error filed in the supreme court after the issuance of a writ of error are required to be served upon the appellee within the time limited for filing the assignments, but when the assignments of error accompany the bill of exceptions it is not neces- sary to file, serve or give notice of them,'^ They come up with the transcript of record when the writ of error is returned. Where defendant in error notices the cause for hear- ing, he waives any right to complain of failure to serve on him a copy of the assignment of errors,^^ and such failure will in no case be noticed unless the omission is complained of.^' ASSOCIATIONS Cross-Refereiices: Commencement of Actions; Executions; Man- damus. An unincorporated voluntar^^ association, club or so- ciety, formed in Michigan, and composed of five or more Properly refused where objection 33 Hubbard v. Garner, 115 Mich, purely technical. .Tohnson v. Pro- 406; Parsons v. Copland, 5 Mich, vincial Ins. Co., 12 Mich. 216. 144. Amendment on appellant's motion 34 Trudo v. Anderson, 10 Mich, is proper so as to include a general 357. assignment that the findings do not 86 Sup. Ct. Eule 11. support the judgment, but in such 36 Frost v. Lawler, M Mich. 235. case the usual motion fee will be 37 Perkins v. Nugent, 45 Mich, allowed to the appellee. Hubbard v. 156. Garner, 115 Mich. 406. § 1 Assumpsit 79 members, having- some distinguishing name, may sue or be sued by the name by which it is known, but the statute expressly provides that it shall not deprive a litigant of the right to sue all the members.^ ASSUMPSIT § 1. Effect of Judicature Act. § 2. When assumpsit proper at common law. § 3. Special and general assumpsit. § 4. To recover penalty or forfeiture. § 5. Waiving a tort and bringing assumpsit. S 6. In case of conversion. § 7. Fraud or deceit. § 8. Trespass on or injury to land. § 9. Eight as optional. § 10. Illustrative instances in which assumpsit lies. § 11. Assumpsit against corporation. Cross-Be ferences: Actions; Pleading (When common courts proper, mode of pleading, etc.) ; Joinder and Splitting of Causes of Action. § 1: Effect of Judicature Act. The Judicature Act abolished all forms of actions at law except (1) assumpsit, (2) trespass on the case, (3) replevin, and (4) ejectment, certiorari, mandamus and quo warranto, and expressly provides that "in all cases where the actions of covenant or debt would be other- wise maintainable, the action of assumpsit shall here- after be brought," and that in certain cases plaintiff may elect whether to bring an action of assumpsit or an action on the case.^ It follows that the only form of 1 Jud. Act, ch. 12, § 12; Comp. suit against the association by name Laws 1915, § 12363. and its members jointly. Light An unincorporated driving associ- Guard Band v. First Mich. I. I., 134 ation may be sued as an entity or Mich. 598. as individuals. Inglis v. Millers- The statute is a constitutional ex burg Driving Ass'n, 169 Mich. 311. ercise of legislative power. U. S. Fraternal beneficiary associations Heater Co. v. Molder's Union, 129 may sue and be sued. Golden Star Mich. 355. Lodge, No. 1 V. Wattorson, 158 Mich. 1 Jud. Act, ch. 11, §1. See also 696. Actions. This section does not prevent a 80 Assumpsit § 1 action in personal actions ex contractu is assumpsit. Furthermore assumpsit lies in many cases where a tort is waived.^ Even at common law, assumpsit did not lie unless there was a contract, express or implied, between the parties to the action.' This is the rule also under the Judicature Act unless otherwise specially provided. In case of express contracts there is but one form of per- sonal action — or, better stated, all forms of action ex con- tractu are in effect abolished, — while in case of implied contracts there is sometimes an election, treating the im- plied contract also as a tort, to sue ex contractu or ex delicto, i. e., in assumpsit or in an action on the case. § 2. When assumpsit proper at common law. The action of assumpsit, so called from the Latin word, '* assumpsit," which, when the pleadings were in that language, was always inserted in the declaration, signi- fying that the defendant undertook the obligations set forth in the other words of that pleading, lies, at com- mon law, for the recovery of damages for the non-per- formance of a simple contract, or in other words, a con- tract not under seal.* It was distinguished, on the one hand, from the action of debt, which was brought for the recovery, not of damages, but of a debt, as such, be the same the creature of a simple contract, a sealed con- tract or a judgment, and from the action of detinue, which was brought for the recovery, not of damages, but of a personal chattel in specie, and, from the action of covenant, which lay for the recovery of damages for the breach, not of a simple contract, but of a covenant or contract under seal. 2 See §§5-8, post. Archb. N. P.; 1 Brown, Actions, 8 Thornton v. Village of Sturgis, 318, 333 ; State v. Harmon, 15 W. 38 Mich. 639. Va. 124. 4Slade's Case, 4 Coke 92b; 1 § 3 Assumpsit 81 § 3. Special and general assumpsit. The contract upon which assumpsit may be brought may be either express or implied, the difference between which, it is said, consists not in the nature of the under- taking itself, but in the mode by which it is susceptible of being proved.® A contract is express when the agree- ment is formal and stated either verbally or in writing, and it is implied when the agreement is matter of in- ference and deduction.^ An express contract exists where the terms of the agreement are declared by the parties at the time of the making, as, to pay a certain price for certain goods. An implied contract is such as reason and justice dictate, and which, therefore, the law presumes from the circumstances of the case, as to pay the worth of services requested of another, or, to pay the real value of goods delivered without agreement as to price. A species of implied contract, annexed to all other con- tracts, conditions and covenants, is that, if one party fails in his part of the agreement, he will pay the other party the damages thereby sustained.''' When an action of assumpsit is brought upon a con- tract which is express, or '* special," as it is also char- acterized, such action is designated as ''special assump- sit." The words "special assumpsit" are often applied also to the special or express agreement, as well as to the action brought upon it. In cases of this kind, the declaration should allege the contract according to its terms. When the action is brought upon an implied con- tract, it is gaid to be ''general assumpsit." In this case, a general statement in the declaration, in the form of one or more of the so-called common counts, suffices.^ & Woods V. Ayres, 39 Mich. 345. Law Diet., tit. "Contracts"; Hert- 6 And. Law Diet., tit. "Gon- zog v. Hertzog, 29 Pa. St. 465; tracts"; Hertzog v. Hertzog, 29 Pa. Woods v. Ayres, 39 Mich. 345. St. 465. 8 Common counts are general f 2 Oooley 's Bl. Comm. 443 ; 3 forms of pecuniary demand, founded Cooley's Bl. Comm. 158-266; And. on promises, express or implied, to 1 Abbott— 6 82 Assumpsit § 3 But while an express contract is still open and unre- scinded, there can be no implied contract covering the same subject-matter.® § 4. To recover penalty or forfeiture. By statute, in cases not otherwise specially provided by law, where a pecuniary penalty or forfeiture is in- cun-ed by any person and the act or omission for which it is imposed is not also a misdemeanor, such penalty or forfeiture may be recovered in an action of assumpsit.^** § 5. Waiving a tort and bringing assumpsit. At common law a party injured by the tort of another could waive the tort and sue in assumpsit only in case the tort arose out of contract relations between the par- ties or the tort consisted of a conversion of plaintiff's property into money or money's worth. ^^ It follows that if a husband sues to recover money paid out for medical attendance on his wife as a result of an injury while she was a passenger on a street railway, the tort cannot be waived since there were no contractual rela- tions between the husband and the street car company.^^ pay money in consideration of a pre- Shepard & Co. v. Crandall, 77 Mich, ceding or existing debt, and one of 401; Hallwood Cash Eegister Co. v. their important uses is to sustain the Millard, 127 Mich. 316; D. M. Os- plaintiff on the trial, if he fail to born & Co. v. Wigent, 127 Mich. prove his ease as staled in the spe- 624; John D. Gruber Co. v. Smith, cial counts. Archb. PI. 157, 162a. 195 Mich. 336. See also Pleading. • lOJud. Act, ch. 11, §1, ch. 35, 9 Galloway v. Holmes, 1 Doug. 5 1; Comp. Laws 1915, §§12350, 330; Wilson v. Hagar, 26 Mich. 13393. 452; Hunt v. Sackett, 31 Mich. 18; Assumpsit by Attorney General Keystone Lumber & Salt Mfg. Co. will be to recover expense of replac- V. Dole, 43 Mieh. 370; Sohurr v. ing road markers, sig^s, etc. Pub. Savigny, 85 Mich. 144; Boughton v. Acts 1919, No. 10. Boughton's Estate, 111 Mich. 26; 11 Plefka v. Detroit United Ry., Butterfield v. Seligman, 17 Mich. 147 Mich. 641. 95; Hall v. Duplex Power Car Co., 12 Plefka v. Detroit United Ry., 168 Mich. 640; Dowagiac Mfg. Co. 147 Mich. 641. V. Corbit, 127 Mich. 473; Nichols, >$ 6 Assumpsit 83 Of course there is no waiver of a tort unless knowledge of the cause of action waived existed at the time of the alleged waiver.^' § 6. In case of conversion. If one has taken possession of property and sold or disposed of it and received money or money's worth therefor, the owner may affirm the sale as made on his behalf and demand the benefit of the transaction in this forni of action." And, by statute in this state, either assumpsit or case may be brought in cases of conver- sion of personal property into money.^^ The owner is permitted to treat that which is purely a tort as having created a contract between himself and the wrongdoer, and, waiving his right of action for the tort, to pursue his remedy for the breach of the supposed contract.^^ But the general rule is that, before a party can waive a tort for the conversion of personal property and bring assumpsit, the property in the hands of the tort-feasor must have been sold and converted into money, upon the theory that the money was received for the plaintiff's use." There is, however, another class of cases in which the tort may be waived and assumpsit brought, even 13 Hogue V. Wells, 180 Mich. 19, tion for which he may at his option 23. either bring trover or, waiving the 1* Watson V. Stever, 25 Mich. tort, sue in assumpsit, his election 386; Tolan v. Hodgeboom, 38 Mich. to pursue one form of remedy binds 624; Ward v. Warner, 8 Mich. 508; him to the form elected, so that he Nelson v. Kilbride, 113 Mich. 637; cannot thereafter pursue the other, Buckeye Tp. v. Olark, 90 Mich. even though he discontinue the ac- 432; Bowen v. School District No. 9, tion first brought. Thomas v. Watt, 36 Mich. 149; St. John v. Antrim 104 Mich. 201. Iron Co., 122 Mich. 68; Coe v. Wag- 17 Tuttle v. Campbell, 74 Mich. ner, 42 Mich. 49; Farwell v. Myers, 652; Tolan v. Hodgeboom, 38 Mich. 64 Mich. 234. 624; Watson v. Stever, 25 Mich. 386; 16Jud. Act, ch. 11, §1; Comp. Coe v. Wagner, 42 Mich. 49; Lock- Laws 1915, §12350; Loomis v. wood v. Thunder Bay R. B. Co., 42 O'Neal, 73 Mich. 582. Mich. 536; Williams v. Rogers, 110 leCooley, Torts, 91. Mieh. 418. When a party has a cause of ac- 84 Assumpsit § 6 though there has been no sale of the property. This is where there are contractual relations between the par- ties from which arises, either by the express terms of the contract or by implication of law, a duty, the breach of which itself constitutes a tort. Cases involving the relations of co-tenants, principal and agent, attorney and client, bailor and bailee, are the more common instances of this kind." But where the act is a naked trespass, unaccompanied either by a sale of the property or by relations of con- tractual origin, it is well settled by the great preponder- ance of authority, as well as upon principle, that as- sumpsit cannot be maintained in the absence of statu- tory provision. ^^ To be entitled to waive a conversion as a tort and sue in assumpsit, the plaintiff must be in position to claim the property as owner. From this it follows that, inas- much as a mortgagee of chattels in this state is not re- garded as the owner thereof, he cannot, in case of their conversion, recover in assumpsit either for their value or for the amount for which they were sold.^" § 7. Fraud or deceit. It has been held that a party, upon whom a fraud has been perpetrated in making a contract, cannot turn the ISHutchins v. Vinkemulder, 187 erty lawfully but withholds it un- Mich. 676; Piquet v. Allison, 12 lawfully, the tort may be waived and Mich. 328; Watson v. Stever, assumpsit maintained. McDonald ▼. 25 Mich. 386; McLaughlin v. Salley, Young, 198 Mich. 620. 46 Mich. 219 ; McDonald v. McDon- l» Cooley, Torts, 95 ; Watson v. aid, 67 Mich. 122; Coe v. Wagner, Stever, 25 Mich. 386; Dwight v. 42 Mich. 49; Tuttle v. Campbell, 74 Cutler, 3 Mich. 566; Tuttle v. Camp- Mich. 652; Loomis v. O'Neal, 73 bell, 74 Mich. 652; Hogsett v. Ellis, Mich. 582; Aldine Mfg. Co. v. Bar- 17 Mich. 351; Ward v. Warner, 8 nard, 84 Mich. 632; Williams v, Mich. 508; Smith v. Haight, 188 Rogers, 110 Mich. 418; St. John Mich. 512 ; Henderson v. City of De- v. Antrim Iron Co., 122 Mich. 68; troit, 61 Mich. 378. Brown v. Foster, 137 Mich. 35; New- 20 Randall v. Higbee, 37 Mich, man v. Olney, 118 Mich, 545. 40; Carpenter v. Graham, 42 Mich. Where one obtains personal prop- 191; Warner v. Beebe, 47 Mich. 435. § 8 Assumpsit 85 contract into a tort and then, waiving the tort, shift it into the form of a new contract different from the first and maintain assumpsit,^^ although he might retain the benefits of the first contract and sue for the fraud ; ^^ and, also, that one exchanging property with another cannot waive the tort, consisting in fraudulent representations as to the property which he received, and maintain as- sumpsit for its value.^^ But it is now provided by statute that, in all cases where an action on the case for fraud or deceit may by law be brought, an action of assumpsit may be brought and, in all such cases, a promise will be implied by law to pay all just damages sustained by the plaintiff, and may be so declared upon.^* Upon the death of the per- son injured, the cause of action survives to his personal representatives.*^^ § 8. Trespass on or injury to land. By statute, plaintiff has the option ,to bring assumpsit or case where a trespass on land is complained of.^^ So, by statute, it is provided that, in all cases where a party has a right of action for the taking of timber or other trespass on lands or for any injury to lands, where the tort is waived and an action of assumpsit brought there- for, the plaintiff may commence his suit by attachment against the property of the defendant, as in other cases ; ^' and his affidavit for such attachment should state the amount due him, as near as may be, and the fact that the 21 Emerson v. Detroit S, & S. Co., don, 128 Mioh. 364; Mahder v. Wax, 100 Mich. 127. 192 Mich. 479. 22Warne8 v. Brubaker, 107 Mich. 26 Jud. Act, ch. 12, §32; Comp. 440. Laws 1915, § 12383. 23 Reed V. Ismond, 110 Mich. 16; 26 Jud. Act, ch. 11, §1; Comp. Bedier v. Fuller, 106 Mich. 342. Laws 1915, § 12350. 24 Jud. Act, eh. 11, §1; Comp. 27 Jud. Act, eh. 26, §44; Comp. Laws 1915, §12350; Bedier v. Ful- Laws 1915, §13071; St. John v. ler, 116 Mich. 126; Hallett v. Gor- Antrim Iron Co., 122 Mich. 68. 86 Assumpsit § 8 damages are unliquidated will not prevent the bringing and maintaining of sucli writ.^^ This statute, as originally enacted, was chiefly intended to remedy the difficulty arising under the rule in Wat- son V. Stever,^^ w'hich denied a right of action in as- sumpsit for property taken by trespass, but not con- verted into money, of which, if sold, the original owner might, if he chose, treat the proceeds as money had and received to his use, inasmuch as it was the price received for his property on an unauthorized sale which he was allowed to affirm. The statute, while very broad in its language, does not purport to make contracts in fact, nor to allow anything to be sued for except as damages sustained by the trespass. It simply operates to provide that, w^ien a trespass has been committed, whereby dam- ages accrue, the duty to pay those damages may be treated as a debt or implied agreement. To bring any case within the statute, the damages must be shown in the declaration to have accrued out of a trespass. The statute gives no warrant for making any suggestion which is false in fact or for turning an adverse holding into a contract of tenancy.^" § 9. Right as optional. In those cases, however, in which a party may waive the tort and bring his action of assumpsit, he has an option whether he will do so or not. He is not compella- ble to sue in assumpsit. ^^ However, the election is final. '^ There can be no partial waiver as to one part of a tort.'' 28 Jud. Act, ch. 26, §44; Comp. as money had and received, and re- Laws 1915, § 13071. covery may be had under a count for 29 Watson V. Stever, 25 Mich. 386. money had and received. Nelson v. SOLockwood V. Thunder Bay R. Kilbride, 113 Mich. 637. B. Co., 42 Mieh. 536; Nield v. Bur- 31 Wilson v. Hoffman, 93 Mich. ton, 49 Mich. 53. See also Weidman 72. V. Willson, 153 Mich. 82. 32 Thompson v. Howard, 31 Mich. Where the defendant has sold the 309. property, the proceeds are regarded 33 Bedier v. Fuller, 106 Mich. 342. § 10 Assumpsit- 87 § 10. Illustrative instances in which assumpsit lies. As illustrative of the various cases to which the action of assumpsit is applicable, numerous examples might be given. Thus, it lies to recover money lent by the plain- tiff to the defendant, or paid by the plaintiff for the de- fendant at his request, or had and received by the de- fendant for the use of the plaintiff.^* So it is the proper form of action to recover back moneys that have been received by a person without consideration and against law and equity,^^ and to recover money paid by mis- take.^^ But money paid in the reasonable belief that it is due, and after investigation or the opportunity there- for, and without fraud on the part of the recipient, can- not be recovered back as paid under a misapprehen- sion." Assumpsit also lies for the value of goods, which the defendant, by fraud, induced the plaintiff to sell to an insolvent person and afterwards obtained for his own benefit.^^ It lies to recover money due on an account stated,^® also for services and for work of different de- 84 Atkinson v. Scott, 36 Mich. 18; Coon v. Anderson, 101 Mich. 295; Twitchell v. Drury, 25 Mich. 393 ; Taylor v. Belton, 188 Mich. 302. Catlin V. Birchard, 13 Mich. 110; 36 Little v. Derby, 7 Mich. 325; Beardslee v. Horton, 3 Mich. 560; Byrnes v. Martin, 67 Mich. 399; Walker v. Conant, 65 Mich. 194; Lane v. Pere Marquette Boom Co., Moore v. Mandlebanm, 8 Mich. 62 Mich. 63; McKay v. Coleman, 85 433; Hall v. Kimmer, 61 Mich. 269; Mich. 60; McGoren v. Avery, 37 Willson V. Owen, 30 Mich. 474; Bar- Mich. 120; Kennedy v. Murphy Iron nard v. Colwell, 39 Mich.. 215; Mar- Works, 91 Mich. 500; Ellis v. State tin V. Sheridan, 46 Mieh. 93; Thayer Auditors, 107 Mich. 528; Pingree v. V. City of Grand Rapids, 82 Mich. Mutual Gas Co., 107 Mich. 156. 298; Minor Lumber Co. v. City of 37 Wheeler v. Hathaway, 58 Mich. Alpena, 97 Mich. 499; Havens v. 77; Mc Arthur v. Luce, 43 Mich. 435. Church, 104 Mich. 135; Liesemer v. 3811111 v. Perrott, 3 Taunt. 274; Burg, 106 Mich. 124; Tanner v. 1 Chit. PL 112. Page, 106 Mich. 155. 39 Watkins v. Ford, 69 Mich. 357 ; 86 Friend v. Dunks, 37 Mich. 25; Albrecht v. Gies, 33 Mich. 389; Murphy v. McGraw, 74 Mich. 318; Stevens v. Tuller, 4 Mich. 387; Fitzpatrick v. HofiFman, 104 Mich. Gooding v. Hingston, 20 Mich. 439; 228; Hidey v. Swan, 111 Mich. 161; Fellows v. Thrall, 85 Mich. 161. Cornell v. Crane, 113 Mich. 460; Assumpsit §10 scriptions,*" for the sale, use or hire of goods,*^ or of lancls,*^ and upon bills of exchange, whether foreign or in- land, checks, promissory notes and policies of insurance on ships or on lives or against fire. It lies on promises to pay money in consideration of forbearance to sue the de- fendant or a third person, or in consideration of services or work done, or goods sold to the defendant or a third person at the defendant's request. It lies upon contracts to guarantee, to indemnify, to serve and employ, and against attorneys, wharfingers, surgeons, innkeepers, carriers and other bailees for neglect or other breach of duty. It is the appropriate action upon a breach oY promise to marry. It lies against a vendor for not de- livering goods bought, and against a vendee for not ac- cepting goods sold or for not delivering a bill of exchange in payment for the same, and by or against vendors and purchasers for not completing a contract of sale. So, Where an account has been stated, it is not necessary that the ante- cedent debt or demand be proved. Armitage v. Saunders, 94 Mieh. 482 ; Stevens v. Tuller, 4 Mich. 387; Al- brecht v. Gies, 33 Mich. 389. An account is stated whenever, as the result of an accounting between the parties, in respect of debts or accounts, a balance has been struck. Gooding v. Kingston, 20 Mich. 439; Watkins v. Ford, 69 Mich. 357 ; Fel- lows v. Thrall, 85 Mich. 161; Thom- asma v. Carpenter, 175 Mich. 428; Isaacs V. Wishnick, 136 Minn. 317. It need not be in writing. Wat- kins V. Ford, 69 Mieh. 357; Sperry V. Moore's Estate, 42 Mich. 353. It seems that any admission by one party of a balance or an ac- knowledgment that a sum of money is due another supports a count upon an account stated. Gooding v. Kingston, 20 Mich. 439. But the mere rendering of an account is not an account stated; it must be assented to in some way. White V. Campbell, 25 Mich. 463; Payne v. Walker, 26 Mich. 60; Eay- mond V. Leavitt, 46 Mich. 447; Kus- terer Brewing Co. v. Frier, 99 Mich. 190; Pabst Brewing Co. v. Lueders, 107 Mich. 41; Raub v. Nisbett, 118 Mich. 248; Peter v. Thickson, 51 Mich. 589. 40 1 Chit. PI. 113. 41 Scotten v. Sutter, 37 Mich. 526; Beebe v. Warner, 51 Mich. 134; Ginsburg v. Cutler & Savidge Lum- ber Co., 85 Mich. 439. 42Dwight V. Cutler, 3 Mich. 566; Dalton V. Laudahn, 30 Mich. 349; Hogsett V. Ellis, 17 Mich. 351; Conkling v. Tuttle, 52 Mich. 630; Reed v. Reed, 108 Mich. 498; Beecher v. Duffield, 97 Mich. 423. Attachment 89 where there has been an express agreement between landlord and tenant or where the law implies a contract on the part of the latter to manage the farm in a husband- like manner, this action may be sustained for the breach of such contract, although, where the tenant has been guilty of voluntary waste, it is usual to declare in case, unless there be also a money demand, which might be included in a declaration in assumpsit.*^ § 11. Assumpsit against corporation. It was formerly held that assumpsit could not, in gen- eral, be supported against a corporation, on the prin- ciple that a corporation could not contract by parol. But it is now well settled that a corporation may be sued in assumpsit as well as a natural person. ATTACHMENT I. General Considerations § 1. In general. § 2. Effect on subsequent procedure of commeneing action by attachment. § 3. Nature of proceeding and construction of statutes. § 4. Against whom allowable. § 5. Against part of several defendants. § 6. County in which suit to be brought. S 7. Attachment after commencement of action. II. Actions Which May Be Commenced by Attachment § 8. Actions ex contractu. § 9. Where debt not due. § 10. Where tort is waivedr § 11. Actions ex delicto. § 12. Enumeration. III. Grounds IV. Affidavits 13. Necessity for and contents in general. 14. Statements on information and belief. 15. Averment of indebtedness. 48 1 Chit. PI. 113, 114. 90 Attachment S 16. Allegation of grounds for attachment In general. S 17. Allegation that defendant has absconded, etc, S 18. Allegation that defendant has assigned his property, etc. § 19. Allegation of removal, etc., of property. § 20. Allegation that debt was fraudulently contracted. § 21. Allegation of non-residence of defendant. § 22. Allegation that defendant is a foreign corporation. § 23. Statement where attachment merely because defendant a domestic corporation. S 24. Statement as to parties. 8 25. Title. ' § 26. Time for making. § 27. Who may make. § 28. Amendment of affidavit. V. Writ, Skrvice, Levy, Lien and Sale § 29. Issuance and when returnable. § 30. Form and contents. § 31. Indorsement as security for costs. § 32. Execution of writ. S 33. Ajipraisal. § 34. Inventory. § 35. Effect of failure to serve "certified" copy of writ and inventory. § 36. Service of writ where defendant not found in county where prop- erty seized. § 37. — Where property may be seized. § 38. Mode of levying on real estate and effect thereof. § 39. Mode of levying on personal projierty and effect thereof. § 40. Property subject to levy. § 41. Priority of and between attachments. § 42. Bight of officer to indemnity. § 43. Sale of perishable property attached. § 44. Subsequent proceedings where no personal service of writ. § 45. Beturn of writ. § 46. Proceedings after return where writ personally served. I 47. Intervention by claimant of property attached. § 48. Bond for release of property. § 49. Appearance of defendant before judgment where not served with writ. § 50. How long j)roperty bound by levy. VI. Dissolution or Quashing § 51. Nature and reason of proceeding. § 52. By and to whom application made. § 53. Bemedy for unjust attachment. § 54. Who may apply for. § 55. When application may be made. § 1 Attachment 91 § 56. Requisites of application. § 57. The citation. § 58. Service. § 59. Hearing. § 60. Issue. § 61. Burden of proof. § 62. Eight to begin evidence and open argument. § 63. Evidence and determination. § 64. Compelling attendance of witnesses. § 65. Costs. § 66. Effect of dissolution. § 67. Eestoration of property. § 68. Appeal from order of commissioners. § 69. Effect of judgment in suit. § 70. Eeview by certiorari. § 71. Eeview by writ of error or mandamus. VII. Judgment and Execution § 72. Statutory provisions. VIII. Wrongful Attachment § 73. Liability for damages. Cross-References: Executions; Costs; Contempt; Replevin; Manda- mus; Habeas Corpus; Certiorari; Commencement of Actions. I. General Considerations § 1. In general. Chapter 26 of the Judicature Act rehites to '' Proceed- ings by Attachment in Courts of Record." It changes the statutes as they existed before 1915 only in a few respects. It is comprehensive in its scope and covers, it would seem, nearly every question which may arise in the course of such proceedings. Special attention should be called, however, to a few matters contained therein. For instance, nearly all the provisions relate to an at- tachment to commence the action, based on a contract, where the debt sued on is due. Certain special provi- sions are embraced therein, however, covering (1) at- tachments where tlie debt is not due,^ (2) attachments 1 See § 9, post. 92 Attachment § 1 where the cause of action is based upon a tort,^ and (3) attachments where the writ is sought after the action has been commenced by summons or declaration.* Special provisions also exist as to attachment in actions for tres- pass on state lands,* and authorizing actions against itinerant venders by attachment.^ Attachment in actions to enforce liens on forest products is also expressly pro- vided for by a separate statute.® Often the primary purpose in resorting to attachment is to select the forum.''^ § 2. Effect on subsequent procedure of conunencing action by attachment. The statute provides that ''the practice in actions commenced by attachment shall be the same in all re- spects as in personal actions commenced by summons, as near as may be, except as otherwise provided by law."« The plaintiff must file his declaration in said attach- ment in the same manner and within the same time and serve the same as is provided by the rules and practice governing proceedings in circuit court in other cases in assumpsit,® i. e., within fifteen days after the issue of the writ. Where the declaration is not filed within the fif- teen days after the issue of the writ, the delay is a mere irregularity cured by filing the declaration, where no appearance or default had been entered.^" 2 See §11, post. ■'See Feldman v. Preston, 194 « See § 7, post. Mich. 352, 358. 4Jud. Act, ch. 26, §45; Comp. » Jud. Act, ch. 26, §32; Comp. Laws 1915, § 13072. Laws 1915, § 13059. 5Jud. Act, eh. 26, §46; Comp. » Jud. Act, eh. 26, §23; Comp. Laws 1915, § 13073. Laws 1915, § 13050. 2.-?* f? t ^ 6 Comp. Laws 1915, §§ 14847- 10 Smith v. Eunnels, 94 Mich. 617. 14850, construed as to service of To same effect, Goodspeed v. Smith, writ in Craig v. Brown, 169 Mich. 161 Mich. 688. 161; Pepin v. Nault, 149 Mich. 180; White V. Prior, 88 Mich. 647. Attachment 93 § 3. Nature of proceeding' and construction of statutes. The proceeding by writ of attachment is a purely stat- utory remedy, unknown to the common law," and has always been considered and treated in this state as a special proceeding.^^ In it, the court exercises an ex- traordinary jurisdiction under a special statute which prescribes its course, and that course must be strictly pursued. Proceedings by attachment do not derive their efficacy from the general powers of the court. The court can act only under the special limited powers granted by the statute and according to its form of procedure.^* But if there be a literal compliance with its prerequisites, this is sufficient to confer jurisdiction.^* The remedy by attachment is highly artificial, and, in this state, is considered as special and extraordinary." The statutory provisions relating to it have invariably been subjected to strict construction, and the rule is fairly established that, unless the case is plainly within the terms expressed, it cannot be considered as em- braced." 11 Welles V. City of Detroit, 2 Doug. 77; Knaek v. Berlin, 150 Mieh. 550. 12 Buckley v. Lowry, 2 Mich. 418. 13 Buckley v. Lowry, 2 Mich. 418 Brigham v. Eglinton, 7 Mich. 291 King V. Ilarrington, 14 Mich. 532 Cross V. McMaken, 17 Mich. 511 Barker v. Thorn, 20 Mich. 264; Ma cumber v. Beam, 22 Mich. 395; Mil lar V. Babcoek, 29 Mich. 526 ; Adams V. Abram, 38 Mich. 302; Mathews v. Densmore, 43 Mieh. 461; Van Nor- man V. Jackson Circuit Judge, 45 Mich. 204; TJairbanks v. Bennett, 52 Mich. 61; Borland v. Kingsbury, 65 Mich. 59; Steero v. Vanderberg, 67 Mich. 530; Nugent v. Nugent, 70 Mich. 52; Estlow v. Hanna, 75 Mich. 219; Davison v. Davison, 99 Mich. 625; Gary v. Everett, 107 Mich. 654; Jaffray v. Jennings, 101 Mich. 515; De Carie v. Marks, 171 Mich. 167. 14Eoelofson v. Hatch, 3 Mich. 277; Drew v. Dequindre, 2 Doug. 95. 16 Van Norman v. Jackson Circuit Judge, 45 Mich. 204; Feldman v. Preston, 194 Mich. 352. 16 Jaffray v. Jennings, 101 Mich. 515; Van Norman v. Jackson Cir- cuit Judge, 45 Mich. 204; Mathews v. Densmore, 43 Mich. 461 ; Buck- ley V. Lowry, 2 Mich. 418; Thomp- son V. Thomas, 11 Mich. 274; King V. Harrington, 14 Mich. 532; Millar T. Babcoek, 29 Mich. 526; Johnson V. Dclbridge, 35 Mich. 436; Wool- kins V. Haid, 49 Mich. 299; Rolfe V. Dudley, 58 Mich. 208. 94 Attachment § 4 § 4. Ag-ainst whom allowable. Corporations, both domestic and foreign, may be pro- ceeded against by attachment.^' As to domestic corpora- tions, excepting railroad companies or corporations whose right of way is entirely or partly within the state and navigation companies or corporations, it is especial- ly provided by statute that, in any county where the plaintit¥ resides, other than the one in which the prin- cipal office of the corporation is located, a writ of attach- ment may be the first process against the corporation.^^ If suit is brought against a domestic corporation whose principal office is located in a different county from the one where plaintiff resides, it may be brought, under this statute, in the latter county if there is property there which may be attached.^^ § 5. Against part of several defendants. When two or more persons are jointly indebted as joint obligors, partners or otherwise, an affidavit may be made so as to bring one or more of them within the statute. In such case, the writ of attachment may issue against the property and effects of such as are so brought within the statute, the officer being also directed in the writ to sum- mon all such joint debtors as may be named in the affi- davit attached thereto to answer to the action as in other cases of attachment.^" When the plaintiff is able to make out a case for an attachment against only one of several 17 Michigan Dairy Co. v. Runnels, the debtor 's principal office is lo- 96 Mich. 109. See also Showen v. eated. Greaccn v. Buckley & Doug- .J. L. Owens Co., 158 Mich. 321. las Lumber Co., 167 Mich. 569. See 18 Jud. Act, ch. 26, § 3 ; Comp. also Michigan Dairy Co. v. Run- Laws 1915, § 13030. 2.-^, tn ^'2> nels, 96 Mich. 109. This statute authorizes a proceed- 19 Greacen v. Buckley & Douglas ing in attachment against a do- Lumber Co., 167 Mich. 569. See mestic corporation, debtor, when alse Venue. and for the sole reason that the 20 Jud. Act, ch. 26, §33; Comp. plaintiff, creditor, resides in a Laws 1915, § 13060. county other than the one where § 6 Attachment 95 debtors, whether they be partners or not, he must not allege a joint wrong by them all, but must set forth the facts in his afifidavit.^^ Partnership property cannot be attached unless there is ground for attachment as against all of the partners.^^ Nor should the individual property of a co-partner be attached for a debt of the co-partner- ship, if no ground for attachment exists as against him.^' § 6. County in which suit to be brought. Any creditor may proceed by attachment against his debtor in the circuit court of the county in which the cred- itor or the debtor (or, in case of joint debtors, either of them) resides, if the debtor has property subject to at- tachment in such county; and in case the debtor has no property in such county or is a non-resident of this state, then in the circuit court of any county where the property of the debtor subject to attachment may be found, in the cases, upon the conditions and in the manner provided by statute.^* When the defendant is a resident of the state, the suit must be brought in the county in which either he or the plaintiff resides, if the defendant has property subject to attachment there, and if not, or if the defendant is a non- resident of the state, then in some county in which the defendant has such property. This requirement is juris- dictional and is not relaxed even where the defendant's property is mortgaged to its full value.''* Under this statute, a circuit court has jurisdiction o^ 21 Edwards v. Hughes, 20 Mich. Actions against corporations, see 289; CottroU v. Hatheway, 108 § 4, ante. Mich. 619 ; Warren v. Wintcrstein, As to attachment against itinerant 114 Mich. 647. vendors, see How. Stat. (2nd ed.) 22 Edwards v. Hughes, 20 Mich. 2161; Jud. Act, ch. 26, §46; 289. Comp. Laws 1915, § 13073. 23Jaffray v. Jennings, 101 Mich. 26 Stringer v. Dean 61 Mich. 196; 515. Schloss V. Joslyn, 61 Mich. 267; 24 Jud. Act, ch. 26, §1; Comp. Stern v. Frazor, 105 Mich. 685. Laws 1915, § 13028. See also Venub. 96 Attachment § 6 an action by one non-resident against another, personally served, attaching the real property of the latter situated in the county, notwithstanding the action is based on a contract made and to be performed in another state.^^ So jurisdiction in attachment against a non-resident debtor may be acquired by levy of the writ on lands alleged to have been fraudulently conveyed,^' § 7. Attachment aiter commencement of action. The Judicature Act retains, substantially unchanged, the statutory provisions relating to attachment "after" commencement of the action. Before the Judicature Act, however, the right to attach after the commence- ment of the action was limited to actions founded on con- tract; now it is authorized "in any action" commenced L.'7«/^f ^ '*hy summons or declaration in any court of record."^' The procedure is practically the same as where an action is commenced by attachment, except as otherwise pro- vided by particular statutory provisions relating to the affidavit,^® writ,^° and subsequent proceedings.^^ 26 State Bank v. Maxson, 123 Such an aflS.davit is not invalid Mich. 250. See also Courts. because of the failure of the clerk 27 Archer v. Laidlaw, 129 Mich. to indorse on it the time it -nas re- 198. ceived nor because he neglected to 28Jud. Act, eh. 26, §36; Comp. keep it on file but attached it to Laws 1915, § 13063. J.1,ll: so much of the lands, tenements, goods, chattels, moneys and effects of the defendant, wherever they may be found in his county, as will be sufficient to satisfy the demand and costs, and (2) by making an inventoiy thereof, and (3) serving a copy of such attachment and inventory, certified by him, upon the defendant, if he can be found within the county.^^ Service of an attachment writ can- not be made on an agent where there is no showing that the attachment defendant cannot be found.^* Merely clerical errors or omissions in the original writ or the copy are usually not fatal.^^ The officer cannot lawfully break into a locked house to make the levy.^^ If a resident sues a foreign corporation and commences his action by attachment, service of a copy of the writ and inventory may be made ' ' on any officer, member, clerk or agent of such corporation within this state."" §33. Appraisal. When property has been attached, the officer must cause it to be appraised by two disinterested freeholders of the county in which it was seized.^^ Before acting, the 23Jnd. Act, ch. 26, §8; Comp. v. J. L. Owens Co., 158 Mich. 321. Laws 1915, §13035; Cir. Ct. Rule 28 Jud. Act, ch. 26, §9; Comp. 18, § 5. Laws 1915, § 13036. 24 Craig V. Brown, 169 Mich. 161, See Exemptions, as to inventory following and approving Eeynolds v. and appraisal when the property be- Marquette Circuit Judge, 125 Mich. longs to a class or species in which 445. See also Pepin v. Nault, 149 exemptions are allowed by law. Mich. 180; White v. Prior, 88 Mich. The statutory provision has the 647. interest of the defendant in attach- 25 Lyon v. Baldwin, 194 Midi. ment particularly in view, and it 118; Millard v. Lenawee Circuit requires disinterested freeholders Judge, 107 Mich. 134; Merrick v. for his protection. He cannot ob- Mayhue, 40 Mich. 196. ject that they were members of his 26 Bailey v. Wright, 39 Mich. 96. own family. Cover v. Buck, 34 27 Jud. Act, ch. 26, § 43 ; Comp. Mich. 519. Laws 1915, § 13070. A freeholder is one in whom is Service on resident agent confers vested an estate of inheritance or jurisdiction in personam. Showen for life. 122 Attachment § 33 appraisers must be sworn by the officer to make a tnie appraisement. The appraisement, when made, must be signed by the appraisers and returned with the writ.^^ The statute requires the appraisement to be made regard- less of whether the property attached is subject to an exemption. The clerk of the court is qualified to act as appraiser of attached property.^** In case of several attachments of the same property, one inventory and appraisal is sufficient, and a subsequent attachment may be sei'ved on the property as in the hands of the officer by reference to the inventory and appraisal under the first writ.'^ Form of Oath of Appraisers You do solemnly swear that you will, according to your best judgment, make a true appraisement of all the property seized by me, by virtue of an attachment now in my hands, issued out of the circuit court for the county of , at the suit of A. B., plaintiff, against the lands, tenements, goods, chattels, moneys, and effects of C. D., defendant. So help you God. Form of Appraisement of Property Attached State of Michigan, ) County of C We, the undersigned, disinterested freeholders of the County of aforesaid, having been first duly sworn by the sheriff of the County of to make a true appraisement of all the property seized by him by virtue of the annexed writ of attachment, do appraise the several articles and parcels of property so attached at the respective sums and amounts set opposite thereto in the inventory thereof, hereto annexed, the aggregate amount being the sum of dollars. Dated, etc. E. P., G. H., Appraisers. 29 Jud. Act, ch. 26, § 9 ; Comp. be paid on the rendition of the Laws 1915, §13036. services. Jud. Act, ch. 26, §14; The appraisers are each entitled Comp. Laws 1915, § 13041. to receive a fee of two dollars for 30 De Carie v. Marks, 171 Mich, each day and one dollar for each 167. half day necessarily occupied by 31 Jud. Act, ch. 26, §9; Comp. them in appraisal, and six cents Laws 1915, § 13036. per mile for traveling one way, to § 35 Attachment 123 §34. Inventory. The officer executing the writ must make an inventory of the property attached and serve a copy of such inven- tory on the defendant if he can be found, but if there are several attachments of the same property only one in- ventory need be made.^^ The inventory is not too un- certain because it omits the county and state, where the accompanying certificate of the officer remedies the defect.^^ Service of a certified copy of the inventory has been held a jurisdictional prerequisite,'* although the better rule seems to be that the fact the copy served is not certi- fied is not fatal.®*^ And service of a copy of the inventory by an officer other than the one levying the attachment does not confer jurisdiction.'® Form of Inventory State of Michigan, | County of f By virtue of the annexed writ, to me directed and delivered, I have this day taken the property and the effects of which the following is an inven- tory, that is to say: (Describe the property.) Dated, etc. S. T., Sheriff. §35. Effect of failure to serve ** certified" copy of writ and inventory. The i^le of court which governs requires, it seems, a certified copy of both the writ and inventory to be served 32 Jud. Act, ch. 26, § 8 ; Comp. ventory is required to be served Laws 1915, §13035; Cir. Ct. Rule where there are several attachments 18, § 5. upon the same property, yet a copy 33 John D. Gruber Co. v. Mont- of the attachment must in all cases calm Circuit Judge, 183 Mich. 477. be served upon the defendant, if 84 White V. Prior, 88 Mich. 647; found. Stearns v. Taylor, 27 Mich. Langtry v. Wayne Circuit Judges, 88. 68 Mich. 451. See Stearns v. Tay- 86 See § 35, post, lor, 27 Mich. 88. 86 Gary v. Everett, 107 Mich. 654. Although but one copy of the in- 124 Attachment § 35 where service is within the county, but if service is after a second seizure outside the county, the copy of the in- ventory served must be certified while the copy of the writ is not required to be certified.^' On the other hand, the governing statute seems, to be the same as the rule of court except that nothing is said as to the copy of the at- tachment and inventory being certified where the prop- erty seized in the county is not sufficient and it is neces- sary thereafter to seize property outside the county and serve a copy of the writ and inventory on the defendant.'* It has been held that the fact that the copy of the attach- ment writ and inventory served on defendant was not certified to by the sheritf is not fatal.'* At any event, the service of a true, but not certified, copy of the writ with a certified copy of the inventoiy is not fatally defective by reason of the omission of the certificate to the copy of the writ.*" However, the service of a copy of the inventory alone without a copy of the writ does not constitute a valid personal service of the attachment.*^ § 36. Service of writ where defendant not found in county where property seized. In case any defendant is not found in any county where pro])erty has been seized, service of the writ on him may be made in any county within this state by the sheriff of the county wherein such defendant may be.*^ § 37. — - Where property may be seized. A writ of attachment commands the officer to whom it is directed and delivered to attach so much of the lands, 37Cir. Ct. Rule 18, §5. 167; Rameau v. Valley, 168 Mich. 88Jud. Act, ch. 26, §8; Comp. 569. Laws 1915, §13035; Skeels v. Oce- « Stearns v. Taylor, 27 Mich. 88; ana Circuit Judge, 119 Mich. 290. McGuire v. McKnight, 101 Mich. 89 De Carie v. Marks, 171 Mich. 275. 167; Leonard V. Woodward, 34 Mich. 42 Jud. Act, eh. 26. §8; Comp. 514. Laws 1915, S ^■.W?,r,. 40 Dp Carie v. Mark.s, 171 Mich. ^ 38 Attachment 125 tenements, g-oods, chattels, moneys and effects of the de- fendant, not exempt from execution, wheresoever the same ma.y be found in the county where the writ issues, as will be sufficient to satisfy the demand of the plaintiff, and in case property of the defendant is seized in such county, but not sufficient to satisfy the demand of the plaintiff and costs, then the writ further commands the officer to seize other property of the defendant subject to attachment, sufficient, with that seized within such coun- ty, to satisfy such demand and costs, wheresoever the same may be found within the state.*^ The terms of the writ relative to the place where property may be seized must be strictly observed. The law permits property to be attached in a foreign county only after property has been attached in the county where the writ issues.** § 38. Mode of levying on real estate and effect thereof. In-attaching real estate or any right or interest in land, it is not necessary that the officer enter upon tlie land or be within view of it,*^ but the real estate is bound by the attachment, and the attachment is a lien thereon, from the time when a certified copy of the attachment, with a description of the real estate attached, is deposited in the office of the register of deeds of the county wliere the real estate is situated.*® The deposit of the certified copy does 43 Cir. Ct. Rule 18; Jud. Act, ch. county wlu'ri' iiroporty lias been 26, §8; Conip. Laws 1915, §13035. seized under this writ. Jud. Act, In case any property of the de- < h. 26, §8; Comp. Laws 19L5, fendant is found and seized but not § 13035. sufficient to satisfy the demand and 44 Stearns v. Taylor, 27 Mich. 28. costs, then said officer shall seize 45 Jud. Act, ch. 26, §10; Comp. other property of the defendant, Laws 1915, S 1^5037. subject to attachment, sufficient with 46 Jud. At, eh. 26, S12; Comp. that seized within his county to sat- Laws 1915, > 13039. If any real ea- isfy the demand and costs, wherever tate attached is subject to a niort the same may be found within the gage or other incumbrance, and tht State, and shall serve a copy of such niortgay;e is redeemod or the incum attachment aM I ss. I hereby certify and return that, by virtue of the within writ of attach- ment, to me directed and delivered, I have this day attached the property of the Tpithin-named defendant mentioned in the inventory and appraisal thereof hereto annexed, all of which said property was appraised by E. F. and G. H., two disinterested freeholders of said county who were by me first duly sworn to make a true appraisement thereof, and whose appraisal is in writing, signed by themselves and herewith returned; and I do further certify that, on the day of , A. D ,1 served a copy of said writ and a copy of said inventory, certified by me, upon C. D., the defendant named in said writ, by delivering the same to him at , in said county (or, if the defendant is not found, say: And I further cer- tify and return that, after diligent search and inquiry, I am unable to find C. D., the defendant named in the said writ in my bailiwick). Dated, etc. S. T., Sheriff. § 46. Proceeding's after return where writ personally served. If, upon the return of a writ of attachment, it appears that a copy has been served personally on the defendant or any of the defendants, or if the defendant or any of the defendants appear in the suit, the same proceedings may be thereupon had in the suit in all respects as upon the return of a summons personally served in suits com- menced by summons.^^ § 47. Intervention by claimant of property attached. Under the provision of the Judicature Act permitting intervention in certain cases, a person cannot intervene in an attachment suit merely to establish ownership of property levied on by attachment.®''^ 96 Jud, Act, ch. 26, § 19; Comp Judge, 202 Mich. 116, and see Peter- Laws 1915, §18046. son v. Swenningston, 178 Mich. 294. 97 Sidebottom v. Calhoun Circuit § 48 Attachment 137 § 48. Bond for release of property. The property attached must remain in the hands of the officer serving the attachment, unless the defendant or any other person in whose possession the property may have been found shall, before judgment in the suit, de- liver to the officer a bond, executed to him by two or more sufficient sureties, being freeholders within this state, either with or without the defendant or such other person, to the satisfaction of the officer as provided by statute." The bond may be in a penalty double the amount speci- fied in the affidavit annexed to the writ as due to the plaintiff, conditioned for the payment of any judgment which may be recovered by the plaintiff within sixty days after the judgment is rendered, or in a penalty double the appraised value of the property, conditioned that the property shall be produced, in like condition as when re- ceived, to satisfy any execution that may be issued on any judgment to be recovered by the plaintiff in attachment.®® Upon the execution and delivery of the bond, the property attached will be delivered by the officer to the defendant or other person in whose possession it was found, but this does not operate to discontinue or in any way affect the suit.^ 98Jud. Act, eh. 26, §15; Comp. The statute contemplates that no Laws 1915, § 13042. one may obtain the delivery of the The officer has no authority to property upon giving a bond but deliver the property to the plaintiff the defendant or the person in whose while the suit is pending. Vanneter possession the property is found. V. Grossman, 39 Mich. 610. King v. Hubbell, 42 Mich. 597, 60.'i. The rights of the plaintiff to the 99 Jud. Act, ch. 26, §16; Comp. property attached are inchoate until Laws 1915, § 1304.*?. judgment and execution levy. Fuller The bond must run to the sheriff, V. Hasbrouck, 46 Mich. 78. who holds it in trust for the bene- A proper means of protecting fit of the plaintiff. Forrest v. property attached would be to put O'Donnell, 42 Mich. 556. a keeper in charge, which would be 1 Jud. Act, ch. 26, §17; Comp. a sufficient precaution, unless vi- Laws 1915, § 13044. olence is apprehended. Stilson v. Gibbs, 46 Mich. 215. 138 Attachment § 48 The giving of the bond operates as an appearance, and converts the action from one in rem into one in personam,* but does not waive defects in the service of the writ.' Where a sheriff, on receipt of a bond, has surrendered possession, he need not secure the attachment debtor from interference with his possession by third persons.* In case of a failure to perform the condition of the bond, the plaintiff in attachment may prosecute a suit thereon in his own name and is entitled to recover the full value of the property attached, or so much thereof as will be sufficient to satisfy the judgment rendered in the at- tachment suit, with interest and costs.* Prior to the Judi- cature Act, suit could be brought only in the name of the officer unless plaintiff took an assignment of the bond.* It is no defense that the property did not belong to the attachment defendants or was incumbered,''^ and the sure- ties cannot question the sufficiency of the affidavit for at- tachment where defendant in attachment does not do so and they have stipulated that the attachment was com- menced in due form.* So a surety is liable although his co-surety is not a freeholder,* althougli a discontinuance as to a part of the defendants was held at one time to dis- charge the sureties.^® Form of Bond to Obtain Discharge of Property Know all men by these presents, that we, C. D., as principal, and E. F. and G. H., as sureties, are held and firmly bound unto S. T., sheriff of the 2 Butcher v. Cappon & Bertsch Judgment where bond is in alter- Leather Co., 148 Mich. 552. native for production of the prop- 8 Reynolds v. Marquette Circuit erty or pajTiient of judgment, see Judge, 125 Mich. 445. Goebel v. Stevenson, 35 Mich. 172. 4 Patch V. Wessels, 46 Mich. 249. 6 See Forrest v. O'Donnell, 42 5Jud. Act, ch. 26, §18; Comp. Mich. 556; Dorr v. Clark, 7 Mich. Laws 1915, § 13045. See Door v. Clark, 7 Mich. 310; Forrest v. O'Donnell, 42 Mich. 556. The recovery is not limited to the value of the property attached. Pfansteihl v. Vanderhoof, 22 Mich. 296. 310. 7 Dorr V. Clark, 7 Mich . 310 8 Goebel V. Stevenson, 35 Mich, 172. 9 Gibbs V . Johnson, 63 Mich . 671. 10 Audre v. Fitzhugh, 18 Mich. 93. § 48 Attachment l^Ji county of , in the sum of dollars, lawful money of the United States, to be paid to the said sheriff, or his certain attorney, executors, ad- ministrators, or assigns, for which payment, well and truly to be made, we bind ourselves, our, and each of our, heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , in the year one thousand nine hundred Whereas A. B. has commenced a suit in the circuit court for the county of by writ of attachment, issued out of and under the seal of said court on the day of , A. D , against the lands, tene- ments, goods, chattels, moneys and effects of the above-bounden C. D., as defendant, directed and delivered to the sheriff of said coimty, by virtue of which said writ of attachment he, the said sheriff, attached certain property described in the inventory thereof made by the sheriff and annexed to said writ (if the bond is delivered by a person in whose possession the property was found, other than the defendant, add: Which said property was found at the time of the attachment thereof, as aforesaid, in the possession of the above-bounden 0. D.) : Now, the condition of this obligation is such that if the said C. D. shall pay any judgment which may be recovered by the said A. B., plaintiff, in said suit, within sixty days after such judgment shall be rendered, then this obligation is to be void; otherwise to remain in full force and virtue. (Or, 'the bond may be in a penalty double the appraised value of the property, in form the same as above, as far as the words, ' ' Now, if the said C. D.," etc., in the place of which should be used the following: Now, if the said C. D. shall produce in like condition as when received the said prop- erty so attached, as aforesaid, to satisfy any execution that may be issued on any judgment which shall be recovered by the said A. B., plaintiff, upon such attachment, then this obligation is to be void; otherwise to remain in full force and effect.) C. D. [L. S.] E. F. [L. S.] (Add justification.) G- H. [L. S.] Form of Bond to Obtain Release of Property Attached In a Log-Lien Suit Know all men by these presents, that we, L. O., as principal, and E. F. and G. H., as sureties, are held and firmly bound unto A. B. in tlie sum of dollars (double the amount claimed in the writ), to be paid to the said A. B., or to his certain attorney, executors, administrators, or assigns, for which payment, well and truly to be made, we bind ourselves, our, and each of our, heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , in the year one thousand nine hundred Whereas the above-named A. B. has caused to be issued out of and under the seal of the circuit court for the county of a certain writ 140 Attachment § 48 of attachment, in which the said A. B. is plaintiff and C. D. is defendant, bearing date the day of , A. D , and made returnable on the day of , A. D , directed and delivered to the sheriff of said county of , commanding vhim, the said sheriff, among other things, to attach the following goods and chattels, to wit: (Here insert the description of the property as in the writ), or so much thereof as should be sufficient to satisfy the sum of dollars, with interest, costs, disbursements, charges, and expenses of suit, by virtue of which said writ the said sheriff has attached and now holds the following described property, to wit: (Here insert the description of the property sought to be released). And whereas the above-bounden L. O. is the owner of said last-described property, and is desirous of obtaining the release thereof from the said attachment, according to the statute in such case made and provided: Now, the condition of this obligation is such that if the said L. O. shall pay or cause to be paid all damages, costs, charges, disbursements, and ex- penses that may be recovered by the said A. B. against the said C. D. that may be found to be a lien upon or against the property described in the said writ of attachment, then this obligation is to be void; otherwise to remain in full force and effect. L. O. [L. S.] E. F. [L. S.] G. H. [L. S.l (Add justification. ) I hereby approve the foregoing bond both in form and in substance. Dated, etc. > Clerk. § 49. Appearance of defendant before judgment where not served with writ. If any defendant not served with a copy of the attach- ment shall appear at any time before judgment, he may be admitted by the court to defend the suit upon such terms as the court may deem reasonable. ^^ Leave to de- fend, or the imposition of terms, are governed by the same rules as if the suit was commenced by summons." The application to be admitted to defend should be by petition to the court, duly verified, which should set forth distinctly the facts and circumstances upon which it is llJud. Act, eh. 26, §24; Comp. 12 Thompson v. Thomas, 11 Mich. Laws 1915, §13051. 274. § 51 Attachment 141 based, and that the defendant, so applying, has a good and substantial defense upon the merits to the plain- tiff's action, as he is advised by his counsel, to whom he has fully and fairly stated the case, and as he verily be- lieves. § 50. How long property bound by levy. The office of a writ of attachment is to hold the prop- erty until the coming of an execution to enforce the judg- ment against the property of the debtor, so that the debtor may not put his property beyond the reach of the creditor when the creditor shall have obtained a judgment." So it is said that the rights acquired by attachment are inchoate until judgment and execution levy." The creditor, however, has no right to hold the property beyond a reasonable time to obtain his judg- ment and issue and levy his execution.^^ But a delay in levying an execution of two months after it was legally issuable has been held not so unreasonable as to release the property from the attachment lien.^^ Of course, when an attachment suit is discontinued, the right to detain the property ceases.^'' VI. Dissolution or Quashing § 51. Nature and reason of proceeding. The proceeding by attachment, by which a creditor may seize the property of his debtor before the existence of any debt has been judicially established, upon a mere belief that certain facts exist and before it can be known whether such facts really do exist or not, is a harsh and extraordinary remedy, and, while. in general beneficent 13 Trowbridge v. Bullard, 81 Mich. 15 Trowbridge v. Bullard, 81 Mich. 451. 451. 14 Fuller v. Hasbrouck, 46 Mich. 16Geigea v. Greiner, 68 Mich. 153. 78; Terry v. Metevier, 104 Mich. 17 Orr v. Keyes, 37 Mich. 385. 50. 142 Attachment * § 51 in its operation by enabling a creditor to protect him- self against well suspected fraud and dishonest intent to evade payment at a time when the existence of such in- tent may not be and perhaps cannot be an absolute cer- tainty, yet it has often been used oppressively against honest debtors who, notwithstanding the alleged belief of anxious creditors, are guilty of nothing constituting a ground for such unusual seizure of their property. For the relief of persons thus pursued, a remedy has been provided by which a debtor whose property has been seized upon a groundless attachment may have his prop- erty released therefrom and restored to him. This rem- edy, although entirely statutory, and not to be extended in any respect beyond the scope which the legislature has seen fit to give it, is nevertheless not to be hampered by a too strict construction of the statute, which, on the other hand, should be treated as a remedial one and con- strued in accordance with its spirit to effectuate the ob- ject which it has in view.^^ § 52. By and to whom application made. By statute, in all cases where a writ of attachment has been issued under the provision of law, any defendant whose property has been attached by virtue of the writ may apply to the judge of the circuit court or to a cir- cuit court commissioner of the county where the writ issued for a dissolution of the attachment." § 53. Remedy for unjust attachment. Although, in some jurisdictions, the truth of the facts alleged in an affidavit for a writ of attachment may be contested by a motion to quash the writ and, in others, 18 Eowe V. Kellogg, 54 Mich. 206. land as well as of personal prop- 19Jud. Act, ch. 26, §48; Comp. erty. Smith v. Collins, 41 Mich. Laws 1915, § 13075. 173 ; Edgarton v. Hinchman, 7 Mich. Statute applies to attachment of 652. § 54 Attachment 143 by a plea in abatement, in this state, the only method is by an application to a judge or commissioner to dissolve the attachment.''" Where, however, a defendant wishes to raise the question of the sufficiency of the affidavit upon its face, and not to contest the truth of its allega- tions, lie may do so by motion to quash the writ,^^ but must do so before he enters his general appearance or pleads to the merits, for, if he delays until that time, the defect will be deemed to have been waived.''^ The proceeding to dissolve an attachment is applica- ble not only to writs of attachment by which a suit is commenced, but also to those issued after a suit has been commenced by summons or declaration. The dissolution in such case has no effect other than to release the prop- erty attached.^' § 54. Who may apply for. Only a defendant whose property has been attached can apply for the dissolution of an attachment,^* and it is a general rule that only a defendant, who is entitled to the possession of the property can apply.^^ Where, therefore, the defendant by his own act has alienated his possessory right, he is not entitled to have the attach- ment dissolved.2^ A good illustration of these principles occurs where the defendant has made an assignment for 20 Bower v. Town, 12 Mich. 230; Mich. 543; Manhard v. Schott, 37 John D. Gruber Co. v. Montcalm Mich. 234; Crane v. Hardy, 1 Mich. Circuit Judge, 183 Mich. 477. Bill 56. in equity, see Emerson v. Detroit 23 Jud. Act, ch. 26, §40; Comp. Steel & Spring Co., 100 Mich. 127. Laws 1915, § 13067. 21 Pierce v. Johnson, 93 Mich. 24 Rowe v. Kellogg, 54 Mich. 206. 125; Roelofson v. Hatch, 3 Mich, 26 Price v. Reed, 20 Mich. 72; Gott 278. V. Hoschna, 57 Mich. 413; Zook v. 22 John D. Gruber Co. v. Mont- Plough, 42 Mich. 487; Gore v. Ray, calm Circuit Judge, 183 Mich. 477; 73 Midi. 385. Gunn Hardware Co. v. Deniaon, 83 26 A person who has sold the land Mich. 40; Dailey v. Kennedy, 64 attached cannot move. Peterson v. Mich. 208; Bryant v. Hendee, 40 Swcuningston, 178 Mich. 294. 144 Attachment § 54 the benefit of his creditors. In such case, if the assigned property be attached, the assignee cannot apply for a dissolution of the attachment,^' because that right is limited to a defendant; but, on the other hand, the de- fendant cannot apply ,^® because he is not entitled to possession of the property. The right to possession is not, however, in all cases a prerequisite. Where the property is held under other attachment or execution levies, the defendant is not thereby debarred from ap- plying for and having the attachment dissolved, not- withstanding the fact that he would not be entitled to have possession restored to him.^^ A defendant who is entitled to a portion of the property attached may make the application.^" So, a partner who is not implicated in the grounds on which a writ of attachment has been issued and partnership property seized, is entitled to have the attachment dis- solved and the property restored to him.^^ But a partner who is implicated cannot obtain a dissolution of the attachment on the ground that his co-partners were not implicated.^^ The owner of land attached may move for a dissolu- tion of an attachment as well as the owner of person- alty.^' For this purpose, it is not essential that the de- fendant making the application should have an estate in fee simple. If he is interested at all in the property levied upon, he may move for a dissolution. Thus, where 27 Gott V. Hoschna, 57 Mich. 413 ; 487, overruling Johnson v. De Witt, Emerson v. Detroit Steel & Spring 36 Mich. 95. Co., 100 Mich. 127; Turner v. Hatch, 30 Patterson v. Goodrich, 31 Mich. 100 Mich. 65. 225. 28 Chandler v. Nash, 5 Mich. 409. 31 Edwards v. Hughes, 20 Mich. 29 Sheldon v. Stewart, 43 Mich. 289. 574; Schall v. Bly, 43 Mich. 401; 82 Warren v. Winterstein, 114 State Bank v. Whittle, 41 Mich. Mich. 647. 365; Smith v. Collins, 41 Mich. 173; 33 Smith v. Collins, 41 Mich. 173; Drs. K. & K., etc., Ass'n v. Post & Edgarton v. Hinehman, 7 Mich. 352; Tribune Job Printing Co., 58 Mich. Schall v. Bly, 43 Mich. 401. § 55 Attachment 145 the property attached is owned by the moving defend- ant's wife in fee and is occupied by them both as a home- stead, he has such a valuable and important interest therein as the court will protect, and may apply to have the attachment dissolved.^* The fact that a defendant has appeared and pleaded to the action does not preclude him from taking proceed- ings for the dissolution of the attachment. The general appearance does not operate as an admission of the facts alleged in the affidavit for the attachment.'^ But a defendant who has procured a release of the property by executing a bond to the sheriff cannot ap- ply for a dissolution of the attachment. He might have availed himself of one method of relief or the other, but, having elected the former, he cannot subsequently re- sort to the latter.'^ § 55. When application may be made. The application may be made at any time before judg- ment in the attachment suit, either before or after ap- pearance and issue joined. After judgment, it has been held, there would be no propriety in such a motion, be- cause the property is then liable to an ordinary execu- tion ; '' but, in this connection, it is to be observed that, if dissolution proceedings have been instituted before judg- ment, they are not superseded by the rendition of judg- ment in the attachment suit, even though the judgment be followed by execution issued and levied upon the property. On the other hand, the rights of the parties stand and should be adjudicated, as in other actions, as they were at the time the proceedings were commenced, unless the defendant by his own acts has lost his rights to the possession of the property.'^ 84,Eowe V. Kellogg, 54 Mich. 206. 37 Hyde v. Nelson, 11 Mich. 853; 85 Hyde v. Nelson, 11 Mich. 353. Roelofson v. Hatch, 3 Mich. 277. 36Paddoek v. Matthews, 3 Mich. 88 Calvert, etc., Pub. Co. v. Drs. 18. K. & K., etc., Ass'n, 61 Mich. 336; 1 Abbott— 10 146 Attachment § 56 § 56. Requisites of application. The statute requires that the application shall be in writing and contain the reasons for the application,^^ and the supreme court has held that it should be verified.*" The application must show that the defendant who applies is the owner of the property attached, and, in the case of personal property, that he is entitled to the possession of the property.*^ The latter, however, need not be expressly alleged, for, where an allegation of ownership is distinctly made and there is nothing in the case indicating that any other person has acquired any right to the possession, the legal presumption that the owner of property is entitled to the possession of it may fairly be indulged.*'' In the case of land, the applica- tion need not show that the defendant is entitled to the possession of it, for, inasmuch as the levy of the attach- ment does not dispossess the defendant of his land, it would be absurd to require him to solicit its restoration." The jurisdiction of the officer in the dissolution pro- ceedings depends upon the showing in the application that the defendant's property was attached,** and, as no order respecting the property can be made unless the property be known, it is necessary that the application should set it forth with sufficient certainty.*^ An appli- cation which does not describe the property, but only states that, by virtue of the writ, ' ' property to the value of more than three thousand dollars was attached and is now in possession of the sheriff," does not confer jurisdiction.*® Gore V. Ray, 73 Mich. 385; Drs. K. 42 Zook v. Blougli, 42 Mich. 487; & K., etc., Ass'n v. Post & Tribune Johnson v. De Witt, 36 Mich. 95; Job Printing Co., 58 Mich. 487. Macumber v. Beam, 22 Mich. 395. 89 Jud. Act, eh. 26, §48; Comp. 43 Smith v. Collins, 41 Mich. 173. Laws 1915, § 13075. 44 Osborne v. Eobbins, 10 Mich. 40 Osborne v. Robbing, 10 Mich. 277; Zook v. Plough, 42 Mich. 487. 277. 45 Osborne v. Robbins, 10 Mich. 41 Johnson v. Do Witt, 36 Mich. 277; Nelson v. Hyde, 10 Mich. 521. 95. 46 Nelson v. Hyde, 10 Mich. 521. § 56 Attachment 147 The application must state the reasons for the disso- lution of the attachment.*' This part of the application usually takes the form of a denial of the statutory- grounds alleged in the affidavit for the writ of attach- ment. The denial should be of each distinct ground al- leged in the affidavit.*' An application, therefore, is bad which denies conjunctively that the defendant **has as- signed, disposed of, and that he is about to assign, dis- pose of and conceal his property with intent to defraud his creditors, or that he has made any fraudulent dispo- sition whatever of his property with said intent. ' ' " But a denial by the defendant that he has assigned, disposed of or concealed his property with intent to defraud his creditors is not bad as being in the alternative,®'' and an allegation that the affidavit for attachment was false, and that the defendant was not about to assign or dis- pose of his property with intent to defraud his creditors, will be sufficient.®^ An application by one of the de- fendants which alleges that he has not assigned, dis- posed of or concealed his property with intent to defraud his creditors is sufficient to cover all property owned by that defendant, whether individually or jointly with a co-defendant.®'* The application need not be entitled in the cause." Form of Petition for Dissolution of Attacliment (Title of court and cause.) To C. E., Circuit Court Commissioner for the County of : The petition of C. D., the defendant in the above-entitled cause, respect- fully shows: 1. That said cause was commenced by writ of attachment, issued out of 47Jud. Act, ch. 26, §48; Comp. Mich. 93. See also Cottrell v. Laws 1915, § 13075; Osborne v. Rob- Hatheway, 108 Mich. 619. bins, 10 Mich. 277; Patterson r 61 Patterson v. Goodrich, 31 Mich. Goodrich, 31 Mich. 225. 225. 48 Stock V. Reynolds, 121 Mich. 62 Cottrell v. Hatheway, 108 Mich. 356. 619. 49 Bane v. Keys, 115 Mich. 244. 63 Heyn v. Farrar, 36 Mich. 258. 60 First Nat. Bank v. Steele, 81 148 Attachment § 56 said court on the day of , A. D , in favor of the said A. B., as plaintiff, and against the lands, tenements, goods, chattels, moneys and effects of the said C. D., defendant, and was directed and delivered to the sheriff of said county. 2. That the said sheriff, by virtue of said writ of attachment, on the day of , A. D , attached, and now holds, the following described property: (Here describe the property.) 3. That said property, at the time of said attachment thereof, as aiore- said, was, and now is, the property of your petitioner, C. D., the defendant in the said writ, and that he, the said C. D., is lawfully entitled to the pos- session of the same. 4. That the affidavit for the said writ sets forth that your petitioner has absconded, etc. (set forth the ground for attachment as alleged in the affidavit), but that said affidavit avers no other cause for attachment against your petitioner. 5. That your petitioner denies that he has absconded, etc. (deny each and every cause alleged in the affidavit). Your petitioner therefore prays that the said property may be restored to him. C. D. State of Michigan, | County of I On this day of , in the year , before me, a , in and for said county, personally appeared the above-named petitioner, C. D., and made oath that he has read (or, has heard read) the foregoing petition by him subscribed, and knows the contents thereof, and that the same is true in substance and in fact. in and for County, Mich. §57. The citation. Upon the presentation of an application for the disso- lution of an attachment, it is the duty of the judge or commissioner to issue a citation to the plaintiff, requir- ing him to show cause, on a day and at a time and place in the citation to be named, before such judge or com- missioner, why the attachment should not be dissolved and the property be restored to the defendant." Unless a party follows up his application with a citation, his proceeding Avill be considered as having been abandoned by him.*"* 64Jud. Act, ch. 26, §49; Comp. 65 Pearson v. Creslin, 16 Mich. Laws 1915, § 13076. 281. § 59 Attachment 149 Form of Citation to Show Cause Why Attachment Should Not Be Dissolved (Title of court and cause.) On reading the petition of C D., the defendant, duly verified, praying that the attachment in this case may be dissolved and the property attached by virtue thereof restored to the said defendant for reasons set forth in said petition, it is ordered that said plaintiff be, and he hereby is, cited and required to show cause, on the day of , A. D , at . . . . o 'clock in the noon, before me, at my office, in the of , in said county, why said attachment should not be dissolved and the said property restored to the said defendant. C. R., Oireuit Court Commission- er for County. § 58. Service. The citation must be served three days at least before the return day thereof by delivering a copy to the plain- tiff, or to either of them, if there be more than one, if found within the county, and, if not, then it may be served upon the agent or attorney of the plaintiff, by the sheriff, either of his deputies, or any constable or other person authorized by the judge or commissioner.^® Service upon the attorney for the plaintiff is sufficient, although both be non-residents of the county in which the action is pending." It has been held that at least three secular days must intervene between the day of service and the return day in every case.*^ An intervening Sunday cannot be counted." §59. Hearing. On the return day of the citation, or at such other day thereafter as the judge or commissioner appoints for the 66Jud. Act, ch. 26, §50; Comp. 58 Dousman v. O'Malley, 1 Doug. Laws 1915, § 13077. The Judica- 450, holding that both day of serv- ture Act changes the former stat- ice and day for showing cause must ute by providing for delivering a be excluded. But see article on copy of the citation instead of serv- Service of Papers; Time. ice by reading it. 69 Campfield v. Cook, 92 Mich. If citation is defective, the entire 626; First Nat. Bank v. Williams proceedings will be quashed. Milling Co., 110 Mich. 15. 67 Cleland v. Clark, 111 Mich. 336. loO Attachment $^ 59 purpose, lie must proceed to hear the proofs and allega- tions of the parties, and, if he be satisfied that the plain- tiff had not a good and legal cause for suing out the writ of attachment, he may order the attachment to be dissolved and the property attached to be restored to the defendant, but may, at his discretion, require the de- fendant to enter his appearance to the plaintiff's action prior to the dissolution of the attachment.^" The term, ^'attachment," as here used is applied in its common law sense of a levy or seizure, and not to designate the writ under which the seizure is made.^^ § 60. Issue. The issue to be tried and determined in proceedings to dissolve an attachment is wholly distinct from the merits of the attachment suit.®^ Upon the facts alleged in the affidavit for attachment as ground for the writ being denied by the defendant in his application, it is incumbent upon the plaintiff, in order to sustain his levy, to prove the truth of his allegations.^^ Whether the plaintiff believed or had good reason to believe the facts charged against the defendant in his affidavit for the writ is not in issue or even material to the issue. The inquiry is whether the charges against the defendant are true.^* The "good and legal cause" for suing out the writ, which alone can sustain the attachment on the hear- ing, must be a cause existing in fact, and not merely in the belief of the plaintiff, however well founded that be- lief may have appeared to be.^^ The inquiry thus in- cludes nothing but the facts or the sufficiency of the affi- davit. All other defects in the proceeding must be passed 60 Jud. Act, ch. 26, § 50 ; Comp. Michigan Barge Co., 52 Mich. 164 ; Laws 1915, § 13077. Cottrell v. Hatheway, 108 Mich. 619. 61 Hyde V. Nelson, 11 Mich. 353. 64Blanchard v. Brown, 42 Mich. 62 Hyde v. Nelson, 11 Mich. 353; 46. Stock V. Eeynolds, 121 Mich. 356. 65 Folsom v. Teichner, 27 Mich. 68 Genesee County Sav. Bank v. 107. § 62 Attachment . 151 upon by the court, and not by the judge at chambers or the commissioner.^^ Where the affidavit alleges that the defendant has done or is about to do some act with intent to defraud his creditors, the issue upon dissolution proceedings includes not only the question whether the defendant actually did or was about to do the act charged, but also what was the intent of the defendant in the premises.^''^ If the affidavit makes a joint charge of fraud against sev- eral defendants, joint action or intended action must be shown.^' § 61. Burden of proof. The burden of proof rests upon the plaintiff in the first instance to show the facts necessary to sustain the at- tachment, and not upon the defendant to show the non- existence of the necessary grounds. If, upon the hear- ing of the application, neither party offers any evidence, it is the duty of the judge or commissioner to dissolve the attachment.^® The plaintiff must satisfy the judge or commissioner that the writ is well founded.''*' § 62. Right to begin evidence and open argument. The plaintiff, holding the affirmative and having the burden of proof, has the right to begin the evidence.'^* And from this it follows that the plaintiff also has the right to open and close the arguments. 66 Vinton v. Mead, 17 Mich. 388. Iosco County Sav. Bank v. Barnes, 67 Hyde v. Nelson, 11 Mich. 353; 100 Mich. 1; Carver v. Chapell, 70 Parker v. Luce, 14 Mich. 9; Gen- Mich. 49; Gore v. Eay, 73 Mich. esee County Sav. Bank v. Michigan 385; McMorran v. Moore, 113 Mich. Barge Co., 52 Mich. 164. 101; Rickel v. Strelinger, 102 Mich. 68Cottrell v. Hathaway, 108 Mich. 41; Feldman v. Preston, 194 Mich. 619. 352. 69Macumber v. Beam, 22 Mich. 70 Brown v. Blanehard, 39 Mich. 395; Genesee County Sav. Bank v. 790. Michigan Barge Co., 52 Mich. 164; 71 MacumlK-r v. Beam, 22 Mich. Powers v. O'Brien, 44 Mich. 317; 395. 152 Attachment § 63 §63. Evidence and determination. The evidence should be directed to the points in issue, by the plaintiff, to establish the truth of the charges al- leged against the defendant as grounds for the issuing of the writ of attachment, and by the defendant, not only to disprove such charges, but also to establish, in the case of personalty attached, his ownership and right to the possession of the property and therefore to have it restored to him, and, in the case of realty attached, his right of ownership or other interest in the land sufficient to entitle him to apply for a dissolution of the attach- ment. A defendant, who is charged with being about to re- move his property w^ith intent to defraud his creditors, may show that, when the attachment was served, he did not know he was owing any one, for, if he honestly be- lieved he had no creditors, he could not have entertained any design to defraud them.'''^ Evidence by a defendant that a part of the property attached belonged to his wife and that a part of it was exempt from execution is proper to rebut alleged fraud in disposing of and concealing the property.'* It is not enough for the plaintiff to show that the de- fendant has conveyed his property by deed or mortgage. If the defendant has done this, it must be proved to have been done under such circumstances as to warrant the conclusion that he actually had the intent to defraud in his mind.'* Where the w^rit of attachment has issued on the ground that the debt sued for was fraudulently contracted, the plaintiff must show not only a fraudulent intent on the part of the defendant, but also that the fraud extended to every portion of the debt; and, if it 72 Hyde v. Nelson, 11 Mich. 353; 74 First Nat. Bank v. Steele, 81 Stock V. Reynolds, 121 Mich. 356; Mich. 93; McMorran v. Moore, 113 Dimmock v. Cole, 130 Mich. 601. Mich. 101; Hyde v. Nelson, 11 Mich. 73 Carver v. Chapell, 70 Mich. 49. 353. § 63 Attachment 153 appears that any part of the debt is not affected by the fraud, the attachment will be dissolved.''^ The rights of the parties upon the hearing should stand and be adjudicated as they were at the time the proceedings were commenced, unless the defendant, by his own acts, has lost his right to the possession of the property. The fact that the property has been subse- quently levied upon, either by an execution issued upon a judgment recovered by the plaintiff in the attachment suit or by some other execution or by another writ of attachment, will therefore not preclude the defendant from having the attachment dissolved and an unjust im- putation of fraud removed, although, on account of such subsequent levy, the defendant is not entitled to have the property restored to him.'^ The fact that a judg- ment has been rendered in favor of the plaintiff on the merits of the case for the amount of the debt claimed to be due can in no manner affect the right of the defendant to have the attachment dissolved.''"'^ The defendant may be examined as to his intentions,'* and it may be shown, as bearing upon the question of fraud, that the plaintiff had been secured by collaterals.''* Although the fact that the defendant had procured the release of the attached property by giving a bond to the sheriff under the provisions of the statute for that pur- pose would preclude him from having the attachment dissolved,**^ the giving of a bond by a stranger to the suit, from whose possession the property was taken by V6 Estlow V. Hanna, 75 Mich. 219. 77 Gore v. Eay, 73 Mich. 385. 76 Calvert, etc., Pub. Co. v. Drs. 78 Brown v. Blanchard, 39 Mich. K. & K., etc., Ass'n, 61 Mich. 336; 790; Hyde v. Nelson, 11 Mich. 353. State Bank v. Whittle, 41 Mich. 79 Brown v. Blancliard, 39 Mich. 365; Drs. K. & K., etc., Ass'n v. 790. Post & Tribune Job Printing Co., 58 80 Paddock v. Matthews, 3 Mich. Mich. 487; Sheldon v. Stewart, 43 18. Mich. 574; Schall v. Bly, 43 Mich. 401. 154 Attachment § 63 the sheriff, would in no manner affect the right of the defendant, and would not operate as a waiver of his right to have the attachment dissolved.^^ Form of Order Dissolving Attachment (Title of court and cause.) Application in writing having been made to me by C D., the above-named defendant, on the day of , A. D , for a dissolution of the attachment issued in this cause at the suit of A. B., the above-named plaintiff, and a citation having been issued by me on the same day, requiring the said plaintiff to show cause before me, at my office, in the of , in said county, on the day of , A. D , at . . . . o 'clock in the noon, why the said attachment should not dissolved, and the property attached by virtue thereof be restored to the said C. D., and the said citation having been duly returned to me, with due proof of service thereof upon said plaintiff three days or more before the return day thereof, and the said parties having appeared before me at the time and place aforesaid, after hearing the proofs and allegations of the parties, and being satisfied that the said plaintiff had not a good and legal cause for suing out said writ, it is ordered that the said attachment be, and the same hereby is, dissolved, and that the property attached by virtue thereof be restored to the said C. D., the above-named defendant; and it is further ordered that the said plaintiff pay to the said defendant his costs of the proceedings had before me, to be taxed, and that the said defendant hav« execution therefor. J. S., Circuit Judge (or, Circuit Court Commissioner for the County of ). § 64. Compelling attendajice of witnesses. The judge or commissioner has full power to issue subpoenas, and, if necessary, attachments to compel the attendance of witnesses to testify in proceedings of this kind.82 §65. Costs. The judge or commissioner may in his discretion re- quire the party moving for the dissolution of an attach- ment to give security for the costs of the proceedings, M Pierce v. Johnson, 9.T Mich. 82 Jud. Act, eh. 26, §51; Comp. 125; Ripon Knitting Works v. John- Laws 1915, § 13078. son, 93 Mich. 129. § 67 Attachment 155 and may order the costs of the proceedings to be paid by the party against whom the decision is rendered in the premises, and may issue execution therefor return- able in sixty days from its date.®' § 66. Effect of dissolution. The effect of the dissolution of an attachment is to release the property attached. It also entitles the de- fendant to the immediate restoration of the property, unless, in the interval between the attachment and the order, his right to have it restored to him has been lost, as by his voluntary alienation of the possessory right or by a levy under some other writ. The dissolution of an attachment after the writ has been personally served upon the defendant, or the defendant has appeared in the suit, will not abate the suit, but the plaintiff may proceed to a personal judgment against the defendant in the same manner as if the suit had been commenced by summons. If, however, the order of dissolution is made before the defendant has appeared, and the writ has not been personally served upon him, the effect will be to terminate the suit, unless the judge or commis- sioner sees fit to require the defendant to enter his ap- pearance to the plaintiff's action prior to the dissolu- tion.®* The order dissolving an attachment does not affect the rights of third parties, who, by execution or attachment levies or other means, have acquired an interest in the property.®^ § 67. Restoration of property. When an order of dissolution is made and has been properly brought to the notice of the officer holding the 83 Jud. Act, ch. 26, § 51 ; Comp. 86 State Bank v. Wliittle, 41 Mich. Laws 1915, §13078; Linn v. Eob- 365; Drs. K. & K., etc., Ass'n v. erts, 15 Mich. 443. Post & Tribimr> .loJi Printincr Co., SiBowen v. Town, 12 Midi. 229; 5S Midi. IH7. Hyde V. Nelson, 11 Midi. 35.'i, 156 Attachment § 67 property, it is his duty to give it up to the person en- titled to receive it; but whether he does so or not is no concern of the plaintiff. It is the business of the de- fendant to see to the enforcement of the order of re- storation which he has procured.'^ § 68. Appeal from order of commissioners. Either party conceiving himself aggrieved by the de- termination, order or judgment of any circuit court com- missioner may appeal therefrom to the ''judge" of the circuit court for the same county, and a return may be compelled and the same proceedings will be thereupon had, as near as may be, and with the like effect, as in cases of appeal from judgments rendered before justices of the peace, and costs will be awarded and collected in the circuit court in the same manner. On perfecting such appeal, the attachment proceed- ings and the levy thereunder continue in the same con- dition and of the same force and validity as when the proceedings for a dissolution of the attachment were commenced. The officer executing the attachment will continue to have the same rights and duties under the attachment as regards the property attached as if the dissolution proceedings had never been commenced. Any order or judgment made by the commissioner dissolv- ing the attachment will have no force or effect to re- lease the attached property until it has been affirmed by the circuit judge, if appealed from, and no such order can be issued in any case by the commissioner until the expiration of five days after making it. The circuit judge will have full power and jurisdiction over the cause and proceedings to hear and determine it and render judgment therein, as if the proceedings had been originally commenced before him.^''' 86Blanchard v. Brown, 42 Mich. 87 Jud. Act, ch. 26, §52; Comp. 46. Laws 1915, § 13079. The Judicature § 70 Attachment 157 § 69. Effect of judgment in suit. The recovery of a judgment in the attachment suit and the levy of an execution by the plaintiff upon the attached property pending an appeal from an order of a commissioner dissolving the attachment will not affect the right of the defendant to have the appeal disposed of on its merits.®^ § 70. Review by certiorari. The constitution of this state confers upon the circuit courts a general supervisory control, subject to the ap- pellate jurisdiction of the supreme court, over inferior courts and tribunals, and they may issue a common law certiorari to bring up for review proceedings before a circuit court commissioner for the dissolution of an at- tachment.®^ A writ of certiorari may also issue from the supreme court to bring up such proceedings for review, whether from a circuit court commissioner or from a circuit judge. When the proceedings are reviewed on certiorari, only questions of law will be considered. Questions of fact will not be reviewed. The testimony will not be weighed or the credibility of witnesses passed upon. The appel- late court will not review the decision of the judge or commissioner on the testimony, unless there is an entire absence of proof on some material point to support his decision.^" Where there is some evidence tending to sup- port the decision of the judge or commissioner, his find- ing is conclusive.^^ Act eliminates the right to a jury Michigan Barge Oo., 52 Mich. 164; trial. The appeal is to a judge and Rowc v. Kellogg, 54 Mich. 206; Pow- not to the court. ers v. O'Brien, 44 Mich. 317; Schall 88 Calvert, etc., Pub. Co. v. Drs. v. Bly, 43 Mich. 401; State Bank K. & K., etc., Ass'n- 61 Mich. 336; v. Whittle, 41 Mich. 365; Linn v. Gore V. Ray, 73 Mich. 385. Roberts, 15 Mich. 443. 89 People v. St. Clair Circuit 81 Sheldon v. Stewart, 43 Mich. Judge, 32 Mich. 95. 574; Lord v. Wirt, 96 Mich. 415; 90 Genesee County Sav. Bank v. Hyde v. Nelson, 11 Mich. 353. 158 Attachment § 70 Rulings upon the admission of evidence will not be considered upon certiorari,®^ unless material evidence has been excluded which might have effected a different result.®' § 71. Review by writ of error or mandamus. The proceeding to dissolve an attachment being a special proceeding under the statute, and not according to the course of the common law, a writ of error will not lie to review the decision of a circuit judge upon appeal from a circuit court commissioner.®* Certiorari is the appropriate remedy. Mandamus is not a proper rem- edy.®* VII. Judgment ajid Execution §72. Statutory provisions. The statutes provide that if the attachment is per- sonally served or defendant appears, judgment shall be rendered and execution shall issue in the same manner and with the like effect as in a suit commenced by sum- mons, except that the officer may sell any of the attached property in the hands of the officer serving the attach- ment, wherever it may be in the state; but that if de- fendant is not personally served and does not appear, the judgment shall not be conclusive against the defendant and the execution can only authorize the officer to sell the property attached in the suit. In the latter case, the attorney issuing the execution must indorse it or annex a description of the property attached, so as to prevent a levy on other property.®^ 92SchaU V. Ely, 4.1 Mich. 401; 94 Gore v. Ray, 69 Mich. 114; Gray Carver v. Chapell, 70 Mich. 49; v. York, 44 Mich. 415. Lord V. Wirt, 96 Mich. 415. 96 S. K. Martin Lumber Co. v. 93 McMorran v. Moore, 113 Mich. Menominee Circuit Judge, 116 Mich. 101; Genesee County Sav. Bank v. ;554. Michigan Barge Co., 52 Mich. 164; 96 Jud. Act, ch. 26, §§25-28; Parker v. Luce, 14 Mich. 9. Comp. Laws 1915, §§ 13052-13055. § 73 Attachment 159 The amount recoverable is not limited by the amount sworn to be due in the affidavit.*''^ Where there is no personal service and no notice and the affidavit is insufficient, it has been held that the judgment is void,*® and also where it does not show that the notice was served as required by the statute.** Judg- ment by default cannot be rendered until all conditions precedent are strictly complied with.^ When the defendant is a non-resident, and had no notice of the proceeding in time to enable him to make his defense in season, and has been guilty of no laches, the court, in the exercise of a sound discretion, may set aside the judgment and permit him to plead, even though a term of the court has elapsed since the judgment was entered.^ And where a non-resident defendant, on learn- ing of the proceedings, had engaged an attorney to de- fend, but the attorney neglected to do so, and the de- fendant himself was guilty of no laches, on affidavit showing these facts, and that he had a meritorious de- fense to the action, the judgment and subsequent pro- ceedings therein were set aside, and the defendant was permitted to defend.^ VIII. Wrongful Attachment § 73. Liability for damages. Plaintiff in attachment, while he may be liable for acts of the levying officer, directed or approved of by him, is not liable for acts of the officer in failing to per- form his duty.* Thus, he is not liable for the act of the officer in detaining the property after dissolution of the That execution, where attachment 98 King v. Harrington, 14 Mich, is on substituted service, can be 522. levied only on property attached, see 99 Adams v. Abram, .38 Mich. 304. also Peterson v. Swenningston, 178 1 Woolkins v. Haid, 49 Mich. 299. Mich. 294, and see as to creditor's 2 Hurlburt v. Keed, 5 Mich. 30. suit, Bliss V. Tyler, 159 Mich. 502. 8 Loree v. Reeves, 2 Mich. 133. 97 Pew V. Yoare, 12 Mich. 16. 4 Michels v. Stork, 44 Mich. 2. 160 Attachment § 73 writ.^ Where there was no probable cause for issuing a writ of attachment against property, the party whose property was attached may sue for damages for malicious prosecution of the writ.^ In determining the damages from a wrongful levy of attachment, the good or bad faith of plaintiff in issuing the writ is immaterial.' ATTORNEY GENERAL It is the duty of the attorney general to prosecute and defend all actions in the supreme court in which the state is interested or is a party, and, when requested by the governor or either branch of the legislature, to appear for the people of the state in any other court or tribunal in any cause or matter, civil or criminal, in which the people of this state may be a party or interested; ^ he may, at any stage of the proceeding, intervene in any action in any court of the state where necessary to pro- tect any right or interest of the state or its people, and, in such case, he shall have the same right to appeal, to apply for a rehearing or to take any other action as any other party to the proceeding;^ also, at the request of the governor, the secretary of state, the treasurer or the auditor general, to prosecute and defend all suits relat- ing to matters connected with their departments.^ It is also his duty, when required, to give his opinion upon all questions of law submitted to him by the legislature, B Blanchard v. Brown, 42 Mich. 46. prosecuted in Ingham county circuit 6 See Kompass v. Light, 122 Mich. court and process issued in such case 86. See also Abuse of Process. may be served anywhere in the state. 7 Brown v. Spiegel, 167 Mich. Pub. Acts 1919, No. 232, p. 418. 645, where measure of damages is See also Certiorari; Habeas Cor- also discussed. pus; Mandamus; Quo Warranto. IHow. Stat. (2nd ed.) 612; Comp. 2 Pub. Acts 1919, No. 232, p. 418. Laws 1897, § 104; Comp. Laws 1915, 3 How. Stat. (2nd ed.) 613; Comp. § 132. Actions at law by him on be- Laws 1897, § 105; Comp. Laws 1915, half of the state may be begun and § 133. Attorneys 161 or by either branch thereof, or'by the governor, auditor general, treasurer or any other state officer.* The attorney general receives an annual salary of five thousand dollars, but he is entitled to receive no fees or perquisites whatever for the performance of any duties connected with his office.^ Before entering upon the execution of his office and within twenty days after receiving official notice of his election or appointment, or within twenty days after the commencement of the term of service for which he was elected or appointed, he must take and subscribe the oath of office prescribed in the sixteenth article of the constitution of the state, and deposit it with the secre- tary of state whose duty it is to file and preserve it in his office.^ The constitution of the state requires the attorney gen- eral to keep his office at the seat of government.'' The term of office of the attorney general is two years,' and commences on the first day of January of every second year, counting from the year 1853. Whenever a vacancy occurs in the office, it is filled by appointment by the governor, by and with the advice and consent of the senate, if in session.* ATTORNEYS S 1. As oflScer of court. § 2. Necessity for, and right to appear by attorney. § 3. Admission to bar. § 4. Removal or suspension. I 5. Warrant of attorney to appear for client. § 6. Privilege from arrest or service with process. § 7. Exemption from service as jurors. § 8. Privilege in use of language. 4 How. Stat. (2nd ed.) 616; Comp. Laws 1897, § I.'jO; Comp. Laws lOl.'j, Laws 1897, § 108; Comp. Laws 1915, § 18.3. § 136. 7 Const. Art. VI, sec. 1. 6 Const. Art. VI, sec. 21. 8 Const. Art. VI, sec. 1. 6 How. Stat. (2nd ed.) 707; Comp. 9 Const. Art. V, sec. 10. 1 Abbott— 11 162 Attorneys § 1 § 9. Waiver of privileges. § 10. Disqualification to become bail. § 11. Prohibition against purchase of choses in action for certain purposea. § 12. Maintenance in general. § 13. Permitting use of name. § 14. Administering oaths in their own cases. § 15. Miscellaneous statutory liabilities. § 16. Malpractice. § 17. Lien. § 18. Settlement between parties after judgment. § 19. Substitution of attorneys. § 20. By consent. §21. Application for. § 22. Notice of order for, § 23. Substitution because of death, removal, etc., of attorney. Cross-Eeferences: Agency (attorneys of fact) ; Evidence (confidential communications); Workmen's Compensation Act; Stipulations; Seev- ICE OF Papers (mode of serving papers on attorneys) ; Judges (right to practice law) ; Trial (conduct at the trial) ; Contempt. § 1. As officer of court. An attorney at law ^ is an officer of the court in whicli he is admitted to practice.^ Formerly a practitioner ap- pearing in a court of chancery was called a solicitor but now the Judicature Act expressly provides that all licensed practitioners shall be designated ' ' attorneys and counselors."^ § 2. Necessity for, and right to appear by attorney. The Constitution of Michigan provides that any suitor, in any court of the state, shall have the right to prose- cute or defend his suit, either in his own proper person, or by an attorney or agent of his choice.* It has been 1 Definition, see People v. May, 3 Statutes also so provide. Jud. Mich. 605. Act, ch. 4, §14; Comp. Laws 1915, 2 In re Mains, 121 Mich. 603. § 12261. However, he is not a public officer. Industrial Accident Board is not a Sloman v. Bender, 189 Mich. 258. "court" within this provision. 8 Jud. Act, ch. 1, §48; Comp. Mackin v. Detroit-Timkin Axle Co., Laws 1915, § 12053. 187 Mich. 8. 4 Const. 1908, Art. II, sec. 12. § 3 Attorneys 163 held by the supreme court, that the word "agent" as used in the constitution, is synonymous with the word '* attorney," and that a party cannot appear in a court of record by an agent, who is not an attorney duly licensed to ])ractice.^ The legislature has provided that every person of full age and sound mind, may appear by attorney or solicitor, as the case may require, in every action or plea by or against him, in any court, or may, at his election, prosecute or defend such action or plea in person; but this provision shall not extend to criminal cases, nor shall any person be permitted to appear on the record in any civil cause in person, whilst he has an attorney or solicitor in such case.^ § 3. Admission to bar. Any person of legal age, of either sex, who is a resi- dent and citizen of the United States, and who has had the general education specified in section fifty-three of chapter one of the Judicature Act, and who is of good moral character, may, on motion made in the supreme court or in any circuit court, be admitted to practice as an attorney and counselor in all the courts of record of this state, but the applicant must first produce the regu- lar certificate from the Board of Law Examiners. This certificate is issued upon the required examination hav- ing been passed by the applicant and should state that the applicant possesses sufficient learning in the law, good moral character and ability to enable him properly to practice as an attorney and counselor 'in the courts of this state.''^ Every person licensed to practice as an B Cobb V. Juflgc of Superior Court, Corporations and voluntary associ- 43 Mich. 289. ations are expressly prohibited from 6Jud. Act, ch. 4, §14; Comp. practicing law. Pub. Acts 1917, No. Laws 1915, § 12261. 354. 7Jud. Act, ch. 1, §52; Comp. Laws 1915, § 12057. 164 Attorneys §3 attorney and counselor in the supreme court is entitled to practice in every other court of law in this state.' Practicing attorneys who are not residents of this state may be admitted on motion to try specific cases in any of the courts of this state by such court, but cannot be admitted to general practice of law in this state without complying with the same conditions required of other persons.® The board of examiners is a body composed of five members, appointed by the governor on the nomination of the supreme court. The teiTQ of office of the members of the board is five years, but they are so classified that the term of one expires each year. The board is required to meet at the capitol, in the City of Lansing, at least once in each year during the session of the supreme court, and also at other times and places in the state, if the supreme court shall so direct.^® Three members of the board constitute a quorum for the transaction of business." The board examines all applicants for ad- mission to the bar as to their general education, legal learning and general qualifications to practice in the sev- eral courts of this state as attorneys and counselors. K the applicant passes the required examination, the board issues to him a certificate of qualification, stating his standing and recommending his admission to the bar." The examination is conducted by the board ac- cording to such rules and regulations as it deems proper to establish. The applicant is required to submit to a written examination prepared by the board, and also to such oral examination as the board may think proper, upon subjects determined by them.*^ The secretary of 8 Jud. Act, ch. 1, § 57 ; Comp. Laws 1915, § 12062. 9 Jud. Act, ch. 1, §49; Comp. l.:i\vs 1915, §12054. 10 Jud. Act, ch. 1, §51; Comp. Laws 1915, § 12056. 11 Jud. Act, ch. 1, § 51 ; Comp. Laws 1915, § 12056. 18 Jud. Act, eh. 1, §51; Comp. Laws 1915, § 12056. 13 Jud. Act, ch. 1, §53; Comp. Laws 1915, § 12058. § 4 Attorneys 165 the board furnishes each applicant with a card, showing the proficiency the applicant has attained in each branch or subject upon which he has been examined, whether a certificate is issued or not." If the applicant fails to pass at any examination, he may again apply after six months by showing to the board that he has diligently pursued the study of the law six months prior to the examination. No extra fee is required for the second examination.^'^ A person, when admitted to the bar, becomes an of- ficer of the court and subject to its summary jurisdic- tion. Such officers are as essential to the successful working of the court as the clerks and sheriffs, and per- haps as the judges themselves. They are, for the con- venience, not only of themselves, but of the other offi- cers of the court, clothed with certain privileges, an abuse of which may be visited with severe punishment.^^ § 4. Removal or suspension. It is provided by statute that attorneys and counselors may be removed or suspended by the supreme or circuit courts in which they are authorized to practice, for de- ceit, malpractice, crime or misdemeanor.^' But the author- ity of the courts to remove or suspend an attorney, when guilty of any deceit, malpractice or crime, exists inde- pendently of the statutory provision, and the court may remove or suspend an attorney for other causes than those mentioned in the statute. The statute is not re- strictive of the general powers of the court over its offi- cers." The person to be removed or suspended must be fur- 14Jud. Act, ch. 1, §54; Comp. 17 Jud. Act, ch. 1, §§58, 59; Laws 1915, § 12059. Comp. Laws ^1915, §§ 12063, 12064. 16 Jud. Act, ch. 1, §54; Comp. Soe In re Eadford, 168 Mich. 474. I.invs 1915, §12059. 18 In lo Mills, 1 Mich. 392. 16 Potter V. Hutchinson Mfg. Co., 87 Midi. r,n. 166 Attorneys § 4 nished with a copy of the charges against him by the clerk of the court in which the proceedings are intended to be taken, and he must be given an opportunity to be heard in his defense." These proceedings, although not strictly a criminal prosecution, have that nature, and the charges preferred must be clearly supported by the evidence to warrant a conviction,^" When an attorney is tried for any other misconduct than a contempt, it can be done only on specific charges, and an opportunity for a full defense must be afforded so that there may be, if necessary, a resort to an appellate court to determine their legal sufficiency.^^ The removal or suspension of an attorney or counselor by any court of competent jurisdiction operates as a re- moval or suspension in every court of the state.^^ A person who, while such removal or suspension is in effect, practices law or engages in the law business, holds him- self out as, or represents himself to be, authorized to practice in any of the courts of this state, is guilty of a misdemeanor punishable by fine or imprisonment or both.23 § 5. Waxrant of attorney to appear for client. When a party appears by attorney there is always sup- posed to be a warrant in writing executed by him for that purpose,''* but the practice of giving or filing war- rants of attorney never prevailed in this state,^^ and is 19Jud. Act, ch. 1, §59; Comp. 561; In re Chandler, 105 Mich. 235. Laws 1915, § 12064. See In re Had- 22 Jud. Act, ch. 1, §60; Comp. ford, 168 Mich. 474. Laws 1915, §12065; Cobb v. Judge 20 In re Baluss, 28 Mich. 507 ; In of Superior Court, 43 Mich. 289. re Wool, 36 Mich. 299; In re Mills, 23 Jud. Act, ch. 1, §§60, 61 (as 1 Mich. 392; Dickinson v. Dustin, 21 amended by Pub. Acts 1919, No. Mich. 565; In re Shepard, 109 Mich. 314, p. 552), 62; Comp. Laws 1915, 631; In re Clink, 117 Mich. 619. §§12065-12067. Jury trial cannot be demanded. 24iSteph. PI. 62. In re Shepard, 109 Mich. 631. 25 Farmers' & Mechanics' Bank v. 21 Dickinson v. Dustin, 21 Mich. Troy City Bank, 1 Doug. 457. § 6 Attorneys 167 by statute expressly declared to be unnecessary.^^ The authority of an attorney to appear and act in a cause or matter for a party whom he purports to represent is in general presumed, and the presumption is a conclusive one where the judgment in such cause or matter is at- tacked collaterally.^'' § 6. Privilege from arrest or service with process. Any attorney engaged in any suit or proceeding in any court of record of this state is exonerated from arrest in any civil suit while going to the place where he is re- quired to attend, while in attendance and while return- ing therefrom; and when such attendance is without the county of the residence of such attorney, he is exempt from the service of any civil process in any suit com- menced in the county where he is so in attendance; but all other officers of the several courts of record are liable to arrest and may be held to bail in the same manner as other persons, except while in attendance upon an actual sitting of the court of which they are officers or while going to, or returning from, such sitting.^* If an attorney be arrested when exempt from arrest and de- sires to take advantage of his privilege, an application should be made to the court which issued the process, or to the court in which he is employed, for an order direct- ing his release forthwith. This order, when obtained, should be served upon the person having custody of the attorney. When the order has been so served, the at- torney is entitled to his immediate liberty. 26 Jud. Act, ch. 13, §1; Comp. the common-law privilege of attor- Laws 1915, § 12404. neys from service of process while 27 Corbitt v. Timmerman, 95 Mich. attending court. Hoffman v. Bay 581 ; Dunlap v, Byers, 110 Mich. 109. Circuit Judge, 113 Mich. 109. 28 Jud. Act, ch, 13, § 43 ; Comp. See also Commencement op Ao- Laws 1915, § 12446. tions. But this statute does not remove 168 Attorneys § 7 § 7. Exemption from service as jurors. Attorneys and counselors are exempt from serving as jurors.^ § 8. Privilege in use of language. Attorneys are entitled to a great latitude in the choice of statements and language employed in the course of judicial proceedings under their management. Words spoken in the course of judicial proceedings, though they are such as impute crime to another, and, therefore, if spoken elsewhere, would import malice and be actionable per se, are not actionable if they are ap- plicable and pertinent to the subject of inquiry. The question in such cases is not whether the words spoken are true nor whether they are actionable in themselves, but whether they were spoken in the course of judicial proceedings and whether they are relevant or pertinent to the cause or subject of inquiry, and, in determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are interested in the conduct of a cause in court.^° Still this privilege must be restrained by some limit, and this limit has been well stated to be this: that a party or counsel shall not avail himself of his situation to gratify private malice by ut- tering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject-matter of the inquiry. Subject to this restriction, it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting the causes and advocating and sustaining the rights of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions.'^ 29 Jud. Act, ch. 2, §138; Comp. 31 Hoar v. Wood, 3 Mete. (Mass.) Laws 1915, §12207. 193; Dikeman v. Arnold, 83 Mich. 30 Hoar v. Wood, 3 Mete. (Mass.) 218; and, upon the general subject, 193. see Seligman v. Ten Eyck's Estate, § 11 Attorneys 169 Indeed, the benefit of the constitutional right to counsel depends very greatly on the freedom with which counsel are allowed to act and to comment on the facts appear- ing in the case and the inferences deducible from them.''* § 9. Waiver of privileges. Of the rights and privileges attaching to the office of attorney and counselor, of which mention has just been made, it remains to be said that any of them may be waived by the person entitled to them. § 10. Disqualification to become bail. As an attorney and counselor is entitled to certain privileges and exemptions by virtue of his office, so, be- cause of it, he is likewise subject to certain disqualifica- tions. It is thus enacted that no practicing attorney or counselor shall become security or bail for the appear- ance of any person charged with crime, in any criminal action. Any such security or bail for appearance, taken by a judge, circuit court commissioner, justice of the peace or other officer authorized by law to take the same, is declared by the statute to be void.'' But it is to be observed that, by the terms of the statute, the disquali- fication is limited to practicing attorneys and to appear- ance bail in criminal cases. § 11. Prohibition against purchase of choses in action for certain purposes. It is enacted that no attorney or counselor shall direct- ly or indirectly buy, or be in any manner interested in buying, any bond, promissory note, bill of exchange, GO Mich. 269; Henry C. Hart Mfg. 32 Cooley, Const. Lim. 443. Co. V. Mann's Boudoir Car Co., 65 38 Jud. Act, ch. 1, §75; Comp. Mich. 564; Cross v. Lake Shore, etc., Laws 1915, § 12080. Ey. Co., 69 Mieh. 36.3; Gavigan v. Scott, 51 Mich. 373; Anderson v. Russell, 34 Mieh. 110. ij«J Attorneys § 11 book debt or other thing in action, with the intent and for the purpose of bringing any suit thereon.^* Every violation of this inhibition is a misdemeanor, punishable by fine and imprisonment, and necessitates the removal of the attorney convicted thereof from office in the sev- eral courts in which he is authorized to practice.^^ But this does not prevent his receiving in payment any bond, promissory note, bill of exchange, book debt or any thing in action for any estate, real or personal, or for services actually rendered or for a debt antecedently contracted, nor does it prevent his buying or receiving any bill of exchange, draft or other thing in action for the purpose of remittance and without intent to violate the statute in any of these respects.^® Nor is he prevented by any law of this state from buying a chattel of one person and then suing another in replevin to obtain the possession of it.^''^ Nor is he prevented from taking an assignment to himself of mechanics' liens for the purpose of collec- tion and to avoid expense and a multiplicity of suits.'' 34 Jud. Act, ch. 1, § 67 ; Comp. plaintiff must be nonsuited if they Laws 1915, § 12072. refuse to attend or to answer or if In addition the statutes provide as it appears on the examination that follows: (1) In an action on any de- the cause of action has been bought mand bought, sold or received in vio- or procured contrary to the statutory lation of said statutes, defendant provisions. (4) No evidence derived may give notice with his plea, in ad- from the examination of any such dition to any other matter of de- attorney, solicitor or counselor, shall fense, that on the trial of the cause, be admitted in proof on any criminal he will insist and prove that the de- prosecution against him, for violat- mand has been bought and sold, or ing any of the foregoing provisions, received for prosecution, contrary to Jud. Act, ch. 1, §§ 70-73; Comp. law, without setting forth any par- Laws 1915, §§ 12075-12078. ticulars. (2) On the trial, defend- 36 Jud. Act, ch. 1, §68; Comp. ant may require, if he gives such Laws 1915, § 12073. notice, that plaintiff, and his attor- 36 Jud. Act, ch. 1, §69; Comp. ney and counsel, and any other per- Laws 1915, § 12074. son who may be interested in the re- 37 Town v. Tabor, 34 Mich. 262. covery in such cause, shall be exam- 38 Smedley v. Dregge, 101 Mich. ined on oath touching the matters set 200. See also Kandall v. Baire, 66 forth in such notice. (3) Defend- Mich. 312. ant may subpoena such persons, and § 12 Attorneys 171 The statute does not prohibit transfers to attorneys for convenience of suit or by way of security.'® The restriction embodied in the Michigan statute upon the purchase of a chose in action by an attorney for the purpose of bringing a suit upon it is only a particular instance of the old common law crime of maintenance. § 12. Maintenance in general. Maintenance is said to consist in the unlawful taking in hand, or upholding, of quarrels or sides, to the disturb- ance or hindrance of common right. It is of two kinds, namely, ruralis, or in the country, and curialis, or in the courts. Maintenance ruralis is termed ** champerty, " and is committed where one upholds a controversy under a contract to have a part of the property or subject in dispute. Maintenance curialis is usually alone termed ''maintenance," and is committed where one officiously, and 'without just cause, intermeddles in and promotes^ the prosecution or defense of a suit in which he has no interest, by assisting either party with money or other- wise.^® A man might, however, maintain the suit of his near kinsman, servant or poor neighbor out of charity and compassion with impunity.*^ Otherwise the punish- ment by common law is fine and imprisonment.*^ Cham- perty has also been defined as a bargain with a plaintiff or defendant to divide the land or other matter sued for between them, if they prevail at law; whereupon the champertor is to carry on the party 's suit at his own ex- pense. In a more modern sense of the word, it signifies the purchasing of a suit or right of suing, and it was a practice so abhored by the law that it was one of the main reasons why a chose in action, or thing of which one hath the right but not the possession, was not as- 89Tidey v. Kent Circuit Judge, 41 4 Cooley's Bl, Comm. 135. 179 Mich. 580, 583. 42 4 Cooley's Bl. Coram. 135. 40 3 Greenl. Ev. sec. 180. 172 Attokxeys § 12 fiignable at common law, because, as it was said, no man should purchase any pretense to sue in another's right.*^ The common law relative to this species of crime is be- lieved to be in force, except where it has been modified by statutory provision,** as in Michigan where all ex- isting laws, rules and provisions restricting the right of a party to agree with an attorney for his compensation are repealed and the measure of such compensation is left to the agreement, express or implied, of the parties; but any agreement by which an attorney or counselor is to receive any percentage or portion of the recovery in any cause in consideration of his services therein, or in consideration of his having advanced or paid all or any portion of the expenses of the cause, is wholly void if his employment has been induced by his solicitation or that of any one acting in his behalf or at his request, without such services having been first solicited by the party.*^ § 13. Permitting use of name. An attorney who knowingly permits any person other than his general law partner or a clerk in his office to sue out any process or to prosecute or defend any action in his name is liable to the party against whom the 43 4 Cooley 's Bl. Comm. 135. and no longer exists in this state. 44 3 Greenl. Ev. sec. 180. Wildey v. Crane, 63 Mich. 720; A contract by which a wife agreed Foley v. Grand Eapids, etc., E. Co., to give an attorney a third of the 157 Mich. 67; Lehman v. Detroit, results of a suit against her hus- etc., E. Co., 180 Mich. 362; Beagle band is void as against public pol- v. Pere Marquette R. Co., 184 Mich, icy. Young v. Young, 196 Mich. 17, 28. 316. As to the lien of an attorney un- 45 Jud. Act, ch. 1, §74; Comp. der an agreement for contingent Laws 1915, § 12079. compensation and notice to the ad- If the common-law doctrine of verse party, see Grand Eapids, etc., champerty was in force in this state E. Co. v. Cheboygan Circuit Judge, previous to the passage of this stat- 161 Mich. 181. ute, it was repealed by its passage § 16 Attorneys 173 process has been sued out or the action prosecuted or defended in the sum of fifty dollars damages.*® § 14. Administering oaths in their own cases. It is made unlawful by statutory enactment for no- taries public who are attorneys and counselors to ad- minister oaths in causes in which they are professionally engaged.*'' § 15. Miscellaneous statutory liabilities. These include the following: ** Any attorney, solicitor or counselor, who shall be guilty of any deceit or collu- sion, or shall consent to any deceit or collusion, with in- tent to deceive the court or any party, shall be deemed guilty of a misdemeanor, and on conviction shall be pun- ished by fine not exceeding one thousand dollars, or im- prisonment in the county jail not exceeding six months, or both, in the discretion of the court, and shall also be liable to the party injured by such deceit or collusion, in treble the damages sustained, to be recovered in a civil action. If any attorney, solicitor or counselor, shall will- fully delay his client's suit, with a view to his own gain, or shall willfully receive any money or allowance, for, or on account of any money which he has not laid out or become accountable for, he shall be liable to the party injured in treble damages. §16. Malpractice. The attorney is responsible to his client for the ex- ercise of reasonable skill, fidelity and care in the dis- charge of his professional duties, and the law holds him strictly responsible to his client for any loss or detri- 46Jud. Act, ch. 1, §66; Comp. • 48 Jud. Act, ch. 1, §§ 64-65; Oomp. Laws 1915, § 12071. Laws 1915, §§ 12069, 12070. 47 Jud. Act, ch. 1, §77; Comp. Laws 1915, § 12082. 174 Attorneys § 16 ment arising from the want of these qualifications; for the rule is that ''every person who enters a learned pro- fession, undertakes to bring to the exercise of it, a rea- sonable degree of care and skill. ' ' *® However, he is not an insurer of the result in a case in which he is employed, nor does he undertake to exert the most consummate skill, or tireless diligence, in the business of his client, but he does profess and undertake that he possesses the knowledge and skill common to members of his profes- sion, and that he will exercise in his client's business, an ordinary and reasonable degree of attention, prudence, and skill.60 Form of Count in Case Against an Attorney for Negligence The plaintiff says: 1. That before and at the time of committing the grievances hereinafter next mentioned, the said plaintiff, at the request of the said defendant, had retained and employed the said defendant, as and being an attorney of the circuit court for the county of , to prosecute and conduct a certain action of , in the same court, for and at the suit of the said plaintiff against one E. F., as defendant, for (brief description of the cause of action), for reasonable fees and reward to the said defendant. 2. That the said defendant then and there accepted and entered upon such retainer and employment. 3. That thereupon it became and was the duty of the said defendant to prosecute and conduct the said action in a proper, skilful and diligent manner. 4. That the said defendant, did not, nor would, prosecute or conduct the said action in a proper, skilful and diligent manner, but, on the contrary thereof, prosecuted and conducted the said action in an im- proper, unskilful and negligent manner in (specify wherein the negligence consists) . 5. That, by and through the said neglect and default of the said defendant in that behalf, the said plaintiff was compelled to suffer himself to be nonsuited in the said action. 6. That thereby the said plaintiff was not only hindered and prevented from recovering his said damages from the said E. F. in the said action, but has also been forced and obliged to pay, and has paid, to the said E. F., a large sum of money, to wit, dollars, for his costs and charges in and about his defense of the said action. 7. That the said plaintiff has also paid to the said defendant a large sum of money, to wit, dollars, for his fees and charges for the prosecution and conduct of the said action. 49Eggleston v. Boardman, 37 60 See Babbitt v Bumpus, 73 Mich. 14. Mich. 331. § 16 Attorneys 175 Form of Count Against Attorney for Negligently Conducting Plaintiff's Action The plaintiff says: 1. That before and at the time of the making of the promise and under- taking next hereinafter mentioned, the said defendant was an attorney of the circuit court for the county of , to wit, at 2. That, heretofore, to wit, on , at , in consideration that the said plaintiff, at the request of the said defendant, retained the said defendant, as and being such attorney as aforesaid, to conduct, for certain reasonable fees and reward to the said defendant, an action in said last-named court at the suit of the said plaintiff and against one E. F., as defendant, for the recovery of a large sum of money to wit, dollars, which the said plaintiff claimed to be due to him from the said E. F. 3. That the said defendant accepted such retainer and undertook and promised the said plain- tiff that he would conduct the said action against the said E. F. with due and proper care, skill and diligence. 4. That the said defendant did not conduct the said action with due and proper care, skill and dili- gence, but carelessly, unskilfully and negligently conducted the same. 5. That, by and through said carelessness, unskUfulness and negligence in that behalf, the said plaintiff was obliged to suffer himself to be non- suited in said action and was Obliged to pay the costs and expenses in- curred by the said E. F. in and about his defense to said action and hai been delayed in recovering the said money and is altogether likely to lose the same. Form of Count Against Attorney for Negligence in Conducting Defense to an Action The plaintiff says: 1. That, before and at the time of the making of the promise and under- taking next hereinafter mentioned, the said defendant was an attorney of the circuit court for the county of , to wit, at 2. That, here- tofore, to wit, on , at , in consideration that the said plaintiff, at the request of the said defendant, retained the said defendant, as and being such attorney as aforesaid, to conduct, for certain reasonable fees and reward to the said defendant, the defense of the said plaintiff in an action then and there pending in said last-named court at the suit of E. F. against the said plaintiff. 3. That the said defendant accepted the said retainer and undertook and promised the said plaintiff that he would conduct the said defense in the action so brought by the said E. F. against the said plaintiff, with due and proper care, skill and diligence. 4. That the said defendant did not conduct the said defense with due and proper care, skill and diligence, but carelessly, unskilfully and negligently conducted thp game. 5. That, by and through said carelessness, unskil- fulness, and negligence in that behalf, the said E. F, recovered in that action a judgment against the said plaintiff for a large sum of money, to wit, dollars, for the damages and costs of the said E. F. therein, and the said plaintiff was obliged to pay (or, became liable to pay) th« Baid judgment. 176 Attorneys § 17 § 17. Lien. The lien on papers and money in the possession of the attorney is well recognized in this state.**^ An attorney has a lien on money or papers of his client which have come into his possession, derived from, or pertaining to, the suit in which his legal services were rendered, to secure payment not only for his services in that suit, but also for all professional services rendered his client in other suits."^ "Where an attorney has a lien on a fund notice should be given him of an application to with- draw such fund from court.*' An attorney has a lien on a judgment he recovers for his client.** Such lien does not attach until the rendi- tion of judgment,** and prior to that time the attorney cannot prevent his client from settling and discontinu- ing the suit.*^ But where defendant is given notice of the agreement between plaintiff and his attorney by which the attorney is to receive a certain per cent of the recovery for his services, and the parties settle the suit and defendant retains in his hands sufficient to pay plain- tiff's attorney but does not so, the attorney may proceed to the trial of the cause, notwithstanding the settlement between the parties and a stipulation to dismiss the action.*' By giving notice of the contract between at- torney and client for a lien on the amount of recovery, the attorney can prevent his client from giving a valid 61 Dowling V. Eggemann, 47 Mich. 56 Voigt Brewery Co. v. Wayne 171. Circuit Judge, 103 Mich. 190; 52Kobinson v. Hawes, 56 Mich. Parker v. Blighton, 32 Mich. 266. 135. Agreement between attorney and 53 Dennis v. Kent Circuit Judge, client prohibiting the latter from 42 Mich. 249. settling pending litigation without 54 Kinney v. Tabor, 62 Mich. 617. the consent of the attorney is void. 65 Voigt Brewery Co. v. Wayne Nichols v. Waters, 201 Mich. 27. Circuit Judge, 103 Mich. 190; 57 Carpenter v. Myers, 90 Mich. Wright V. Hake, 38 Mich. 525; 209. Tarkcr v. Blighton, 32 Mich. 266. § 18 Attorneys 177 discharge of the claim to the opposing party, to the preju- dice of such attorney; and if there has been a settle- ment without the consent of plaintiff's attorney, the bet- ter practice is for him to proceed in the cause, upon the forming of a proper issue, to recover the amount of his fees, after first having the stipulation of settlement and discontinuance set aside or stricken from the files." The lien will not attach to land bid off in his own name by the attorney for the judgment creditor at execution sale, against the interests and protest of the client, where the attorney makes no payment in his own behalf." § 18. Settlement between parties after judgment. After judgment, a compromise cannot prejudice the attorney's right to enforce the judgment to the extent of his lien. If the client settles the case after judgment, the attorney may sue the client for costs and fees in procuring such judgment.^" Where the parties settle after judgment, defendant having knowledge of an agreement between plaintiff and his attorney whereby the services of the latter were to be paid from the pro- ceeds of the judgment, and then defendant has the judg- ment set aside and the case dismissed, the attorney may have the order of dismissal set aside and the order set- ting aside the judgment modified so as to protect his interests." So where the attorney for a judgment cred- itor, in the name and with the approval of the latter, sued on a bond conditioned for the payment of the judgment, the client cannot discontinue the suit with- out the consent of the attomey.^^ B8 Grand Rapids & I. Ry. Co. v. 69 Taylor v. Young, 56 Mich. 285. Cheboygan Circuit Judge, 161 Mich. 60 Lindner v. Hine, 84 Mich. 511. 181, where notice held sufficient. 61 Weeks v. Wayne Circuit Judges, See also Foley v. Grand Rapids, etc., 73 Mich. 256. R. Co., 168 Mich. 496. But see 62 Heavenrich v. Alpena Circuit Nichols V. Waters, 201 Mich. 27. Judge, 111 Mich. 163. 1 Abbott— 12 178 Attorneys § 19 § 19. Substitution of attorneys. An attorney who has once appeared in a cause for a party as attorney of record can be displaced and an- other substituted in his stead only through regular pro- ceedings for that purpose, and, until such proceedings have been taken, such attorney not only may, but also must, be treated by the other parties to the cause as the attorney of record therein.®' A rule or order of the court substituting one attorney in the place and stead of another as the attorney of record in a cause is in all cases necessary, whether the substitution be made with the consent of the attorney displaced or without it. § 20. By consent. If the attorney of record does not resist the substitu- tion, the usual practice is for the attorney proposed to be substituted to procure from the attorney of record his consent in writing that the substitution be made. This consent should .be entitled in the court and cause, dated and duly signed by the attorney of record. There- upon the consent is filed in the cause, and, upon the basis thereof, a rule may be filed in the cause that the new at- torney be substituted in the place and stead of the former attorney as attorney of record for the party in such cause. A substitution made ex parte by one or all the at- torneys is of no effect as against the client where made without the concurrence or consent of the latter.®* § 21. Application for. If consent for displacement be not obtained, it is necessary to make an application for an order, which 63 Comfort v. Stockbridge, 38 order of substitution. Landys- Mieh. 342. kowski v. Lark, 108 Mich. 500. Service of notice of trial (now 64 Hackley v. Muskegon Circuit abolished) on the old attorneys was Court, 58 Mich. 454. suflBcient where there had been no § 22 Attoeneys 179 must be based upon a proper showing of facts by affi- davit or otherwise; and, of the hearing of this applica- tion, the attorney sought to be displaced must be given reasonable notice. Sometimes the method pursued is to obtain an order for such attorney to show cause, at a time and place therein designated, why the substitu- tion should not be made. Upon the hearing of the ap- plication, if the court or judge conclude that the sub- stitution should be made, an order for that purpose is granted either without terms or with such terms as, un- der the circumstances of the case, seem reasonable and just. Attorneys of record cannot complain of an order of substitution which expressly provides for the preserva- tion of any lien for their services that may exist in their favor upon the papers in their hands pertaining to the suit and upon any judgment which shall be ren- dered.®^ However, substitution should not be permitted, at least where there is nothing to warrant the discharge of the attorney, without requiring payment for his serv- ices, or preserving the lien of the attorney.®^ § 22. Notice of order for. When an order for substitution has been made, it is essential that the adverse party be given notice of it. Attorneys have no right to interfere in the conduct or management of a cause upon a claim of substitution or otherwise, until notice thereof has been served upon the attorney of record for the opposite party in a proper manner;®' and, until a substitution has been properly made and notice thereof given, the attorney for the other party has a right to disregard any steps or pro- 65 Wipfler v. Warren, 163 Mich. 67 Kelly v. Simpson, 79 Mich. 392 189; Jones v. Dickerman, 95 Mich. Comfort v. Stockbridge, 38 Mich. 289. 342. 66 Lanagan v. Wayne Circuit Judge, 170 Mich. 435. -^80 Attorneys ^'2'2 ceedings taken in the name of any other than the at- torney of record in the case, and, until notice of a change has been received, he has no means of knowing, and no right to recognize, any other attorney in the conduct and management of the case.^' Form of Notice of Substitution of Attorney (Title of court and cause.) Sir: Please take notice that by a rule this day entered in this cause J. K. has been substituted in the place of K. L. as attorney for the above-named plaintiff. Dated, etc. K. L., Attorney for Defendant. J. K., Attorney for Plaintiff. Business address : , Mich. Form of Consent for Substitution of Attorney (Title of court and cause.) I hereby consent that J. K., of , be substituted in my place as attorney for the above-named plaintiff. Dated, etc. K L., Attorney for Plaintiff. Form of Eule for Substitution of Attorney by Consent (Title of court and cause.) On reading and filing the consent in writing of K. L., attorney for plain- tiff, on motion of J. K., it is ordered that the said J. K. be, and he hereby is, substituted in the place of the said K. L., as attorney for the plaintiff. Dated, etc. J. K., Attorney for Plaintiff. Business address : , Mich. § 23. Substitution because of death, removal, etc., of attorney. It is provided by statute that, when an attorney dies, is removed or suspended or ceases to act as such, the 63 Comfort v. Stockbridge, 38 Mich. 342; People v. Plymouth Plank-Road Co., 32 Mich. 248. Bail 181 person for whom he was acting shall be notified to ap- point another attorney at least thirty days before any proceeding shall be had against such person in the mat- ter wherein such attorney was acting for him ; ^* but this statute does not apply to a case where a practicing attorney for any reason declines to go on with a particu- lar case while still continuing in practice. The plain intent of the statute is to provide for cases in which an attorney, by reason of death, disability or other cause, has ceased to practice in the court. His refusal to pro- ceed in a particular case does not disconnect him with the case."''" AUDITORS See References. AWARD See -Arbitbation and Awaed. BAIL S 1. Kinds of. § 2. Discharge on bail bond. § 3. Liability of appearance bail. S 4. Special bail. § 5. Exceptions to bail. § 6. Justification of bail. § 7. Remedies of plaintiff when special bail not put in. § 8. Action against appearance bail. § 9. Ruling sheriff to put in and perfect special bail. S 10. Action on bail bond hj sheriff. § 11. Surrender or re-taking of defendant in exoneration of bail. § 12. Time when surrender may be made. § 13. Right of bail to sheriff to surrender, and of sheriff to re-take, defendant in exoneration. S 14. Action on recognizance of special bail. § 15. Jail liberties. Cross-Referenees: Habeas Corpus; Commencement or Actions (fix- ing bail to avoid arrest); Contempt; Executions; Jail Liberties. 69Jud. Act, ch. 1, §63; Comp. 70 People v. Plymouth Plank- Laws 1915, § 12068. Road Co., 32 Mich. 248. 182 Bail §1 § 1. Kinds of. The bond first given to the sheriff, after an arrest on a capias ad respondendum, is a bail bond while the one later given is special bail. Originally the former was called bail below but now it is generally termed appear- ance bail or bail to the sheriff; while the latter, formerly called bail above, is now generally called special bail and the undertaking a recognizance. § 2. Discharge on bail bond. On being arrested on a capias ad respondendum, the defendant is entitled to be discharged, upon executing to the officer making the arrest, with the addition of his name of office, a bond, in a penalty equal to the amount specified in the order for bail, or in double the amount specified in the affidavit attached to the writ, as the case may be, with two sufficient sureties, conditioned that the defendant will appear in the action by putting in spe- cial bail within fifteen days after the day of the service of the writ, and by perfecting such bail if required, ac- cording to the rules and practice of the court.^ This obligation is called the bail bond, and is usually pre- pared and presented by the officer making the arrest. It will be observed that the statute prescribes the form in which the bail bond shall be executed, and this form must be substantially followed, or the bond will be void. It is sufficient, however, if it conform substantially to the form prescribed and do not vary in any matter to the prejudice of the rights of the party to whom, or for whose benefit, it is given. Upon the execution and de- livery of the bond, the officer will discharge the defend- ant; and he may, if he pleases, discharge him without requiring a bond; but if he do so, it is at his own peril, 1 Jud. Act, ch. 13, §15; Comp. Bail bond may run to under sher- Law3 1915, § 12418. See also C!OM- iff where he makes the arrest. Wil- MENCEMENT OF ACTIONS. COX V, Ismon, 34 Mlch. 268. § 3 Bail 183 and he will be liable in an action for an escape in snch case, unless he have the defendant in actual custody at the return of the writ, or put in and perfect special bail for him. The officer taking such bail should give to the sureties a bail piece, the substance of which is prescribed by the statute.^ But the sureties may waive the right to bail piece, and they do waive it, when they do not call for them. If they deliver the bond without calling for them, the plaintiff is not concerned with the omission and is not prejudiced by it.^ § 3. Liability of appearance bail. Appearance bail are responsible to the same extent that special bail would have been had any been entered,* until special bail is entered or they are otherwise re- leased. Form of Appearance Bail Bond Know all men by these presents, that we, C. D,, as principal, and E. F. and G. H., as sureties, are held and firmly bound unto S. T., sheriff of the county of , in the sum of dollars, lawful money, to be paid to the said sheriff, or his certain attorney, executors, adminis- trators, or assigns, for which payment well and truly to be made we bind ourselves, our, and each of our, heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , in the year one thousand nine hundred Whereas, A. B. has sued and prosecuted out of the circuit court for the county of a certain writ of capias ad respondendum against the above-bounden C. D., by virtue of which said writ the above-bounden C. D. was on the day of , A. D , arrested by the above-named sheriff: Now, therefore, the condition of this obligation is such that, if the albove-bounden C. D. shall appear in the action commenced by the said 2 Jud. Act, ch. 13, § 16; Comp. tween declaration and affidavit for Laws 1915, § 12419. capias such as to release sureties on 8 Wilcox V. Ismon, 34 Mich. 268. bail bond, see Pricbisch v. Otten- 4 Fisher v. Drewa, 63 Mich. 655. wess, 176 Mich. 476. What constitutes variance be- 184 Bail § 3 writ by putting in special bail within fifteen days after the service of said writ upon him, and by perfecting suph bail, if required, according to the rules and practice of the said court, then this obligation is to be void; otherwise to remain in full force and effect. C. D. [L. S.l E. F. [L. S.] G. H. [L. S.] (Add justification.) Form of Bail Piece to Be Delivered by Bail to Sheriff County of , »s. On this day of , one thousand nine hundred , C. D. is bailed by E. F. and G. H., of the county of , upon a capias ad respondendum, returnable in the circuit court for said county of , on the day of , A. D , at the suit of A. B. in a plea of trespass on the case. S. T., Sheriff. § 4. Special bail. Under the statutes, special bail, while usually put in by defendant or his attorney, may be put in by the sheriff for his own indemnity or by the appearance bail for their indemnity. In the first instance, it must be put in with- in fifteen days after the service of the capias; but where put in by the sheriff, it may be filed at any time before judgment is rendered against him, on payment of the costs of the proceedings against him.* If the time ex- pires on Sunday, the bail may be filed on the following Monday.^ The recognizance, the form of which is expressly fixed by statute,'' may be taken before any justice of the su- preme court, any circuit judge, circuit court commis- sioner, or clerk of any court of record, and it must be filed in the office of the clerk of the court in which the B Jud. Act, eh. 25, §14; Comp. 6 Clink v. Muskegon Circuit Judge, Laws 1915, § 12992. 58 Mich. 242. Right to put in special bail after 7 Form is set forth in Jud. Act, suit on appearance bail has been ch. 25, §2; Comp. Laws 1915, commenced, see Pease v. Pendell, 57 § 12980. Mich. 315. § 4 Bail 185 action is pending.' A bail piece must be delivered to the special bail.® Notice of putting in special bail, while not expressly required by statute, should be served on plaintiff's at- torney.^" Form of Recognizance The Circuit Court for the County of A. B. ] vs. \ County of , bs. C. D. J Be it remembered, that on this day of , in the year one thousand nine hundred , E. F. and G. H., of the County of , personally appeared before J. K. (describing the officer, whether justice of the supreme court, circuit judge, circuit court commissioner, or clerk of a court of record), and severally acknowledged themselves to owe A, B., the above-named plaintiff, the sum of (the sum for which the bail is required) dollars each, to be levied upon their several goods and chat- tels, lands and tenements; upon condition that, if C. D., the defendant, shall be condemned in this action at the suit of A. B., the plaintiff, he, the said C. D., shall pay the costs and condemnation of the court, or O-ender himself into the custody of the sheriff of the County of for the same, or, if he fail so to do, that the said E. F. and G. H. will pay the costs and condemnation for him. E. F. [L. S.] G. H. [L. S.] Taken and acknowledged the day and year above written, before me. J. K., (Add justification.) Clerk, etc. Form of Bail Piece to Be Delivered to Special Bail The Circuit Court for the County of County of , ss. On this day of , in the year one thousand nine hundred , C. D. is delivered to hail, on a eepi corpus, unto E, F. and 8 .Tud. Act, eh. 25, §1; Oomj). sufficiency of the surties therein runs Laws 1915, § 12979. from the time of such notice, and if Eecognizanee acknowledged be- such notice is not given, the plain- fore a notary is void. Clink v. Mna- tiff may proceed as if special bail kegon Circuit Judge, 58 Mich. 242. had not been put in. The notice 9Jud. Act, ch. 25, §.3; Conip. sliould be entitled in the cause, and Laws 1915, §12981. set forth the names of the bail and 10 Notice of putting in special bail their places of business, so as to af- should be served on plaintiff's attor- ford the plaintiff an opportunity to ney, since the time to except to the inquire into their sufficiency. 186 Bail § 4 G. H., of the county of , at the suit of A. B., in a plea of (as the case may be). J. K., Clerk (or, Circuit Judge, etc.). Form of Notice of Special Ball (Title of court and cause.) Sir: Please to take notice that E. F., of the village of , in the county of , and G. H., of the city of , have become special bail for the defendant in this cause, and that their recognizance an such ibaU, in a penalty of ...... dollars, was duly filed in the office of th« clerk of this court on the day of , 19. .. Dated, etc. Yours, etc., J. N^ Attorney for Defendant. T. J. K., Esq., Plaintiff's Attorney. § 5. Exceptions to bail. When special bail has been put in, notice thereof should be given to plaintiff, who has twenty days after such no- tice to take exceptions to the special bail by making an indorsement to that effect upon the recognizance on file. If he takes exceptions, the plaintiff should give the de- fendant notice thereof, for the defendant has ten days after such notice to perfect his special bail.^^ If no notice of retainer of an attorney to defend has been given, the notice of exception to bail should be delivered to the sheriff or one of his deputies.^'' Form of Exceptions The plaintiff hereby takes exceptions to the within special bail. Dated, etc. J. K., Plaintiff's Attorney. llJud. Act, ch. 25, §4; Comp. 12 Cir. a. Rule 12, §2. Laws 1915, §12982. § 6 Bail 187 Form of Notice of Exceptions to Special Ball (Title of court and cause.) Sir: Please take notice that the plaintiff has duly excepted to the reeog- nirance of special bail now on file herein. Dated, etc. Yours, etc., J. K., Attorney for Plaintiff, § 6. Justification of bail. Special bail may justify by affidavit before any officer authorized to take recognizance of special bail; and such affidavit must set forth the township, or city, and county in this state in which the bail reside, and that they are severally worth the sum in which the defendant is held to bail, after all their debts are paid.'^' The perfection of special bail is not accomplished mere- ly by an ex parte justification by the sureties by an affi- davit attached to the bond, but involves notice to the plaintiff, an opportunity for him to be heard and an al- lowance of the sufficiency of the sureties." Form of Notice of Perfecting Special Bail (Title of court and cause.) Sir: Please take notice that the special bail of the defendant herein will be perfected before J. W., clerk of said court, at his office in the of , in said county, on the day of , A. D , at 'clock in the noon. Dated, etc. Yours, etc., K. L., To J. K., Attorney for Defendant. Attorney for Plaintiff. Form of Justification of Special Bail (Title of court and cause.) County of , ss. E. F., of the of , in the County of , in the State of Michigan, and G. H., of the of , in the County of , 13Jud. Act, ch. 25, §5; Comp. 14 Ludwiek v. Kent Circuit Judge, Laws 1915, § 12983. 138 Mich. 106. 188 Bail § 6 in the State of Michigan, being duly sworn, each for himself deposes and says that he resides in the place hereinbefore stated and he is worth the sum of dollars (the sum in which the defendant is held to bail) after all hi» debts are paid. E. F. G. H. Subscribed, etc. § 7. Remedies of plaintiff when special bail not put in. If special bail be not put in and perfected within the time limited by law, according to the rules and practice of the court, and the plaintiff be satisfied with the bail taken by the officer serving the writ, he may take an as- signment of the bail bond from the officer to whom the bond was given and may sue thereon in his own name, or, instead of this, he may, upon filing an affidavit that spe- cial bail has not been put in and perfected and that the writ has been returned served, enter a rule with the clerk of the court, in vacation or term, requiring the sheriff or other officer making the arrest to put in and perfect spe- cial bail within twenty days after service of notice of such rule.^* The plaintiff thus has a right of election which of two remedies he will pursue, and, having elected to abide by one of them, he is excluded thereby from having re- course to the other.^^ § 8. Action against appearance bail. The right of the plaintiff to take an assignment of the bail bond taken by the officer serving the writ, and to sue thereon in his own name, begins when the condition of the bond is broken by the default in putting in and perfecting recognizance of special bail. The assignment of a bail bond by the sheriff to the plaintiff is not required to be under seal, and need not purport to be an official act, the official character appear- ing in the bond itself. Any indorsement by the officer, purporting to assign the bond to the plaintiff, is suffi- 16 Jud. Act, ch. 25, §§ 6, 9; Comp. 16 De Myer v. McGonegal, 32 I-aws 1915, §§ 12984, 12987. Mich. 120. § 8 Bail 189 cient. The officer holds the bond for his protection as an individual, and transfers it to the plaintiff that he may- assume the responsibility.^''^ The proceedings in the suit on the bail bond may be set aside, if irregular, or stayed on terms in order that a trial may be had in the original action.^' Where the plaintiff has not lost a trial in the original action by reason of de- fault in not filing and perfecting special bail, the court may stay the proceedings on the bail bond upon the put- ting in and perfecting of special bail, paying the costs of assigning the bail bond and of the proceedings thereon, receiving a declaration in the action and pleading issu- ably to the merits, so that the original cause may be tried at the same time, if the plaintiff so elects; and, if the plaintiff has lost a trial by reason of such default, judg- ment will be entered on the bail bond as security." But the sureties on the bail bond may surrender the defendant in exoneration at any time within eight days after suit on the bond has been commenced and the process or declara- tion by which it was commenced has been served.^" The payment of the costs which have accrued is not an essen- tial prerequisite to a valid surrender. ^^ Form of Assignment of Bail Bond by Sheriff Know all men by these presents, that I, S. T., sheriff of the County of , do hereby assigp the within bail bond to the within-named A. B., at his request, to be sued upon by him according to law. In testimony whereof, I have hereunto set my hand and seal this day of , A. D S. T. [L. S.] Sheriff. Form of Count on Appearance Bail The plaintiff says: 1. That heretofore, to wit, on , the said plaintiff sued out of the circuit court for the county of , against the laid C. D., a writ 17 Wilcox V. Ismon, 34 Mich. 268. 20 Schwarzschild & Sulzberger Co. iSJud. Act, ch. 25, §7; Comp. v. Cryan, 167 Mich. 377; McNeal v. J.aw.s 1915, §12985. Van Duser, 142 Mich. .593. 19Jud. Act, ch. 25, S8; Comp. 21 Morj^an v. .lonos, 117 Mich. 50. Laws 1915, §12986. 190 Bail § 8 of capias ad respondendum, directed to the sheriff of said county and commanding the said sheriff, in the name of the people of the state of Michigan, to take the said C. D., if he should be found in said sheriff's bailiwick, and keep him in his custody until he should be discharged according to law. 2. That said writ was returnable on 3. That, on said writ (if such be the fact), before its delivery to said sheriff, an order was indorsed, made by (specifying the officer), directing the said C. D. to be held to bail on said writ in the sum of dol- lars. 4. That said writ afterwards, to wit, on , before the return day thereof, was delivered to S. T., who then and there was sheriff of the said county of , to be executed. 5. That afterwards, to wit, on , the said S. T., as and being such sheriff as aforesaid, by virtue of said writ, took the said C. D., to wit, at , in the said county of , and kept him in his custody, according to the command of said writ. 6. That thereupon the said C. D., to wit, on , delivered to the said sheriff, with the addition of his name of office, a bond for the appearance of the said C. D., in the action commenced by said writ, within fifteen days after the service thereof, according to the statute in such case made and provided. 7. That then and there, to wit, on the day and year last aforesaid, the said defendants, by their certain writing obligatory, sealed with their respective seals, the date whereof is the day and year last aforesaid, a copy of which is hereto annexed, acknowledged themselves to be held and firmly bound unto the said S. T., as such sheriff, in the sum of dollars, lawful money, to be paid to the said sheriff, or his certain attorney, executors, administrators, or assigns, subject to a certain condition thereunder written, whereby it was provided that, if the said C. D. should appear in the action so com- menced by the said writ, as aforesaid, by putting in special bail within fifteen days after the service of the said writ upon him, and by perfect- ing such bail, if required, according to the rules and practice of the said court, the said obligation was to be void, otherwise to remain in full force and effect. 8. That the said C. D. did not appear in the said action within the time above specified, by putting in special bail but has therein wholly failed and made default. 9. That, thereby the said writing oblig- atory became and was forfeited. 10. That, the said writing obligatory being so forfeited, and the money therein specified remaining unpaid to the said sheriff, he, the said sheriff, afterwards, to wit, on , at , at the request of the said plaintiff, by an indorsement on the said writing obligatory under his hand, duly assigned the said writing obligatory to the said plaintiff according to law. 11. That the said de- fendants, although requested so to do, have not paid the said sum of money, or any part thereof. § 9. Ruling sheriff to put in and perfect special bail. Instead of taking an assignment of the bail bond taken by the officer making the arrest of the defendant, the § 9 Bail 191 plaintiff may, as has been stated, require such officer by rule to put in and perfect special bail. This rule is filed with the clerk of the court, in vacation or in term, with an affidavit that special bail has not been put in and per- fected and that the writ of capias ad respondendum has been returned served, and requires the sheriff or other officer who made the arrest to put in and perfect special bail within twenty days after service of notice of the rule.^^ And if such bail be not put in and perfected within the time specified in the rule, upon filing an affidavit of the service of notice of the -rule, a further rule may be filed with the clerk, in vacation or in term, that an at- tachment issue against the officer; and such attachment may be issued accordingly.^' Upon the sheriff or other officer being brought into court on an attachment for not putting in bail to the action, the court may, by summary proceedings, ascer- tain the amount due to the plaintiff in the action in the same manner as if interlocutory judgment had been en- tered against the defendant, and may enter a judgment against the sheriff or other officer for the amount so as- certained to be due, with the costs of the suit and pro- ceedings,^* If the court determines that the amount so ascertained ought to be paid by the sheriff or other of- ficer, and he confesses a judgment to the plaintiff for such amount, with the costs of suit and the proceedings, the court will thereupon stay all other proceedings against him until he shall have had a reasonable time to obtain judgment on the bond taken on the arrest of the defendant and to collect the amount so ascertained to be due to the plaintiff; ^^ but if, in any such action, after a reasonable time, the sheriff or other officer does not 22Jud. Act, ch. 25, §9; Comp. 24 Jud. Act, cli. 25, §11; Comp. Laws 1915, § 129.87. Laws 1915, § 12989. 23 Jud. Act, eh. 25, §10; Comp. 25 Jud. Act, ch. 25, §12; Comp. Laws 1915, § 12988. Laws 1915, § 12990. 102 Bail §9 satisfy the plaintiff in the action the amount due him, with costs and interest, the court will award execution on the judgment against the sheriff or other officer, and, if the execution be returned unsatisfied in part or in whole, the same proceedings may be had on the official bond of the sheriff or other officer to collect the defi- ciency as in other cases of delinquency.^® Form of Affidavit to Compel Sheriff to Put In and Perfect Special Bail (Title of court and cause.) County of , ss. J. K., being duly sworn, deposes and says that he is attorney for the above-named plaintiff; that the capias ad respondendum in this cause was issued on the day of , A. D , directed to the sheriff of said county, and made returnable on the day of , A. D ; that S. T., sheriff of said county, has returned said writ, together with his certificate that on the day of , A. D. , he took the said defendant; that more than fifteen days have elapsed since the said defendant was taken as aforesaid; and that special bail has not been put in and perfected in this cause. J. K. Subscribed, etc. Form of Bule Requiring Sheriff to Put In and Perfect Special Ball (Title of court and cause.) On reading and filing the affidavit of J. K., attorney for the above- named plaintiff, showing that the capias ad respondendum, issued in this cause, has been returned by S. T., sheriff of said county, with his certifi- cate that C. D., the above-named defendant, had been taken thereon; that more than fifteen days have elapsed since the service of said writ as afore- said; and that special bail has not been put in and perfected in this cause; on motion of J. K., attorney for plaintiff, it is ordered that the said S. T., sheriff as aforesaid, put in and perfect special bail in this cause, within twenty days after service upon him of notice of this rule. Dated, etc. J. K., Attorney for Plaintiff. Form of Notice of Bule for Sheriff to Put In and Perfect Special Bail (Title of court and cause.) Sir: You will please to take notice that the annexed is a copy of a rule entered in the above-entitled cause, and that, in accordance therewith. 26Jud. Act, eh. 2o, ^U; Comp. Laws 1915, § 12991 § 10 Bail 193 you are required to put in and perfect special bail herein within twenty days after service upon you hereof. Dated, etc. Yours, etc., J. K., Plaintiff 's Attorney. Business address: , Mieh. To S. T., Slieriff of County. Form of Affidavit of Service of Notice of Kule for Slieriff to Put in and Perfect Special Bail (Title of court and cause.) County of , ss. J. K., attorney for the above-named plaintiff, being duly sworn, deposes and says that on the day of , A. D , he served the notice, of which the annexed is a copy, upon S. T., sheriff of said county, by delivering the same to him personally at the of , in laid county. J. K. Subscribed, etc. Form of Rule for Attachment Against Sheriff for Not Putting in and Perfecting Special Bail (Title of court and cause.) It appearing by the affidavit of J. K., attorney for the plaintiff, that notice of the rule heretofore entered in this cause, requiring S. T., sheriff of said county, to put in and perfect special bail herein within twenty days after service upon said sheriff of said notice, was personally served upon said sheriff on the day of , A. D , and it fur- ther appearing that special bail has not been put in and perfected herein; on motion of J. K., attorney for plaintiff, it is ordered that an attach- ment issue against S. T., sheriff, as aforesaid, according to the statute in such case made and provided. Dated, etc. J. K., Attorney for Plaintiff. § 10. Action on bail bond by sheriff. Where the sheriff or other officer wlio made the arrest has, for his own indemnity, put in and perfected special bail to the action, when such bail has been required by the xjlaintiif, the putting in of such bail by tlie officer will not be deemed a performance of the condition of the bond taken on the arrest of the defendant, but the officer 1 Abbott— 1;{ 19^ Bail | 10 may, notwithstanding, })rosecute such bond and recover the amount of all damages which he has sustained by the neglect of the defendant to put in and perfect special bail." § 11. Surrender or re-taking of defendant in exoneration of bail. The special bail of any defendant may surrender him, or the sheriff may re-take him into his custody upon dis- covering that any surety on the special bail bond is in- sufficient, or the defendant may surrender himself in exoneration of his bail, before any judge of a circuit court or a circuit court commissioner.^^ Exoneration of bail has always been considered within the range of chamber business, and it is not unconstitutional to con- fer upon a circuit court commissioner the right to exer- cise this function.^* The proceedings to effect the surrender of a defendant in exoneration of his bail, whether by his special bail or by himself, are as follows: 1. There shall be produced to the officer authorized to accept the surrender tw^o copies of the bail piece, upon one of which he shall indorse an order ^^ that the de- fendant be committed to the custody of the sheriff in exoneration of his bail, which shall be delivered to the sheriff and will authorize him to commit and detain the defendant until he is duly discharged. 2. Upon producing to such officer the certificate of the sheriff that the defendant has been committed to, and remains in, his custody by virtue of such order of com- 27 Jud. Act, oh. 25, § 14 ; Comp. 30 An indorsement on a piece of Laws 1915, § 12992. jiaper attached to the bail piece is 28 Jud. Act, eh. 25, §§19, 20, sufficient. McNeal v. Van Duser, subd. 5; Comp. Laws 1915, §§ 12997, 142 Mich. 593. 12998, subd. 5. 29 De Myer v. McGonegal, 32 Mich. » 120. §12 Bail 195 mitment, acknowledged before such officer by the sheriff or proved by a subscribing witness thereto, an order shall be made by such officer requiring the plaintiff to show cause before him, at such time and place as he shall appoint, why the bail of the defendant should not be exonerated from their liability. 3. Upon producing proof of the due service of such order on the plaintiff or his attorney, such officer shall proceed to hear the allegations and proofs of the parties, and, if no good cause to the contrary appear, shall in- dorse an order on the second copy of the bail piece, briefly reciting the proceedings had before him and declaring that the bail of the defendant are discharged from all liability as such bail in the suit in which such bail piece was taken. 4. To such copy of the bail piece shall be attached the certificate of the sheriff hereinbefore required, with the ackttowledgment or proof thereof, the order to show cause and the proof of the service thereof, which papers shall be immediately filed in the office of the clerk of the court, and, until they are so filed, the liability of the bail will continue.'^ A circuit judge has no jurisdiction of proceedings to exonerate special bail in the absence of copies of the bail piece. The statute expressly and plainly requires them, and copies of the recognizance do not constitute a valid substitute; ^^ but the copies need not be certified to be such.'^ § 12. Time when surrender may be made. By the literal terms of the recognizance of special bail, the bail might be considered as definitely fixed by the return of the capias ad satisfaciendum not found. Ac- cordingly it was anciently held that bail could not be SlJud. Act, ch. 25, §20; Comp. 32 Elliott v. Dudley, 8 Mich. 62. Laws 1915, §12998. 33 Moifjan v. .Tones, 117 Mich. 59. 196 Bail § 12 exonerated by a surrender of their principal after such return. At a later time, however, a practice arose where- by the bail were given eight days after the return of process against them to surrender their principal, but this was a privilege which, although universally granted in practice, was nevertheless always regarded as a mat- ter of grace and favor. In Michigan, a similar practice obtains, which, although not expressly provided for, is plainly recognized by statute,'* so that it is regarded in. this state to be a matter of strict right for the special bail to exonerate themselves by a surrender of their principal at any time before the expiration of eight days after the return of process against them, or, in case the suit upon tlip recognizance has been commenced by declaration, before the expiration of eight days after the service of the declaration upon them.'^ § 13. Right of bail to sheriff to surrender, and of sheriff to re-take, defendant in exoneration. When a bail bond has been taken on the arrest of a defendant, the bail therein may surrender their prin- cipal, or lie may surrender himself, in exoneration of his bail, in the same manner, before the same officers, and with the like effect as special bail.^^ This may be done not only before suit has been commenced on the bond, but at any time within eight days after service of process in such a suit.'' The payinent of the costs which have accrued is not essential to a valid surrender.'' And the sheriff, upon discovering that any surety in such bond 34Jud. Act, ch. 25, §18; Comp. 37 Schwarzsehild & Sulzberger Co. Laws 1915, §12996. v. Cryan, 167 Mich. 377; McNeal v. 35Begole V. Stimson, ,39 Midi. Van Duser, 142 Mich. 593. 288; Umphrey v. Emery, 121 Mich. 38 Morgan v. Jones, 117 Mich. 59. 184. 36Jiid. Act, ch. 25, §21; Comp. Laws 1915, § 12999. § 14 Bail 197 is insufficient, may re-take the defendant into custody, which also operates to exonerate the bail.^^ Form of Order Exonerating Bail to Be Indorsed on Bail Piece An order having been heretofore made requiring the within-named plain- tiff to show cause why the bail of the within-named defendant should not be exonerated from their liability, and proof of service of such order upon J. K., attorney for plaintiff, having been produced after hearing alle- gations and proofs of the parties, and no good cause to the contrary appearing, it is hereby ordered and declared that the bail of the within- named defendant be, and they hereby are, discharged from all liability as such bail. Dated, etc. J. S., Circuit Judge (or Circuit Court Commissioner). Form of Order to Show Cause Why Bail Should Not Be Exonerated (Title of court and cause.) On reading and filing the certificate of S. T., sheriff of said county, that C. D., the defendant, has been committed to, and now remains in, his custody by virtue of an order of commitment heretofore made herein, and said certificate having been duly proved by , a subscribing witness .thereto (or, and said certificate having been duly acknowledged by said sheriff), it is hereby ordered that the said plaintiff show cause before me at on the day of , A. D , at o 'clock in the noon, why the bail of the said defendant should not be exonerated from their liability. Dated, etc. J. S., Circuit Judge (or Circuit Court Commissioner). Form of Commitment of Defendant to Be Indorsed Upon Bail Piece Let the within-named defendant be committed to the custody of the sheriff of the County of in exoneration of his within bail. Dated, etc. J. S., Circuit Judge (or Circuit Court Commissioner). § 14. Action on recognizance of special bail. Under the ancient practice, the only remedy against bail was scire facias, and the courts did not permit a 89Jud. Act, eh. 25, §§20 (subd. 5), 21; Comp. Laws 1915, §§12998 (subd. 5), 12999. 198 Bail U4 common action on the recognizance, but, after some fluc- tuations, the right to bring debt was sanctioned, and now, in iMichigan, action upon the recognizance is pro- vided for by statute." No suit can be commenced upon any recognizance of special bail until an execution against the body of the defendant, having at least fifteen days between the teste and the return thereof, has been issued to the sheritf of the county in which the defendant was arrested, and by him returned that the defendant could not be found within his county.*^ Where the sheriff's return was, *'I hereby certify and return that after diligent search and inquiry I am unable to find the within-named defendant (naming him) within my bailiwick, and cannot have his body, as I am within commanded," it was held equivalent to the statutory requirement and, therefore, sufficient as a basis for action upon the recognizance of special bail.*^ But a return of the execution merelv as "unsatisfied" 40 Begole v. Stimson, 39 Mich. 288. 41 Jud. Act, ch. 25, §15; Comp. Laws 1915, § 12993. Notice of judgment against the principal is not a condition preced- ent to an action against special bail. Vandergazelle v. Eodgers, 57 Mich. 132. Where the recognizance is lost, it is improper to substitute a copy in lieu of the original, where the sure- ties are not given notice of the mo- tion. Montgomery v. Henry, 10 Mich. 19. The genuineness of the recogni- zance of special bail may be dis- proved. Elliott V. Green, 10 Mich. 113. See also Spencer v. Fish, 43 Mich. 226. The judgment in the original suit is admissible in evidence as fixing the measure of damages. Wilcox v. Tsmon, 34 Mich. 2fi8. The files in the case in which the recognizance was given and the re- turns on the capias are admissible. Heymes v. Champlin, 52 Mich. 25. The declaration must allege the issuance of execution against the body and a return not found. Prior v. Bodrie, 49 Mich. 200. A recoguizance of special bail is not such a ' ' written instrument ' ' that its execution need not be proved unless denied by afiidavit. Elliott v. Green, 10 Mich. 113. Removal of cause to another court as discharging sureties, see Campan v. Seeley, 30 Mich. 57. Discharge of defendant in bank- ruptcy releases sureties. Bryant v. Kinyon, 127 Mich. 152. 42Liehfelt v. Kopp, 38 Mich. 312 Bailment 199 does not show that the defendant could not be found within the county, and consequently is not sufficient as such a basis.*^ It is the duty of the sheriff to use all reasonable endeavors to execute his writ, notwithstand- ing any directions he may receive from the plaintiff or his attorney.** If it appears, upon the trial of an action upon a recog- nizance of special bail, that an execution against the body of the defendant was not issued as required, or that it was not issued in sufficient time to enable the sheriff to execute it, or that directions were given by the plaintiff or his attorney to prevent the service of the execution, or that any other fraudulent or collusive means were used to prevent the service, the bail will be entitled to a ver- dict in their favor.** When the defendant in a suit dies after the return of the execution against his body and before the expiration of eight days from the return of the process served on his bail, the court will relieve the bail on the same terms as if they had surrendered their principal at the time of his death.** § 15. Jail liberties. Persons in custody of the sheriff by virtue of a sur- render in exoneration of bail are entitled to the liberty of the jail limits on executing a proper bond.*' BAILMENT Cross-Beference: Pledges. A bailee is liable for negligence in caring for the prop- erty which is tlie subject of the bailment,^ as well as for 43 Barnnm V. Waterbuiy, 38 Mich. 46 Jud. Act, ch. 25, §18; Comp. 280. Laws 1915, § 12996. 44 Jud. Act, ch. 25, §16; Comp. 47 Jud. Act, ch. 25, §22; Comp. Laws 1915, §12994. Laws 1915, §13000. See Jail Lib- 45 Jud. Act, ch. 25, §17; Comp. ekties. Laws 1915, § 12995. 1 Roe Smith v. Bailey, 195 Mich. 200 Bailment conversion of it.^ In such a case, the action to recover is ex delicto, unless the tort is waived, and the pleadings are governed by the rules relating to pleading in general.^ Form of Count in Case Against a Bailee for Negligence First count. The plaintiff says: 1. That, Tvhereas, heretofore, to wit, on , at , in considera- tion that the said plaintiff, at the request of the said defendant, had caused to be delivered to him certain goods and chattels, to wit, , of him, the said plaintiff, of great value, to vnt, of the value of dollars, to be taken car© of and safely kept by the said defendant for the said plaintiff, he, the said defendant, then and there undertook and agreed with the said plaintiff that he would take due and proper care of the said goods and chattels for the said plaintiff and would deliver the same to the said plaintiff when he, the said defendant, should be there- unto aftemards requested. 2. That the said defendant was afterwards, to wit, on , at , requested by the said plaintiff to redeliver the said goods and chattels to the said plaintiff. 3. That the said de- fendant did not take due and proper care of the said goods and chattel! for the said plaintiff, nor did, when he was so requested or at any time before or afterwards, redeliver the same to the said plaintiff. 4. That, on the contrary thereof, the said defendant so carelessly and negligently took so little and so bad care of the said goods and chattels, that thereby the said goods and chattels were wholly lost to the said plaintiff. Second count. The plaintiff says: 1. That, also heretofore, to wit, on , at , the said defend- ant, at his request, had the care of certain other goods and chattels, to wit, , of him, the said plaintiff, of great value, to wit, of the valu« of dollars. 2. That the said defendant did not take due and proper ears of the said last-mentioned goods and chattels, to wit, on , at .3. That, thereby, the said last-mentioned goods and chattels were wholly lost to the said plaintiff. Form of Count Against Bailee for Not Re-delivering Goods Bailed The plaintiff says: 1. That, heretofore, to wit, on , at , in consideration that 105; Cadwell v. Peninsular State Beller v. Shultz, 44 Mich. 529. Bank, 195 Mich. 407; Banks v. 2 Kearney v. Glutton, 101 Mich, Strong, 197 Mich. 544; Pesola v. 106; Hubbell v. Blandy, 87 Mich. Forsten, 182 Mich. 94; Edgar v. 209; Donlin v. McQnade, 61 Mich. Farsell, 184 Mich. 522; Fraam v. 275; Hicks v. Lyle, 46 Mich. 488. Grand Raj.ids, etc., R. Co., 161 Mich. 3 Knights v. Piella, 111 Mich. 9 556; Kjiights v. Piella, 111 Mich. 9; (what may be shown under general Hofer v. Hodge, 52 Mich. 372; issue). Bailment 201 the said plaintiff, at the request of the said defendant, delivered certain goods, to wit, , of great value, to wit, of the value of dol- lars, of him, the said plaintiff, to the said defendant, on the terms that the said defendant should safely keep and take care of the said gooda and re-deliver the same to the said plaintiff on request, the said defend- ant undertook and promised the said plaintiff that he would safely keep and take care of the said goods and -would re-deliver them to the said plaintiff upon request. 2. That afterwards, to wit, on , at , the said plaintiff requested the said defendant to re-deliver the said goods to him. 3. That a reasonable time for the re-delivery thereof has elapsed. 4. That the said defendant has not re-delivered the said goods to the said plaintiff, or any part thereof. . 5. That thereby the said plaintiff was prevented from having and using the said goods and the same are lost to the said plaintiff. Form of Count Against the Hirer of a Horse for Carelessness The plaintiff says: 1. That, heretofore, to wit, on , at , in consideration that the said plaintiff, at the request of the said defendant, would let to hire and deliver to the said defendant a certain horse of the said plaintiff of great value, to wit, of the value of dollars, to be used by the said defendant for reward to the said plaintiff upon the terms that the said defendant should use said horse in a careful, moderate and reasonable manner while he would have the same on hire, the said defendant under- took and promised the said plaintiff that he would, while he should have the said horse on hire, use the same in a careful, moderate and reasonable manner. 2. That the said plaintiff did afterwards, to wit, on , at , let to hire and deliver to the said defendant, and the said defendant received from the said plaintiff, the said horse, for the purpose and upon the terms aforesaid. 3. That the said defendant, afterwards, to wit, on , at , while he had the said horse on hire as afore- said, did not use the said horse in a careful, moderate and reasonable man- ner, but carelessly, immoderately and unreasonably used the same. 4. That, by and through the said careless, immoderate and unreasonable use thereof, the said horse became and was greatly lamed and hurt, and re- mained and continued so for a long time, to wit, thence hitherto. 5. That thereby, during all said time the said plaintiff has been deprived of the use of said horse. 6. That also the said horse thereby became and was greatly damaged and deteriorated in value. Form of Count Against the Hirer of a Horse for Going a Different Jour- ney than That for Which the Horse Was Hired, and for Using the Horse Immoderately The plaintiff says: 1. That, heretofore, to wit, on , at , in consideration that the said plaintiff, at the request of the said defendant, would let to hire and deliver to the said defendant a certain horse of the said plaintiff 202 Bailment of great value, to wit, of the value of dollars, upon the terms that the said defendant might use the said horse to go and perform a certain journey, to wit, from to and thence back to aforesaid, for a reasonable reward to the said plaintiff, the said defendant undertook and promised the said plaintiff that, while he should have the said horse on hire for the purpose and upon the terms aforesaid, he would use the said horse in a careful, moderate and reasonable manner. 2. That the said plaintiff did afterwards, to wit, on , at , let to hire and deliver the said horse to the said defendant, and the said defendant received the same from the said plaintiff, for the purpose and upon the terms aforesaid. 3. That the said defendant afterwards, to wit, on , at , while he had the said horse on hire as aforesaid, went and performed a different journey than the journey aforesaid, to wit, a jour- ney from to , and thence back to aforesaid, with the said horse. 4. That, in about going and performing the last afore- said journey, the said defendant carelessly, immoderately and unreason- ably used the said horse. 5. That, by and through going and performing the last-mentioned journey with the said horse and said careless, immoderate and unreasonable use, the said horse became and was greatly lamed and hurt, and so remained and continued for a long time, to wit, thence hitherto. 6. That thereby the said plaintiff has been deprived of the use of said horse during all of said time. 7. That also thereby the said horse be- came and was greatly damaged and deteriorated in value. Form of Count Against a Watchinaker for Not Using Due Care in Repair- ing a Watch, for Not Caring for It, and for Not Returning It on Request The plaintiff says: 1. That before and at the time of the making of the promise and under- taking next hereinafter mentioned, the said defendant was a watchmaker to wit, at 2. That thereupon, to wit, on , at , in consideration that, at tie request of the said defendant, the said plain- tiff delivered to the said defendant a watch of the said plaintiff of great value, to wit, of the value of dollars, and employed the said de- fendant to repair the same as such watchmaker for a reward to the said defendant, the said defendant undertook and promised the said plaintiff that he would use due and proper care, skill and diligence in repairing said watch and would take due and proper care thereof while the same was in his possession and would re-deliver the same to the said plain- tiff on request. 3. That the said defendant did not use due and proper care, skill and diligence in repairing said watch and in keeping it while it was in his possession but carelessly, unskillfully and negligently be- haved himself in the premises since the delivery of the said watch to him. 4. That through said carelessness, unskillfulness and negligence, the said watch became broken, injured and deteriorated in value, to wit, dollars. 5. That the said plaintiff has requested the said defendant to re-deliver the said watch to the said plaintiff, to wit, on , at Bii>L OF Exceptions 20o 6. That a reasonable time has elapsed for the said defendant to re-deliver the same to the said plaintiff. 7. That the said defendant has not re- delivered the same. 8. That thereby the said plaintiff has been deprived of the use and value of the said watch. BANKRUPTCY See Fraudulent Debtors. BANKS See Executions (levy on sliares of stock); Garnishment (of deposits). BAR See Attorneys; Limitation of Actions; Judgments. BEASTS See Animals. BENCH WARRANT A bench warrant is a process issued by the court it- self, or from the bench, for the attachment or arrest of a person, either in case of contempt, or where an indict- ment has been found against him.^ BIDS See Executions. BILL OF COSTS See Costs. BILL OF EXCEPTIONS § 1. Function of bill. § 2. Theory and practice relative to exceptions. § 3. Necessity. § 4. Time for settling bill. § 5. Extension of time. § 6. Contents of bill. S 7. Rulings after verdict. 1 Oxford V. Berry, 204 Mich. 197. 204 Bill of Exceptions § 1 § 8. Practice in settling Assignments of error. § 9. Settlement where trial judge dead or otherwise unavailable. § 10. Furnishing stenograjjher 's minutes. § 11. Disposition of bill when settled. § 12. Stay of proceedings pending issuance of writ of error. § 13. Conclusiveness of bill as to its accuracy. Cross-References: Case Made; Exceptions; Error, Writ of; Man- damus; Assignments of Error. § 1. Function of bill. When a cause is removed from an inferior to an ap- pellate court, the record in the case is the object, and the only object, of investigation, and the purpose, and only purpose, of the investigation is to discover whether the inferior court, in the proceedings had in that court, has erred in matter of law to the j)rejudice of the appel- lant. The ordinary record in a cause consists of the process, the pleadings, the verdict and the judgment, but does not include the evidence adduced on the trial of the cause or the arguments of counsel or the charge of the court to the jury. But very often, and more frequently than otherwise, the errors committed or alleged to have been committed by the court in arriving at the judg- ment occur at the trial, either in admitting or rejecting a juror, in permitting or refusing to permit a witness to testify, in admitting or rejecting evidence, or in instruct- ing or refusing to instruct the jury, and the like, all of which do not appear at all upon the record, and hence are not open to review when the cause is taken to the appellate court upon the ordinary record. It is the func- tion of the bill of exceptions to place the rulings, de- cisions or action of the court in these matters upon the record, so that they will form a part of it and be subject to the consideration of the appellate tribunal. The bill of exceptions is a device which was intro- duced into the practice of England by the statute of Westminster II, and has been in use in the courts of § 2 Bill of Exceptions 205 common law jurisdiction from that remote day to the present time. § 2. Theory and practice relative to exceptions. Under the former practice in this state, as well as in most other jurisdictions, it was necessary for a party who intended to complain of the rulings and action of the court in the progress of the trial on the matters just mentioned to take exceptions thereto. An exception was required because, when no exception was taken, it was but natural for the court and the opposite party to conclude that the party against whom the ruling Avas made intended to acquiesce, and the attention of the judge was not, therefore, so strongly turned to the ques- tion and he would be less likely to re-consider it or hear further argument upon it than if an exception were taken, and, moreover, the adverse party, if an exception were taken, would have the option of receding from his position rather than to hazard the delay and expense of having the case reviewed in an appellate court,^ or he might remedy the alleged error by introducing other evi- dence or taking some other affirmative action. But now, by statutory provision, it is not necessary in the trial of any action or proceeding in any court of rec- ord to except to any ruling or action of the court, if an objection thereto bo duly made, but an exception will be deemed to follow as a matter of course, nor is it necessary to except in any case to the charge of the court to the jury or to the refusal of the court to charge as requested, so that any party who considers himself aggrieved by any such ruling, action, charge or refusal to charge may as- sign errors the same as if an exception had been actually taken.^ However, exception must be taken to a refusal to 1 Turner V. City of Grand Eapids, 2Juil. Act, eli. 18, §§57, GO; 20 Mich. .'590. Comp. Laws 1915, SS 12029, 12();i2; 206 Bill of Exceptions § 2 grant a motion for a new trial if error is to be assigned on the refusal.' So, also, exceptions should be filed to a spe- cial finding of facts ; * otherwise the only question which can be considered by the appellate court is whether the findings support the judgment.^ It is the office of a bill of exceptions to present the spe- cific points involved upon the record, and a bill of excep- tions is, therefore, a bill or statement of the rulings, de- cisions or doings as to which a party has the benefit of an exception. §3. Necessity. Where a review on writ of error is desired, a bill of ex- ceptions is necessary to review rulings as to evidence, alleged errors in the charge or refusal to charge, ruling upon alleged inconsistency between a general verdict and special findings, and generally the refusal of a motion for a new trial. Where the trial was without a jury a bill is necessary to review rulings on evidence, or a claim that the undisputed evidence calls for an additional finding or Comp. Laws 1915, § 14568; Eohrner 5 Rice v. City of Muskegon, 150 V. Labo, 191 Mich. 55. See also Mich. 679; Peabody v. McAvoy, 23 Exceptions. Mich. 526; Haines v. Saviers, 93 3Jud. Act, eh. 18, §63; Comp. Mich. 440; Griffin v. Johnson, 37 Laws 1915, §12635; Hotchkiss v. Mich. 87; Plummer v. Abbey, 39 Weinmann-Matthews Co., 175 Mich. Mich. 167; Green v. Gill, 47 Mich. 652; Eeynick v. Allington & Curtis 86; Irwin v. Schlief, 48 Mich. 237 Mfg. Co., 179 Mich. 630; Comstock Wertin v. Crocker, 47 Mich. 642 V. Taggart, 156 Mich. 47; People Cragin v. Gardner, 64 Mich. 399 V. Sartori, 168 Mich. 308; Knop v. Keystone Lumber & Salt Mfg. Co. National, etc., Ins. Co., 101 Mich. v. Jonkinson, 69 Mich. 220; Dodge 359; Culver v. South Haven, etc., v. Kennedy, 93 Mich. 547; Bar- R. Co., 144 Mich. 254; In re Ben- num v. Andrews, 106 Mich. 81; der's Estate, 159 Mich. 108; Pearl Hubbard v. Garner, 115 Mich. 406; V. Township of Benton, 136 Mich. Gemberling v. Lazarus, 100 Mich. 697; Moffet v. Sebastian, 149 Mich. 324; Weist v. Morlock, 116 Mich. 451; Heikkala V. Isaacson, 178 Mich. 606; Butts v. Davis, 50 Mich. 310. 176. 4 Jud. Act, ch. 18, §15; Comp. Laws 1915, § 12587. § 5 Bill of Exceptions 207 that the testimony does not warrant the actual findings. In short, a bill is necessary where anything outside the record is sought to be reviewed by writ of error.^ But a bill is not necessary for a decision of the question whether the findings of fact support the judgments A bill is necessary to bring up for review rulings admitting or excluding evidence.® Facts which should be presented by bills of exceptions, will not be noticed when appearing in any other form. Thus the recitals in an order denying a motion for a new trial, cannot be looked to as supply- ing the place of a bill of exceptions.® § 4. Time for settling bill. By rule of court, a party is always entitled to not less than twenty days after the entry of judgment for the set- tlement of a bill of exceptions.^" In cases where judg- ment has been entered in vacation under the statute,^^ notice of entry is an essential accompaniment, and the time for settling a bill of exceptions begins to run from the time of such notice." And where a motion for a new trial has been made, the time for settling a bill of excep- tions runs from the denial of such motion.^' § 5. Extension of time. The Judicature Act provides that ''the court or the cir- cuit judge at chambers may allow such time as shall be 6 City of riint v. Genesee Circuit Time begins to run from entry of Judge, 146 Mieh. 439, appeal from judgment rather than from entry of probate court. verdict. Eayl v. Wayne Circuit 7 Hubbard v. Garner, 115 Mich. Judge, 91 Mich. 4. 406. llJud. Act, eh. 18, §14; Comp. STrudo V. Anderson, 10 Mich. Laws 1915, §12586. ;i57. 12 People v. Wilson, 12 Mich. 25; 9 Monnier v. Mizner, 17 Mich. McClung v. McCTung, 1^59 Mich. 55. 271. 18 Harper v. Wayne Circuit Judge, lOCir. Ct. Rule 66, §1; Lake 155 Mich. 54.T ; Kaiser v. Wayne Siiore, etc., E. Co. v. Branch Circuit Circuit Judge, 162 Mich. 247. Judge, 116 Mich. 399. 208 Bill of Exceptions § 5 deemed reasonable to settle such exceptions and reduce the same to form: Provided, That no more than twenty- days shall be allowed for such purpose, except upon the production of a certificate from the stenographer of said circuit stating that the party desiring such extension has ordered a transcript of the testimony necessary for the preparation of said bill of exceptions,' and that the same will be furnished as soon as possible by said stenographer. If a motion for a new trial is made within said twenty days, and such motion be denied the time to settle a bill of exceptions may be extended twenty days from the date of such denial without the production of such cer- tificate."" By rule of court, it is provided as follows: "Subject to the limitations prescribed by statute, and upon such terms and conditions as shall be deemed just, the court may grant such further reasonable time as shall be deemed proper for a settlement of a bill of exceptions or case, and may extend such time when proper. But no more than sixty days further time shall be granted for that purpose, except for good cause shown by affidavit on special motion after notice to the adverse party, or on the written stipulation of the parties. "^^ There has been more or less confusion as to the proper construction of the statute and rule of court as to exten- sion of time for the settlement of a bill of exceptions which is not entirely cleared away by a number of recent decisions on the subject. It is settled, however, that the requirement as to the stenographer's certificate applies only to the first extension beyond the twenty-day period. ■^^ Although eighty days have elapsed since the entry of judgment, and during such period no extension of 14Jud. Act, ch. 18, §62; Comp. 16 Brevoort v. Wayne Circuit Law8 1915, § 12634. .Judge, 203 Mich. 388. 16 Cir. Ct. Eule 66, § 2. §5 Bill of Exceptions 209 time lias been granted, the court has authority to order an extension on cause shown ^' and the production of the certificate of the stenographer," but such an order can- not be granted ex parte and without cause shown more than eighty days after entry of judgment,^^ nor beyond eighty days.^° The notice and showing may, however, be waived by the opposite party either by stipuhition in writing or in open court. ^^ Without a written stipuhi- tion, the judge cannot be required, as matter of course, to extend the time beyond the twenty days,^^ but with one he can be.^^ The matter of granting an extension of time is within the sound discretion of the trial court and it must be clear that his discretion has been abused before his determination of it will be overruled.^* The right to extend the time is not at all dependent upon whether a bond to stay proceedings has been given. ^^ 17 Eoach V. Wayne Circuit Judge, 117 Mich. 242. ISJud. Act, eh. 18, §62; Comp. Laws 1915, §12634. 19 Singer v. Livingston Circuit Judge, 117 Mich. 318; Burgess v. Wayne Circuit Judge, 171 Mich. 583; Hayes v. Ionia Circuit Judge, 125 Mich. 277; Yerkes v. Antrim Circuit Judge, 200 Mich. 443. Affidavit is necessary. Northern Assur. Co. V, Houghton Circuit Judge, 169 Mich. 238. 20 Burgess v. Wayne Circuit Judge, 171 Mich. 583; Roach v. Wayne Circuit Judge, 117 Mich. 242; Kaiser v. Wayne Circuit Judge, 162 Mich. 247; Singer v. Livingston Circuit Judge, 117 Mich. 318; Pettinger v. Montmorency Cir- cuit Judge, 164 Mich. 463. 21 Wilkins v. Genesee Circuit Judge, 125 Mich. 628; Culver v. Van Buren Circuit Judge, 141 Mich. 644; Burgess v. Wayne Circuit Judge, 171 Mich. 583. 1 Abbott— 14 22 Lake Shore, etc., E. Co. v. Branch Circuit Judge, 116 Mich. 399. 23 People V. Kalamazoo Circuit Judge, 39 Mich. 123. 24 Gamble v. Oceana Circuit Judge, 204 Mich. 410; Smilansky v. Wayne Circuit Judge, 186 Mich. 463 ; Stockwell v . Eaton Circuit Judge, 172 Mich. 166; Roberge v. DeLisle, 158 Mich. 16; Carrier v. Emmet Circuit Judge, 155 Mich. 344; Lake Shore, etc., R. Co. v. Chambers, 89 Mich. 5; Fitzgibhons v. Ionia Circuit Judge, 152 Mich. 209; Lavigne v. Wayne Circuit Judge, 193 Mich. 416; People v. Manistee Circuit Judge, 194 Mich. 527. However, mandamus lies in case of abuse of discretion. People v. Man- istee Circuit Judge, 194 Mich. 527. 25 Marshall v. Saginaw Circuit .Judge, 156 Mich. 289; Harper v. Wayne Circuit .Judge, 155 Mich. 543. 210 Bill of Exceptions § 5 A second or further extension of time may be granted, for cause shown, after notice, in the discretion of the judge, without any stenographer's certificate,^^ and al- though the motion is not made until after the extension already granted has expired.^' However, under some decisions, it seems that the judge has no power to grant a further extension of time where the transcript has ac- tually been furnished for a long time and the application is not made until several months after the expiration of the prior extension of time.^' What constitutes ''good cause" for extending the time is not susceptible of defi- nition,'^® although it is clear that ''good cause" cannot be confined exclusively to delays in the furnishing of the stenographer's transcript.^® Form of Certificate from Stenographer of Order for Transcript of Testimony (Title of court and cause.) I, G. H., stenographer of said court, do hereby certify that the said defendant (or, plaintiff), on the day of , A. D , ordered a transcript of the testimony necessary for the preparation of a bill of exceptions in this cause and that said transcript will be fur- nished by me as soon as possible. § 6. Contents of bill. A bill of exceptions should contain only such parts of the testimony and only such parts of the charge as are necessary to present the questions of law raised by the assignments of error, and should contain such other mat- ters as by rule or statute are required to be set forth 26 Brevooit v. Wayne Circuit Hardware Co. v. Wayne Circuit Judge, 203 Mich. :i88. Judge, 197 Mich. 374. 27 Brevoort v. Wayne Circuit 29 See Brevoort v. Wayne Circuit Judge, 203 Mich. 388; Kaiser v. Judge, 203 Mich. 388, where change Wayne Circuit Judge, 162 Mich. 247, of attorneys held good ground; La- overruling on rehearing a contrary vigne v. Wayne Circuit Judge, 193 rule; Pettinger v. Montmorency Cir- Mich. 416, illness of attorneys. cuit Judge, 164 Mich. 463. 80 Brevoort v. Wayne Circuit 28 Gamble v. Oceana Circuit Judge, 203 Mich. 388. .Judge, 204 Mich. 410; Boyne City § 6 Bill of Exceptions • 211 therein.^^ The testimony should be set out in narrative form unless the trial court determines it necessary to a full understanding of the questions involved that it be set out in full or in part by question and answer, in which case the trial court must so certify in writing.^^ The bill of exceptions should exhibit the points of the decision or action of the court which the party intends to rely upon, but it should set forth only so much of the testimony as is necessary fairly to present the questions of law involved, embodying it, when possible, in a con- densed narrative form.^' It should not constitute a nar- rative of all the evidence and proceedings on the trial; '* still less should it consist of a verbatim copy of the sten- ographer's minutes with the addition of the usual head- ing and conclusion.^^ It is the duty of a party preparing a bill of exceptions to make it both concise and correct in its allegations, but, where there is room for difference of opinion concerning the tendency of testimony, it may sometimes be necessary to give the testimony itself on the disputed point.^® So, also, when the question is whether the trial court should have taken the case from the jury, all the testimony may be incorporated in the bill of exceptions.^' If it does not appear that a bill of exceptions contains all the testimony in substance, it will be presumed that testimony was introduced to warrant the verdict,^' or 31 Cir. Ct. Rule 66, § 4. Circuit Judge, 32 Mich. 259 ; Snyder 32 Cir. Ct. Rule 66, § 8. v. Willey, 33 Mich. 483 ; Cole v. 83 Welch V. Palmer, 85 Mich. 310; Ingham Circuit Judge, 77 Mich. 619; Cole V. Ingham Circuit Judge, 77 Welch v. Palmer, 85 Mich. 310; Mich. 619; Continental Ins. Co, v. Pease v. Munro, 83 Mich. 475; Rico Ilorton, 28 Mich. 173; Smith v. v. Rice, 50 Mich. 448. Barstow, 2 Doug. 155; Maybee v. 36 Whitaker v. Kilroy, 70 Mich. Trogont, 47 Mich. 495. 635; People v. La Miinion, 64 Mich. 34 Turner v. City of Grand Rap- 709. ids, 2U Mich. 390. 37 Finch v. Karste, 97 Mich. 20. 35 Frankenberg v. First Nat. 38 Manning v. Bresnahan, 63 Bank, 33 Mich. 46; People v. Wayne Mich. 584; Taff v. Hosmer, 14 Mich. 212 Bill of Exceptions §6 the charge of the court to the jiiry,^^ or the finding of the jury in answer to special questions submitted to them.*" But where the bill, although neither giving nor expressly purporting to give the testimony in full, shows a connected narrative of the testimony of each witness, and closes with the statement, ''and thereupon the de- fendants rested their case," it will be presumed to em- brace all the evidence bearing on the questions raised.*^ The certificate need not expressly state that all the evidence is contained therein.*^ Where the exception relied on is the refusal to direct a verdict when plaintiff rested, it is proper to refuse to permit the bill of excep- tions to contain only the evidence given on behalf of plaintiff, where defendant introduced evidence.*^ Where the error assigned relates to the ruling on a motion to direct a verdict it is reviewable if "substantially" all the evidence is set out.** But a certificate that the bill 309; Gass v. Van Wagoner, 63 Mich. 610; Borden v. Clark, 26 Mich. 410; Daniels v. Clegg, 28 Mich. 32 ; Berry V. Monroe, 57 Mich. 187 ; Grosvenor V. Ellis, 44 Mich. 452; Barnes v. Michigan Air Line E. Co., 54 Mich. 243; Rolfe v. Dudley, 58 Mich. 208; Young V. Taylor, 36 Mich. 25; Freese v. Arnold, 99 Mich. 13; Boyer V. Soules, 105 Mich. 31. 39 Wilson v. Bowen, 64 Mich. 134; Curley v. Wyman, 34 Mich. 353; Greenlee v. Lowing, 35 Mich. 63; Wood V. Lake Shore, etc., R. Co., 49 Mich. 370; Cummings v. People, 42 Mich. 142; Botsford v. Chase, 108 Mich. 432; Westra v. Westra's Estate, 101 Mich. 526; Saunders v. Closs, 117 Mich. 130; Boyer v. Soules, 105 Mich. 31; Hoffman v. Pack, 114 Mich. 1. 40 Stevens v. Rose, 69 Mich. 259. 41 Ironwood Store Co. v. Harri- son, 75 Mich. 197; Carter v. Snyder, 27 Mich. 484. See also Hitchcock V. Burgett, 38 Mich. 501; Hatch v. Reid, 112 Mich. 430; Godkin v. Obenaucr, 113 Mich. 93; Connor v. Lake Shore, etc., R. Co., 158 Mich. 688; Atlas Mining Co. v. Johnston, 23 Mich. 36; Shaw v. Hoffman, 25 Mich. 162; Hitchcock v. Burgett, 38 Mich. 501. 42 See Godkin v. Obenauer, 113 Mich. 93; Hatch v. Reid, 112 Mich. 430. Sufficient v\here ])ill is certified to contain the subject of all testimony given on the trial affecting the ex- ceptions noted, although testimony is in abbreviated narrative form. Farrell v. Danbury, 141 Mich. 81. 43 Morgan v. Kent Circuit Judge, 150 Mich. 64. 44 Goldsmith v. Liehtenberg, 139 Mich. 163; Burton v. Variety Iron Works, 126 Mich. 140. § 6 Bill of Exceptions 213 contains all of the evidence is not conclusive where the record shows the contrary,*^ and is improper when not strictly true. Error of the trial court in refusing to re- ceive evidence offered should appear affirmatively from the bill of exceptions.*^ Where any documentary evi- dence is excluded by the trial court, or a portion is ad- mitted and the claim is that the whole should have been introduced, such evidence not introduced or excluded should be made a part of the bill of exceptions, so that the appellate court can judge of its admissibility.*' Error will not be presumed.*^ The arguments of counsel on objections to the admis- sion of evidence should form no part of a bill of excep- tions." The bill should show the precise theory of the case and. the issues should not be confused.^" If a review is desired in regard thereto, instructions, given or re- fused,"^ affidavits relating to motions,^^ depositions,^^ mo- tions to strike out pleadings or parts thereof and the rulings thereon," etc., must be included in the bill. Find- ings of fact by the court are part of the record, and hence need not be included.^^ If an exception is necessary to 46 See People v. Slayton, 123 Mich. 61 Wagar v. Peak, 22 Mich. 368 397. (holding that refused requests to 46 American Ins. Co. v. Woodruff, charge are not a part of the record 34 Mich. 6. proper) ; Dennison v. Van Wormer, 47 Reynolds v. Continental Ins. 107 Mich. 461. Co., 36 Mich. 131; People v, 62 Leonard v. Woodward, 34 Mich. Coughlin, 67 Mich. 466; State Ins. 514; Noble v. Bourke, 44 Mich. 193. Co, V. Reynolds, 35 Mich. 304. 63 Harvey v. McAdanis, 32 Mich. 48 State Ins. Co. v. Reynolds, 35 472. Mich, 304; Sloman v. Mercantile, 64 People v. Washtenaw Circuit etc., Co,, 112 Mich. 258; Rodman v. Judges, 1 Doug. 434, 449, Clark, 81 Mich. 466; Turnbull v. 66 Delashman v. Berry, 20 Mich, Richardson, 69 Mich. 400. 292 ; Peek v. City Nat. Bank of 49 Welch V. Palmer, 85 Mich. 310. Grand Rapids, 51 Mich. 353. 60 Maybee v, Tregent, 47 Midi, 495. 214 Bill of Exceptions § 6 obtain a review,^^ the exception must appear in the bill or it will not bo considered." § 7. Rulings after verdict. As a general rule, formerly without exception, a bill of exceptions in a civil case could include no ruling made after verdict.^^ Thus, questions relating to the taxation of costs cannot be so included.^® So also the fact of payment of the judgment cannot be properly stated in a bill of exceptions, and, if stated, cannot be considered as any part of the bill or of the record in the case.^** And the refusal of the court to grant a motion for a new trial could formerly not be included in the bill; ^^ but it is now provided by statute that, in all cases taken to the su- preme court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the case may incorporate in the bill of exceptions a record of all proceedings had on the motion for a new trial, including the reasons given by the trial judge in refusing to grant a new trial, and exceptions may be taken and error assigned on the de- cision of the circuit judge in refusing the motion, and 66 See § 2, ante, and see Excep- general will not prevail. Wallace v. TIONS. Finch, 24 Mich. 255. 67 Comstock V. Smith, 26 Mich. But where the record shows an 306; WUkinson v. Earl, 39 Mich. objection taken on the trial in the 626; MacLean v. Scripps, 52 Mich. court below to the admission of evi- 214; Gillett v. Burns, 131 Mich. denee which was overruled, the court 616; Pearl v. Benton Tp., 136 Mich. will consider the objection, although 697; Stauber v. Ellett, 140 Mich. the bill did not show an exception to 271; Cotherman v. Cotherman's Es- the ruling; and wUl presume from tate, 58 Mich. 465. the signing of the bill of exceptions Where a biU of exceptions states tliat the ruling was duly excepted to. that it was agreed upon by the at- McBride v. Cicotte, 4 Mich. 478. torneys of the respective parties, and 58 Churchill v. Emeriek, 56 Mich, it does not appear that any claim 536. was made that the exceptions were 69 Stebbins v. Field, 43 Mich. 333. too general to be incorporated into 60 Watson v. Kane, 31 Mich. 61. the record, an objection on the argu- 61 Cuddy v. Major, 12 Mich. 368; ment that the exceptions were too Johr v. People, 26 Mich. 427. § 7 Bill of Exceptions 215 the same will be reviewed by the supreme court ; ^^ but the question will not be considered unless the bill of ex- ceptions embraces the reasons given by the trial judge for the refusal,^^ provided a timely request to file such reasons was made,^* although if the request is made and the court fails to comply therewith it is held that error may be assigned on the refusal to grant a new trial where duly excepted to.^^ Form of Bill of Exceptions (Title of court and cause.) The issue in this cause came on to be tried by a jury in said court before the Honorable J. S., circuit judge, at a session of said court held on the day of , A. D , at which day there came as well the said plaintiff as the said defendant, by their respective attorneys. The plaintiff, to maintain the issue on his part, called aa a witness W. S., who testified as follows: (Here set forth such parts of the testi- mony as are necessary to present the questions of law raised by the exceptions and assignments of error. The testimony should be set forth in narrative form, unless the trial court determines it necessary to a full understanding of the questions of law that it be set out, in whole or in 62 Jud. Act, ch. 18, § 63 ; Comp. 63 MeEae v. Garth Lumber Co., Laws 1915, §12635; Gemberling v. 102 Mich. 488; Finley v. Widner, Lazarus, 100 Mich. 324; McRae v. 116 Mich, 679; Griffin v. McKnight, Garth Lumber Co., 102 Mich. 488; 116 Mich. 468; McEae v. Garth Brassel v. Minneapolis, etc., R. Co., Lumber Co., 102 Mich. 488; Pearl v. 101 Mich. 7; Knop v. National Fire Benton Tp., 136 Mich. 697; In re Ins. Co., 101 Mich. 359; People v. Meeker's Estate, 169 Mich. 303; Tice, 115 Mich. 219; Finley v. Wid- Stevenson v. Detroit, etc., R. Co., 118 ner, 116 Mich. 679; Feige v. Burt, Mich. 651; Wilbur v. Michigan Cent. 124 Mich. 565; Dyer v. People's Ice E. Co., 145 Mich. 344; In re Keene's Co., 188 Mich. 203. Estate, 189 Mich. 98; Gordon v. Exception to the order denying a Drake, 193 Mich. 64; Love v. De- new trial must be in a bill of excep- troit, etc., E. Co., 170 Mich. 1; Ben- tions, and it is not sufficient that the nett v. Denton, 194 Mich. 610; exception appears in the record. In Mahder v. Wax, 192 Mich. 479; re Keene's Estate, 189 Mich. 98. Clark v. Ona way- Alpena Tel. Co., In a late case affidavits for a new 196 Mich. 168; Hampton v. Van trial, although not made a part of Nest 's Estate, 196 Mich. 404. the bill of exceptions, were consid- 64 Bennett v. Denton, 194 Mich, ercd where extracts tlierefrom were 610. printed in the record. Hampton v. 66 Clark v. Onaway-Aliiena Tel. Van Nest's Estate, 196 Mich. 404. Co., 196 Midi. 168, 182. 216 Bill of Exceptions § 7 part, by question and answer; in which case, the trial court must so certify in writing. Show, also, the objections taken, the ground thereof and the decision of the court thereon.) Thereupon the plaintiff rested his case, and the said defendant, to maintain the isswe on his part, called K. M. as a witness, who testified as follows: (Here set forth such parts of the testimony as are neces- sary, as above explained, with the objections taken, the grounds thereof and the decision of the court thereon.) Thereupon the defendant rested his case, and the plaintiff called W. R. as a witness, who testified as follows: (Here set forth such parts of the testimony as are necessary, as above explained, with the objections taken thereon, the grounds thereof and the decision of the court thereon.) Thereupon both parties rested. The plaintiff then requested the court to instruct the jury as follows: 1. (Insert the request as refused.) Which said request the court then and there refused to give. And thereupon the court charged the jury as follows: (Set forth the charge. It is not necessary to set forth any exception or exceptions to the charge, as error may be assigned upon the charge the same as if exception had been made to the charge.) And the said jury thereupon retired to consider their verdict, and, after being absent for a time, returned into court and rendered verdict for the plaintiff and against the defendant. (State the substance of the verdict.) And thereupon the said defendant moved the court to set aside the said verdict and grant a new trial, for the following reasons: (Insert the reasons;) but the court refused to grant said new trial, giving for such refusal the following reasons: (Insert the reasons.) To which refusal to grant said new trial, the said defendant duly excepted. And thereupon the court entered judgment on said verdict. (State the substance of the judgment.) And because the foregoing matters and things do not appear of record in said cause, I, the circuit judge aforesaid, in pursuance of the statute and rules in such case made and provided, have settled this bill of excep- tions, and do hereby certify that I have determined it necessary to a full understanding of the questions of law that the testimony be set out by questions and answers to the extent to which the same has been done in this bill, and that the assignments of error hereto annexed accompanied this bill at the time of its settlement. Dated, etc. J. S. Circuit Judge. § 8. Practice in settling Assignments of error. A party desiring the settlement of a bill of exceptions should prepare a proposed bill with the requisites of construction which have been explained. A copy of the I 6 Bill of Exceptions 217 proposed bill of exceptions, together with a notice when and where the same will be presented for settlement, must be served on the opposite party at least four days before the time for such settlement. ^^ There must accompany every bill of exceptions at the time of its service and at the time of its settlement a de- tailed assignment of all the alleged errors upon which the appellant proposes to rely. No bill of exceptions can regularly be signed unless accompanied by such assign- ment of errors, and no error will be considered by the supreme court which is not a part of such assignment.^'' If the appellant attaches to the bill of exceptions, but separate from the bill, copies or a fair abstract of each material pleading and document, order, verdict or judg- ment filed or recorded in the case, all arranged in chron- ological order, those made or filed before the judgment appearing before the statement relating to the testimony, and those made or entered after the trial appearing after the statements made of the testimony, such copies or abstract may be settled and certified by the judge with the bill of exceptions, and, with the bill of exceptions, will be the record of the case for the supreme court, so that the usual transcript of the record in the trial court may be dispensed with, unless the supreme court, by order, should require further copies or abstracts of pleadings or proceedings or the originals to be returned to it.«8 Amendments to the proposed bill of exceptions may be proposed in writing by the opposite party, and all con- troversies respecting the same must be detennined by 66 Cir. Ct. Rule 66, § 9. standing tlie verdict, to review error 67 Cir. Ct. Rule 66, §§5, 6; Pub. against the party in which favor Acts 1915, No. 217; Comp. Laws judgment is entered is provided for 1915, §14568; Roush v. Darmstaet- by Cir. Ct. Rule 66, §6. ter, 113 Mich. 535. Sufficiency of, see Error, Writ of. Necessity for assignment of errors 68 Cir. Ct. Rule 68. where judgment entered, notwith- 218 Bill of Exceptions § 8 tlu' trial judg'e according to the facts, at such time and place as he appoints.^® The proper practice is to take the proposed bill of exceptions as the framework of the bill to be settled, and modify it by such changes and amendments as the facts warrant.'" It is the duty of a judge in settling the bill of excep- tions to see that it complies with the requirements of a proper bill both as to conciseness and other matters of form and also as to accuracy and truth. If the truth of the case be fairly stated in the proposed bill, it is the duty of the judge to sign it, and he may be compelled to do so by the court to which any writ of error may by law be brought, upon the judgment rendered in the cause, or which has authority to decide upon such exceptions when returned by him.''^^ Although a trial judge will not be compelled to sign a bill of exceptions which he avers to be inaccurate, he should, upon the basis of the bill presented and the amendments offered, sign such a bill of exceptions as he deems proper."^* A judge will not, however, be compelled to settle a bill of exceptions after the time therefor has expired, unless there is a stipula- tion between the parties extending the time,''^^ which the judge has no right to disregard."^* But a party cannot be deprived of his right to have a bill of exceptions set- tled and signed, even though the time allowed therefor has expired, where the failure to settle the bill was 69Cir. Ct. Rule 66, §9. TlJud. Act, ch. 18, §64; Comp. 70 People V. Wayne Circuit Judge, Laws 1915, § 12636. 32 Mich. 259. 72 Pope v. Judge of Recorder's If, in settling the bill, the circuit Court, 107 Mich. 25. See Corby v. judge omits matter which counsel Wayne Circuit Judge, 186 Mich. 533. for appellant l>elieves to be material, 73 Lake Shore, etc., R. Co. v. a motion for amendment should be Branch Circuit Judge, 116 Mich. 399. made in the lower court, and if such 74 People v. Kalamazoo Circuit motion is denied mandamus may be Judge, 39 Mich. 123; Hartley v resorted to. Appellant cannot move Miller, 164 Mich. 47. in the supreme court to remand the record for correction. Mclntire v. Carr, 168 Mich. 462. § 8 Bill of Exceptions 219 caused by the inaction of the judge or other fact not the fault of the party, and where such party has presented his bill in due time.'''^ Although the parties may by stipulation extend the time for settling a bill of exceptions, they cannot by that means dispense with the signing of the bill by the judge. The signature is essentialJ^ Form of Notice of Settlement of Bill of Exceptions (Title of court and cause.) Sir:— You will please to take notice that the annexed is a true copy of the plaintiff's proposed bill of exceptions and the plaintiff's assignments of error in the above-entitled cause, and that on the day of , A. D , at the hour of o'clock in the noon, at the court house, in the of , in the county of , and state of Michigan, the said bill of exceptions will be settled by the Honorable J. S., circuit judge, who tried said cause, at which time and place you may propose such amendments to said bill as you may desire. Dated, etc. J. K., Attorney for Plaintiff. To K. L., Attorney for Defendant. Form of Assignments of Error to Accompany Bill of Exceptions (Title of court and cause.) Comes now the said plaintiff (or, defendant, as the case may be), by J. K., his attorney, and says that, in the record and proceedings in this cause, there was manifest error in this, that is to say : 1. The court erred in (state the error). 2. The court erred in (state the error). Therefore, and for the errors aforesaid, the said plaintiff (or, defend- ant, as the case may be) avers that the judgment rendered in said cause ought to be set aside, vacated and altogether held for naught. J. K., Attorney for Plaintiff (or. Defend- ant, as the case may be). 76 People V. Van Buien Circuit 76 Lynch v. Craney, 95 Mich. 199. Judge, 41 Mich. 725; People v. See also Wessels v. Beeman, 66 Judge of Superior Court, 41 Mich. Mich. 343 ; Niagara Fire Ins. Co. 726; People v. Littlejohn, 11 Mich. v. De Graff, 12 Mich. 10. 60; City of Detroit v. Blacke])y, 20 Mich. 219. 220 Bill of Exceptions § 9 § 9. Settlement where trial judge dead or otherwise unavailable. Wlionover a judi>e who has heard a cause or proceed- ing has died, resigned or vacated the office before the expiration of his term, or is unable to settle a bill of ex- ceptions by reason of sickness, absence from the state or for any other cause whatsoever within the time pre- scribed for settling it, the bill of exceptions may be set- tled by any other judge of the same circuit, or, if there is no other judge or in case of his absence or disability from any cause, then such bill of exceptions may be set- tled by the successor of the trial judge, if not disquali- fied, or by any circuit judge.''^'' And when there is an official stenographer of the trial court who has taken full minutes of the testimony, exceptions and charges of the judge at the trial, such minutes are prima facie evidence of the testimony given, exceptions taken and the charge of the court, and other proceedings on the trial.'' The bill of exceptions must have the sanction of the judge. It is not sufficient to have it stipulated by the parties.''* A bill of exceptions cannot be settled by a trial judge after ho has retired from office, and authority to do so cannot be conferred upon him by stipulation between the respective parties.'" Where a party has been de- prived of the benefit of his exceptions by causes beyond his control, he will be granted a new trial. '^ § 10. Furnishing stenographer's minutes. The party desiring the settlement of a bill of excep- tions must furnish to the adverse party such portion of 77 ar. Ct. Eule 66, § 12 ; Jud. Act, 80 Hill v. Hill, 112 Mich. 633; ch. 18, §64; Comp. Laws 1915, Crittenden v. Sehermerhorn, 35 § 12636. Mich. 370. But see Tefft v. Wind- 78 Jud. Act, ch. 18, §64; Comp. sor, 17 Mich. 425. Laws 1915, § 12636; Hill v. Hill, 112 81 Crittenden v. Sehermerhorn, 35 Mich. 633. Mich. 370; People v. Judge of Su- 79 Lynch v. Craney, 95 Mich. 199; perior Court, 41 Mich. 726; Hill v. Hill V. Hill, 112 Mich. 633. Hill, 112 Mich. 633. § 11 Bill op Exceptions 221 the stenographer's minutes as has been procured, to- gether with the original copies of such exhibits, papers, writings or documents as he incorporates in the pro- posed bill, for inspection and use by such adverse party in the preparation of amendments to the proposed bill of exceptions, and may also be required to furnish a copy of such further portions of the stenographer's minutes as are deemed necessary by the court to a settlement of the bill of exceptions. ^^ But the parties or their attor- neys may agree upon a statement of facts without pro- curing the stenographer's minutes of the testimony taken at the trial and, if satisfactory to the trial judge or other judge with authority in the premises, such state- ment of facts may be signed and certified and will then stand as the bill of exceptions in the cause. ^^ § 11. Disposition of biU when settled. The bill of exceptions must be signed by the trial judge" and delivered to the proposed appellant, who must file it and the assignments of error with the clerk of the court within ten days thereafter, or, in default thereof, will be deemed to have waived the exceptions, unless further time be allowed therefor by the trial judge on special motion for cause shown. ^* Papers not incor- porated in a bill of exceptions as signed by the judge do not constitute a part of it, unless it appears by marks, letters, numbers or other means of identification con- 82 Cir. Ct. Rule 66, § 3. Mich. 579, which involved a case on This rule of court requires the appeal but is governed by the same furnishing of the stenographer's rules as apply to bill of exceptions. minutes to the opposing party al- 83 Cir. Ct. Rule 66, §10. See also though the bill proposed contains all ^Vhite Pine Lumber Co. v. Manufac- the testimony, since the opposing turer 's Lumber Co., 191 Mich. 390, party has the right to make com- 397. parison of the bill presented and the 84 Cir. Ct. Rule 66, Sll; Jud. testimony to verify the claim that Act, ch. 18, §66; Comp. Laws 1915, it contains all of the testimony. § 12638. Marsh v. Kent Circuit Judge, 200 222 Bill of Exceptions § 11 tained in the bill that such papers were made a part of it by the judge who settled it, so as to leave no doubt on the part of the appellate court that they were made a part of the record to be examined." The bill of exceptions, when so filed in the office of the clerk, becomes a part of the record in the cause. § 12. Stay of proceedings pending issuance of writ of error. Within the limit of twenty days after the entry of judgment, a stay of execution is discretionary Avith the court ; '^ but no stay of proceedings upon any verdict or judgment rendered in any circuit court in this state can be granted or allowed for the purpose of settling a bill of exceptions in the case in which the verdict or judg- ment was rendered, for a longer period than twenty days, unless the party applying for the stay, if judgment has been rendered against him, executes to the adverse party a bond with sufficient sureties, in such sum as the circuit judge before whom the cause was tried shall designate, conditioned to pay the judgment if it be not set aside or reversed, and that, if a writ of error is issued in the cause, the appellant will prosecute his writ to effect and pay and satisfy such judgment as shall be rendered against him thereon. Notice of the time and place when such bond will be presented to the circuit judge for ap- proval must be served upon the adverse party at least four days before it can be approved;" but, in case the party applying for a stay of proceedings is unable to give a bond by reason of poverty, the judge may, upon due proof of inability for such reason, grant a stay with- out requiring a bond for siu-h rcjisoiiahlo timo as he de- M Wager v. Peak, 22 Mich. 368. where judgment is against the de- •6 Cir. Ct. Rule 66, § 1. fendant in summary proceedings to 87 Jud. Act, ch. 22, § 23 ; Comp. recover the possession of land, see Laws 1915, §12812. Jud. Act, ch. 22. §26; Comp. Laws As to the form of the stay bond 191.5, §1281.5. § 1 Bill of Particulars 223 termines.^^ The bond should be filed with the clerk of the court in which the judgment was rendered.®* When such a stay bond as described has been filed, no further or other bond will be required to stay and super- sede execution upon any writ of error issued out of the supreme court by or on behalf of the party filing the bond.*" § 13. Conclusiveness of bill as to its accuracy. The accuracy of a bill of exceptions is to be deter- mined by the trial judge, and his certificate is ordinarily conclusive.*^ BILL OF PARTICULARS § 1. Definition. § 2. Object. § 3. In what cases may be required. § 4. Discretion of court. § 5. Waiver of right to bUl. § 6. Time for service of bill and effect on time to plead. § 7. Filing bill. § 8. Sufficiency of bill. § 9. Procedure where bill not furnished or where insufficient. § 10. Objections at the trial. § 11. Amendment. § 12. Effect and nature of. § 13. As restricting or enlarging proof. § 1. Definition. A bill of particulars is, as the name implies, a written statement specifying the items claimed by a party as constituting the cause of action or matter of defense which his pleading alleges in a more comprehensive way. 88Jud. Act, ch. 22, §24; Comp. issued and a levy made thereunder, Laws 1915, §12813. see Peterson v. Wayne Circuit 89Jiul. Act, eh. 22, §25; Comp. Judge, 108 Mich. 608. Laws 1915, § 12814. 91 White Pine Lumber Co. v. Man- 90Jud. Act, ch. 22, §26; Comp. ufacturer's Lumber Co., 191 Mich. Laws 1915, §12815. 390, 398, where stenographer had As to the effect of a stay of pro- died before furnishing transcript. eeedings after an execution has been 224 Bill or Particulars | 1 It is a device which came into use soon after the com- mon counts were introduced in the practice of EngLnnd, to counteract the disadvantages incident to so indefinite and general an exposition of the plaintiff's cause of action. §2. Object. The object of the practice relative to bills of particu- lars is to obviate the uncertainty of general pleading. The intent is to secure such infonnation as will enable the parties to make intelligent preparation for trial and to enter upon the investigation before the court or the jury with an understanding as to what is really in con- troversy.^ The office of a bill of particulars is to inform the opposite party of the cause or causes of action upon which the party giving it intends to rely at the trial, but which have not been specifically set out in the declara- tion or in the notice accompanying the general issue,^ and to enable him to avoid being surprised at the trial by the bringing forward of unexpected claims.^ If it accomplishes this purpose, it is sufficient.* § 3. In what cases may be required. From what has been said of the function of a bill of ])articulars, it is obvious that the opposite party is en- titled to a bill of particulars only when the pleading is more or less general. Where the declaration alleges the cause of action specially and with reasonable certainty, there can be no difficulty on the part of the defendant in knowing what to meet in the proofs, and the defendant is amply protected by the exclusion of evidence at vari- ance with the allegations. 1 Cifotte V. Wayne County, 44 3 Mason v. Seio Fractional School Mich. 173. Dist. No. 1, 34 Mich. 228. 2 Davis V. Freeman, 10 Mich. 188; 4 Wright v. Dickinson, 67 Mich. Hamilton v. Frothingham, 71 Mich. 580. 616. § 3 Bill of Particulars 225 In actions ex contractu, a bill is often required where a general form of declaring is provided for by statute.* However, particulars of unliquidated damages cannot be required.® In actions ex delicto, it is not usual to ask for a bill,' and in a case decided in 1914, it is said that "being an action in tort, no bill can be demanded as of right."* Thus, in an action on the case, if no injury is definitely charged, the declaration is bad; but, if it contains a suffi- ciently definite showing to give a cause of action, so that no motion to dismiss would prevail, the defendant can be saved from surprise by confining the recovery to the causes sufficiently described, and he is not, therefore, en- titled to a bill of particulars.® So, where, in an action for slander, the affidavit upon which the defendant was held to bail set forth the par- ticulars with abundant fullness, the court could not re- quire 'the plaintiff to file a bill of particulars.^" How- ever, a bill may be ordered in an action based on a tort." Thus, in an action for criminal conversation it is proper to require a bill to specify the place and date of each alleged act of intercourse.^^ It has been held in other states, and undoubtedly it is the rule in this state,^^ that where the information sought lies peculiarly within the knowledge of the applicant or for aught that appears the applicant is as well ac- 6 See Davis v. Freeman, 10 Mich. For review of Michigan cases as 188, 192. to bills of particulars in actions for 6 Van Kranken v. Wayne Circuit tort, see State v. Hosmer (Mich.), Judge, 85 Mich. 140. 104 N. W. 637. 7 State v. Hosmer (Mich.), 104 10 Gibbs v. Judge of Superior N. W. 637. Court, 53 Mich. 496, 8 Schnell v. Michigan Bonding & 11 Anti-Kalsomine Co. v. Kent Surety Co., 183 Mich. 340, 345, cit- Circuit Judge, 119 Mich. 434. iiig Kehrig v. Peters, 41 Mich. 475. 12 Gary v. Eaton Circuit Judge, 9 Shaddock v. Alpine Plank-Road 132 Mich. 105. Co., 79 Mich. 7; People v. Marquette 13 Strong v. Hollon, 39 Mich. 411. Circuit Judge, 39 Mich. 437; Kehrig v. Peters, 41 Mich. 475. 1 Abbott— 15 226 Bill of Particulars § 3 quainted with the nature of the particulars of the claim as is the pleader, a bill will not generally be required. The fact that a case has been tried twice without a bill of particulars of the damages sought to be recovered under a special declaration will not prevent the ordering of one for the third trial as a means of facilitating such trial by confining the range of proof within defined limits and preventing plaintiff from bringing forward new items to the surprise of the defendant.^* But a bill pf par- ticulars of what is to be established against a garnishee is not a matter of right, especially w^here the garnishee has made disclosure. ^^ Mandamus lies to correct the action of the trial court in ordering a bill of particulars.^^ By statute, "to entitle a defendant to a set-off or recoupment, he must annex a notice thereof to his plea of the general issue, with a bill of particulars of such set-off or recoupment in all cases where such bill might be demanded. " " § 4. Discretion of court. It has been said that "a defendant in a proper case is entitled to a bill of particulars as a matter of right." " In actions of tort, however, it is held that the granting of the motion rests "in the sound discretion of the trial court, to be required or refused, according as justice and fair dealing require."^® And it would seem the better rule that even in cases of contract the requiring a bill should rest in the sound discretion of the court. 14 Van Vranken v. Gartner, 85 18 Dissenting opinion of Justice Mich. 140. McAlvay in State v. Hosmer 16 Strong V. Hollon, 39 Mich. 411. (Mich.), 104 N. W. 637. 16 Van Vranken v. Gartner, 85 19 Gary v. Eaton Circuit Judge, Mich. 140; Hamilton v. Peck, 84 132 Mich. 105, reaffirmed in Schnell Mich. 393. v. Michigan Bonding & Surety Co., ITJud. Act, ch. 15, §3; Comp. 183 Mich. 340, 347, and see State v. Laws 1915, §12470. This is a new Hosmer (Mich.), 104 N. W. 637. provision. § 8 Bill of Particulars 227 § 5. Waiver of right to bill. A defendant who has properly demanded a bill of par- ticulars does not waive his right thereto by pleading to the declaration. If the plaintiff refuses to comply with the demand, and insists upon the right to a trial without furnishing a bill of particulars, the court will sustain an objection by the defendant to the admission of the plain- tiff's evidence. ^° § 6. Time for service of bill and effect on time to plead. In all cases in which the defendant is entitled to de- mand a bill of particulars, the plaintiff should serve and file a copy of the bill, unless it has been already fur- nished, as soon as practicable after being served with a notice of such demand. If such demand be made before the expiration of the time for filing plea, the defendant will have the same time to plead after receiving the bill of particulars to which he was entitled at the time of serving such notice.^^ § 7. Filing biU. The statute which required the filing of the bill was repealed by the Judicature Act but the rule of court re- quires filing by the plaintiff.^^ § 8. Sufficiency of bill. The bill must be sufficiently specific and certain to fairly apprise the opposite party of the claim so that there can be no surprise.''^ However, it need not con- tain all the essentials of a special declaration. It is neither given nor required for the purpose of disclosing to an adverse party the evidence relied on to substantiate 20 Peterson v. T\lden, 44 Mich. 22 Cir. Ct. Rule 30, « 1. 168. See also Peninsular Stove Co. 23 Wright v. Dickinson, 67 Mich. V. Osmun, 7.3 Mich. 570, as to effect SS.S ; Nugent v. Teachout, 67 Mich, of notice of issue, such notices now 571 ; Cicotte v. Wayne Countj, 59 being abolished. Mich. 509. 21 Cir. Ct. Rule 30, § 1. 228 Bill OF Particulars §8 It, nor is it the office of such bill to furnish to the defend- ant facts whereon to found an affirmative defense in his behalf. It need not state the grounds on which the plaintiff claims, but only the items and particulars. It should, however, be sufficiently specific and certain to apprise the opposite party of what the demand is, when the items accrued, how they arose and the amount claimed. In mentioning dates, it is not necessary that the exact date be given, but it may be stated as on or about a certain day, and in that case the party giving it is not restricted to proof of that particular day. The question to be determined in such case is whether the proof is so variant from the date alleged as to mislead the opposite party.^* A bill of particulars which informs the defendant of the dates and amounts of several sales and deliveries of merchandise is all that can usually be necessary to in- form him of what he is expected to meet.^* The bill need not show credit items, in an action on an account, espe- cially where the demand for the bill does not include a demand for particulars of defendant's set-off or pay- ment.^^ A bill which claimed a fixed amount as a bal- ance due "for sei^ices as bookkeeper" between certain dates has been held sufficient.^' Form of Demand for Bill of Particulars of Plaintiff's Demand (Title of court and cause.) Sir:— You will please to take notice that the said plaintiff is required to furnish to the attorney for the above-named defendant an account in writing of the particulars of hi» demand for which this action is brought. Dated, etc. Yours, etc., K. L., To J. K., Plaintiff's Attorney. Defendant's Attorney. 24 Hamilton v. Peck, 84 Mich. 26 Cairbre v. McQuillen, 162 Mich. ;;93; Sogge v. Schwartz, 116 Mich. 679. 635. 27 Strut/ V. Brown, 110 Mich. 687. 26 Frechling v. Kctchum, 39 Mich. 299. See Cir. Ct. Rule 30. § 8 , Bill of Particulars 229 Form of Bill of Particulars of Plaintiff's Demand (Title of court and cause.) Sir:— You will please to take notice that the following is a bill of particu- lars of the plaintiff's demand in this ease, for the recovery of which he has brought this suit: (Here state the items as particularly as possible, with dates and amounts of each.) Dated, etc. Yours, etc., J. K., Plaintiff's Attorney. To K. L., Defendant's Attorney. Form of Notice of Retainer and Demand for a Bill of Particulars (Title of court and cause.) Sir:— You will please to take notice that I am retained for the above-named defendant in this cause, and that the said plaintiff is required to fur- nish to me, the attorney for the said defendant, an account in writing of the particulars of the said plaintiff's demand in this cause. Dated, etc. Yours, etc., K. L., Attorney for Defendant. Business address: , Mich. To J. K., Attorney for Plaintiff. Form of Demand for Bill of Particulars of Defendant's Set-off (Title of court and cause.) Sir:— Please take notice that the said defendant is required to furnish to the attorney for the above-named plaintiff an account in writing of the particulars of his set-off, of which notice has been given by the said de- fendant in this cause. Dated, etc. Yours, etc., J. K., Plaintiff's Attorney. To K. L., Defendant's Attorney. Form of Bill of Particulars of Defendant's Set-off (Title of court and cause.) Sir:— You will please take notice that the following is a bill of particulars of the defendant's set-off in this cause: (Here state the items as par- ticularly as possible, with dates and amounts of each.) Dated, etc. Yours, etc., J. K., To K. L., Defendant's Attorney. Pl;iiiitiff'a .Mtomoy. 230 Bill of Particulars § 9 § 9. Procedure where bill not furnished or where insuffi- cient. If the plaintiff unreasonably neglects to furnish a bill of particulars, or if tlie bill of particulars delivered be insufficient, the court may, in its discretion, either non- suit the plaintiff, allow further time to furnish it or re- quire a more particular bill to be delivered.^^ If the bill of particulars of set-off furnished by the defendant is in- sufficient, the defendant will, on motion, be required to furnish a more specific bill of particulars.^^ The action of the court in abuse of its discretionary authority in this respect may be corrected by mandamus.^" § 10. Objections at the trial. If the bill is not sufficiently full, the adverse party should not, as a general rule, wait until the trial and then object to the admission of evidence on that ac- count, but should demand a more specific bill, and, if that demand is not complied with, should move the court before trial to require a more specific bill.^^ However, where the paper served in response to a demand for a bill of particulars gives no additional in- formation and possesses none of the qualities of a proper bill of particulars, an objection to the introduc- tion of testimony at the trial is well taken. An objec- tion at the trial comes too late only when there has been some bona fide effort to comply with the demand.'^ 28 Cir. Ct. Rule 30, § 2. That rlis- 30 Van Vranken v. Gartner, 85 cretion is limited to one of three Mich. 140; Hamilton v. Peck, 84 things mentioned, see opinion of Jus- Mich. 393. tice McAlvay in State v. Hosnior 31 Tanner v. Page, 106 Mich. 155; (Mich.), 104 N. W. 637; nonsuit, Buckeye Tp. v. Clark, 90 Mich. 432; see Gibbs v. Judge of Superior Strutz v. Brown, 110 Mich. 687; Court, 53 Mich. 496. I'reehling v. Ketchum, 39 Mich. 299. 29 Cir. Ct. Rule 30, $ 3, Changing 32 Knop v. National Fire Ins. Co., former rule which also permitted 101 Mich. 359. exclusion of evidence. § 11 Bill of Particulars 231 § 11. Amendment. A bill of particulars, whether of the plaintiff's de- mand or of the defendant's set-off, may, in proper cases, in the discretion of the court, be amended, either be- fore the trial or upon the trial. If an amendment be allowed at the trial, an adjournment or continuance should be granted in case the adverse party claims to be surprised; ^^ but where the claim of surprise is clear- ly a mere pretense, a merely formal amendment should be allowed without costs or delay, and a permission upon the terms of the payment of the costs and the continuance of the cause would not in such case be a reasonable exercise of the court's discretion.^* The allowance of an amendment of a bill of particulars rests in the discretion of the court.^^ Ordinarily a plaintiff will be allowed to amend his bill, of particulars if necessary to make it cover his de- mand ;^^ and when the variance between the evidence and the bill is merely formal, an amendment should be permitted unless there is reason to believe that the de- fendant will be prejudiced thereby.^''' However, an amendment must not introduce a new cause of action, especially where barred by limitations.^^ The trial court may in its discretion permit a bill of particulars to be amended by inserting a new item or a date, even after the trial has commenced and a wit- ness has been sworn, and, if the opposite party wishes time to investigate the items or claims any surprise by 33 Lester v. Thompson, 91 Mich. 37 Collins v. Beecher, 45 Mich. 436. 245,248. 38Hapke v. Davidson, 180 Mich. 34 Tate V. Hamilton, 81 Mich. 221. 138, 148, holding more change of 35 Hai)ke v. Davidson, 180 Mich. date as to certain items for services 138, 148; City of Battle Creek v. did not introduce a new cause of ac- Haak, 139 Mich. 514, 522. tion; Anderson Carriage Co. v. 36 Cummin v. Wilcox, 47 Mich. Piings, 127 Mich. 543. 501 ; Feiertag v. Feiertag, 73 Mich. 297. 232 Bill of Particulars § 11 the allowance of the amendment, so that he is not pre- pared to proceed with the trial, he should ask for, and be granted, a continuance.^^ An amendment of a bill of particulars during the trial by increasing the amount of a specific claim of the defendant may be allowed in the discretion of the court, in the exercise of which the court should consider whether the amendment would be in furtherance of justice and would take the adverse party by surprise." However, on the third trial of a case, it was held proper, in the discretion of the court, to refuse an amendment where not justified by anything contained in the declaration or bill of particulars and where it would operate as a surprise to the defendant.*^ § 12. Effect and nature of. A bill of ^particulars, although it has the effect of a pleading in so far as it restricts the proof to the items and within the amounts which it specifies, is not con- sidered as a part of the pleading. The service of a bill of particulars has never been regarded as being an amendment of the pleadings or as changing the issue in the cause. It cannot be pleaded to. And, as a bill of particulars forms no part of the pleading, but is merely explanatory and in amplification of it, it neither adds to nor detracts from the sufficiency of a declara- tion on a motion to dismiss as a substitute for the old demurrer.*^ However, a bill of particulars by which it appears that 39 Lester v. Thompson, 91 Mich. gent v. Teachout, 67 Mich. 571 ; 245. Knop v. National Fire Ins. Co., 101 40 Mead v. Glidden, 79 Mich. 209. Mich. 359; Wright v. Dickinson, 67 41Bamlet Realty Co. v. Doff, 18:J Mich. 580; Bennett v. Smith, 40 Mich. 694, 707. Mich. 211; Duplanty v. Stokes, 42Cicotte V. Wayne County, 44 103 Mich. 630; Applebaum v. Cold- Mich. 173, 59 Mich. 509; Weston v. man, 155 Mich. 369. Compare Hurd County of Luce, 102 Mich. 528; Nu- v. Northern Ace. Co., 153 Mich. 474. § 13 Bill of Particulars 233 the plaintiff sues as assignee of a cause of action will render unnecessary the averment of the assignment in the declaration.** § 13. As restricting- or enlarg^g proof. There can be no recovery for items not in the bill of particulars, nor for more than it alleges.** Thus, an item for wages will not admit evidence of a claim for money loaned; *® nor can a recovery for money had and received by the defendant for the use of the plaintiff be had un- der a bill of particulars for services rendered and money loaned to the defendant.*® So, under an item for money loaned, it is inadmissible to show a loan of a United States bond.*'' And where suit is brought for the value of labor, and a bill of particulars, filed under a notice of set-off and recoupment, gives no intimation of dam- ages for a breach of the contract of hire, evidence of such damages is inadmissible.*' The bill cannot enlarge the scope of the recoveiy.*^ The objection that the bill of particulars does not cover the evidence is one that must be made at the trial or it will be considered as waived. However plaintiff may testify, in an action on an ac- count, to payments he claims were made by defendant, in order to escape the statute of limitations, although such credits are not shown by the bill of particulars, it not being necessary to show them; and if defendant is surprised he may apply for time in which to prepare to 43 Kelly v. Waters, 31 Mich. 404; is limited to items of work done and Snell V. Gregory, 37 Mich. 500. meals furnished, with prit'c for same. 44 Bennett v. Smith, 40 Mich. 211. Brooks v. Bellows, 179 Mich. 421. See also Duplanty v. Stokes, 103 45 Judd v. Burton, 51 Mich. 74. Mich. 630; Gubbins v. Ashley, 146 46 Feiertag v. Feiertag, 73 Mich. Mich. 453; Stoner v. Riggs, 128 297. Mich. 129; Grady v. Sullivan, 47 Waterman v. Waterman, 34 112 Mich. 458; Wright v. Dickin- Mich. 490. son, 67 Mich. 580. 48 Ritter v. Daniels, 47 Mit-h. 617. Prospective ])rofits are not recov 49 Ap|)lpbaum v. Goldman, 155 cral)lc where the bill of particulars Mifh. 369. 234 Bill of Particulars 13 meet the unexpected claim. ^° And as the object of this strictness in a bill of particulars is that defendant may know what will be attempted to be proved against him at the trial, and may prepare his evidence accordingly, a mistake in a particular not calculated to deceive or mislead him, will not be regarded as material.^^ A con- tract set out verbatim in the declaration is admissible in evidence although not mentioned in the bill of par- ticulars.^^ BILLS AND NOTES Cross-Beferences: Assumpsit; Pleabing; Parties; Executions; Trover; Lost Instruments; Limitation op Actions. In this state the Negotiable Instruments Law governs promissory notes, checks, bills of exchange, drafts, and 50 Cairbre v. McQuillen, 162 Mich. 679. 61 Sogge V. Schwartz, 116 Mich. 635. "The defendant's counsel assigns error upon the refusal of the court to instruct the jury in accordance with the following request: 'That they would have to find that the moneys were loaned at the times specified in the bill of particulars, as testified to by plaintiff.' The court refused to give this request and we think properly so. To say that because plaintiff s testimony disclosed a variance of a few days from the date named in the bill of particulars, he should fail in his ac- tion, would be laying down a rule stricter than the law demands. In 1 Green's Practice 512, it is said: 'But as the object of this strictness in a bill of particulars is that the defendant may know what wnll be attempted to be proved against him at the trial and may prepare his evidence accordingly, a mistake in a particular not calculated to deceive or mislead him will not be regarded as material.' In Sogge v. Schwartz, 116 Mich. 635, an error was made in both the date and amount named in the bill of particulars, but this court held that inasmuch as the defendant was neither surprised nor misled, the variance should be disregarded. If there were any variance in point of time between the dates named in the bill of particulars and plaintiff's testimony, counsel for defendant should have objected to its admis- sion when offered or subsequently moved to strike it out, at which time plaintiff's counsel could have applied for, and secured, an amendment, if the variance was regarded material by the court. This not having been done and there being no claim upon the part of defendant's counsel that he was surprised or misled on ac- count of the variance, we think the court was not in error in refusing to give the request." Bennett v. Maurice, 162 Mich. 254. 62 Davis V. Freeman, 10 Mich. 188. Bills and Notes 235 other negotiable instruments.^ An action on a bill or note is a transitory one and may be brought in any state where the debtor or his property may be found.^ What defenses may be introduced under a particular notice under the general issue,^ is governed by the rules gov- erning notices in general.* The execution of the bill or note sued on is admitted unless defendant files and serves a copy of an affidavit denying the execution, and the rule of court is specially made applicable to actions against indorsers.^ If a copy of the bill or note sued on is served with the declaration, plaintiff may declare on the money counts alone. ^ state Bar Association Form of Declaration on Note by Payee Against Maker ' (Title of court and cause.) The plaintiff says: l.^That the defendant executed his promissory note, dated , 19.., for dollars, payable to the plaintiff months after date, with interest at per centum per annum from date, a copy of which is attached hereto and marked Exhibit A. 2. That the defendant has not paid the said note nor the interest due thereon. 3. Wherefore, etc. State Bar Association Form of Declaration on Note by Indorsee Against Indorser (Title of court and cause.) The plaintiff says: 1. That one C. D. executed his promissory note dated , 19.., for dollars, payable to one E. F. or order months after date, with interest at per centum per annum from date, which said note was indorsed by the said E. F. to the defendant, and by the defendant to the plaintiff, and was duly presented for payment and was iPub. Acts 1905, No. 265. Custard v. Hodges, 155 Mich. 361; 2 Millar v. Hilton, 189 Mich. 635. Citizens' Sav. Bank v. Globe Brass 8 Green v. Ostrander, 160 Mich. Works, 155 Mich. 3; First Nat. 662; Smith v. McDonald, 139 Mich. Bank v. Shaw, 149 Mich. 362. See 225. also Pleading. 4 See Pleading. 6 Jud. Act, ch. 14, §9; Comp. 5 Cir. Ct. Rule 33; Barnes v. Spon- Laws 1915, § 12461. cer & Barnes Co., 162 Mich. 509; 236 Bills and Notes dishonored, of Tvhich the defendant had due notice, a copy of which note with indorsements is attached hereto and marked Exhibit A. 2. The defendant has not paid the said note. 3. Wherefore, etc. State Bar Association Form of Declaration on a Bill of Exchange ( Title of court and cause.) The plaintiff says: 1. That the defendant accepted a bill of exchange of dollars, dated , 19 . . , drawn by the plaintiff upon the defendant, payable to the plaintiff months after date (or, on demand, or, at sight), a copy of which is attached hereto and marked Exhibit A. 2. That the defendant has not paid the said bill. 3. "Wherefore, etc. BOARD OF SUPERVISORS See Commencement of Actions; Certiorari; Executions. BODY EXECUTIONS See Executions. BONDS § 1. Scope of article. § 2. Defects in, amendments, and substitution of new bonds. § 3. "Who may sue on bonds of public officers. § 4. Effect of another action pending or another judgment on .(^ame bond. § 5. Distribution of recovery on official bonds. § 6. Pleading, verdict and judgment. § 7. Limitation of time to sue on official bonds. Cross-Eeferences: Of particular officers, see Clerks of Court; Sher- iffs; Circuit Court Commissioners, etc. Of guardian ad litem or next friend, see Guardian ad Litem, etc. In particular proceedings, see At- tachment; Garnishment; Execution; Eeplevin; Fraudulent Debtors; Bail; Jail Liberties; Certiorari; Justices of the Peace; Probate Courts; Contempt; Bill of Exceptions; Error, Writ of. See also Se- curity for Costs; Limitation of Actions (time to sue on bonds). § 1. Scope of article. Particular bonds and bonds in particular proceedings are treated of in connection with such proceedings or the particular matter involved. There are, however, certain statutes and certain general rules applicable to bonds § 2 Bonds 237 generally or to certain classes of bonds which will be noticed herein. For instance, chapter 21 of the Judica- ture Act is entitled * ' Suits on Official and Other Bonds. ' ' The indorsement of executions so as to require a levy on the property of a public officer before a levy on prop- erty of his sureties is noted in the article on Executions. §2. Defects in amendments, and substitution of new bonds. The Judicature Act provides that no appeal shall be dismissed on account of any informality or imperfection in the bond for the taking of such appeal if plaintiff shall either by amendment or by furnishing a new bond supply the deficiency or defect.^ It also provides that ''Whenever a bond is or shall be required by law to be given by any person, in order to entitle him to any right or privilege conferred by law, or to commence any proceeding, it shall not be necessary for such bond to conform in all respects to the form thereof prescribed by any statute, but the same shall be deemed sufficient if it conforms thereto substantially, and does not vary in any matter to the prejudice of the rights of the party to whom or for whose benefit such bond shall have been given. ' ' ^ So the statute provides that ''whenever such bond has been heretofore, or shall hereafter be given, and shall be defective in any respect, the court, officer, or body 1 Jud. Act, eh. 16, §9; Comp. bond on being given an opportunity Laws 1915, § 12486. to do so, the writ of replevin will 2 Jud. Act, eh. 16, § 10 ; Comp. not be quashed. Donley v. Fowler, Laws 1915, § 12487. 147 Mich. 290. Where in an action of replevin Where the bond conforms substan- brought to recover the possession of tially to the requirements of the distrained beasts an indemnity bond statute and does not vary in any was given instead of a replevin bond matter to the prejudice of the rights and where the plaintiff was under of the relator, it must be held good the impression that he had given a, under this section as to him. King proper bond and later files a proper v. Gridley, 69 Mich. 91. 238 Bonds § 2 who would be authorized to receive the same, or to en- tertain any proceedings in consequence of such bond, if the same had been perfect, may, on the application of all the obligors therein, amend the same in any respect, or may, on the application of the person required to give such bond, allow a new one to be substituted in the place thereof, bearing date at the time when such bond was required to be given, and such bond shall thereupon be deemed valid from the time of the execution of such de- fective bond. When application is made to amend, said court, officer, or body shall have power to amend such bond in any respect, and without regard to the particu- lar amendment applied for, so as to make said defective bond such a one as might have been required when the latter was given. AVhen a new bond is allowed, it shall be such in form, penalty, and other respects, as might have been demanded when the defective bond was given." ^ § 3. Who may sue on bonds of public officers. The Judicature Act provides that "any person to whom a cause of action shall accrue upon the bond of any pub- lic officer, required to give bond to the people of this state, may prosecute a suit for recovery on said bond in his own name."* § 4. Effect of another action pending" or another judg- ment on same bond. In case of officer's bonds and the other bonds men- tioned in the statute, "during the pendency of any suit upon such official bond, or after judgment rendered in such suit, any other party aggrieved by the default or delinquency of such officer, may, in like manner prose- 8 Jud. Act, ch. 16, §11; Comp. tution of new one in Small v. Ne- Laws 1915, § 12488. waygo Circuit Judge, 187 Mich. 532. Statute applied by permitting 4 Jud. Act, ch. 12, §2; Comp. withdrawal of stay bond and substi- Laws 1915, § 12.15."^. § 5 Bonds 239 cute an action upon such official bond; and the pendency of any other suit on the same bond, or a judgment re- covered by or against any other person on such bond, shall not abate or in any manner affect such suit, or the proceedings therein," except as otherwise provided.* No such suit shall be barred, nor shall the amount which the plaintiff may be entitled to recover therein, be affected by any notice given by any surety in such bond, of a judgment recovered thereon, unless it be ac- companied by an allegation that the sureties in such bond, some or one of them, have been obliged to pay the damages assessed by such judgment, or some part there- of, for the want of sufficient property of such officer whereon to (levy the same, or that they will be obliged to pay the same, or some part thereof for the same rea- son; nor unless such notice be verified by the oath of the defendant giving the same. If it shall appear that the amount of any damages so recovered, which such surety has been obliged to pay, or will be obliged to pay, as specified in the last section, is equal to the amount for which such defendant shall be liable, by virtue of the bond, he shall be acquitted and discharged of all further liability, and judgment shall be rendered in his favor. If it shall appear that the amount of any damages so recovered, which such surety has been obliged to ])ay, or which he will be obliged to pay, is not equal to the lia- bility of such surety, the amount thereof shall be allowed to such defendant, in estimating the extent of his liability in any such action.® § 5. Distribution of recovery on official bonds. The Judicature Act provides that if several judgments on official bonds of any officer exceed the liabilities of the sureties, or sufficient moneys shall not be raised on 6Jud. Act, eh. 21, §2; Comp. 6 Jud. Act, ch. 21, §§3-5; Comp. Laws 1915, § 12784. Laws 1915, §§ 12785-12787. 240 Bonds § 5 executions on judgments obtained at the same term, the moneys are to be distributed between the successful plaintiffs in proportion to the amount of their respective recoveries."'^ § 6. Pleading, verdict and judgment. In an action on a bond, the declaration need not aver the consideration for which it was given,^ nor allege de- livery where profert is made,® nor set forth the penal part of the bond where that part constituting a founda- tion of the action is set forth ; ^^ but in actions on bonds for the breach of any condition other than the payment of money, or for the recovery of any penal sum for the non-performance of any covenant or written agreement, the plaintiff must assign, in his declaration, the specific breaches for w^hich the action is brought.^^ And it is expressly provided by the Judicature Act that "when an action shall be prosecuted in any court of law upon any bond of any public officer, or upon any bond for the breach of any condition, other than the payment of money, or for any penal sum for the non-performance of any covenant or written agreement, the plaintiff shall assign the specific breaches for which the action is brought, and upon the trial of such action, the verdict and judgment shall be for such damages as are found arising from the specific breaches assigned; and such judgment shall not be a bar to any further action by the same, or any other plaintiff, for any subsequent breaches of the condition of said bond; but said bond shall stand as security for any further or subsequent breaches to the amount of the remainder of the penalty thereof. ' ' " 7Jud. Act, eh. 21, §§7, 8; Comp. H Assignment using and negativ- Laws 1915, §§12789, 12790. ing the language of the condition is • Eobson V. Dayton, 111 Mich. good. Van Middlesworth v. Van 440; Dye v. Mann, 10 Mich. 291. Middlesworth, 32 Mich. 183. 9 Boyer V. Sowlcs, 109 Mich. 481. 12 Jud. Act, eh. 21, §1; Comp. 10 Prentiss v. Spalding, 2 Doug. Laws 1915, §12783. 84. § 6 Bonds 241 state Bar Association Form of Declaratiou on a Fidelity Bond (Title of court and cause.) The plaintiff says: 1. That, on , 19.., the defendant executed a bond for the pay- ment to the plaintiff of dollars. 2. That the condition of the said bond was that, if C. D. should faith- fully discharge his duties as cashier of the plaintiff, the bond should be void. 3. That the said C. D. did not faithfully discharge his duties as such cashier, but, on , 19.., appropriated and converted to hi8 own use dollars of the moneys of the plaintiff coming into his hands as such cashier. 4. Wherefore, etc. Form of Count on Bond Without Condition The plaintiff says: 1. That the said plaintiff heretofore, to wit, on , at , by his certain writing obligatory, sealed with his seal, the date whereof is the date and year aforesaid, a copy whereof is hereto annexed, acknowl- edged himself to be held and firmly bound unto the said plaintiff in the sum of dollars, to be paid to the said plaintiff. 2. That the said defendant, although requested so to do, has not as yet paid the said sum of dollars, or any part thereof, to the said plaintiff. Form of Count on Bond with Condition Other than for Payment of Money The plaintiff says: 1. That the said defendant heretofore, to wit, on , at , by his certain writing obligatory, sealed with his seal, the date whereof is the day and year aforesaid, a copy of which is hereto annexed, acknowl- edged himself to be held and firmly bound unto the said plaintiff in the sum of dollars, to be paid to the said plaintiff. 2. That the said writing obligatory was and is subject to a certain condition thereunder written, whereby, after reciting that (here allege the recitals, if any), it is provided (here allege the conditions), then the said obligation was to be void, otherwise to remain in full force and effect. 3. That, after the making of the said writing obligatory the said defendant (here assign the specific breach of the condition relied upon). If there are more than one breach, add as follows: 4. That, by means of the premises, the said plain- tiff has sustained damages in a large sum of money, to wit, in the sum of dollars. 5. That the said defendant, although requested so to do, has not as yet paid the said sum of money, or any part thereof, to the said plaintiff. 1 Abbott— 16 242 Bonds § 7 § 7. Limitation of time to sue on official bonds. Actions founded on bonds of public officers must be brought within ten years,^^ and a provision in suck a bond prescribing a shorter limitation is of no effect and must be treated as surplusage.^* BOOKS See Discovery and Inspection; Trial; Execution; Quo Warranto. BOUNDARIES See Ejectment. BREACH OF PEACE See Contempt; Summary Proceedings, etc. BREACH OF PROMISE TO MARRY An action for breach of promise to marry is in form ex contractu although in the nature of an action ex delicto.^ The few decisions in this state in regard to such actions in reference to pleading,^ evidence,^ instnic- tions to the jury,* and damages,^ are referred to in the notes below. Form of Coxmt for Breach of Promise to Marry on Request The plaintiff says: 1. That, heretofore, to T\it, on , at , in consideration that the said plaintiff, being then and there an unmarried person, at the re- 13 See Limitation of Actions. 4 Gagush v. Hoeft, 198 Mich. 263; 14 Forest Tp. v. American Bond- Jaskolski v. Morawski, 178 Mich, ing Co. of Baltimore, 187 Mich. 6.57. .325; Spencer v. Simmons, 160 Mich. 1 White V. Thomas, 12 Ohio St. 292; Koberts v. Druillard, 123 312. Mich. 286; Mahiat v. Codde, 106 2Houser v. Carmodj, 173 Mich. Mich. 387; Eutter v. Collins, 103 121; Goddard v. Westcott, 82 Mich. Mich. 143; Goddard v. Westcott, 180; Bennett v. Beam, 42 Mich. 82 Mich. 180; Miller v. Hosier, 31 346. Mich. 475. 3Bischoff V. Harris, 198 Mich. 59; 6 Jaskolski v. Morawski, 178 Mich Duff V. Judson, 160 Mich. 386; Rut- 325; Houser v. Carmody, 173 Mich ter V. Collins, 96 Mich. 510; Mc- 121; Duff v. .Tudson, 160 Mich. 386 Pherson v. Ryan, 59 Mich. 33; Van- Spencer v. Simmons, 160 Mich. 292 derpool v. Richardson, 52 Mich. 336; Rutter v. Collins, 96 Mich. 510. Bennett v. Beam, 42 Mich. 346. Briefs 243 quest of the said defendant, had promised him to marry the said defend- ant, the said defendant undertook and promised the said plaintiff that he would marry her, Tvhen he should be thereunto afterwards requested by the said plaintiff and the said plaintiff avers. 2. That she, relying on the said undertaking and promise of the said defendant, has always thence hitherto remained, and still is, unmarried and ready and willing to marry the said defendant. 3. That the said plaintiff, to wit, on , at , requested the said defendant to marry her. 4. That a reason- able time has since elapsed. 5. That the said defendant did not, nor would, marry the said plaintiff. Form of Count Upon Promise to Marry Within a Reasonable Time The plaintiff says: 1. That, heretofore, to wit, on , at , in consideration that the said plaintiff, being then and there an unmarried person, at the re- quest of the said defendant, had promised him to marry the said defend- ant, the said defendant undertook and promised the said plaintiff that he would marry the said plaintiff within a reasonable time. 2. That the said plaintiff, relying on the said undertaking and promise of the said defend- ant, has always remained, and still is, unmarried and ready and willing to marry the said defendant. 3. That a reasonable time has elapsed since the making of the said undertaking and promise by the said defendant. 4. That the said defendant did not, nor would, marry the said plaintiff. Form of Count Upon Promise to Marry When Defendant Has Married Another The plaintiff says: 1. That, heretofore, to wit, on , at , in consideration that the said plaintiff, being then and there an unmarried person, at the request of the said defendant, had promised him to marry the said defendant, the said defendant undertook and promised the said plaintiff that he would marry the said plaintiff when he should be thereunto afterwards requested by the said plaintiff. 2. That the said plaintiff, relying on the said under- taking and promise of the said defendant, has always remained, and still is, unmarried and ready and willing to marry the said defendant. 3. That the said defendant, to wit, on , at , married another person, to wit, V. K., and did not marry the said plaintiff. BRIEFS § 1. Necessity for and contents. § 2. Service of. § 3. Supplemental briefs. § 4. Effect of failure to serve seasonably. S 5. Filing copies of. § 6. Who may file. § 7. Remedy where insufficient or improper. Cross-references; Supreme Court; Error, Writ op; Assignments or Ebsob. 244 Briefs §1 § 1. Necessity for and contents. The lirief of a i^arty bringing a cause into the supreme court shoukl contain ^ a clear and concise statement of the facts of the case, distinct from the argument,^ and of the errors upon which he relies,' the questions in- volved and the manner in which they are raised.* It is not the jjrovince of the court in any of these respects to perform the duties devolving upon counsel and usual- ly no attempt will be made to do so.* Such omissions are productive of much inconvenience to the court and are hazardous to the interests of an appellant.^ The court will consider the appellant's statement of facts sufficient and accurate unless the opposite party points out in his brief wherein the statement is insufficient or inaccurate.''' If the appellee, instead of merely pointing out wherein the statement of facts made by the appellant is insufficient or incorrect, makes a new statement at ISup. Ct. Kule 40. aPreeman v. Shaw, 173 Mich. 262; Carby v. Combs, 166 Mich. 347; Mills v. Warner, 167 Mich. 619; Yanelli v. Littlejohn, 172 Mich. 91; Euttle v. Foss, 161 Mich. 132; Jones V. Cody, 132 Mich. 13; Stowe V. United States Exp. Co., 179 Mich. 349; Reed v. McCready, 170 Mich. 532. But see St. James v. Erskine, 155 Mich. 506. Diseonne<'ted excerpts from the testimony are not a compliance. Carby v. Combs, 166 Mich. 347. 3 People V. Van Alstyne, 157 Mich. 366; Vincent v. Port Huron Sav. Bank, 147 Mich. 437; Rogers v. Fer- ris, 107 Mich. 126; Ransom v. Wes- ton, 110 Mich. 240; McKirchey v. Mcllvenna, 161 Mich. 57; Hunter v. Dwight Tp., 157 Mich. 634; Wavle v. Michigan United R. Co., 170 Mich. 81. 4 Sup. Ct. Rule 40; People v. Mar- tin, 176 Mich. 381; Gould v. Young, 143 Mich. 572; Eberts v. Detroit, etc., R. Co., 151 Mich. 260. It is not sufficient, in stating the errors relied on, to merely refer to marginal numbers on the record. Carby v. Combs, 166 Mich. 347. 6 Keenan v. City of Mount Pleas- ant, 176 Mich. 620; St. James v. Erskine, 155 Mich. 606; Bickle v. Jameson, 146 Mich. 483. 6 Hunter v. Dwight Tp., 157 Mich. 638; People v. Peck, 139 Mich. 680. 7 Sup. Ct. Rule 40; Ten Broek v. Jansma, 161 Mich. 597; Ferguson V. Wilson, 122 Mich. 97; Shingle- meyer v. Wright, 124 Mich. 230 Freeman v. Shaw, 173 Mich. 262 Sassaman v. Wells, 178 Mich. 167 People V. McGregor, 178 Mich. 436 Wliitford V. Washington Tp., 184 Mich. 422; Carby v. Combs, 166 Mich. 347; Galvin v. Detroit Steer- ing Wlieel, etc., Co., 176 Mich. 569; Bartholomew v. Walsh, 191 Mich. 252. §1 Briefs 245 length, the court may disregard it entirely and accept the statement of the appellant.® The statement by the appellant will be considered as sufficient and accurate if the appellee points out nothing to the contrary.® In- accuracies in the appellant's statement of facts should be pointed out in the beginning of the appellee's brief rather than in later portions of it.^® The failure of an appellant to present a brief precludes a consideration of the eiTors assigned by him,^^ and, even though a brief be presented, all assignments of error which are not discussed in it will be treated by the court as abandoned.^^ Moreover, only such points as an ap- pellant makes and relies upon in his original brief will be considered by the court in disposing of the case. Additional points discussed in a supplemental brief will not be considered." 8 Berry v. Harbor Springs R. Co., 173 Mich. 181; Shinglemeyer v. Wright, 124 Mich. 230; People v. Boyd, 151 Mich. 577; Haden v. Clos- ser, 153 Mich. 182; Cobe v. Sum- mers, 143 Mich. 117. 9 Chase v. Michigan United Rya. Co., 165 Mich. 493. 10 Monger v. New Era Ass 'n, 145 Mich. 683. HBusch V. Fisher, 89 Mich. 192. Briefs on motions in supreme court are necessary. Sup. Ct. Rule 30. l2Nissly V. Detroit, etc., R. Co., 168 Mich. 676, 682; In re Warring 's Estate, 196 Mich. 720; Lacas v. De- troit City R. Co., 92 Mich. 412; Shippy V. Village of Au Sable, 85 Mich. 280; Williamson v. Hannan, 200 Mich. 658; Sullivan v. Hall, 86 Mich. 7; Graves v. City of Battle Creek, 95 Mich. 266; Lynch v. Craney, 95 Mich. 199; Ashman v. Flint, etc., R. Co., 90 Mich. 567; Black V. Dawson, 82 Mich. 485; Warnes v. Brubaker, 107 Mich. 440; French v. Ryan, 104 Mich. 625; Anketell v. Hayward, 119 Mich. 525; Ferguson v. Wilson, 122 Mich. 97; Carmer v. Hubbard, 123 Mich. 333; People V. Cole, 139 Mich. 312; Busch V. Fisher, 89 Mich. 192; Ma- son V. Patrick, 100 Mich. 577; Gerardo v. Brush, 120 Mich. 405; Walker v. Mack, 129 Mich. 527; Smith V. Michigan Realty, etc., Co., 175 Mich. 600; People v. Jefferson, 161 Mich. 621; Cronenwett v. United States, etc., Ins. Co., 140 Mich. 522; Walsh V. Lake Shore, etc., R. Co., 185 Mich. 177; People v. Cole, 139 Mich. 312. What constitutes discussion, see French v. Ryan, 104 Mich. 625; Mason v. Patrick, 100 Mich. 577. 13 Lake Erie Land Co. v. Chilin- ski, 197 Mich. 216; People v. Cole, 139 Mich. 312; Black v. Dawson, 82 Mich. 485; Ashman v. Flint, etc., R. Co., 90 Mich. 567; Hewitt v. Morley, 111 Mich. 187; AnketeU v. 246 Briefs §1 Assignments of errors not discussed in appellant's brief will be treated as waived notwithstanding appel- lant in his brief states that he does not waive any assign- ment," and although the point was argued at the hear- ing.^* So objections in the brief which contain no argu- ment in support thereof will not be considered.^^ The briefs must fairly present the case on each side/''' but not contain suggestions that the record does not fairly set out the facts. ^® Contentions will not be considered where involving an extended computation which appellant has not incorporated in his brief.^^ Where testimony is re- Hayward, 119 Mich. 525; Hart v. Doyle, 128 Mich. 257; Foster v. East Jordan Lumber Co., 141 Mich. 316; Lewis v. Jacobs, 153 Mich. 664; Lacas v. Detroit City Ey. Co., 92 Mich. 412; Escanaba Timber Land Co. v. Rusch, 147 Mich. 619; South Arm Lumber Co. v. Silver- throne, 138 Mich. 465; Ferguson v. Wilson, 122 Mich. 97; Gerardo v. Brush, 120 Mich. 405; Lewis v. Ja- cobs, 153 Mich. 664; Nissly v. De- troit, etc., R. Co., 168 Mich. 676; O'Dell V. Goff, 153 Mich. 643; Ro- senthal V. Rosenthal, 154 Mich. 533 ; Lubbeys v. Manlius Tp., 172 Mich. 387; Smith v. Michigan Realty & Construction Co., 175 Mich. 600; Priebisch v. Ottenwess, 176 Mich. 476; In re Hoffman's Estate, 183 Mich. 67. 14 Ashman v. Flint & P. M. R. Co., 90 Mich. 567; Warnes v. Bru- baker, 107 Mich. 440; Carmer v. Hubbard, 123 Mich. 333. 15 Lacas v. Detroit City Ry. Co., 92 Mich. 412; O'Dell v. Goff, 153 Mich. 643. 16 Greenman v. O 'Riley, 144 Mich. 534; Walker v. Mack, 129 Mich. 527; McKerchey v. Mcllvenna, 161 Mich. 57. Where appellant in his brief, in discussing assignments of error, merely stated that any discussion of the same would be a reiteration of the argument in support of pre- vious assignments considered, he waived the assignment. Pierson v. Illinois Cent. Ry. Co., 149 Mich. 167. 17 See Hoffman v. Pack, Woods & Co., 114 Mich. 1. Where the exceptions to findings of fact do not state the grounds of the exceptions, but in his brief ap- pellant claims they are not sup- ported by the evidence, it will be presumed that that was the ground of the exception. First Nat. Bank V. Walker, 115 Mich. 434. Where the brief states it is based on findings of law, it will be as- sumed that the only question raised is whether the findings of fact sup- port the conclusions of law. Wes- ton Lumber Co. v. Munising Tp., 123 Mich. 138. 18 Briggs V. Milburn, 40 Mich. 512. WMcLeod v. Hunt, 128 Mich. 124. § 1 Briefs 247 lied on in tlie brief, the place in the record where it is found must be pointed out or it will not be considered.'^® But where the record and the brief of appellant are printed and served at the same time, it is proper to en- close the clauses of the charge, which are objected to, in brackets in the record and refer to the brackets by numbers.^^ Statements in the brief will not warrant the supreme court in drawing any inference of fact opposed to the findings of the trial judge.^^ And of course the record cannot be supplemented by voluntaiy and un- supported statements of fact in the brief.^' Even though assignments of error are mentioned in an appellant's brief, if the exceptions relied upon are not indexed in the printed record and the pages upon which they may be found are not referred to, either in the assignments of error or the brief, they wall not be considered.^* Positions assumed by counsel should be sustained by citation of authorities. Where adjudicated cases are cited, reference should be made to the official reports rather than to unofficial publications.^^ There is, how- ever, no objection to the citation of unofficial publica- tions, if the official reports be also cited or if the case is not reported in the official reports.^^ In citing cases, 20 Rogers v. Ferris, 107 Mich. 126. 24 Reeder v. Moore, 95 Mich. 594 21 Dikeman v. Arnold, 83 Mich. Pease v. Miiiiro, 83 Mich. 475 218. Nichol V. Ward, 156 Mich. 136 22 Hoffman v. Silverthorn, 137 Duff v. Judson, 160 Mich. 386 Mich. 60. Showen v. J. L. Owens Co., 182 23 In re Marx's Estate, 201 Mich. Mich. 264; Niagara Sprayer Co. v. 504. Wood, 186 Mich. 303; Sup. Ct. Rule When attorneys testified on both 36. sides, the conflict in their testimony 26 Webber v. Hayes, 117 Mich, should not be commented on in the 256; People v. Jamieson, 124 Mich, brief by a reference to their re- 164. spective ratings in Martindale's 26 Webber v. Hayes, 117 Mich. American Law Directory. Sellers 256. V. Perry, 191 Mich. 619, 628. 248 Briefs § 1 the title of the case as well as tlie volume and page of the book should be given.^'' § 2. Service of. Two copies of the appellant's brief are required to be served upon the appellee as soon as printed and at least twenty days before the first day of the term at which the cause is regularly noticed for hearing. Two copies of the appellee 's brief must be served upon the appellant as soon as printed and at least five days before the first day of the term at which the cause is regularly noticed for hearing, unless the printed record and the appellant's brief are served thirty days before the first day of the term, in which case the appellee's brief must be served at least fifteen days before the first day of the term.^' § 3. Supplemental briefs. The original briefs of the parties should fairly present the case on each side; but supplemental briefs may be printed and served at any time before a cause is placed upon the call for argument, and subsequently by special permission of the court onl}'-.^® Only such points, how- ever, as a party treats in his original brief will be con- sidered by the court, the function of supplemental briefs being confined to the elaboration of the points so treated, and not permitted to be extended to the argument of any additional points. '° § 4. Effect of failure to serve seasonably. If the brief of either party is not served within the time limited for serving it, the opposite ])arty may, at a^Schulte V. Kelly, 124 Mich. 330. though he be the appellee. Pinel v. 28 Sup. Ct. Eule 41. In chancery Pinel, 172 Mich. 611. cases, it is the duty of the plaintiff, 20 Sup. Ct. Rule 41. after a hearing and decree on plead- 30 Black v. Dawson, 82 Mich. 485 ; ings and proofs, to furnish the first Anketell v. Hay ward, 119 Mich. 525. brief in the supreme court, even Brokers 249 his option, on the first day of the term, have the cause placed at the foot of the calendar or continued, and the court may, in proper cases, order the payment of a coun- sel fee by the party in default.^^ § 5. Filing copies of. Eighteen copies of all briefs are required to be filed at least forty-eight hours before the case has been placed on call; and no oral argument will be heard on behalf of a party failing to comply with this provision.*'' § 6. Who may file. In addition to the appellant and appellee, in case of a writ of error or certiorari, or the parties to a mandamus proceeding brought in the supreme court, the supreme court frequently accepts briefs filed by persons who may be interested in the proper solution of questions sub- mitted to the court for determination, and it has been said that ' ' the practice should not be discouraged. ' ' ** § 7. Remedy where insufficient or improper. A brief, although open to criticism because of intem- perate language, will not necessarily be stricken from the files.** BROKERS Form of Count Against a Shipping Broker for Not Forwarding Plaintiff's Goods by Vessel The plaintiff says: 1. That, before and at the time of the making of the promise and under- taking of the said defendant hereinafter mentioned, the said defendant was a shipping broker and the proprietor of an office for the reception of goods to be forwarded and sent by vessel from the port of Detroit to Duluth, and for keeping such goods until the same should be delivered by tlie said 31 Sup. Ct. Rule 41. 84 Landsberger v. Joyce, 203 Mich. 32 Sup. Ct. Rule 42. 156. See Sellers v. Perry, 191 Mich. 33 Harrington v. Otsego Circuit 619, 628. .hulge, 204 Mich. 327. 250 Brokers defendant -within a reasonable time to the master or crew of such vessel, to be shipped on board, for the purpose aforesaid. 2. That, thereupon, to wit, on , at , in consideration that the plaintiff, at the request of the said defendant, delivered to the said defendant at his office certain goods, to wit, , of great value, to wit, of the value of dollars, upon the terms that the said defendant should safely keep the said goods until the same should be delivered by the said defendant, within a reason- able time, to the master or crew of a vessel about to proceed from the port of Detroit to Duluth, for the purpose aforesaid, for reward to the said defendant in that behalf, the said defendant undertook and promised tho said plaintiff that he would safely keep the said goods in his office until the same should be so delivered by him and that he would, within a reasonable time, deliver the same to the master or crew of the vessel about to proceed from the port of Detroit to Duluth, to be shipped on board, from the port of Detroit to Duluth. 3. That the said defendant received the said goods upon the terms aforesaid. 4. That such vessel did, within a reasonable time, proceed from the port of Detroit to Duluth. 5. That the said defendant could and ought to have delivered the said goods to the master or crew of such vessel, to be shipped on board from the port of Detroit to Duluth. 6. That such reasonable time has elapsed since the said goods were deliv- ered to the said defendant as aforesaid. 7. That the said defendant did not, within such reasonable time, deliver the said goods to the master or crew of such vessel for the purpose aforesaid, but wrongfully and carelessly kept and detained the same for an unreasonable time, to wit, since the de- livery thereof to him as aforesaid hitherto at his said office. 8. That thereby the said goods perished and wasted, and became of no use or value. 9. That thereby the said plaintiff lost great gains and profits from the sale thereof. BUILDING AND LOAN ASSOCIATIONS See Commencement of Actions; Exemptions. BUILDINGS See Ejectment; Replevin. BURDEN OF PROOF See Trial (instructions as to) ; Mandamus; Quo Warranto. CA. SA. See Executions. CALENDAR See Trial; Supreme Court (calendar in supreme court); Garnish- ment. Carriers 251 CAPIAS AD RESPONDENDUM See Commencement of Actions, IV; Bail; Mandamus; Ekror, Writ of. CAPTION See Affidavits; Pleading; Process. CARD PLAYING See Trial. CARRIERS Tlie law governing common carriers is well set forth in Hutchinson on Carriers. In regard to practice in con- nection with actions relating to carriers, the general rules apply the same as in other like actions. So far as service of process to commence an action against certain car- riers, where corporations, is concerned, reference should be made to the article entitled ''Commencement of Actions." A few forms of declarations in actions against carriers are added hereto. state Bar Association Form of Declaration for Injury to Goods by a Carrier (Title of court and cause.) The plaintiff says: 1. That the defendant is a corporation organized under the laws of this state and is a common carrier of goods from to 2. That, on , 19.., the plaintiff delivered to the defendant, and the defendant as such carrier received from the plaintiff at , cer- tain goods described as follows: (Describe them.) 3. That the defendant agreed as such carrier to carry said goods safely from to for hire. 4. That the defendant did not carry said goods safely, but caused or permitted them to be damaged in the following respects: (State the items of damage.) 5. Wherefore, etc. Another Form of Count for Losing or Injuring Goods The j)laiiitiff says: 1. That, before and at the time of the making of the undertaking and promise next hereinafter mentioned, the said defendant was a common carrier of goods for hire. 2. That, thereupon, to wit, on , at , '>r.'^ Carriers in consideration that the said plaintiff, at the request of the said defend- ant, delivered to the said defendant, by way of his business as such com- mon carrier, certain goods, to wit, , of the value of dollars, upon the terms that the said defendant should take care of and safely and securely carry the said goods, as such common carrier, from to , and should, at said last-named place, deliver the said goods to the said plaintiff, for reward to the said defendant in that behalf, the said defendant undertook and promised tlie said plaintiff that he would care of and safely and securely carry the said goods from to , and would, at said last-named place, deliver the same to the said plaintiff. 3. That the said defendant did not take care of and did not safely and securely carry the said goods for the said plaintiff, and did not deliver the said goods to the said plaintiff. 4. That, thereby said goods were not delivered to the said plaintiff and are lost to him. Form of Count in Case Against Common Carrier for Injuring Goods The plaintiff says: 1. That before and at the time of the delivery of the goods and chat- tels to the said defendant, as hereinafter mentioned, the said defendant was, and since hitherto has been, a common carrier of goods for hire from to 2. That the said plaintiff, to wit, on , at , delivered to the said defendant, as such common carrier, certain goods, to wit, , of him, the said plaintiff, of great value, to wit, of the value of dollars, and the said defendant, as such common carrier, then and there accepted and received the said goods, to be safely and securely carried by the said defendant from , aforesaid, to , aforesaid, and, at the place last aforesaid, delivered to the said plaintiff in as good condition as when received, for reward to the said defendant in that behalf. 3. That thereupon it became and was the duty of the said defendant safely and securely to carry the said goods from aforesaid to aforesaid and there to deliver the same to the said plaintiff in as good condition as when received. 4. That the said defend- ant did not safely or securely carry the said goods from to aforesaid, and, at such last-named place, deliver the same to the said plaintiff in as good condition as when received, but so carelessly, negli- gently and unskillfully conducted himself in the premises that thereby the said goods became and were afterwards, to wit, on , at , greatly damaged and deteriorated in value, to wit, dollars, and became and were of little or no use or value to the said plaintiff. Form of Count in Case Against Common Carrier for Losing Goods The plaintiff says: 1. That before and at the time of the delivery of the goods and chat- tels, as hereinafter next mentioned, to the said defendant, he, the said defendant, was, and thence hitherto has been, a common carrier of goods for hire, to wit, from to 2. That the said plaintiff, to wit, on , at , caused to be delivered to the said defendant, as such common carrier, and the said defendant, as such common carrier, Carriers 253 received and accepted from the said plaintiff certain goods and chattels, to wit (here describe the goods by parcels and contents), of the said plaintiff, of great value, to wit, of the value of dollars, upon the terms that the said defendant should safely carry the said goods from , aforesaid, to , aforesaid, and there safely deliver the same to the said plaintiff, for certain reasonable reward to the said defendant in that behalf. 3. That thereupon it then and there became the duty of the said defendant safely to carry the said goods from aforesaid to aforesaid, and there safely deliver the said goods to the said plaintiff. 4. That the said defendant did not safely carry the said goods from aforesaid to aforesaid, nor, to wit, at afore- said, safely deliver the same to the said plaintiff, but, on the contrary thereof, carelessly and negligently conducted himself in the premises. 5. That, through the carelessness, negligence and default of the said defend- ant in the premises, the said goods, to wit, on the day and year afore- said, at , aforesaid, were wholly lost to the said plaintiff. Porm of Count Against the Owner of a Steamboat for Negligence The plaintiff says: 1. That the said defendant, before and at the time of committing the grievances next hereinafter mentioned, was the proprietor of a certain steamboat, moved and propelled by steam, called the " , " by the said defendant used in carrying passengers and goods, wares and mer- chandise on the waters of , from to , and to divers other places. 2. That the said defendant, on , at , received upon the said steamboat , the wife, and and , the children, of the said plaintiff, as passengers thereon from aforesaid to aforesaid, for certain fare and reward to him, the said de- fendant. 3. Tliat thereupon it then and there became the duty of the said defendant carefully, safely and securely to carry the said wife and children of the said plaintiff, in the said steamboat, from afore- said to aforesaid. 4. That the said defendant conducted himself carelessly, negligently and unskillfully in the premises. 5. That by and through such carelessness, negligence and unskillfulness of himself and his servants, in generating the steam for propelling the said steamboat, and in managing, regulating and securing the same, while the said steam- boat was carrying the said wife and children of the said plaintiff, as aforesaid, and before the arrival thereof at , to wit, on , at , and while the said plaintiff and his said wife and children were in the exercise of due care, divers large quantities of steam escaped from the boiler and apparatus wherein the same was generated on the said steamboat and drove into and fell upon the said wife and children of the said plaintiff. 6. That, by means thereof, the said wife and chil- dren of the said plaintiff were respectively grijitly hurt, burned and scalded, and became sick, sore, lame and disordered. 7. Tliat the said wife of the said plaintiff and the said and have each con- tinued so sick, sore, lame and disordered for a long space of time, to wit, thence hitherto, to wit, at 8. That, during all of th.ii time the 254 Carriers said plaintiff has been deprived of the aid, comfort and assistance of his said wife and of the said and , in the management of his domestic affairs, and has been obliged to incur and did incur great expense, to wit, the sum of dollars, in endeavoring to cure his said wife and children of their said sickness, soreness, lameness and dis- order. 9. That the said plaintiff was also thereby prevented from attend- ing to his necessary affairs and business, to wit, for months then next ensuing. CASE, ACTION ON § 1. Effect of Judicature Act. § 2. Nature of action at common law. § 3. History of action. ^ 4. When case was proper form of action. § 5. Concurrence of wrong and injury. Cross-Be fercnces: Actions; Trespass on Lands; Trover and Conver- sion ; Libel and Slander ; Malicious Prosecution ; Negligence. § 1. Effect of Judicature Act. Under the Judicature Act, outside of replevin and ejectment, there is but one form of action based on a tort, unless the tort is waived, and that is denominated an action of trespass on the case.^ Case, in addition to its original scope, takes the place of trespass and trover, but the former provisions permitting assumpsit to be brought in certain cases of fraud, trespass, conversion, etc., are not repealed.^ The result is that, outside of re- plevin and ejectment and certain cases when assumpsit may be brought, there is but one form of action ex delicto. However, as has been pointed out, there seems to be no good reason why the action of trespass on the case, — with its name retained, — should have been preserved, instead of abolishing all forms of action ex delicto except re- plevin and ejectment.^ For instance, in an action for conversion, where the form of action would formerly have been trover, the declaration even now must either fol- 1 See Actions, 3 See Actions. 2 See Assumpsit. § 3 Case, Action on 255 low the old form of declarations in trover or else con- tain such information as shall reasonably inform defend- ant of the nature of the case he is called upon to de- fend.* It will not be amiss, however, to briefly consider the nature of the action of trespass on the case as it existed prior to the Judicature Act. § 2. Nature of action at common law. At common law, the action of trespass on the case was the appropriate action for all personal wrongs and injuries without force, that is, injuries not in legal con- templation forcible, or not direct and immediate on the act done, but only consequential. In its most compre- hensive signification, it included assumpsit as well as an action in form ex delicto, and it has, therefore, been said to lie where a party sues for damages for any wrong or cause of complaint to which covenant or trespass will not apply.^ At the present time, however, assumpsit is not regarded as an action ex delicto. § 3. — - History of action. The action of trespass on the case is so called because the plaintiff's whole case or cause of complaint was set forth at length in the original writ.^ At common law, if none of the ancient forms of writs collected and pre- served in the register of writs was adapted to the nature of the plaintiff's case, he was nevertheless at liberty to bring a special action upon his own case, to accord with which new forms of writs were framed and termed ''brevia magistralia," from the circumstance that they were framed by the officers of the court of chancery. But as these officers were found reluctant to perform this duty, or doubted their authority in new cases to frame 4 See Pleading. «3 Cooley's Bl. Coiiim. 122. 6 1 Chit. PI. 140; Steph. PI. 48. 256 Case, Action on § 3 the proper remedy, parliament enacted the statute of Westminster II, providing * ' that, as often as it shall hap- pen in the chancery that in one case a writ is found, and in a like case, falling under the same right, and requir- ing like remedy, no writ is to be found, the clerks of the chancery shall agree in making a writ, or adjourn the complaint till the next parliament, and write the cases in which they cannot agree and refer them to the next parliament; and, by consent of men learned in the law, a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto com- plainants." "^ This statute, it will be observed, while it gives to the officers of the chancery the power of framing new writs in like cases with those that formerly existed and en- joins the exercise of that power, does not give or recog- nize any right to frame such instruments in cases en- tirely new. It seems, therefore, that, for any case of that description, no writ could be lawfully issued except by authority of parliament. But, on the other hand, new writs were copiously produced according to the principle sanctioned by this act, i. e., in like cases or upon the analogy of actions previously existing.^ The injuries for which new writs were thus invented were considered as bearing a certain analogy to a trespass, and the writs accordingly received the appellation of ''writs of tres- pass on the case," as being founded upon the particular circumstances of the case requiring a remedy, and to distinguish them from the old writ of trespass. The in- juries themselves which were the subject of such writs are not called trespasses, but have the general name of torts, wrongs or grievances. The writs of trespass on '1 Chit. PI. 107; Steph. PI. 42. time to time, by the express author- This statute was enacted in the thir- ity of parliament. Large accessions teenth year of the reig^Ti of Edward were made to the ancient stock of I. l)revia originalia. Steph. PI. 42. 8 Other writs were also added from § 4 Case, Action on 257 the case, though varying in each particular case accord- ing to the nature of it, began nevertheless to be looked upon collectively^ as a single new form of action, which, by the name of '^ trespass on the case," took its place by the side of the more ancient actions of covenant, debt and trespass.® § 4. When case was proper form of action. The action of trespass on the case comprised all actions for torts or injuries effected without force, and for torts and injuries arising from the forcible or violent act of another when the tort or injury was not the immediate effect of the force, but merely a consequence of it.^" Notwithstanding the injury was an immediate effect, yet if it was not willful, but occasioned by the carelessness and negligence of the defendant, the plaintiff was at lib- erty to bring an action on the case. If it were willful, the common law required trespass and not case to be brought; but this rule was soon very much changed by statute, so that it, in general, was immaterial, so far as regards the form of action, whether the injury was will- ful or not." Case was the proper remedy for any injury to the ab- solute rights of persons not immediate, but conse- quential, as for keeping mischievous animals, having no- tice of their propensity, or for special damage arising from a public nuisance, for malicious prosecutions, libels, slanders and seductions, ^^ for injuries to the relative rights of persons, as for seducing or harboring wives, enticing away or harboring apprentices,^^ for injuries to 9Steph. PI. 49; 3 Cooley's Bl. v Smith, 39 Mich. 222 (as to mali- Comm. 50, 51. cious prosecution) ; Stoudt v. Shep- 10 Tiff. Jus. Guide 763; Barry v. herd, 73 Mich. 588; Weiher v. Mey- Pcterson, 48 Mich. 263; Wyant v. ershain, 50 Mich. 602; Watson v. Grouse, 127 Mich. 158. Watson, 49 Mich. 540. 11 Tiff. .Tus. Guide 763. 13 1 Chit. PI. 150. 12 1 Cliit. PI. 149, 150; Hamilton 1 Abbott— 17 258 Case, Action on § 4 personal property not committed with force, or not im- mediate, or where the plaintiff's right thereto was in reversion. It lay against attorneys or other agents for neglect or other breach of duty or misfeasance in the conduct of a cause or other business, though it was more usual to declare against them in assumpsit. And al- though assumpsit was and is a common remedy for neglect or breach of duty against carriers, wharfingers, innkeepers, warehousemen and other bailees of personal l)roperty, whose liability is founded on the common law as well as on contract, yet it is clear that they are also liable in case for an injury resulting from their neglect or breach of duty in the course of their employment or business." Case is the proper action for waste; ^^ for damages to property communicated by infection;^® for damages to one's vehicle from stones deposited in the highway, through which the plaintiff had to drive ; " for injuries in a collision caused by defendant's neglect.^* ^\jid, indeed, whenever no specific remedy is given for a wrongful injury, a remedy may generally be had by special action on the case, because, whenever the com- mon law gives a right or prohibits an injury, it also gives a remedy by action.^® § 5. Concurrence of wrong and injury. Injury alone would not support an action on the case; a concurrence of injury and wrong was necessary. The wrong might consist in an act unlawful in itself. But if a man does an act that is not unlawful in itself, he can- not be held responsible for any resulting injury, unless he does it at a time or in a manner or under circum- stances which render him chargeable with a want of proper regard for the rights of others. In such a case, 14 1 Chit. PI. 151. 18 Bradford v. Ball, 38 Mich. 673. 16 Lee V. Payne, 4 Mich. 106. 19 Stout v. Keyes, 2 Doug. 184 ; 16 Eaton V. Winnie, 20 Mich. 156. 3 Cooley's Bl. Comm. 122; Birkley 17 Green v. Belitz, 34 Mich. 512. v. Presgrave, 1 East 226. § 1 Case Made 259 the negligence imputed to him constitutes the wrong, and he is accountable to persons injured, not because the damage has resulted from his doing the act, but be- cause its being done negligently or without due care has resulted in injury. If the act was not wrongful in itself, the wrong must necessarily be sought for in the time or manner or circumstances under which it was per- formed; and injury does not prove the wrong, but only makes out the case for redress after the wrong is estab- lished.^" CASE MADE I. Before Judgment * § 1. Procedure. § 2. Removal to suiireuie court. II. After Judgment § 3. Scope of as mode of review. § 4. Election between case made and writ of error. § 5. Time for making and settling ease. § 6. Contents. § 7. Practice in settling case. § 8. Eemoval of case made to supreme court. § 9. Notice of filing. § 10. Limitation of time for removing case made. § 11. Assignments of error. § 12. Notice of hearing. § 13. Procuring cause to be placed on calendar. § 14. What will be reviewed. § 15. Judgment of supreme court. § 16. Costs. S 17. Motion to dismiss. Cross-Befcrences: Error, Writ of; Bill of Exceptions; Assignments OF Error; Supreme Court. I. Before Judgment § 1. Procedure. The parties to a civil action pending in any circuit court, or to any question of difforonco which might be 20 Macomber v. Nichols, 34 Mich. 260 Case Made § 1 the subject of a civil action, without bringing suit, may agree upon a case containing the facts of the matter in controversy and submit it to the court; and the court will thereupon hear and determine the cause and render judgment thereon as in other cases. If such case be agreed upon without action, it must appear by affidavit that the controversy is real and the proceeding in good faith to determine the rights of the parties.* The case agreed upon should be signed by the parties or their attorneys and filed in the court, so that it can, if occasion require, be certified to the supreme court, and should distinctly shoAV upon its face that it is a case agreed upon before judgment.^ The case is not a mere stipulation concerning evidence from Avhich the court may draw inferences of fact or which may be supple- mented by evidence of further facts, but operates rather as a special verdict or finding, and should, therefore, contain all of the material facts.' § 2. Removal to supreme court. If either party to a case agreed upon before judgment wishes to have the cause removed to the supreme court after judgment thereon, the clerk is required to certify the case agreed upon and the judgment thereon to the supreme court; whereupon that court will be possessed of the cause and may give such judgment and award such costs as justice may require.* No bill of exceptions or writ of error is necessary. The case goes to the supreme court on the certificate of the clerk, and the only question before that court is whether the facts em- bodied in the case sustain the judgment. 1 Jud. Act, ch. 6, § 1, subd. 7 ; Mich. 279 ; Cofrode v. Gartner, 79 Comp. Laws 1915, § 12299, subd. 7. Mich. 332. 2 Farrand V. Bentley, 6 Mich. 281. 4 Jud. Act, ch. 50, §17; Comp. 3 Goodrich v. City of Detroit, 12 Laws 1915, § 13752. § 4 Case Made 261 II. After Judgment § 3. Scope of as mode of review. Any ruling, order or finding of the circuit court or circuit judge or judgment of the circuit court, review- able by writ of error, may, at the option of the complain- ing party, be reviewed by case made.^ The practice of resorting to case made is quite as appropriate as that by writ of error.® The office of a case made is no broader than that of a writ of error and bill of exceptions, but it is just as broad,' and, therefore, as it is elsewhere ex- plained ^ in what cases a writ of error will lie and in what it will not, it will be unnecessary to repeat in this place what is said in that connection. Case made, like a writ of eiTor, may be resorted to as well when the case was tried by the court below with a jury as when it was tried by the court without a jury. The sole object is to do away with the necessity of a bill of exceptions and writ of error, by permitting the par- ties to bring before the supreme court in a case to be made after trial all the questions arising thereon that could properly be embodied in a bill of exceptions.^ But a case made should point out the errors relied upon as clearly as a bill of exceptions, ^° and exceptions are just as necessary when a review is sought upon a case made as upon a writ of error.^^ § 4. Election between case made and writ of error. A party has a right of election Avhether he will bring bis case to the supreme court by a writ of error or on a 6Cir. Ct. Kule 67. 9 Bcosoii v. Hollistor, 11 Mich. 6 Wheclor v. Wilkins, 19 Mich. 78; 193. Soper V. Fray, 37 Mich. 236; 10 Tuxbury v. French, 39 Mich. Schmidt v. Miller, 22 Mich. 278; 190; Probasco v. Cook, 39 Mich. Drake v. International Harvester 714. Co., 150 Mich. 561. 11 Turner v. City of Grand Eajiids, TEarle v. Westchester Fire Ins. 20 Mich. 390; Wcrtin v. Crocker, Co., 29 Mich. 414. 47 Mich. 642. 8 See Error, Writ of. 262 Case Made § 4 case made, but he cannot do both, and, when he has made his election to proceed by writ of error, he is bomid thereby and cannot resort to the other. By procuring a bill of exceptions to be settled and filing the same, he makes his election to pursue that method and is not en- titled to settle a case made afterwards; ^^ and, converse- ly if a party has settled a case made, he waives it by suing out a writ of error." § 5. Time for making and settling case. A party is entitled to the same time to make and settle a case, and the court may extend the time for so doing in the same manner and within the same limitations, as in the case of a bill of exceptions.^* A stipulation be- tween the parties for an extension of time to settle a case made is binding upon the court." § 6. Contents. No more of the testimony, proceedings or record in a cause should be set forth in a case made than is neces- sary to present the questions of law to be reviewed.^^ This should be done in narrative form, unless the trial court deems it necessary to a full understanding of the questions involved that the testimony be set out in full or in part by question and answer, in which case the trial court should so certify." A case made ought to point out the errors relied upon as distinctly as a bill of ex- ceptions is expected to.^^ It is as necessary that a party should have taken exception or objection to the ruling or action of the court when a review is sought on a case 12 Richardson v. Yawkey, 9 Mich. 17 Cir. Ct. Rule 66, § 8 ; Andrews 139. V. Lavery, 159 Mich. 26; South- 18 Hatch V. White, 18 Mich. 194. wick v. Wayne Circuit Judge, 173 14 Cir. Ct. Rule 67. See Bill of Mich. 472. Exceptions. 18 Tuxbury v. French, 39 Mich. IB Hartley v. Miller, 164 Mich. 47. 190. 16 Cir. Ct. Rule 67. § 6 Case Made 263 made as it is in the case of a bill of exceptions, and it is as necessary that a case made should show this to have been done as it is that a bill of exceptions should show it." A case made must show that it was settled and signed by the trial judge for review by the supreme court ; ^^ but, where the case is duly signed by the judge and pur- ports to have been settled before him, it will be pre- sumed that all the steps prerequisite to the signing were regularly taken. It is enough if the want of them does not appear.^^ Form of Case Made After Judgment (Title of court and cause.) This was an action of (state what). The declaration alleged that (state what briefly), and the plea was (state what briefly). The said issue came on to be tried in said court before the Honorable J. S., circuit judge, at a term of said court held on , at , in the county of aforesaid, and was tried with a jury. And upon the trial of the said issue, the plaintiff, to maintain the said issue upon his part, introduced as a witness W. S., who testified as fol- lows: (State such parts of the testimony as are necessary to present the questions of law raised by the exceptions and assignments of error. It must be in narrative form, unless the trial court determines it neces- sary to a full understanding of the questions of law that it be set out, in whole or in part, by questions and answers, in which case the trial court must so certify in writing. Any objections made and exceptions taken upon the introduction of the evidence must be made to appear.) And the said defendant, to maintain the said issue on his part, intro- duced as a witness J. B., who testified as follows: (State the testimony for the defendant in the same manner as above explained in relation to the testimony of the plaintiff.) The court thereupon charged the jury as follows: (Here state such parts of the charge as are necessary to present the questions of law raised.) Thereupon the jury retired, under the charge of an officer, to consider their verdict, and, after being absent for a time, returned into court and rendered the following verdict: (State the substance of the 19 Turner V. City of Grand Kapids, ton v. Parrott, 46 Mich. 432; 20 Mich. 390; Wertin v. Crocker, Hedges v. Hibbard, 46 Mich. 551. 47 Mich. 642; Wilkinson v. Earl, 20 Gard v. Stevens, 12 Mich. 9. 39 Mich. 626; McEannon v. Atkins, 21 Sallee v. Ireland, 9 Mich. 154. 60 Mich, 418. See also Chatter- 264 Case Made § 6 verdict.) And thoreiipoii the fourt rendered a jud^ient that (here state the judgment). (The assignments of error must accomjjany the case made at the time of its service and at the time of its settlement, and may be inserted at this point.) Signed and settled, as a case made after judgment, for review in the supreme court, this day of , A. D J. S., Circuit Judge. § 7. Practice in settling case. The rule provides that a case made shall be settled in the time and manner, and have attached thereto a state- ment of errors, the same as bills of exceptions, and the practice in settling and filing cases made shall be the same as that in settling bills of exceptions. ^^ Copies or abstracts of the material pleadings, docmnents, orders, verdict and judgment may be attached to the case made for the purpose of forming the record for the supreme court in the same manner and with the same effect as in the case of a bill of exceptions. ^^ § 8. Removal of case made to supreme court. When a case made has been settled and filed in the circuit court, either party has the right to cause it to be certified to the supreme court.^* It is the duty of the clerk of the circuit court, at the request of either party, to certify the case made to the supreme court, and this is the only way in which the case made can be so re- moved. The certificate of the clerk is essential to give the court jurisdiction to hear the cause, and the lack or insufficiency of the certificate is a defect which cannot be cured by stipulation of counsel.^^ 22 Cir. Ct. Rule 67, and see Bill 24 Robertson v. Little, 10 Mich. OF Exceptions. 371; Van Blareom v. Aetna Ins. Co., Dismissal for lack of assignment 6 Mich. 299. of errors, etc., see McKinnon v. At- 26 City of Grand Rapids v. Whit- kins, 60 Mich. 418. tlesey, 32 Mich. 192. 23 Cir. Ct. Rule 68. § 9 Case Made 265 Form of Certificate of Clerk on Case Made (Title of court and cause.) To the Supreme Court of the State of Michigan: I, W. S., clerk of the circuit court for the county of , do hereby certify that the foregoing case, made and settled in this cause, was filed with the clerk of the said circuit court on the day of , A. D ; and I do ' hereby certify the same to the supreme court, according to the statute in such case made and provided. In testimony whereof, I have hereunto set my hand, and affixed the seal of said circuit court, this day of , A. D W. S., Clerk. § 9. Notice of filing. Cases made are required to be filed with the clerk of the supreme court, and the party removing the case to that court is required to cause notice of such filing to be given to the adverse party or his attorney in the court below within ten days after such filing and to file proof of such service with the clerk of the supreme court. ^^ Form of Notice of Filing Case Made in Supreme Court State of Michigan. The Supreme Court. A. B., Plaintiff and Apj>cllee, vs. y C. D., Defendant and Appellant. j Sir:— You will please to take notice that the case made and settled in this cause, and the assignments of error thereto attached, heretofore filed with the Clerk of the Circuit Court for the County of , has been this day certified to and filed in the said Supreme Court by the clerk of said circuit court. Dated, etc. ^- . a^aucu, V. lours, etc., K. L., Attorney for Defendant and Appellant. Business address: , Mich. To J. K., Attorney for Plaintiff and Appellee. 26 Sup. Ct. Rule 17. 266 Case Made § 10 § 10. Limitation of time for removing case made. By analogy to the statute limiting the time for bring- ing writs of error to one year, the party who, for that length of time, neglects to cause the case he has pro- cured to be settled to be certified to the supreme court will be deemed to have abandoned it.^'' Within the limits within which the court might extend the time for set- tling and filing a case made, the parties may do so by stipulation.^' § 11. Assignments of error. As a case made is required, at the time of its settle- ment, to have attached thereto a statement of errors the same as bills of exceptions,^^ no further or other state- ment or assignment of errors is necessary after the case reaches the supreme court. § 12. Notice of hearing. After the filing in the supreme court of a case made, either party may notice the cause for hearing. Such no- tice must be given at least thirty days before the first day of the term at which argument is desired.^" § 13. Procuring cause to be placed on calendar. Like writs of error, cases made are calendar causes, and to be heard at any term must be placed on the cal- endar for that term.'^ The party noticing a cause for hearing must, at least twenty days before the first day of the term for which it is noticed for hearing, give no- tice to the clerk to place the cause on the calendar for the term ; but no cause can be entered on the calendar by 27 Van Blarcom v. Aetna Ins. Co., 29 Cir. Ct. Rule 67 ; McKiunon v. 6 Mich. 299; Ackley v. Sager, 30 Atkins, 60 Mich. 418. See gener- Mich. 264 ; Jud. Act, ch. 50, § 6 ; ally Bill of Exceptions ; Assign- Comp. Laws 1915, § 13741. ment of Errors. 28 Hartley v. Miller, 164 Mich. 47 ; 30 Sup. Ct. Eule 34. IN'ople V. Kalamazoo Circuit Judge, 31 Sup. Ct. Rule 43. lif) Mioh. 128. § 14 Case Made -267 the clerk until the case made has been filed in the supreme court, nor without the notice to the clerk to place it on the calendar.^'' §14. What will be reviewed. Any ruling, order or finding of the court or judge or judgment of the court reviewable by writ of error may, at the option of the complaining party, be reviewed on a case made.^^ The office of a case made is no broader than that of a writ of error and bill of exceptions, and it can be car- ried no further than to bring under review such actual rulings, involving questions of law, as might be pre- sented by bill of exceptions and writ of error. ^* No question can be reviewed in the appellate court upon case made, unless it appears that the trial court passed upon it.^^ Rulings on the admission of evidence can be reviewed on case made as well as on bill of exceptions;®^ and a case may be made containing the record or a statement of so much of it as may be material to the questions to be raised, and, when the case is so made, any question arising upon the record,* as stated or set forth in the case, and which has been ruled upon by the trial court, may be reviewed in the appellate court; such as a defect in process or its service,®' or the setting aside of a capias ad respondendum,®* but not the proceedings on entry of judgment by default and assessment of damages by the clerk, the court below not having passed upon them.®^ 82 Sup. Ct. Rule 44. 86 Soper v. Fry, 37 Mich. 236; 88Cir. Ct. Rule 67. Earle v. Westchester Fire Ins. Co., 84 Earle v. Westchester Fire Ins. 29 Mich. 414. Co., 29 Mich. 414. 37 Sallee v. Ireland, 9 Mich. 154; 86 Van Kleck v. Eggleston, 7 Wheeler v. Wilkins, 19 Mich. 78. Mich. 511 ; Chatterton v. Parrott, 38 Watson v. Watson, 47 Mich. 46 Mich. 432; Probasco v. Cook, 39 427. Mich. 714; Drake v. International 39 Beeson v. Hollister, 11 Mich. Harvester Co., 150 Mich. 561. 193. 268 Case Made § 14 Formerly a review upon the facts as well as upon the law could be had upon a case made,*° but the act of 1867 took away the power to review on the facts,*^ and it has never been restored,*^ so that, at the present time, ques- tions of law only are reviewable. The facts can no more come before the supreme court on case made than by bill of exceptions.** The suiDreme court will not weigh evidence, determine facts or review the findings of the court below upon questions of fact.** It is only where there is a total want of evidence, or where the finding or verdict is contrary to the undisputed evidence, that the supreme court will overturn the facts found by the court below.*^ And jurisdiction to review a case made upon the facts can- not be conferred by stipulation between the parties.*^ Error will not be presumed but must be shown by the record.*''' § 15. Judgment of supreme court. The judgment which will be entered upon a case made is the same as would be entered if the cause were brought up on a writ of error. It may be either an affirmance or a reversal, in whole or in part, of the judgment of the lower court, and, in case of a reversal, a new trial may 40Bou]]ion v. Lit<-hfiol(l, 14 Mich. 28 Mich. 123; Earle v. Westchester 299. Fire Ins. Co., 29 Mich. 414; City 41 Laws 1867, p. 198, No. 142; of Grand Rapids v. Whittlesey, 32 How. Stat. (2nd od.) §11844; Mich. 192; Peabody v. McAvoy, 23 Comp. Laws 191.''), n26;5:5n. Mich. 526; Tuxbury v. French, 39 4:2Jud. Act, ch. 18, §61; Comp. Mich. 190; Chatterton v. Parrott, Laws 1915, §12633. 46 Mich. 432; Wertin v. Crocker, 43 Tuxbury v. French, 39 Mich. 47 Mich. 642; Peck v. Snyder, 13 190; Earle v. Westchester Fire Ins. Mich. 21. Co., 29 Mich. 414. 45 Cragin v. Gardner, 64 Mich. 44Craoin v. Gardner, 64 Mich. 399; Tuxlmry v. French, 39 Mich. 399; Hcimbach v. Weinberg, 18 190. Mich. 48; In re Wisner's Estate, 20 46 Schmidt v. Miller, 22 Mich. Mich. 128; Schmidt v. Miller, 22 278. Mich. 278; Walrath v. Campbell, 47 Nixon v. Hood, 201 Mich. 133. Cause of Action 269 be ordered or may be refused and final judgment entered in tlie supreme court the same as on a writ of error.*^ §16. Costs. The general rules and considerations controlling the matter of costs upon writs of error control also when a cause has been brought before the court on a case made.** § 17. Motion to dismiss. A motion to dismiss a case made for irregularity must be made at the earliest opportunity. If not so made, it will be denied, unless some sufficient reason is shown to excuse the delay; ^" but, as the case must be in the supreme court before that court can take any action on it, a motion to dismiss a case made that has never been transmitted to and filed in that court will be denied.®^ Where a party has neglected to cause a case made to be filed in the supreme court within the time allowed therefor, the court will dismiss it if it be filed there- after; ^^ but a dismissal will not be ordered on the ground of delay merely, where the delay has been for a shorter period than that given by the statute for bringing writs of error." A case made will generally be dismissed where no objections whatever appear in the record." CATTLE See Animals; Replevin (description of in writ). CAUSE OF ACTION See Pleading; Joinder and Splitting of Causes of Action; Venue; Election Between Remedies. 48 See Error, Writ of. 62 Van Blarcom v. Aetna Ins. Co., 49 See Supreme Court. 6 Mich. 299. 50 Stewart v. Dixon, 6 Mich. 391. 53 Ackley v. Sager, 30 Mich. 264. 61 Robertson v. Little, 10 Mich. 64 Wilkinson v. Earl, 39 Mich. 371. 626. 270 Cemeteries CEMETERIES See Exemptions. See Plbiading. CERTAINTY CERTIFICATES See Affidavits; Depositions; Costs; Bail; Case Made; Attachment; Executions; Judgments; Justices of the Peace. CERTIORARI § 1. Definition. § 2. What court may issue writ. S 3. Circuit courts. S 4. As writ of right. 8 5. In what cases writ lies. S 6. Particular cases where writ does not lie. § 7. From supreme court to justices of the peace. § 8. Before final determination. § 9. Eeview of decisions of Industrial Accident Board. § 10. Who may allow writ. § 11. Who may apply for writ. § 12. Limitation of time for bringing. § 13. Against whom writ should run. § 14. Petition or affidavit. § 15. Notice of application for writ, briefs and order. § 16. Form of writ. § 17. Service of writ. § 18. Notice of issuance of writ. 8 19. Time for return. S 20. Who should make return. § 21. Form and contents of return. § 22. Further return. § 23. Conclusiveness and effect of return. § 24. Striking out return. § 25. Effect of failure to make return. § 26. Assignment of errors and notice of hearing. § 27. Printing of record and briefs. § 28. What errors will be considered. § 29. Judgment. § 30. On certiorari to Industrial Accident Board. § 31. Costs. § 32. Motion to dismiss writ. Cross-Be ferences: Justices of the Peace (certiorari to review judg- ment of in circuit court) ; Habeas Corpus (certiorari to inquire into cause of detention of prisoners) ; Mandamus (certiorari to review decision of). § 2 Certiokaei 271 § 1. Definition. A writ of certiorari is a writ issued by a superior court to an inferior court (whether of record or not of record), tribunal, board or officer, requiring the latter to certify to the former the record or proceedings in cases where the procedure is not according to the course of the common law. It is so called from the emphatic word in the Latin writ, which read, "quia certis de causis certiorari volumus," i. e., "because concerning certain causes we are willing to be certified. ' ' ^ § 2. What court may issue writ. The power to issue the writ of certiorari is vested in the supreme court by the constitution,^ and it cannot be taken away by legislative enactment.* It is true that legislative provisions, in given instances, may supersede the necessity for reviewing questions in this form, but the- propriety of proceeding by certiorari in those cases to which, by the principles of the common law, it is rightly adapted must depend on a sound judicial dis- cretion ; * but, while the power exists, it has been con- sidered one which should be exercised sparingly in cases where other adequate remedies can be had, and, where a decision can be taken up by appeal and on that appeal the jurisdictional questions, as well as those arising on the merits, can be fully disposed of, a certiorari should not be allowed, unless circumstances exist which show that a failure of justice will result from denying it.^ In view of the power conferred upon the circuit courts to IBac. Abr. tit. "Certiorari," A; 3 Specht v. City of Detroit, 20 Cyc. Law Diet. tit. "Certiorari"; Mich. 168; City of Detroit v. And. Law Diet. tit. "Certiorari." Wabash, etc., R. Co., 63 Mich. 712. As to the scope of the writ in Eng- 4 Specht v. City of Detroit, 20 land at the common law, see Board Mich. 168. of Supervisors v. Wag:oon, 109 111. 5 Farwoll v. Taylor, 12 Mich. 113 ; 146. Detroit, etc., R. Co. v. Graham, 46 2 Const. Art. VI 1, see. 4. Mich. 642. 272 Certiorari § 2 issue the common law writ of certiorari, the supreme court encourages the invocation of that jurisdiction in all cases to which it extends rather than its own, so that the allowance of a certiorari from the supreme court in those cases is exceptional, and not favored except where it is necessary to prevent a failure of justice.® § 3. Circuit courts. By statute, circuit courts have exclusive jurisdiction except as otherwise provided to issue writs of cer- tiorari.' By rule of court, they have jurisdiction to issue such writs ''in all cases where they may now be issued by the supreme court to probate courts, circuit court commissioners, and justices of the peace, or any cor- porate body or board or officers thereof."^ , § 4. As writ of right. The writ of certiorari is not one of right, but rests in the sound discretion of the court and will be allowed or refused according as the attainment of justice seems to require.^ The laches ^® of the party applying for the 6 Adams V. Abram, 38 Mich. 302 ; 9 In re Lantis, 9 Mich. 324; Withington v. Southworth, 26 Mich. Specht v. City of Detroit, 20 Mich. 381; White v. Boyce, 88 Mich. 349; 171; Tucker v. Parker, 50 Mich. 6; People V. Turja, 157 Mich. 530; Kimball v. Herman, 74 Mich. 699; Smith V. Keed, 24 Mich. 240 ; Adams People v. Wayne Drain Com 'r, 40 V. Abram, 38 Mich. 302; Kimball Mich. 745; Gager v. Chippewa V. Homan, 74 Mich. 699; Meads Sup'rs, 47 Mich. 167; Baudistel v. V. Belt Copper Mines, 125 Mich. City of Jackson, 110 Mich. 357; 456; West v. Parkinson, 130 Mich. City of Detroit v. Murphy, 95 Mich. 401. 531; Detroit Eiver Transit Co. v. 7 Jud. Act, ch. 6, § 1; Comp. Laws Union Trust Co., 152 Mich. 91. 1915, §12299. lOBresler v. Ellis, 46 Mich. 335; 8 Cir. Ct. Rule 50, § 1. See also Parman v. Board of School Inspec- Merrick v. Board of Arbela Tp., 41 tors, 49 Mich. 63; Eentz v. City of Mich. 630; Zook v. Blough, 42 Mich. Detroit, 48 Mich. 544; City of De- 487; Swift v. Wayne Circuit Court troit v. Murphy, 95 Mich. 531; Kim- Judges, 64 Mich. 479; Thompson v. ball v. Homan, 74 Mich. 699; Owos- School Dist. No. 6 of Crockery Tp., so School District v. Scioto, etc., 25 Mich. 483. School Inspectors, 27 Mich. 3; §4 Certioeaki 273 writ, his complicity in or waiver of the errors complained of,^^ his lack of any peculiar and substantial interest in the proceedings,^^ the availability of some other ade- quate remedy,^^ and the fact that the questions involved are moot questions," are matters which usually effectuate a refusal of the writ. It ought not to issue where the equities are against it,^^ nor unless it is made to appear that an injustice has been done,^^ nor where plaintiff has elected to pursue another remedy.^''' And it will, not be granted to enforce a strict legal right where justice cannot be done and where petitioners are guilty of laches in failing to take prompt action.^® Gentle v. Colfax School Inspectors, 73 Mich. 40; Perrizo v. Kessler, 93 Mich. 280; Atlec v. Wexford Super- visors, 94 Mich. 562. 11 Harbaugh v. Martin, 30 Mich. 234; Hollcnburg v. City of Shuffert, 47 'Mich. 126; Horner v. Biggam, 36 Mich. 243; City of Detroit v. Murphy, 95 Mich. 531. 12 Board of Education v. Gille- land, 191 Mich. 276; Davison v. Otis, 24 Mich. 23; People v. Leavitt, 41 Mich. 470; Hewitt v. Oakland Probate Judge, 67 Mich. 1; Mont gomery v. Muskegon Booming Co., 104 Mich. 411; Wolpcrt v. New- comb, 106 Mich. 357; Vanderstolph v. Boylan, 50 Mich. 330; Morse v. Williams, 92 Mich. 250. 13 Mathias v. Mason, 66 Mich. 524; Woodin v. Phoenix, 41 Mich. 655; Smith v. Eeed, 24 Mich. 240; Parker v. Copland, 4 Mich. 528; Farroll v. Taylor, 12 Mich. 113; Specht v. City of Detroit, 20 Mich. 168; City of Ishpeming v. Maroney, 49 Mich. 226; Eldridge v. Hubbell, 119 Mich. 61; Hartz v. Brown, 165 Mich. 660; Loomis v. Hartz, 165 Mich. 662; Custer Tp. v. Dawson, 178 Mich. 367; City of Ishpeming 1 Abbott— 18 V. Maroney, 49 Mich. 226; John Hancock Mut. Life Ins. Co. v. Wayne Circuit Judge, 97 Mich. 613; U. S. Gypsum Co. v. Kent Cir- cuit Judge, 150 Mich. 668; Detroit Eiver Transit Co. v. Union Trust Co., 152 Mich. 91; John Hancock Mut. Life Ins. Co. v. Hill's Estate, 108 Mich. 129; In re Phillips, 154 Mich. 139; Detroit Lumber Co. v. Petrel, 155 Mich. 350; People v. James, 155 Mich. 548; Mathias v. Mason, 66 Mich. 524; Galloway v. Corbitt, 52 Mich. 460; McNaughton V. Everts, 116 Mich. 141. 14 Shoumnk v. Ferguson, 191 Mich. 284; Carlson v. Wyman, 189 Mich. 402. 15 People V. Wayne Drain Com 'r, 40 Mich. 745. 16 West V. Parkinson, 130 Mich. 401, denied where petitioner had failed to put in any defense in a suit. It does not lie to review a ques- tion as to fees where the amount in controversy is very small. An- tiau V. Nadeau, 53 Mich. 460. 17 See §6, post. 18 Baudistcl v. Recorder and Com- mon Council of City of Jackson, 110 Mich. 357. 274 Certiorari § 5 § 5. In what cases writ lies. The office of a writ of certiorari is to bring up for review the proceedings of the lower court, tribunal, board or officer to determine whether such court, tribu- nal, board or officer acted within its or his jurisdiction either in assuming jurisdiction of the proceedings or in the manner in which the jurisdiction was exercised." Only questions of law can be reviewed. Questions of fact cannot be tried.^° Certiorari lies only to review proceedings of a judicial nature as distinguished from those of a ministerial, ex- ecutive or legislative character.^^ It also lies only to review proceedings which are not according to the course of the common law.^^ Thus, where a stay of execution before a justice has been filed in the office of the county clerk, and the circuit court, upon application of the judgment creditor, grants an order allowing an execu- tion against the surety, a writ of certiorari will lie to review such order.^* The filing of a transcript of judg- ment of a justice of the peace in the circuit court is a special proceeding, authorized only by statute, and not according to the course of the common law, and, after WMeGurrin v. Grand Kapids Tp. Estate, 179 Mich: 567; Hartz v. Board, 186 Mich. 475; Huyser v. Wayne Circuit Judge, 164 Mich. Zealand, etc.. School Inspectors, 131 231; Collier v. St. Charles Tp. Mich. 568. Board, 147 Mich. 688. 20Higley v. Laut, 3 Mich. 612 Cicotte V. Morse, 8 Mich. 424 McGraw v. Schwab, 23 Mich. 13 Bullard v. Hascall, 25 Mich. 132 Smoke v. Jones, 35 Mich. 409 Brown v. Blanchard, 39 Mich. 790 Carver v. Chapell, 70 Mich. 49 Willison V. Desenberg, 41 Mich 156; Shelden v. Stewart, 43 Mich 574; Meeske v. Miller, 138 Mich 21 Boot V. Barnes, 1 Mich. 37; Midland Sup'rs v. Auditor General, 27 Mich. 165; Merrick v. Arbela Tp. Board, 41 Mich. 630; Greenville Gas, etc., Co. v. City of Greenville, 165 Mich. 135; Brody v. Penn Tp. Board, 32 Mich. 272; Germaine v. Ferris, 176 Mich. 585, 22 In re Stroebel, 194 Mich. 634; In re Erdnian's Estate, 179 Mich. 87 : Booker v. Grand Rapids Medical 567. Cdllot^e, 156 Mich. 95; In re Bad- 23 Jerome v. Williams, 13 Mich. lord, 168 Mich. 474; Jackson v. 521. rcnple, 9 Mich. Ill; In re Erdman's § 5 Certiorari 275 execution has been issued from the circuit court, cer- tiorari will lie to review the proceedings for the pur- pose of ascertaining their validity.^* Certiorari will lie to review proceedings to condemn land when void for want of jurisdiction, though it should not be favored where any other remedy is adequate.^^ Certiorari will lie to review a judgment of the circuit court overruling a special appeal from justice's court,^^ a judgment of the circuit court affirming an order of the probate court construing a will,^"^ and an order of the circuit court setting aside an order of the probate court granting leave to bring suit upon a guardian's bond.^' The action of a circuit judge in entering a jury room and giving the jury instructions without the presence of counsel or the court stenographer is properly brought before the supreme court by a writ of certiorari in aid of, and in connection with, a writ of error in the case.^^ Certiorari lie's to review the action of a board of supervisors in removing a county officer,^" or organizing a township,^^ and of a township board in removing the assessor of a school district.^^ It is a proper proceeding to get rid of a void judgment ^^ or other void proceeding.^* It lies to review the proceedings of a circuit court com- missioner for the dissolution of an attachment; ^^ to re- 24Wc(lcl V. Green, 70 Mich. 642. 31 People v. Gladwin Sup'rs, 41 25Dunlap V. Toledo, etc., E. Co., Mich. 647. 46 Mich. 190; Custer Tp. v. Daw- 32 Merrick v. Arbela Tp. Board, son, 178 Mich. 367. 41 Mich. 630. 26 Peterson v. Fowler, 76 Mich. 33 Harbour v. Eldred, 107 Mich, 258. 95. 27 Glover v. Eeid, 80 Mich. 228; 84 People v. Gladwin Sup'rs, 41 Kelly V. Eeynolds, 39 Mich. 464. Mich. 647; Whitford Tp. v. Monroe 28 Welch V. Van Auken, 76 Mich. Probate Judge, 53 Mich. 130; Null 464. V. Zierle, 52 Mich. 540; Dunlap v. 29 Fox V. Peninsular W. L. & C. Toledo, etc., E. Co., 46 Mich. 190; Works, 84 Mich. 676. Rixby v. Goss, 54 Mich. 551. 30 McGregor v. Gladwin Sup 'rs, 36 People v. Judge of St. Clair 37 Mich. 388; Gager v. Chippewa Circuit, 32 Mich. 95. Sup'rs, 47 Mich. 167. 276 Certiorari § 5 view the action of a circuit court in an attachment case, when the affidavit was insufficient, and the court, with- out authority, allowed a new one to be filed ;^^ to review the decision of a notary public acting as commissioner, in dissolving- an attachment, the law under which he acted being declared unconstitutional ; ^' to review a de- cision relating to the maintenance of illegitimate chil- dren ; ^® to review the appointment of a guardian where the notice required by statute was not given ; ^^ to review proceedings to lay out a highway; *° to review the action of a town board on appeal from school inspectors in ar- ranging school districts where the former acts without authority and reverses the action of the inspector; *^ where school inspectors undertake to establish a school district illegally;*^ and to review township drain pro- ceedings where the defects go to the jurisdiction.*^ § 6. Particular cases where writ does not lie. Certiorari will not lie to review a proceeding in the circuit court, until that court has decided the matter.** The writ will not lie to review the action of the circuit court in the exercise of its discretionary power, such as an order vacating a judgment.*^ It does not lie to re- view the action of a circuit judge in appointing himself referee in a cause pending before him, the proper remedy 36 People v. Branch Circuit 43 Bixby v. Goss, 54 Mich. 551. Judges, 1 Doug. 319. 44 People v. Allegan Circuit 37 Chandler v. Nash, 5 Mich. 409. Judge, 29 Mich. 487; Palms v. 38 Perkins v. Superintendents of Campau, 11 Mich. 109; Culver v. the Poor of Lapeer County, 1 Mich. Travis, 108 Mich. 640; Detroit, etc., 504. E. Co. V. Backus, 48 Mich. 582. 39 North v. .Joslin, 59 Mich. 624. 46 Van Eenselaer v. Whiting, 12 40 Names v. Olive & Bobinson Mich. 449; Campau v. Coates, 17 Tps., 30 Mich. 490. Mich. 235; Stimson v. Michigan 41 Brody v. Township Board of Shingle Co., 71 Mich. 374; Fellows Penn Tp., 32 Mich. 272. v. Canney, 75 Mich. 445. 42 Huyser v. Board of School In- spectors of Zeeland, Olive and Blen- don Tps., 131 Mich. 568. § 6 Certioraei 277 being mandamus,*^ nor to review an order refusing a petition for the punishment of a sheriff for contempt in omitting the performance of his duty.*''' Error, and not certiorari, is the proper remedy to bring up for review an order of the circuit court dismissing on motion, for want of jurisdiction, a writ of certiorari from that court to a circuit court commissioner for the review of pro- ceedings under the statute to recover the possession of land,*^ or the judgment of the circuit court in such pro- ceedings on appeal from the commissioner.*^ And cer- tiorari will not lie to the commissioner in such proceed- ings.®° Nor, on grounds of public policy, will the writ of certiorari lie to bring tax proceedings before the supreme court for review.^^ The action of the auditor general in charging back to a county certain taxes in his settlement with the county, being the exercise of an official discre- tion belonging to an executive department of the state government, is not subject to judicial review and can- not, therefore, be examined upon certiorari. ^^ The su- preme court will not, on certiorari, exercise an original jurisdiction for the purpose of curing defects in proceed- ings for laying out a township drain." The question of the adequacy of the compensation awarded by a com- missioner of highways for land taken for highway pur- poses cannot be considered on certiorari, nor in any other manner than by appeal to the township board. ^* The court has "power" to issue the writ even though there is another adequate remedy,^^ but in such a case it 46 Woodin v. Phoenix, 41 Mich. 52 Midland Sup 'rs v. Auditor Gen- 655. eral, 27 Mich. 165. 47 Schwab v. Coots, 44 Mich. 463. 63 Tucker v. Parker, 50 Mich. 5; 48 Robens v. Vidcto, 33 Mich. 240. Dietz v. Frazier, 50 Mich. 227. 49 Parker v. Copland, 4 Mich. 528. 64 Weber v. Ryers, 82 Mich. 177. 60 Smith V. Reed, 24 Mich. 240. 65 Dunlap v. Toledo, A., A. & G. 61W)iitbeck v. Hudson Common T. R. Co., 46 Mich. 190. Council, 50 Mich. 86; Hudson Com- mon Council V. Whitney, 53 Mich. 158. 278 Certiorari § 6 should not be allowed unless circumstances exist which show that a failure of justice will result from denying it.*^ Where a party has elected to rely on another rem- edy, such as an action at law, he is not entitled to a writ of certiorari.^' It does not lie to review the proceedings for the col- lection of a penalty, where the penalty has been paid.^' So it does not lie to set aside the judgment where a fine imposed has been voluntarily paid by a third person, and respondent released before the writ was taken out.^® Certiorari does not lie to review the determination of the governor of the state in removing from office the mayor of a city, since to allow the writ would invade the functions of the executive department.^® So it is not the proper remedy to review an order of the circuit court determining that a witness should answer interroga- tories asked under letters rogatory from the court of a sister state or be punished for contempt of court.®^ Like- wise the act of a common council in passing an ordi- nance requiring a company to remove its poles and wires from the streets, in alleged violation of its fran- chise rights, is not reviewable by certiorari.^^ § 7. From supreme court to justices of the peace. Ordinarily the writ will not issue from the supreme court to justices of the peace.^' The allowance of a cer- tiorari from the supreme court to directly review pro- ceedings before a justice of the peace is exceptional and 56Farwell v. Taylor, 12 Mich. 113. 62 Greenville Gas, etc., Co. v. City 67 Mathias v. Mason, 66 Mich. of Greenville, 165 Mich. 135. 524. 63 Certiorari does not lie where 68 Powell V. People, 47 Mich. 108. personal service was had and de- 69 City of Ishpeming v. Maroney, fendant appeared on the return day 49 Mich. 226. but did not appear at the trial nor eOGermaine v. Governor, 176 appealed. White v. Boyce, 88 Mich, Mich. 585. 349. 61 Van Dyke v. Doughty, 174 Mich. 351. § 8 Certiorari 279 not favored except where necessary to prevent a failure of justice,^* as where the case was commenced before a justice by attachment, and no personal service had, and no appearance entered, and defendants had no notice of the proceeding until after the statutory remedy was gone.^^ § 8. Before final determination. By statutory provision, the decision of the circuit court denying a motion to dismiss or quash a writ or declaration upon jurisdictional grounds, or upon issues which under the former practice would have been raised by demurrer, plea to the jurisdiction or other dilatory plea, may be reviewed by writ of certiorari forthwith; in which case, upon the issue of the writ, the supreme court may, upon proper cause shown, stay the proceed- ings in the circuit court pending their decision on the writ, or the decision denying the motion may be re- viewed on a writ of error to review the final judgment in case the party whose motion was denied has pleaded over and a final judgment on the merits has been ren- dered against him.^^ The Judicature Act, by an added provision, changes the former law by authorizing a re- fusal of the writ where the justice or justices considering the application affirmatively determine from the peti- tion and brief that the petition does not present a meri- torious question.^''' Except as authorized by this statute, certiorari does not lie until the proceedings sought to be reviewed are completed and a final determination had,^^ and hence the 64 Adams v. Abram, 38 Mich. 302. Minneapolis, etc., E. Co., 184 Mich. 65Withington v. Southworth, 26 G81; Wanner v. Martin, 173 Mich. Mich. 281. 503. 66Jutl. Act, ch. 50, §14; Corap. 67 J ml. Act, ch. 50, §15; Comp. Laws 1915, §13749; La Vassar v. Laws 1915, §13750. Chosbrough Lumber Co., 190 Mich. 68 Detroit W. T. & J. R. Co. v. ■lO.!; City of Sault Ste. Marie v. Uackiis, 48 Mich. 582. 280 Certiorari § 8 rulings of the circuit court in overruling objections taken by special appeal will not be reviewed by certiorari where no final judgment was entered.^® So it will not lie to re- view an order of a circuit court allowing an appeal from a probate court after sixty days from the making of the order in the probate coui't, until after the adjudication upon the appeal by the circuit court.'" The refusal of a petition to punish a sheriff for contempt in omitting to perfoiin his duty is not a final order.'^ Prior to the stat- ute, the writ would not be granted to review an interlocu- tory order where no injustice could result from the ac- tion of the lower court and final judgment could protect the relator's legal rights.'^ § 9. Review of decisions of Industrial Accident Board. Certiorari is the appropriate and usual method of se- curing a review by the supreme court of the determina- tions of the Industrial Accident Board. The application for the writ must be made within thirty days after the de- termination by the board. ''^^ Questions of law only will be reviewed. By statute, the findings of fact made by the board, acting within its powers, are, in the absence of fraud, conclusive,'''* and, in accordance therewith, as well as with the rule in other cases in which the writ lies, the court will not review the evidence, except to ascertain whether, as to any fact found, there is a total absence of sustaining evidence. Unless there is no proof to support the finding, the court 69 Culver v. Travis, 108 Mich. Comp. Laws 1915, §5465; Papinaw 640. V. Grand Trunk R. Co., 189 Mich. 70 Palms v. Campau, 11 Mich. 109. 441; Bayne v. Riverside Storage, 71 Schwab V. Coots, 44 Mich. 463. etc., Co., 181 Mich. 378; Redfield v. 78 Meads v. Belt Copper Mines, Michigan, etc., Ins. Co., 183 Mich. 125 Mich. 456. 633; Beckwith 's Estate v. Spooner, 73 How. Stat. (2nd ed.) §3980; 183 Mich. 323 ; Daich v. Studebaker Comp. Laws 1915, 8 5465. Corporation, 195 Mich. 482. 74 How. Stat. (2nd. ed.) §3980; § 11 Certiorari 281 has no power to interfere.'^ Where the finding of the board is supported by any competent legal evidence, either directly or inferentially, it will be taken as con- clusive/® When different inferences might legitimately be drawn from what the record discloses, the court will not disturb the inference which the board has drawn." Nor will it do so because hearsay or other incompetent testimony has been admitted by the board, if there is other evidence sufficient to support the findingj^ § 10. Who may allow writ. The w^rit of certiorari, not being a writ of right but one of discretion, issues only after it has been allowed by the proper officer upon application and sufficient showing of the grounds therefor by affidavit.'''^ If the writ is to be issued out of the supreme court, application must be made to a justice of that court, ^° — the Judicature Act having changed the law in this respect in that formerly applica- tion could be made to any such justice or a circuit judge or a circuit court commissioner. If the writ is to be is- sued out of the circuit court, application may be made to the circuit court or a judge thereof.^^ § 11. Who may apply for writ. Any person whose rights have been injuriously affected by the proceedings complained of may apply for, and, if an allowance is obtained, sue out, a writ of certiorari, 75Redfield v. Michigan, etc., Ins. ]90 Mieh. 229; Lindstoadt v. Sands Co., 18.S Mieh. 633. Salt & Lumber Co., 190 Mich. 451. 76 Hills V. Blair, 182 Mich. 20; 77 Beckwith's Estate v. Spooner, Rayner v. Sligh Furniture Co., 180 183 Mich. 323. Mich. 168; Grove v. Michigan Paper 78 Fitzgerald v. Lozier Motor Co., Co., 184 Mieh. 449; Reek v. 189 Mieh. 660; Reek v. Whittles- Wliittlcsberger, 181 Mich. 463, berger, 181 Mich. 463, 5 N. C. C. 5 N. C. C. A. 917; Bayne v. A. 917. Riverside Storage & Cartage Co., 79 Young v. Kelsey, 46 Mich. 414. 181 Mich. 378; La Veck v. Parke, 80 Jud. Act, ch. 50, §12; Comp. Davis & Co., 190 Mich. 604; Bischoff Laws 1915, S 13747. V American Car & Foundry Co., 81 Cir. Ct. Rule 50, § 2. 282 Certiorari § 11 whether he was named as a party to the proceedings sought to be reviewed or not.'^ On the other hand, the writ is not available to an in- dividual w^ho has no direct or particular interest in the proceeding sought to be reviewed, unless he shows that he will suffer special injury beyond that which will af- fect him in common with the public or others similarly situated.*' A person is not entitled to the writ unless he has some interest in the proceedings sought to be reviewed and **may," at least, sustain injury thereby.'* Thus, indi- viduals who have no peculiar interest in the matter sought to be reviewed, cannot obtain the writ to review the official actions of public officers.'^ And the affirm- ance, on an unauthorized and void appeal, of the judg- ment appealed from, will not be disturbed on certiorari by the appellant therein.'^ So a taxpayer, liable to be called upon to pay a trifling portion of the tax for laying out a highway, is too remotely interested to bring cer- tiorari to review the proceedings to lay out the high- way.*' But it lies on the relation of the supervisors, whose official rights are involved, to inquire into the exis- tence of the township where the action of the board of supervisors in organizing it is subject to review.** If cer- tiorari is to review the proceedings of a board of super- visors as to rebuilding a courthouse, it is properly instituted by the attorney general.*^ 82 Campau v. Button, 33 Mich. 85 Wolpert v. Newcomb, 106 Mich. 525; Wolpert v. Newcomb, 106 Mich. 357. 357; Lichtenberg v. Wayne Circuit ,86 Horner v. Biggam, 36 Mich. Judge, 106 Mich. 38. 243. 83 Board of Education v. Gille- 87 Vanderstolph v. Highway land, 191 Mich. 276. ' Com'r, 50 Mich. 330. 84 Davison v. Otis, 24 Mich. 23; 88 People v. Board of Sup'rs of Wolpert V. Newcomb, 106 Mich. Gladmn County, 41 Mich. 647. 357; People v. Leavitt, 41 Mich. 89 Attorney General v. Board of 470; Hewitt v. Judge of Probate Sup'rs of Montcalm County, 141 of Oakland County, 67 Mich. 1, one Mich. 590. not party to probate proceedings. § 12 Certioraei 283 Only persons interested can be joined as petitioners.*" But where two landowners have like complaints against the laying out of a highway, and their injuries are of the same nature, they may join in certiorari proceedings."^ § 12. Limitation of time for bringing. No writ of certiorari can be issued to correct any pro- ceedings, unless it be brought within the same time after such proceedings have been had as is limited for bring- ing a writ of error on a judgment.^^ When a writ has been allowed, mere delay in suing it out for a time within the statutory limit for bringing the writ is not a matter of which the adverse party can effectually complain, un- less, during the delay, rights have grown up in reliance upon the proceedings."' But as the allowance of the writ is a matter of judicial discretion, it may be refused, although the time limited by the statute has not expired, where the delay appears unreasonable, or is likely to work injury."* For instance, laches of the applicant for the writ, especially where con- nected with implied acquiescence in acts by laying by and seeing work done and acts performed in connection with the proceeding objected to, warrants a refusal of the writ or a dismissal after it is allowed."^ However, if the delay 90 See Fitch v. Board of Auditors of certiorari for the laches of the of Claims against Manitou County, parties in not suing it out sooner. 133 Mich. 178. Id. 91 Cowing V. Eipley, 76 Mich. 650. 95 in re Lantis, 9 Mich. 324 ; 92Jud. Act, ch. 50, §13; Comp. Bandistel v. Eecorder and Common Laws 1915, § 13748. Council of City of Jackson, 110 93Willson V. Gifford, 42 Mich. Mich. 357; Dunlap v. Toledo, etc., 454. E. Co., 46 Mich. 190; Owosso Frac- 94 In re Lantis, 9 Mich. 324. tional School Dist. No. 1 v. Joint Where eleven months had elapsed Board of School Inspectors of after the confirmation of the report Owosso, Scioto, Bennington & Mid- of drain commissioners, and the re- dlebury, 27 Mich. 3; Bresler v. El- lators appeared and opposed the lis, 46 Mich. 335; Atlee v. Board confirmation in the circuit court. Sup 'rs Wexford County, 94 Mich, the supreme court quashed the writ 562. Creation of school districts 284 Certiorari § 12 for less than two years was not due to petitioner's negli- gence,®^ or if no rights have accrued in reliance on the proceedings sought to be reviewed, before the writ was sued out,®' the application should not be denied because of laches. § 13. Ag-ainst whom writ should run. The court, tribunal, .board or ofiicer whose action is to be reviewed, and in whose hands the record of the action remains, are the proper parties defendant.®' Thus, when a review is sought of the action of highway commission- ers in laying out a highway which has been appealed to the township board, the writ of certiorari should be di- rected, not to the highway commissioners, but to the township board.®® The defendants in certiorari should be named and also characterized by their official ca- pacity.^ If the proceedings sought to be reviewed are those of a commissioner, who has gone out of office, the writ should be directed to his successor.^ Where separate proceedings were taken before two circuit court commis- sioners to remove the same cause to another county for trial, resulting in conflicting orders, it was proper to ad- dress the writ to both commissioners.^ The writ should be addressed to defendants in their official capacity; but cannot be attacked after the dis- 97 Willson v. Gifford, 42 Mich. trict has been organized and as- 454. sumed corporate functions. Owosso 98 Crawford v. Seio & Webster Tp. Fractional School Dist. No. 1 v. Boards, 22 Mich. 405. Joint Board of School Inspectors 99 French v. Springwells Highway of Scioto, Bennington & Middle- Com 'rs, 12 Mich. 267; Goodrich v. bury, 27 Mich. 3; Perrizo v. Kess- Lima Highway Com 'rs, 1 Mich. 385; ler, 93 Mich. 280; Parnian v. Boards Roberts v. Cottrcllville Highway of School Inspectors, 49 Mich. 63. Com 'rs, 24 Mich. 182. But see Gentle v. Colfax School In- 1 Willson v. Gifford, 41 Mich. 417. specters, 73 Mich. 40. 2 Whistler v. Wilson, 39 Mich. 96 City of Detroit v. Murphy, 95 121. Mich. 531. See also Harbaugh v. 3 Comfort v. Stockbridge, 37 Mich. Martin, 30 Mich. 234. 472. § 14 Certiorari 285 where the writ is improperly addressed to an ofliccr in his individual capacity, but is accompanied by an affidavit properly describing respondent, and a return has been actually made, the defect is cured.* § 14. Petition or affidavit. Before a writ of certiorari can issue, a petition or affi- davit must be filed.*^ Such petition or affidavit is not en- titled in the cause or proceeding. It should specifically state the errors relied on, inasmuch as the only assign- ments of error in certiorari proceedings are those set forth in the affidavit and none other can be relied on ; ^ show, if there is another remedy, why such remedy is not adequate, or other justification for resorting to cer- tiorari;"'' show that the proceedings "may "at least dam- age plaintiff; ^ set forth excuses for laches, if any, in mak- ing the application; and conclude with a statement tliat the affidavit is made in support of an application for the issuance of a writ of certiorari. It should present the rulings as they actually occurred, as in a bill of excep- tions, and should not combine in one recital a series of de- tached rulings on points that were not connectedly pre- sented.^ All record evidence relied on should be brought before the court as exhibits in the shape of certified or authenticated copies, and not by mere recitals of its ex- istence.^*^ 4 Willson V. OifFord, 41 Mich. 417. court erred in rcndcrinj^ judgment 6 People V. Cass Circuit Judges, in favor of i)laintifF and that judg- 1 Doug. 116. nicnt should have been rendered in 6 See Gager v. Board of Sup 'rs favor of defendant held too gen- of Chippewa County, 47 Mich. 167; eral). Davison v. Otis, 24 Mich. 2'.) ; Lickly 7 Detroit & B. C. R. Co. v. Gra- v. Bishopp, 150 Mich. 256; Welch ham, 46 Mi<'h. 642. V. Bagg, 12 Mich. 41 (allegation 8 Morse v. Williams, 92 Mich. 250. that there was no evidence to sua- 9 Knapp v. Gamsby, 47 Mich. 375. tain the verdict and judgment is too 10 Hewitt v. Judge of Probate of general) ; Fowler v. Detroit & M. Oakland County, 67 Mich. 1. Ey. Co., 7 Mich. 79 (allegation that 286 Certiorari § 15 § 15. Notice of application for writ, briefs and order. Formerly, it was not necessary, nor the practice, to give any notice to the adverse party of the application for the writ. If the application is to the supreme court, the peti- tion is filed with the clerk and presented to one of the justices of the court and should be accompanied by a brief in which the nature of the case and the points of law involved are clearly and concisely set forth. The usual practice is for the justice to indorse upon the petition a brief order, either allowing or disallowing the writ, as the case may be. However, the supreme court, on June 3, 1918, adopted the following new rule of court, to be known as rule No. 60, as follows: ''Within ten days after the allowance of a writ of certiorari by this court, the plaintiff in error shall serve upon the court, board, or other body whose proceedings are to be reviewed, and upon the defendant in error, a copy of the petition or application for such writ, together with a copy of all exhibits attached thereto, and a copy of the memorandum or brief filed in support of such application. Proof of such service shall be filed with the clerk, as in other cases." § 16. Form of writ. Writs of certiorari are styled ''In the Name of the Peo- ple of the State of Michigan, ' ' have the seal of the court affixed thereto or impressed thereon, which is made con- clusive evidence that the writ is issued by the court," are tested of the day when issued, and, in the supreme court, must be made returnable at the office of the clerk of the supreme court on a day certain, either in vacation or in term, not less than ten days nor more than forty days from the issuance thereof." But a shorter time may be fixed by the oi-rler of tlie court. ^' llJud. Act, c-h. 1, §15; Comp. 12 Sup. Ct. Rule 4. Laws 1915, § 12020. 13 Sup. Ct. Rule 4. § 17 Ceetiorari 287 In the circuit court, writs of certiorari must be made returnable and service thereof made within such time as the circuit court shall upon each occasion direct.^* Form of Writ of Certiorari from Supreme Court In the Name of the People of the State of Michigan. To : We, being willing, for certain causes, that it should be certified to our Supreme Court what proceedings have been had before you, and what has been done by you in the (specify the cause or matter), do therefore command you that you distinctly and openly certify the records and pro- ceedings in said matter to the said Supreme Court, before the Justices thereof, that they may have them at the Supreme Court Eoom, in the Capitol, in the City of Lansing, on the day of , A. D , that said Court may cause to be done thereupon wliat of riglit ought to be done; and have you then and there this writ. Witness, Hon. C. G., chief justice of our Supreme Court, at Lansing, this day of , in the year of our Lord C. H., Clerk Supreme Court. I hereby certify that the foregoing writ was duly allowed by , on the day of , A. D C. H., Clerk. § 17. Service of writ. The writ, together with a copy of the papers on which it was allowed, must be served upon the defendants. As no error can be relied on which is not specified in the affi- davit on which the writ was allowed, tbe defendants are entitled to have their attention directed to what tliey are called upon to explain, and they cannot know this with- out service of the papers on which the writ is allowed." If the writ alone, without a copy of such papers, is served, the defendants are not ordinarily bound to take any no- tice of it; ^^ but, where a writ of certiorari identifies the documents to bo returned, the defendant must return them, even thougli no copy of the papers on which the 14 Cir. Ct. Kule 50, § 1. 1918 as to service of copy of peti- 15 Nightingale v. Simmons, 66 tion, exhibits and briefs. Mich. 528. See also § 15, ante, 16 Parman v. Boards of School In- fer new rule of court adopted in spectors, 49 Mich. 63. 288 Certiorari § 17 writ was allowed be served with the writ.^' The writ should be served within the time limited therefor or it will be ineffective.^^ The service of a writ of certiorari operates to stay all further proceedings of the court, tribunal, board or officer to whom it is directed, from the time of such service.^' No bond is required, as in the case of a writ of error, to effectuate this result. § 18. Notice of issuance of writ. In the supreme court, the appellant must cause notice of the issuance and the date and return day of the writ to be served on the adverse party or his attorney in the court below within ten days after the issuance thereof; and an affidavit of such service is required to bo filed in the office of the clerk of the supreme court on or before the return day thereof.^" § 19. Time for return. In the sui)reme court, the appellant must cause the writ of certiorari, with the return containing a transcript of the record or proceedings in the court below, to be filed in the clerk's office on or before the return day mentioned in the writ.^^ The time for returning a writ of certiorari may be extended by one of the justices of the supreme court or a circuit judge for good cause shown. The order granting such extension is required to be returned with the other papers to the clerk of the supreme court, and the n Whistler v. Lenawee Drain County, 18 Cal. 671; Commonwealth Com'rs, 39 Mich. 303. v Kistler, 149 Pa. St. 345. 18 Morrison v. Emsley, 53 Mich. Stay on order of supreme court, 564. see Jud. Act, ch. 50, §14; Comp. 19Bac. Abr. "Certiorari," G; Laws 1915, §13749. Patchin v. Mayor, etc., of Brooklyn, 20 Sup. Ct. B.ule 5. How far is 13 Wend. (N. Y.) 664; In re this rule affected by the new 1918 Adams, 10 Pick. (Mass.) 273; rule of court (see § 15, ante) ? King.sland v. Gould, 6 N. J. L. 161; 21 Sup. Ct. Eule 6. California, etc., R. Co. v. Butte § 20 Certioraei 289 time fixed by such order for the return will be treated in all respects as if it had been the original return day. Such extension can be had only upon proper notice to the adverse party.^^ § 20. Who should make return. The person or persons in whose hands remains the rec- ord of the proceedings which it is sought to have re- viewed are the proper ones to make the return to the writ.^^ Thus, an ex-circuit judge cannot make return to a certiorari directed to the circuit court over which he formerly presided, even of a proceeding had before him when holding such court, and, should he attempt to do so, his answer would be regarded as a mere voluntary pro- ceeding and not a component part of the return.^* Even the personal answer of the judge of a circuit court as to a proceeding had before him will not be regarded as a com- ponent part of a return to a certiorari directed to the court over which he presides.^^ The return of a court, board or body to a writ of certiorari should always ap- pear to be the return of such court, board or body, and not merely that of the clerk, though the latter may authenti- cate the papers attached by his certificate. If it is the duty of the clerk to keep a record of the proceedings, he might perhaps certify that he made the return by the direction of the court, board or body of which he is clerk, without the signatures of the members thereof; but it is quite easy for them to make a return themselves, though composed of the records kept by the clerk, by stating over their signatures substantially, ' ' Our return to the within writ appears by the schedules hereto attached, certified 22 Sup. Ct. Rule 7. 24 People v. Brcnnan, 79 Mich. 23 Crawford v. Scio, etc., Tp. 362. See also Wliistlcr v. Wilson, Boards, 22 Mich. 405; Whistler v. 39 Mich. 121. Wilson, 39 Mich. 121 ; Jackson v. 25 Woodin v. Phoenix, 41 Mich. Peaple, 9 Mich. 111. 6.'-,;l. 1 Abbott— 19 290 Certiorari § 20 by our clerk. "^^ And where any proceeding before a circuit court is to be reviewed, the circuit judge is the only party who has authority to determine by a return to the writ the questions involved.^''^ But the personal an- swer of a judge, where the writ is directed to the court, is not properly part of the return. ^^ § 21. Form and contents of return. The writ of certiorari commands the defendant to whom it is directed to certify to the supreme or circuit court the record or proceedings which it is sought to re- view, and it is the duty of the defendant, in obedience to such command, to make a return containing a transcript of such record or proceedings. The return need not be sworn to and need not be in any particular form. It should state facts and not conclusions of law.^^ All record evidence should be embodied in exhibits in the shape of certified or otherwise authenticated copies, and not by mere recitals of its existence.^" The affidavits of third persons, though referred to in the return as accom- panying it for the purpose of responding to matters of fact set up in the petition, cannot be regarded as con- stituting a part of the return and will not be considered by the reviewing court. ^^ Where the writ requires the evidence to be certified, so far as necessary to present questions of law arising, it is not necessary that the sten- ographer's notes of the testimony before the probate judge be included in the return. ^^ Where the return does not show that the whole of the testimony was returned, 26 Roberts v. Cottrcllville Highway 29 Purely v. Martin, 31 Mich. 455; Com'rs, 24 Mich. 182; Curry v. People v. Burnap, 38 Mich. 350. Place, 99 Mich. 524. See also 30 Cronin v. Kalkaska Sup'rs, 58 Stevens v. Ottawa Probate Judge, Mich. 448; Hewitt v. Oakland Pro- 154 Mich. 509. bate Judge, 67 Mich. 1. 27 Stevens v. Ottawa Probate 31 North v. Joslin, 59 Mich. 624. Judge, 154 Mich. 509. 82 Traverse City, K. & G. R. Co. 28Woodin v. Phoenix, 41 Mich. v. Seymour, 81 Mich. 378. 655. § 22 Certiorari 291 it will be presumed that there was sufficient evidence to sustain the finding of the jury or the court, as the case may be.^* Where the testimony returned is insufficient of itself to support the order complained of, a reversal be- cause thereof is not proper where the return shows that all the testimony is not returned and that evidence was introduced sustaining the allegations of the moving party.^* But where the making of a record of the testi- mony was dispensed with by mutual consent, plaintiif cannot complain that the evidence is not returned.^^ The return must ordinarily show everything on which the plaintiff relies for relief, and cannot be supplemented by his affidavit for the writ.^^ Statements in the affidavit for the writ, where not adopted by the return as true, cannot be considered by the reviewing court.^'' § 22. Further return. If the defendant does not make a full and satisfactory return to the writ of the matters and errors stated in the affidavit, he may be compelled to do so by an order made by the court on the motion of the appellant. It is evident that, inasmuch as the appellant must show by the return the existence of the defects and errors of which he com- plains, he should, in all cases in which the return as orig- inally made is insufficient by reason of its incompleteness to fulfill this purpose, procure an order of the court for a further return.^® The affidavit cannot be used to estab- 33 Snow V. Perkins, 2 Mich. 238; 36 Whitbeek v. Village of Hud- Gaines v. Betts, 2 Doug. 98; Case son, 50 Mich. 86; Hewitt v. Judge V. Frey, 24 Mich. 251; The City of of Probate of Oakland County, 67 Erie, 27 Mich. 479. See also Tay- Mich. 1. lor V. Shimmel, 107 Mich. 676. Com- 37 Tonilin v. Fisher, 27 Mich. 524. pare Fruitport Tp. v. Muskegon 38Hitelicoek v. Sutton, 28 Mich. Circuit Judge, 90 Mich. 20. 86; Whitbeek v. Hudson Common 34 Taylor v. Shimmel, 107 Mich. Council, 50 Mich. 86; McGurrin v. 676. Grand Rapids Tp. Board, 186 Mich. 36 Burt V. Iron County Sup'rs, 475; Gordon v. Sibley, 59 Mich. 108 Mich. 523. 250. 292 Certioraei § 22 lisli a fact not shown by the return; ^^ but the affidavit will be taken as true if not contradicted by the return." If the return is insufficient, the court issuing the writ may direct a further return even of its own motion.*^ An order for a further return directed to one who has gone out of office is properly refused, where a personal return is not required, and he made return that he was out of office and no longer had custody of the papers and rec- ords.*^ § 23. Conclusiveness and effect of return. The return is conclusive as to matters of fact stated in it, even as against the allegations of the affidavit," but it cannot supply jurisdictional deficiencies in the pro- ceedings to which it relates.** However, the return is not necessarily conclusive as to statements in the petition that do not go to the merits but are made merely by way of excuse for delay." Affidavits of jurors in the case can- not be heard to vary or alter the return." There is no authority for directing or permitting the 39 Hewitt v. Oakland Probate Co. v. Seyniour, 81 Mich. 378; Tay- Jiulge, 67 Mich. 1; Whitbeck v. lor v. Shimmel, 107 Mich. 676; Hudson Common Council, 50 Mich. Hackett v. Brown, 128 Mich. 141; 86. Mann v. Tyler, 56 Mich. 564; Young 40 Wilson V. Burr Oak Tp. Board, v. Kelsey, 46 Mich. 414. 87 Mich. 240. ■ If false, the remedy of the party This is not true, however, as to aggrieved is by action. Scholtz v. allegations concerning which no re- Smith, 119 Mich. 634; Traverse City, turn is required. McGurrin v. Grand K. & G. R. Co. v. Seymour, 81 Mich. Rapids Tp. Board, 186 Mich. 475, 378, and see cases cited above in 479. this note. 41 See Tomlin v. Fisher, 27 Mich. 44 Harbaugh v. Martin, 30 Mich. 524. 234; McGregor v. Gladwin Sup'rs, 42 Whistler v. Wilson, 39 Mich.. 37 Mich. 388; People v. Nankin 121. Highway Com'rs, 14 Mich. 528; 43 Matthews v. Otsego Sup 'rs, 48 Davison v. Davison, 99 Mich. 625. Mich. 587; People v. Grimm, 182 45 Burnett v. Drain Com'rs, 56 Mich. 643; People v. Leavitt, 41 Mich. 374. Mich. 470 ; People v. Brown, 54 46 Ringelberg v. Peterson, 76 Mich. Mich. 15; Traverse City, etc., R. 107. § 26 Certiorari 293 framing of an issne for the purpose of taking proofs in certiorari proceedings.*'' § 24. Striking" out return. If the circuit judge returns immaterial matters, they will be excluded on the hearing, and the return should not be stricken on motion because thereof." § 25. Effect of failure to make return. If the appellant fails to have the writ of certiorari re- turned on or before the return day thereof, the appellee may move to have the writ dismissed for want of prose- cution; and when a motion is made to dismiss, the court may grant or deny it on such terms and conditions as the justice of the case may require.*® § 26. Assignment of errors and notice of hearing. The errors upon which a party relies must be stated in the affidavit for the writ. No other assignment of errors is required.^® Notice of hearing cannot be served until after the return day mentioned in the writ.^^ In the su- preme court, such notice must be given at least thirty days before the first day of the term at which the argu- ment is desired; ^^ but where the writ has been allowed to review the action of the circuit court in allowing or deny- ing a writ of mandamus, the cause when returned into the supreme court may be noticed for hearing as a motion by either party on any motion day thereafter unless other- wise ordered.^^ In the circuit court, certiorari proceedings stand for hearing upon the return day of the writ without notice 47 McGurrin v. Grand Eapids Tp. See also Scott v. Brown, 175 Mich. Board, 186 Mich. 475, 478. 447. 48 Stevens v. Ottawa Probate 51 Miles v. Goffinit, 16 Mich. 280. Judge, 154 Mich. 509. 52 Sup. Ct. Eule 34. 49 Sup. Ct. Rule 8. 53 Sup. Ct. Rule 12. 50 Stokes V. Jacobs, 10 Mich. 290. 294 Certiorari § 26 of trial or hearing unless the court for cause shown shall order a postponement of such hearing.^* § 27. Printing of record and briefs. In the supremo court, the record, or so much of it as is necessary to present the points raised, and the briefs of counsel must be printed as in the case of other calendar causes." § 28. What errors will be considered. The court, in reviewing a case on certiorari, will con- sider only such alleged errors and defects in the record and proceedings as are pointed out in the affidavit,*^ and their inquiry is directed to the ascertainment of such de- fects or errors as are shown by the return to the writ, and are of such a nature as to invalidate the proceedings com- plained of. The return must show everything on which the plaintiff relies for relief. He cannot rely upon the affidavit for the certiorari to supply the deficiencies of the return." The court will not only inquire into the jurisdiction of the inferior tribunal, but also into errors of law occurring in the course of the proceedings and affecting the merits of the case; " but they will review questions of law only. B4 Cir. Ct. Eule, 50, § 4. Hobson, 48 Mich. 27 ; Eawson v. 66 Sup. Ct. Eule 56. McElvaine, 49 Mich. 194 ; Mann v. 66 Grand Bapids, etc., E. Co. v. Tyler, 56 Mich. 564; Hewitt v. Weidcn, 69 Mich. 572; People v. Oakland Probate Judge, 67 Mich. Hobson, 48 Mich. 27; Witherspoon 1; Powers v. Eusaell, 26 Mich. 179; V. Clegg, 42 Mich. 485; Oentle v. Knapp v. Gamsby, 47 Mich. 375: Colfax School Inspectors, 73 Mich. Stoll v. Padley, 98 Mich. 13. 40; Davison v. Otis, 24 Mich. 23; 58 Jackson v. People, 9 Mich. 111. Booker v. Grand Eapids Medical As a general rule, no error oc- College, 156 Mich. 95; Woodmerc curring in the course of the pro- Cemetery V. Eouls, 104 Mich. 595. ceedings, as distinguished from error 67Whitbock v. Hudson Common affecting the jurisdiction, will be Council, 50 Mich. 86; Forbes Litho- considered unless objection was duly graph Mfg. Co. v. Winter, 107 Mich. made in the inferior tribunal. Gar- 116; McGurrin v. Grand Eapids Tp. vin v. Gorman, 63 Mich. 221. Board, 186 Mich. 475; People v. § 28 Certiorari 295 Questions of fact will not be considered.^^ The evidence will be reviewed only to determine whether there is an entire absence of evidence to support any material fact.°° The weight of evidence or the credibility of witnesses will not be passed upon,^^ Rulings upon the admission or exclusion of evidence may be reviewed,^^ as a general rule, but it is held that the rulings, either of a circuit court commissioner or of a circuit judge, in regard to admitting evidence in proceedings for the dissolution of an attachment, will not be reviewed on certiorari.^^ Dis- cretionary matters cannot be reviewed.^* The constitu- tionality of the statute repealing the act under which a party was appointed may be reviewed,^^ as may questions on which the trial judge refuses to pass on the ground that the case would be appealed.®^ Form of Judgment on Certiorari Affirming Judgment Below (Title of cause.) Thts cause having been duly brought on to argument, and the record and proceedings as well as the judgment given in the court below having been seen and fully understood by the court now here, and mature de- liberation being had thereon, and it appearing to the court that there is no error, either in the record and proceedings aforesaid or in giving 69 Collier v. Board of St. Charles 62 Jackson v. People, 9 Mich. 11] Tp., 147 Mich. 688; Schall v. Bly, But certiorari is discouraged for 43 Mich. 401 ; McGurrin v. Grand this purpose. O 'Hara v. Mernan, Rapids Tp. Board, 186 Mich. 475. 79 Mich. 222. 60 Jackson v. People, 9 Mich. Ill Lynch v. People, 16 Mich. 472 Hyde v. Nelson, 11 Mich. 353 Brown v. Blanchard, 39 Mich. 790 63 Schall v. Bly, 43 Mich. 401; Lord V. Wirt, 96 Mich. 415; Rickel v. Strelinger, 102 Mich. 41. 64 Jackson v. People, 9 Midi. Ill; Linn v. Roberts, 15 Mich. 443; Cor- Van Renselaer v. Wliiting, 12 Mich, rie v. Corrie, 42 Mich. 509; Schall 449; Campau v. Coatos, 17 Mich, v. Bly, 43 Mich. 401. 235; Brody v. Township Board of 61 Brown v. Blanchard, 39 Mich. Ponn Tp., 32 Mich. 272; Stimson v. 790; Sheldon v. Stewart, 43 Mich. Michigan Shingle Co., 71 Mich. 374; 574; Rowe v. Kellogg, 54 Mich. 207; Fellows v. Canncy, 75 Mich. 445. Carver v. Chapell, 70 Mich. 49; 66 Fillmore v. Van Horn, 129 State Bank v. Whittle, 41 Mich. Mich. 52. 365; Powers v. O'Brien, 44 Mich. 66 West Bloomfield Tp. v. Detroit 317; Genesee County Sav. Bank v. United Ry. Co., 146 Mich. 198. Michigan Barge Co., 52 Mich. 164. 296 Certiorari § 28 the judgment aforesaid; therefore, it is considered that the judgment aforesaid, in form aforesaid, be in all things affirmed and stand in full force and effect; and it is further ordered and adjudged that the said defendant do recover against the said plaintiff his costs and charges by him about his suit in this behalf expended, to be taxed, and that the said defendant have execution therefor. Form of Judgment on Certiorari Reversing Judgment Below (Title of cause.) This cause having been duly brought on to argument, and the record and proceedings, as well as the judgment given in the court below, hav- ing been seen and fully understood by the court now here, and it appear- ing that there is, in the record and proceedings aforesaid, and in giving the judgment aforesaid, manifest error; therefore, it is considered that the judgment aforesaid, for the errors aforesaid, be reversed and annulled and altogether held for nothing; and it is further ordered and adjudged that the said plaintiff do recover against the said defendant his costs and charges by him about his suit in this behalf expended, to be taxed, and that the said plaintiff have execution therefor. §29. Judgment. Certiorari is not a flexible remedy. The court will 3itlier quash or refuse to quash the proceedings under /eview,®''' and, if the proceedings are quashed, it is not usual for the court to order a new trial, for the reason that a reversal does not usually leave the proceedings in such condition that a new trial can be had; but, if it does, there is no reason why a new trial should not be ordered in the same manner as on a writ of error, and this, in fact, is sometimes doue.^® In one case where certiorari was sued out where in- stead a writ of error was the proper method of review, the supreme court said: ''No rule having been made governing the practice in such cases, and no injury re- sulting from such a course, we should treat the writ of 67 Whitbeck v. Hudson Common manded, in a proper case, to in- Council, 50 Mich. 86. corporate therein matter which has 68 Cross V. People, 10 Mich. 24; come into existence since the hear- People V. Wliite, 53 Mich. 537; Cus- ing, and to order a rehearing in the ter Tp. V. Dawson, 178 Mich. 367. court below on the amended plead- On certiorari to review mandamus ings. Leach v. Davy, 199 Mich. 378. proceedings, the record may be re- § 31 Certioeaei 297 certiorari in this case as if it were a writ of error and enter judgment accordingly. This decision should and will have all of the force and effect of a rule of court governing the practice in similar cases. ' ' ^^ §30. On certiorari to Industrial Accident Board. The court is not limited to an affirmance or reversal of the determination of the board, but is expressly vested by statute with the further power to make such orders in respect to the case as justice may require.'''" The court may, therefore, not only reverse and set aside the deter- mination of the board, but may direct the board specific- ally what order to make in the cause.'^ Any such direc- tion must be based either upon the finding of the board or the undisputed evidence, for the court has no power to weigh conflicting evidence.''^ §31.. Costs. The party prevailing on a writ of certiorari in any pro- ceeding of a civil nature is entitled to his costs against the adverse party in all cases; and, in case the writ ap- pears to have been brought for the purpose of delay or vexation, the court may award double costs to the pre- vailing party.''' Where, however, the proceedings com- plained' of were set aside as being without jurisdiction, but the want of jurisdiction was one arising rather from a defect in the statute than from a non-compliance with the statute, the prevailing party was allowed only the costs in the supreme court, and not the costs of the pro- ceedings complained of.''* Where the appellant had an- 69 Township of Custer v. Dawson, 73 Jud. Act, ch. 50, §16; Comp. 178 Mich. 367, 376. Laws 1915, § 13751. 70 Comp. L. 1915, § 5465. 74 McCleary v. Hartwell, 25 Mich. 71 How. Stat. (2nd ed.) 3980; 139, Comp. Laws 1915, § 5465. 72 Andrewjwski v. Wolverine Coal Co., 182 Mich. 298. 298 Certiorari § 31 other remedy under the statute and showed no reason why he did not avail himself of it instead of resorting to a certiorari, he will not, on reversal, be allowed to recover costs, the rule being that the court will not award costs to a party who presumably has come into the supreme court without necessity.'^ Where the statute under which the proceedings complained of were taken had never been construed, the court, upon quashing them, withheld costs to the prevailing party.'^ § 32. Motion to dismiss writ. If the writ has been irregularly obtained or improvi- dently allowed, the court will, on motion, make an order dismissing it.''"'' The motion should state the grounds upon which it is based, and, if it does not, will be denied," but questions which relate to the merits of the case, rather than to any informality, irregularity or impro- priety in obtaining the allowance and issuance of the wnt itself, cannot be considered on a motion to dismiss the writ. Such questions must be disposed of on the hearing.''® The objection that certiorari is not the proper remedy must be made by motion to dismiss and cannot be made for the first time in the briefs.'" So the objection .that the officer allowing the writ had no authority to do so can be raised only by a motion to dismiss.'^ If the writ has been 76 Adams v. Abram, 38 Mich. 302. 78 Jaquith v. Hale, 30 Mich. 163. 76 Griffin v. Helme, 94 Mich. 494. 79 Eowe v. Eowe, 28 Mich. 353; 77 Greenville Gas, etc., Co. v. City Maybee v. Miner, 44 Mich. 207 ; of Greenville, 165 Mich. 135; Far- Loree v. Smith, 100 Mich. 252. rell V. Taylor, 12 Mich. 113; In re 80 Moinet v. Burnham, Stoepel & Lantis, 9 Mich. 324; Antiau v. Na- Co., 143 Mich. 489; In re Robin- deau, 53 Mich. 460. son's Estate, 6 Mich. 137. Contra, If only a moot question is in- see Eowe v. Eowe, 28 Mich. 353. volved, the writ will be dismissed. 81 Tweddle v. Judge of Superior Carlson v. Wyman, 189 Mich. 402; Court of Grand Eapids, 134 Mich. Schouwink v. Ferguson, 191 Mich. 237. 284. Chancery 299 issued in an improper case, the defendant may move to quash it, and the court will quash it even after a return and a hearing upon the merits.^^ The writ will be quashed when it has been prematurely issued, or when allowed by an officer having no jurisdiction to allow it, or when for any reason it has been improperly allowed. On such a motion, the merits will not be considered.*' A motion to dismiss a writ on the ground of plaintiff's acquiescence in the determination will not be granted unless such al- leged acquiescence is undisputed.** Where the parties stipulated for a dismissal, it will not be refused merely on the protest of an attorney for one of the parties, whom the record does not show will be injured by the dis- missal.*^ In the supreme court, when a motion is made to dis- miss a writ of certiorari, "the court may grant or deny the same on such tenns and conditions as the justice of the case may require."*^ See Jury. See Judges. See Attorneys. See Equity. CHALLENGES CHAMBERS CHAMPERTY CHANCERY 82 Farrell v. Taylor, 12 Mich. 113. 83 Maybee v. Miner, 44 Mich. 207; Lorce v. Smith, 100 Mieh. 252. 84 Crawford v. Township Boards of Scio and Webster, 22 Mich. 405. 86 Buchanan v. Moore, 113 Mich. 555. 86 Sup. Ct. Rule 9, and see Ullman V. Sandell, 158 Mich. 396, 300 Change of Venue § 1 CHANGE OF VENUE § 1. Scope of article. § 2. Historical. § 3. Statutory provisions. § 4. Grounds. § 5. Who may move. § 6. Motion and notice of motion. § 7. Supporting affidavits. § 8. Affidavits to oppose the motion. § 9. Stipulations for change. § 10. Discretion of court. § 11. Effect of change. Cross-Eeferences: Venue; Judges (transfer of cases because of dis- qualification of judge). § 1. Scope of article. This article does not include transfer of causes be- cause of disqualification of the judge ^ nor transfer of equity suits to the law side of the court or vice versa.^ §2. Historical. The rule of common law^ pleading requiring the pleader to allege the place, that is, to lay the venue, to each af- firmative traversable allegation, has been already no- ticed.^ The original object of thus laying a venue was to determine the place from which the venire facias should direct the jurors to be summoned in case the parties should put themselves upon the country, for, by tlie ancient practice, w^ien juries were composed of per- sons cognizant of their own knowledge of the fact in dis- pute, it was necessary to summon the juiy from the venue (vixne or vicinia, that is, neighborhood,) which had been laid to the particular fact in issue, and from the venue of the parish, town or hamlet as well as the county. But, at a very early time, the practice in this respect was radically changed, so that jurors began to be summoned no longer as witnesses cognizant of the fact of their own 1 See Judges. 3 See Pleading. 2 See Actions. § 2 Change of Venue 301 knowledge, but as judges to receive the fact from the testimony of others judicially examined before them. When this change had been effected, the reason for re- quiring them to be summoned from the immediate neigh- borhood where the fact occurred ceased to apply, and, by virtue of the statute 16 & 17 Car. II, c. 8, the practice arose of having issues of fact tried, not by a jury sum- moned from the venue laid to the fact in issue, but by one summoned from the venue in the action. Before this change in the constitution of juries, the venue was always laid in the true place where the fact oc- curred, but, when, in consequence of the change, the rea- son ceased to operate, a distinction arose between facts of which the place of occurrence was material, comprising matters relating to realty and hardly any others, and facts of which the place was immaterial, and which might be supposed to happen anywhere. Facts of the former sort were appropriately designated as ''local," while those of the latter sort were as properly denomi- nated "transitory," and, accordingly, actions began to be classed as either ''local," being actions wherein the principal facts on which they were founded were local, and ' ' transitory, ' ' in which any principal fact was of the transitory kind. And the rule arose that, in local actions, where the possession of land or damages affecting land were to be recovered, the plaintiff must declare his in- jury to have happened in the very county and place where it really did happen, that is, he must lay the venue truly, while, in transitory actions, as debt, detinue and the like, the plaintiff need not lay the venue truly, but might declare in what county he pleased.* It is evident, therefore, that, as the issue was to be tried in the venue 4 3 Cooley's Bl. Comm. 294. An 48. Otherwise it is local. Gunter action is transitory when the trans- v. Dranbauer, 86 Md. 1; Perry v. action on which it is based might Seaboard, etc., R. Co., 153 N. C. have taken place anywhere. Little 117; Crook v. Pitcher, 61 Md. 510. V. Chicago, etc., R. Co., 65 Minn. 302 Change of Venue § 2 of the action, the plaintiff in a transitory action was en- abled to have the issue tried in whatever county he pleased by simply alleging in his declaration that the fact occurred in such county, whether it really did or not. In this state of the law, about the reign of James I, the courts, conceiving themselves empowered, as it is said,^ so to do by the statutes 6 Rich. II, c, 2, and 4 Hen. IV, c. 18, began a practice by which defendants were enabled to protect themselves from the inconvenience resulting from the venue being laid contrary to the fact and to en- force, if they wished, a compliance with the stricter and more ancient system,* By this practice, if the plaintiff in a transitoiy action laid a false venue, the defendant might make an affidavit that the cause of action, if any, arose, not in that, but in another, county, and, upon such affidavit, might move the court to have the venue changed to the proper county. Such motion the court usually granted and obliged the plaintiff* to amend his declaration in this particular, unless he, on the other hand, would undertake to give at the trial some material evidence arising in the county where he had laid the venue.' Some- times, also, the courts would order a change of venue, even from the proper jurisdiction, upon a showing that a fair and impartial trial could not be had therein; but the change of venue was a matter which rested largely within the discretionary power of the court, which was exercised according to the circumstances of the case to promote the interests of justice.® § 3. Statutory provisions. In Michigan, the matter of a change of venue is regu- lated by statute, which, however, is merely declaratory of the common law power vested in the circuit courts.® 5 3 Cooley's Bl. Comm. 294. Dyck, 1 Cow. (N. Y.) 600. «Steph. PI. 275. 8 3 Cooley's Bl. Comm. 383, 384. TSteph. PI. 275; 3 Cooley's Bl. 9 People v. Peterson, 93 Mich. 27. Comm. 294; Vander Zee v. Van § 4 Change of Venue 303 It is thus provided that each of the circuit courts, ''upon good cause shown," may change the venue in any civil cause pending therein and direct the issue to be tried in the circuit court of another county, and make all neces- sary rules and orders for certifying and removing the cause and all matters relating thereto to the court in which the issue is ordered to be tried; and the court to which the cause is so removed will have full jurisdic- tion of the cause the same as though the cause had been originally commenced therein.^° The statute includes cases appealed from justice's court and pending in the circuit court," and also applies to mandamus proceedings ^^ but does not apply to con- demnation proceedings." § 4. Grounds. In practice, the grounds upon which a change of venue has usually been ordered are (1) the convenience of the pa-rties and their witnesses, and (2) the attainment of a fair and impartial trial. Practically the grounds which may be urged are limited to these two.'^* An amendment of the statute in 1905 setting out specifically a number of grounds for a change of venue, was repealed in 1907.^^ Where convenience of witness is relied on as a ground for a change of venue, the fact that all of the moving parties are non-residents of the state is material, ^^ and the convenience of the parties as well as of their witnesses 10 Jud. Act, ch. 10, §2; Comp. cover condemnation proceedings; Laws 1915, § 12341. And see Comp. Michigan, Ohio & I. E. Co. v. Mon- Laws 1915, § 14563. roe Circuit Judge, 144 Mich. 44. 11 Moreland v. Lenawee Circuit 1* Prejudice of community, see Judge, 144 Mich. 329. Jacobs v. Hagenbeck- Wallace Shows, 12 Woodworth v. Old Second Nat. 198 Mich. 73, 16 N. C. C. A. 535. Bank, 144 Mich. 338, holding such 15 See Grand Rapids & I. R. Co. proceedings to be "civil actions." v. Cheboygan Circuit Judge, 159 13 Grand Rapids & L R. Co. v. Mich. 210. Kalamazoo Circuit Judge, 154 Mich. 16 See Silverstone v. London As- 493, holding that words "any surance Corp., 176 Mich. 525, 529. cause" are not broad enough to 304 Change of Venue § 4 is to be considered/'' and also the fact that a change will cause a considerable delay in the trial because of the con- gested condition of the calendar in the county to which the change is sought. ^^ Whether a change of venue is proper because of inability to obtain a fair trial on ac- count of prejudice in the community is governed by no fixed rule.''® § 5. Who may move. A motion to change the venue may be made either by the plaintiff or by the defendant. It should be joined in by all of the plaintiffs or all of the defendants as a gen- eral rule,^" but, where a part of the defendants only have been served with process, they may make the motion without joining those not served,''^ and, when the default of a part of the defendants has been entered, they need not be joined by the other defendants in such motion.^^ When not all of the plaintiffs or all of the defendants are joined, the reason why they are not joined should be shown. ^^ Corporation litigants have the same right to move for a change of venue as have individuals.*^* § 6. Motion and notice of motion. The motion for a change of venue is a special motion required to be in writing, signed by the attorney or coun- 17 Silverstone v. London Assur- 21 Brodhead v. Stanton, 2 How. ance Corp., 176 Mich. 525, 530. Pr. (N. Y.) 278; Eldred v. Becker, 18 Silverstone v. London Assurance 60 Wis. 48; Suter v. Page, 64 Minn. Corp., 176 Mich. 525, 530. 444. In New York, see 2 Nichols' New 22 Chaee v. Benham, 12 Wend. (N. York Prac, §1490. Y.) 200; Wolcott v. Wolcott, 32 19 See People v. Gage, 188 Mich. Wis. 63; Hitt v. Allen, 13 111. 592. 635, which, however, was a criminal 23 Welling v. Sweet, 1 How. Pr. case. (N. Y.) 156; McKenzie v. Barling, 20Stilson v. Greeley, 2 Mich. N. 101 Cal. 459. P. 222; Welling v. Sweet, 1 How. 24 Commercial Ins. Co. v. Mehl- Pr. (N. Y.) 156; Simmons v. man, 48 111. 313; Byrum v. Stock- McDongall, 2 How. Pr. (N. Y.) 77; ton, Combined H. & A. Works, 91 Sailly v. Hutton, 6 Wend. (N. Y.) Cal. 657; McGovern v. Keokuk Lum- 508; Eiipp V. Swincford, 40 Wis. 28. ber Co., 61 Iowa 265. § 7 Change of Venue 305 sel of the party in whose behalf it is made, and to set out briefly, but distinctly, the grounds upon which it is founded.'^^ With the affidavits supporting it, the motion must be filed and notice of hearing served within twenty days after the cause is at issue, unless the moving party makes it appear to the satisfaction of the court that the facts upon which the application is based have come to his knowledge after that time and within ten days pre- vious to the deferred application, and that he has been diligent in ascertaining the facts upon which the applica- tion is based.^^ A motion for change of venue before the cause is at issue is premature.^'' As in the case of other special motions, notice of the argument of a motion for a change of venue, together with a copy thereof and of the affidavits on which it is based, is required to be served on the opposite attorney at least four days before the time noticed for hearing; but,^ for good cause, the court may hear the argument on shorter notice.^® § 7. Supporting- affidavits. A motion for a change of venue must be supported by a sufficient affidavit showing the ground or reason for the change. The affidavit need not be made by a party to the action but may be made by an attorney of a party.^* When based upon the convenience of the parties and their witnesses, the number, names ^° and residences '^ 25 Cir. Ct. Eule 15, § 1. 28 Cir. Ct. Eule 15, § 2. 26 Cir. Ct. Eule 38. 29 Moreland v. Lenawee Circuit 27Brcsnahan v. Cass Circuit Judge, 144 Mich. 329. Judge, 154 Mich. 491. But see De- 30 Anon., 6 Cow. (N. Y.) 398; troit Portland Cement Co. v. Gen- Minor v. Garrison, 4 Johns. (N. Y.) esee Circuit Judge, 148 Mich. 286, 481; Worthy v. Gilbert, 4 Johns, holding that in equity the case need (N. Y.) 492; Gilbert v. Chapman, not be at issue, as to all of the 1 How. Pr. (N. Y.) 56. parties. See also, as to equity suits, 31 Lyman v. Gramercy Club, 28 State Road Bridge Co. v. Saginaw N. Y. App. Div. 30; Wostbrook v. Circuit Judge, 148 Mich. 396. Merritt, ] How. Pr. (N. Y.) 195; 1 Abbott— 20 306 Change of Venue § 7 of the persons thus concerned must be given, so that the court may see how such convenience may be enhanced; and, as only material witnesses are to be considered for this purpose, the affidavit should state that each of the witnesses named is material ^^ and how he is material, and not merely cumulative,*^ as the party, after a full dis- closure of what he expects each witness to testify, is ad- vised by counsel,** naming him, and verily believes. When the motion is made for the purposes of a fair and impartial trial, the affidavit should set forth specifically the facts and circumstances, so that the court may from them form his opinion as to the necessity of a change of venue on such ground.*^ In either case, the affiant should swear that he has a good and substantial defense to the plaintiff's action upon the merits, as he verily believes and as he is advised by his counsel, naming him, after a full and fair statement to him of the facts pertaining to the action.*^ Form of Affidavit In Support of Motion for Change of Venue (Title of court and cause.) County of , ss. C. D., the above-named defendant, being duly sworn, deposes and says that this is an action of assumpsit (or, as the case, or what may be), and was commenced, and is now pending, in said court; and that an issue of fact was joined in this cause on the day of , A. D Deponent further says that he has fully and fairly stated the facts pertaining to this action to K. L., his counsel, who resides at the of , in the county of , and has fully and fairly disclosed to said K. L. the facts which he expects to prove by each and every of the witnesses hereinafter named, and that this deponent has a good and Cook V. Finch, 2 How. Pr. (N. Y.) works Co., 16 How. Pr. (N. Y.) 51. 89; Van Auken v. Stewart, 2 How. 34 Johnson v. Eogers, 3 Cow. (N. Pr. (N. Y.) 181; Bleeeker v. Smith, Y.) 14; Satterlee v. Groot, 6 Cow. 37 How. Pr. (N. Y.) 28. (N. Y.) 33. 32 Constantino v. Dunham, 9 36 Under 1905 statute, now re- Wend. (N. Y.) 431 ; Harris v. Clark, pealed, see Preston Nat. Bank v. 2 How. Pr. (N. Y.) 82; Humphrey Wayne Circuit Judge, 142 Mich. V. Gansevoort, 2 How. Pr. (N. Y.) 272. 123. 36Cir. Ct. Eule 34; Swartout v. 33 Price v. Ft. Edward Water- Hodge, 16 Johns. (N. Y.) 3. § 10 Change of Venue 307 subsftantial defense on the merits in this cause, as he is advised by his said counsel upon such statement as aforesaid and verily believes. And this deponent further says that M. N. and S. E., of the of , in the county of , and U. V. and W. S., of the of in the county last aforesaid, are each and all material witnesses for this deponent on the trial of this cause, as he is advised by his said counsel upon such statement and disclosure to him as aforesaid and verily believes, and that, without the testimony of each and all of said witnesses, he, the said defendant, cannot safely proceed to the trial of said cause, as he is also advised by his said counsel and verily believes. (There may also be added, for the purpose of strengthening the affidavit, a statement of the facts and circumstances involved in the action, and showing how the witnesses, before named, are material witnesses.) C. D. Subscribed, etc. § 8. Affidavits to oppose the motion. The motion may be resisted by counter affidavits show- ing that the other party has material witnesses residing in the county where the venue is hiid, or any other matter tending to minimize the showing of the moving party." § 9. Stipulations for change. A change of venue may be effected by stipulation, it seems, and the stipulation may be signed by the attorneys and not by the parties themselves, especially in the case of a corporation.^* So it seems that the stipulation may be signed by a party rather than the attoniey.^^ § 10. Discretion of court. The disposition by the court of a motion for change of venue is a matter which rests in the sound discretion of the court, and will not, therefore, be subject to review, unless in case of manifest abuse,*" especially where the 37 Dunn v. Lewis, 19 N. Y. Supp. ance Corp., 176 Mich. 525. 755; Thurber v. Thurber, 113 Cal. Greeley v. Stilson, 27 Mich. 153; 607. Grand Rapids & I. R. Co. v. Cheboy- 88 Hall V. Dickinson, 204 Mich. gan Circuit Judge, 159 Mich. 210; 545. People v. Wolverine Mfg. Co., 149 39 Goebel v. Stevenson, 35 Mich. Mich. 580; Bresnahan v. Cass Cir- 172. cuit Judge, 154 Mich. 491; People 40 Silverstone v. London Assur- v. Gage, 188 Mich. 635. 308 Change of Venue § 10 ground on which a change was sought was inability to obtain a fair trial." If the defendant has been guilty of laches in making his motion and the plaintiff will lose a trial by the delay, the court will not order a change of venue;" but, if laches cannot be imputed to the defendant, the fact that the plaintiff will lose a trial by a change of venue will not operate as a sufficient reason why the court should not order it." The right to review the order by mandamus has been held waived by setting the case for trial.** Form of Order for Cliange of Venue (Title of court and cause.) On reading and filing affidavits in this cause, and on motion of K. L., attorney for defendant, and after hearing J. K., attorney for the plain- tiff, in opposition thereto, it is ordered that the venue in this cause be changed from the county of to the county of , and that the issue herein be tried in the circuit court for the county of afore- said; and it is further ordered that the clerk of this court do forthwith transmit to the clerk of the said circuit court for the county of all the original files and papers in this cause, together with certified copies of all the rules and orders made and entered in said cause. Form of Order Denying Motion for Cliange of Venue (Title of court and cause.) A motion having been made, on the part of the said defendant, to change the venue in this cause, after hearing counsel for the respective parties, it is ordered that the said motion be, and the same hereby Is, denied (with dollars, costs). § 11. Effect of change. By statute, the court to which the change of venue is ordered, ^'has full jurisdiction of such cause the same as though such cause had been originally commenced 41 Jacobs V. Hagenbeck- Wallace surance Corp., 176 Mich. 525; More- Shows, 198 Mich. 73, 16 N. C. C. A. land v. Sanford, 1 Denio (N. Y.) 535. 660; Hudson v. Hanson, 75 111. 198; For a late criminal case reversed Cook v. Garza, 9 Tex. 358. on this ground, however, see People 43 Garlock v. Dunkle, 22 Wend, v. Gage, 188 Mich. 635. (N. Y.) 615. 42 See Silverstone v. London As- 44 Grand Rapids & I. R. Co. v. Churches 309 therein."" Another statute provides that ''in all suits, proceedings, causes or actions in which a change of venue has been granted, the court to which such suit, proceed- ing, cause or action has been transferred, shall retain jurisdiction."*^ It is held that the jurisdiction of the court to which the change is made is not exhausted by the rendition of judgment but that it has jurisdiction to issue a mandamus, in a proper case, to enforce payment of the judgment.*'^ See Witnesses. CHARACTER CHARGE Charge to the jury is the instructions (see Instruc- tions), but the word ''charge" as used in a statute has been held to include a directed verdict (see Exceptions, and Parsille v. Brown, 188 Mich. 485). CHATTEL MORTGAGES See Attachment; Executions; Garnishment. CHATTELS See Attachment; Execution. CHILDREN See Infants. CHOSES IN ACTION See Attachment; Executions; Bills and Notes. CHURCHES See Mandamus; Quo Warranto; Exemptions. Cheboygan Circuit Judge, 159 Mich. « Comp. Laws 1915, § 14563. 210. 47 Hall v. Dickinson, 204 Mich. 46Jud. Act, ch. 10, §2; Comp. 545. Laws 1915, § 12341. 310 Circuit Court Commissioners § 1 CIRCUIT COURT COMMISSIONERS § 1. Election and term of office. § 2. Oath of office. § 3. Powers. § 4. Stay of proceedings. § 5. Effect of law partnership. § 6. Limitations on power by rule of court. § 7. "Who to perform duties when officer disqualified. § 8. Bond. § 9. Suspension. § 10. How vacancy in office filled. § 11. Filing orders and papers. Cross-references: References; Affidavits; Depositions; Habeas Corpus; Costs. § 1. Election and term of office. Under a provision of the constitution,^ the legislature may provide by law for the election of one or more per- sons in each organized county, who may be vested with judicial powers not exceeding those of a judge of the cir- cuit court at chambers. Accordingly, it has been enacted that, at the general election, one circuit court commis- sioner shall be elected in each of the organized counties of the state, who shall enter upon the discharge of his official duties on the first day of January succeeding his election, hold office for the term of two years and be vested with judicial powers not exceeding those of a cir- cuit judge at chambers, and that two such circuit court commissioners shall be elected in each county in which any census taken by the authority of the state or of the United States shows a population of twenty thousand or more.^ But no person can be elected a circuit court commis- sioner unless he is at the time an attorney and counselor.' 1 Const. Art. VII, sec. 21. 3 Jud. Act, eh. 2, §98; Comp. 2Jud. Act, ch. 2, §96; Comp. Laws 1915, §12167. Laws, 1915, § 12165. § 3 Circuit Court Commissioners 311 §2. Oath of office. Every circuit court commissioner, before entering upon the duties of his office, must take and subscribe the oath of office prescribed by the constitution, before some judge or clerk of a court of record, and cause it to be filed in the office of the county clerk.* §3. Powers. When he has qualified according to law, a circuit court commissioner is authorized and required to perform all the duties and execute every act, power and trust which a circuit judge may perform and execute out of court, according to the rules and practice of the circuit courts and the provisions of any statute in civil cases, except as otherwise provided in the Judicature Act, but when any power is given in express terms by any statute to circuit judges, without naming circuit court commissioners in the statute, the latter are not authorized to exercise that power.^ Circuit court commissioners can exercise judi- cial powers in a very subordinate sense only, — powers of the sort that are usually denominated quasi- judicial, such as are appropriate for a judge at chambers rather than for the court. In short, the circuit court commissioner is a subordinate and assistant to the circuit court, rather than an independent judicial officer.^ Being a subordi- nate officer, he has no power to overrule the action of a circuit judge or court, and cannot sit in review of the proceeding of the court and annul its judgment.''^ It has been held that they have power to dissolve attachments,' 4Jud. Act, ch. 2, §99; Comp. 7 Boinay v. Coats, 17 Mich. 411; Laws 1915, §12168. In re Burger, 39 Mich. 203; Church 6Jud. Act, ch. 2, §101; Comp. v. Anti-Kalsomine Co., 119 Mich. Laws 1915, § 12170. 437. Only powers are those conferred 8 Edgarton v. Hinchman, 7 Mich, by statute. Loder v. Littleficld, 39 352. Mich. 374. Statute now so expressly provides. 6 In re Burger, 39 Mich. 203. See See Att.\cument. also Boinay v. Coats, 17 Mich. 411. 312 Circuit Court Commissioners § 3 to exonerate bail,® to act in condemnation proceedings," to issue an execution for the collection of costs in pro- ceedings held before him,^^ and to try proceedings for the recoveiy of the possession of lands, under the statute re- lating to forcible entries and detainers ; ^* but that they cannot determine the right to the custody of children under the writ of habeas corpus,^' issue a writ of ne exeat," or make an order allowing alimony.^^ The power of a commissioner to adjudicate upon a complaint for the recovery of the possession of lands, has been sustained mainly upon the ground that the same power was exer- cised by circuit court commissioners before the constitu- tion of 1850 was adopted, under a statute then in force, and which the court concluded was not intended to be abrogated by it.^^ A commissioner has no power to try the question of title to land in summary proceedings to recover posses- sion of land. And when such a question is raised by the proofs he should dismiss the action or proceeding,^' But the mere fact that there is an assertion that title to land is in question does not oust the commissioner of jurisdic- tion,^^ since title must be necessarily involved.^* And it has been held incompetent for the legislature to confer upon these officers authority to adjudicate upon the valid- ity of titles asserted in lands sold for non-payment of taxes.^" 9 DeMyer v. McGonegal, 32 Mich. 17 Lieblien v. Hansen, 178 Mich. 120. 11; Jenkinson v. Winans, 109 Mich. 10 Smith V. Milton School District 524; Butler v. Bertrand, 97 Mich. No. 2, 40 Mich. 143. 59. When title to land brought in 11 Watson V. Randall, 44 Mich. question in summary proceedings to 514. oust tenant, see Meeske v. Miller, 12Streeter v. Baton, 7 Mich. 341. 138 Mich. 87. 13Rowe V. Rowe, 28 Mich. 353. 18 Barrett v. Cox, 112 Mich. 220. 14 Bailey V. Cadwell, 51 Mich. 217. 19 Butler v. Bertrand, 97 Mich. 15 Thorp V. Thorp, 2 Mich. N. P. 59. 209. 20Waldby v. Callendar, 8 Mich. ;6Streeter v. Baton, 7 Mich. 341. 430; Case v. Dean, 16 Mich. 12. § 4 Circuit Court Commissioners 313 § 4. Stay of proceedings. By statute they are forbidden to stay proceedings be- fore judgment in any cause in which a verdict has been rendered or to stay proceedings on any capias ad respon- dendum.^^ Although they may stay proceedings on exe- cutions, such stay does not prevent a levy on property by virtue of the execution, but only suspends a sale thereon until the decision of the proper court upon the matter.^^ And commissioners cannot stay proceedings on any execution against the body of a defendant, unless the de- fendant has executed to the plaintiff and delivered to the commissioner a bond for the use of the plaintiff in a penalty double the amount required to be collected by the execution. Such a bond must have two sufficient sure- ties, who swear that they are each worth the amount of the penalty, over and above all debts and property ex- empt from execution, and must be conditioned that the defendant will be found within the county to which the execution is directed, so as to be arrested upon any exe- cution that may be issued against his body upon the same judgment within six months from the date of the bond.^* The commissioner must file the bond, within twenty days after he has taken it, in the office of the clerk of the court from which the execution was issued; and, whenever the condition of the bond is broken, the clerk must deliver it to the person in whose favor the execution was issued. In every order to stay proceedings on an execution against the body, the fact that such a bond has been given as re- quired by law must be stated or the order will be void.^* When the supreme court has made an order in refer- ence to any matter, it cannot be suspended or in any man- SlJud. Act, ch. 2, §102; Comp. 23 Jud. Act, ch. 23, §34; Comp. Laws 1915, § 12171. Laws 1915, § 12849. Power to grant injunctions, see 24 Jud. Act, ch. 23, §§35, 36; Cir. Ct. Kule 54. Comp. Laws 1915, §§12850, 12851. 22 Jud. Act, ch. 23, §33; Comp. Laws 1915, § 12848. 314 Circuit Court Commissioners § 4 ner affected by an order granted by a circuit court com- missioner.^* And when an application for an order has been made to any justice of the supreme court, circuit judge or circuit court commissioner, and such order has been refused in whole or in part, or granted conditionally or on terms, no subsequent application in reference to the same matter and in the same stage of the proceedings can lawfully be made to any other circuit court commis- sioner. If, upon a subsequent application, any order should be made by a circuit judge or circuit court com- missioner, it must be revoked by such judge or commis- sioner or by any justice of the supreme court, upon due proof of the facts. And every person making such a subsequent application, with knowledge of the previous application and refusal, is liable to be punished by fine and imprisonment by the court in which the matter is pending.^^ § 5. Effect of law partnership. No circuit court commissioner having a law partner, in whose name the business of the co-partnership is carried on, is competent to perform any official act, as commis- sioner, in any suit or proceeding in which his partner is in any way interested." § 6. Limitations on powers by ride of court. The supreme court has power by general rules to pre- scribe other cases in which circuit court commissioners shall not be authorized to act; also, to prescribe the terms and conditions upon which orders may be granted in any class of cases, and may, by order in any particular case, forbid the interference of any circuit court commis- sioner.^* Accordingly the supreme court has by rule re- 25Jua. Act, ch. 2, §103; Comp. T.aws 1915, §12175; Brown v. Laws 1915, §12172. Byrne, Walk. Ch. 45:5; Heyn v. Far- 26Jua. Act, ch. 2, §§104, 105; rar, ;J6 Mich. 258. Comp. Laws 1915, §§12173, 12174. 28 Jud. Act, ch. 2, §107; Comp. 27Jud. Act, ch. 2, §106; Comp. Laws 1915, §12176. § 7 Circuit Court Commissioners 315 stricted the powers of the circuit court commissioners, so far as pertains to suits at law, by forbidding them to vacate any order of the circuit court or any order made by the circuit judge.^® § 7. Who to perform duties when officer disqualified. In all cases where any duties are to be performed by a circuit court commissioner, and there is no commission- er who is not legally disqualified from performing them, they may be performed by any commissioner of an ad- joining county who is not disqualified. If it be some matter pending in a circuit court, the judge of the court may appoint a commissioner specially for the purpose, or the parties interested may stipulate in writing that any notary public, who is an attorney of the supreme court, may act.^° But before the commissioner of an adjoining county can enter upon the performance of such duties, propf must be made and presented to him, by affidavit, that there is no circuit court commissioner of the proper county competent and qualified to discharge the duties, and stating the ground of disqualification. This proof must in all cases accompany the act and form part of the proceedings of the commissioner discharging such duties.^^ Whenever any process has been issued or any matter referred to a circuit court commissioner, and, on the day set for the return or hearing, the commissioner is absent or disqualified from acting therein, any other circuit court commissioner, or other officer having authority to perform the like duty in the same county, may assume jurisdiction and proceed with like effect, in all respects, as if originally the process had been issued or the matter 29Cir. Ct. Eule 54. SlJud. Act, eh. 2, §112; Comp. 30Jud. Act, ch. 2, §111; Comp. Laws 1915, §12181. Laws 1915, § 12180. See also Pub. Acts 1919, No. 172. 316 Circuit Couet Commissioners § 7 referred to him; or he may, in his discretion, adjourn the same from time to time, and, on the adjoumed day, pro- ceed, or, on the adjourned day, the commissioner who is- sued the process or to whom the matter was referred, if not then disqualified, may assume jurisdiction and pro- ceed in all respects as if the adjournment had been made by himself.^^ §8. Bond. Each circuit court commissioner, before entering on the performance of his duties, is required to execute a bond to the people of the state, with sufficient surety or sure- ties, to be approved by the circuit judge or clerk of the county, conditioned for the faithful performance of the duties required of him by law. The bond must be in the penal sum of not less than three thousand nor more than five thousand dollars, in the discretion of the circuit judge or county clerk by whom the bond may be approved. When approved, it should be filed in the office of the coun- ty clerk. Any circuit court commissioner may be re- quired by the circuit judge of his county at any time to renew his bond.^' § 9. Suspension. In case of misconduct in office, a circuit court commis- sioner may be suspended by the circuit judge of his coun- ty from the exercise of the powers and duties of his office, after due notice and a full opportunity of making his defense have been given him. It is the duty of the judge immediately to report such suspension, with the reasons therefor, to the governor, who may remove him from office 34 82Jud. Act, ch. 2, §113; Ck>mp. 34 Jud. Act, ch. 2, §116; Comp. Laws 1915, § 12182. Laws 1915, § 12185. 38 Jud. Act, ch. 2, §100; Comp. Laws 1915, § 12169. § 1 Circuit Courts 317 § 10. How vacancy in office filled. Whenever a vacancy occurs for any cause in the office of circuit court commissioner, the governor may fill it by the appointment of a person eligible to the office; and the person so appointed, upon taking the oath and ex- ecuting and filing the bond required of circuit court com- missioners, is authorized to perform all the duties of, is subject to all the liabilities of, and holds, the office until his successor is elected and qualified.^^ § 11. Filing orders and papers. Every commissioner must file with the clerk of the court all orders made by him, together with the paj^ers on which they are based, immediately upon the making of such order.^^ CIRCUIT COURT RULES See Rules of Court. CIRCUIT COURTS § 1. Judicial circuits. § 2. Election of judges. § 3. Term of office of judges. § 4. Compensation of judges. § 5. Number of terms of court. § 6. When terms of court to be held. § 7, Place for holding court. § 8. Jurisdiction. § 9. Courts as courts of chancery. Cross-Eeferenees: Courts; Judges; Circuit Court Commissioners. § 1. Judicial circuits. The state is di\'ided into judicial circuits, in each of whicli the electors tliereof elect one circuit judge, and such additional nunil)er as the legislature may provide 36Jud. Act, ch. 2, §117; Conip. 36 Cir. Ct. Rule 51, §2. Laws 1915, §12186. 318 Circuit Courts § 1 for.^ The legislature may arrange the various circuits into judicial districts and provide for the manner of hold- ing court therein, but no creation, alteration or discon- tinuance of circuits or districts can have the effect of removing a judge from office.^ § 2. Election of judges. Judges of the circuit courts are elected on the first Monday in April every sixth year.^ A statute provides that no person shall be eligible to the office of circuit judge in this state, unless he be a regularly licensed at- torney and counselor, duly admitted to practice in all the courts in this state.* § 3. Term of office of judges. The term of office of circuit judges is six years, and until their successors are elected and qualified,® and be- gins on the first day of January next succeeding their election. § 4. Compensation of judges. The judges of the circuit courts each receive an annual salary of five thousand dollars,^ payable monthly.'^ This salary is in full compensation for all services performed by such judges, unless the board of supervisors votes to pay the circuit judge regularly holding court in its county an amount in addition thereto.' Any such vote must be at a regular session of the board.* In anv county where \ 1 Const. Art. VII, sees. 8, 9. Pub. Acts 1919, No. 143. 2 Const. Art. VII, sec. 8. 7 Const. Art. VII, see. 12. 8 Const. Art. VII, sec. 9. 8Jud. Act, ch. 2, S58; Comp. 4 Jud. Act, ch. 2, § 40 ; Comp. Laws 1915, § 12141, as amended by Laws 1915, § 12123. Pub. Acts 1919, No. 143; Const. Art. 5 How. Stat. (2nd ed.) 473; Comp. VII, sec. 12. Laws 1915, § 3856; Const. Art. VIII, 9 Jud. Act, ch. 2, §58; Comp. sec. 9. Laws 1915, § 12141, as amended by 6Jud. Act, eh. 2, §58; Comp. Pub. Acts 1919, No. 143. Laws 1915, § 12141, as amended by § 7 Circuit Courts 319 such additional salary is granted, it must be paid at the same rate to all circuit judges regularly holding court therein.^** § 5. Number of terms of court. In every county organized for judicial purposes, at least four terms of court must be held in each year.^^ § 6. When terms of court to be held. The times fixed for holding the terms of court in the several counties continue to be the times for holding such terms until changed by the circuit judge by an or- der entered upon the journal of the court. Such change may be made from time to time as the judge may think proper, but no change can be made effective until the ex- piration of three months from the date of the entry of the order making the change. ^^ § 7. Place for holding* court. The place of holding the terms of the circuit court in each county is the court house therein. ^^ But whenever it is deemed unsafe or inexpedient, by reason of war, pestilence or other public calamity, to hold court at the time and place appointed therefor, or wherever there is no court house in the county or the court house is un- safe or unfit for holding court therein, the judge may ap- point any other place in the county as a temporary place for holding court. ^* When such an appointment is made, 10 Const. Art. VII, sec. 12. of a particular county at another 11 Jud. Act, ch. 7, § 1 ; Comp. place than the county seat does not Laws 1915, § 12303 ; Const. Art. VI, violate the constitutional provision sec. 8. forbidding the removal of a county 12 Jud. Act, ch. 7, §2; Comp. seat without a popular vote, since Laws 1915, § 12304. the seat of justice is not necessarily 13 Attorney General v. Supervisors, at the county scat. Whallon v. Ing- 33 Mich. 294. liam. Circuit Judge, 51 Mieh. 503. A statute authorizing the holding 14 Jud. Act, ch. 7, § 3 ; Comp. of certain terms of tlie circuit court Laws 1915, § 12305; Attorney Gen- 320 Circuit Courts § 7 it must be by an order in writing, signed by the judge or judges making it, and the order must be publislied by advertisement or in such other manner as is required in the order." The place so appointed will be deemed the court house of the county for the time being for all pur- poses connected with the court.^^ § 8. Jurisdiction. In accordance with the terms of the constitution, the circuit courts have original jurisdiction in all matters, civil and criminal, not excepted in the constitution and not prohibited by law, and appellate jurisdiction from all inferior courts and tribunals and a supervisory con- trol of them. They are also vested with power to issue writs of habeas corpus, mandamus, injunction, quo war- ranto and certiorari and to hear and determine the same, and to issue such other writs as may be necessary to caiTy into effect their orders, judgments and decrees and give them general control over inferior courts and tribunals within their respective jurisdictions, and in all such other cases and matters as the supreme court shall by rule pre- scribe ; " and, under the statute," the circuit courts with- in and for their respective counties have and exercise original and exclusive jurisdiction as follows: 1. Of all civil actions and remedies of whatever name or description, not excepted in the constitution and not prohibited by law, except in cases where exclusive or concurrent jurisdiction is given by law to some other court or tribunal; 2. To issue writs of habeas corpus, mandamus, injunc- tion, quo waiTanto, certiorari and ne exeat, and to hear eral v. Supervisors of Lake County, 17 Const. Art. VII, sec. 10. 33 Mich. 289. 18 Jud. Act, ch. 6, § 1 ; Comp. 16Jud. Act, ch. 7, S3; Comp. Laws 1915, § 12299. Laws 1915, § 12305. 16 Jud. Act, ch. 7, § 3 ; Comp. Laws 1915, § 12305. § 8 Circuit Courts 321 and determine the same, except that no circuit court has jurisdiction to issue writs of mandamus or quo warranto against State officers; 3. To issue such other writs as may be necessary to carry into etTect their orders, judgments and decrees and give them control over all inferior courts and tribunals within their respective jurisdiction; 4. In all such other cases and matters as the supreme court shall by rule prescribe; 5. Said courts shall have such appellate jurisdiction and powers as may be provided by law; 6. Said courts shall also have and exercise all the powers usually possessed and exercised by courts of record at the common law, except as now or hereafter modified by the laws of this State or by rule of the supreme court, for the full exercise of their jurisdiction and have the power to make all orders in any cause pend- ing therein, which may be necessary or proper for carry- ing into effect their jurisdiction and to give full effect to any judgment of such courts, and may enforce any lawful order so made by attacliment and proceedings for contempt ; 7. Parties to any civil, action pending in any circuit court, and parties to any question of difference which might be the subject of any civil action, without bring- ing suit, may agree upon a case containing the facts of the matter in controversy and submit it to the court, and the court will thereupon hear and determine the cause and render judgment thereon as in other cases. But if such case be agreed upon without action, it must appear by affidavit that the controversy is real and the proceedings in good faith to determine the rights of the parties. 8. Said circuit courts may from time to time make rules for regulating the practice of the court in matters not covered by rule of the supreme court or by statute. 1 Abbott— 21 322 Circuit Courts § 8 They are the highest courts of general original juris- diction in the state." The constitution ranks all other courts, except the supreme court, as inferior courts in legal grade to the circuit courts, and they cannot be allowed in any case to review the action of the circuit courts.^" Such jurisdiction as the constitution gives without exception to the circuit courts cannot be dimin- ished or divested by the legislature.^^ The original juris- diction, however, is subject to the exception of such cases as are or may be prohibited by law,'''' the constitution itself giving justices of the peace in civil cases exclusive jurisdiction to the amount of one hundred dollars.^' Or- iginal jurisdiction in certain cases has also been con- ferred upon the probate courts and municipal courts.^* But the appellate jurisdiction from all inferior courts and tribunals and supervisory control of them is speci- fically vested by the constitution in the circuit courts and cannot be taken away from them by any legislative act which attempts to transfer even a part of it to another tribunal.^* The circuit courts, in the exercise of their common 19 People V. Kent Circuit Judge, Jurisdiction depends on amount 37 Mich. 372; Cofrode v. Gartner, claimed in the declaration, at least 79 Mich. 332. in actions on contracts. Zimmerman 20 Lander v. Reilly, 79 Mich. 602. v. Miller, 173 N. W. 364 and eases 21 Attorney General v. Lacy, 180 cited; Merrill v. Butler, 18 Mich. Mich. 329, 342; Nichols v. Judge 294. of Superior Court, 130 Mich. 187; Legislature may confer jurisdic- Atkins V. Borstler, 46 Mich. 552; tion on circuit court in cases involv- and see Eddy v. Lee Tp., 73 Mich. ing any amount. Detroit Lumber 123; People v. Kent Circuit Judge, Co. v. The Petrel, 153 Mich. 528. 37 Mich. 372; People v. Kent Cir- 24 But a statute conferring orig- cuit Judge, 37 Mich. 474; People inal jurisdiction on the circuit court V. Wayne Circuit Judge, 18 Mich. in the matter of probating wills 483. where a contest arises is not uncon- 22 Const. Art. VII, sec. 10 ; People stitutional as interfering with the T. Hurst, 41 Mich. 328. jurisdiction of the probate court. In 28 Const. Art. VII, sec 16; Fix re Kockett 's Estate, 191 Mich. 499. V. Sissung, 83 Mich. 561; Eldred v. 26 People v. Kent Circuit Judge, Woolaver, 46 Mich. 241. 37 Mich. 474. § 9 Circuit Courts 323 law powers, in both civil and criminal cases, are courts of superior, and not of inferior jurisdiction, and as such their jurisdiction is presumed in all cases where the record does not disclose a want of it,^^ until the contrary- is shown. But if they act without authority their judg- ments are void, and their jurisdiction may be inquired into in every court where their proceedings are relied upon by a party claiming the benefit of them,^' and where the want of jurisdiction appears on the record of the court, such record is a nullity, and no rights can be acquired under it.^^ And where the court is vested with extraordinary powers, under a statute specially prescrib- ing its course of procedure, that course ought to be ex- actly pursued, and the facts which give jurisdiction ought to appear, in order to show that its proceedings are coram judice.^^ The circuit courts have no original juris- diction over claims against estates.^** § 9. Courts as courts of chancery. The several circuit courts of the state are also courts of chancery within and for their respective counties, the powers of which are exercised by the circuit judges there- of; and the name and style of such courts sitting in chancery is ' * The Circuit Court for the County of , in Chancery." But it is not within the scope of this treatise to enter into any consideration of chancery courts or of chancery practice. 26 Greenvault v. Farmers ' & Me- See also Palmer v. Coakley, 2 Doug. chanics' Bank, 2 Doug. 498, 508. 433, 476. See also Arnold v. Nye, 23 Mich. 28 Wilson v. Arnold, 5 Mich. 98, 286. See also Courts. 105. Circuit courts are courts of lim- 29 Greenvault v. Farmers' & Me- lted but not inferior jurisdiction. chanics' Bank, 2 Doug. 498, 507. Ward V. Cozzens, 3 Mich. 252, See also Clark v. Eaymond, 27 Mich, quoted in Thomas v. Rosecrantz, 456. 193 Mich. 357. 80 Patrick v. Howard, 47 Mich. 27 Greenvault v. Farmers ' & Me- 40. chanics' Bank, 2 Doug. 498, 507. 324 Citation CITATION A citation is like a summons and is generally issued either to notify a party interested in a cause of action of proceedings therein or to give interlocutory notices during the pendency of an action or proceeding. The term is used in the Judicature Act in connection with the dissolution of attachments (see Attachment), gar- nishment (see Garnishment) and some other particular proceedings. Citations in briefs (see Briefs) are regu- lated by rule of court. CITIES AND VILLAGES See Costs; Executions; Municipal Corporations. CLERKS OF COURT § 1. In general. § 2. Clerk of supreme court. §3. Duties. § 4. Fees. § 5. Deputy clerk. § 6. Clerk of circuit courts. § 7. Deputies. § 8. Where clerk to hold his office. § 9. Duties. Cross-references: Papers and Notices; Costs; Affidavits; Certio- rari; Amendments. § 1. In general. Clerks of courts are ministerial officers and cannot, at least unless authority is expressly delegated by the constitution or statutes, exercise any judicial functions.^ Furthermore, the court, in the absence of express author- ity, cannot delegate judicial functions to its clerk.^ He is responsible for all fees actually received by him.' 1 People V. Colleton, 59 Mich. 573. 3 People v. Treadway, 17 Mich. 2 Strickland v. Cox, 102 N. C. 411. 480. § 3 Clerks of Court 325 § 2. Clerk of supreme court. He is appointed by the court, and he must be an at- torney duly admitted to practice before the bar of the supreme court.* Before entering upon the duties of his office and within ten days after his appointment to such office, he is required to give a bond to the people of the state of Michigan in the penal sum of five thousand dol- lars, to be approved by the chief justice of the supreme court, for the faithful discharge of the duties of his of- fice.* This bond is for the period of five years and must be renewed at all events at the expiration of that time,^ The supreme court may require its clerk to furnish a new or additional bond at any time.' The bonds of the clerk are deposited with the secretary of state. ^ The clerk must also, before entering upon the duties of his office, take the constitutional oath of office.^ He holds his office during the pleasure of the court. ^^ §3. Duties. The clerk has the care and custody of all the records, seals, books and papers appertaining to his office and filed or deposited tlierein, and he has such other duties to perforai relating to his office as are required of him by law or by the rules and practice of the court.^^ He must reside and keep his office at the city of Lansing, and he cannot practice, either as attorney or counselor, in any 4Jud. Act, ch. 1, §31; Comp. eh. 1, §36; Comp. Laws 1915. Laws 1915, § 12036. § 12041. 6 How. Stat. (2nd ed.) 12534; 8 Jud. Act, eh. 1, §31; Comp. Comp. Laws 1897, §223; Jud. Act, Laws 1915, §12036. ch. 1, §36; Comp. Laws 1915, 9 Const. Art. XVI, sec. 2; Jud. §12041. Act, ch. 1, §31; Comp. Laws 1915. 6 How. Stat. (2nd ed.) 12534; §12036. Comp. Laws 1897, § 223 ; Jud. Act, 10 Jud. Act, ch. 1, § 31 ; Comp. ch. 1, §36; Comp. Laws 1915, Laws 1915, §12036; Const. Art. § 12041. VII, sec. 6. 7 How. Stat. (2nd ed.) 12534; H Jud. Act, ch. 1, §31; Comp. Comp. Laws 1897, §223; Jud. Act, Laws 1915, §12036, 326 Clerks of Court | 3 court, while he continues to be such clerk. ^^ He is re- quired to indorse on every paper the day on which it is filed, and must not permit any original record or paper to be taken from the court room or from the office with- out an order from the court or the permission of one of the justices thereof; but parties interested in any of them may inspect the same and take copies thereof.^' §4. Fees. The clerk is entitled to six dollars upon entering any case in the supreme court, and this is in full for all fees in the case, provided that an additional sum of two dol- lars must be paid to the clerk upon the entry of any mo- tion upon the motion docket, except in cases of manda- mus, where the motion fee is four dollars.^* He is also allowed the sum of fifteen cents per folio for certified copies of any entries or papers in any suit or proceeding, when required for any other purpose than for one con- nected with the progress or disposition of such suit or proceeding.^^ His fee for all proceedings relative to the admission of any person to the bar, including the proper certificate, is the sum of two dollars. ^^ It is the duty of the clerk to collect all the fees of his office, whether provided for by statute or by the rules of the court, and to pay them monthly into the state treas- ury." § 5. Deputy clerk. The clerk may appoint a deputy with the approval of the court, who must be an attorney duly admitted to practice before the bar of the court." Whenever the clerk is absent from his office or from 12 Sup. Ct. Rule 1. 17Ju(1. Act, ch. 1, §31; Comp. 13 Sup. Ct. Rule 1, Laws 1915, §12036; Const. Art. 14 Sup. Ct. Rule 2. VII, sec. 6. IB Sup. Ct. Rule 2. 18 Jud. Act, ch. 1, §32; Comp. 16 Sup. Ct. Rule 2. Laws 1915, § 12037. § 6 Clerks of Court 327 the place where any official duty is required to be per- formed by him, or is incapable of performing the duties of his office, and also whenever the office of clerk is va- cant, the deputy clerk may perform the duties of the office during such absence, inability or vacancy,^® § 6. Clerk of circuit courts. The clerk of each county organized for judicial pur- pose is clerk of the circuit court for such county.^'' He is required to attend every term of the court of which he is clerk, and has the care and custody of all the rec- ords, seals, books and papers pertaining to his office and filed or deposited therein.^^ He must keep a journal of the proceedings of the court, under the direction of the circuit judge presiding therein, and all entries so made should be read over in open court by the clerk from day to day and corrected, when necessary, and signed by the circuit judge.^^ The clerk provides, at the expense of the county,^^ such books for entering the proceedings of the court as the judge directs.^* The clerk of each organized county is elected at the general election for the term of two years, and is re- quired to give a bond to the people of the state in the penal sum of two thousand dollars, to be approved by the board of supervisors of the county.^* The condition of the bond is that he will faithfully, truly and impar- 19Ju<]. Act, ch. 1, §34; Comp. Comp. Laws 1897, §.'514. Laws 1915, § 12039. See also Yale 23 How. Stat. (2nd ed.) 1219; State Bank v. Fletcher, 173 Mich. Comp. Laws 1915, § 2435. 585, 588, powers of deputy county 24Jud. Act, ch. 2, §65; Comp. clerk same as those of his principal Laws 1915, § 12148. unless limited by statute. 26 How. Stat. (2nd ed.) 1215, 20Const. Art. VII, sec. 11; Jud. 1297; Comp. Laws 1915. §§2431, Act, ch. 2, §65; Comp. Laws 1915, 2512. In Wayne County, the ap- § 12148. proval is to be by the board of 21Jud. Act, ch. 2, §65; Comp. auditors. Comp. Laws 1897, § 2531 ; Laws 1915, §12148. Comp. Laws 1915, §2340. 22 How. Stat- (2nd ed.) 11789; Clerks of CouEf | 6 tially enter and record all orders, decrees, judgments and proceedings of the courts whereof he shall officiate as clerk, and faithfully and impartially perform all other duties of his said office and pay over all moneys that may come into his hands as such clerk, and deliver over to his successor in office all the books, records, papers, seals and other things belonging to his office.^® The bond of the clerk must be filed with the treasurer of the county before the clerk enters upon the duties of his office and within twenty days after receiving official notice of his election.^''' He must also, before entering upon his office, and within twenty days after he has received official no- tice of his election, take and subscribe the oath of office prescribed by the constitution, before some officer author- ized by law to administer oaths, and deposit it with the clerk of the county.^^ In case of a vacancy in the office of clerk, the circuit judge ma}^ make an appointment to fill the same.*^^ The appointee may act until the expiration of his predeces- sor's term or until the vacancy is filled by an election.'" Each county clerk is required to appoint one or more deputies, to be approved by the circuit judge, one of whom must be designated in the appointment as the suc- cessor of the clerk in case of vacancy from any cause. The appointments so made may be revoked at the pleas- ure of the clerk. Both the appointment and revocation must be in writing, under the hand of the clerk, and filed in the office of the county treasurer.'^ 26 How. Stat. (2nd cd.) 1216; 29 Const. Art. VII, sec. 11. Comp. Laws 1915, § 24;i2. 30 Board of Election Com'rs v. 27 How. Stat. (2nd ed.) 1290, Wayne Circuit Judges, 172 Mich. 1291; Comp. Laws 1915, §§2505, 430. 2506. 31 How. Stat. (2nd ed.) 1217; 28 How. Stat. (2nd ed.) 1290; Comp. Laws 1915, § 2433, Comp. Laws 1915, §2505; Const. Art. XVI, sec. 2. Client 329 § 7. Deputies. Where there is more than one circuit judge in a cir- cuit, the clerk is required, with the approval of the judges, to appoint a sufficient number of deputies to at- tend upon the proceedings before such judges. ^^ The deputies may perform the duties of the clerk,^^ and in turn the clerk and his sureties are resiDonsible for the manner in which they perform them.^* In case of the death, resignation or removal of the clerk or a vacancy in the office from any other cause, the deputy or deputies are required severally to perform the duties of the clerk until the vacancy is filled.^^ § 8. Where clerk to hold his office. The constitution requires the clerk to hold his office at the county seat.^^ § 9. Duties. Neither the constitution nor the statutes prescribe the duties of the clerk of the circuit court, and it is held that he is subject to all the legitimate orders of the court of which he is clerk." The statutes provide as to how money paid into court shall be invested by the clerk,^^ the taking of securities for the benefit of suitors in the name of the clerk,^® etc. CLIENT See Attorneys. 82Jud. Act, ch. 2, §64; Comp. 35 How. Stat. (2nd ed.) 1218; Laws 1915, § 12147. Comp. Laws 1915, § 2434. 38 How. Stat. (2nd ed.) 1217; 36 Const. Art. VIII, sec. 4. Comp. Laws 1915, §2433. 37 Smith v. Kent Circuit Judge, Where, after default, matter was 139 Mich. 463. referred to the clerk for assessment, 38 Jud. Act, ch. 2, §§67-70; assessment may be made by deputy. Comp. Laws 1915, §§ 12150-12153. Yale State Bank v. Fletcher, 173 39 Jud. Act, ch. 2, §§ 72-76; Comp Mich. 585, 588. Laws 1915, §§ 12155-12159. 84 How. Stat. (2nd ed.) 1218; Comp. Laws 1915, § 2434. 330 Closing Argument CLOSING ARGUMENT See Trial. CLUBS csee Associations. COERCION See Trial (coercion of jury). COGNOVIT Cross-References: Confession of Judgment; Judgment. It sometimes happens that a defendant, not wishing to contest the action of the plaintiff nor to allow the plaintiff to take a judgment by default, confesses or acknowledges the plaintiff's claim, or some part of it, by giving what is called a ** cognovit." A cognovit is ttiways given after the plaintiff has filed his declaration, and may be either before or after the defendant has pleaded. When given before the defendant has pleaded, it is known simply as a ''cognovit," but when the plea has been filed, it is called a ''relicta cognovit," from the words formerly used in entering it upon the record, * ' and the defendant relinquishing the plea (relicta verifica- tione) by him above pleaded." A cognovit is somewhat analogous to warrant of attorney to confess a judgment, but, while the latter is generally given when no suit is pending between the parties, the former always refers CO a suit already commenced. By executing and deliver- ing a cognovit, a party waives such defenses as he may have had to the plaintiff's cause of action.^ A cognovit is always in writing, signed by the attor- T^ey for the defendant, if he have an attorney, and speci- fies the amount to which the defendant confesses the plaintiff's claim. It is frequently given upon certain con- ditions, and when such is the case, the conditions should be specified in the writing. 1 Taber v. Wayne Circuit Judge, 156 Mich. 652. Collateral Attack 331 The cognovit is delivered by the defendant to the plain- tiff, who, upon filing it in the cause, may have judgment entered thereon upon any day in term, and may issue ex- ecution on the judgment immediately, unless the condi- tions upon which the cognovit was given otherwise re- quire, in which case the conditions must be observed. It has been held that judgment on cognovit might be en- tered in vacation. '^ Like any other judgment, it may be made the basis of garnishment proceedings.' Form of Cognovit in Assumiysit (Title of court and cause.) Comes now the said defendant, by K. L., his attorney, and defends the wrong when, etc., and says that he cannot deny the action of the said plaintiff, nor that he, the said defendant, did promise and undertake in manner and form as the plaintiff in his declaration in this cause has alleged, nor that the said plaintiff has sustained damages on account of the non-performance of said promises and undertakings, over and above his costs and charges by him, the said plaintiff, about his suit in this behalf expended, to the amount of dollars. Dated, etc. K. L., Attorney for Defendant. Form of Judgment on Cognovit in Assumpsit (Title of cause.) The said defendant having appeared in this cause and confessed the action of the said plaintiff and that the said plaintiff has sustained dam- ages on occasion of the non-performance of the several promises and un- dertakings in the plaintiff 's declaration mentioned to the sum of dollars, over and above his costs and charges by him, the said plaintiff, about his suit in this behalf expended, thereupon, on motion of J. K., attorney for plaintiff, it is considered that the said plaintiff do recover against the said defendant his damages aforesaid in the sum of dol- lars, together with his costs and charges aforesaid, to be taxed, and the said plaintiff have execution therefor. COLLATERAL ATTACK See Judgments; Execution; Attachment; Replevin. 2 Hogeboom v. Genet, 6 Johns. 3 Starr v. Whltcomb, 150 Mich. (N. Y.) 325. 491. 332 Color of Title COLOR OF TITLE See Ejectment. COMMENCEMENT OF ACTIONS I. GENEiiAL Rules § 1. Governing statutes. § 2. Modes of commencing actions. § 3. Style of process. § 4. Teste, sealing, signing and indorsement. § 5. Indorsement where plaintiff a non-resident. § 6. Delivery of blank process. § 7. Effect of conflicting statements in process. § 8. Amendment. § 9. How original process served. § 10. Time for service. § 11. Wlio may be served. § 12. Actions against corporation, partnership or association. § 13. Actions against foreign corporations. §14. Actions .against insurance or like companies where state oflBcer appointed as agent to receive service. § 15. Actions against public corporations and certain unincorporated boards. §16. Prisoners. § 17. Service on only one of several jointly liable. § 18. Exemptions from service. § 19. Who may serve. § 20. Place for service. § 21. Waters of Great Lakes. § 22. How objections to want or insufficiency of service urged. § 23. Eeturn of service. § 24. Form and contents where service by officer. § 25. Eeturn by private person. § 26. Amendment. § 27. Compelling return. § 28. Waiver of service. § 29. Acceptance or acknowledgment of service. S 30. Alias and pluries writs. II. By Summons § 31. When proper. § 32. Form of summons. § 33. Time for issuance and return. § 34. Service. § 35. Rules governing both summons and capias or all process. § 1 Commencement op Actions 333 III. By Filing and Serving Declaration § 36. When proper and time of service. g 37. Form of declaration. 8 38. Who may serve. § 39. Proof of service. § 40. Rules common to all original j^rocess as applicable. IV. By Capias § 41. Capias as original writ. § 42. Actions which may be commenced by capias Actions on contracts. § 43. Actions for torts. § 44. Privilege from arrest. 8 45. — — Witnesses, parties and attorneys. § 46. Officers of court. § 47. Prisoners. §48. Electors. § 49. Persons in military service. 8 50. Senators and Congressmen. §51. Women. § 52. Second arrest. 8 53. Statutory liability for arrest of party, attorney or witness. 8 54. Declaration and affidavit In actions ex contractu. § 55. ' In actions ex delicto. § 56. Necessity for statements based on personal knowledge. § 57. Title, date and filing. § 58. Defects and how taken advantage of. § 59. Issuance and form of writ. § 60. Fixing and indorsing bail. § 61. Amount of bail. 8 62, How capias served. § 63. Return of service. § 64. Discharge on bail bond. § 65. Bond for jail liberties. V. By Attachment 8 66. In general. VI. By Replevin 8 67. In general. Cross-Re ferences: Process; Attachment; Replevin; Ejectment; Bail. I. General Rules § 1. Goveming" statutes. Chapter 13 of the Judicature Act is entitled "Com- moncemout of Suits and Service of Process." It 2:ov- 334 Commencement of Actions § 1 ems, so far as applicable, not only all personal actions, but also actions of ejectment, replevin, actions begun by- attachment, and all special actions and proceedings; but there are special provisions in other chapters governing such particular actions or proceedings which of course control, — and it is so expressly provided by the statute, — where they are applicable.^ Certain of these general provisions which apply regardless of whether the action is commenced by summons, declaration, capias or other- wise, will now be noticed, while in subsequent subdivi- sions the statutes applicable solely to summons or capias or declaration as process will be considered. The Judi- cature Act expressly provides that wherever the term *' process" is used therein it shall be deemed to include declarations, in suits commenced by declaration, wher- ever the same would be applicable.* The Judicature Act makes few changes in the law as to the mode of commencing suits. The principal change is the one permitting service outside the county in cer- tain cases. Changes in the provisions for commencing suit by declaration and in the provisions relating to capias are noted hereafter. § 2. Modes of commencing actions. In Michigan, actions at law may be commenced in the circuit courts by (1) original writ, (2) by declaration, (3) by writ of attachment, and (4) by writ of replevin. The original writ in personal actions is (a) a summons or (b) a capias ad respondendum,' the forms of which, as well as of the writ of attachment and the writ of re- plevin, are prescribed by rule of court.* They are in- cluded in the general term *' process," which has been defined as a writ issued by some court or officer exercis- IJud. Act, eh, 1.3, §7; Comp. 8 Jud. Act, ch. 13, §3; Comp. Laws 1915, § 12410. Laws 1915, § 12406. 2 Jud. Act, ch. 13, §20; Comp. 4 Cir. Ct. Rule 18, §§3-6. Laws 1915, § 12423. § 4 Commencement of Actions 335 ing judicial powers.* Actions may be commenced either by summons, declaration or capias ' ' notwithstanding the provisions of any general, local or special act, or city or village charter to the contrary. ' ' ^ § 3. Style of process. Constitutional and statutory provisions require that the style of all process from courts of record in this state shall be, * ' In the Name of the People of the State of Mich- igan. ' ' ''' The object of this provision undoubtedly is to make this style the distinguishing feature of all process, and it should, therefore, be strictly complied with. A defect in this respect is a jurisdictional one.® The pro- vision does not require that the process shall be tested in the name of the people, but that the style of the process shall be in the name of the people, since a writ is proper- ly said to run in the name of a person or government, when the command, on the face of the writ, appears to emanate from that person or government.® § 4. Teste, sealing, signing and indorsement. All process from courts of record in this state must be tested in the name of the chief justice or presiding justice or judge or one of the judges of the court from which it issues, must be sealed with the seal of the court, must be signed by the clerk thereof and, before the de- livery of it to any officer to be executed, must be sub- scribed or indorsed with the name of the attorney for 5 Tweed v. Metcalf, 4 Mich. 579; 7 Const. Art. VII, sec. 22; Jud. Wisner v. Davenport, 5 Mich. 501; Act, ch. 13, §2; Comp. Laws 1915, Forbes v. Darling, 94 Mich. 621 ; § 12405. Attorney General v. Jochim, 90 Applies to judicial department Mich. 358. only. Attorney General v. Jochim, Declaration as process, see infra, 99 Mich. 358. subd. III. 8 Forbes v. Darling, 94 Mich. 621. 6 Jud. Act, ch. 13, §4; Comp. 9 Johnson v. Provincial Ins. Co., Laws 1915, § 12407. 12 Mich. 216. 336 Commencement of Actions § 4 the plaintiff and the officer by whom it is issued.^" If there is a vacancy in the office of chief justice or presid- ing justice or judge of the court from which the process issues, it may be tested in the name of the chief justice or one of the associate judges of the supreme court.-^^ Until so subscribed or indorsed the process is incom- plete,^^ but it is the settled practice to permit original writs to be indorsed nunc pro tunc by plaintiff's attor- ney, after the ser^dce of the writ, where the indorsement has been omitted.^^ Where the attorney signs his name, his business address should be added. A deputy clerk need not sign a writ in the name of the clerk," and the writ is not void although signed by the clerk at a place in the county other than the county seat.^^ Process should not be issued to a sheriff whose term of office has expired.^^ § 5. Indorsement where plaintiff a non-resident. The statutory provisions as to the indorsement of sum- mons and capias, w^here the plaintiff is a non-resident, as security for costs, were repealed by the Judicature Act. § 6. Delivery of blank process. The clerk of court may refuse to deliver original process signed and sealed in blank, although if he chooses lOJud. Act, ch. 13, §2; Comp. 12 Potter v. John Hutchison Mfg. Laws 1915, §12405; Howerter v. Co., 87 Mich. 59. Kelly, 23 Mich. 337. 13 Parks v. Goodwin, 1 Doug. 56. Merely clerical errors and omis- 14 Calender a\ Olcott, 1 Mich. 344, sions are not fatal. Merrick v. where a signature, "W. M., Deputy Mayhue, 40 Mich. 196; Millard v. Clerk and in the absence of the Lenawee Circuit Judge, 107 Mich. clerk ' ' was held sufficient. 134; Lyon v. Baldwin, 194 Mich. 15 Newbauer v. Cummings, Howell, 118. N. P. 19. llJud. Act. ch. 13, §2; Comp. 16 Fletcher v. Morrell, 78 Mich. Laws 1915, § 12405. 176. ^5 9 Commencement of Actions 337 to trust an attorney with such process it will not be held void for that reason.^''' § 7. Effect of conflicting statements in process. Where the day of the week, if stated in the process, does not correspond to the day of the month as stated, the latter will control.^^ § 8. Amendment. Original process may be amended.^^ For instance, the summons may be amended to make the damages claimed confomi with the declaration, in the discretion of the court.^'' § 9. How original process served. The statutory method of serving process must be fol- lowed.^^ The Judicature Act provides that writs of sum- mons shall be served by showing the original writ to the defendant and delivering to him a copy thereof,^^ and undoubtedly this rule governs as to all original process unless it is otherwise provided by statute. It is not suffi- cient to serve process by laying it on the body of a man too sick to understand.^^ Mere clerical mistakes and omissions in the original and in the copy served are not fatal; and service of process cannot be set aside, it would seem, because the copy delivered omitted the date and the signature of the clerk. ^* It is an old principle of the common law, still recog- nized by modern jurisprudence, that, in reference to the 17 Sweet v. Cireuit Judge, 95 21 Lyon v. Baldwin, 194 Mich. Mich. 449, and see Potter v. John 118, 122. Hutchison Mfg. Co., 87 Mich. 59. 22 Comp. Laws 1015, §12424. 18 State Sav. Bank v. Wayne Cir- 23 People v. Judge of Superior euit Judge, 95 Mich. 100. Court, 38 Mich. 310. 19 See Amendments, and also Jan- 24. Lyon v. Baldwin, 194 Mich, kovich V. Wayne Cireuit .Tudge, 188 118, which, however, involved serv- Mich. 284, order for publication. k-e of a writ of garnishment. 20 Groat V, Detroit United Ry., 153 Mich. 165. 1 Abbott— 22 338 Commencement of Actions § 9 service of process of every sort, a man's house is his castle of defense and asylum, wherein he should suffer no violence or harm; and so it is held that an officer may not break into the defendant's house to serve process. If, however, the outer door be open, the officer may enter and force an inner door,^^ and, if a man is once arrested and escapes, the officers may break into his house to re- take him.^^ But a man's house is not a castle of asylum for a stranger who may fly to it.^'^ § 10. Time for service. An officer may serve a civil process at any time on or before the return day of the writ, except from midnight preceding to midnight following the first day of the week, and except also that the writ cannot be served on any elector entitled to vote at any election during the day on which the election is held.^* The enactment designating certain holidays to be treated and considered as the first day of the week does not prevent the service of any writ upon any of those days.''® But upon sufficient cause be- ing shown by affidavit, to the satisfaction of a judge of any circuit court, such judge may authorize the service to be made upon Sunday or any legal holiday.^" With- out such authorization, a service made on Sunday is ab- solutely void.^^ But a general appearance by the de- fendant would constitute a waiver of the defect. § 11. Who may be served. Before the Judicature Act, there were a large number of statutoiy provisions regulating the question as to the 25 Stearns v. Vincent, 50 Mich. Laws 1915, §12428; Shriver v. 209; Hubbard v. Mace, 17 Johns. Bean, 112 Mich. 508. (N. Y.) 127. 29 How. Stat. (2nd ed.) 2864; 26 Genner v. Sparks, 6 Mod. 173 ; Comp. Laws 1915, § 6232. Allen V. Martin, 10 Wend. (N. Y.) SOJud. Act, ch. 13, §26; Comp. 301. Laws 1915, § 12429. 27Semayne'8 Case, 5 Coke 91. 31 Anderson v. Birce, 3 Mich. 280. 28Jud. Act, ch. 13, §25; Comp. § 12 Commencement of Actions 339 proper person to serve with process, especially in case of coi-porations, private and municipal. These statutes are all repealed by the Judicature Act and uniform provi- sions covering all cases provided. However, many of the provisions of the old statutes are unchanged. § 12. Actions ag-ainst corporation, partnership or association. Of course, in case of a corporation, personal service can only be made by serving some natural person who represents it in some agency capacity.^^ The Judica- ture Act provides that in courts of record process against a corporation, partnership, or unincorporated voluntary association, may be served upon any (1) officer, (2) di- rector, (3) trustee, or (4) agent thereof, or (5) by leav- ing it during regular office hours at the office with any person in charge thereof; and that, except as otherwise provided, all general and special laws relating to the service of process on corporations are repealed.*^ Un- der former statutes, it has been held, and such decisions are applicable to the new statute, that the agent served need not be in charge of a business office, and that service on a travelling salesman is sufficient ; '* that service on an officer may be made although he is at the time out- side the county where the corporation has its principal office;^* that a new corporation, after consolidation, is 32 Cox V. Railway Conductors, etc., For full discussion of who may Ass'n, 194 Mich. 21,5, 221, holding be served in actions against corpo- it a question of fact in the particu- rations, in general, see 4 Fletcher's lar case whether the person served Cyc. Corp., § 2991 et seq. was an agent. Who are agents, see 4 Fletcher's 33 Jud. Act, eh. U, § 29 ; Comp. Cyc. Corp., § .SOOO. Laws 1915, § 12432, 34 Moinct v. Buniham, Stoepel & Last clause, see Drueke-Lynch Co. Co., 143 Midi. 489. V. Michigan Bonding & Surety Co., 35 Potter v. John Hutchison Mfg. 204 Mich. 180. Co., 79 Mich. 207. See also Pol- Independcntly of statute, service lock v. Detroit United Rys., 168 on one copartner is suflBcient. Rick- Mich. 581. man v. Rickman, 180 Mich. 224, 252. 340 Commencement of Actions § 12 not tlie agent of the old one for the purpose of service of process ; ^^ and that while an officer may ordinarily be served jet if he is the assignor of the claim sued on and his interest is to suppress the fact of service, service on him is unauthorized.^''' In addition, in case of railroad companies, it is pro- vided that ''whenever it shall become necessary to serve any process, notice or writing upon any company or cor- poration, owning or operating any steam, electric or street railway, in the State of Michigan, it shall be suf- ficient to serve the same upon any station agent, or ticket agent at any station or depot along the line, or at the end of the road of such company, or upon any conductor in charge of any train or car of such company along the line of, or at the end of the road of such company, and such service shall be deemed as good and effectual as if made on the officers, directors or other agents of such company: Provided, That the modes of service herein provided for, shall be in addition to those provided for in the preceding section: Provided further. That service shall not be made upon conductors of street cars in cities where the home office of the coi'poration is located. ' ' ^^ When it may be necessary to institute suits against any corporation, which may have ceased to do business, or to keep up its organization by the appointment of of- ficers or otherwise, or the term of whose existence may have expired by limitation, it shall be competent to sei'\^e any writ, declaration or other process in such suit, on 36 Thompson v. McMorran, 132 This statute applies only to do- Mich. 591. niestic corporations. Grand Trunk 37Atwood V. Sault Ste. Marie R. Co. v. Wayne Circuit Judge, 106 Light, Heat & Power Co., 148 Mich. Mich. 248. 224. See generally 4 Fletcher's Cyc. The last proviso relates to street Corp., § 3004. railways wholly operated within the 38 Jud. Act, ch. 13, §30; Comp. limits of incorporated cities. Hal- Laws 1915, § 12433. See Pollock laday v. Detroit United Ry., 155 V. Detroit United Rys., 168 Mich. Mich. 436. 581. § 13 Commencement of x\ctions 341 either of the persons who may have been the last pre- siding officer, president, cashier, secretary or treasurer thereof.^^ It seems that if an attempt to voluntarily dis- solve a corporation is ineffectual, holdover officers may be served with process.*" The appointment of a receiver for a railroad company does not preclude service of process on a station agent as representing the company.*^ § 13. Actions against foreign corporations. In case of foreign corporations, the Judicature Act provides that ' ' In all cases where suit is brought against a foreign corporation, process may be served upon any officer or agent of such corporation within this State, and any person representing such corporation in any capacity, shall be deemed an agent within the meaning of this section. If such corporation has a legally desig- nated agent or attorney in this State, appointed in pur- suanjce of statute for that purpose, service of process may also be made upon such agent or attorney. The provi- sions of this section shall not apply to the cases enumer- ated in section thirty- three of this chapter (relating to foreign insurance companies, etc.)" "In all cases of foreign corporations, which have paid a franchise fee to the Secretary of State, and been admitted by him to do business in this State, in addition to the other methods of service of process herein provided, service of process may also be made upon the Secretary of State"; and there is a fee of three dollars to be paid to the Secretary of State." 89Jud. Act, ch. 13, §36; Comp. Mfg. Co., 1G5 Mich. 190, holding Laws 1915, § 12439. service on expert machinist to be 40 See Simms v. Bialy Hardware & sufficient. Supply Co., 187 Mich. 375. Tlie old statute permitting service 41 Ennest v. Pere Marquette R. of process on the agent of a foreign Co., 176 Mich. 398. corporation in cases arising outside 42Jud. Act, ch. 13, §§31, 32; the jurisdiction was held not un- Comp. Laws 1915, §§ 12434, 12435. constitutional as affecting vested Old statute, see Arnold v. Huber rights as represented by a cause of 342 Commencement of Actions § 13 This statute is broader than the old one in defining who shall be deemed an agent. Under the old statute, it was held that service could be made on a traveling sales- man," and that the officer or agent served need not be in the state on official business.** It was also held that the statute applied only to cases where personal service could be obtained." The statute, as it existed before the Judicature Act, was held to be limited to foreign corporations transact- ing interstate commerce within the state and not to in- clude corporations which have obtained the right to transact local business in the state by appointing an agent for service of process and securing a certificate of authority from the secretary of state." It seems, how- ever, that these decisions have no application, at least so far as service of process is concerned, under the changed wording of the section of the Judicature Act. § 14. Actions against insurance or like companies where state oflficer appointed as agent to receive service. The Judicature Act provides that in case of insurance companies and fraternal, co-operative and mutual bene- ficiary societies, or any other company or society re- quired to appoint the commissioner of insurance, the secretary of state, or other state officer, as their agent on whom to serve process, service "shall" be made on such appointed officer, and that in cases against fire and marine insurance companies service may be made on such officer "or in any other manner permitted by law." ^'^ In action in existence when the stat- 226. Compare Matthews v. Mont- ute went into effect. Daniels v. De- real Min. Co., 183 Mich. 541. troit, Grand Haven & M. R. Co., 45 McLaren v. Byrnes, 80 Mich. 16.3 Mich. 468. 275. 43 Ryerson v. Wayne Circuit 46 Yund v. Excelsior Wrapper •Judge, 114 Mich. 352. Co., 185 Mich. 143; Showen v. J. 44 Shickle H. & H. Iron Co. v. L. Owens Co., 158 Mich. 321. S. L. Wiley Const. Co., 61 Mich. 47 Jud. Act, ch. 13, §33; Comp. § 15 Commencement of Actions 343 case of such service, it must be made in duplicate on the officer or his deputy or, in their absence, upon the per- son in charge of the office, and one of the duplicate copies must be sent by registered mail to the secretary or corresponding officer of the defendant.** § 15. Actions against public corporations ajid cer- tain unincorporated boards. The Judicature Act provides that '4n suits or pro- ceedings against municipal and public corporations, and certain unincorporated boards, service of process may be made as follows: 1. Against counties, upon the chairman of the board of supervisors or the county clerk ; *® 2. Against the superintendents of the poor of counties, upon any of the said superintendents; 3. Against cities, upon the mayor, city clerk or city attorney ; 4. Against villages, on the president or clerk of the village, or in their absence upon any of the trustees thereof; 5. Against townships, upon the supervisor or township clerk ; 6. Against school districts, upon the president of t!io board of education, director, moderator or treasurer o^ such district; 7. Against any corporate body or unincorporated board, now or hereafter having charge or control of any State institution, where the right to bring such suit or proceeding is conferred by law, upon the president, sec- retary or any member of the governing body thereof; Laws 1915, §12436; Drueke-Lyneh Co., 204 Mich. 180; Taylor v. Da- Co. V. Michigan Bonding & Surety varn, 191 Mich. 243. Co., 204 Mich. 180. 48 Jud. Act, ch. 13, § 34 ; Comp. Actions against bonding com- Laws 1915, § 12437. panics as governed by Pub. Acts 49 See Curtis v. Charlevoix County 1907, No. 321, see Drueke-Lynch Sup'rs, 154 Mich. 646, 655. Co. V. Michigan Bonding & Surety 344 Commencement of Actions § 15 8, Notices, writs, or other process in judicial proceed- ings may be served upon any common council, board, commission, or other public body organized or existing under any law of this State, when by statute no other method of service is specially provided, by delivering the same or. a certified or verified copy thereof to the president or chairman of such council, board, commis- sion or body, or to the clerk or secretary thereof, and it shall be the duty of the officer upon whom such service shall be made, at its next meeting, to inform such com- mon council, board, commission, or other public body of such service, and it shall not be necessary to serve no- tices, writs, or other process upon the individual mem- bers of such common council, board, commission, or other public body, and such council, board, commission, or other public body may appear aiid answer or plead in such proceedings in such manner as it may direct."" § 16. Prisoners. Process may be ser\'ed upon any person confined in any jail or prison in this State, whether such confinement be under civil or criminal process, by delivering a true copy of such process to the sheriff, warden or other of- ficer in charge of such jail or prison, who shall forthwith deliver the same to such prisoner.^^ § 17. Service on only one of several jointly liable. If an action is brought on a joint obligation or liability, service may be made on only one of defendants, the statute provides ; ^^ and it is not necessary to show in- ability to serve the other defendants. ^^ 50 Jud. Act, ch. 13, §35; Comp. Statute is constitutional. Brooks Laws 1915, § 12438. v. Mclntyre, 4 Mich. 376. 51 Jud. Act, ch. 13, § 41 ; Comp. 63 Sheldon Axle Co. v. Landman, Laws 1915, § 12444. 186 Mich. 61. 62 Comp. Laws 1915, § 12798. See also Judgment. § 16 Commencement of Actions 345 § 18. Exemptions from service. By statute, in all cases where the attendance on court is outside the county of the residence of a subpoenaed witness, party or attorney, he is exempt from service of any civil process, in any suit commenced in the county where he is so in attendance.^* And independently of statute, the general rule is that where a person is brought into a county where he does not reside, by some process by which he is arrested, or subpoenaed as a witness, or where he attends necessarily as a witness, even though not subpoenaed, he is exempt from service of process while going to, attending upon or returning from the court." So where persons not resi- dents of the county are decoyed therein for the purpose of service, the court does not obtain jurisdiction.^^ At- torneys are exempt from service of process while attend- ing court and returning to the county of their resi- dence.^' So, independently of statute, a non-resident charged with crime and brought within the jurisdiction of the court by compulsory process is exempt from service of civil process while necessarily in attendance on the court and while coming or going.^* However, this ex- emption may be waived.*® A witness or party to a suit, in the state for the purpose of testifying, is exempt from service of process.^" The statutory privilege from arrest does not exclude the common law privilege of exemption from service of process in case of witnesses in the juris- diction for the purpose of testifying.®^ 64Comp. Laws 1915, §12446. 57 Hoffman v. Bay Circuit Judge, 66 Jaeobson v. Wayne County 113 Mich. 109. Judge, 76 Mich. 234; Letherby v. 58 MeCullough v. McCullough, 203 Shaver, 73 Mich. 500; Mitchell v. Mich. 288. Huron Circuit Judge, 53 Mich. 541 ; 59 McCullough v. McCullough, Stilson V. Greeley, 2 Mich. N. P. 203 Mich. 288. 222. But see Case v. Eorabacher, 60Coatsworth v. Wayne Circuit 15 Mich. 537. Judge, 177 Mich. 565. 66 See Campbell v. Hudson, 106 61 Coatsworth v. Wayne Circuit Mich. 523. Judge, 177 Mich. 565. 346 Commencement of Actions § 19 § 19. Who may serve. Prior to the Judicature Act, only declarations in suits commenced by declaration, and process in chancery, could be served by a private person not an officer, but the Judicature Act provides that "all civil process at law, or in equity, issued from any court of record, ex- cept process requiring the arrest of any person, or the seizure of property, may be served by any person of suit- able age and discretion, and proof of service shall be made by the affidavit of the person making such service, except when such service is made by an officer of the court authorized to serve process, when his certificate of service shall be sufficient proof thereof. " ^^ If process is served by an officer, the sheriff or his under-sheriff or deputy is the proper person to serve it. If the sheriff is a party to the action or interested therein, any coroner may serve any process, order or decree ; and if an under- sheriff or deputy sheriff is a party, service may be made by the sheriff or by any under-sheriff or deputy who is not a party to the action." If both the sheriff and cor- oner are parties or interested or incapacitated to act, the circuit judge may appoint a person to serve the process.^* 62 Jiul. Act, eh. 13, §22; Comp. the sheriff and coroners of the Laws 1915, § 12425. county are parties, or interested, or Who may serve declaration as incapacitated to act; such appoint- process, see § 38, post. ment shall be made in writing under 63Jud. Act, ch. 13, §38; Comp. the hand of the judge, and filed in Laws 1915, § 12441. the cause; and the person so ap- 64 The judge of any circuit court pointed shall have the same power of this state may in any suit, on conferred upon him, and proceed in the application of any party there- the same manner prescribed for the to by petition signed by such party sheriff in the performance of like or by his attorney or agent duly duties; the fees payable to such verified, showing the facts, appoint person shall be the same as those some disinterested person to serve payable to sheriffs by virtue of the any process or other papers, orig- provisions of law in that behalf for inal or final, or to do any act there- like services. Such judge may, in in which the sheriff by law might his discretion, require the person so do in said cause, in cases where appointed, before acting under said § 20 Commencement of Actions 347 Sheriffs, under-slierift's and deputy-sheriffs, ''may ex- ecute all such original or final process as shall be in their hands at the expiration of the term for which such sheriffs were elected, the execution of whicli shall have been begun by him, and shall made [make] due returns thereof in their own name; and in case of a vacancy in the office of sheriff, every deputy in office under him, may execute any writ or process in his hands, or in the hands of such sheriff, at the time such vacancy happened, and shall have the same authority, and be under the same obligation to serve and execute and return the same, as if such sheriff had continued in office. ' ' ^^ In case of proceedings against inmates of any state hospital or asylum, service of any citation, order or process must be made by the medical superintendent in charge thereof or by some one designated by him.®^ § 20. Place for service. Process issued out of the circuit court for any county may be served anywhere within that county, but, as a general rule, not outside of it,^''' except as hereafter no- ticed. By statute, however, where the suit is brought in the county in which the defendant or one of several de- appointment, to give a bond to the respecting sheriffs, so far as the people of this state in such penal same may be applicable. Jud. Act, sum, and with such surety or sure- ch. 13, §§23, 24; Comp. Laws 1915, ties as such judge may approve, §§ 12426, 12427. conditioned for the faithful per- 65 Jud. Act, ch. 13, §39; Comp. formance and execution by such Laws 1915, § 12442 ; Fletcher v. person of his duties in such case, Morrell, 78 Mich. 176, 180. without fraud, deceit or oppression, 66 Jud. Act, ch. 13, §37; Comp. and for the payment of all moneys Laws 1915, § 12440. that may come into his hands by 67 Turrill v. Walker, 4 Mich. 177; virtue of such appointment. The McEwan v. Zimmer, 38 Mich. 765 ; person so designated and receiving Baxter v. Grove, 92 Mich. 291. such process or other papers, orig- As to service of process in actions inal or final, shall, in respect to the instituted by the Attorney General same, be deemed a coroner of the in the name of the state in Ingham county, and shall be liable in all County Circuit Court, see Pub. Acts respects to all the provisions of law 1919, No. 232. 348 Commencement of Actions § 20 fendants resides, the writ may be served anywhere in the state where the party upon whom service is to be made can be found; ^® and where a personal transitoiy action is commenced in the county where the plaintiff resides against a defendant or defendants residing without that county, while service must be made in the county where the suit has been commenced, yet if service is made upon one defendant in that county, the other defendants may be served anywhere in the state. ^® In the latter case, the statute contemplates a service at home on one or more defendants before the service in another county, and safe practice requires a return of ''not found" in the home county as a preliminaiy to service, outside of the county. The statute contemplates some evidence of service in the home county as a founda- tion for service elsewhere and does not intend that an absent defendant shall be pursued until service is made and proved on the other within the jurisdiction. That is a condition precedent. A defendant has a right to know whether he is subject to the jurisdiction, and where that depends upon a previous service upon some one else, that can be shown only by a return of service or by an appearance.'''^ 68 Jud. Act, ch. 13, § 27, subd. 2 ; Judge of Wayne Circuit Court, 22 Conip. Laws 1915, § 12430, subd. 2. Mich. 493. In the Judicature Act These provisions of the Judicature the word "joint" is not used. Act change the law as it formerly Where two railroad companies existed. were charged with injury to a pas- 69 Jud. Act, ch. 13, §27; Comp. scnger by failure to light the plat- Laws 1915, § 12430. forms at a junction, service of proc- TJnder the statute as it existed ess on one outside the county after prior to 1915, the words "joint service on the other within the defendants" were used and there county was sufficient under the 1901 was some conflict as to whether it statute. Boyle v. Waters, 199 Mich, was confined to cases where the lia- 478. bility was joint. See Brown v. 70Denison v. Smith, 33 Mich. Bennett, 157 Mich. 654; Rosenthal 155; Clark v. Lichtenberg, 33 Mich. V. Rosenthal, 154 Mich. 533; Church 307; Munn v. Haynes, 46 Mich. 140; V. Edson, 39 Mich. 113; People v. Allison v. Kinne, 104 Mich, 141. § 22 .Commencement of Actions 349 The fact that the original summons is returned after being served on only a part of the joint defendants and before the return day does not preclude the issuance and sei'vice of a subsequent summons before the return day; and even if the return was premature, it does not render void the service of the subsequent summons, since at most nothing more than an irregularity of which only the plaintiff could complain.''^ By statute process may also be served anywhere with- in the state where the party may be found (1) in eject- ment cases and in all other cases where suit is required to be brought in the county where the subject matter of the suit is located or where the fact happened out of which the cause of action arose,'^^ and (2) in any suit brought upon any bond required by law to be filed in any probate court.''* § 21. Waters of Great Lakes. Where process may be served anywhere within the state, it may be served on any of the waters of the Great Lakes within the state; and the statute also provides for service of process on the waters of such lakes where process is required to be served within the county.'^* § 22. How objections to want or insulRciency of service urged. If the service of process is invalid, and no question of fact is involved, the proper practice is to appear special- Undcr the Judicature Act, where ing that the practice before the some of the defendants do not re- Judicature Act should remain sub- side in the county where the suit stantially as before, is brought, it is necessary to file 71 Hakes v. Macklin, 170 Mich, proof of service of the writ on the 228. defendant served in the county be- 72 Jud. Act, eh. 13, §27, subd. 3; fore the original writ is sent into Conip. .Laws 1915, § 12430, subd. 3. and served in another county, and 73 Jud. Act, ch. 13, § 27, subd. 3 ; it is not necessary to issue an alias Comp. Laws 1915, § 12-130, subd. 3. summons against the nonresidents. 74 Comp. Laws 1915, § 12431, new Engel V. Smith, 200 Mich. 395, hold- section. 350 Commencement of Actions- §22 ly and move that proof of service be quashed, support- ing the motion by affidavits.'^ However, the court will refuse, in such a proceeding, to try disputed questions of fact upon affidavits, and the proper practice where there are disputed questions of fact is to frame an issue by a proper plea.'^ § 23. Return of service. It is the duty of the officer or person to whom a sum- mons or capias is delivered to make proof of serv- ice thereof immediately after service, or, in case of no service, immediately after the return day mentioned in the summons. If there be more than one defendant, the proof of service must, at the request of the plaintiff, be made immediately after service on each defendant; and, in such case, the proof of service may be indorsed upon or attached to a copy of the writ and the original retained until the return day for service on the other defendants." § 24. Form and contents where service by officer. The proof of service where service is made by an of- ficer, should be by the certificate of the officer, indorsed upon the writ, stating the time and manner of the service," and should always contain sufficient matter to inform the court that lawful service has been made.'® It is not necessary that the officer swear to the service, his certificate being enough.^" The return may be made either to the office of the clerk of the court in which the action is pending or to the attorney whose name is in- 76 Yund V. Excelsior Wrapper Co., 77 Cir. Ct. Rule 18, § 1. 185 Mich. 143; Daniels v. Detroit, 78 .Jud. Act, ch. 13, §38; Comp. G. H. & M. R. Co., 163 Mich. 468, Laws 1915, § 12441. 470. 79 Town v. Tabor, 34 Mich. 262. 76 Sherrill v. Grand Trunk R. Co. 80 Jud. Act, ch. 13, § 22 ; Comp. of Canada, 161 Mich. 495. Laws 1915, § 12425. § 24 Commencement of Actions 351 dorsed upon the writ.^^ If service be made by an under sheriff or a deputy sheriff, it is not essential that he make the return in the name of his sheriff. A return in the name of the under sheriff ^^ or of the deputy sheritf ®^ making the service is valid. But proof of service can- not rest in parol.®* A return that "due service" was made is insufficient, since the time and manner of the service must be stated,*' but where the place of service is not shown, it will be presumed, where service is made by an officer, that it was made within his county.*® A return of service of process on a named person, '*city ticket agent," is insufficient where it does not appear therefrom who he is agent for.*'^ The return should, of course, be according to the facts. If false, the officer is liable to an action for a false re- turn. But whether false or true, it is conclusive upon the. parties until amended, and, if showing legal service, confers jurisdiction.** However, the return of the offi- cer may be contradicted by affidavit on a motion made in the same action to set aside the return.*^ 81 Jud. Act, eh. 13, § 38 ; Comp. fieient as a service upon the rail- Laws 1915, § 12441. road company, for failure to show 82 Calender v. Olcott, 1 Mich. 344 ; for whom he was agent. Price v. Allen V. Hazen, 26 Mich. 142. Delano, 187 Mich. 49. 83 Wheeler v. Wilkins, 19 Mich. 88 Facey v. Fuller, 13 Mich. 527; 78. Green v. Kindy, 43 Mich. 279; Low 84 King V. Bates, 80 Mich. 367. v. Mills, 61 Mich. 35; Goodrow v. 85 People's Mut. Ben. Soc. v. Douglas, 70 Mich. 513; Johnson v. Wayne Circuit Judge 97 Mich. 627. Mead, 73 Mich. 326; Allured v. Vol- 86Norvell v. McHenry, 1 Mich. ler, 112 Mich. 357; Stork v. 227, 234. Michaels, 52 Mich. 260. 87 A return of service in an action Return of service in sister state against receivers, for personal in- is not conclusive to support a for- juries sustained before the receivers eign judgment. Farrow v. Protec- were appointed, stating that it was tive Ass'n, 178 Mich. 639. served on the company by deliver- 89 Detroit Free Press Co. v. Bagg, ing a copy thereof to a certain per- 78 Mich. 650. son, "city ticket agent," is insuf- 352 Commencement of Actions § 25 §25. Return by private person. A return made by a private person must be supported by liis affidavit,^" and it is subject to contradiction.^^ Tlie contents of the affidavit should be the same as in case of a certificate by an officer. ^^ § 26. Amendment. TliG return of an officer may be amended in matter of form, in the discretion of the court, as well before as after judgment,^^ although an amendment cannot be compelled by the court.^^ § 27. CompeUing- return. If the sheriff or other officer or authorized person fails to return any process to him delivered, on or before the return day therein specified, any party interested in pro- curing a return may cause a rule to be filed, requiring the officer or person to return the process within five days after service of notice of such rule; and if the process be not returned within the time specified in the rule, on filing with the clerk an affidavit of the service of such notice, and of the deliveiy of the process to the officer or person to be served, the default of the officer or per- son in not making return may be filed, and thereupon an attachment may be issued of course against him to com- pel a retura.®^ The process of attachment was the method immemorially used by the superior courts of justice in England for punishing contempts,^^ and is employed in this state under the provisions of the statute which pre- 90MeCaslin v. Camp, 26 Mich. Judge, 138 Mich. 126. See same 390. case in 136 Mich. 23. And see 91 Campbell v. Wayne Circuit Lyon v. Baldwin, 194 Mich. 118, Judge, 111 Mich. 247; Detroit Free 121. Press Co. v. Bagg, 78 Mich. 650. 96 Cir. Ct. Rule 20; Jud. Act, 92 See §24, ante. eh. 5, §6; Comp. Laws 1915, 93 Comp. Laws 1915, § 12481. S 12273. 94Flynn v. Kalamazoo Circuit 96 4 Cooley's Bl. Comm. 283. § 29 Commencement of Actions 353 scribes in detail the practice in reference thereto.®' This process of attachment is merely intended to bring the party into court.®* It is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court.®® The officer to whom the attachment is delivered is re- quired to return it by the return day specified therein without any previous rule or order for that purpose, and in case of default, an attachment may be issued against him upon being allowed by a judge of the court, or by an officer authorized to perform the duties of such judge, upon proof of such default. In such allowance, the cause of issuing the attachment should be stated, and that the defendant is not to be discharged upon bail or in any other manner but by the order of the court.^ §28. Waiver of service. A party may waive service of process by any act clear- ly evidencing an intention to do so, as by acceptance of ''due personal service" outside the territorial jurisdic- tion.^ § 29. Acceptance or acknowledgment of service. The effect of an affidavit showing written acceptance or acknowledgment of service of process, as a return or proof of service, is provided for by rule of court,' and is the same whether the acceptance be of service of ''process, pleading or notice."* No default for want of appearance can be entered unless the genuineness of the signature is shown.^ Where defendant accepts service 97 Jud. Act, ch. 5, Comp. Laws 3 Cir. Ct. Rule 14, providing that 1915, § 12268 et seq. affidavit shall have same effect aa 98 4 Cooley's Bl. Comm. 287. a return or other legal proof of 99 4 Cooley's Bl. Comm. 285. service. IJud. Act, ch. 5, §17; Comp. 4 See Service op Papers. Laws 1915, § 12284. 6 Johnson v. Delbridge, 35 Mich. 2 Jones v. Merrill, 11.'? Mich. 443. 4:?6. 1 Abbott— 2:{ 354 Commencement op Actions § 29 and indorses a permit to plaintiff "to proceed with the case as though service had been made as commanded in said summons," the court has jurisdiction although de- fendant was without the jurisdiction when he made such indorsement.^ Where the acceptance of service purports to be made on behalf of a corporation, proof of the agency must be filed.'' § 30. Alias and pluries writs. On the return of a writ unserved, a further writ, desig- nated as an ''alias" or a "pluries," as the case may be, may be issued at any time within ten days after the filing of such return, or at any time thereafter by leave of court upon a showing by affidavit satisfying the court that service could not, with reasonable diligence, have been made sooner.' The form of an alias or a pluries writ is the same as that of the original writ, with the insertion after the words, ' ' You are hereby commanded, ' ' of the words, ' * as we have formerly commanded you," in the case of the alias, and of the words, "as we have often commanded you," in the case of a pluries writ. Where the writ is a capias, a copy of the declaration and supporting affidavit upon which the first writ was founded should be served upon the defendant with a copy of the alias or pluries, and, for convenience in mak- ing the return, a copy should also be attached to the alias or pluries itself. It is not necessary to make a new declaration and affidavit for the alias or pluries, because 6 Allured v. Voller, 107 Mich. Kule applies to writs of attach- 476. See also Jones v. Merrill, 113 ment as well as other writs. Van Mich. 433. Benschoten v. Fales, 126 Mich. 176. 7 Hebel v. Amazon Ins. Co., 33 Right to alias writ independently Mich. 400. of rule of court or statute, see Ax- 8Cir. a. Eule 18, §2, which tell v. Gibbs, 52 Mich. 639; Bell changes former Cir. Ct. Rule 1 by v. Mecosta Circuit Judge, 26 Mich, adding the alternative "at any 414. time, ' ' etc. Alias replevin writ, see Replevin. § 31 Commencement of Actions 355 such writs are founded upon the return of the preceding writ and not upon the original declaration and affidavit. If an order to hold to bail has been made in the case, a copy of it should be served with the alias or pluries. If a writ purporting to be an alias summons has no proper basis as an alias because the previous writ had been informally returned, the second writ is not void but should be treated as a new writ, in case the first suit goes down, provided limitations have not run. In other words, where an alias summons cannot be sustained as such, it may be treated as a new writ and sustained where limitations have not run.® An interesting question which presents itself is whether an alias taken out a considerable time after the expiration of the ten days is sufficient to prevent the bar of limitations, where the period of limitations expires between the time of the first writ and of the alias writ. The answer would seem to be according to whether the alias writ was sued out within a reasonable time, not to exceed one year.^° II. By Summons § 31. When proper. A summons is an original writ,^^ and may be used in actions brought for the recoveiy of any debt or for dam- ages only, and now also in actions of ejectment. ^^ 9Frantz v. Detroit United Ry., 12 Jud. Act, ch. 13, §4; Comp. 147 Mich. 199. Laws 1915, § 12407. 10 See Searl's Mich. Ct. Rules, It is applicable in the actions of p. 100 et seq., and also Colling v. assumpsit, trespass on the case, and McOregor, 144 Mich. 651 ; Peck v. ejectment, but not in replevin. German Fire Ins. Co., 102 Mich. 52; Replevin can be commenced only by Johnson v. Mead, 58 Mich. 67, all writ of replevin. of which, however, were decided The clerk is under no obligation under the old rule limiting the time to issue to an attorney a summons, to ten days. signed and sealed in blank, but if 11 Jud. Act, ch. 1,3, §3; Comp. he chooses to do so the writ will Laws 1915, § 12406. not be held void for that reason 356 Commencement of Actions § 32 § 32. Form of summons. The form of the summons has been prescribed by statute and rule of court. Like the capias ad responden- dum, the summons should be entitled in the court out of which it issues, should be styled ''In the Name of the People of the State of Michigan," should be tested in the name of one of the judges of the court from which it issues, should be sealed with the seal of the court and signed by the clerk thereof, and, before delivery to any officer to be executed, should be subscribed or indorsed with the name of the attorney for the plaintiff and the officer by whom it is issued.^' Like the capias, it notifies the defendant to appear in person or by attorney within fifteen days after sei'vice of the writ upon him, to answer to the suit of the plaintiff according to the rules and practice of the court." The attorney, when subscribing or indorsing the writ, should add his business address for the information and use of the adverse party or his attorney in making service of papers in the subsequent progress of the suit." Un- der the new rules of court, the summons is directed to the defendants instead of being directed to the sheriff. Form of Summons as Set Forth in Rule 18 of the Circuit Court Eulei State of Michigan, The Circuit Court for the County of In the Name of the People of the State of Michigan. To You are hereby notified that a suit has been commenced against you in the circuit court for the county of , by , as plaintiff, and that if you desire to defend the same you are required to have your appearance filed or entered in the cause, in accordance with the rules and practice of the court, in person or by attorney, within fifteen days after service of this summons upon you. Hereof fail not, under penalty of having judgment although not used for some time 13 Jud. Act, ch. 13, §2; Comp. afterwards. Sweet v. Newaygo Cir- Laws 1915, 8 1240.'5. cuit Judge, 95 Mich. 449; Potter v. 14 Cir. Ct. Rule 18. John Hutchison Mfg. Co., 87 Mich. 15 See Cir. Ct. Rule 18. 59. § 32 Commencement of Actions 357 taken against you by default. The plaintiff claims damages in said suit not exceeding dollai's. Service of this summons shall be made on or before the day of , 191. ., which is the return day hereof. Witness, Hon , circuit judge, and the seal of said court, at the of , the place of holding said court, this day of 191... Clerk. ) Plaintiff's Attorney. > Business Address. Form of Summons at tlie Suit of a Sheriff State of Michigan. The Circuit Court for the County of In the Name of the People of the State of Michigan. To C. D.: You are hereby notified that a suit has been commenced against you, in the circuit court for the county of , by A. B., as sheriff of the county of , as plaintiff, and that (as in ordinary summons to the end). Form of Summons at the Suit of an Infant State of Michigan. The Circuit Court for the County of In the Name of the People of the State of. Michigan. To C. D. : You are hereljy notified that a suit has been commenced against you, in the circuit court for the county of by A. B., an infant, who sues by G. H., who is admitted by said court to prosecute for him as his next friend, as plaintiff, and that (as in ordinary summons to the end). Form of Summons at the Suit of an Executor State of Michigan. The Circuit Court for the County of In the Name of the People of the State of Michigan. To C. D. : You are hereby notified that a suit has been commenced against you in the circuit court for the county of by A. B., as executor of the last will and testament of E. F., deceased, as plaintiff, and that (as in ordinary summons to the end). 358 Commencement of Actions § 32 Form of Summons at the Suit of an Administrator State of Michigan. The Circuit Court for the County of In the Name of the People of the State of Michigan. To CD.: You are hereby notified that a suit has been eonimenced against you in the circuit court for the county of by A. B., as administrator of all and singular the goods, chattels, and credits which -were of E. F., de- ceased, at the time of his death, who died intestate, as plaintiff, and that (as in ordinary summons to the end). Form of Summons to Bring in New Defendants, When Suit Is Commenced by Original Writ, Attachment, or Writ of Replevin State of Michigan. (Title of court and cause.) In the Name of the People of the State of Michigan. To E. F.: You are hereby notified that you have been made a defendant in this cause, pursuant to an order of said court and the amendment of the said plaintiff's declaration therein, and that, if you desire to defend the same, you are required to have your appearance filed or entered in said cause in accordance with the rules and practice of the court, in person or by attorney, within fifteen days after service of this summons upon you. Hereof fail not, under penalty of having judgment taken against you by default. The plaintiff claims damages in said suit not exceeding dollars. Service of this summons shall be made on or before the day of , , which is the return day hereof. Witness, Hon. J. S., Circuit Judge, and the seal of said court, at the of , the place of holding said court, this day of , J. W., Clerk. J. K., Plaintiff's Attorney. Business address: , Mich. Form of Summons to Bring in New Defendants, Wlien Suit Is Com- menced by Declaration State of Michigan. (Title of court and cause.) In the Name of the People of the State of Michigan. To E. F.: You are hereby notified that you have been made a defendant in this cause, pursuant to the order of said court and the amendment of the said plaintiff's declaration therein; that annexed hereto is a copy of the said plaintiff's amended declaration in this cause; and that, if you desire to de- fend the same, you are required to plead to said declaration within fifteen days after service of this summons and copy of said amended declaration § 34 Commencement of Actions 359 upon you. Hereof fail not, under penalty of having judgment taken against you by default. The plaintiff claims damages not exceeding dol- lars. Service of this summons shall be made on or before the day of , , which is the return day hereof. Witness, Hon. J. S., circuit judge, and the seal of said court, at the of , the place of holding said court, this day of , J. W., J. K., Plaintiff 's Attorney. C^erk. Business address : , Mich. Form of Summons for Joint Debtors Residing in Different Counties To the form of ordinary summons, add the following immediately before the testing clause: To the Sheriff of the County of : We command you that you summon the defendant (naming him), if he may be found within your bailiwick. § 33. Time for issuance and return. A summons may be issued in vacation or term time, and may be made returnable at any time, except Sunday, not exceeding three months from the date when issued.^^ § 34. Service. Writs of summons are served by the sheriff or other officer or person to whom they are delivered by show- ing the original writ to the defendant and delivering to him a copy thereof.^' On the return of the writ person- ally served, the defendant is considered in court and may be proceeded against accordingly.^^ In actions of ejectment, if the premises claimed by the plaintiff are actually occupied, the process must be served either by delivering a copy thereof to the de- fendant who is in occupation of the premises personally or by leaving such copy with some person of proper age 16 Cir. Ct. Rule 18; .Tud. Act, ch. Clerical errors and omissions in 1.3, §3; Comp. Laws 1915, §12406. its original or copy are usually not 17 .Tud. Act, eh. 13, §21; Comp. fatal. Millard v. Lenawee Circuit Laws 1915, §12424. Judge, 107 Mich. 134; Merrick v. ISJud. Act, ch. 13, §21; Comp. Mayhue, 40 Mich. 196; Lyon v. Laws 1915, §12424. Baldwin, 194 Mich. 118. 360 Commencement of Actions § 34 at the dwelling of the defendant, if he be absent.^^ If the defendant, or any defendant, is not in occupation of the premises, process must be served upon such defend- ant personally if he can be found anywhere in the state. If he cannot be found, the same proceedings may there- upon be taken as in chancery cases in the case of absent, concealed or non-resident defendants.^" When a summons is delivered to any sheriff, under sheriff or deputy to serve, it is the duty of that officer to serve it with all convenient speed and to return it with his certificate indorsed thereon of the time and manner of service, either to the office of the clerk of the court in which the suit is pending or to the attorney whose name is indorsed on the writ.^^ §35. Rules governing both summons and capias or all process. Many of the statutory and court rules apply equally well to both summons and capias or all civil process, and hence for convenience have been treated in the preced- ing subdivision of this article.^^ This applies, for in- stance, to who may serve the writ, the place where it may be served, the time for service, the person who may be served, the return as to service, the compelling such a return, alias and pluries writs, etc. Form of Return on Summons Personally Served State of Michigan, ) County of l I. do hereby certify and return that, on the day of , A. D. , I served the within summons on the within-named C. D. personally, by showing it to him, and at the same time delivering to him a copy thereof, at , in said county. Dated, etc. S. T., Sheriff. 19Jud. Act, ch. 29, §13; Comp. 21Jud. Act, ch. 1.3, §38; Comp. Laws 1915, § 13180. See also Eject- Laws 1915, § 12441. As to return MENT. of service, see §§ 23-27, ante. 20Jud. Act, ch. 29, §14; Comp. 22 See §§3-30, ante. Laws 1915, § 13181. § 36 Commencement of Actions 361 Form of Betaim on Summons Served on One Defendant, Other Defendant Not Found State of Michigan, County of I hereby certify and return that, on the day of , A. D. , I served the within summons on the within-named C. D. personally, by showing it to him, and at the same time delivering to him a copy thereof, at , in said county, and, after diligent search and inquiry, I am unable to find the within-named E. F. in my bailiwick. Dated, etc. S. T., Sheriff. Form of Return on Summons, Defendant Not Found State of Michigan, ) County of ( I hereby certify and return that, after diligent search and inquiry, I am unable to find the within-named C. D. in my bailiwick. Dated, etc. S. T., Sheriff. III. By Filing and Serving Declaration § 36. When proper and time of service. Actions brought for the recoveiy of any debt or for damages only and actions of ejectment may be com- menced not only by summons, but also by filing in the office of the clerk of the court a declaration upon which is indorsed a notice in substantially the form fixed by statute, notifying the defendant that suit has been com- menced and that he is required to plead to the declara- tion within fifteen days after the service upon him of a copy of the declaration.^^ This mode of commencing an action may be adopted against any person, whether priv- ileged from arrest or not. It was formerly the only method of commencing a suit in ejectment.'^* The filing and serving of the declaration is in the na- 23 Jud. Act, ch. 13, §4; Comp. plead to the declaration, instead of Laws 1915, § 12407. writing it on the back, does not This includes actions against cor- vitiate the service. In re Joseph, porations. City of Menominee v. 206 Mich. 659. Menominee Circuit Judge, 81 Mich. 34 How. Stat. (2nd cd.) 13151; 577. Comp. Laws 1915. 81317Q. Attachment of notice of rule ♦" 362 Commencement of Actions § 36 ture of process to bring tlie defendant into court,^® al- though it is not process within the meaning of the con- stitutional and statutory provisions requiring that the style of all process shall be "In the Name of the People of the State of Michigan, "^s The declaration should be filed before service of the declaration and notice.^' Service of the declaration be- fore filing it is void, the suit not being commenced until the declaration is filed.^^ But a failure to give the no- tice, while constituting a ground for reversal of any judg- ment that may be rendered, is not such a defect as to render the entire proceedings void for want of jurisdic- tion and therefore subject to collateral attack.^^ An ac- tion is commenced by filing of the declaration, before service therof.^®* In suits commenced by declaration against joint de- fendants, the notice to plead must run against alL^° Prior to the Judicature Act a rule to plead was re- quired to be filed and notice thereof given.®"* 25 City of Menominee v. Menom- v. Manahan, 62 Mich. 143. inee Circuit Judge, 81 Mich. 577; However, the copy served need Begole V. Stimson, 39 Mich. 298; not bear an indorsement of filing by Ellis V. Fletcher, 40 Mich. 321. the clerk. Michigan Buggy Co. v. The Judicature Act expressly pro- Smallegan, 138 Mich. 79. vides that whenever the word "proe- 29 Griffin v. McGavin, 117 Mich, ess" is used in the act it shall be 372. deemed to include declarations, in 29a Christe v. Springfield F. & M. suits commenced by declaration, Ins. Co., 173 N. W. 341. ■wherever applicable. Jud. Act, ch. 30 Ralston v. Chapin, 49 Mich. 274. 13, § 20; Comp. Laws 1915, § 12423. 30a That service under the old 26 Penfold V. Slyfield, 110 Mich. practice is sufficient even since the 343. enactment of the Judicature Act, 27 Blanek v. Ingham Circuit see Grocers v. Allegan Circuit Judge, 44 Mich. 98; Ellis v. Flet- Judge, 175 N. W. 454. Service of eher, 40 Mich. 321; South Bend a copy of the rule to plead instead Chilled Plow Co. v. Manahan, 62 of a notice thereof was held not Mioh. 143. such a defect in the service as to 28 Ellis V. Fletcher, 40 Mich. 321 : warrant a holding that default was Wetherbee v. Kusterer, 41 Mich. not regularly entered, in Kentucky 359; South Bend Chilled Plow Co. Wagon Mfg. Co. v. Kalamazoo 1 39 Commencement of Actions 363 Form of Notice to Plead to Be Indorsed on Declaration by Which Suit Is Commenced To C. D., Defendant: You are hereby notified that a suit has been commenced against you as defendant by A. B., as plaintiff, and that the within is a true copy of plaintiff 's declaration in said cause, and that if you desire to defend the same, you are required to plead thereto within fifteen days after service upon you of a copy of said declaration. Dated, etc. J. K., Attorney for Plaintiff. §37. Form of declaration. The form of the declaration employed as commence- ment of suit is in general the same as it would be if the suit were commenced by capias or summons. It is usual, however, to recite in the commencement of the declara- tion so used that the plaintiff files the declaration as commencement of suit. The essential parts of the declaration will be consid- ered and explained in a later part of this work, and what is there said as to declarations in general will ap- ply equally to those employed as commencement of suits.^^ § 38. Who may serve. The service of the declaration used as commencement of suit may be made by the sheriif,^^ under sheriff or a deputy sheriff, or by a private person of suitable age and discretion,^^ or even by the plaintiff.^* § 39. Proof of service. Proof of service of the declaration and notice to plead is made in the same way as in case of otiier civil process.^^ County Circuit Judge, 175 N. W. §.18; Comp. Laws 1915, §12441. 150. 33Jud. Act, ch. 13, §§22, 24 81 See Pleading. Comp. Laws 1915, §§12425, 12427 32 Norvell v. McHenry, 1 Mich. Munn v. Haynes, 46 Mich. 140, 142 227, 234. Norvell v. McIIonry, 1 Mich. 234. As to service by a coroner when 84 Penf old v. Slyficld, 110 Mich. the sheriff is a party or is interested 343. in the suit, see Jud. Act, ch. 13, 35 See §8 23-30, ante. 364 Commencement of Actions § 39 Proof of service may be made either by certificate of the officer or by affidavit,'^ and, whethoj* by certificate or by affidavit, may be indorsed either on the original dechiration or a copy.*' In either case, the proof should show that the provisions of the statute relative to the mode of service have been complied with.** Form of Return of Service of Declaration Filed as Oommencement of Suit ss. ytate of Michigan, ) County of I hereby certify and return that, on the day of , A. D. , I served a copy of the declaration, of which the annexed is a copy, and notice to plead, of which the annexed is a copy (and therewith a copy of the promissory note and the notice relating thereto, or as the cnse may be, a copy of which is hereto annexed), personally upon C. D., the defendant named in said declaration, by delivering the same to him at , in said county. Dated, etc. S. T., Sheriff. § 40. Rules ccmmon to all original process as applicable. The rules hereinbefore stated as to place of service of process,** the person to be served,*" the mode of com- pelling a return,** etc., apply equally well to service of the declaration as a means of commencing an action. IV. By Capias § 41. Capias as original writ. Under the theory and practice of the common law, the capias ad respondendum was a judicial writ, based upon, and subsequent to, the so called original writ by which the suit was commenced.*^ Under the statute of this 36 Arnold v. Nye, 23 Mich. 296. and why. Campbell v. Wayne Cir- 87 Lamed v. Wilcox, 4 Mich. 333. cuit Judge, 111 Mich. 247. SSNorvell v. McHenry, 1 Mich. 39 See §§20, 21, ante. 2U. "See §§11, 18, ante. If there is more than one defend- *1 See § 27, ante, ant, proof of service must show 42 Clark v. Kent Circuit Judge, service on each of defendants or 125 Mich. 449; 3 Cooley 's Bl. Comm. show which of them were not served 282. § 42 Commencement of Actions 365 state, the capias ad respondendum is denominated an original writ." § 42. Actions which may be commenced by capias Actions on contracts. By statute, personal actions arising upon contract, ex- press or implied, may be commenced by capias ad re- spondendum, only where (1) to recover damages for breach of promise to many where fraud is alleged, or (2) for moneys collected by any public officer, or (3) for any misconduct or neglect in office or in any professional em- ployment, or (4) in case of fraud or breach of trust; and the plaintiff must file a declaration supported by the affi- davit of himself or of some other person having knowl- edge of the facts, stating that the plaintiff has a claim for damages against the defendant for the cause of action stated in such declaration, upon which he believes that the plaintiff is entitled to recover a certain sum, being more than one hundred dollars. ** In considering the cases in which a plaintiff may com- mence his suit by a capias ad respondendum, that con- stitutional provision should be ever in mind which modi- fies the common law rule on the subject of civil imprison- ment and forbids that any person be imprisoned for debt arising out of or founded on a contract, express or im- plied, except in cases of fraud or breach of trust or of moneys collected by public officers or in any professional employment.*^ The cases in which arrests can now be made are therefore peculiar and exceptional. The right 43Jud. Act, ch. 13, §3; Comp. of the states, the usual mode of Laws 1915, § 12406. commencing actions in courts of In early times a writ of capias record, the summons being only used was not an original writ but was in commencing suits against corpo- issued to insure an appearance only rations. after an original writ had proved 44Jud. Act, ch. 13, Sll; Comp. ineffective. The proceeding by this Laws 1915, § 12414. writ is borrowed from the PJnglish « Const. Art. II, sec. 20. practice, and was formerly, in most 366 Commencement of Actions § 42 to imprison does not depend at all upon the mere fact of indebtedness, but upon other facts.*^ A cause of action based simply upon a breach of prom- ise to marry, in the absence of any charge involving fraud, is within the constitutional inhibition referred to.*'' But where the affidavit for the writ avers the promise to marry and that, by means thereof, the defendant suc- ceeded in seducing the plaintiff, the case is to be regarded as one of fraud for which a capias is an appropriate writ." An action against an agent, not being an attorney at law, based upon his failure to pay over moneys collected, cannot be commenced by capias ad respondendum upon the ground that such failure constitutes "misconduct or neglect in office or in any professional employment. ' ' ** A private agency is neither office nor professional em- ployment. Professional employment can relate only to some of those occupations universally classed as profes- sions, the general duties and character of which courts must be expected to understand judicially.^" Services of an attorney are not necessarily "professional" services, although such term is not limited to litigation.^^ § 43. Actions for torts. Personal actions may be commenced in like manner by capias ad respondendum in cases of claims for damages other than those arising upon contract express or implied, where an order for bail shall be indorsed on the writ by a judge of the court from which the writ issues or by a circuit court commissioner, directing the amount in which 46 Josselyn v. McAllister, 22 Midi. 153; In re Stephenson, 32 Mich. 60. 300; In re Stephenson, 32 Mich. 60. BO Pennock v. Fuller, 41 Mioh. 47 In re Tyson, 32 Mich. 262. 153, where the employment was that 48 In re Sheahan, 25 Mich. 145. of a real estate agent. 48 Bronson v. Newberry, 2 Doug. 61 Case v. Eanney, 174 Mich. 673, 38; People v. McAllister, 19 Mich. 682. 215; Pennock v. Fuller, 41 Mich. § 45 Commencement of Actions 367 bail is to be taken.*^ Such order can be made only upon the presentation of a declaration supported by the affi- davit of the plaintiff or of some other person having knowledge of the facts, which declaration, with such affidavit, must be filed, and copies thereof served with the writ." § 44. Privilege from arrest. There are some persons who, by reason of their pecul- iar office or condition, are by law exempt or privileged from arrest upon civil process. For instance, the con- stitution of the state provides that senators and repre- sentatives in the state legislature shall not be subject to any civil process during the session of the legislature or for fifteen days next before the commencement and after the termination of each session.^* And a statute pro- vides that no officer of the senate or house of representa- tives, while in actual attendance upon the duties of his office, shall be liable to arrest upon civil process.^® § 45. Witnesses, parties and attorneys. Any person duly and in good faith subpoenaed as a witness in any suit or proceeding, every party thereto and any attorney engaged therein are exonerated from ar- rest in any civil suit, while going to the place where he is required to attend, while in attendance, and while re- turning therefrom. ^^ This statute, it has been held, ap- plies to all proceedings judicial in nature without regard 52 Jud. Act, ch. 13, § 12 ; Comp. 54 Const. Art. V, sec. 8. Laws 1915, §12415. 65 Jud. Act, ch. 13, §40; Comp. Capias is proper where there is Laws 1915, § 12443. an unlawful conversion. Clark v. 56 Jud. Act, ch. 13, §43; Comp. Kent Circuit Judge, 125 Mich. 449. Laws 1915, § 12446. Claim "for damages" has been Attorney arrested before actual held not to include action for re- sitting of court, under old statute, plevin. Fuller v. Bowker, 11 Mich. see Hughes v. Halley, 137 Mich. 204. 433. 53 Jud. Act, ch. 13, §13; Comp. Laws 1915, § 12416. 368 Commencement of Actions § 45 to whether taking place in court," but does not protect a party while going from his residence to consult coun- sel.*** § 46. Officers of court. All officers of the several courts of record of this state, other than attorneys and counselors, are liable to arrest and may be held to bail in the same manner as other per- sons, except while in attendance upon an actual sitting of the court of which they are officers or while going to or returning from such sitting.*® § 47. Prisoners. A prisoner brought from another state on a criminal charge is exempt from arrest on a (Capias until after a reasonable opportunity for his return.^'' §48. Electors. By the state constitution, every elector, in all cases except for treason, felony or breach of the peace, is priv- ileged from arrest during his attendance at elections and in going to and returning from them.®^ And, by statute, no process in any civil suit can be served on any elector entitled to vote at any election during the day on which the election is held.^* § 49. Persons in military service. All officers and enlisted men who may be in the actual service of this state or of the United States are privileged from arrest and imprisonment upon civil process during W People V. Judge of Superior 60 Weale v. Clinton Circuit Judge, Court, 40 Mich. 729. 158 Mich. 563. 68 Monroe v. St. Clair Circuit 61 Const. Art. Ill, see. 5. Judge, 125 Mich. 283. 68 Jud. Act, ch. 13, §25; Comp. BSJud. Act, ch. 13, §43; Comp. Laws 1915, §12428. Laws 1915, § 12446. § 53 Commencement of Actions 369 the time of such actual service and for six months after such service has ceased.^^ § 50. Senators and congressmen. The senators and representatives in the congress of the United States are in all cases, except treason, felony and breach of the peace, privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.^* §51. Women. It is the settled policy of this state to exempt women from arrest upon civil process. It has long been the rule that all acts giving the right generally to commence suits by capias or othei^vise to imprison a defendant must be understood to have been enacted with reference to this policy, and, by implication, as intended to be subject to this exception, unless expressly or by necessaiy implica- tion otherwise provided,^* And now it is expressly pro- vided by statute that no female shall be imprisoned on any process in any civil action.^^ § 52. Second arrest. After the arrest and discharge of a defendant, he is not exempt from arrest for the same cause of action, where the second attempted arrest is not made maliciously nor with a view to harass defendant." § 53. Statutory liability for arrest of party, attorney or witness. Every arrest made contrary to the foregoing exemp- tions of parties, attorneys and witnesses is absolutely 63 How. Stat. (2n(] ed.) 1640; proceedings for C'ontenii»t of court, Comp. Laws 1915, § 928. as these are regarded as not civil, 64 Const. U. S. Art. I, sec. 6. but criminal. Carnahan v. Carna- 65 People V. Bartow, 27 Mich. 68. han, 14."? Mich. .'{90; Schwab v. 66Jud. Act, ch. 1.-?, §42; Comp. Coots, 44 Mich. 463. Laws 1915, §12445. 67 Breckon v. Ottawa Circuit Females may be imprisoned in Judge, 109 Mich. 615. 1 Abbott— 24 370 Commencement of Actions § 53 void and is a contempt of the court issuing the subpoena. Every person making or procuring such an arrest is re- sponsible to the witness aiTested in double the amount of damages found by the jury, and also to an action at the suit of any injured party for the loss, hindrance and damage sustained by him in consequence of the arrest.^' But no sheriff or other officer or person is so liable, unless the person claiming an exemption from arrest shall, if re- quired by such sheriff or officer, make an affidavit stating either (1) that he has been legally subpoenaed as a wit- ness to attend before some court, officer, auditors, ref- erees, commissioners or notary public, specifying such court, officer, auditors, referees, commissioners or notary public, the place of attendance and the cause in which he has been subpoenaed, and that he has not been sub- poenaed by his own procurement with intent to avoid the service of any process, or (2) that he is an attorney in or party to a suit the trial of which is then pending, that he is going to, or is in actual attendance upon, or is re- turning from, the court in which such trial is then pend- ing, and that his attendance upon such court is necessary to the trial of such cause; or (3) that he is an officer of a court of record actually and in good faith going to, at- tending upon, or returning from, an actual sitting of the court of which he is such officer. ^^ § 54. Declaraticn and affidavit In actions ex con- tractu. The affidavit in support of the declaration which must be filed in order to obtain a writ of capias ad responden- dum may be made either by the plaintiff or by some other person in his behalf.''" In actions arising upon contract, the affidavit should state tliat the plaintiff has a claim 68Jud. Act, ch. 13, §44; Camp. 70 Jud. Act, ch. 13, §§11, 13; Laws 1915, § 12447. Comp. Laws 1915, §§ 12414, 12416. 69 .Jud. Act, eh. 13, §45; Comp. Laws 1915, § 12448. 1 55 Commencement of Actions 371 for damages against the defendant for the cause of action stated in such declaration and upon which the affiant be- lieves that the plaintiff is entitled to recover a certain sum, being more than one hundred dollars.'''^ And inas- much as not all actions arising upon contract may be com- menced by a capias, but only certain enumerated classes of them, the declaration and affidavit must show that the action proposed to be commenced belongs to one of the enumerated classes. ''^ Form of Declaration and Supporting Affidavit to Be Filed on Commence- ment of an Action on Contract by Capias ad Respondendum State of Michigan, ) County of ( Comes now A. B. and says that he has a claim for damages against C. D. for the cause of action hereinafter stated, upon which he is about to commence a suit against the said C. D. by writ of capias ad responden- dum, issued out of the circuit court for said county, and upon which he believes he is entitled to recover the sum of dollars (some amount more than one hundred dollars), and that the facts and circumstances upon which his said claim for damages is founded, and which constitute his said cause of action, are as follows: (Here state fully and positively the facts and circumstances.) A. B. State of Michigan, | County of ( A. B., being duly sworn, deposes and says that he has read (or has heard read) the foregoing declaration, by him subscribed, and knows the con- tents thereof, and that the same is true of his own knowledge, except as to those matters which are therein stated on belief, and as to those matters he believes it to be true. A. B. Subscribed, etc. § 55. In actions ex delicto. The declaration and affidavit required in cases of claims for damages other than those arising upon contract 71Jud. Act, ch. 13, §11; Comp. 215; Bronson v. Newberry, 2 Doug. Laws 1915, § 12414. 38; Pennock v. Fuller, 41 Mich. 153. 72 People V. McAllister, 19 Mich. 372 Commencement of Actions § 55 should show the nature of the plaintiff's claim.'' And this the affidavit should do in detail and with certainty, setting forth not merely the conclusions of the affiant, but rather all the facts and circumstances of the case, so that the court may draw its own conclusions; for a person may think he has good reason to believe that he has a cause of action against another, when, if the facts were fully set forth, it might appear otherwise.'^* The affidavit need not, as in case of actions on contracts, state a belief that plain- tiff is entitled to recover over one hundred dollars. ''^^ An affidavit for a capias which shows a clear case of fraudulent conversion of the property of the plaintiff has been held sufficient.''^® So, also, an affidavit which shows that the defendant had bought goods without intending to pay for them, knowing himself to be insolvent at the time or fraudulently intending to give his affairs the ap- pearance of insolvency.''' Allegations as to fraud, al- 73 Jud. Act, eh. 13, S13; Comp.|Ktrespass on the case for false rep- Laws 1915, § 12416. |»rcscntations, Hatch v. Saunders, 74Soule V. Ottawa Circuit Judge, .,^66 Mich. 181; alienation of affec- 175 Mich. 127; H. J. Cheney Co. v. "? tions of wife, Conrad v. Van Buren Allgeo, 165 Mich. 384; Ord v. Circuit Judge, 144 Mich. 492. Wayne Circuit Judge, 160 Mich. Sufficiency of affidavit in slander 569; People v. Wayne Circuit Judge, case, see Martin v. Saginaw Circuit 36 Mich. 334; Sheridan v. Briggs, Judge, 173 Mich. 22. 53 Mich. 569; Maxwell v. Deens, If a prima facie case of trover is 46 Mich. 35; In re Stephenson, 32 made out by the affidavit, a capias Mich. 60; People v. McAllister, 19 will issue. Timm v. Cass Circuit Mich. 215; Fish v. Barbour, 43 Judge, 192 Mich. 508. See also H. Mich. 19; Shaw v. Ashford, 110 J. Cheney Co. v. Allgeo, 165 Mich. Mich. 534. 384. Affidavit is sufficient if allega- 76 Benie v. Wayne Circuit Judge, tions therein would be sufficient to 154 Mich. 590. make out a prima facie case in a 76 Wilcox v. Ismon, 34 Mich, criminal trial. Pease v. Pendell, 57 268; Timm v. Cass Circuit Judge, Mich. 315. 192 Mich. 508. Form in action for malicious 77 People v. Watson, 40 Mich, prosecution, see Paulus v. Grobben, 729. See also Hatch v. Saunders, 104 Mich. 42; trespass on lands, 66 Mich. 181. Shaw V. Ashford, 110 Mich. 534: § 56 Commencement of Actions 373 though sufficient in a pleading, may be insufficient in an affidavit.'''^ Form of Affidavit In Actions ex Delicto (No title.) State of Michigan, County of A. B., being duly sworn, deposes and says that he is the plaintiff named in the annexed writ, and that on or about the day of , at , in the county of , in the state of Michigan, C. D., late of , came into the dwelling house of this deponent, where he, this de- ponent then was, and, without any provocation whatever, laid hold of this deponent, and with great force and violence knocked him down, and with his fists struck this deponent several violent blows upon his head, face, arms and neck, and thereby inflicted upon this deponent several severe wounds and bruises, by reason whereof this deponent became sick, and was disabled from attending to his affairs and business for a long space of time to-wit: for about the space of five weeks then next ensuing, and suffered great pain and incurred a large amount of expense in nursing and medical aid and assistance. Subscribed, etc. (Signature.) § 56. Necessity for statements based on personal knowledge. The constitution of the state prohibits the issue of any warrant to seize any person without probable cause, sup- ported by oath or affirmation.'''^ And, accordingly, it is not sufficient, in an affidavit for a capias, to allege the facts and circumstances of the case upon information and belief merely. On the other hand, it is necessary that the facts should be stated positively and within the personal knowledge of the deponent. ®° 78 Sheridan v. Briggs, .'j.S Mich. Briggs, 53 Mich. 569; Martin v. 569. Saginaw Circuit Judge, 173 Mich. Whether the declaration states a 22; Shaw v. Ashford, 110 Mich, good cause of action to recover dam- 534; Soule v. Ottawa Circuit Judge, ages for fraud, so as to support a 175 Mich. 127; Proctor v. Prout, 17 capias, see Merlan v. Kalamazoo Mich. 473; People v. Wayne Cir- Circuit Judge, 180 Mich. 393. cuit Judge, 36 Mich. 334; DeLong 79 Const. Art. IT, sec. 10. v. Briggs, 47 Mich. 624; Meddaugh 80 Robinson v. Branch Circuit v. Williams, 48 Mich. 172; Moyle Judge, 142 Mich. 70; Slieridan v. v. Houghton (circuit Judge, 97 374 COMMEXCEMENT OF AcTIOXS § 56 The affiant must state that he has personal knowledge of the facts stated in the affidavit or that fact must be made to appear by what is stated in the affidavit. It is not essential that the affidavit contain the express state- ment that the affiant has personal knowledge of the facts alleged, but it is essential that it appear either by express statement or by the very nature of the facts and circum- stances that the affiant had personal knowledge of the facts.^^ The correct rule, as stated by Judge Stone, is that ''where the fact stated in the affidavit is one about which the testimony of any person having means of knowledge would be admissible, the affidavit need not set forth the source and extent of affiant 's knowledge, where the affidavit contains the averment that he had personal knowledge of the facts and circumstances set forth in the affidavit. "82 The statute does not require the plaintiff to attach documentary evidence of facts within his own jDcrsonal knowledge,^^ but when the fact of the existence of a judg- Mich. 636; Northrop v. Stone, 128 Briggs, 47 Mich. 624; Stensrud v. Mich. 415; Conrad v. Van Buren Delamater, 56 Mich. 144; Marble Circuit Judge, 144 Mich. 492. See v. Curran, 63 Mich. 283; Shaw v. also Ord v. Wayne Circuit Judge, Ashford, 110 Mich. 534; Wright v. 160 Mich, 569. Wayne Circuit Judge, 119 Mich. Must contain allegations as to 499; Rice v. Knappen, 176 Mich, •which affiant could testify to on 322. the trial. Church v. Calhoun Cir- The statements must be on per- cuit Judge, 129 Mich. 126. sonal knowledge and hence the affi- Affiant should show the source of davit should be quashed where ma- hia knowledge and attach the affi- terial statements therein could not davit of the person who has the have been within the personal requisite knowledge. Gardiner v. knowledge of the affiant. Eice v. Wayne Circuit Judge, 155 Mich. 414. Kalamazoo Circuit Judge, 176 Mich. Sufficiency of affidavit in action 322. for alienation of affections, see 82 Pratt v. Allegan Circuit Judge, Conrad v. Van Buren Circuit Judge, 177 Mich. 558, 564, applying rule 144 Mich. 492. to allegations as to value of real 81 Conrad v. Van Buren Circuit estate. Judge, 144 Mich. 492, 497; Proctor 83 Paulus v. Grobben, 104 Mich, v. Prout, 17 Mich. 473; Brown v. 42; Fruitport Tp. v. Dickerman, 90 Kelley, 20 ^ich. 27; DeLong v. Mich. 20. § 58 Commencement of Actions 375 ment is necessary to be set out, the jiidgmoiit should be identified by a sufficient description, and for this purpose, the date of the judgment is a necessary part.®* The affidavit in an action for fraud is sufficient al- though the falsity of some of the representations is not stated as within the personal knowledge of the affiant where many of them are shown to be within his personal knowledge and the falsity of sufficient of them is so made to appear to authorize the issuance of the writ.®^ § 57. Title, date and filing. It is not necessary that the declaration and affidavit should be entitled in the cause, for no cause is pending when they are made.®^ The affidavit should be dated although it need not bear the same date as the writ.®''' It need not be filed with the clerk before the writ is issued.®® § 58. Dsfects and how taken advantage of. An action begun by capias should not be dismissed for insufficiency of the affidavit but plaintiff sliould be al- lowed to proceed on the summons clause of the writ.®® To determine the sufficiency of the affidavit, the com- mon practice is to move to quash the writ or to discharge defendant from arrest.®" So in actions of tort it is proper to move to vacate the order holding to bail. And where defendant is in custody under the writ, habeas corpus proceedings lie to determine the sufficiency of the affi- davit. Defendant cannot first question the sufficiency of the affidavit on writ of error after a trial on the merits in the lower court.®^ A general appearance w^^ives defects 84 Badger v. Reade, 39 Mich. 771. 88 People v. Gebliardt, 154 Mich. 85 Muir V. Wayne Circuit Judge, 504. 151 Mich. 117. 89 H. J. Cheney Co. v. Allgeo, 165 86 Hatch V. Saunders, 66 Mich. Mich. 384. 181. 90 See jmst. 87 Clark v. Kent Circuit Judge, 91 Wiest v. Luycudyk, 73 Mich. 125 Mich. 449. 661. 376 Commencement of Actions § 58 in the affidavit.'^ But putting in special bail and plead- ing in the cause does not waive the right to seek a dis- charge from arrest where the affidavit is jurisdictionally defective.^^ Where the sureties on the bail bond are sued, they may set up the insufficiency of the affidavit,'* as may the sheriff when he is sued for an escape. Actions for false imprisonment are sometimes based upon defec- tive affidavits for a capias.®^ But arrest under a writ of capias ad respondendum in a tort action is not ground for an action for false imprisonment even though the affi- davit for the capias was insufficient, since the order of the judge allowing the capias is not void but voidable in such a case.^^ The affidavit of the relator in mandamus may, it seems, cure defects in the affidavit for a capias, by an admission of their truth.®"' Error, if any, in denying a motion to quash a capias should be raised by habeas corpus or mandamus before pleading, and is not subject to review on writ of error after final judgment.®^ § 59. Issuance and form of v/rit. A capias ad respondendum may be issued in vacation or in term time, and may be made returnable at any time, except Sunday, not exceeding three months from the date when issued.'^ In form, it notifies the defendant to ap- pear, in person or by attorney, within fifteen days after service of the writ ujoon him, to answer to the suit of the 92 Graham v. Cass Circuit Judge, 96 Thomas v. Kosecrantz, 193 108 Mich. 425. Mich. 357, following Ward v. Coz- 98 In re Steplienson, 32 Mich. 60. zens, 3 Mich. 252. 94 See Fish v. Barbour, 43 Mich. 97 See Martin v. Saginaw Circuit 19. Judge, 173 Mich. 22; Robinson v. 95 Ward V. Cozzens, 3 Mich. 252; Branch Circuit Judge, 142 Mich. 70. Johnson v. Morton, 94 Mich. 1 ; 98 Baxter v. Woodward, 191 Mich. Wachsmuth v. Merchants' Nat. 379, 383, and cases cited; Eeed v. Bank, 96 Mich. 426; Thomas v. McCready, 170 Mich. 532, 538. Kosecrantz, 193 Mich. 357. 99 Cir. Ct. Rule 18, § 1. § 59 Commencement of Actions 377 plaintiff according to the rules and practice of the court,^ and commands the sheriff to take the defendant, if he may be foimd within his bailiwick, and keep him in his cus- tody until he shall be discharged according to law.^ It should be entitled in the court from which it issues, should run, **In the Name of the People of the State of Michigan," should be tested in the name of one of the judges of the court, be sealed with the seal of the court, be signed by the clerk thereof and, before the delivery of it to any officer to be executed, should be subscribed or indorsed with the name of the attorney for the plaintiff and the officer by whom it is issued.^ The attorney, when subscribing or indorsing the writ, should add his busi- ness address for the information and use of the adverse party or his attorney in making service of papers in the subsequent progress of the suit.'* The amount expressed should be large enough to cover all probable damages, and is usually, in actions of as- sumpsit, a sum equal to twice the plaintiff's demand. The writ is not void because the time stated therein for enter- ing an appearance is shorter than the time fixed by stat- ute.^ So the fact that the writ is dated the day before the affidavit is made does not render it void.^ Form of Writ State of Michigan. The Circuit Court for the County of In the Name of the People of the State of Michigan. To : You are hereby notified that a suit has been commenced against you in the circuit court for the county of .... by , as plaintiff, and that, if you desire to defend the same, you are required to have your appearance ICir. Ct. Eule 18, SI. before the 1899 amendment to the 2 Cir. Ct. Rule 18, §6. statute fixing the time at fifteen in- 3 Jud. Act, ch. ir5, S2; Comp. stead of twenty days, and the writ Laws 1915, § 12405. therein fixed the time for appear- 4 Cir. Ct. Rule 18, § ;}. anee at fifteen days. 5 Wright V. Wayne Circuit Judge, 6 People v. Ool)liardt, 154 Mich. 119 Mich. 499, which was decided 504. 378 Commencement of Actions § 59 filed or entered in the cause, in accordance with the rules and practice of the court, in person or by attorney, within fifteen days after service of this summons upon you. Hereof fail not, under penalty of having judg- ment taken against you by default. The plaintiff claims damages in said suit not exceeding dollars. Service of this summons shall be made on or before the day of , 191.., which is the return day hereof. To the Sheriff of said County: You are hereby commanded to take said defendant, if he may be found in your bailiwick, and keep him in your custody until he shall be discharged according to law. Witness, Hon , circuit judge, and the seal of said court, at the of , the place of holding said court, this day of , 191.. > Clerk. , Plaintiff 's Attorney. Business address: , Mich. § 60. Fixing- and indorsing bail. AVliere the action is based on contract, an order for bail is not necessary. In actions for torts, an order for bail must be indorsed on the writ by a judge of the court from which the writ issues, or a circuit court commissioner, directing- the amount in which bail is to be taken.'' De- fendant thereupon shall be held to bail in the amount specified in such order. The order must be based on the affidavit, and it is the duty of the judge or commissioner to hear and investigate; and if the declaration and affi- davit set up facts and circumstances tending to show fraud or breach of trust, thus bringing the case within the exceptions of the constitution, authority to act de- pends upon the facts, and the determination of the judge must be held to have all the qualities of a judicial deci- sion.® The judge may fix and indorse the bail when he is out of the county but yet in his judicial district.^ 7Jud. Act, ch. 13, §12; Comp. 9 Timm v. Cass Circuit Judge, 192 Laws 1915, § 12415. Mich. 508. 8 Johnson v. Morton, 94 Mich. 1. § 62 Commencement of Actions 379 Form of Order On reading the annexed affidavit, it is ordered that the defendant be held to bail on the within writ, in the sum of dollars. (Date.) S. M. G., Circuit Judge. § 61. Amount of bail. The constitution provides that excessive bail shall not be required.-^" The amount of bail in actions ex delicto seems to be within the discretion of the judge or commis- sioner making the order. In actions ex contractu, where no order is necessary, the amount is double the amount specified in the affidavit attached to the writ.^^ The court from which the writ issues may, upon proper showing, in an action ex delicto, increase or diminish the amount for which bail has been ordered.^^ § 62. How capias served. Writs of capias ad respondendum are served by the sheriff or other officer by arresting the defendant and keeping him in his custody until discharged according to law, and serving upon the defendant a copy of the writ and of the declaration and supporting affidavit or affi- davits upon which the writ is founded.^^ An arrest is usually made by actual seizure of the per- son or touching the defendant's body however slightl5^ But neither one is necessary. It is well settled that if the defendant is within the power of the officer and submits to him, it is sufficient. But where the officer does no more than to inform the defendant of his business, not taking 10 Const. Art. II, see. 1.5. copies of the writ and affidavit 11 Jud. Act, ch. 1.3, §15; Comp. upon the defendant does not render Laws 1915, § 12418. the ser%nce fatally defective, the 12 Jud. Act, ch. 13, §12; Comp. statute in this respect being merely Laws 1915, §12415. directory. Pixley v. Berrien Cir- 13 Jud. Act, ch. 13, §14; Comp. cuit Judge, 121 Mich. 629; People Laws 1915, §12417. But it has v. Gebhardt, 154 Mich. 504; Barker been held that a failure to serve v. Cook, 40 Barb. (N. Y.) 254. 380 Commencement of Actions § 62 him into custody and never depriving him of freedom of action, there has been no arrest.^* The time and place of service of the writ is governed by the general rules relating to service of process in gen- eral which have already been stated in this article." § 63. Return of service. The governing rule of court applies not only to a capias but also to all ** original writs" i. e., it includes the return of a summons; and as its provisions have already been stated they will not be repeated in this connection." By statute, however, if the defendant is committed to prison for want of bail, the sheriff or other officer making the arrest is required specially to return upon the writ the fact that the defendant is imprisoned for want of bail,^' and should at once notify the plaintiff or his attorney. Form of Return to Capias When Defendant Is Arrested and Brought Before the Court State of Michigan, ) County of ( I hereby certify and return that, by virtue of the within writ, to me directed and delivered, I have taken the within-named C. D., whose body I have ready in court, as I am within commanded. Dated, etc. S. T., Sheriff. Form of Return to Capias When One Defendant Is Taken and Imprisoned for Want of Bail, and Another Defendant Is Not Found State of Michigan, J County of ( I hereby certify and return that, by virtue of the within writ, to me directed and delivered, I did, on the day of , A. D , take the within-named C. D., whose body I have in custody, in prison for want of bail, and did, at the same time, serve upon the said C. D. a copy 14 Hill v. Taylor, 50 Mich. 549. 15 See §§10, 20, ante. See also Brushaber v. Stegcman, 22 16 Sec §§23-27, ante. Mich. 266; Josselyn v. McAllister, 17 Jud. Act, ch. 13, §18; Comp. 25 Mich. 47; Fuller v. Bowker, 11 Laws 1915, §12421. Mich. 212. § 63 Commencement of Actions 381 of said writ and of the declaration and afiBdavit upon which said writ is founded, and of each of which a copy is hereto annexed, by delivering the same to him personally at ; and that, after diligent search and inquiry, I am unable to find the within-named E. F. within my bailiwick. Dated, etc. S. T., Sheriff. Form of Return to Capias When Defendant Is Not Found State of Michigan, County of I hereby certify and return that, after diligent search and inquiry, I am not able to find the within-named C. D. within my bailiwick. Dated, etc. S. T., Sheriff. Form of Return to Capias When Defendant Is Taken and Discharged on Bail State of Michigan, ) County of ( I hereby certify and return that, by virtue of the within writ, to me directed and delivered, I did, on the day of , A. D , take the within-named C. D., as I am within commanded, whose body I have since discharged, he, the said C. D., having executed and delivered to me a bond, with E. F. and G. H., of , in said county, as sureties, according to law. And I further certify that I did, on the day of J A. D , serve upon the said C. D. a copy of said writ and of the declaration and affidavit upon which said writ is founded, and of each of which a copy is hereto annexed, by delivering the same to him person- ally at Dated, etc. S. T., Sheriff. Form of Return to Capias When Defendant Is Taken and Imprisoned for Want of Bail State of Michigan, J County of ( I hereby certify and return that, by virtue of the within writ, to me directed and delivered, I did, on the day of , A. D , take the wlthin-named C. D., whose body I have in custody, as I am within commanded, the said C. D. being in prison for want of bail. (Conclude as in general form.) Dated, etc. S. T., Sheriff, 382 Commencement of Actions § 63 Form of Return to Capias After Rescue State of Michigan, ) County of ( I hereby certify and return that, by virtue of the within writ, to me directed and delivered, I did, on the day of , A. D , take the within-named C. D., and safely kept him in my custody, as I am within commanded, until E. F., of , and divers other persons to me unknown, on the day of , A. D , at' , with force and arms assaulted and ill-treated me, and the said C. D. out of my custody then and there rescued, and the said C. D., then and there, with force and arms, rescued himself, and escaped out of my custody, against the peace of the people of the state of Michigan, and afterwards, after diligent search and inquiry, I am not able to find the said C. D. within my bailiwick. Dated, etc. S. T., Sheriff. § 64. Discharge on bail bond. Eveiy defendant arrested upon a capias ad responden- dum is entitled to be discharged from sucli arrest upon executing to the officer making the arrest, with the addi- tion of his name of office, a bond in a penalty equal to the amount specified in the order for bail or in double the amount specified in the affidavit attached to the writ, as the case may be, with two sufficient sureties, conditioned that the defendant will appear in the action commenced by such writ, by putting in special bail Avithin fifteen days after the service of the writ upon him and by perfecting such bail, if required, according to tlie rules and prac- tice of the court." § 65. Bond for jail liberties. This question is treated of in another article." V. By Attachment § 66. In general. This matter is treated elsewhere.^® 18 See Bah,, § 2. tice has imposed, see De Meyer ▼. In regard to the original purpose McGonegal, 32 Mich. 120. of this bail to the sheriff and the 19 See Jail Liberties. modifications which modern prac- 20 See Attachment. Complaint 383 VI. By Replevin § 67. In general. This question is treated of under the head of Replevin. COMMERCIAL PAPER See Bills and Notes. COMMISSIONERS See Circuit Court Commissioners; Dower; Depositions; Garnish- ment; Mandamus. COMMITMENT See Contempt; Habeas Corpus; Fraudulent Debtors. COMMON CARRIERS See Carriers. COMMON COUNCIL See Executions; Mandamus. COMMON COUNTS See Assumpsit; Pleading. COMMON RULES See Motions, Etc. COMMUNICATIONS See Evidence; Trial. COMPARISON See Evidence (comparison of handwriting). COMPLAINT See Pleading; Summary Proceedings. 384 Compromise COMPROMISE See Attorneys. COMPUTATION OF TIME See Time. CONCEALMENT See Attachment; Limitation of Actions. CONCLUSIONS See Pleading; Commencement of Actions (conclusions in affidavit for capias). CONDEMNATION PROCEEDINGS See Jury; Change of Venue; Certiorari. CONDUCT See Trial; New Trial. CONDUCTOR See Commencement of Actions (service on). CONFESSION OF JUDGMENT § 1. How and when judgment may be confessed. § 2. What confession is. § 3. Purpose of statute. § 4. Warrant of attorney. § 5. Who may give. § 6. Proof of. § 7. Practical uses of warrants to confess judgments. Cross-references: Tender; Defaults; Payment Into Court; Offer oi Judgment. § 1. How and when judgment may be confessed. The statute ^ provides that judgments may be entered in any circuit court, in vacation as well as in term, upon 1 Jud. Act, eh. 22, § .3 ; Comp. Laws 1915, § 12793. § 4 Confession of Judgment 385 a plea of confession, signed by an attorney of such court, although there be no suit then pending between the par- ties, if the following provisions be complied with, and not otherwise : 1. The authority for confessing such judgment shall be in some proper instrument, distinct from that containing the bond, contract or other evidence of the demand for which such judgment was confessed.^ 2. Such authority shall be produced to the officer sign- ing such judgment and shall be filed with the clerk of the court in which the judgment is entered at the time of the filing and docketing of such judgment. § 2. What confession is. A confession of judgment is a voluntary submission to the jurisdiction of the court, without the issuing or serv- ice of process, with the consent that judgment be entered against the party giving it.^ § 3. Purpose of statute. The statute does not restrict the right of a debtor to make such contract as he may find necessary or most advantageous to himself, but was designed to establish a rule of practice under which judgments by confession may be entered in vacation as well as in term. In other words, it is an extension of the common law practice to the entry of judgment in vacation.* § 4. Warrant of attorney. The warrant or authority to confess judgment, techni- cally denominated a ''warrant of attorney," must, both by the statute and by the common law, be in a separate 2 Warrant contained in promis- 4 Trombly v. Parsons, 10 Mich. «ory note is void. Acme Food Co. 272. V. Kirseh, 166 Mich. 433, 8 First Nat. Bank v. Garlinghouse, 53 Barb. (N. Y.) 619. 1 Abbott— 25 386 Confession of Judgment § 4 instiniment from that containing the promise or obliga- tion, although it may be a part of the contract that sncli a power shall be given. The warrant and the obligation may be separate, although executed at the same time and on the same piece of paper and although the warrant does not describe the obligation, but refers to it as attached thereto. The time of the execution of the warrant is im- material. Neither the statute nor the common law im- poses any restriction in this respect.^ The authority to confess judgment under the warrant must be strictly followed.^ § 5. Who may give. An infant cannot in his own name confess a judgment."'^ Partners have no implied authority to confess judgments for each other.* The treasurer of a corporation has no implied power as such to confess a judgment against the corporation.^ But, generally, any one not incapacitated to make a contract binding upon himself may execute a warrant of attorney to confess a judgment. § 6. Proof of. A warrant of attorney does not need to be proved be- fore the judgment is taken, unless a year and a day shall have elapsed subsequent to the warrant.^" § 7. Practical uses of warrants to confess judgments. A common use of warrants of attorney to confess judg- ment against the maker and in favor of a person named is 6Trombly v. Parsons, 10 Mich. 6 Cow. (N. Y.) 393; Knox v. Flack, 272. 22 Pa. St. 337. 6 In re Raynior's Estate, 16") 8 Soper v. Fry, 37 Mich. 236. Mich. 259. 9 Stevens v. Carp River Iron Co., 7 Acme Food Co. v. Kirseh, 166 57 Mich. 427. Mich. 433; Soper v. Fry, 37 Mich. 10 Elliott v. Ives, 44 Mich. 190, 236, citing Saunderson v. Marr, 1 citing Manufacturers' & Mechanics' H. Bl. 75; Ashlin v. Langton, 4 Bank v. St. John, 5 Hill (N. Y.) Moore & S. 719; Bennett v. Davis, 497. Confidential Communications 387 as security in the hands of a creditor." A warrant may recite an accompanying bond stating the terms upon which it was given, and be available only upon a breach of the bond, as, upon default in the payment of money, in which event, the creditor may procure a judgment at once without the delay of a suit.^^ A judgment may be con- fessed to secure future advances.^^ After the entry of judgment by virtue of a warrant of attorney, the warrant is functus officio, and no other judgment can be entered on it.i* Form of Judgment by Confession on Note and Warrant of Attorney (Title of cause.) On reading and filing note and warrant of attorney and declaration in this cause and cognovit confessing the action of the said plaintiff to the sum of .... dollars, damages; therefore, it is considered that the said plaintiff do recover against the said defendant his damages in the sum of dollars, so confessed as aforesaid, together with his costs and charges by him about his suit in this behalf expended, to be taxed, and that the said plaintiff have execution therefor. Form of Judgment by Confession on Bond and Warrant of Attorney (Title of cause.) On reading and filing bond and warrant of attorney and declaration in this cause and cognovit confessing the action of the said plaintiff to the sum of dollars, debt ; therefore, it is considered that the said plain- tiff do recover against the said defendant his debt aforesaid, to be dis- charged upon the payment of the sum of dollars (the amount due by the condition of the bond), together with his costs and charges by him about his suit in this behalf exjiended, to be taxed, and that he have execu- tion therefor. CONFIDENTIAL COMMUNICATIONS See Evidence. 11 A promissory note containing Co. v. Kirsch, 166 Mich. 433. a power of attorney to confess judg- 12 And. Law Diet. tit. "Attor ment in case of default in pay- ney"; 3 Cooley's Bl. Comm. 397. ment is known as a judgment note. 13 Brinkerhoff v. Marvin, 5 Johns. They are not used in Michigan, the Ch. (N. Y.) 320; Cook v. Whipple, statute requiring the obligation and 55 N. Y. 150; Livingston v. Mcln- the warrant to be in distinct instru- lay, 16 Johns. (N. Y.) 165; Averill ments. Jud. Act, eh. 22, §3; Comp. v. Loucks, 6 Barb. (N. Y.) 19. Laws 1915, §12793; Trembly v. 14 Manufacturers' & Mechanics' Parsons, 10 Midi. 272; Acme Food Bank v. Cowden, 3 Hill (N. Y.) 461. 388 Consent CONSENT Consent cannot confer jurisdiction of the subject mat- ter (see Courts, § 6). It may be effective, however, in case of a reference (see References) or substitution of attorneys (see Attorneys). It is sometimes necessary as in case of the appointment of a next friend (see Guard- ians, etc.). Consent to an adjudication prevents a review thereof on a writ of error (see Error, Writ of). CONSIDERATION See Pleading. CONSOLIDATION See Consolidation of Actions; Error, Writ of; Probate Courts. CONSOLIDATION OF ACTIONS § 1. Eight to and propriety of. § 2. Motion for consolidation. § 3. Wlio may move. § 4. When motion may be made. § 5. Discretion of court. § 6. Order and effect thereof. § 7. Costs. § 8. Consolidation by consent. § 9. Consolidation on court's own motion. § 10. Ex parte consolidation by plaintiff. § 1. Right to and propriety of. The practice of consolidating cases was established at common law,^ and the state of New York and several others have confirmed it by statute. In Michigan, it has been provided that, whenever several suits are pending (1) in the same court, (2) by the same plaintiff against the same defendant, (3) for causes of action which may be joined, the court in which they are prosecuted may, in 1 Harris v. Sweetland, 48 Mich. 110. § 2 Consolidation of Actions 389 its discretion, if it appears expedient, order them to be consolidated into one action.^ What causes of action may be joined in the same action is stated in another place,^ and the rule in respect to con- solidating causes is, in general, that only those suits can be consolidated the causes of action of which might orig- inally have been properly included in one action. The fact that the suits were not commenced at the same time, or the fact that the cause of action in one accrued after the commencement of the other, is immaterial;* but the parties in each of the snits the consolidation of which is proposed must be identical, and, in this state, the suits must be pending in the same court. Neither the common law nor any statute has author- ized the consolidation of cross-actions. Parties cannot, even by stipulation, require the same jury to hear in one case and decide by one verdict a series of issues wholly incompatible and incapable of being tried together.^ The cases in which consolidation has been ordered are mostly those of actions ex contractu. Instances of the consolidation of actions ex delicto, while known, are ex- tremely rare. § 2. Motion for consolidation. Unless the consolidation is by the consent and agree- ment of the parties, it is necessaiy for the party who de- sires it to apply for an order upon special motion, the 2 Jud. Act, eh. 8, § 1 ; Comp. Stay of proceedings distinguished Laws 1915, § 12309. from consolidation, see Wooster v. Appeals from the probate to the Case, 58 Hun (N. Y.) 605. circuit court may be consolidated. 3 See Joinder and Splittinq of Wisner v. Mabley 's Estate, 70 Mich. Causes of Action. 271. 4 Dunning v. Bank of Auburn, 19 The object of such a statute is Wend. (N. Y.) 23. to prevent oppression by the unnec- 5 Harris v. Sweetland, 48 Mich, essary accumulation of costs. Brew- HO. stcr V. Stewart, 3 Wend. (N. Y.) 441. 390 Consolidation of Actions § 2 practice upon which is in all respects the same as in other cases of special motions.* Form of Affidavit for Oonsolidation of Causes (Title of court and causes to be consolidated.) County of , ss. C. D., being duly sworn, deposes and says that he is the defendant in each of the above-entitled causes named; that the first named of the said causes is an action of assumpsit (or, as the case may be), brought for goods sold and delivered by the said plaintiff to the said defendant (or, as the case may be), and that the second named of said causes is an action of assumpsit (or, as the case may be), brought for work and labor done and performed by the said plaintiff for the said defendant (or, as the case may be). Deponent further says that he has fully and fairly stated the facts per- taining to said actions to K. L., his counsel therein, who resides at , and that he has a good and sufficient defense on the merits to each of the said actions, as he is advised by his said counsel upon such statement made as aforesaid and verily believes; that the questions which will arise in each of said actions are substantially the same ; that the defense of the said defendant is that (state briefly what) ; and that the said actions are such as may bo properly consolidated, as this deponent is advised by his said counsel, after such statement as aforesaid, and verily believes. (If no defense is intended, pursue the foregoing form as far as and including the words, ' ' for the said defendant, ' ' after which proceed as follows: And deponent further says that he does not intend to make any defense to either of the said actions; that the consolidation of said causes would save him considerable expense, which he would be compelled to pay if judgment were entered separately in each of said actions; and that said actions are such as may be properly consolidated, as he verily believes.) Subscribed, etc. C. D. § 3. Who may move. Either the plaintiff or the defendant may move for a consolidation of causes. In practice, it more frequently occurs that the motion is made by the defendant than by the plaintiff.' § 4. When motion may be made. It has been held that the motion should not be made 6 See Motions and Orders. York, see Briggs v. Gaunt, 11 Super. 7 That motion may be made by Ct. (4 Duer) 664. plaintiff under like statute in New § 7 Consolidation of Actions 391 until the cases are at issue,* but the statute does not im- pose this restriction in this state, and, while there may be good reason for delaying the motion until the issues have been fixed in the several suits, yet the matter is one over which the court in which the motion is made has en- tire control and that court may, at any stage of the pro- ceedings, order the consolidation if it appears expedient. In any event, the motion should be seasonably made; and, in this connection, it has been held that it is too late to move to consolidate when the cases are called for trial.® § 5. Discretion of court. The granting of a motion to consolidate actions rests in the discretion of the court, by express statutory provision, and will not be interfered with except in case of clear abuse. And the fact that the causes of action might have been joined in one suit does not require the granting of the motion for a consolidation. ^° § 6. Order and effect thereof. If a motion to consolidate is granted, the court will enter an order that the suits be consolidated, and thence- forth they will proceed together as one action, the same in all respects as if they had been originally commenced as a single, instead of as several, actions. §7. Costs. It has been held that, where a motion to consolidate is granted, costs should not be allowed; ^^ but the matter of costs on motions to consolidate, as on other special mo- tions, is within the discretion of the court, and no rule ap- plicable to the circumstances of all cases can be stated. It should, however, be said that the bringing of several suits 8Le Roy v. Bedell, 1 Code Rep. 10 Boyle v. Staten Island, ete., N. S. (N. Y.) 201. Land Co., 87 Hun (N. Y.) 233. 9 Eleventh Ward Sav. Bank v. H Ferris v. Belts, 2 How. Pr. (N. Hay, 8 Daly (N. Y.) 328, 73 N. Y. Y.) 78. 609. 392 Consolidation op Actions § 7 which might have been joined, instead of a single suit covering the causes of action in all, is a matter for which the plaintiff alone is entirely responsible, and one over which the defendant has no control whatever, so that it would seem that, other things being equal, a motion by the defendant to consolidate should, if granted, more reasonably carry costs than a motion made by the plain- tiff. But this consideration does not always govern, and is frequently outweighed by other circumstances, so that the most that can be said for it is that it does not attain to the dignity of a general rule, but amounts only to a tendency, by which the discretion of the court will, in some degree, be influenced. § 8. Consolidation by consent. If the parties to several suits stipulate that the causes may be consolidated, a rule may be filed, as in other cases of rules by consent, and thereupon, if the suits be such that a consolidation of them is proper, the causes will proceed as a single action, in the same manner and with the like effect as if the consolidation had been ordered by the court on special motion. § 9. Consolidation on court's own motion. In proper cases, the court may, on its own motion, enter an order consolidating several suits pending before it." § 10. Ex parte consolidation by plaintiff. When several suits have been commenced against joint and several debtors in the same court, the plaintiff may, in any stage of the proceedings, consolidate them into one action. ^^ A special motion or the consent of the defeiid- dants is unnecessary. The consolidation is effected by 12 Wism-r v. Mablcy 's Estate, 70 For construction of practically Mich. 271. identical statute in New York, see 13Ju(l. Act, eh. 8, §1; Coinj). Briggs v. Gaunt, 11 Super. Ct. (4 Laws 1915, § 12309. Duer) 664. Contempt 393 the filing or entry of a common rule in the office of the clerk of the court in which the actions are pending, and giving notice thereof to the defendants as in other cases. CONSTITUTIONAL LAW Questions of constitutional law are reviewable, under certain conditions, on a writ of error (see Error, Writ of), writ of certiorari (see Certiorari), and in quo warranto proceedings (see Quo Warranto). CONSTRUCTION See Pleading; Instructions; Vekdict and Findings; Assignments or Error; Garnishment (construction of statutes); Attachment (construc- tion of statutes) ; Judgments. CONTEMPT § 1. Power to punish at common law. § 2. Classification. § 3. Power of courts of record in Michigan to punish. § 4. When court may proceed summarily. § 5. Procedure in case of contempt of order for payment of money. § 6. Order to show cause and attachment. § 7. Procedure to compel return of process and putting in special bail. § 8. Habeas corpus instead of attachment when party in custody. § 9. Bond for appearance. § 10. Disposition of arrested party. § 11. Return of appearance bond. § 12. Procedure to compel return of attachment. § 13. Hearing. § 14. Punishment. § 15. Payment to aggrieved party. § 16. Imprisonment until act performed. § 17. Proceeding in case defendant does not appear. § 18. Damages in actions upon appearance bonds. § 19. Who may prosecute appearance bond and procedure. § 20. Actions against officers for taking insufficient sureties. § 21. Duty of officer as to custody. § 22. Review of judgment. § 23. Effect of commitment on rights of party. CrossEeferences: Service op Papers; Subpoenas; Supplementary Pro- ceedings; Mandamus. 394 Contempt § 1 § 1. Power to punish at common law. The power to punish for contempt has existed and been used immemorially by the superior courts of England,^ and seems to have originated in the fact that the king, in contemphition of law, w^as supposed to be always present in his courts. The power, therefore, has been said at com- mon hiw to have been confined to courts of record, and not to have been possessed by the inferior courts, and ac- cordingly has been denied to justices of the peace.'^ But it is generally held that the power arises as a necessaiy incident in creating a court.* §2. Classification. Blackstone classifies contempts as either direct, which openly insult or resist the powers of the court or the per- son of the judges who preside there, or consequential, which, without such gross insolence or direct opposition, plainly tends to create a universal disregard of their authority.* The same classification is recognized in this state and is important in that the method of procedure is entirely different in the two classes. A direct contempt, committed in the immediate view and presence of the court, will be noticed by the court, and, on its own motion, it will punish summarily in the mode pointed out by the statute; but those not committed in its immediate view and presence must be brought before the court by the affidavit of the persons who witnessed them or have knowledge of them.^ In neither case is the accused en- 14 Cooley's Bl. Comm. 283; Nich- Act, eh. 79, Comp. Laws 1915, ols V. Judge of Superior Court, 130 § 14442 et seq. Mich. 187. Sin re Cooper, 32 Vt. 253; Brown 2 Noyes v. Byxbee, 45 Conn. 382 ; v. People, 19 III. 613 ; Middlebrook Rhinehart v. Lance, 43 N. J. L. 311 ; v. State, 43 Conn. 257; Respublica v. Queen v. Lefroy, L. R. 8 Q. B. 134; Oswald, 1 Dall. (U. S.) 319; In re Albright v. Lapp, 26 Pa. St. 99. In Chadwiek, 109 Mich. 588. Michigan, justices of the peace are 4 4 Cooley's Bl. Comm. 283, 284. by statute vested with a limited 5 In re Wood, 82 Mich. 75. power to punish for contempt. Jud. § 3 Contempt 395 titled to a trial by jury.^ The Judicature Act abolishes the distinction between civil and criminal contempts. § 3. Power of courts of record in Michigan to punish. Courts of record in this state have inherent power to hear and determine all contempts of court which the su- perior courts of England had at the common law, and the statute has not undertaken to limit or prohibit their juris- diction in the matter. The statutes are in affirmation of the common law power of courts to punish for contempts, and, while not attempting to curtail the power, they have regulated the mode of proceeding and prescribed what punishment may be inflicted.' By the terms of the stat- ute, every court of record has power to punish by fine or imprisonment or both persons guilty of any neglect or violation of duty or misconduct in the following cases, and no others : * 1. Disorderly, contemptuous or insolent behavior, com- mitted during its sitting, in its immediate view and pres- ence, and directly tending to interrupt its proceedings or to impair the respect due to its authority. 2. Any breach of the peace, noise or disturbance direct- ly tending to interrupt its proceedings. 3. All attorneys, counselors, clerks, registers, sheriffs, coroners and all other persons in any manner duly elected or appointed to perform any judicial or ministerial serv- ices for any misbehavior in such office or trust or for any willful negligence or violation of duty therein, for dis- obedience of any process of the court or any lawful order 6 In re Chadwick, 109 Mich. 588; were elassificd as criminal contempts In re Dingley, 182 Mich. 44. and part as civil contempts prior to 7Langdon v. Wayne Circuit tlie Judicature Act. Judges, 76 Mich. 358; Nichols v. That jurisdiction of court is not Judge of Superior Court, 130 Mich. limited to causes specified in statute, 187; In re Dingley, 182 Mich. 44. notwithstanding the express lan- 8 Jud. Act, ch. 5, 8 1 ; Comp. Laws guage thereof, see Nichols v. Judge 1915, §12268. of Superior Court, 130 Mich. 187, Part of the acts enumerated herein 193; In re Emory, 149 Mich. 183. 396 Contempt § 3 of the court or of a judge of the court or of any officer authorized to perform the duties of such judge.® 4. Parties to suits for putting in fictitious bail or sure- ties or for any deceit or abuse of the process or proceed- ings of the court. 5. Parties to suits, attorneys, counselors and all other persons for the non-payment of any sum of money ordered by the court to be paid in cases where by law execution cannot be awarded for the collection of such sum,^" the disobedience or refusal to comply with any order of the court for the payment of alimony, either permanent or temporary," or costs made in any suit for divorce or separate maintenance, and for any other disobedience to any lawful order, decree or process of the court. ^^ 6. All persons for assuming to be officers, attorneys or counselors of the court and acting as such without author- ity, for rescuing any property or persons in the custody of an officer by virtue of process issued from the court, for unlawfully detaining any witness or party to a suit while going to, remaining at or returning from the court where the suit is pending for trial and for any other un- lawful interference with or resistance to the process or proceedings in any action. It is not necessary that the witness detained should have been subpoenaed in order to constitute the offense. ^^ One who conceals himself to avoid the service of process in a suit against him is not regarded as interfering with the process or proceedings 9 Ex parte Toepel, 139 Mich. 85, & M. E. Co., 184 Mich. 242, order in presmitation by coroner of fraudu- mandamus; Davis Colliery Co. v. lent claim against state to judge. Charlevoix Sugar Co., 157 Mich. lOSwarthout v. Lucas, 102 Mich." 102; Central Nat. Bank v. Graham, 492; Haines v. Haines, 35 Midi. 118 Mich. 488, order in supplomen- 138; North v. North, 39 Mich. 67; tary proceedings. Carnahan v. Carnahan, 143 Mich. Disobedience of a void order is not 390 ; Mast v. Washtenaw Circuit a contempt. In re Briggs, 178 Mich. Judge, 154 Mich. 485. 28. 11 Mayer v. Mayer, 154 Mich. 386. 18 Montgomery v. Muskegon Cir- 12 Michigan Ry. Comm. v. Detroit cuit Judge, 100 Mich. 436, § 3 Contempt 397 in the suit.^* But an attempt to bribe a juror or intimi- date a witness constitutes such interference." 7. All persons summoned as witnesses for refusal or neglect to obey such summons or to attend or to be sworn or, when sworn, to answer any legal and proper interroga- tory. But a witness who has been committed for such re- fusal is entitled to be discharged when the suit in which he was summoned is discontinued, because it is then im- possible for him to purge the contempt. ^^ 8. Persons summoned as jurors in any court for im- properly conversing with any party to a suit to be tried at the court or with any other person in relation to the merits of the suit, for receiving communications from any such party or from any other person in relation to the merits of the suit without immediately disclosing them to the court. 9. All inferior magistrates, officers and tribunals for disobedience of any lawful order or process of a superior court or for proceeding in any cause or matter contrary to law after such cause or matter has been removed from their jurisdiction. 10. The publication of a false or grossly inaccurate re- port of its proceedings, but not for the publication of true, full and fair reports of any trial, argument, proceedings or decision had in the court. The power is not limited to cases still pending, but extends to past judgments and decrees. ^''^ 11. All other cases where attachments and proceedings as for contempts have been usually adopted and prac- ticed in courts of record to enforce the civil remedies of any party or to protect the rights of a party." 14Brodrick v. Genesee Circuit Emery, 149 Mich. 383. Judge, 125 Mich. 274. 16 In re Hall, 10 Mich. 210. 15 Lanpdon v. Wayne Circuit 17 lu re Chadwick, 109 Mich. 588. Judges, 76 Mich. 358; Nichols v. 18 Jud. Act, ch. 5, §1; Comp. Judge of Superior Court, 130 Mich. Laws 1915, §12268; In re Adams, 187; Russell v. Wayne Circuit 7 Mich. 452. Judge, 136 Mich. 624. See In re Failure to obey order to produce 398 Contempt § 3 Tlie fact that a contempt of court involves a criminal offense does not preclude the court from punishing it as a contempt,^® nor does the fact that the conduct has been punished as a contempt preclude a criminal prosecution, but the court before which a conviction is had must take into consideration the i^unishment before inflicted in im- posing sentence.*" § 4. When court may proceed summarily. When any misconduct punishable by fine and imprison- ment as a contempt is committed in the immediate view and presence of the court, it may be punished summarily, by fine or imprisonment or both,*^ but, when the miscon- duct is not so committed, the court must be satisfied by due proof by affidavit of the facts charged, and must cause a copy of the affidavit to be served on the party ac- cused a reasonable time to enable him to make his de- fense, except in cases of disobedience to any rule or order requiring the payment of money and of disobedience to any subpoena.** Where, however, without such affidavit, the accused party voluntarily appears and submits him- self to the jurisdiction of the court and is given the same opportunity to make his defense that he would have had if an affidavit had been filed and an order to show cause had been issued, he cannot object to the omission.*' But he must have a fair opportunity to meet the charge of contempt and, of course, the charge must be substanti- ated.** While the court, under this statute, may be considered as sitting from the beginning of its session until the end books and papers is punishable un- 22 Jud. Act, cli. 5, § 3 ; Comp. der this subdivision. Metheany v. Laws 1915, § 12270. Kent Circuit Judge, 142 Mich. 628. Affidavits are necessary where the 19 Nichols V. Judge of Superior contempt was not committed in the Court, 130 Mich. 187. presence of the court. Eussell v. 20 Jud. Act, ch. 5, §24; Comp. Wayne Circuit Judge, 136 Mich. Laws 1915, § 12291. 624; In re Wood, 82 Mich. 75. 21 Jud. Act, ch. 5, §2; Comp. 23 In re McHugh, 152 Mich. 505. Laws 1915, § 12269. 24Ilichter v. Kabat, 114 Mich. 575. § 5 Contempt 399 thereof, yet the words, "immediate view and presence," are words of limitation and exclude the idea of construc- tive presence. The immediate view and presence does not extend beyond the range of vision of the judge, and the term applies only to such contempts as are committed in the face of the court. Of such contempts, he may take cognizance of his own knowledge and may proceed to punish them summarily, basing his action entirely upon his own knowledge. All other alleged contempts depend solely upon evidence and are inferences from fact, and the foundation for the proceedings to punish therefor must be laid by affidavit. They must be brought before the court by the affidavits of the persons who witnessed them or have knowledge of them, and a rule is made, based upon such affidavits, that the accused show cause at a certain time and place why he should not be punished for the alleged contempt.^^ If the contempt be committed in the face of the court, the offender may be instantly appre- hended and imprisoned, at the discretion of the judge, without any further proof or examination.^^ § 5. Procedure in case of contempt of order for payment of money. The statute provides that, when any rule or order has been made for the payment of costs or any other sum of money and proof by affidavit is made of personal demand of such sum of money and of refusal to pay it, the court may issue a precept to commit the person so disobeying to prison until such sum and the costs and expenses of tlie proceeding shall be paid;^''^ but, with imprisonment for 25 In re Wood, 82 Mich. 75. 26 4 Cooley 's Bl. Comm. 286. Afla.tlavit must show necessary 27 Jud. Act, ch. 5, §4; Conip. facts with reasonable certainty. Ver- Laws 1915, § 12271. plank V. Hall, 21 Mich. 469. Personal demand is necessary. Affidavit is sufficient although be- Edison v. Edison, 56 Mich. 185. fore used on another motion. Mont- But if party refuses to pay, no gomery v. Muskegon Circuit Judge, formal demand is necessary. Potts 100 Mich. 436. v. Potts, 68 Mich. 492. 400 Contempt § 5 debt forbidden, a party cannot be imprisoned for non- compliance with an order for the payment of money, ex- cept on the ground of contempt of the authority of the court. There must be in the case something of wrong beyond the mere failure to pay money; and the party, be- fore he can be convicted and punished for it, must have an opportunity to be heard in his own exculpation. He cannot be ordered into confinement on papers he is not allowed to answer, as it cannot be known that he might not effectually disprove all charges against him, if suf- fered to do so. It is possible that he might show that the first order was never served upon him or that no demand of payment was made or that, if made, it was complied with; or, failing in these, his inability to pay may be so absolute as to constitute a most effectual excuse. It is contrary to the first principles of right to proceed to the punishment of a party upon a mere ex parte showing. Cases where a party is charged with contempt for the non-payment of money ordered by the court to be paid should take the ordinary course of proceedings for the punishment of contempts, giving the party an opportu- nity to present what he has to say in his own justifica- tion.^' The purpose of this statute is to enable courts to enforce interlocutory orders, no other means of enforce- ment being provided by statute, since the remedy by con- tempt proceedings is expressly confined to cases where by law execution cannot be awarded.*^* § 6. Order to show cause and attachment. When the court is satisfied by due proof by afiidavit of the facts charged, in cases other than non-payment of money, the court either w^ill grant an order on the ac- 28Stellcr V. Steller, 25 Mich. 159. 58 How. Pr. (N. Y.) 128. For cer- 29 Swartliout v. Lucas, 102 Mich. tain cases in which attachment for 492; Baker v. Baker, 23 Hun (N. costs is provided for by rule of Y.) 356; O'Gara v. Kearney, 77 N. court, see Cir. Ct. Eule 41, §2. Y. 423; Stockbridge 's Assignment, § 7 Contempt 401 cused party to show cause at some reasonable time, which will be therein specified, why he should not be punished for the alleged misconduct or will issue an attachment to arrest the party and to bring him before the court to an- swer for such misconduct; ^'^ but the attachment cannot be issued without the express order of the court, which, based upon the showing made to the court of the facts charged, is indispensable. The clerk of a court has no authority to issue an attachment without the order of the court, even though affidavits be presented to him which, in his opinion, justify the issuance of the writ.^^ Form of Order to Show Cause on Contempt Not in Presence of Court In the Matter of A. B. It appearing to the court by the affidavit of E. F. now on file herein that A. B. has been, and is, guilty of contemptuous behavior directly tending to interrupt certain proceedings of the court and to impair the respect due to its authority in (specify the misconduct), it is therefore ordered that the said A. B. show cause before this court on the day of , A. D. ..•...., at o'clock in the noon, why he should not be pun- ished for said behavior. And it is further ordered that the sheriff of this county do cause a certified copy of said affidavit and of this order to be served without delay upon the said A. B. and make and file herein proof of such service. § 7. Procedure to compel return of process and putting in special bail. When a rule has been entered in any court, according to the practice thereof, requiring any officer or other per- son to whom any process of the court has been directed and delivered to return it, an attachment for disobedience of such rule may issue according to the practice of the court to arrest such officer or other person to answer for such disobedience without special application to the court.^^ The rule of the circuit courts upon this subject SOJud. Act, ch. 5, §5; Comp. 32 J,k1. Act, ch. 5, §6; Comp. Laws 1915, §12272. Laws 1915, §12273. 31 Thompson v. Ellsworth, .39 Mich. 710; In re Simons, 49 Mich. 511. 1 Abbott— 26 402 Contempt § 7 is that, if any sheriff or coroner or person authorized fails to return any process to him delivered, on or before the return day therein specified, any party interested in pro- curing a return may cause a rule to he filed requiring such officer or person to return the process within five days after sei'\'ice of notice of such rule; and if the proc- ess be not returned within the time specified in the rule, on filing with the clerk an affidavit of the service of the notice and of the delivery of the process to the officer or person to be served, the default of the officer or person in not making a return may be filed, and thereupon an at- tachment may be issued of course against such sheriff or coroner or authorized person to compel a return.^' It is also provided, in connection with suits commenced by capias ad respondendum, that if special bail is not put in and perfected within the time limited, upon filing an affidavit that special bail has not been put in and per- fected and that the writ has been returned served, a rule may be entered with the clerk of the court, in vacation or term, requiring the sheriff or other officer making the arrest to put in and perfect special bail within twenty days after service of notice of such rule; and, if such bail be not put in and perfected within the time specified in the rule, upon filing an affidavit of the service of notice thereof, a rule may be entered with the clerk, in vacation or in term, that an attachment issue against the sheriff' or other officer who may have made the aiTest, and such i\\- tachment may be issued accordingly.^* § 8. Habeas corpus instead of attachment when party in custody. If a party charged with misconduct bo in the custody of any officer by virtue of an execution against liis body, or by virtue of any process for any other contempt or mis- 33 Cir. Ct. Rule 20. Comp. Laws 1915, §§ 129S7, 12988. 84Jud. Act, ch. 25, §§9, 10; § 10 Contempt 403 conduct, the court may award a writ of habeas cori)US to bring up the body of such person to answer for such mis- conduct; and, in cases where a party is entitled to an at- tachment against any person without the special order of the court and such person is in custody as specified, a writ of habeas corpus to bring up such person may be allowed by any judge of the court or by any officer au- thorized to perform the duties of such judge in vacation." Such writ authorizes and commands the sheriif in whose custody such person is to remove and bring him before the court to which the writ is returnable and to detain him at the place where the court is sitting until some order is made by the court for his disposition.^^ § 9. Bond for appeaxance. When an attachment is issued by the special order of the court, the court should direct the penalty, in which the defendant shall give bond for his appearance to an- swer.^''' In all other cases, when a party is entitled to an attachment without the special order of the court, he must make application to a judge of the court or to some officer authorized to perform the duties of such judge, who, upon due proof of the facts and circumstances, will direct the penalty in which the defendant shall give bond for his appearance to answer the matters alleged against liim, indorsing such order on the attachment.'* § 10. Disposition of arrested party. Upon arresting any defendant upon an attachment to answer for any alleged misconduct, it is the duty of the sheriif to keep him in his actual custody and bring him personally before the court issuing the attachment, and to keep and detain him in his custody until tlie court has 35Jiul. Act, ch. 5, §§7, 8; Comi). 37 .Tud. Act, ch. 5, §10; Comp. Laws 1915, §§ 12274, 12275. Laws 1915, § 12277. 36Jud. Act, ch. 5, §9; Com]). 38Ju(L Act, ch. 5, §11; Comp. Laws 1915, §12276. Laws 1915, §12278. 404 Contempt § 10 made some order in the premises, unless the defendant en- titles himself to be discharged, either where a smn has been indorsed on an attachment issued by the special order of the court or where the penalty in which the de- fendant shall give bond for his appearance has been directed by the judge or other officer upon an attachment issued without the special order of the court, upon execut- ing and delivering to the officer making the arrest, in his name of office and to his assigns, at any time before the return day of the writ, a bond with two sufficient sure- ties, in the penalty indorsed on the attachment, with a condition that the defendant will appear on the return of the attachment and abide the order and judgment of the court thereon.^* Where an attachment is issued by the special order of the court, a certificate to that effect is required to be in- dorsed thereon by the clerk of the court, and, if no sum be specified in which the defendant shall be held to bail on the writ, he will not be entitled to be discharged from arrest thereon on executing any bond or in any other man- ner, unless upon the special order of the court issuing the attachment ; " but, where an attachment is issued without the special order of the court, and an order specifying the sum in which the defendant is to be held to bail is not indorsed thereon, the defendant will be entitled to be dis- charged from arrest thereon on executing a bond in the penalty of one hundred dollars, with sureties, in the same manner and with the like condition as before specified.*^ § 11. Return of appearance bond. Upon returning an attachment, it is the duty of the officer executing it to return the bond, if any, taken by 39 Jud. Act, ch. 5, §§ 12, 13; Comp. « Jud. Act, eh. 5, §15; Comp. Laws 1915, §§12279, 12280. Laws 1915, §12282. 40 Jud. Act, ch. 5, §14; Comp. Laws 1915, § 12281. § 13 Contempt 405 him of the defendant, and the bond should be filed with the attachment.*^ § 12. Procedure to compel return of attachment. It is the duty of the sheritf or other officer to whom an attachment has been delivered to return it by the return day specified therein, without any previous rule or order for that purpose; and, in case of default, an attachment may be issued against him upon being allowed by a judge of the court or by an officer authorized to perfoiTu the duties of such judge upon proof of the default. In such allowance, the cause of issuing the attachment must be stated, and that the defendant is not to be discharged upon bail or in any other manner but by order of the court.*^ The officer to whom such attachment is delivered must execute it by arresting and keeping the defendant in his custody, bringing him personally before the court and detaining him in his custody until the order of the court.** § 13. Hearing. When any defendant arrested upon an attachment is brought into court or has appeared therein in response to any order to show cause, he will be permitted to file affidavits controverting or explaining the matters stated in the affidavits upon which the attachment was issued or order to show cause made within such reasonable time as the court allows. The court may also receive any affi- davits or oral proofs contradictory or confirmatory of the answers of the defendant and, upon all such affidavits and proof, will determine whether the defendant has been guilty of the misconduct alleged.*^ The facts establish- 42Jud. Act, eh. 5, §16; Comp. Laws 1915, §12286; Metheany v. Laws 1915, §12283. Kent Circuit Judge, 142 Mich. 628; 43Jud. Act, eh. 5, §17; Comp. Russell v. Wayne Circuit Judge, 136 Laws 1915, § 12284. Mich. 624. 44Jud. Act, eh. 5, §18; Comp. The Judicature Act abolishes in- Laws 1915, § 12285. terrogatories. 45Jud. Act, eh. 5, §19; Comp. 406 Contempt § 13 iiii;- the charge must be shown with reasonable certainty and not merely upon information and belief.*^ The ques- tion to be determined primarily is whether the defendant is guilty of the misconduct charged, and, it being deter- mined that he is, the inquiry is then directed to the ascer- tainment of whether, and to what extent, the party prose- cuting the proceeding has been injured by it.*' The in- jury contemplated is a pecuniary injury of such a nature that it can be estimated with reasonable certainty. The inquiry as to the extent of the party's injury resulting from the misconduct charged may be conducted by the court at the same time and in connection with the in- vestigation of the defendant's guilt, or may be post- poned to a subsequent time, and, in proper cases, a refer- ence may be ordered. While the proceedings should not be conducted with such undue haste as to deprive the ac- cused of a fair opportunity to prepare his defense and will be set aside if they are,** they should in no case be sub- jected to unreasonable delay; but the court will not re- view the merits of the order which has been disobeyed.*® § 14. Punishment. Punishment for contempts may be by fine or imprison- ment in the jail of the county where the court is sitting, or both, in the discretion of the court; but the fine can in no case exceed the sum of two hundred and fifty dollars, nor the imprisonment thirty days, except in those cases where the commitment is for the refusal to perform an act or duty which is still within the power of the party to 46Verplank V. Hall, 21 Mich. 469; 48 In re Dingley, 182 Mich. 44; Russell V. Wayne Circuit Judge, 136 Latimer v. Barmore, 81 Mich. 592; Mich. 624. Smith v. Waalkes, 109 Mich. 16. 47 Montgomery v. Muskegon Boom- 49 People v. Bergen, 53 N. Y. 404; ing Co., 104 Mich. 411; Smith's Ap- Hilton v. Patterson, 18 Abb. Pr. peal, 86 Mich. 149; Holland v. (N. Y.) 245. Weed, 87 Mich. 584. § 14 Contempt 407 perform.^" A woman is not exempt from imprisonment for contempt.^^ Fonn of Order Punishing Ck>ntempt in Presence of the Court In the Matter of A. B. It appearing to the court from its own immediate view that A. B. has been, and is, guilty of contemptuous behavior committed during its sitting in the immediate view and presence of the court and directly tending to interrupt its proceedings and to impair the respect due to its authority in (specify the misconduct), it is therefore adjudged that the said A. B. is guilty of a contempt of this court, and it is ordered and adjudged that the said A. B. do pay to the people of the State of Michigan a fine of dollars and that he be imprisoned in the common jail of the county of until said fine be paid, not exceeding, however, days. Form of Order Imposing Punishment for Contempt Not in Presence of the Court In the Matter of A. B. On reading and filing proof of service of a certified copy of the order herein made on the day of , A. D , requiring the said A. B. to show cause why he should not be punished as for a contempt of this court for the contemptuous behavior therein specified, together with a certified copy of the afl&davit upon which said order was founded, and the said A. B. having failed to show such cause and it appearing to the court that the said A. B. has been, and is, guilty of contemptuous behavior di- rectly tending to interrupt the proceedings of this court and to impair the respect due to its authority in (specify the misconduct), it is therefore adjudged that the said A. B. is guilty of a contempt of this court and it is ordered and adjudged that he do pay to the people of the State of Michi- gan a fine of dollars, and that he be imprisoned in the common jail of the county of until said fine be paid, not exceeding, however, days. 60Jud. Act, ch. 5, §20; Comp. man v. Wayne Circuit Judge, 95 Laws 1915, § 12287. Mich. 264. Greater fine cannot be imposed Fine of $250 and imprisonment in any case. Ware v. Branch Cir- for thirty days, imposed on attor- cuit Judge, 75 Mich. 488, 495. neys who failed to appear on day A sentence giving respondent the set for trial of prosecution for mur- alternative of paying a certain sum der, held not cruel and unusual pun- as a fine within a specified time, or ishment in In re McHugh, 152 Mich, being imprisoned for a stated term 505. without the right to be released on 61 Carnahan v. Carnahaii, 14,'< payment of the fine, is void. Slo- Mich. .390. 408 Contempt § 15 § 15. Payment to ag^grieved party. If an actual loss or injury has been suffered by any party by the misconduct alleged, the court, in addition to such other penalty as is imposed, will order a sufficient sum to be paid by the defendant to such party to indem- nify him and to satisfy his costs and expenses, and, in such case, the payment and acceptance of such sum will be an absolute bar to any action by the aggrieved party to recover damages for such injury or loss.^^ The statute was formerly such that a fine could not be imposed in addition to the amount which the court ordered the de- fendant to pay to the party.^^ § 16. Imprisonment until act performed. When the misconduct complained of consists in the omission to perform some act or duty which is yet in the power of the defendant to perform, he can be imprisoned only until he shall have performed such act or duty and paid such fine as is imposed and the costs and expenses of the proceedings.^* In such case, the order and process of commitment must specify the act or duty to be per- formed and the amount of the fine and expenses to be paid." § 17. Proceeding in case defendant does not appear. If a defendant against whom an attachment has been issued and returned served does not appear on the re- turn day, the court may either award another attach- ment or may order the bond taken on his arrest to be prosecuted, or both.^^ The court may order an assign- 62Jucl. Act, ch. 5, §21; Comp. M. E. Co., 184 Mich. 242, where fine Laws 1915, § 12288. or other punishment not imposed 53 Haines v. Haines, 35 Mich. 138. where contempt was merely technical 54 Jud. Act, ch. 5, § 22 ; Comp. and party acted in good faith. Laws 1915, §12289; Carnahan v. 65 Jud. Act, ch. 5, §23; Comp. Carnahan, 143 Mich. 390; Latimer Laws 1915, §12290. V. Barmore, 81 Mich. 592. See Mich- 56 Jud. Act, ch. 5, §25; Comp. igan Ey. Commission v. Detroit & Laws 1915, § 12292. § 19 Contempt 409 ment of the bond to any aggrieved party, who may be authorized by the court to prosecute it. Such party may maintain an action thereon in his own name, as assignee of the sheriff or other officer to whom the bond was given, in the same manner as in other actions on bonds with condition to perform covenants other than the payment of money.^"'' § 18. Damag-es in actions upon appearance bonds. The measure of damages to be assessed in an action upon a bond taken on the arrest of a defendant against whom an attachment has been issued is the extent of the loss or injury sustained by the aggrieved party by rea- son of the misconduct for which the attachment was is- sued and his costs and expenses in prosecuting the at- tachment.^* § 19. Who may prosecute appearance bond and proce- dure. If the court does not order an assignment of the bond taken on the arrest, it should, in case the defendant fails to appear according to the condition of the bond, order it to be prosecuted by the attorney general or by the prosecuting attorney for the county in which the bond was taken, in the name of the officer who took the bond.^^ In such case, the whole penalty of the bond will be for- feited and recovered; and, from the moneys collected thereon, the court will order such sum to be paid to the party prosecuting the attachment as the court ordering the prosecution thinks proper to satisfy the costs and expenses incurred by him and to compensate him for any injury he may have sustained by the misconduct for whicli the attachment was issued. Tlie residue of the 57Jud. Act, ch. 5, §26; Conip. 69 Jud. Act, ch. 5, §28; Comp. Laws 1915, § 12293. Laws 1915, § 12295. 58 Jud. Act, ch. 5, § 27 ; Comp. Laws 1915, § 12294. 410 Contempt § 19 moneys are to be paid into the treasury of the county in which the bond was taken, to the credit of the general fund.60 § 20. Actions against officers for taking insufficient sure- ties. If, on the return of an execution issued upon any judg- ment obtained on a bond taken on the arrest of a defend- ant, it appears that the sureties therein were, at the time of taking them, insufficient, and that the officer receiv- ing them had reasonable ground to doubt their suffi- ciency, he will be liable in an action on the case to the party aggrieved, who may have prosecuted the suit, for the amount of the judgment recovered by him and for his costs and expenses in the suit; or, if the suit was brought by the attorney general or a prosecuting attor- ney, an action on the case may in like manner be brought by them in the name of the people of this state for the amount of the judgment so recovered, and the same dis- position of the moneys collected in such action against the officer is required to be made as in the case of moneys collected upon the bond.®^ § 21. Duty of officer as to custody. Whenever an officer is required to keep any person arrested upon an attachment in actual custody and to bring him personally before the court, the inability, from sickness or otherwise, of such person to attend the court personally will be a sufficient excuse for not bringing him before the court; and no officer is required, in any case, to confine a person arrested upon an attachment to answer for misconduct in prison, or otherwise to re- strain him of his personal liberty, except so far as is eojud. Act, ch. 5, S29; Coinp. 61Jud. Aet, ch. 5, §30; Comp. Laws 1915, § 12296. Laws 1915, § 12297. § 22 Contempt 411 necessary to secure his personal attendance.^^ When a defendant is in custody by virtue of an attachment for the non-payment of costs, he will be entitled to the liberty of the jail limits, which are co-extensive with the limits of the county, upon executing a bond to the sheriff and his assigns, with one or more sufficient sureties who are inhabitants and householders of the county, in a penalty not less than double the amount directed to be levied by the attachment.^' § 22. Review of judgment. The statute is mandatoiy that no court or officer, on the return of any habeas corpus or certiorari, shall have power to inquire into the justice or propriety of any commitment for contempt made by any court, officer or body according to law and charged in the commitment; but the constitution of the state vests in the supreme court a general superintending control over all inferior courts, with power to issue writs of error, habeas corpus, mandamus, quo warranto and other original and reme- dial writs and to hear and determine the same, and, un- der this provision of the constitution, that court has authority to inquire into the justice or propriety of pro- ceedings in contempt, whether before or after commit- ment, but only so far as to ascertain whether the court or officer has jurisdiction and is proceeding according to law. If the court or officer has jurisdiction and is proceeding according to law, the supreme court can go no further. Commitments for contempts cannot be im- peached for mere irregularity. The attack upon a judg- ment for contempt can go no further than to the power of the court to act in the given case. But the question of jurisdiction necessarily involves an inquiry whether the conduct alleged was in fact a contempt of the court 62Jud. Act, ch. 5, §31; Comp. 63 . J ml. Act, ch. 25, §§22, 23; Laws 1915, §12298. Comp. Laws 1915, §§12289, 12290. 412 Contempt § 22 and committed under circumstances which authorize the court to proceed to punishment therefor; and it also in- volves the question whether the court is proceeding in the manner prescribed by law.^* But it is not for an ap- pellate court to determine the amount of the punishment if it is not in excess of that provided by law, and it will not review the evidence to determine whether the pun- ishment should have been less.®^ An order refusing a petition for the punishment of a sheriif for contempt in omitting the performance of a duty is not reviewable by the supreme court on certiorari, as such order is not regarded as a final judgment upon any right which the relator had to proceed for himself.^® An order committing a defendant for contempt in re- fusing to pay temporary alimony is appealable,^' but it has been held that the regularity of such an order will not be reviewed on an application for a habeas corpus, if it is regular on its face.^^ So, an order adjudging a defendant guilty of contempt in violating an injunction and awarding a sum of money to the opposite party is final and appealable.^* So, also, is an order adjudging one who has been illegally appointed a receiver in a chancery case guilty of contempt in disobeying an order of the court requiring him to restore to the defendants in the case all things that have come to his hands as re- ceiver.'" The writ of prohibition is a proper remedy to deter- mine the jurisdiction of the court to punish for contempt 64 In re Wood, 82 Mich. 75; Scott 67 Ross v. Ross, 47 Mich. 185; V. Chambers, 62 Mich. 532; Turner Haines v. Haines, 35 Mich. 138. V. Smith, 90 Mich. 309; Bagley v. 68 In re Bissell, 40 Mich. 63. Scudder, 66 Mich. 97; Swett v. 69 People v. Simonson, 9 Mich. Thorkildsen, 115 Mich. 314. 492; Romeyn v. Caplis, 17 Mich. 66 In re McHugh, 152 Mich. 505. 449. 66 Schwab V. Coats, 44 Mich. 463; 70 People v. Jones, 33 Mich. 303. Rasch V. Sheppard, 105 Mich. 667; Montgomery v. Muskegon Booming Co., 104 Mich. 411. Continuances 413 where the accused makes no attack upon the form of the proceedings or the sufficiency of the papers, but denies that the court had any jurisdiction of the proceedings.'^ Mandamus or certiorari will not be granted prior to a final determination of the proceedings/^ nor unless the proceedings were without jurisdiction or otherwise vio- lated the substantial rights of the accused.'^ § 23. Effect of conunitinent on rights of party. As an effect of the contempt, the guilty party cannot, in general, apply to the court for a favor while he is in contempt. He must purge his contempt, by complying with the former order of the court, and until he does this, the court will not grant an application in his favor which is not a matter of strict right.'''* Parties in con- tempt are, however, sometimes allowed to make appli- cations to the court for favors, notwithstanding their contempt; but in such cases the application will only be granted on condition of purging the contempt, by com- plying with the former order of the court. CONTINUANCES § 1. Historical. § 2. Source of power. § 3. How effected. § 4. Necessity for writing and filing of motion. § 5. Affidavit and grounds. § 6. Affidavits to oppose motion. § 7. Time for motion. § 8. Determination of motion and order. § 9. Eights of parties when continuance granted upon terms. § 10. Continuances by consent. Cross-Eeferences: Garnishment (continuance of garnishment proceed- ings); Mandamus; E^ror, Writ of (review by writ of error). 71 Nichols V. Judge of Superior Judge, 172 ^Tich. 660. Court, 130 Mich. 187. 74 Peltier v. Peltier, Har. 19; Mc- 72 Toepel V. Wayne Circuit Judge, Clung v. McClung, 40 Mich. 493. 138 Mich. 302; In re Smith, 144 See Atchison, T. & S. F. R. Co. v. Mich. 39. Wayne Circuit Judge, 60 Mich. 232. 73 Lake v. Houghton Circuit 414 Continuances § 1 § 1. Historical. By reason of the modifications in the early common law practice which the evolution of the modern proce- dure has effected, the word, "continuance," is under- stood in a slig-htly different sense from that which for- merly attached to it. Under the ancient practice, as has been already observed, the pleading and other steps in the progress of a cause took place in the actual presence in court of the parties, instead of, as at the present time, being taken, although with the theoretical, yet mostly without the actual, presence of the parties in court, either in person or by attorney. Even under the former prac- tice, however, the parties were not incessantly in court from the beginning to the termination of a suit, but for certain purposes the law allowed the proceedings to be adjourned or continued over from one term to another or from one day to another in the same term. When this happened, an entry of such adjournment to a given day and of its cause was made on the record, and by that entry the parties were also appointed to re-appear at the given day in court. Such adjournment was called a ** continuance." Thus, the award of a mode of trial on an issue of fact and also the adjournment of the par- ties to a certain day to hear the decision of the court on an issue of law were each of them continuances, and were entered as such on the roll; and, if any interval or interruption took place without such an adjournment duly obtained and entered, the chasm thus occasioned in the progress of the suit was called a "discontinuance," and the cause was considered out of court and was not allowed afterwards to proceed.^ As the parties now are generally not actually present in court (although the- oretically supposed to be) except only at the hearing of the cause, the term, "continuance," has come to be ap- plied merely to tlio post])()nemont of the hearing and to 1 Stei.li. PI. 60. § 5 Continuances 415 signify such postponement. Adjournments of the court from day to day during the progress of a trial are not continuances that must be stated in the record.^ § 2. Source of power. The power to continue a cause is not one that must be expressly conferred, but is inherent in every court. It is incident to the power to hear and detemiine.* § 3. How effected. A continuance may be effected either (1) by the order of the court entered on special motion, or (2) on the stipulation of the parties, or (3) by the fact that at the end of the tenn the cause remains undisposed of, in which case no formal order of continuance is required to be entered. Courts rarely order causes continued against the dissent of all the litigants, but there is no doubt that the jjower exists. § 4. Necessity for writing- and filing- of motion. Motions for continuance are expressly excepted from the rule requiring special motions to be in writing, signed by the attorney or counsel of the party in whose behalf they are made and filed in the office of the clerk of the court.* § 5. Affidavit and grounds. A motion for a continuance must be supported by af- fidavit showing the ground upon which it is based. The ground most frequently urged in practice is the absence of a material witness.^ When this ground is relied upon by a party, the affidavit should show (1) that the absent witness is a material witness, witiiout whose testimony 2 The Milwaukee v. Hale, 1 Dong. * Cir. Ct. Rule 15, § 1. ;{06. 5 See Roney v. Healy, 170 Mioh. 3 Caswell V. Ward, 2 Doug. 374. 46. 416 Continuances § 5 the party cannot safely proceed to trial,^ (2) that the party has used due diligence to procure the presence of such witness at the trial' and (3) that the presence of such witness can be secured for the trial at the time to which it is sought to have it postponed.^ And, on a second application by a party for the continuance of a cause, the party so applying is required to state, in ad- dition to the usual requisites, the facts which he expects to prove by the absent witness and, with particularity, the diligence he has used to procure his attendance; and, in case it is admitted by the opposite party that the wit- ness named would, if placed on the stand, testify as stated in such affidavit, the motion for a continuance will be denied, unless the court, for the furtherance of justice, deems a continuance necessary.® The fact that the absent witness lives in another state so that he cannot be subpoenaed is material.^" A counter- affidavit showing that the alleged absent witness is the husband of plaintiff who does not consent to his giving testimony against her is not ground for denying the mo- tion where it is not shown but that the husband is com- petent as coming within exceptions in the statute as to his competency.^^ 6 If witness is incompetent ex- evidence is in, except the testimony cept as to facts admitted, a continu- of defendant himself, and his attor- ance should not be granted. Meyer ney was not sure defendant would V. Knott, 137 Mich. 714. be present the next day. Bennett 7 In re MeNamara's Estate, 154 v. Denton, 194 Mich. 610. Mich. 671, 675. 9 Cir. Ct. Rule 41, §1; McNaugh- When a party neglects to subpoena ton v. Evert, 116 Mich. 141. a witness, but relies upon his prom- However, such an admission as to ise to attend, the party has not used what the witness would testify to, due diligence and is not entitled to as ground for denial of the motion, a continuance on account of the ab- applies only to a second motion for sence of such witness. See Leach v. a continuance. Gerkin v. Brown & Detroit Electric Ry., 125 Mich. 373. Sehler Co., 177 Mich. 45, 52. 8 Rex v. D'Eon, 3 Burrows 1513, lODering v. Detroit United Ry., 1 W. Bl. 510. 193 Mich. 238. It is proper to refuse a continu- H Snyder v. Berrien Circuit ance until the next day where all the Judge, 176 Mich. 546. § 5 Continuances 417 There are also other grounds upon which continuances are occasionally granted, such as the inability, because of serious illness, of the party's attorney to attend the trial,^'^ but not the absence of a party's attorney on pro- fessional business ^' or his engagement before a referee." The jjublication of a libel immediately preceding the term with intent to prejudice the jury has been held a good ground for a continuance." So, also, the arrest of the party when on the way to the trial.^® So, also, the absence of a judicial document material to the party, without which he cannot safely go to trial.^'^ So, also, an amendment of the pleadings whereby the issue is materially changed, is ground,^' although it is otherwise where the amendment merely adds a formal allegation ^' or conforms the pleadings to the proof where no injury is shown. ^'^ Form of Affidavit in Support of Motion for Continuance (Title of court and cause.) County of , ss. C. D., the above-named defendant, being duly sworn, deposes and says that he has fully and fairly stated the facts in this cause to K. L., his counsel therein, who resides at ; that he has a good and substantial defense upon the merits thereof, as he is advised by his said counsel upon such statement made as aforesaid and verily believes; that he has also fully 12 Myers v. Trice, 86 Va. 835. Washington Ins. Co., 79 Mich. 187 13 Jackson v. Wakeman, 2 Cow. Lester v. Thompson, 91 Mich. 245 (N. Y.) 578. Leonard v. Leahy, 169 Mich. 406 14 Ward V. Euckman, 23 How. Pr. Gerkin v. Brown & Sehler Co., 177 (N. Y.) 330. Mich. 45, 4 N. C. C. A. 254; Lar- ISGrah. Prac. 286, 287; Rex v. son v. Feeney, 196 Mich. 1; Ander- Gray, 1 Burrows 510; Coster v. son v. Ann Arbor R. Co., 187 Mich. Merest, 7 Moore 87, 3 Brod. & B. 211. See also Wellman v. O'Con- 272. nor-Martin Co., 178 Mich. 682; 16 Solomon v. Underbill, 1 Camp. Paskvan v. Allouez Min. Co., 185 229. Mich. 329. 17 Mackenzie v. Hudson, 1 Dowl. 19 Milliken v. City of St. Clair, & R. 159. 136 Mich. 250. 1* Ruscyk V. Detroit United Ry., 20 Crane Lumber Co. v. Bellows, 180 Mich. 399; Jennings v. Sheldon, 116 Mich. 304. 53 Mich. 431 ; Coryeon v. Providence- 1 Abl)ott— 27 418 COXTINUANCES § 5 and fairly disclosed to liis said counsel the facts which he expects and believes he will be able to prove by W. S., a witness for this deponent in said cause, and that the said W. S. is a material witness for this deponent therein, as he is advised by his said counsel, upon such statement made as aforesaid and verily believes; and that he cannot safely proceed to the trial of said cause without the testimony of said W. S., as this deponent is also advised by his said counsel upon such statement made as aforesaid and verily believes. Deponent further says that (here state fully the diligence used to discover the witness and to procure his attendance, and the cause of his non-attend- ance, if known ; and, on a second application for a continuance, the party must state the facts wliich he expects to prove by the absent witness and, with particularity, the dUigenee which he has used to procure his attend- ance.) And this deponent further says that he expects and believes that he will be able to secure the attendance of said witness at the term of this court, or his testimony by deposition; and that this application for a continuance is not made for the purpose of delay merely, but for the pur- pose of obtaining a fair and impartial trial upon the merits. Subscribed, etc. C. D. § 6. Affidavits to oppose motion. Counter affidavits may be read in opposition to a mo- tion for a continuance, but, unless they are such as to arouse a suspicion that the motion is made for the mere purpose of delay, the continuance will be granted upon the ordinary affidavit.^^ § 7. Time for motion. A motion for a continuance should be made, if possible, on the first day of the term. If made after the first day, it will not be heard unless a sufficient excuse be shown for the delay.^^ § 8. Determination of motion and order. The disposition of a motion for the continuance of a cause is a matter which lies within the discretionary- power of the court, whose action in that respect will not 21 Ogden v. Payne, 5 Cow. (N. Y.) Naughton v. Evert, 116 Mich. 141, 15; Pulver v. Hiserodt, 3 How. Pr. 143. (N. Y.) 59; Hooker v. Rogers, 6 22 Cir. Ct. Eule 41, § 1 ; Schurtz v. Cow. (N. Y.) 577. "It is not usual Kelly, 119 Mich. 383. to permit a counter showing." Mc- § 9 Continuances 419 be reviewed unless in case of manifest abusc.^^ The ex- ercise of discretion will be more closely scrutinized, how- ever, where a continuance has been refused than where it has been granted,*^* and the cases are rare in which the granting of a continuance has been held to constitute an abuse of discretion. Within these limits, also lies the matter of imposing terms upon granting a continuance. As a general rule, the court may impose such terms as, under the circum- stances, are just and reasonable ; ^^ but, in some cases, it would be an abuse of discretion to impose terms, while in others it would be an abuse not to impose them. A postponement of a few days instead of over the term has been held an abuse of discretion where sufficient time was not granted to meet the amendment of the pleading with proof.^^ Form of Order for Continuance (Title of court and cause.) 'On reading and filing afiidavit, and on motion of K. L., attorney for de- fendant, it is ordered by the court now here that this cause be, and it hereby is, continued to the next term of this court for trial, upon condition that the said defendant pay to the said plaintiff his costs of preparing for the trial thereof at the present term of this court, on taxation thereof, in- cluding an attorney fee of dollars. §9. Rights of parties when continuance granted upon terms. If a continuance be granted on condition of the pay- ment of costs, which, in practice, is the usual condition, 23 McNaughton v. Evert, 116 Mich. Christopherson v. Metropolitan Life 141; Eoney v. Healy, 170 Mich. 46, Ins. Co., 165 Mich. 793 (Judge 56; Winldcmeir v. Daiber, 92 Mich. Moore dissenting in opinion). 621 ; Jenning v. Sheldon, 53 Mich. 24 For illustration of refusal of 431; Bussey v. Bussey, 71 Mich. continuance as reversible error, see 507; Ogden v. Gibbons, 5 N. J. L. Bering v. Detroit United Ey., 193 611. Mich. 238. Discretion in refusing continuance 26 McDonald v. Weir, 76 Mich, to enable defendant to perfect cer- 243. tification of depositions of nonresi- 26 Gerkin v. Brown & Sehler Co., dents held properly exercised in 177 Mich. 45, 4 N. C. C. A. 254. 420 Continuances § 9 the party on whom such payment is imposed is not com- pelled absolutely to accept the continuance on such terms, but may, if he prefer, rather than to pay the costs, waive the continuance altogether.'^"'' But he should make his waiver immediately after the continuance is granted; otherwise he will be deemed to have accepted it upon the terms imposed and will become subject absolutely to compliance with them.^* In such case, the party in whose favor costs are granted on the continuance of a case may, on the refusal of the opposite party to pay them, move either to vacate the order granting the con- tinuance or for an attachment to compel the payment.'^® When a continuance is granted on the payment of costs, such costs may be taxed summarily by the court, and, on being taxed, must be paid on demand of the party, his agent or attorney; and, if not so paid, on affidavit of the fact, the continuance may be vacated or the court may grant an attachment for the costs with the accruing costs.^" § 10. Continuances by consent. Causes are often continued by stipulation between the parties or their attorneys, as well as upon motion. When this is done, the stipulation, if not made in open court, should be in writing. ^^ It may provide that the con- tinuance be without costs to either party, or that it be upon the payment of costs by one party or the other or upon such other terms and conditions as the parties agree upon. Form of Stipulation for a Continuance (Title of court and cause.) It is hereby stipulated and agreed by and between the above-named par- 27 People V. Wayne Circuit Judge, 29 Barney v. Love, 101 Mich. 543. 40 Mich. 244. 30 Cir. Ct. Rule 41, § 2. 28 Barney v. Love, 101 Mich. 543. 31 Cir. Ct. Rule 4. Convenience of Witnesses 421 ties, by their respective attorneys, that this cause be, and the same hereby is, continued until the next term of this court. Dated, etc. J. K., Attorney for Plaintiff. K. L., Attorney for Defendant. CONTRACTS Pleading contracts (see Pleading) is somewhat changed by the new rules of court as to pleading per- formance of conditions precedent (Cir. Ct. Rule 21, § 5, and see Pleading) and in general by the Judicature Act simplifying pleadings. Actions must be brought there- on within the statutory limitation (see Limitation of Actions), unless there is a valid provision in the con- tract itself fixing a different period of limitation (see Limitation of Actions). Joinder of counts (see Joinder an*d Splitting of Causes of Action) is now more liberally authorized, due to the Judicature Act. The form of action on contracts is assumpsit (see Actions; Assump- sit). Attachment is authorized in certain cases although the debt is not due (see Attachment), and the same is true in case of garnishment (see Garnishment). Agree- ments as to proceedings in a cause must be in writing (see Agreements, etc.) As to declaration of rights aris- ing under contracts, see Judgments. CONTRADICTORY STATEMENTS See Witnesses. CONTRIBUTION See Executions. CONVENIENCE OF WITNESSES See Change of Venue. 422 Conversion CONVERSION See Trover. CONVICTION See Witnesses (cross-examination as to). CORONERS At the general election in every organized county in the state, two coroners are elected for the term of two years. They are required to give bond to the people of the state in a penal sum, and with sureties, to be ap- proved by the proper authority. The condition of the bond is in substance the same as that of the sheriff's bond, varying only in the description of the office.^ When there is no sheriff or under sheriff in the county, the judge of the circuit court should designate one of the coroners to perform the duties of sheriff. The cor- oner so designated thereupon becomes vested with the same powers, and is liable in the same manner, as a sheriff, until a sheriff is elected and qualified, and has the custody and control of the jail and the prisoners therein. If the sheriff, for any cause, is committed to the jail, the coroner living nearest the jail is keeper thereof during the time the sheriff is a prisoner therein.^ If a sheriff is interested in any suit, any coroner with- in his county may serve and execute any order, process or any other paper in the cause, and has the same powers and is subject to the same liabilities as sheriffs in sim- ilar cases.* For all services rendered by them, coroners are en- titled to the same fees as are allowed by law to sheriffs for similar services. IHow. Stat. (2nd ed.) 1252; 1252, 1297; Comp. Laws 1915, Comp. Laws 1915, §2470. As to §§2470,2512. ■who shall approve the bonds required 2 How. Stat. (2nd ed.) 1253; to be furnished by the coroners of Comp. Laws 1915, § 2471. any county, see How. Stat. (2nd ed.) 3 See Sheriffs. Corporations 423 CORPORATIONS Cross-Beferences: Stockholders; Confession of Jiidgment; Garnish- ment; Judges (effect of judge being stockholder in) ; Mandamus. Scattered through the Judicature Act and the rules of court are many special provisions relating to the proce- dure where a corporation is involved or is a party to an action. So there are many provisions specially applica- ble to foreign corporations. For such injuries as cor- porate bodies are in law capable of sustaining, they are entitled to the same remedies by action as natural per- sons. This right is not only conferred by the constitu- tion upon corporations created under the laws of this state, but also upon foreign corporations created by the laws of any other state or country, subject to certain re- strictions.^ Corporations cannot sue or defend otherwise than by attorney, which attorney at common law must have been appointed under their common seal. In this state, however, an attorney may be appointed by parol as in ordinary cases.*^ It is not within the scope of this work to consider in detail when stockholders may sue in behalf of the cor- poration, when the corporation is a necessary defendant, etc., but reference should be made to standard works on the law of corporations.^ Actions by or against corporations are commenced in the same manner as in case of actions by or against natural persons, i. e., by summons, capias, declaration or attachment.* There are, however, particular provisions governing corporations as to who may be served with process.^ In regard to pleading, in actions by or against any corporation, foreign or domestic, it is not necessary to 1 Const. Art. XII, sec. 2. 4 See Commencement of Ac- 2 City of Detroit v. Jackson, 1 tions; Attachment, § 4. Doug. 106. 6 See Commencement of Ac- 3 See Fletcher 's Cyc. Corp. TIONS, I. 424 Corporations recite in the declaration the act or acts of incorporation, or the proceedings by which such corporation was created, or to set forth the substance thereof, but it shall be sufficient to aver that such plaintiff or defendant ''is a corporation organized and existing, under, and by virtue of the laws of the state, or country, naming it, where such plaintiff or defendant was incorporated."® Under an earlier statute, it was held that the general allegation that the plaintiff is a corporation under the laws of the state, was a sufficient averment of corporate existence.' In suits brought by or against any corpora- tion, foreign or domestic, it shall not be necessary to prove on the trial of the cause, the existence of such cor- poration, unless the defendant shall have denied the same under oath in his plea or answ^er.* As to proving incorporation, the Judicature Act pro- vides that "in any suit or proceeding, civil or criminal hereafter instituted in any of the courts of this state, wherein it shall become material or necessary to prove the incorporation of any company or corporation, or the existence of any joint stock company or association, whether the same be a foreign or domestic coiiDoration, company, or association, evidence that such corporation, company, or association is doing business under a cer- tain name shall be prima facie proof of its due incorpora- tion or existence pursuant to law, and of its name. ' ' ® 6 Jud. Act, ch. 14, §7; Comp. prima facie evidence of its due in- Laws 1915, § 12459. corporation. Imperial Curtain Co. 7 Palmiter v. Pere Marquette Lum- v. Jacob, 163 Mich. 72. In this case l)er Co., 31 Mich. 183. the court said: "The statutes with 8 Jud. Act, ch. 14, §8; Comp. reference to foreign corporations Laws 1915, § 12460. were not made merely for the pur- 9 Jud. Act, ch. 17, §47; Comp. pose of preventing foreign corpora- Laws 1915, § 12535. tions from coming into Michigan and This section applies equally to for- making contracts here, but were eign and domestic corporations, and passed principally for the purpose of the fact that a concern is doing preventing foreign corporations from business under a corporate name is carrying on their business in this COKPORATIONS 425 Executions against corporations, when levied upon any corporate property, are levied in the same manner as other executions are levied, except in cases otherwise provided by law,^° as in case of levy on corporate shares." Information in the nature of a quo warranto against any corporate body is expressly provided for by statute,^^ as is the voluntary dissolution of corporations and the winding up of corporations whose terms have expired. ^^ Ejectment against a domestic corporation after the ex- piration of its charter is expressly provided for by the Judicature Act.^* A foreign corporation created by the laws of any other state or country, may prosecute in the courts of this state, in the same manner as corporations created under the laws of this state, upon giving security for the payment of the costs of suit, in the same manner that non-residents are required by law to do.^* But when, by the laws of this* state, any act is forbidden to be done by any cor- poration, or by any association of individuals, without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into in consideration of such act.^'' state without subjecting themselves sions and thereby acquiring author- to certain liabilities and obliga- ity to transact business in t)ns state, tions. ' ' upon the same footing as domestic lOJud. Act, ch. 23, §41; Comp. corporations, with the same right to Laws 1915, § 12856. prosecute and defend actions in the 11 See Executions. courts of this state and to enforce 12 See Quo Warranto. their contracts and use the remedies 13 Jiid. Act, ch. 40, §1; Comp. authorized by law as are possessed Laws 1915, § 13563 et seq. by such domestic corporations. Stack 14Jud. Act, ch. 29, §§58, 59; v. Detour Lumber & Cedar Co., 151 Comp. Laws 1915, §§ 13225, 13226. Mich. 29; Lsle Royale Land Cor- 15Jud. Act, ch. 12, §18; Comp. poration v. Osmun, 76 Mich. 162. Laws 1915, §12369. 16 Jud. Act, ch. 12, §19; Comp. The statute puts foreign corpo- Laws 1915, §12370. rations, complying with its provi- This section, instead of rejecting 426 Corporations Foreign corporations may be sued in this state, and the venue of such actions is fixed by the Judicature Act." However, it is held that jurisdiction over a foreign cor- poration not engaged in local business cannot be acquired by serving the manager of the company who is casually in the state and not as the representative of the corpora- tion.^^ COSTS § 1. Origin of right to recover. § 2. Nature of and necessity for judgment. § 3. When plaintiff may recover. § 4. Limiting to amount of damages. § 4a. Double costs where affidavit of merits not made in good faith. § 5. When defendant may recover. § 6. One-half additional costs. § 7. How awarded in case of several issues. § 8. In civil suits in name of people. § 9. Wliat allowed in addition to disbursements. § 10. BID of costs. §11. Affidavit and certificate. § 12. By whom may be taxed and notice thereof. § 13. Taxation. § 14. Appeal from taxation. § 15. Payment and collection. Cross-Eeferences: Security for Costs; Motions, etc. (motion costs); Tender (effect on costs); Payment Into Court; Offer of Judgment; Error, Writ of (costs on writ of error); Supreme Court; Mandamus; Foreclosure by Advertisement; Justices of the Peace (costs where action transferred or appealed to circuit court) ; Garnishment; Defaults. Costs in particular actions or proceedings, see Ejectment, Certiorari, Mandamus, Garnishment, Supplementary Proceedings, Attachment, or modifying the rule of comity, ex- forbidden by the laws of this state pressly. adopts the substance of that to do certain things, but only to rule, so far as the enactment extends. cases where such prohibition is gen- It applies only to acts which, by the eral, applying to all corporations laws of this state, are forbidden to and all associations of individuals in be done "by any corporation or as- this state." Thompson v. Waters, 25 sociation of individuals, without ex- Mich. 235. press authority of law. It does not 17 See Venue. apply at all to cases where only 18 Matthews v. Montreal Min. Co., some particular corporation, or even 183 Mich. 541. a particular class of corporations, is § 2 Costs 427 ETC. Costs on imrtieular motions, see New Trial, Defaults, Attach- ment, ETC. § 1. Origin of right to recover. At common law, if the judgment was for the plaintiff, it was also considered that the defendant be "in mercy" (in misericordia), — that is, be amerced or fined for his delay of justice, — and, if for the defendant, that the plaintiff be ''in mercy" for his false claim (pro falso clamore suo).^ But the fine thus laid upon the van- quished party went not to the victor, but to the king, and was therefore not at all regarded as an indemnity to the prevailing party for the expenses incurred in se- curing his legal remedy or obviating an unjust claim, but rather as a punishment to the defeated party for his un- lawful conduct. Costs eo nomine were not given except by virtue of statutory provision, though for some time, in actions where damages were given, costs were in real- ity considered and included in the quantum of damages; but, because the damages were often inadequate to in- clude the plaintiff's expenses, the statute of Gloucester^ ordered costs as such to be also added. No costs, how- ever, were allowed to the defendant in any shape until later statutes ^ gave to the defendant, if he prevailed, the same costs as the plaintiff would have been allowed if he had recovered.* § 2. Nature of and necessity for judgment. Costs, not being given at common law, are not recov- erable in any instance unless authorized by statutory provision.^ In cases where costs are authorized, they 13 Cooley's Bl. Comm. 398, 399; 5 Booth v. McQueen, 1 Doug. 41; Steph. PI. 137. Tolford v. Church, 66 Mich. 431; 2 6 Edw. I, ch. 1, sec. 2. Jeffrey v. Hursh, 58 Mich. 247; Ap- 3 23 Hen. VIII, ch. 15; 4 Jac. I, lin v. Baker, 84 Mich. 113; Hester v. ch. 3; 8 & 9 Wm. Ill, ch. 11; 4 Park Com'rs of City of Detroit, 84 Anne, ch. 16. Mich. 450; Black v. Carpenter, 104 4 3 Cooley's Bl. Comm. 399. Mich. 286; Chesbrough Lumber Co. 428 Costs | 2 cannot be recovered, unless there be judgment for them, either as a specific sum named in the judgment entry or, as is more frequently the case, to be taxed at a later time.® When ascertained, they are an incident of the judgment. When taxed after the judgment has been entered, the action fixing them relates back to the judg- ment and they become a part of it.' Under the act which authorizes courts of record to make binding declarations of the construction of and rights arising under any written instrument, the allow- ance of costs is provided for.^ § 3. When plaintiff may recover. In the following cases, if the plaintiff recover judg- ment by default, upon confession, verdict or otherwise, in any action or proceeding at law, he is entitled, by statute, to recover his costs: 1. In all actions of ejectment or for waste or private nuisance, and in all proceedings to recover the posses- sion of land forcibly entered or forcibly or otherwise un- lawfully detained.^ 2. In all actions in which the title to lands or tene- ments, right of way or right by prescription or otherwise to any easement in any land, or to overflow the same, or to do any other injury thereto, has been put in issue by the pleadings or has come in question on the trial of V. Chippewa Circuit Judge, 190 7 Saunders v. Tioga Mfg. Co., 27 Mich. r,:>,9. Mich. 520; Whelpley v. Nash, 46 In proceedings by attachment, to Mich. 25; Hunt v. Middlesworth, 44 enforce or protect the civil rights or Mich. 448. remedies of parties, or for the non- 8 Pub. Acts 1919, No. 150. l)ayment of any sum of money, costs 9 Applies where navigable stream shall be awarded to be paid by the is obstructed. Gifford v. McArthur, offending party. Jud. Act, ch. 47, 55 Mich. 5.35. §28; Comp. Laws 1915, §13709. 6 Courtright v. Kirchner, 43 Mich. 411. Costs 429 the cause.^" In this class of actions it is immaterial that the recovery is less than $100." 3. In suits and proceedings upon writs of prohibition or informations in the nature of a quo warranto. 4. In all actions of replevin, and in all actions for the recovery of any debt or damages or for the recovery of penalties or forfeitures, in all cases where the court has exclusive or concurrent jurisdiction. This excludes the awarding of costs ordinarily where the recovery is less than $100, since generally such actions are within the exclusive jurisdiction of justices of the peace,^^ except in particular cases where it is othei*wise provided by lOOstrom v. Potter, 104 Mich. 115; Haney v. Munger, 104 Mich. 119; Sands v. Manistee Circuit Judge, 116 Mich. 9; Fisk v. Wabash R. Co., 114 Mich. 248. •The title is not in issue in tres- pass quare clausum under a general denial (Ostrom v. Potter, 104 Mich. 115), nor in an action against a rail- road company for negligently setting fire to the land of plaintiff where the company defended on the ground that it exercised due care, and did not claim any interest in the land (Fisk V. Wabash R. Co., 114 Mich. 248). Where plaintiff sues for per- sonal injuries caused by piling logs in a highway, as constituted by user, and the defense is a prescriptive right to so use it, a judgment for plaintiff entitles him to costs (Know V. MaeComb Circuit Judge, 78 Mich. 168). A general verdict where the declaration contains counts for tres- pass to realty and also to personalty warrants a judgment for costs, where the title to the realty was put in issue by a notice given with a plea of the general issue that defendant would show ownership in himself (Walters v. Teft, 57 Mich. 390). Plaintiff is entitled to costs in an action for the value of certain gravel taken by defendant, partly from plaintiff's city lot, and partly from an adjoining alley, between its cen- ter and the side adjoining the lot, where defendant claims a license to remove the gravel (Cuming v. Prang, 24 Mich. 514). 11 Koenigshof v. Spaulding, 59 Mich. 245; Druse v. Wheeler, 22 Mich. 439. 12 Reed v. Overlie, 192 Mich. 444 (double damages fixes amount); Strong V. Daniels, 3 Mich. 466; Ink- ster V. Carver, 16 Mich. 484; People V. Ingham Circuit Judge, 38 Mich. 243; Mandigo v. Mandigo, 26 Mich. 349; Strong v. Kennedy, 40 Mich. 327; Carter v. Snyder, 27 Midi. 484; Ladd v. Duncan, 23 Mich. 285. In replevin, where the plaintiff re- covers less than one hundred dollari for the value of the property, the defendant is entitled to costs. Berndt V. Ionia Circuit Judge, 111 Mich. 359; Kirby Carpenter Co. v. Trom- bley, 101 Mich. 447; Kittridge v. Miller, 45 Mich. 478. Compare Cald- well V. Bowen, 80 Mich. 382. 430 Costs § 3 statute or where the circuit court has jurisdiction even though the recovery is less than $100.^^ If the judgment fails to determine the amount of damages sustained, costs cannot be imposed on defendant under this sub- division.^* 5. In all actions where the plaintiff recovers less than one hundred dollars, if his claim, as established at the trial, exceeded one hundred dollars and was reduced by set-off,^^ or if the suit was one which could not have been lawfully commenced in justice's court. 6. In actions for trespass upon land or for taking per- sonal property, where the court before whom the case has been tried certifies in his minutes, or the jury by whom the damages are assessed find and return in their verdict, that such trespass was willful and malicious. 7. In actions for a false return or for any other mal- feasance or misfeasance by any ministerial or judicial officer in such capacity or office, except such actions against constables or other ministerial officers, touching their duties upon process issued in civil actions brought in a justice's court.^^ 13 Krzyszke v. Kamin, 163 Mich. after tender and after suit brought, 290; Mason v. City of Muskegon, the plaintiff will recover costs if the 109 Mich. 456; Eeath v. Western aggregate of his recovery and the Union Tel. Co., 89 Mich. 22; Gur- amount so paid exceeds one hun- ney v. City of St. Clair, 11 Mich. dred dollars. Thompson v. Town- 202; Ladd y. Duncan, 23 Mich. 285. send, 41 Mich. 346. 14 Hemingway v. Peter, 25 Mich. It is immaterial whether the judg- 202. ment is for damages only or in part 15 Ladd V. Duncan, 23 Mich. 285. also for a penalty, if the judgment Plaintiff will not be entitled to itself as distinguished from the re- costs on the claim that his recovery covery exceeds one hundred dollars, would have been more than one hun- Reed v. Overlie, 192 Mich. 444. dred dollars if it had not been re- 16 Jud. Act, ch. 47, §7; Comp. duced by set-off, where the reduction Laws 1915, § 13688. was by payment of a part of his de- Payment of claim before trial does n^and. Mandigo v. Mandigo, 26 not deprive "plaintiff of his right to Mich. 349; Strong v. Kennedy, 40 costs. E. B. Miller & Co. v. Olney, Mich. 327. 80 Mich. 293. But, if the payment was made Right to double or treble damages § 5 Costs 431 § 4. Limiting to amount of damages. In an action for assault and battery, false imprison- ment or malicious prosecution, or for slanderous words or for libel, or to recover damages occasioned by the erection of any dam upon the lands of the defendant for manufacturing or milling purposes and the flowing of the lands of the plaintiff, if the plaintiff recovers less than fifty dollars, he can recover no more costs than damages." § 4a. Double costs where affidavit of merits not made in good faith. By statute, if it appears on the trial to the satisfaction of the court, that an affidavit of merits made in an action on a contract or judgment to prevent a summary judg- ment or for the purpose of preventing a continuance, was not made in good faith but was made solely for the pur- pose of delay, the court shall award to the plaintiff in the judgment rendered therein double the amount of costs taxable in the cause." § 5. When defendant may recover. In all actions and proceedings in which the plaintiff would be entitled to costs upon a judgment rendered in his favor, if, after the appearance of the defendant, the plaintiff be non-suited, discontinue his suit or be non- prossed, or judgment pass against him on verdict or otherwise, or in case a plaintiff recovers judgment, but not enough to entitle him to costs, the defendant is en- titled to recover against the plaintiff his full costs, the judgment for which will have the same effect as other does not include right to double or ticc 's court, however, are not limited treble costs. Jud. Act, ch. 47, §14; by the provision stated in the text, Comp. Laws 1915, § 13695. but rest in the discretion of the 17 Jud. Act, ch. 47, §§ 8, 9; Comp. court. Evers v. Sager, 28 Mich. 47. Laws 1915, §§ 1.3689, 13690. 18 Jud. Act, ch. 18, §10; Comp. Costs in cases appealed from jus- Laws 1915, § 12582. 432 Costs § 5 judgments.^® When several persons are made defend- ants in any suit or proceeding, or in any action in which the plaintiff, upon a recovery, would be entitled to costs, and one or more of them is acquitted by verdict on the trial or by judgment upon motion to dismiss or by the plaintiff's discontinuing as to such defendant, every per- son so acquitted is entitled to recover his costs in like manner as if judgment had been rendered in favor of all the defendants.'^" But if such person be so acquitted in any action brought for the recovery of land or the jjossession thereof, or for nuisance, waste, trespass or trespass on the case for any non-feasance or misfeasance, and if the judge or court before whom such trial is had or such judgment given certifies in the minutes of the court that there was reasonable cause for making the person so acquitted a defendant in the action, then such person will not be entitled to recover costs, nor can costs be recovered against him.^^ And if, in any action founded upon a contract, the plaintiff fails to recover against one of several defendants on the trial, or if judgment on a motion to dismiss be rendered in favor of one of several defendants, or if, by the plaintiff's discontinuing as to such defendant, he be acquitted, such defendant will not be entitled to recover costs unless a certificate be given by the judge or court before whom the trial was had or the judgment given, and be entered in its minutes, that 19 Jud. Act, ch. 47, § 10 ; Comp. are not in such case in the discre- Laws 1915, § 13691 ; Strong v. Dan- tion of the court. Sherman v. Jos- iels, 3 Mich. 466; Inkster v. Carver, lin, 52 Mich. 474. 16 Mich. 484; Meyer v. Wood, 38 Where a case goes to trial and all Mich. 297; Dikeman v. Harrison, 38 of defendants are successful, each is Mich. 617; Stortz v. Ingham Circuit not entitled to full costs but only Judge, 38 Mich. 243; Berndt v. lo- one bill of costs is permissible, nia Circuit Judge, 111 Mich. 359; Black v. Carpenter, 104 Mich. 286. Eeed v. Overlie, 192 Mich. 444; Bry- 20 Jud. Act, ch. 47, § 11; Comp. an V. Smith, 10 Mich. 229. If plain- Laws 1915, § 13692. tiff discontinues his suit which was 21 Jud. Act, ch. 47, §12; Comp. appealed from justice's court, the de- Laws 1915, § 13693. fendant is entitled to costs. They § 6 Costs 433 such defendant was unreasonably and unnecessarily made a party to the action.^^ § 6. One-half additional costs. If judgment be rendered for the defendant upon ver- dict, motion to dismiss, non-suit, non-pros, discontinu- ance by the plaintiff or othei^vise in any action, cer- tiorari, writ of error or other proceeding, such defendant is entitled to recover the amount of his taxed costs and one half thereof in addition in the following cases: 1. In actions against public officers appointed under the authority of this state or elected by the people, or against any person specially appointed by law to ex- ecute the duties of such a public officer, for or concern- ing any act done by such officer or person by virtue of his office or for or concerning the omission by such of- ficer or person to do any act which it was his official duty to perform. 2. In actions against any other person for doing any act by the commandment of such officers or persons, or in their aid or assistance, touching the duties of such office or appointment. 3. In actions against any person for making any sale or doing any other act by authority of any statute of this state.^' 22Jud. Act, ch. 47, § l.'J ; Comp. son Circuit Judge, 157 Mich. 231. Laws 1915, §13694. 23 Jud. Act, ch. 47, §15; Comp. The right of a codefendant to Laws 1915, § 13696. costs as a condition of the case be- It has been held that where a ing discontinued as to him, as pro- party is entitled to double costs, it vided for by rule of court, may be is not necessary to have an entry waived by him by failure to made in the minutes of the court promptly urge the point; but plain- sjiecifying that the facts in said case tiff is liable for such costs although entitled him to such costs (People the court does not certify that his v. Wayne Circuit Judge, 14 Mich, joinder was unreasonable and un- 33) ; but the better and safer prac- necessary, since the general statute tiee is to enter a suggestion on th(- does not apply. Townscnd v. Jack- record. ] Ab})0tt— 28 434 Costs § 7 § 7. How awarded in case of several issues. When there are several issues in a cause and a ver- dict is rendered for the plaintiff on one or more of them and for the defendant on another, if the plaintiff obtains judgment upon the whole record, costs are awarded as follows : 1. When the substantial cause of action is the same in each issue, the plaintiff will recover costs on the issues which are found for him and will not be liable to the de- fendant for the costs of the issues which are found for the defendant. 2. When there are two or more distinct causes of action in separate counts, the plaintiff will recover costs on those issues which are found for him, and the defendant on those which are found in his favor.^* If judgment be recovered for the defendant on the whole record, the costs of the issues which are found for the plaintiff will not be allowed to either party.^^ And when judgment is rendered in favor of a defendant upon a motion to dis- miss one or more counts in the declaration and the plain- tiff has judgment on other counts on such motion, on verdict or by default, the defendant will be allowed his costs upon such judgment in his favor.'^^ § 8. In civil suits in name of people. In all civil suits and proceedings by or in the name of the people of this state, instituted by any officer duly authorized for that purpose, and not brought on the re- lation or for the use of any citizen or upon any penal statute, the people are liable for costs in the same cases and to the same extent as if the suit or proceeding were 24Jud. Act, ch. 47, §17; Comp. 25 Jud. Act, ch. 47, §18; Comp. Laws 1915, § 13698. Application, Laws 1915, § 13699. sec Frank v. Speed, 54 Mich. 241; 26 Jud. Act, ch. 47, §19; Comp. Besser v. Alpena Circuit Judge, 155 Laws 1915, § 13700. Mich. 631. § 9 Costs 435 instituted by an individual." When a suit or proceed- ing is instituted in the name of the people of this state on the relation of any citizen, the relator will be entitled to, and liable for, costs in the same cases and to the same extent as if the suit or proceeding had been instituted in his own name.^^ § 9. What allowed in addition to disbursements. In addition to the fees of officers, disbursements and witnesses in suits at law,^^ commenced or brought into the circuit court by ajjpeal or othei-wdse, costs are al- lowed to the prevailing party as follows: For proceedings before trial, in all civil cases, fifteen dollars; for the trial of any case, fifteen dollars; in all actions where a judgment is taken by default or on cog- novit, fifteen dollars; in all cases of special motions, such sum not exceeding fifteen dollars as the court deems just; for every term at which a cause is regularly on the calendar and not reached or is postponed, excluding that at which it is tried, five dollars, but no term fee will be allowed to any party for any term at which he was al- lowed a continuance fee; in all cases heard and deter- mined on appeal, the costs, or such part thereof as to the 27 Jud. Act, eh. 47, §25; Comp. to discharge a judgment for costs Laws 1915, § 1370G. against the state the same as against This statute does not allow costs an individual. Flint, etc., E. Co. v. in actions brought on any penal stat- Board of State Auditors, 102 Mich, ute. Courtright v. Kirchmer, 43 500. Mich. 411; People v. Auditor Gen- 28 Jud. Act, ch. 47, §26; Comp. eral, 38 Mich. 94. Laws 1915, § 13707. An action in the name of the peo- 29 Three dollar stenographer fee pie of the state to recover a penalty may be taxed. Jud. Act, ch. 47, against a foreign corporation for §1; Comp. Laws 1915, §13682. So doing business within this state with- may costs of transcript of stenogra- out filing articles of incorporation pher's notes, wliere desired for a new is within the exception in this stat- trial, bill of exceptions, or to remove ute. People v. Crucible Steel Co., the case to the supreme court. Jud. 151 Mich. 618. Act, ch. 47, §2; Comp. Laws 1915, Interest on costs may be required § 13683. 436 Costs § 9 court seems just in view of the particular circumstances of each case, may be awarded to either party; in all cases of certiorari to a circuit court, fifteen dollars. If a judg- ment on certiorari be reversed in part and aflfirmed as to the residue, costs are in the discretion of the court, and, in all cases, the party prevailing in the circuit court may tax, in addition to the costs so allowed him, such costs as he would have been entitled to tax had he pre- vailed in the court below and such costs as he paid on taking the appeal, if he was the appellant in the cause. ^° The words, '* prevailing party," as here used, refer to the parties who would be entitled to costs under the other provisions of the statutes relating to costs, and not to parties who, although they recover damages, are not given costs by such provisions.^^ § 10. BiU of costs. The first step to be taken in the proceeding to tax costs by the party to whom costs have been awarded by the judgment of the court is to prepare a bill of the items of the same for presentation to the taxing officer and to the adverse party. The bill of costs should contain an item of each charge or expense which it is proposed to tax, and not be made up of aggregate sums the component items of which are not distinctly specified.^** SOJud. Act, ch. 47, §4; Comp. Judge, 111 Mich. 71. Nor by the Laws 1915, § 13685. Term fees, see fact that the continuance was by Baxter v. Eockwell, 175 N. W. 387; consent without terms. Monroe v. Weber v. Wayne Circuit Judge, 162 Eogers, 1 Mich. N. P. 241. But Mich. 32. where a nonsuit entered at a previ- Right to tax two fees for proceed- ous term is set aside upon payment ings before trial, where a new trial of costs, and nothing further is done ifi granted, see MeGiloray v. Manis- with the case at that term, no term tee Circuit Judge, 146 Mich. 180. foe is allowable. Inkstcr v. Carver, The right to term fees is not af- 17 Mich. 64. fected by the fact that the court 's 31 Inkster v. Carver, 16 Mich. 484. business was such that it was appar- 32 Gene.see Coimty Sav. Bank v. cnt that the cause could not be Ottawa Circuit Judge, 54 Mich. 305. reached. Martin v. Wayne Circuit ^ 1 1 Costs 437 § 11. Affidavit and certificate. When there are charges in a bill of costs for the at- tendance of any witness or for copies or exemplification of documents or papers or for any other disbursements, except to officers for services rendered, such charges for witnesses will not be taxed without an affidavit stating the distance they respectively traveled and the days they actually attended, and such charges for copies will not be taxed without an affidavit that such copies were actu- ally and necessarily used or necessarily obtained for use, nor can such disbursements be allowed without an affi- davit specifying the items thereof particularly nor un- less they appear to have been necessary and reasonable in amount; and when in any case a party is entitled to charge witness' fees and his bill of costs contains an item or items for the attendance and travel of the party him- self as a witness, such item or items may be taxed upon affidavit that the party was in attendance upon the court for the time charged for the purpose of being sworn as a witness, and not to assist in the management of the cause, and that the travel was for the purpose of giving his evidence. And if, in the trial of a cause, the plain- tiff's claim has been reduced by set-off or any other fact appears which entitles either party to costs or to double costs, the judge holding the court will, on the applica- tion of either party, either before or after verdict, cause an entiy to be made in the minutes of the court, specify- ing that such fact appeared; and no evidence of such fact other than a certified copy of such minutes or the certificate of the judge who tried tlie case can lawfully be received by the taxing officer.^^ 33 Jud. Act, ch. 47, §§35, 36; a party as a witness may be taxed. Comp. Laws 191.'5, §§ 13716, 13717. Smith v. Smith, 146 Mich. 186. Entry must be applied for and Where a continuance is granted on made before judgment. Ramsay v. payment of all legal costs incurred Kittredge, 23 Mich. 488. for the term, the costs to which the On a proper affidavit, the fees of party is entitled arc those of the 438 Costs § 11 It has been held that an affidavit for the taxation of witnesses' fees for travel should show the residence of each witness as well as the other requisites, such fees being estimated from the residence of the witnesses, if within the state, or from tlie boundary line of the state which the witness passed in coming, if his residence be out of the state.^* If witnesses are made to attend in good faith and there is proof of their necessity, the fact that they are not called will not prevent taxation for their attendance, where the party had reason, from the state of the pleadings, to believe he required them. It, how- ever, is not enough merely that they were material, for it is not proper to accumulate too many witnesses on the same point. There should be an allowance for all that were actually necessary as the case appeared while they were retained, if they were called no sooner and kept no longer than the apparent necessity existed.^^ But where the bill of costs does not disclose such a large number of witnesses as to lead to an inference that witnesses were unnecessarily accumulated, and the affidavit states that they were in good faith made to attend, it cannot be said, in the absence of any counter-showing, that they were not deemed necessary and caused to attend in good faith.^^ Fees for the attendance of parties as witnesses are not covered by the ordinary affidavit of disbursements, but there should be a special affidavit showing that they at- tended in the capacity of witnesses and traveled as charged for that purpose, and not as parties to assist, by their counsel or otherwise, in the conduct of the cause.'' date of his accepting notice of taxa- Jud. Act, ch. 48, §3; Comp. Laws tion, the notice being given on the 191o, §13720; Ehle v. Bingham, 4 same day that the continuance was Hill (N. Y.) 595. granted, and do not include the fees 35 Gilbert v. Kennedy, 22 Mich. 5. of witnesses detained after that 36 Jeffery v. Hursh, 58 Mich. 247. date. Barney v. Love, 101 Mich. 37 Dickinson v. Seaver, 44 Mich. 543. 624, 633. 34 Jeffery v. Hursh, 58 Mich. 247 ; § 12 Costs 439 When it is sought to tax disbursements for taking care of attached property, an affidavit for that purpose is defective if it does not point out the names and services of the different persons to whom the plaintiff claims to have made the payments,^^ § 12. By whom may be taxed and notice thereof. The statute provides that costs in the several circuit courts and in municipal courts of record having civil jurisdiction may be taxed by any officer authorized to tax costs in the supreme court, by circuit court commis- sioners or by the clerks of the circuit and municipal courts respectively, and upon like notice as is required in the supreme court.^^ It is also provided by the statute that costs in the supreme court shall be taxed by one of the justices or the clerk thereof, or" by such officers as the supreme court shall by general or special order desig- nate for that purpose, and upon such notice to the oppo- site party as shall be prescribed by the general rules of the court." The rule of the supreme court upon this sub- ject is that costs shall be taxed by the clerk upon notice of not less than four days, and that, if the party upon whom such notice is served resides outside of the City of Lansing, the time of service of such notice shall be in- creased one day for every additional one hundred miles distance or fraction thereof between his place of resi- dence and the City of Lansing, but that no notice need be given of more than ten days. Such notice is required to be accompanied by a copy of the bill proposed to be taxed and the affidavits to be read in support thereof.*^ 38 Genesee County Sav. Bank v. 40 Jud. Act, ch. 47, §29; Comp. Ottawa Circuit Judge, 54 Mich. 305. Laws 1915, § 13710. 39 Jud. Act, ch. 47, § 30 ; Comp. « Sup. Ct. Rule 50. Laws 1915, § 13711 ; Cir. Ct. Rule The notice of taxation must be 65. served on the attorney rather than Taxation in supreme court, see the party (Green v. Kindy, 1 Mich. Supreme Court. N. P. 41), but is not invalid be- 440 Costs § 13 §13. Taxation. Every officer authorized to tax costs in any court for services rendered in any proceeding authorized by law is required to examine the bills presented to him for tax- ation, whether the taxation be opposed or not, and should be satisfied that the items charged in the bill are correct and legal. It is his duty to strike out all charges for sendees which, in his judgment, were not necessary to be performed.*^ The taxation of costs implies an estimate and allowance of items the amounts of which are fixed and certain or capable of being rendered so by calcula- tion or evidence, and is ministerial action rather than judicial. It involves to some degree the use of judgment and discretion, like that of auditing officers, but is noth- ing more than the exercise of a ministerial power." For this reason, the question of the correctness of the taxa- tion of costs cannot be viewed on a writ of error.** If the affidavit for the taxation of costs is in compli- ance with the statute in respect of fees for the attendance of witnesses, and there is no counter showing, the taxing officer must tax such fees ; " but items not specifically covered by the affidavit should be rejected.*^ Costs paid under an order of court during the progress of a cause, or in compliance with any statutory requirement, cannot be recovered back or taxed on the final disposition of the cause.*' cause served before judgment was v. Barber Asphalt Pav. Co., 192 entered on the verdict, such prema- Mich. 122. ture service being a mere irregular- 43 Abbott v. Mathews, 26 Mich, ity (Murphy v. Mulvena, 108 Mich. 176; People v. Jackson County 347). Sup'rs, 31 Mich. 116. 42Jud. Act, ch. 47, §34; Comp. 44 Abbott v. Mathews, 26 Mich. Laws 1915, § 13715. 176; Lorman v. Phoenix Ins. Co., 33 Under the Michigan statutes, in- Mich. 65. terest on costs from the date of the 45 Sherman v. Joslin, 52 Mich. 474. judgment until they arc taxed can- 46 Maynard v. Vinton, 59 Mich. not )>c allowed, even where a period 155. of years intervenes. City of Owosso 47 .Jeffery v. Hursh, 58 Mich. 246. § 14 Costs 441 § 14. Appeal from taxation. The taxation of costs by the clerk of the court is al- ways subject to re-taxation by the court on motion of either party. But on such re-taxation, no affidavit or objection which was not presented to the clerk will be heard or allowed by the court.*^ When a party appeals from the taxation of costs by the clerk to the circuit court, the party appealing should specially except in writing to such allowances or disal- lowances as he complains of, and the bill of costs should then go before the circuit judge on those exceptions only and on the showing and no other that was made before the clerk.*^ The case should not be remanded to the clerk for new action, but the taxation should be made by the court.^" Form of Affidavit on Motion for Re-Taxation of Costs •(Title of court and cause.) County of , ss. K. L., the attorney for the above-named defendant, being duly sworn, deposes and says that the bill of costs hereto annexed was served upon this deponent on the day of , A. D ; that, on the day of , A. D , he attended before , at the , pur- suant to the notice thereon indorsed, for the purpose of opposing the taxa- tion thereof; and that he then and there opposed said taxation and objected thereto upon the following grounds: (Here state the grounds of objection and the particular items objected to.) 48 Cir. Ct. Kule 65. And see Pat- 246, 263, explained in Niblock v. terson v. Calhoun Circuit Judge, 144 Saginaw Circuit Judge, 187 Mich. Mich. 416; Schmidt v. Wayne Cir- 423. cuit Judge, 136 Mich. 658. 49 Sherman v. Joslin, 52 Mich. 474. Where objections are made and 50 Hawkins v. Fuller, 62 Mich, defects pointed out, the party apply- 531. Court may permit a party to ing for a taxation should apply for withdraw his bill of costs for the a postponement, if he desires to rem- purpose of presenting a new one to edy the defects, or withdraw his bill the clerk. Niblock v. Saginaw Cir- and make a new application; and if cuit Judge, 187 Mich. 423. he fails or neglects to do so, it is too To review the taxation of costs by late to do so after the taxation, and the judge, mandamus is the proper the items objected to will stand re- remedy. Townsend v. .Tackson Cir- joctod. Jcffery v. Hursh, 58 Mich. cuit Judge, 157 Mich. 231. 442 Costs § 14 And this deponent further says that, notwithstanding his said objection, the costs were taxed as in said bill contained by the said Subscribed, etc. K. L. § 15. Payment and collection. The costs ordinarily become a part of the judgment and are collectible as a part thereof by an execution against property. Costs on a former trial cannot be set up in reduction of the recovery claimed on a new trial.^^ Where a continuance granted on condition of the pay- ment of costs has been waived, execution does not lie to enforce the order imposing costs,'^'' but where the party obtaining the continuance remains silent until after the taxation of the costs, he cannot thereafter contend that the right to a continuance was waived and therefore he should not be compelled to pay the costs." Where, in denying a motion for a non-suit for failure to pay costs, the trial court modified the order as to payment of costs within a limited time by authorizing the filing of a bond for past and future costs to be paid on the final disposi- tion of the case, the failure to pay the costs within the time limited did not give the order the effect of a final order nor exhaust the discretion of the trial court as to its modification." Payment of costs of a former trial or review may be required, in the discretion of the court, before a second trial is entered on." But it has been held that where a trial has begun, it is improper to refuse to allow defend- ant to introduce his defense because he refuses to pay his proportion of stenographer's fees." 61 Millikin v. Ferguson, 56 Mich. 55 Clark v. Bay Circuit Judge, 154 189. Mich. 48.3. 52 People V. Wayne Circuit Judge, 56 Wheaton v. Atlantic Giant 40 Mich. 244. Powder Co., 41 Mich. 718. 63 Barney v. Love, 101 Mich. 543. 64 Goldie V. Bay Circuit Judge, 155 Mich. 424. Courts 443 COUNTIES Cross-Be ferences: Venue; Change of Venue; Garnishment Execu- tions; Judges. Whenever any controversy or cause of action shall ex- ist between any of the counties of this state, or between any county and any individual or individuals, such pro- ceedings shall be had either in law or equity, for the pur- pose of trying and finally settling such controversy, and the same shall be conducted in like manner, and the judg- ment or decree therein shall have the like effect, as in other suits or proceedings between individuals and cor- porations.^ Service of process outside the county is pro- vided for by statute,^ as is the attachment of property outside the county.^ COUNTS * Counts in a declaration are the different parts there- of, each of which, if it stood alone, would constitute a ground of action (McDonald v. Hall, 193 Mich. 50, 53, and see Pleading). Joinder of counts in the declaration (see Joinder and Splitting of Causes of Action) are ex- pressly authorized and the authority to join enlarged by the Judicature Act. Election between counts is some- times ordered (see Pleading). COUNTY CLERKS See Clerks of Court; Mandamus. COURTS § 1. Definition. § 2. Nature of judicial power. § 3. In what courts judicial power vested. § 4. Courts of record and not of record. iJud. Act, ch. 20, §14; Conip. 2 See Commencement OF ACTIONS. Laws 1915, § 12750. 8 See Attachment. 444 Courts | 1 § 5. Courts of general and courts of special or limited jurisdiction. § 6. Jurisdiction. § 7. Where parties are non-residents or cause of action arose outside state. § 8. Actions against foreign corporations. § 9. General powers of courts of record. § 10. Terms of court. §11. Adjournments. § 12. Changing time or place. § 13. Proceedings on Sunday or legal holiday. § 14. Proceedings to be in English language. § 15. Seal of court. § 16. Eight of public to attend trials. § 17. Decisions as binding. Cross-Bcferences: Supreme Court; Circuit Courts; Probate Courts; Justices of the Peiace; Judges; Circuit Court Commissioners; Trial; EuLEs OF Court; Attorneys; Motions, Exiles and Orders; Contempt; Clerks of Court; Sheriffs. § 1. Definition. Courts are established in civilized society to admin- ister, in a judicial manner, in proper instances, the ap- propriate remedies which the law prescribes for the in- fraction of legal or equitable rights. The word ''court" is derived from the Latin cohors, cohortis, meaning an in- closed place. In connection with jurisprudence, it or- dinarily signifies an organization, created by public au- thority, and vested by law with the power to hear and decide causes according to legally established procedure, at times and places appointed by law. A court has also been defined as a tribunal established for the administra- tion of justice and composed of one or more judges, who sit for that purpose at fixed times and places, attended by proper officers;* also as the presence of a sufficient number of the members of a body in the government, to which the public administration of justice is delegated, regularly convened in an authorized place at an ap pointed time, engaged in the full and regular perform- 1 Mason v. Woerner, 18 Mo. 570. § 2 Courts 445 ance of its functions.^ The term * ' court ' ' is also used to signify the judge or judges themselves, when duly con- vened, in contradistinction from the jury, and also in contradistinction from the judge or judges at chambers or when not convened as a court. As used in the state constitution, the word *' courts" has been held to mean a permanent organization for the administration of jus- tice, and not a special tribunal provided for by law, that is occasionally called into existence by particular ex- igencies, and that ceases to exist with such exigency.' The Industrial Accident Board is not a court, and the Workmen's Compensation Act is not unconstitutional on the theory that it vests judicial power in the Industrial Accident Board.* § 2. Nature of judicial power. The judicial power which courts exercise belongs to one of the three branches into which, in modem discus- sion and practice in the most enlightened countries, the sovereign power is divided, namely, the legislative, the executive and the judicial. The legislative power is the power to make laws and to alter them at discretion; the executive power is the power to see that the laws are duly executed and enforced; and the judicial power is the power to constinie and apply the law when contro- versies arise concerning what has been done or omitted under it. Legislative power, therefore, deals mainly with the future, and executive power with the present, while judicial power is retrospective, dealing only with acts done or threatened, promises made and injuries suf- ered.^ The difference between the departments is that 2Bouvier Law Diet. tit. "(Joint"; Renaud v. Hi<{^ Court of Mediation, Wigbtnian v. Karsner, 20 Ala. 44G; 124 Mich. G18. Brumley v. State, 20 Ark. 77; Cyc. 4 Mackin v. Detroit Tiiukiii Axle Law Diet. tit. "Court." Co., 187 Mich. 8, 18, 26. aStreeter v. Paton, 7 Mich. 341; 5 Cooloy, Const. Law, 43, 44. Shurbun v. Hooper, 40 Mich. 503; 446 Courts § 2 the legislative makes, the executive executes, and the judiciary construes, the law.^ The powers of govern- ment, so organized into three distinct departments, are intended to be exercised without infringement by any one of them upon the province of either of the others. The distinction between judicial and political power is universally recognized in the jurisprudence both of Eng- land and this country, and, as thus distinguished, the matters which are of the judicial kind belong to the judi- cial department of the government, and those of a politi- cal nature belong to the other two and are not the sub- ject of judicial cognizance."'' Courts will not decide ques- tions which belong to policy rather than to law, and are political and not judicial.® They will not interfere with the legitimate discretion which belongs to the other de- partment of the government.® Nor will they tolerate in- terference with their powers by the other departments of the government. No court, in the exercise of its func- tions, can be lawfully subjected to the control or inter- ference of any executive or ministerial authority, nor receive directions for any purpose, ,except from such other courts as are authorized by the constitution to have '' superintending control over inferior courts." No court has a right to allow any other interference or to submit to it.i° The ex post facto laws, which the parliament of Great Britain claimed and exercised the power to pass under the denomination of ''bills of attainder" or "bills of pains and penalties" were legislative judgments, and 6 Wayman v. Southard, 10 Wheat. L. & P. Co. v. Sands, 95 Mich. 551. (TJ. S.) 1, 45. Courts have no power to review the 7 State of Georgia v. Stanton, 6 acts of the governor in removing an Wall. (U. S.) 50. oflScer for cause although the pro- 8 People V. Bennett, 29 Mich. 451. ceeding is quasi-judicial. Germaine 9 City of Detroit v. Hosmer, 79 v. Governor, 176 Mich. 585. Mich. 384; Morton v. Detroit, etc., lOAllor v. Wayne County Audi- R. Co., 81 Mich. 423; Citizens' E. tors, 43 Mich. 76. § 2 Courts 447 such acts, even if not expressly prohibited by the federal and the state constitutions, would be held invalid in this country, as being an attempted infringement by the legis- lative department upon the judicial power.^^ By the judicial power of courts is generally under- stood the power to hear and determine controversies be- tween adverse parties, and questions in litigation.^^ Dis- cretionary and judicial powers are often convertible terms and there are many acts requiring the exercise of judgment which may be fairly said to be of a judicial nature, and yet, in no sense, coming within the judicial power as applied to courts.^^ The broadest definition ever given to judicial power confines it to controversies between conflicting parties in interest.^* But the judi- cial power, even when used in its widest and least ac- curate sense, involves the power to hear and determine the matters to be disposed of, and this can only be done by "Some order or judgment which needs no additional sanction to entitle it to be enforced. It is the inherent authority, not only to decide, but to make binding or- ders and judgments, which constitutes judicial power. Therefore, no action which is merely preparatory to an order or judgment to be rendered by some different body can be properly termed '^ judicial." Thus, a master in chancery often has occasion to consider questions of law and of fact, but no one ever supposed him to possess judicial power. A jury in a court of record determines all the facts in the cause, but the judicial power is in the court which enforces the verdict by judgment. So, the llCalder v. Bull, 3 Dall. (U. S.) App. Div. 196; Musser v. Adair, 55 386. Ohio St. 466. 12 Maekin v. Detroit-Timkiu Axle 13 Daniels v. People, 6 Mich. 381 ; Co., 187 Mich. 8, 19; Daniels v. State v. LeClair, 86 Me. 522. People, 6 Mich. 381; Osborn v. 14 Lloyd v. Chambers, 56 Mich. United States Bank, 9 Wheat. (U. 236; De Camp v. Archibald, 50 Ohio S.) 738; Durham v. Lewiston, 4 Me. St. 618. 140; Walker v. Maxwell, 68 N. Y. 448 Courts § 2 judicial power is not exercised by a referee in determin- ing facts in a cause submitted to him, but by the court in giving judgment." And the power to take bail is not a judicial power, in the sense in w^hich the term is used as applied to courts.^^ The power to examine and commit persons charged with crime is not judicial." But the removal of a person from his office for cause in- volves the exercise of judicial power." So do proceed- ings for the dissolution of attachments." § 3. In what courts judicial power vested. The constitution provides that the judicial power shall be vested in one supreme court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction, inferior to the supreme court, as the legislature may establish by general law, by a two-thirds vote of the members elected to each house.*" The legislature may also provide for the election of one or more persons in each organized county, who may be vested with judicial powers not exceeding those of a judge of the circuit court at chambers.'^^ Thus, the con- stitution vests the judicial power in certain specified courts, and it cannot be legally vested elsewhere.'^^ Various provisions, however, vesting power of a quasi- judicial nature in various boards or individual officers have very properly been sustained as constitutional.*' 16 Underwood v. McDuffee, 15 250,000 is local and unconstitutional. Mich. 361. Attorney General v. Lacy, 180 Mich. 16 Daniels v. People, 6 Mich. 381. 329. 17 Allor V. Wayne County Audi- 21 Const. Art. VII, sec. 21. tors, 43 Mich. 76. 22 Andrews v. Otsego Judge of 18 People V. Stuart, 74 Mich. 411. Probate, 74 Mich. 278; Chandler v. 19 Chandler v. Nash, 5 Mich. 409. Nash, 5 Mich. 409; Ames v. Port 20 Const. Art. VII, sec. 1. Huron L. D. & B. Co., 11 Mich. 139; Special as distinguished from gen- Allor v. Wayne County Auditors, 43 eral laws cannot create courts, un- Mich. 76. der the Michigan Constitution; and 23 See People v. Brazee, 183 Mich, hence a statute creating a court of 259; People v. Stuart, 74 Mich. 411; domestic relations in counties of over Attorney General v. Jochim, 99 § 5 Courts 449 § 4. Courts of record and not of record. Courts of record are those whose acts and judicial pro- ceedings are enrolled or recorded for a perpetual memorial and testimony. Courts not of record comprise those inferior tribunals whose proceedings are not for- mally enrolled or recorded. Courts of record are also characterized as having a clerk and a seal by which their proceedings are authenticated. All of the courts of this state having a seal are declared by statute to be courts of record.^* The supreme court, the circuit courts, and the probate courts, are, by the constitution, declared to be courts of record, and each of them is required to have a seal.^^ § 5. Courts of general and courts of special or limited jurisdiction. Courts are also distinguished as courts of general juris- diction and courts of special or limited jurisdiction, — limited either as to the value or the nature of the pleas which they are authorized to entertain or as to the ter- ritory or district over which their authority extends. Courts of general jurisdiction are those whose jurisdic- tion extends to all cases comprised within a class or classes of causes, especially to causes of a civil nature.^° The circuit courts of this state have general original jurisdiction of all civil and criminal matters not excepted in the constitution and not prohibited by law.^' Mieh. 358; People v. Therrien, 80 eral v. Renihan, 184 Mich. 272, 279, Mieh. 187; McLaughlin v. Bur- holding Superior Court of Grand roughs, 90 Mich. 311 ; Attorney Gen- Rapids a court of record, eral v. Detroit Common Council, 112 26 Grace v. American Cent. Ins. Mich. 145; Zimmer v. Bay County Co., 109 U. S, 278; Ex parte Round- Sup 'rs, 159 Mich. 213. tree, 51 Ala. 42. 24Jud. Act, ch. 4, §1; Comp. 27 Const. Art. VII, see. 10; Jud. Laws 1915, §12248. Act, ch. 6, §1; Comp. Laws 1915, 25 Const. Art. VII, sec. 17. §12299; Swift v. Wayne Circuit This enumeration of courts of rec- Judges, 64 Mich. 479; People v. ord is not exclusive. Attorney Gen- Kent Circuit Judge, 37 Mich. 372- 1 Abbott— 29 450 Courts § 5 It will be presumed, in favor of a judgment of a court of general jurisdiction, rendered in a proceeding accord- ing to the course of the common law, that the jurisdic- tion of the parties was duly obtained.^® In special pro- ceedings not according to the course of the common law, and in courts of special or limited jurisdiction, there is no presumption in favor of jurisdiction, but the facts essential to confer it must affirmatively appear on the face of the proceedings.''® § 6. Jurisdiction. By the "jurisdiction" of a court is meant the power to hear and deteraiine causes or matters within the limits established by law for the exercise of that power. The word has generally been defined simply as the power to hear and determine causes, but it has been alleged, with some weight of reason, that this is somewhat too broad, in that jurisdiction does not embrace the power to de- termine in any manner whatsoever, but only by the rendi- tion of such a judgment or order as the court has power to render in the class of cases to which the case before it belongs, and that the definition generally given should be qualified accordingly. By this is not meant that, in order for a court to be within its jurisdiction, it must render a judgment that is right as between the parties and which an appellate court would not reverse upon a proper proceeding, but that the judgment, whether right Union Depot Co. v. Backus, 92 Mich, 29 Gould v. Jacobson, 58 Mich. 33; Thompson v. Michigan Mut. 288; Goodrich v. Burdick, 26 Mich. Benefit Ass'n, 52 Mich. 522. 39; Piatt v. Stewart, 10 Mich. 260; Circuit courts are courts of lim- Galpin v. Page, 18 Wall. (U. S.) ited but not inferior jurisdiction. 365; Chandler v. Nash, 5 Mich. 409; Ward V. Cozzens, 3 Mich. 252, Jones v. Keed, 1 Johns. Cas. (N. Y.) quoted in Thomas v. Rosecrantz, 193 20; Powers v. People, 4 Johns. (N. Mich. 357. Y.) 292; Hartford Fire Ins. Co. v. 28 Arnold v. Nye, 23 Mich. 286; Owen, 30 Mich. 441; Greenvault v. Wilcox V. Kassick, 2 Mich. 165; Farmers' & Mechanics' Bank, 2 Clark V. Holmes, 1 Doug. 390 ; In re Doug. 498. Lewis, 124 Mich. 199. § 6 Courts 451 or wrong as between the parties and whether or not it would be reversed in a proper appellate proceeding, must be such as the court might render in the class of cases to which the one in hand belongs. Thus, if, in an action of assumpsit, the court should render a judgment for the plaintiff, when rightfully, as between the parties, *it should have rendered a judgment for the defendant, the error in such determination of the case would not make the judgment jurisdictionally defective, although it might be reversed upon an appellate proceeding; but if, in such an action at law, the court should enter a judg- ment attempting to enforce the specific performance of the contract sued upon, the judgment, being one which the court would have no power to render in that class of cases, would be affected by a lack of jurisdiction and would be subject to successful attack, not only in an ap- pellate proceeding brought directly for the purpose, but ako collaterally in any proceeding in which the validity of the judgment might come into question. From these considerations, it is well, and perhaps in harmony with the more advanced thought upon the subject, to adopt the definition as given.*" Original or primary jurisdiction is jurisdiction in the first instance, and is the power which the court exer- cises in a cause which was commenced in it. Appellate jurisdiction is the power to review the judgment, order or decree of an inferior tribunal, for the purpose of dis- covering and correcting errors which appear there to have been committed in the adjudication of the cause. 30 12 Am. & Eng. Ene. Law 246; St. 627; Jones v. Brown, 54 Iowa Windsor v. McVeigh, 93 U. S. 274; 74; Cornett v. Williams, 20 Wall. Ex parte Watkins, 3 Pet. (U. S.) (U.S.) 226; Laugdon v. Wayne Cir- 193; Ex parte Parks, 93 U. S. cuit Judges, 76 Mich. 358; Daniels 18; Ex parte Lange, 18 Wall. (U. v. People, 6 Mich. 381; Underwood S.) 163; Ex parte Reed, 100 U. S. v. McDuffee, 15 Mich. 361; Mutual 13; Ex parte Yarbrough, 110 U. Fire Ins. Co. v. Phoenix Furniture S. 651; Hopkins v. Com., 3 Mete. Co., 108 Mich. 170. (Mass.) 462; Mills v. Com., 13 Pa. 452 Courts | 6 Exclusive jurisdiction is that which belongs only to a particular court or class of courts. Exclusive jurisdic- tion is necessarily original, although original jurisdic- tion is not necessarily exclusive, but may be concurrent also. ConcuiTcnt or co-ordinate jurisdiction is such as is not limited to one particular class of courts, but be- longs indiscriminately to two or more courts of different classes. Where there is concurrent jurisdiction, the right to maintain jurisdiction attaches to that tribunal that first exercises it.^^ A court has no power to interfere in a matter pending in another court of co-ordinate juris- diction,^^ and one court cannot enjoin another.^' The jurisdiction of a common law court is not necessarily ousted because there is a specific remedy in equity but it may exercise its discretion where the circumstances call for prompt interference by the courts.^* Consent cannot confer jurisdiction of the subject mat- ter,^^ but can of the person. ^^ Want of jurisdiction of the subject matter cannot be waived,^' even where the nature of the action is local or any element of locality is necessary to the jurisdiction.^' But jurisdiction of the person can be waived by failure to urge it.^® So any want of jurisdiction because of failure to obtain leave of court to file an information in the na- ture of quo warranto may be waived w^here the court has jurisdiction of the subject matter.*** 31 Shields v. Riopelle, 63 Mich. 50 Mich. 54; Hull v. Hull, 149 Mich. 458; Griffis v. Stoddard, 2 Mich. 500; Kirkwood v. Hoxie, 95 Mich. N. P. 37. 62. 32 Maclean v. Wayne Circuit 36 Cof rode v. Wayne Circuit Judge, 52 Mich. 257. Judge, 79 Mich. 332. 33 People V. Superior Court Judge, 37 Moore v. Ellis, 18 Mich. 77; 41 Mich. 31. Ferrand v. Bentley, 6 Mich. 281. 34 Tawas & B. C. R. Co. v. loseo 88 Thompson v. Michigan Mut. Circuit Judge, 44 Mich. 479. Ben. Ass'n, 52 Mich. 522. 35 J. F. Hartz Co. v. Lukaszcewski, 89 Stilson v. Greeley, 2 Mich. N. 200 Mich. 230; Bolton v. Cummings, P. 222. 200 Mich. 234 ; Nichols v. Flanni- 40 Attorney General v. A. Booth & gan, 185 Mich. 654; Hagar v. Coup, Co., 143 Mich. 89. § 7 Courts 453 § 7. Where parties are non-residents or cause of action arose outside state. Circuit courts, having jurisdiction of tlie subject-mat- ter, and of the persons of tlie parties, will take cognizance of suits even though both the plaintiff and the defendant are non-residents of the state. But a distinction is to be made in suits of this kind, based upon the question whether the cause of action arose within this state or outside of it. In suits between non-residents, where the cause of action arose outside of the state, our courts may, and usually do, upon principles of comity, entertain juris- diction,^^ but they are not compellable to proceed in such cases.*^ Where, however, the cause of action arose within this state, the court, having jurisdiction of the subject-matter and the persons of the parties, is compellable to pro- ceed.*^ Article 4, Sec. 2, of the constitution of the United States, declares that '^the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states," and this is constiiied to require (among other things) that citizens of other states in the Union shall have the right to bring suit in the several courts of this state having jurisdiction, it being a priv- ilege belonging to every citizen of this state.** This juris- diction cannot be taken away by any legislation limiting the forum of the action to the county in which plaintiff resides.*^ A court of a sister state which has acquired jurisdiction of the parties and the subject-matter has the power to adjudicate the rights of all the parties in 41Cofrode v. Gartner, 79 Mich. ;5:'.2; Jud. Act, ch. 10, §1; Comp. 332; Newland v. Eeilly, 85 Mich. Laws 1915, §12340; Grand Trunk 151; Thompson v. Michigan Mut. R. Co. v. Wayne Circuit Judge, 106 Ben. Ass'n, 52 Mich. 522. Mich. 248. 42 Great Western Ry. Co. v. Mil- 44 Cof rode v. Gartner, 79 Mich, ler, 19 Mich. 305; Mason v. The 332. Blaireau, 2 Cranch (U. S.) 240. 45 Atkins v. Rorstler, 46 Mich. 552. 43 Cofrode v. Gartner, 79 Mich. 454 Courts § 7 real property involved although part of it is situated in this state.*® Actions upon commercial paper are transitory, and the creditor may pursue and sue the debtor in any state where his person or property can be found.*'' § 8. Actions against f areig:n corporations. A foreign corporation may be sued in this state," and jurisdiction is obtained by service of process as provided for by the statutes.*® However, as to foreign corpora- tions not admitted to do business in the state, it is held that jurisdiction cannot be conferred by statute to render a personal judgment where process is served upon an officer casually in the state and not representing the cor- poration.^" § 9. General powers of courts of record. The several courts of this state having a seal are courts of record, and they respectively have power: (1). To issue process of subpoena, requiring the at- tendance of any witness residing or being in any part of this state, to testify in any matter or cause pending or triable in such courts. (2). To administer oaths to witnesses in any such mat- ter or cause and in all other cases where it may be neces- sary in the exercise of the powers and duties of such courts. (3). To devise and make such new writs and forms of proceedings as may be necessary to carry into effect the powers and jurisdiction possessed by them." They are also, by statute, empowered to punish for contempts, either by fine or by imprisonment, or both, 46Dunlap V. Byers, 110 Mich. 109. 60 Matthews v. Montreal Min. Co., 47 Millar v. Hilton, 189 Mich. 635. 183 Mich. 541, and cases cited. 48 See Corporations. 61 Jud. Act, ch. 4, § 1 ; Comp. 49 See Commencement of Ac- Laws 1915, § 12248. TIONS. § 10 Courts 455 in their discretion.^^ The power to correct purely clerical errors in its records is inherent in courts of general juris- diction." § 10. Terms of court. The terms of court are those stated times of the year which are established by competent authority for the dis- patch of business in the superior courts of common law. In very early times, it was the custom of the Christian magistrates to hear and decide causes through the whole year, every day alike, in order to distinguish themselves as much as possible from the heathens, who were strict in the observance of their days of fasting and of feast. But, at length, the church interposed and exempted cer- tain holy seasons from being profaned by the tumult of forensic litigations. The holy seasons thus exempted, of which there were four, became the vacations and divided the year, which before had been a continual term, into four separate terms. Sundays and certain festal days were included in the same prohibition. The division of the year into terms was afterwards confinned by the laws of the realm and became a permanent feature of the judi- cial system which, to this day, obtains both in England and this country. There are four terms each year both in the supreme court and in the circuit courts. Before the Judicature Act, circuit courts were required to make an order every two years fixing the time for holding the terms of court for the next two years. This was required to be pub- lished at the expense of the state and the order was un- changeable for two years. This has been changed by the Judicature Act so that the orders existing at the time the act takes effect shall stand until revoked, but the court may at any time by a journal order change the time, such 62 See Contempt. 53 Walsh v. Colby, 153 Mich. 602. 456 Courts § 10 change not to be effective until the expiration of three months from the date of the order.^* Whenever at the close of any term of any circuit court, the trial of a cause shall be in progress, such trial shall continue until the same is determined, and the trial shall not be construed as prolonging said tenn, nor to prevent the commencement of the succeeding term.^^ § 11. Adjournments. ' * If from any cause the judge of any circuit or superior court shall fail to attend on the first day or any succeed- ing day of any term, said court shall stand adjourned un- til the next day in which court may be lawfully held, and shall stand adjourned from day to day until a judge law- fully authorized to hold said court, shall be in attendance. Said courts at law and in chancery, shall on all lawful days and times be deemed to be in actual session from the first day of any term until the first day of the next suc- ceeding term, notwithstanding any formal adjournment thereof: And, if any judge authorized to hold such court, shall at any time be in attendance thereon, he shall have full power to hear, try and determine all causes, matters and proceedings within the jurisdiction of said court which may in a lawful manner be brought before him. Judges of circuit courts may hold court for each other.^^ ''All causes and matters, of whatsoever name or kind, pending at any term of any circuit court, which shall not have been held because of the absence of the circuit judge, shall stand continued till the next term; and all persons bound by recognizance or otherwise to appear at any such court, either as witnesses or parties to any proceedings cognizable therein, shall be bound to appear at the next SiJud. Act, ch. 7, §2; Comp. 56 Jud. Act, eh. 7, §5; Comp. Laws 1915, § 12304. Laws 1915, § 12307. 55 Jud. Act, ch. 18, §52; Comp. Laws 1915, § 12624. § 13 CouETS 457 term of the circuit court appointed to be held in the coun- ty; and all such recognizances shall continue in force and be as binding and obligatory on the parties thereto as if no failure of a term had occurred, unless a new recogni- zance, approved according to law, shall be entered into for such appearance. " ^''^ § 12. Changing time or place. The statutes of the state appoint, or provide for the ap- pointment of, the time and place for holding every court of record, but whenever, by reason of war, pestilence or other public calamity, it is deemed unsafe or inexpedient to hold any court at the time and place appointed, or whenever there is no court house in the county or the court house is for any cause unsafe or unfit for the hold- ing of any court, the judge or judges of the court may ap- point any other place and time within the same county as a temporary place for holding it.^^ Such order is re- quired to be in writing, signed by the judge or judges making it, and must be published by advertisement or in such other manner as shall be required in the order. ^® § 13. Proceedings on Sunday or legal holiday. It is provided by law that none of the courts of this state shall be open or transact any business on the first day of the week, unless it be for the purpose of instruct- ing or discharging a jury or of receiving a verdict, but this does not prevent the exercise of the jurisdiction of any single magistrate when it is necessary in criminal cases to preserve the peace or to arrest offenders.^® No B7Jud. Act, eh. 7, §6; Comp. Laws 1915, § 12259; Linnen v. Ban- Laws 1915, § 12308. field, 114 Midi. 9.".; Smith v. Ihling, SSJml. Act, ch. 7, §3; Comp. 47 Mich. 614. Laws 1915, § 12305. At common law, a return of an ex- B9Jud. Act, ch. 7, §4; Comp. ecution on Sunday is void. Peck v. Laws 1915, § 12306. Cavell, 16 Mich. 9. See also Macom- 60,Tud. Act, ch. 4, §12; Comp. her v. Wright, 108 Mich. 109. 458 Courts § 13 civil process can be served or executed on that day, nor can any process be served on any elector entitled to vote at any election during the day on which such election is held,^^ except that, upon sufficient cause being shown by affidavit to the satisfaction of a judge of any circuit, such judge may authorize the service or execution thereof on Sunday or any legal holiday or election day.^^ Upon such showing, such judge may also authorize the issuance of any civil process on any such day.^' For the holding of courts, the following days are to be treated and considered as the first day of the week, viz. : The first day of January, commonly called New Year's Day; the twelfth day of February, commonly called Lin- coln's Birthday; the twenty-second day of February, com- monly called Washington's Birthday; the thirtieth day of May, commonly called Decoration Day; the fourth day of July; the first Monday of September, commonly called Labor Day; the twenty-fifth day of December, commonly called Christmas Day; every Saturday from twelve o'clock noon until twelve o'clock at night; all national, state, county or city election days and any day appointed or recommended by the governor of the state or the President of the United States as a day of fasting and prayer or thanksgiving; but, in case the return or adjourn day in any suit, matter or hearing before any court, offi- cer, referee or arbitrators comes on any of these days, ex- cept Sunday, such suit, matter or proceeding will not abate, but will stand continued to the next succeeding day at the same time and place, unless the next day is the first day of the week or a holiday, in which case, it will stand continued to the next day succeeding the first day of the week or holiday at the same time and place.^* eiJud. Aet, oh. 13, §25; Comp. 63 Jud. Act, ch. 13, s26; Comp. Laws 1915, § 12428; Shriver v. Bean, Laws 1915, § 12429. Compare, un- 112 Mich. 508. rler old practice, Smith v. Ihling, 47 62 Jud. Act, oh. 13, §26; Comp. Mich. 614. Laws 1915, §12429. 64 Pub. Acts 1909, No. 246, §1; § 15 Courts 459 If the first day of the general term of any circuit court, as fixed by the order of a circuit judge, falls upon any of these days, and whenever any circuit court has been ad- journed to any such day, the court may be adjourned to the next succeeding secular day.^* Whenever the first day of January, the twelfth day of February, the twenty- second day of February, the thirtieth day of May, the fourth day of July or the twenty-fifth day of December falls upon Sunday, the next Monday following is deemed a public holiday for all of the purposes aforesaid.^® § 14. Proceedings to be in English language. The constitution ^"^ requires that the written judicial proceedings shall be conducted, promulgated and pre- served in the English language; and the legislature has enacted that all writs, process, proceedings and records in any court within this state shall be in that language, except that the proper and known names of process and technical words may be expressed in the language com- monly used.®^ Writs, process, proceedings and records should be made out on paper or parchment in a fair, legible character, in words at length and not abbreviated, although such abbreviations as are commonly used in the English language may be used, and numbers may be ex- pressed by Arabic figures or Roman numerals.^® § 15. Seal of court. Each of the several courts of record is required to have a seal. With this, the proceedings of the court are au- thenticated. Whenever the seal of a court is so injured that it cannot be conveniently used, the court may cause Comp. Laws 1915, § 6232, as amend- 67 Const. Art. XVI, sec. 6. ed by Pub. Acts 1919, No. 335. 68 Jud. Act, ch. 4, §13; Comp. 66 Pub. Acts 1909, No. 246, 8 1; Laws 1915, §12260; Visscher v. Ot- Comp. Laws 1915, § 6232, as amend- tawa Circuit Judge, 116 Mich. 666; ed by Pub. Acts 1919, No. 335. Schaale v. Wasey, 70 Mich. 414. 66 Pub. Acts 1909, No. 246, §2; 69 Jud. Act, ch. 4, §13; Comp. Comp. Laws 1915, § 6233. Laws 1915, § 12260. 460 CouETS § 15 it to be destroyed. If it should be lost or destroyed, the court may cause a new one to be made, similar in all re- spects to the former one, which then becomes the seal of the court.''" § 16. Right of public to attend trials. Every citizen has the right to attend sittings of every court which are required to be public, except that minors may be excluded where scandal or immorality is in- volved.'^ § 17. Decisions as binding. Decisions of the supreme court are binding on the low- er courts. But where propositions of law might have been urged but were not urged,'''^ or were not considered,'^ the decision is not binding as a precedent as to such proposition. In other words, a case is authority only on the questions actually decided.'* Dicta, although entitled to respect, will not control as a precedent.'* It is entitled to no greater weight than would be given it as an expression of an opinion of the justice writing the opinion.'^ The supreme court should not overrule a former de- cision merely because the case was decided wrong where more injuiy will result from overruling than from follow- ing it." Especially should decisions be adhered to where property rights have been acquired thereunder." 70 Jud. Act, ch. 4, § 3 ; Conip. 75 Ellsworth v. Hall, 48 Mich. 407. Laws 1915, § 12250. 76 Detroit Lumber Co. v. The Pe- 71Jud. Act, ch. 4, §§5, 6; Comp. tivl, 153 Midi. 528. Laws 1915, §§12252, 12253. 77 McEvoy v. City of Sault Ste. 72 Cosgrove v. Wayne Circuit Marie, 136 Mich. 172; Attorney Gen- Judge, 144 Mich. 682. eral v. Board of Sup'rs, 178 Mich. 73 Miller v. Village of Birming- 513, 518. See also Colborne v. De- ham, 145 Mich. 170; Moinet v. Burn- troit United Ry., 177 Mich. 139, 142. ham, Stoepel & Co., 143 Mich. 489; 78 Reid v. Wayne Circuit Judge, Atwood V. City of Sault Ste. Marie, 132 Mich. 406. 141 Mich. 295. 74 First Nat. Bank v. Union Trust Co., 158 Mich. 94. Covenant, Action of 461 A decision by an equally divided court does not settle the law for other cases ; ''^ but where one of the eight jus- tices of the supreme court was disqualified so that only seven participated in a decision concurred in by a ma- jority of the seven, the decision was stare decisis. ^° The effect of judgments declaratory of the rights aris- ing under deeds, wills, etc., is considered elsewhere.*^ The decisions of the courts of sister states are not bind- ing,®^ but are entitled to great respect where involving the validity of a similar statute and generally are con- trolling where the statute in this state was enacted after such decisions. ^^ However, where a statute adopted from another state requires aid from the common law, the judicial interpretation of the statute, given by the courts of that state, does not bind the courts of this state to the extent of determining the rule of common law applicable to the statute.®* The construction given an act of congress by a federal court should control subsequent decisions of the state courts.®^ COVENANT, ACTION OF The action of covenant lies for the recovery of damages for the breach of a covenant or contract under seal. It could not be maintained except against a person, who, by himself or his agent, had executed an instrument under seal; but the covenant might be express or implied from the terms of the instrument, and might be for the per- formance of something in futuro or that something had been done. In some cases also, it was sustainable al- 79 Gourlay v. Insurance Co. of 82 Caldwell v. Gale, 11 Mich. 77. North America, 189 Mich. 384; City 83 Rouse, Hazard & Co. v. Dono- of Kalamazoo v. Crawford, 154 Mich. van, 102 Mich. 234. 58. 84 Bliss V. Caille Bros. Co., 149 80Doli)h V. Norton, 158 Mich. Mich. 601. 417. 85 Lyon v. Clark, 124 Midi. 100. 81 See Judgments. 462 Covenant, Action of though the covenant related to matter in present!, as that the covenantor is seized and has good title, though it is said that, in general, covenant would not lie on a contract in presenti, as on a covenant to stand seized or that a cer- tain horse is yours or shall henceforth be the property of another.^ The action, being for the recovery of damages for the non-performance of a contract under seal, differed very materially from the actions of assumpsit and debt. As- sumpsit, though for the recovery of damages, was not in general sustainable where the contract was originally under seal or where a deed had been taken in satisfaction; and though debt was sustainable upon a simple contract, a specialty, a record or a statute, yet it lay only for the recovery of a sum of money in numero, and not where the damages were unliquidated and incapable of being re- duced by averment to a certainty ; and though, where the object of the action of covenant was the recovery of a money demand, the distinction between the terms "dam- ages," and ''money in numero," may not, on first view, appear substantial, yet it is material and gave rise to certain rules which the practitioner must regard. Cove- nant and debt were concurrent remedies for the recovery of any money demand, where there was an express or im- plied contract in an instrument under seal to pay it; but covenant was the peculiarly appropriate action for the nonperformance of a contract under seal, where the dam- ages were unliquidated, in which case neither debt nor assumpsit could be supported.^ By statute in Michigan, the action of covenant has been abolished, and in all cases where formerly that action might have been maintained, the action of assumpsit must be brought.^ 1 Littler v. Holland, 3 T. R. 590 ; 2 1 Chit. PI. 132. Mitchell V. St. Andrew's Bay Land 3 Jud. Act, ch. 11, §1; Comp. Co., 4 Fla. 200; Gale v. Nixon, 6 Laws 1915, § 12350. Cow. (N. Y.) 746. Crops 463 COWS See Animals; Exemptions. CREDIBILITY See Witnesses; Instructions. CREDITOR'S SUIT See Executions; Supplementary Proceedings. CRIER The statute provides that the supreme court may ap- point a crier for the court, who shall hold his office during the pleasure of the court.^ The crier may, with the con- sent of the court, appoint an assistant, who performs such duties as the court prescribes.^ The crier has sole charge of the supreme court room and of the rooms assigned to th« justices of the supreme court in the capitol, and must perform such other duties as shall from time to time be required by the court.' Upon filing with the clerk of the court such bond as is required by law to be given by sheriffs, to be approved by the chief justice, the crier is empowered to serve all orders, process or writs issued from the supreme court, for which service he is required to collect the fees allowed by law to sheriffs, but any and all fees collected by the crier must be paid into the state treasury.* CRIMINAL LAW See Mandamus; Habeas Corpus. CROPS See Executions; Exemptions; Trover. IJud. Act, ch. 1, §42; Comp. 3 Jutl. Act, ch. 1, §42; Comp. Laws 1915, § 12047. Laws 1915, § 12047. 2Jucl. Act, ch. 1, §42; Comp. 4 Jud. Act, ch. 1, §43; Comp. Laws 1915, § 12047. Laws 1915, § 12048. 464 Cross-Examination CROSS-EXAMINATION See Witnesses. CUMULATIVE REMEDIES See Election op Eemedies. CUSTODY See Attachment; Execution; Replevin. DAMAGES See Pleading; Commencement of Actions (statement as to in affidavit for capias); Verdict and Findings; Replevin; Instructions; New- Trial; Mandamus; Contempt; Executions; Error, Writ of; Ejectment. DATE See Affidavits; Pleading; Bill of Particulars; Garnishment; Su- preme Court. See Time. See Replevin. DAY DEAD BODIES DEATH See Abatement and Revival; Parties; Judges; Limitation of Ac- tions; Bill of Exceptions; Executions; Homesteads; Bail; Eject- ment; Pleading; Error, Writ of. DEATH BY WRONGFUL ACT Cross-Eeferences: Joinder and Splitting of Causes of Action. At common law, no civil action could be maintained for the death of a human being caused by the wrongful act or negligence of another, or for any damages suffered by any person in consequence of such death. ^ This rule was changed in England by what is known as "Lord Camp- bell's Act," under the provisions of which a right of ac- 1 Hyatt V. Adams, 16 Mich. 180. Death by Wkongful Act 465 tion for damages for the death of a person injured by the wrongful act, neglect or default of another was given to near relatives, — husband, wife, parent, child. In Mich- igan, it has been provided by a statute, commonly called the ''death act," that, whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. Every such action must be brought by, and in the name of, the personal representa- tives of such deceased person, and the amount recovered in every such action must be distributed to the persons in the proportions provided by law in relation to the dis- tribution of personal property left by persons dying in- testate. In every such action, the jury may give such damages as they deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when re- covered.'^ By a statute, usually referred to as the ' ' survival act, ' ' certain actions, including actions for personal injuries, survive the death of the injured party.' By the statute referred to as the "death act," if the death of a person 2 How. Stat. (2na ed.) 13702, Co., 176 Mich. 413 ; Wingert v. Car- 13703, 6663, 6664; Comp. Laws penter, 101 Mieh. 395; Nelson v. 191.5, §§14577, 14578; Hyatt v. Lake Shore, etc., R. Co., 104 Mich. Adams, 16 Mich. 180; Chicago, etc., 582; Walker v. Lake Shore, etc., R. R. Co. V. Bayfield, 37 Mich. 205; Co., 104 Mich. 606; Swectland v. Kelly V. Hendrie, 26 Mich. 255; Chicago, etc., R. Co., 117 Mich. 329. Flint, etc., R. Co. V. Stark, 38 Mich. 3 Jud. Act, ch. 12, §32; Comp. 714; Richardson v. Detroit, etc., R. Laws 1915, § 12383. 1 Abbott— 30 466 Death by Wrongful Act shall be caused by a wrongful act, and the person injured could have sued therefor if death had not ensued, the wrongdoer is liable to the personal representatives of the deceased person.* The latter statute is applicable only to cases of instantaneous death,* and where death is not in- stantaneous the action should be brought under the so- called * ' survival act. ' ' ^ But death is instantaneous, within the statute, where there is a continuing injury re- sulting in death within a few moments 7 '& A cause of action under the *' survival act" and one under the ''death act" cannot exist at the same time for the same injury.* The ''death act" creates a new right of action, unknown to the common law, authorizing dam- ages with reference strictly to the pecuniary injury suf- fered by certain beneficiaries, while the "survival act" effects a continuance of the right of action that had vested in the decedent, with such damages as he could have re- covered, including the present worth of his probable fu- ture earnings had he lived.' Under the "death act," no recovery can be had by married children of the decedent where they were not legally entitled to support from him.^" 4Coinp. Laws 1915, §§14577, Boyne City, etc., E. Co., 178 Mich. 14578. 694. 6 Jorgensen v. Grand Kapids, etc., » Jorgenson v. Grand Rapids & I. R. Co., 189 Mich. 537. K. Co., 189 Mich. 537; Lincoln v. 6 Jorgensen v. Grand Rapids, etc., Detroit & M. R. Co., 179 Mich. 189. An administrator cannot combine R. Co., 189 Mich. 537. 7 Beach v. City of St. Joseph, 192 Mich. 296 (death by drowning is in- stantaneous death) ; Lobenstein v. Whitehead, etc.. Iron Co., 179 Mich. 299; West v. Detroit United Ry., in one count a claim under the so- called death act and a claim under the survival act and recover both classes of damages. Causes of ac- tion by a parent for loss of his son's services cannot be ioined in the 1.59 Mich. 269 (death within fifteen * -xi, ^ 4.- ^ same count with a cause of action as minutes after being struck by street administrator under the survival act. car); Olivier v. Houghton County Verlinde v. Michigan Cent. R. Co., St. R. Co., 134 Mich. 367. 165 Mich. 371, 375. • Jorgensen v. Grand Rapids & I. lOOrmsbeo v. Grand Trunk West- R. Co., 189 Mich. 537; Mehegan t. ern R. Co., 197 Mich. 576. Declaratory Judgments 467 DEBT, ACTION OF The action of debt is so called because it is, in legal consideration, for the recovery of a debt eo nomine and in numero,^ and though damages were in general awarded for the detention of the debt, yet, in most instances, they were merely nominal, and were not, as in assumpsit and covenant, the principal object of the suit.** It differed from these actions also in that it was maintainable upon either a simple contract or a specialty, and in that it lay in the detinet for goods, as, for example, upon a contract to deliver a quantity of malt. But debt in the detinet dif- fered from the action of detinue in that it was not neces- sary, in order to sustain it, that the property in any spe- cific goods should be vested in the plaintiff at the time the action was brought, which was essential in detinue.* Debt in the debet was not in any case sustainable un- less the demand was for a sum certain or for a pecuniary demand which could readily be reduced to a certainty, — that is, a liquidated demand.* The action of debt has been abolished in this state by statute. In all cases where the action might formerly have been maintained, assumpsit must be brought.* DECISIONS See CoxjKTS; Judges; Supreme Court; Veedict and Findings; Judg- ment, DECLARATION See Pleading. DECLARATORY JUDGMENTS See Judgments. 13 Coolcy's Bl. Comm. 153; Mel- 8 Respubliea v. Shaffer, 1 Dall. vin V. State, 121 Cal. 16; Cassady (U. S.) 236. V. Laughlin, 3 Blackf. (Ind.) 134. 4 Gregory v. Bewly, 5 Ark. 318. 2 1 Chit. PI. 121; Ross v. Taylor, 6 Jud. Act, ch. 11, §1; Comp. 63 111. 215. Laws 1915, § 12350. See Actions. 468 Deeds § 1 DEEDS § 1. Proving execution. § 2. Procedure where grantor refuses to acknowledge deed. § 3. Subpoenas to witnesses. § 4. Filing copy pending proceedings to prove execution thereof. § 5. Certificate of proof of execution. Cross-Beferences: Mortgages; Executions; Pleading; Judgments (declaratory of construction). § 1. Proving execution. Ill Michigan, conveyances of lands or of any estate or interest therein may be made by deed, signed and sealed by the person from whom the estate or interest is in- tended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved and recorded according to law, without any other act or ceremony whatever.^ Deeds of conveyance in this state are recorded in the office of the register of deeds of the county where the lands conveyed are situated, and it is provided that a certificate of the acknowledgment of any deed, or of the proof of the execution thereof before a court of record or justice of the peace, signed by the clerk of the court or by the justice before whom the same was taken, shall entitle such deed, with the certificate, to be recorded in the office of the register of deeds of the county where the lands lie.'^ It is not necessary that a deed should be acknowledged ' or the execution thereof proved nor that it should be recorded * in order to be a perfectly valid deed and to pass the title from the grantor to the grantee. In fact, the certificate of acknowledgment or of proof is not part of the deed itself. But the importance of having a deed IHow. Stat. (2nd ed.) 10818; 4 Wilt v. Cutler, 38 Mich. 189 Comp. Laws 1915, § 11688. Brown v. McCormiek, 28 Mich. 215 2 How. Stat. (2nd ed.) 10840; Sinclair v. Slawson, 44 Mich. 123 Comp. Laws 1915, § 11710. Gugins v. Van Gorder, 10 Mich 8 Livingston v. Jones, Har. Ch. 523 ; Smith v. Fiting, 37 Mich. 148 165 ; Brown v. McCormiek, 28 Mich. Van Husan v. Hoanies, 96 Mich. 504 215; Price v. Haynes, 37 Mich. 487. § 2 Deeds 469 recorded, so far as the grantor or person claiming under iiim is concerned (for the grantor, having divested him- self of the title, has no interest whatever in the matter), lies in the fact that the statute declares that every con- veyance of real estate within this state which is not re- corded will be void against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof whose conveyance is first duly recorded;^ and the importance of having the deed acknowledged or proved, and the acknowledgment or proof embodied in a certificate appended to the deed, lies in the fact that the deed is not entitled to record un- less accompanied with such a certificate, and the fact that, if a deed is recorded without such certificate, such un- authorized record is notice to no one.^ The object of all registry laws is to protect bona fide purchasers.''^ § 2. Procedure where grantor refuses to acknowl- edge deed. It is provided that, if any grantor residing in this state shall refuse to acknowledge his deed, the grantee or any person claiming under him may apply to any justice of the peace in the county where the land lies or where the grantor or any subscribing witness to the deed resides, who shall thereupon issue a summons to the grantor to appear at a certain time and place before the justice, to hear the testimony of the subscribing witnesses to the deed. The summons, with a copy of the deed annexed, must be served at least seven days before the time therein assigned for proving the deed.^ At the time mentioned in the summons or at any time to which the hearing may be adjourned, the due execution of the deed may be 5 How. Stat. (2na ed.) 10850; 260; Columbia Bank v. Jacobs, 10 Comp. Laws 1915, §11721. Mich. ;549; Duttou v. Ives, 5 Mich. 6 Dutton V. Ives, 5 Mich. 515; 515. Galpin V. Abbott, 6 Mich. 17. 8 How. Stat. (2nd ed.) 10833; TGodfroy v. Disbrow, Walk. Ch. Comji. Laws 1915, §11703. 470 Deeds § 2 proved by the testimony of one or more of the subscrib- ing witnesses, and, if proved to the satisfaction of the justice, it is his duty to certify the same thereon and, in such certificate, to note the presence or absence of the grantor, as the fact may be.® It is provided that, if any grantor residing in this state shall refuse to acknowledge his deed, and the subscribing witnesses thereto are all dead or out of the state, it may be proved before any court of record of the state, by prov- ing the handwriting of the grantor or of any subscribing witness, the court first summoning the grantor in the manner specified in cases where the proof is to be made before a justice of the peace. ^° Form of Summons on Petition for Proving Execution of Deed Wlierv Subscribing Witnesses Are Dead or Out of State State of Michigan. The Circuit Court for the County of In the Name of the People of the State of Michigan. To C. D.: You are hereby notified that a petition has been filed in the circuit court for the county of , by A. B., of , for the purpose of proving the execution by you of a certain deed of conveyance, bearing date the day of , A. D , whereby, as it is said, you granted, bargained, sold, remised, released, aliened and confirmed unto the said A. B., his heirs and assigns forever, (describe the property). You are therefore hereby summoned to be and appear before said court, at the court house, in the of , in said county, on the day of , A. D , at o 'clock in the noon, to hear the testimony of such witnesses as may be produced by the said A. B. in that behalf. Witness, etc. Form of Petition for Proving the Execution of a Deed State of Michigan. The Circuit Court for the County of To said Court: The petition of A. B., of , respectfully shows unto the court as follows : 1. That C. D., of , in the State of Michigan, in the presence of E. F. and G. H., as subscribing witnesses thereto, made and executed a »How. Stat. (2nd ed.) 10834; 10 How. Stat. (2nd ed.) 10835; Comp. Laws 1915, § 11704. Comp. Laws 1915, § 11705. § 4 Deeds 471 certain deed of conveyance, bearing date the day of , A. D. , whereby the said C. D. granted, bargained, sold, remised, released, aliened and confirmed unto your petitioner, his heirs and assigns forever, (describe the property). 2. That the said C. D. has never acknowledged said deed and, on the day of , A. D , although then requested by your peti- tioner so to do, did refuse. 3. That the said E. F. and G. H. are dead (or, out of this state). Wherefore, your petitioner prays that the execution of said deed may be proved before this court by proving the handwriting of the said C. D. or of one of the- said subscribing witnesses thereto according to the statute in such case made and provided. (Add verification.) A. B. § 3. Subpoenas to witnesses. The court or justice before whom a deed may be pre- sented to be proved may issue subpoenas to the subscrib- ing witnesses or others, as the case may require, to ap- pear and testify touching the execution of the deed. Such subpoenas may be served in any part of the state. ^^ Eveiy person who, being served with such subpoena, refuses or neglects without reasonable cause to appear or, appearing, refuses to answer on oath touching the mat- ters in question will be liable to the injured party in the sum of one hundred dollars damages and for such further damages as the party may sustain thereby; and he may also be committed to prison as for contempt by the court or justice who issued the subpoena, there to remain until he submits to answer upon oath.^^ § 4. Filing: copy pending proceedings to prove execu- tion thereof. Any person interested in a deed that is not acknowl- edged may, at any time before or during the application to a court of record or the proceedings before a justice to prove its execution, file in the office of the register of deeds of the county where the lands are situated a copy 11 How. Stat. (2nd cd.) 10836; 12 How. Stat. (2nd cd.) 10837; Conip. Laws 1915, § 11706. Conip. Laws 1915, § 11707. 472 Deeds § 4 of the deed, compared with the original by the register, and this will, for the space of thirty days thereafter in case of proceedings before a justice, and, in case of pro- ceedings before a court of record, for the space of ten days after the first day of the next term of the court, have the same effect as the recording of the deed, if the deed is within that time duly proved and recorded;" but if, at the expiration of such thirty days, the proceedings for proving the execution of the deed are pending before a justice of the peace, the effect of filing such copy will continue until the expiration of seven days after the termination of the proceedings, if the deed is within that time duly proven and recorded.^* § 5. Certificate of proof of execution. A certificate of the proof of execution of the deed be- fore a court of record or justice of the peace, signed by the clerk of the court or by the justice before whom the proof was taken, will entitle the deed, with the certificate, to be recorded in the office of the register of deeds of the county where the lands lie.^^ Form of Order on Proof of Execution of a Deed In the Matter of Proving a Deed of Conveyance from C. D. to A. B. The said A. B. having presented to this court a certain deed of con- veyance, bearing date the day of , A. D , whereby the said C. D. granted, bargained, sold, remised, released, aliened and con- firmed unto the said A. B., his heirs and assigns forever, (describe the property), and the said A. B. having filed his petition in this court pray- ing that said deed might be proved according to the statute in such case made and provided, and the said C. D. having been duly summoned to be and appear before the court on this day to hear the testimony of such witnesses as might be produced by the said A. B. in that behalf, after hearing the proofs and allegations of the parties, and it appearing to the court that the said deed was duly executed and delivered by the said 13 How. Stat. (2ml ed.) 10838; 15 How. Stat. (2nd ed.) 10840; Comp. Laws 1915, § 11708. Comp. Laws 1915, § 11710. 14 How. Stat. (2nd ed.) 10839; Comp. Laws, 1915, § 11709. § 1 Defaults 473 C. D. to the said A. B. in the presence of E. F. and G. H., the subscribing witnesses thereto, and that the said C. D. refused to acknowledge the exe- cution of said deed when thereunto requested and that the said subscrib- ing witnesses are dead (or, out of this state) ; now, therefore, on motion of the said A. B., it is adjudged and determined that the said C. D. did execute the said deed as his own free act and deed, and it is further ordered that the clerk of this court do certify the same by indorsing upon said deed a certified copy of this order. DEFAULTS § 1. When may be entered and its effect. § 2. Default of part of defendants. § 3. Withdrawing plea without substituting another. § 4. Proof to authorize entry of. § 5. Rule making default absolute. § 6. Eeference to assess damages. § 7. Opening default. § 8. Time for motion. § 9. Affida^dt of merits. § 10. Conditions on granting application. § 11. Discretion of court and review thereof. Cross-references : Error, Writ of (effect of reversal as to one defend- ant as setting aside default) ; Confession of Judgment; Cognovit; Of- fer OF Judgment; Payment Into Court; Tender; Garnishment (de- fault of garnishee); Ejectment; Quo Warranto; Mandamus; Attach- ment; Ejectment; Bail; Replevin. § 1. When may be entered and its effect. The respective times within which the pleadings in a cause, whether commenced by original writ, declaration, writ of attachment or writ of replevin, are required to be filed and served upon the adverse party are elsewhere considered,^ not only in respect to declarations, but also in regard to pleas, and it has also been stated within what time a defendant is required to give notice of his appear- ance or notice of retainer.^ By statute, ''upon due proof of service of any declaration or process requiring an ap- pearance, answer or plea," a default may be filed or en- tered against the defendant for want of such appearance, 1 See PLKiVDING. 8 See Appearance. 474 Defaults § 1 answer, or plea, within the time provided by law or by rule of court, and ''the same proceedings may be had against said defendant in all respects as if he had ap- peared, answered or plead thereto," provided that "no judgment shall be rendered against a foreign corporation based upon such default until the expiration of sixty days from the service of process." ^ By rule of court, if either party makes default in filing or serving any pleading or notice within the time limited by rule or statute or by the special order of the court in the case, the opposite party may file the default, in vaca- tion or in term. The default of either party being duly filed, the other party will not be bound afterwards to ac- cept the pleading or proceeding which was in default, until such default is set aside by the court.* The filing of a defendant's default in not putting in and perfecting special bail, after which the defendant loses the right to put in and perfect special bail and to contest the plaintiff's claim upon the merits, is only the formal expression of the plaintiff's determination to rely upon the breach of the condition of the bond taken on the ar- rest of the defendant, and a commencement of suit upon such bond is equally effectual for that purpose.*^ If a defendant makes default in pleading, he thereby admits the plaintiff's cause of action as alleged in the declaration,^ so as to relieve the plaintiff of the necessity of adducing proof thereof, but he admits no other or further cause of action.' He also thereby waives all mere- ly formal defects in the plaintiff's declaration," but not any ground of objection to the jurisdiction of the court, either over the person of the defendant or of the subject- 3Jud. Act. eh. 20, §1; Comp. Greeley v. Sample, 22 Iowa 338; Laws 1915, § 12737. May v. State Bank, 9 Ind. 233; 4Cir. Ct. Eule 32, §1. Ilutchings v. Ebeler, 46 Cal. 557. 6 Pease v. Pendell, 57 Mich. 315, 7 Mimn v. Haynes, 46 Mich. 140. and see Bail. 8 Eaton v. Harris, 42 Ala. 491. 6 Jacobson v. Miller, 41 Mich. 90; § 1 Defaults 475 matter of the action.® The judgment cannot be in excess of the amount of plaintiff's claim, as stated in his plead- ings or process." Judgment by default cannot be entered where the serv- ice of original process is void.^^ So no default can be en- tered on a return showing merely the service of ''a" copy of the declaration and rule upon ' * the defendants, ' ' since each of defendants must be served.^'' However, the stat- ute provides that judgments by default shall not be ren- dered invalid by any imperfect or insufficient return," but this cures nothing but formal defects and does not reach a failure to show jurisdiction.** Form of Rule for Default in Not Appearing When Declaration Is Not Served with the Writ (Title of court and cause.) On reading and filing due proof of the service of the writ of summons (or as the case may be) upon the defendant in this cause, and the plain- tiff having filed his declaration herein, and more than fifteen days hav- ing elapsed since the service of said writ upon the defendant, and the defendant not having served notice of his appearance or of retainer or otherwise appeared or caused his appearance to be entered herein, on motion of J. K., attorney for plaintiff, it is ordered that the default of the said defendant in not appearing in this cause be, and the same hereby are, entered. Dated, etc. J. K., Attorney for Plaintiff. Form of Rule for Default in Not Pleading When Declaration Is Served ■with the Writ (Title of court and cause.) On reading and filing due proof of the service of the writ of summons (or as the case may be), together with a true copy of the plaintiff's dec- laration herein, upon the defendant in this cause, and fifteen days having elapsed since such service and the defendant not having filed his plea 9 Debs V. Dalton, 7 Ind. App. 84. 12 Campbell v. Wayne Circuit 10 Rose V. Newaygo Circuit Judge, Judge, 111 Mich. 247. 74 Mich. 332. 13 See Amendments, etc. 11 Boyle V. City of Detroit, 152 HDonison v. Smith, 33 Mich l.'i.'i Mich. 248; Ellis v. Fletcher, 40 Mich. 321. 476 Defaults § 1 herein or served a copy upon the plaintiff's attorney and no motion to dismiss or other special motion having been made by the defendant herein, on motion of J. K., attorney for plaintiff, it is ordered that the default of the said defendant in not pleading be, and the same hereby is, entered. Dated, etc. J. K., Attorney for Plaintiff. Form of Rule for Default of Defendant in Not Pleading, When Suit Has Been Commenced by Writ, and Defendant Has Appeared (Title of court and cause.) On reading and filing due proof of the service of the writ of summons (or as the case may be) upon the said defendant in this cause, and the said defendant having appeared herein, and a copy of the plaintiff's dec- laration, heretofore filed in this cause, having been duly served upon the said defendant, and more than fifteen days having elapsed since the service of the said declaration upon the said defendant, and the said defendant not having filed his plea herein or served a copy upon the plaintiff's attorney, and no motion to dismiss or other special motion having been made by the defendant herein, on motion of J. K., attorney for the above- named plaintiff, it is ordered that the default of the said defendant in not pleading be, and the same hereby is, entered. Dated, etc. J. K., Attorney for Plaintiff. Form of Rule for Appearance and Default in Not Pleading in Suit Com- menced by Declaration (Title of court and cause.) On reading and filing due proof of service of a copy of the declaration heretofore filed in this cause, and of the notice to plead indorsed thereon, and more than fifteen days having elapsed since such service, and the said defendant not having filed his plea herein or served a copy upon the plaintiff 's attorney, and no motion to dismiss or other special motion having been made herein by the defendant, on motion of J. K., attorney for plaintiff, it is ordered that the default of the said defendant in not pleading be, and the same hereby are, entered. Dated, etc. J. K., Attorney for Plaintiff. Form of Judgment by Default Against Defendant in Assumpsit (Title of cause.) The default of the said defendant in not appearing (or, in not plead- ing, as the case may be) having been duly filed, and the damages of the said plaintiff having been duly assessed at the sum of dollars, over and above his costs and charges by him about his suit in this behalf ex- § 2 Defaults 477 pended, therefore, on motion of J. K., attorney for plaintiflP, it is con- sidered that the said plaintiff do recover against the said defendant his damages aforesaid, together with his costs and charges aforesaid, to be taxed, and that the said plaintiff have execution therefor. Form of Judgment on Default of Plaintiff for Want of Declaration (Title of cause.) In this cause, the default of the plaintiff for the want of a declaration having duly filed; therefore, it is considered that the plaintiff take nothing by his suit, and that the defendant do go thereof without day; and it is further considered that the said defendant do recover against the said plaintiff his costs and charges by him about his defense in this behalf expended, to be taxed, and that the defendant have execution therefor. § 2. Default of part of defendants. Where defendants are jointly liable, plaintiff cannot, unless otherwise provided by statute, take judgment against a defendant in default until the issues joined by the answer of the other defendants are disposed of. So, at common law, where an action is brought on a joint and several demand, and part of defendants are defaulted, plaintiff cannot discontinue as to the other defendants and take judgment against those in default.^^ Where several defendants are sued on a joint demand, and one of them not served appears and serves his plea, judgment by default could be entered against the remaining defend- ants, under the old practice, before notice of trial was given.^® However, when plaintiff, instead of bringing several actions, includes in one action as defendants all or any of the parties who may be severally or jointly and severally liable, as he may do under the statute,^''' a statute pro- vides that if a default has been obtained against a part of the defendants, the pUiintiff may jjroceed to trial against the others in the same manner as if the suit had been commenced against the latter only, and the action 15 Wiiislow V. Hcrrick, 9 Mu'!!.:;8(). 17 Jud. Act, ch. 12, §15; Comp. 16 Penfold V. Slyfield, 110 Mich. Laws 1915, § 12366. 343. 478 Defaults § 2 will be thereby severed.^' He may also proceed against the defendants who are in default in the same manner as if the suit had been commenced against them alone. ^^ But it is not necessary that the action should be severed in such event. Whether it shall be is a matter wdthin the option of the plaintiff, and, instead of severing the action, he may proceed with, the trial as to the defendants who have joined issue and have the damages against the de- faulted defendants assessed at the same time by the jury, if the trial be by jury, sworn to try the issue, and a joint judgment may be entered against all of the defendants.^" § 3. Withdrawing plea without substituting another. A defendant may, at any time and as a matter of course, withdraw his plea when he does not desire to substitute another for it. For this purpose, it is not necessary to apply to the court, but the defendant should give the plaintiff notice of the withdrawal. When a plea is with- drawn, the case stands as on default and damages may be assessed at any time thereafter; ^^ but a defendant who withdraws his plea is nevertheless afterwards entitled to notice of any subsequent steps in the cause affecting his rights.** Form of Judgment on Withdrawal of Plea (Title of cause.) The defendant in this cause having withdrawn his plea by him hereto- fore pleaded in this cause, and the damages of the plaintiff on occasion of the premises having been duly assessed at the sum of dollars, over and above his costs and charges by him about his suit in this behalf expended; therefore, it is considered that the said plaintiff do recover against the said defendant his damages aforesaid, together with his costs and charges aforesaid, to be taxed, and that the plaintiff have execution therefor. iBJud. Act, ch. 22, §13; Comp. People v. Wayne Circuit Judge, 22 Laws 1915, §12803. Mich. 493; Hoeft v. Kock, 171 WJud. Act, ch. 22, §13; Comp. Mich. 564. Laws 1915, §12803; Maynard v. 21 Cir. Ct. Rule 32, § 2. Pennimah, 10 Mich. 153; Beals v. 22 Watson v. Hinchman, 41 Mich. Smith, 91 Mich. 146. 716; Cir. Ct. Rule 13. 20 Storey v. Bird, 8 Mich. 316. See § 4 Defaults 479 § 4. Proof to authorize entry of. Before the default of the defendant can be entered for not appearing in a cause, there must be positive and suffi- cient evidence in court of due service upon him, and no substantial defect in that respect can be cured by subse- quent knowledge of the fact. If it is not shown to the court that the party has been duly notified, the court can- not know that he is in default for not appearing.^' Whether the suit be commenced by original writ, by declaration, by writ of attachment or by writ of replevin, the statute allows the default of the defendant to be en- tered only upon proof of service of the writ or declaration by which the suit was commenced,^* showing the manner in which service has been made.^' In a suit commenced by attachment where personal service of the writ is not had upon the defendant, his default for not appearing can- not be entered until due proof has been filed of publica- tion of notice of attachment or proof of personal service upon the defendant not less than fifteen days prior to the filing of such proof of service.^^ Where, however, the defendant has appeared generally in the cause, thereby submitting himself to the jurisdiction of the court, and his default consists in the omission to file or serve his pleading, the proof of service of the process or declara- tion by which the suit was commenced, the only object of which is to establish the jurisdiction of the court over the defendant, is rendered unnecessary. In like manner, when the plaintiff has failed to file his 23 Johnson v. Delbridge, 35 Mich. Wayne Circuit Judge, 111 Mich. 436; People's Mut. Ben. Society v. 247; Jud. Act, ch. 13, §38; Comp. Frazer, 97 Mich. 627; Denison v. Laws 1915, §12441. Smith, 33 Mich. 155. 26 Jud. Act, ch. 26, § 23 ; Comp. 24 Jud. Act, ch. 13, §§ 21, 38, and Laws 1915, § 13050; Wells v. Walsh, ch. 26, §19, ch. 27, §20; Comp. 25 Mich. 344; Thompson v. Thomas, Laws 1915, §§12424, 12441, 13046, 11 Mich. 274; King v. Harrington, 13099. 14 Mich. 532; Woolking v. Haid, 49 25 People's Mut. Ben. Society v. Mich. 299. Frazer, 97 Mich. 627; Campbell v. 480 Defaults § 4 declaration and serve it upon the defendant within the time limited therefor, his default may be filed and judg- ment taken against him upon the basis thereof, unless the default is set aside. ^' Where the default of a party consists of the failure to file and serve his pleading, an affidavit showing that fact is not necessary, for the court will take judicial notice of it.*^^ Where, however, the pleading has been filed and the default consists in a failure to serve a copy, or, in other words and in general, where the fact of the default would not be disclosed by an inspection of the files and entries in the cause, but consists of some extrinsic fact, an affidavit showing the same is a prerequisite to the entry of the default.^^ But even where such affidavit is a prerequisite, its omission will be no ground for reversing the judgment and may be cured nunc pro tunc in the trial court.^° § 5. Rule making default absolute. Under the rule now^ in force, a further order making a default absolute is not necessary. § 6. Reference to assess damages. If the default is taken by the plaintiff for want of a plea, the order should direct that the assessment of dam- ages be made by the court or by a jury at the discretion of the court.^^ § 7. Opening default. The grounds for opening a default are not enumerated in the statutes or rules of court, but ordinarily a motion 27 Cir. Ct. Kule 32, § 1 ; Bender 29 Low v. Mills, 61 Mich. 35. V. Wayne Circuit Judge, 181 Mich. SOBogue v. Prentis, 47 Mich. 124; 50. Leonard v. Woodward, 34 Mich. 514; 28Edson V. La Londe, 88 Mich. Steers v. Holmes, 79 Mich. 430. 162; Leonard v. Woodward, 34 Mich. 31 Cir. Ct. Rule 32, § 2. 514; Bogue v. Prentis, 47 Mich. 124; Steers v. Holmes, 79 Mich. 430; El- liott V, Farwell, 44 Mich. 186. § 7 Defaults 481 to open a default will be granted where the party moves promptly and has not been guilty of inexcusable negli- gence, provided he complies with the rules of court in re- gard to his motion papers. In this connection defaults may be classified as those regularly entered and those irregularly entered. If the default of the defendant has been irregularly entered, the court, on motion, will set it aside as when it is entered before the time allowed for pleading has expired ; ^^ or where the declaration was served before it was filed or rule to plead entered,^^ or, it has been held, where the affidavit of service of the declaration by which the suit was commenced does not show how the service was made.'* Where suit is com- menced by attachment against a non-resident, the court may, in its discretion, set aside the judgment and permit defendant to plead where he has had no notice of the ac- tion in time to make a defense and has been guilty of no laches.'^ In exceptional cases, it seems, the court may vacate a default judgment on his own motion.'^ A default in filing the declaration may also be vacated in a proper case.^''^ Form of Affidavit to Set Aside a Regular Default (Title of court and cause.) County of , ss. K. L., attorney for said defendant, being duly sworn, deposes and says that a copy of the declaration filed in this cause was served upon him by 32 Vohlers v, Wayne Circuit Judge, Padgham, 97 Mich. 623. 171 Mich. 8. 33 Marshall v. Calkins, 114 Mich. Where a non-resident plaintiff 697; South Bend Plow Co. v. Mana- gives security for costs upon an or- han, 62 Mich. 143. der therefor made upon the applica- 34 People 's Mut. Ben. Society v. tion of the defendant, the defend- Wayne Circuit Judge, 97 Mich. 627. ant's default for not pleading, en- 86 Hurlburt v. Keed, 5 Mich. 30. tered upon the same day that the 36 Hoeft v. Kock, 171 Mich. 564, security is filed, is prematurely en- 571. tered, and mandamus will lie to va- 87 Bender v. Wayne Circuit Judge, cate a judgment based thereon, and 181 Mich. 50. to set aside the default. Sankans v. 1 Abbott— 31 482 Defaults § 7 leaving the same in his office during his absence therefrom, but that this deponent did not know of the same until the day of , A. D. , whereupon this deponent forthwith filed a plea to said declara- tion, a copy of which said plea is hereto annexed, and tendered the said annexed copy to J. K., the attorney for the said plaintiff, but that the said J. K. refused to receive the said copy and informed this deponent that the default of the said defendant for not pleading in this cause had been before that time filed. Deponent further says that he first obtained knowledge of the filing of such default by being informed thereof by the said J. K., as aforesaid, and that immediately thereafter, and on the day of , A. D. , he filed an affidavit of merits herein and again tendered to the said plaintiff's attorney the annexed copy of said plea, together with the annexed copy of said affidavit of merits, and then and there offered to pay the aforesaid J. K. the costs of said default (or any other and further offer made to the plaintiff's attorney), if the said J. K. would consent to waive the said defendant's default so filed as aforesaid, but that the said J. K. refused to waive the same, and to accept the said plea. Subscribed, etc. K. L. Form of Affidavit to Set Aside an Irregular Default (Title of court and cause.) County of , ss. K. L., attorney for the above-named defendant, being duly sworn, de- poses and says that a copy of a declaration in this cause was duly served on the day of , A. D , and that, on the day of , A. D , this deponent filed, in the office of the clerk of said court, the defendant's plea to said declaration, a copy of which is hereto annexed, and, upon the same day, he served upon J. K., attorney for the said plaintiff, a copy of said plea, by (here describe the mode of service) . And deponent further says that, although the said defendant's plea was duly filed, and a copy thereof served upon the attorney for said plaintiff, as aforesaid, yet afterwards, on the day of , A. D , the default of the said defendant for not pleading in this cause, was filed herein, and that the said plaintiff is now proceeding to judgment thereon. Subscribed, etc. K. L. § 8. Time for motion. The motion must be made ' ' as soon as practicable after lie shall know or have reason to believe that the default has been filed." ^^ Furthermore, by rule of court, "in all 38 Cir. Ct. Rule 32, § 4. § 8 Defaults 483 cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed. ' ' ^^ Note that there are two conditions, viz.: (1) proceedings must have been taken on the strength thereof, and (2) the default must have been regularly filed. The entry of a judgment is ' ' a proceeding taken after default on the strength thereof," within the meaning of this rule of court;*" but the con- trary is held as to filing a note of issue and demanding a juiy trial.*^ Secondly, the six months ' limitation does not apply to a default irregularly entered.*^ If the default was regularly entered, the circuit court has no jurisdic- tion to open a default entered after personal service after the expiration of such six months." It precludes the trial judge from setting aside the default of a garnishee de- fendant, after such six months, notwithstanding the de- faulted party is a foreigner, and did not understand the process served.** It follows that this rule cannot be in- directly violated by procuring the vacation of a default judgment on a motion for a new trial so as to then pro- cure the opening of the default after the six months on the ground that there were no ''proceedings taken after de- fault on the strength thereof. ' ' ** 39Cir. Ct. Eule 32, §4; Cook v. Turner v. Ottawa Circuit Judge, 123 Wayne Circuit Judge, 197 Mich. 19. Mich. 617. 40Burgard v. Burgard, 175 Mich. 43 Biensteadt v. Clinton Circuit 565; Carpenter v. Judge of Superior Judge, 142 Mich. 633. Court of Grand Eapids, 126 Mich. Order after six months is void. 8; Cook V. Wayne Circuit Judge, Cook v. Wayne Circuit Judge, 197 197 Mich. 19. Mich. 19. 41 Cleveland, C, C. & St. L. E. Co. 44 Petley v. Wayne Circuit Judge, V. Berrien Circuit Judge, 187 Mich. 124 Mir-li. 14. See also Caille Bros. 444. V. Saginaw Circuit Judge, 155 Mich. 48 W. H. Warner Coal Co. v.' Nel- 480. son, 204 Mich. 317; McCain v. 45 Travelers' Ins. Co. v. Kent Cir- Wayne Circuit Judge, 187 Mich. 73; cuit Judge, 144 Mich. 687. 484 Defaults § 9 § 9. Affidavit of merits. The party desiring to have a default set aside must file and serve an affidavit of merits with his application to have the default set aside,*^ except where the default has been irregularly entered, as for instance where the entry was premature.*'^ § 10. Conditions on granting application. In any case where personal sei-vice has been made on a defendant, an order setting aside his default shall be con- ditioned on his payment to the plaintiff of the taxable costs incurred in reliance on said default and the court may impose such other conditions as deemed proper.*' Where the affidavit of merits, shows that there was no substantial merit in the defense up to a specified amount, it is proper to deny the motion on condition that plain- tiff reduces the judgment to that amount." However, it is not within the discretion of the court to limit the de- fense of a city in an action for personal injuries by strik- ing from the plea notice that defendant would give evi- dence that no written notice of the injury was given the proper city department as required by statute.^" An order to show cause will not be granted to inquire into the imposition by a circuit judge of costs as terms for opening a default.*^ § 11. Discretion of court and review thereof. The imposition of costs, and, in general, the determina- tion of applications to set aside defaults, where the de- fault was regularly entered, lie within the discretionary power of the court, and will not be reviewed unless there 46 Cir. Ct. Rule 32, § 4. « Carton v. Day, 157 Mich. 43. 47Vohlers v. E. H. Stafford Mfg. 60 City of Detroit v. Wayne Cir- Co., 171 Mich. 8, 17. euit Judge, 112 Mich. 317. 48 Cir. Ct. Rule 32, § 4. See also 61 People v. Wayne Circuit Judge, Carton v. Day, 157 Mich. 43. 39 Mich. 375. Defects 485 has been a clear abuse of discretion.*^ The matter be- longs exclusively to the practice of the court, and fonns no part of a common law judgment record, so that it can- not constitute a ground for an assignment of error.*^ Mandamus is the proper remedy to correct the action of a court in case of an abuse of its discretionaiy author- ity in the setting aside of defaults,** but it will not lie to compel a circuit judge to set aside a defendant's default when he has failed to file and serve an affidavit of merits as required by the rule.** Form of Rule to Set Aside a Regular Default (Title of court and cause.) On reading and filing affidavits in this cause, and on motion of K. L., attorney for the above-named defendant, and after hearing J. K., attorney for the above-named plaintiff, in opposition thereto, it is ordered that the default heretofore entered in this cause be, and the same hereby is, set aside, on the payment of dollars, costs ; and it is further ordered that the said defendant have days to plead to the declaration of the said plaintiff in this suit. Form of Rule to Set Aside an Irregular Default (Title of court and cause.) On reading and filing affidavits in this cause, and on motion of K. L., attorney for the above-named defendant, and after hearing J. K., the attorney for the said plaintiff, in opposition thereto, it is ordered that the default heretofore entered in this cause and all subsequent proceedings therein be, and the same hereby are, set aside for irregularity, with dollars, costs (and that the said defendant have days to plead). DEFECTS See Amendments and Defects Cured by Verdict. 52 People V. Wayne Circuit Judge 39 Mich. 375; Mills v. McLeod, 94 Mich. 627; People v. Saginaw Cir cuit Judge, 39 Mich. 123; Carton v Day, 157 Mich. 43; Hews v. Hews 145 Mich. 247; City of Detroit v Wayne Circuit Judge, 112 Mich. 317 53 Final v. Backus, 18 Mich. 218 Otherwise, where conditions are im posed. Carton v. Day, 157 Mich. 43. 54 Walsh V. Brevoort, 76 Mich. 470; Eankans v. Padgham, 97 Mich. 623. See also Bender v. Wayne Cir- cuit Judge, 181 Mich. 50. Compare Niehol v. Nevers, 196 Mich. 203. 65 Walsh V. Brevoort, 76 Mich. 470. 486 Defendants DEFENDANTS See Parties. DEFENSES See Actions; Defaults; etc. DEFINITIONS See Actions; Affidavits; Appearance; Attorneys; Bill of Particu- lars; Contempt; Continuances; Courts; Depositions; Executions; Judgments; Nuisances; Pleading; Process; Eeferences; Set-Opf, etc.; Error, Writ of; etc. DEMAND See Bill of Particulars; Jury; Eeplevin; Mandamus; Garnishment; Set-Opf, etc. DEMURRERS Demurrers are abolished by the Judicature Act (see Pleading). DEPARTURE See Quo Warranto. DEPOSITIONS § 1. Statutes in general. § 2. When deposition may be taken in pending proceeding. § 3. Before whom taken. § 4. Notice of taking. § 5. Compelling attendance of witnesses. § 6. Taking depositions by commission. § 7. Notice of taking. § 8. Interrogatories. § 9. Authority of courts to compel witnesses to attend and testify. § 10. How examination conducted. § 11. Disposition of depositions when taken. § 12. When and how objections taken after return of deposition. § 13. Taking depositions to perpetuate testimony. § 14. Taking testimony by stipulation. § 15. Force and effect. § 16. Fees for taking. Cross-Eeferences: References; Bill op Exceptions; Mandamus. § 2 Depositions 487 § 1. Statutes in general. The law relating to depositions is fixed almost entirely by statutes which go extensively into the details as to the practice. In 1895 an entirely new statute was enacted and hence decisions before that time are to be read with cau- tion. The Judicature Act changed the existing statutes only in a few minor respects. § 2. When deposition may be taken in pending proceed- ing. The testimony of any witness may be taken by deposi- tion de bene esse in any civil cause or matter pending in any court of record or before any probate court or commissioners on claims appointed by any probate court, or arbitrators, referees or circuit court commissioners, or justice of the peace in the state of Michigan, or in any other civil proceeding, (1) when the witness is, or is about to go, or resides, out of the State of Michigan, or (2) is about to go or reside more than fifty miles from the place of trial or beyond the jurisdiction of the court, or (3) when the witness is sick, aged or infirm, or where there is reasonable cause for apprehension that his testi- mony cannot be had at the trial of the cause, or (4) where it is needed for use on the hearing of motions, petitions, proceedings for injunctions or upon any other interlocu- tory or other proceeding prior to the final hearing of any cause; and (5) in all cases where affidavits are permitted to be used in proceedings before the court, and (6) when it is desired to take conditionally and perpetuate testi- mony in suits to be begun, and (7) in any other case when it appears to the court or to the judge thereof that the purposes of justice will be aided thereby.^ The deposi- tion of a party to an action may be taken at the instance of the opposing party. ^ iJud. Act, ch. 17, §6; Comp. 116 Midi. 10; St. John v. Wayne Laws 1915, § 12494. Circuit Judge, 161 Mich. 299. 2 Young V. Kent Circuit Judge, 488 Depositions § 3 § 3. Before whom taken. A deposition may be taken before any judge of any court of the United States or of any state of the United States or of any foreign country, or before any commis- sioner of a circuit court in Michigan or of the United States or of any state, or before any consul or consular officer, justice of the peace, officer or notary public au- thorized by the laws of this state or of any other state or of the United States, or by the laws of any foreign coun- try, to administer oaths, not being of counsel or attorney for either of the parties or interested in the event of the cause. The seal of such court or official or a certificate of such authority given under the seal of any court of record is prima facie evidence of authority to act.' § 4. Notice of taking. Reasonable notice must first be given in writing by the party or his attorney proposing to take a deposition to the opposite party or his attorney of record. The notice is required to state the name of the witness, the time and place of taking his deposition and the name of the official before whom it will be taken. In all cases in rem, attach- ment or replevin, the person having the agency or posses- sion of the property at the time of the seizure will be deemed the adverse party until a claim has been put in or an appearance entered in the cause. And whenever, by reason of the absence from the jurisdiction of an adverse party or want of an opposite attorney of record or other reason, the giving of such notice is impracticable, it will be lawful to take such deposition as there is urgent neces- sity for taking, upon such notice as any judge authorized to hold court within the jurisdiction where the suit is pending thinks reasonable and directs.* 3Jud. Act, ch. 17, §6; Coinp. 4 Jud. Act, ch. 17, §6; Comp. Laws 1915, § 12494. Laws 1915, § 12494. § 4 Depositions 489 It is not necessary to file any affidavit or make any other showing preliminary to serving the notice, but the notice should .set out the facts upon which the right to take the deposition depends.^ The question of whether a notice is reasonable is for the trial court to decide, and, in arriving at a conclusion upon it, the court must be governed somewhat by the cir- cumstances surrounding the particular case.® As a gen- eral rule, a notice is sufficiently long if it gives counsel time to prepare for the taking and, by the ordinary means of travel, to reach the place where the testimony is to be taken.' Form of Notice to Take Deposition of Witness in Suit Pending (Title of court and cause.) Sir:— You will please to take notice that the deposition of W. S., of the of , in the state of , as a witness in this cause, will be taken before (name and official designation), at , in the of , in the state of , on the day of , A. D , at o'clock in the noon, for the reason that said W. S. resides out of the State of Michigan (or for any other stat- utory reason as the case may be). Dated, etc. Yours, etc., J. K., Attorney for Plaintiff. To K. L., Attorney for Defendant. Form of Notice to Take Deposition of Witness in Suit to Be Begun Sir:— You will please to take notice that it is desired to take conditionally and perpetuate the testimony of W. S., of the of , in the State of , as a witness in a suit to be begun by A. B., as plaintiff, against C. D., as defendant, and that the deposition of the said W. S. Rule applied to deposition taken 6 Drosdowski v. Supreme Council, on review under Workmen's Com- Order of Chosen Friends, 114 Mich, pensation Act. Hamilton v. Macey 178, where a deposition was ex- Co., 19;j Mich. 747; Shaffer v. eluded because the notice was unrea- D 'Arcy Spring Co., 199 Mich. 537. sonablc under the circumstances. 5 Patterson v. Wabash, etc., R. Co., 7 McCall Co. v. Jacobson, 139 54 Mich. 91; Colton v. Rupert, 60 Mich. 455, where three days held Mich. 318; Wanner v. Wayne Circuit sufficient to prepare. Judge, 169 Mich, 231. 490 Depositions | 4 will accordingly be taken before (name and official designation), at , in the of , in the State of , on the day of , A. D , at o 'clock in the noon. Yours, etc., * To C. D. A. B. § 5. Compelling attendance of witnesses. Any person may be compelled to appear and depose by the order or process of any court and to produce books and papers in the same manner as witnesses may be com- pelled to appear and testify in court.* § 6. Taking- depositions by commission. In any case where the deposition of a witness can be taken upon notice, his deposition may instead be taken under a commission. Any circuit court commissioner in the State of Michigan, or the court in which the proceed- ing is begun or pending, or the judge or clerk thereof, or in cases pending before a justice of the peace, such jus- tice, upon affidavit showing reason therefor, may issue a commission for the taking of the testimony of the witness before any person therein appointed as commissioner.' Upon every such commission, the statute requires that section nine of chapter seventeen of the Judicature Act be printed, for the purpose of instruction to the commis- sioner in the execution of his duties under the com- mission. ^° 8 Jud. Act, ch. 17, § 6; Comp. titled action ; that of Laws 1915, § 12494. is a material witness on behalf of 9 Jud. Act, ch. 17, §7; Comp. deponent in said cause, and with- Laws 1915, § 12495. out whose testimony deponent can- Variance in middle initial of com- not safely proceed to trial; that the missioner not fatal. Cronkhite v. reason for asking the issuance of a Mills, 76 Mich. 669. commission to take the deposition of said witness is that (state one of Form of Affidavit the reasons set forth in Comp. Laws (Title of court and cause.) 3915, § 12494). (Venue.) Subscribed, etc. , being duly sworn, deposes (Signature.) and says that he is the plaintiff 10 Jud. Act, ch. 17, §7; Comp. (or "defendant") in the above en- ,aws 1915, §12495. § 7 Depositions 491 § 7. Notice of taking. Notice is required to be given in all cases to the oppo- site party or his attorney of the time and place of taking testimony under a commission, except that, where default has been entered in the cause, no notice is necessary,^^ unless to a defendant who has regularly appeared, but has not followed his appearance by plea.^^ Form of Commission to Take Testimony In the Name of the People of the State of Michigan. To , of , in the State of , Greeting : Whereas it has been made to appear to the circuit court for the county of , in the State of Michigan, that , of , is a material witness in a certain cause now pending in said court between A. B., as plaintiff, and C. D., as defendant, we, in confidence of your prudence and fidelity, have appointed you to take the testimony of the said wit- ness at the time and place fixed in the notice hereto annexed, and, when taken, signed by said witness and certified by you, to inclose, indorse and transmit the deposition, duly annexed to this commission, forthwith to ^aid court in accordance with the requirements of the statute hereupon printed. Witness, etc. (On the commission must be printed section 9 of Chapter 17 of the Judicature Act.) J. K, Form of Notice of Taking Testimony by Commission (Title of court and cause.) Sir: Please take notice that the testimony of , of , as a witness for the plaintiff (or, defendant) in said cause will be taken by commis- sion before (name and official designation), at , in the of , in the State of , on the day of , A. D at o'clock in the noon. (If interrogatories to be put to the witness by the commissioner are attached to the commission, add the fol- lowing: And that attached hereto is a copy of interrogatories to be put to said witness by said commissioner.) Dated, etc. Yours, etc., J. K., Attorney for Plaintiff (or, Defendant). To K. L., Attorney for Defendant (or, Plaintiff). ll.Jud. Act, ch. 17, §7; Comp. 12 Cir. Ct. Rule 13. Laws 1915, § 12495. 492 Depositions § 8 § 8. Interrog-atories. AVritten interrogatories to be put to the witness by the commissioner may be attached to the commission, and, where this is done, a copy of the interrogatories is re- quired to be attached also to the notice which must be given. Cross and re-direct interrogatories, which it is desired the commissioner shall put to the witness, are re- quired thereupon promptly to be furnished to the re- spective parties and to the commissioner.^^ In regard to the form and substance of the interrogatories, it should be observed that they should be framed carefully upon the principles governing the examination of witnesses in open court, for, although the commissioner has no author- ity to exclude the answers to improper questions, the court has and will exercise it, if objection be properly made, when the deposition is sought to be used on the trial.i* § 9. Authority of courts to compel witnesses to attend and testify. Courts of record of this state have the power to compel the attendance of witnesses and the giving of their testi- mony, and the production of books, papers and other evi- dence, before commissioners or persons authorized to take testimony, and also under commissions or letters rogatory issued out of any court of any other state or of the United States or of anj'- foreign government or coun- try." 13 Jud. Act, ch. 17, §7; Comp. thority of a foreign court may pre- Laws 1915, § 12495. sent in his own name, it seems, a 14 Bliss V. Paine, 11 Mich. 92. petition to the circuit court to com- 15 Jud. Act, ch. 17, §8; Comp. pel the witness to answer questions. Laws 1915, § 12496. Van Dyke v. Doughty, 174 Mich. Procedure where witness refuses to 351. testify, see Wanner v. Mandell, 169 If a witness refuses to answer Mich. 231; St. John v. Wayne Circuit "any legal and pertinent question," Judge, 161 Mich. 299. the statute (Jud. Act, ch. 17, §76; A notary acting under lawful au- Comp. Laws 1915, § 12564) provides § 10 Depositions 493 § 10. How examination conducted. Each witness must be sworn or affirmed by the officer or person empowered to take his testimony to tell the truth, the whole truth and nothing but the truth, concerning the matter at issue in the cause. Every witness may be examined, cross-examined and re-examined orally, and also so examined in addition to written direct or cross interrogatories. Examinations may. be adjourned from time to time. The testimony may be written or taken stenographically and transcribed under the direction of the officer so taking it, and must be signed by the witness and certified as correct by the official before whom it is taken, but signatures of witnesses may be waived in writing by agreement of the parties. ^^ Objections to testimony must be made before the officer taking the testimony, if a party wishes to make objec- tion on the trial when the deposition is read. Such officer has no power to pass upon such objections or to rule out for incompetency any evidence which a party insists upon taking, but the objections are made before him for the purpose of saving the question when the deposition is offered in court.^' that he shall be committed to jail; fied in the notice. But when the and where a notary seeks to compel party on whom the notice was a witness to answer a question in a served, failed to attend, and the com- deposition, the rule is that he should missioner, on account of the absence be required to answer "if it can be of a witness, adjourned the hearing seen that the testimony offered may to another town in the same county, be admissible as affecting any issue and then took the testimony, it was involved in the suit in which it is held that if the party was injured offered." Van Dyke v. Doughty, by the adjournment, his remedy 174 Mich. 351. was to move the court, on a proper 16 Jud. Act, ch. 17, §9; Comp. showing, to suppress the deposition, Laws 1915, § 12497. and not having done so, he could Interpreter may be used. Campan not object to its being read on the v. Dewey, 9 Mich. 381. trial. Wixom v. Stephens, 17 Mich. The examination of witnesses 518. should not be adjourned by the of- 17 Parsons v. Dickinson, 23 Mich, fleer to another town than that speci- 56. 494 Depositions § 10 Form of Deposition (Title of court and cause if suit pending.) Deposition of W, S., the witness (or, one of the witnesses) mentioned in the notice, a copy of which is hereto attached, taken in said cause (or, in the matter mentioned in said notice) before me , a notary public in and for the county of , in the State of , (or, as his official character may be) pursuant to said notice, on the ...... day of , A. D , commencing at o'clock in the noon, at Mr. J. K. appeared as attorney for A. B., mentioned in said notice, and K. L. appeared as attorney for C. D., mentioned in said notice. The said witness having been by me first duly sworn to tell the truth, the whole truth and nothing but the truth concerning the matter at issue in said cause (or, in said matter) testified as follows: (Insert the testi- mony.) W. S. State of , |gg County of ( I hereby certify that the foregoing deposition of W. S. was taken before me at the time and place stated in the notice therefor hereto attached and at the adjourmnents thereof as the same appear therein; that said witness was duly sworn by me to tell the truth, the whole truth and nothing but the truth concerning the matters in issue in said cause (or, in said matter) ; that he was then examined as in the body of said deposition appears; and that said testimony was written (or, was taken stenographic- ally and transcribed) by me (or, under my direction) and signed by said witness; and I hereby certify the same as correct. (Official character.) § 11. Disposition of depositions when taken. A deposition, when taken, is required to be forthwith inclosed by the official before whom it was taken and to be indorsed with the title of the court and cause and that the deposition was taken and sealed up by him and how it is to be sent, which indorsement the official must sign. The deposition must then be transmitted, by mail or otherwise, to tlie court in which the cause is pending, and thereupon be opened by the court or clerk. Written no- tice thereof should then be given by mail or otherwise to § 12 Depositions 495 the parties.*® It will be presumed, in the absence of evi- dence to the contrary, that this notice was given." § 12. When and how objections taken after return of deposition. Objections to notices of, or objections to the manner of, taking tlie testimony, or of certifying or returning the deposition, will be regarded as waived, unless made in writing within ten days after knowledge or notice of the return thereof.^" Such objections must be noticed for hearing before the court, by motion to suppress or other- wise, by the party making them, within five days after they are made, and, if not so noticed for hearing, will be considered as waived.^* It is too late to make them at the trial.^^ But a deposition is not rendered inadmissible by the fact that it has not been on file ten days before being offered in evidence. In such case, the opposite party may m-ake his objections when the deposition is offered.^^ But objections to the answers contained in the deposi- tion may be made at the time they are offered on the trial, if such objections have also been made before the commis- sioner, but not otherwise; and the failure to make objec- 18 Jud. Act, eh. 17, § 9 ; Comp. Cannot object at the trial for the Laws 1915, § 12497. first time that no proof was offered 19 Simonds v. Cash, 136 Mich. 558. to show statutory reason for the ex- 20 Jud. Act, eh. 17, § 9 ; Comp. amination. St. John v. Wayne Cir- Laws 1915, §12497; Cook v. Bell, c»it Judge, 161 Mich. 299. 18 Mich. 387 ; Palms v. Richardson, Objection that notice of taking of 51 Mich. 84; Edwards v. Heuer, 46 deposition did not name officer be- Mich. 95. Formerly the time limit fore whom it was to be taken, or was three days. that a different officer in fact took 21Cir. Ct. Rule 37; Loveland & the deposition, cannot be first urged Hinyan Co. v. Waters, 192 Mich. on the trial. Cohn-€oodnian Co. v. ggO. People's Sav. Bank of Grand Ha- 22 Loveland & Hinyan Co. v. Wa- ven, 203 Mich. 307. ters, 192 Mich. 680; Record Pub. 28 Mc Call v. .Jacobson, 139 Mich. Co. V. Merwin, 115 Mich. 10; Si- 455. monds v. Cash, 136 Mich. 558. 496 Depositions § 12 tion on the trial will be considered a waiver of the objec- tions made before the commissioner.^* § 13. Taking- depositions to perpetuate testimony. To perpetuate testimony, any person who expects to be a party to a suit which may thereafter be commenced in any court of record may cause the testimony of any witness material to him in the prosecution or defense of such suit to be taken conditionally and perpetuated, under a commission issued by any circuit court commis- sioner or judge of a court of record, upon affidavit show- ing the necessity or reason therefor and, so far as known, the persons interested in such matter. The commission must direct upon whom notice shall be served and to what court the deposition shall be returned, and such court will have the custody and control of it until it is required for use in the suit. Testimony so taken may be used in case it cannot again be obtained at the time of trial.2'* § 14. Taking testimony by stipulation. It is competent for the parties to an action, and parties interested in suits to be begun, to have testimony taken and returned in any manner agreed upon by stipulation in writing.^^ § 15. Force and effect. Depositions may be read and considered in evidence at the trial or on any hearing and on appeals and re-trials of the same cause of action, but the court may so regulate their use as to prevent abuses, and may order the re-tak- ing of testimony or the production of a witness, if within the jurisdiction, notwithstanding his deposition has been 24 Parsons v. Dickinson, 23 Mich. 26 Jud. Act, cli. 17, §11; Comp. 56. Laws 1915, §12499. 25 Jud. Act, ch. 17, §10; Comp. Laws 1915, § 12498. § 15 Depositions 497 taken. And in any case, either party may obtain a sub- poena and compel the usual attendance and the re-ex- amination of a witness, notwithstanding his deposition has been taken, if he is within the jurisdiction of the court and able to attend and give his testimony." It has been held that before a deposition taken on a no- tice can be read in evidence on the trial, if objection be interposed, it must be made to appear satisfactorily to the judge that the reason stated in the notice for taking the deposition existed at the time it was taken, and that an undisputed affidavit would be sufficient, but if contra- dicted under oath, the court must pass upon the issue; ^' but it seems that it need not be shown that the reasons stated in the affidavit still exist. ^^ When a deposition has been taken by either party, it may at any time be read in evidence by the other party on the trial.^° A deposition taken while a case was pending in the federal court is admissible in the circuit court to which it was remanded for want of jurisdiction in the federal 27 Jud. Act, ch. 17, §12; Comp. animation. Baker v. Temple, 160 Laws 1915, §12500; Woolenslagle Mich. 318. V. Runals, 76 Mich. 545 ; Johnson v. Continuance to perfect certifica- Federal Union Surety Co., 194 Mich. tion of deposition of non-resident 292. witness, see Christopherson v. Metro- That depositions may be read in politan Life Ins. Co., 199 Mich. 634. other actions or proceedings, see 28 Wanner v. Wayne Circuit Woolenslagle v. Runals, 76 Mich. Judge, 169 Mich. 231; Paterson v. 545; Campau v. Dubois, 39 Mich. Wabash R. Co., 54 Mich. 91. 274. 29 Talcott v. Freedman, 140 Mich. Amendment of process or pleading 32, 37, expl 'g Enilaw v. Emlaw, 20 not altering the substance of the Mich. 11, as having been decided issue, does not render deposition in- under an earlier statute. See also admissible. Holdridge v. Farmers' Taylor v. Taylor's Estate, 138 Mich. & Mechanics' Bank, 16 Mich. 66. 658. A deposition used as evidence of 80 Cir. Ct. Rule 37. See also Mc- the very facts plaintiff sought to Donald v. Smith, 139 Mich. 211, show by his direct testimony is ad- holding party may read cross-exami- missible in its entirety, and the nation of witnesses from deposition court cannot exclude the direct ex- taken by his opponent. 1 Abbott— 32 498 Depositions § 15 court, where counsel had notice of the taking of the deposition and cross-examined the witness.^^ But a depo- sition taken in another action, brought by different coun- sel, and where the parties are not the same, is not ad- missible.^'^ The statute relating to the time to make objections to depositions, and limiting it to ten days after the return, does not require the deposition to be filed ten days before it is admissible in evidence.^' Where a party reads the cross-examination of witnesses from depositions taken by his adversary, the latter cannot complain that the direct examination was not read since it is his duty to read it himself if to his interest.'* If a deposition is taken under a stipulation to use it only if the witness should be unable to attend court, it may be read where affidavits as to the inability of the witness to attend court are met only by unsworn statements of counsel.'* The answer of a wit- ness is not admissible unless it would have been admitted had he been examined in open court,'^ but the death of the witness before the cause is heard does not render his deposition inadmissible." The admission in evidence of a second deposition, taken after due notice, to bring out facts not shown in the first deposition, rests in the sound discretion of the court.'' § 16. Fees for taking". The fees for taking depositions are fixed by law as fol- lows: For taking, certifying, sealing and forwarding depositions, two dollars, and for each one hundred words 81 Johnson v. Federal Union 35 Styles v. Village of Decatur, Surety Co., 194 Mich. 292. Ul Mich. 443. 32Larsen v. Home Tel. Co., 164 36 Bliss v. Paine, 11 Mich. 92. Mich. 295, 32.3. 37 Matson v. Melchor, 42 Mich. 33McCall Co. v. Jacobson, 139 477. Mich. 455. 38 Fredonia National Bank v. 34 McDonald v. Smith, 139 Mich. Tommei, 131 Mich. 674. 211. Detinue 499 contained in a deposition, ten cents, which will be con- sidered as costs in the case; and for copies of testimony furnished to any party, three cents for each one hundred words contained in such copy. Each party must pay for his own examinations or cross-examinations in the first instance.^' DEPUTIES See Clerks of Coxibt; Sheriffs. DESCRIPTION See Attachment; Replevin; Ejectment. DETENTION See Replevin, DETINUE The action of detinue was formerly the only remedy by suit at law for the recovery of a personal chattel in specie except in those instances where the party could obtain possession by replevying the same and by action of replevin,^ but now it has been abolished by statute in this state ^ and its place supplied by the action of re- plevin. Detinue was an action for depriving one of the possession of personalty acquired originally by lawful means. Thus, if A lends B a horse and B refuses to re- store it, the injury consists in the detaining, not in the original taking, and possession could have been recov- ered by an action of detinue.^ The action is classified by some authorities as in form ex contractu and by others as in form ex delicto. It is 39Jud. Act, ch. 17, §13; Comp. 3 And. Law Diet. tit. "Detinue," Laws 1915, § 12501, citing 3 Cooley's Bl. Comm. lol, 11 Chit. PI. 136. 152; Story, Eq. sees. 692-711, 90G. 2 Jud. Act, ch. 11, §1; Comp. Laws 1915, § 12350. See also Ac- tions. 500 Detinue somewhat peculiar in its nature, and it may be difficult to decide which is the proper classification. In truth, it seems to belong almost, if not quite, as much to one class as to the other. The history of the action, from which it appears that detinue was originally no other than an action of debt in the detinet, confirms the posi- tion that it should be considered rather as an action ex contractu than one ex delicto, as does also the fact that it could be joined with the action of debt.* But it is also said that the gist of the action is not the breach of a contract, but the wrongful detainer, and this, with other reasons that might be presented, may justify its treat- ment as an action ex delicto.* DIAGRAMS See Trial. DICTA See CouETS. DIRECT EXAMINATION See Witnesses. DIRECTING VERDICT See Teial. DIRECTORS See Quo Warranto. DISBARMENT See Attorneys. DISBURSEMENTS See Costs; Supreme Court. 4 2 Eeevc, Hist. Eng. Law, 261, to think of tlie latter as an action 333, 336; 3 Eeeve, Hist. Eng. Law, on contract, without regarding its gg 74 phase as an action on the case, there 6 In respect of its two-fold na- was a tendency to regard detinue as ture, detinue closely resembled as- in form ex delicto and to ignore the siimpsit, and while it was the usage element of contract in it. § 1 Discontinuance and Voluntary Nonsuit 501 DISCHARGE See References; Bail; Executions; Jury; Trial; Mortgages; Con- tempt. DISCLOSURE See Garnishment. DISCONTINUANCE AND VOLUNTARY NONSUIT § 1. Eight to discontinue or submit to nonsuit. § 2. Withdrawal of part of claim. § 3. Payment of costs as condition precedent. § 4. Effect of discontinuance. § 5. Discontinuance as to part of defendants. § 6. Necessity for where too many sued. § 7. Discontinuance as to some of defendants when others are in default. § 8. Discontinuance of appeal cases. § 9. Discontinuance as to some of several defendants in actions ex delicto. § 10. Court may order dismissal as to any defendant. § 11. Setting aside or waiver of nonsuit. § 1. Right to discontinue or submit to nonsuit. The Judicature Act provides that plaintiff shall not be allowed to discontinue his suit or submit to a non- suit without the consent of the defendant, where defend- ant has given notice of a set-off or recoupment.^ The 1916 Circuit Court Rules provide that ' ' the plaintiff may, at any time, upon notice to the defendant or his attorney, and on the payment of costs, discontinue his suit by order filed in the cause, except where a recoupment or a set-off is asserted by the defendant. " ^ A statute passed in 1915 provides that ''whenever the defendant shall have entered upon his defense to the action in open court, the plaintiff shall not be peimitted to discontinue his suit or submit to a nonsuit without the consent of the defend- ant." * It will be noticed that there is a conflict between the latter statute and the rule of court.* At common IJud. Act, ch. 15, §8; Comp. 8 Pub. Acts 1915, No. 200. Laws 1915, §12475. 4 "If both the statutes and the 2 Cir. Ct. Eule 43. rule remain in force untU the ques- 502 Discontinuance and Voluntary Nonsuit § 1 law, plaintiff could submit to a nonsuit at any time be- fore verdict; ^ and the 1915 statute is designed, it is said, '*to prevent a plaintiff from discontinuing his suit or submitting to a nonsuit without the consent of the de- fendant, where the defendant, who had been to the ex- pense and trouble of procuring witnesses, had entered upon his defense in open court by putting in his testi- mony upon the merits, and that the act was not intended to apply to those cases where no witnesses were procured, no defense made on the facts, and only legal questions are raised."^ In its discretion, the court may refuse to withdraw a juror because of an absent witness J Form of Rule to Discontinue on Payment of Costs (Title of court and cause.) On motion of J. K., attorney for the above-named plaintiff, it is ordered that this action be discontinued, upon the payment of the said defendant's costs, to be taxed. Dated, etc. J. K., Attorney for Plaintiff. Fonn of Rule by Consent to Discontinue Without Costs (Title of court and cause.) On reading and filing consent in this cause, and on motion of J. K., attorney for the above-named plaintiff, it is ordered that this suit be, and the same hereby is, discontinued, without costs. Dated, etc. J. K., Attorney for Plaintiff. tion is raised as to whether the Act." Searl's Mich. Court Eules power to control mere matters of 199- court procedure is vested in the su- 5 Mintz v. Soule, 200 Mich. 9; preme court instead of in the legis- I^^^'is v. Detroit United Ey., 162 lature, by the Constitution, a vexed ^^^^^- 240; Deneen v. Houghton question-which should have been County St. R. Co., 150 Mich. 235. settled fifty years ago-may finally ' ^^^*^, ^- ^«"^^' ^00 Mich. 9, , -i.ji-, v. ■!•• .V where defendant had not put in any be decided; but a decision thereon ., , , , , ^„ ,;' evidence but had moved for a di- m accordance with the judgment of ^^^^^^ ^^^^.^^ ^^ ^^^ ^^^^^ ^^ p^^.^ many able lawyers, may also en- tiff's case. danger certain provisions— but not 7 Howeroft v. Detroit United Ry., necessarily all — of the Judicature 163 Mich. 608, 611. § 3 Discontinuance and Voluntary Nonsuit 503 Form of Rule to Discontinue, the Defendant's Costs Having Been Paid The costs of the said defendant in this suit having been fully paid, on motion of J. K., attorney for the above-named plaintiff, it is ordered that this suit be, and the same hereby is, discontinued. Dated, etc. Attorney for Plaintiff. Form of Judgment on a Voluntary Non-Suit When the Case Is Tried by a Jury (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, thereupon came a jury, to wit (insert the names of the jurors), good and lawful men, who, being duly chosen, tried and sworn well and truly to try the issue between the parties, sat together and for a time heard the proofs and allegations of the parties, whereupon the said plaintiff now here voluntarily submits to become non-suit and does not further prosecute his suit against the said defendant. Therefore, it is considered that the said plaintiff take nothing by his suit, and that the defendant do go thereof without day; and it is further considered that the defendant do recover against the said plaintiff his costs and charges by him about his defense in this behalf expended, to be taxed, and that the defendant have execution therefor. § 2. Withdrawal of part of claim. However, the plaintiff may withdraw certain items of his claim from the consideration of the court and jury without the consent of the defendant where the defend- ant asserts a set-off,^ although, on principle, he would not be allowed, without the consent of the defendant, to withdraw any item as to which the defendant has -given notice of recoupment. § 3. Payment of costs as condition precedent. It is not necessary that the costs should be actually paid by the plaintiff before the discontinuance of his suit becomes effectual. The rule requiring payment of costs is to be construed as authorizing discontinuance on the terms of paying the costs, and, when the notice of dis- continuance has been given, the discontinuance is deemed to be in effect, although the costs be not paid. They are SBusch V. Jones, 94 Mich. 223. 504 Discontinuance and Voluntary Nonsuit § 3 to be paid when taxed. If the plaintiff then refuses to pay them, he would lose the benefit of the rule for dis- continuance, and his suit would be treated as still pend- ing for the purpose of a motion to dismiss a new suit commenced by him for the same cause of action,® or the defendant may proceed in the cause, treating the rule as a nullity." § 4. Effect of discontinuance. The discontinuance of a suit is not conclusive of the plaintiff's cause of action, but operates merely to termi- nate the particular suit, leaving the plaintiff at liberty in all respects to commence another as if the discontinued suit had never been commenced." This right, however, in cases where the defendant is held to bail, will not be allowed to be exercised to such an extent and in such a manner that it becomes apparent that the purpose of the plaintiff is unnecessarily to oppress the defendant." Where there are two or more defendants, a discontin- uance as to some of them will operate as a discontinuance as to the others also, unless the action might have been maintained against the others in the first instance. Thus, a discontinuance as to one of several joint obligors is a discontinuance as to all," but a discontinuance as to one of two obligors severally bound or as to part of several OSlocomb V. Thatcher, 20 Mich. v. Thatcher, 20 Mich. 52; Shank 52. V. Woodworth, 111 Mich. 642; lOSlocomb V. Thatcher, 20 Mich. French v. Weise, 112 Mich. 586. 52; Morrison v. Ide, 4 How. Pr. 12 1 Archb. Pr. 53. (N. Y.) 304, 3 Code R. 27; James 13 Munn v. Haynes, 46 Mich. 140; V. Delevan, 7 Wend. (N. Y.) 511; Van Leyen v. Wreford, 81. Mich. Huntington v. Forkson, 7 Hill (N. 606; Winslow v. Herrick, 9 Mich. Y.) 195; Hicks v. Brennan, 10 Abb. 380; Anderson v. Robinson, 38 Mich. Pr. (N. Y.) 420; McKenster v. 407; Ballon v. Hill, 23 Mich. 60; Van Zandt, 1 Wend. (N. Y.) 13; Candee v. Clark, 2 Mich. 255; Mace Pignolet V. Daveu, 2 Hill (N. Y.) v. Page, 33 Mich. 38; J. A. Fay 584. & Co. V. James Jenks & Co., 78 11 Deneen v. Houghton County Mich. 312; Post v. Shafer, 63 Mich. St. R. Co., 150 Mich. 235; Slocomb 85. § 5 Discontinuance and Voluntary Nonsuit 505 joint tortfeasors, or, in general, as to any party or par- ties either unnecessarily or improperly joined as defend- ants, does not effect a discontinuance as to the remaining defendant or defendants.^* The discontinuance of a suit commenced by capias ad respondendum will entitle the defendant to be discharged from arrest, if he is in custody, and, if he has given an appearance bond, it releases both the sureties thereon and the sheriff from liability for the defendant's appear- ance by putting in and perfecting special bail. If special bail has been put in, a discontinuance terminates the liability of such bail. The discontinuance of a suit in which property has been attached releases the attachment lien. If property has been delivered to the plaintiff on a writ of replevin or is in the custody of the sheriff awaiting the execution of delivery bonds, a discontinuance of the suit entitles the defendant to a return of the property, and if the prop- erty, having been replevied, has been returned to the de- fendant on his giving a sufficient delivery bond, the dis- continuance of the suit effectuates the discharge of such bond. And where, as ancillary to a suit, garnishment proceedings are pending, a discontinuance of such suit terminates also the garnishment proceedings. § 5. Discontinuance as to part of defendants. It is provided by rule of court that, when an action is brought against several persons, the plaintiff shall, at any time before the final submission of the cause, be allowed to discontinue as against any of the defendants, upon the payment of their taxable costs and such other terms as the court shall direct, and that the declaration will thereupon be deemed to be amended and the case may proceed against the other defendants in like man- 14 Thomas v. Hoffman, 22 Mich. Shipman v. Allee, 29 Tex. 17; Allen 45; Cook v. Perry, 43 Mich. 623; v. Craig, 13 N. J. L. 294. Craft V. Smith, 35 N. J. L. 302; 506 DiSCOXTIXUAXCE AXD VOLUXTARY NOXSUIT § 5 ner as if the action had been originally brought against them alone. ^^ The parties against whom he enters judg- ment cannot complain of the discontinuance as to other parties unless the latter are jointly obligated with them.^^ This rule does not in any respect change the well settled principles relating to the liability of several persons jointly, or jointly and severally, obligated, but seeks only to mitigate, for the promotion of justice, the inconven- ience formerly consequent upon the misjoinder of parties defendant. It was not intended to transform a joint ob- ligation into a several one or to permit a plaintiff to re- cover upon a joint obligation against fewer than all the joint obligors or against more than one and fewer than all jointly and severally bound, but to enable him to re- cover against such defendants as might have been pro- ceeded against regularly in the first instance.^"' The rule is not designed to change any legal rights, but merely to enable a plaintiff who has sued more parties than he can recover against to amend his case by declaring against the real debtors." The discontinuance in these cases is not a matter of right, but must be by leave of court and on such terms as will do no injustice, and, where a discontinuance ought not to have been allowed, its allowance is reversible error, ^^ § 6. Necessity for where too many sued. Under the early practice, where it appeared that a plaintiff had sued too many defendants as joint obligors, ISCir. Ct. Rule 43, §2, which Mieh. 140; Root & MeBride Co. v. modifies former rule 27 in minor Walton Salt Ass'n, 140 Mich. 441 respects as to costs and amend- McPhersou v. Pinch, 119 Mich. 36 ment; Cook v. Perry, 43 Mich. 623. Wright v. Reinelt, 118 Mich. 639 Actual amendment not necessary, Durgin v. Smith, 116 Mich. 239 see Rimmele v. Huebner, 190 Mich. Hoek v. Allendale Tp., 161 Mich. 247, 251. 571. 16 Phelps V. Church, 65 Mich. 231. 18 Winslow v. Herrick, 9 Mich. 17 Anderson v. Robinson, 38 Mich. 380. 407. See also Codd v. Seitz, 94 19 Post v. Shafer, 63 Mich. So; Mich. 191; Munn v. Haynes, 46 Yawkey v. Richardson, 9 Mich. 529. § 6 DiSCOXTIXUAXCE AND VoLUNTAKY NONSUIT 507 his only recourse, in order to save his action, was to ap- ply for leave to discontinue as to the defendants im- properly joined, but now it is provided by rule that, in case an action is brought against two or more defend- ants, the plaintiff shall not be required to discontinue as to any of them, but the juiy shall show by their ver- dict or the court by its finding, in a trial by the court without a jury, which of them are, and which of them are not, liable to the plaintiff, and judgment shall be given accordingly.^" This rule was adopted with a view of preventing mistrials in cases where, before its adop- tion, the plaintiff failed entirely because of his inability to establish a liability against all of the defendants.^^ This rule of court is not confined in its application to actions ex contractu but also applies to actions ex de- licto.^^ Under this rule, plaintiff cannot be required to elect, at the beginning of the trial or during its progress, whether he will ask for a joint judgment or a several judgment.^^ So this rule has been applied so as to defeat a motion to compel plaintiff to elect between two defend- ants where it was admitted that only one of the defend- ants was liable, but which one was liable was a question of fact for the jury.^* There is ' ' nothing in this rule that 20 Cir. Ct. Bule 43, § 3. To like there is no evidence at the close of effect, see Jud. Act, ch. 12, § 15 ; the plaintiff 's case. Johnston v. Comp. Laws 1915, §12366; Root Cornelius, 193 Mich. 115; Pruner & McBride Co. v. Walton Salt \. Detroit United Ry., 173 Mich. 146. Ass'n, 140 Mich. 441; Durgin v. 21 Durgin v. Smith, 115 Mich. 239; Smith, 116 Mich. 239; Wright v. McPherson v. Pinch, 119 Mich. 36. Eeinelt, 118 Mich. 639; McPherson 22 Pruner v. Detroit United Hj., V. Pinch, 119 Mich. 36; Munn v. 173 Mich. 146, 149, holding there- Haynes, 46 Mich. 140; Codd v. under that it is proper to join a Seitz, 94 Mich. 193; Rimmele v. city and a street car company as Huebner, 190 Mich. 247; Mally v. defendants in an action for personal Excelsior Wrapper Co., 181 Mich. injuries. 568; Anderson v. Fruitvale Transp. 23 Rimmele v. Huebner, 190 Mich. Co., 195 Mich. 734. 247, 250. The court may direct a verdict as 24 Mally v. Excelsior Wrapping to any defendant against whom Co., 181 Mich. 568, 574. 508 Discontinuance and Voluntary Nonsuit § 6 interferes with the court's authority and duty to direct a verdict in behalf of any joint defendant against whom there is no evidence of liability, at the close of the plain- tiff's case;"^^ and the rule does not preclude the grant- ing of a motion in the nature of a demurrer to dismiss the action as to a moving defendant on the ground that no cause of action is stated against liim.^^ It was held that this rule had no application to cases appealed from justice's court.^' § 7. Discontinuance as to some of defendants when others are in default. Where a plaintiff has declared against several persons upon a joint obligation and has entered the default of some of them, he cannot discontinue as to the others and assess the debt or damages against the defendants in default, for the default was taken upon, and was in ef- fect an acknowledgment of, the particular obligation de- clared upon, and not any other whatever, and the de- fendants must be given an opportunity to be heard upon the new form of the declaration.*^^ The proper practice would be to serve the amended declaration on the de- faulted defendants and give them the opportunity to con- test the right to proceed against them alone.^® But where a plaintiff has joined the several parties to a bill of exchange or promissory note, instead of bring- ing separate actions against them, and a default has been entered against part of them, he may discontinue as to the others and proceed to judgment against the defend- ants in default in the same manner as if the suit had been commenced against them alone.^" 26 Johnston v. Cornelius, 193 Mich. 28 Munu v. Haynea, 46 Mich. 140; 115. Winslow V. Herrick, 9 Mich. 380. 26 Bowers v. Gates, 201 Mich. 146. 29 Munn v. Haynes, 46 Mich. 140. 27 Wright v. Keinelt, 118 Mich. 30 Maynard v. Penniman, 10 Mich. 638. 153; Bcals v. Smith, 91 Mich. 146. § 10 Discontinuance and Voluntary Nonsuit 509 §8. Discontinuance of appeal cases. The fact that a suit pending in a circuit court did not originate there, but was brought there by an appeal from a justice's court, is generally immaterial so far as the right of the plaintiff to discontinue is concerned. He may discontinue his suit in the same manner as if the suit were commenced in the circuit court.^^ But it has been held that the rule authorizing the plaintiff to dis- continue as to any of several defendants at any time be- fore the submission of the cause ^^ does not apply to cases appealed from justice 's court,^' although it has also been held that where, in an appeal case, it appeared that one of several defendants was not liable because of his infancy, the plaintiff might discontinue as to him.^* § 9. Discontinuance as to some of several defendants in actions ex delicto. One who is injured by a tort for which several persons are liable may generally include all or any number of them in one action as parties defendant.'^ When, there- fore, several joint tort-feasors are joined in one action, the plaintiff may discontinue his suit as to any of them and proceed against the others in the same manner as if the latter had been originally the only defendants.'^ § 10. Court may order a dismissal as to any defendant. While a rule previously alluded to '' provides that the plaintiff shall not be required to discontinue his suit as to any of several defendants, it was not thereby intended to deprive any defendant of the riglit to object to such 31 Taylor v. Dansby, 42 Mich. 82 ; Co., 54 Mich. 91 ; Bish. Non-Cont. Chandler v. Lawrence, 3 Mich. 261; Law, sec. 521. Franks v. Fecheimer, 44 Mich. 177. 36 Allen v. Craig, 13 N. J. L. 294; 82 Cir. Ct. Eule 43, § 3. Ilondrickson v. Herbert, 38 N. J. 33 Anderson v. Eobinson, 38 Mich. L. 298 ; Reynolds v. Simpkins, 67 407. Ala. 378. 34 Taylor v. Dansby, 42 Mich. 82. 87 Cir. Ct. Rule 43, § 3. 86 Patterson v. Wabash, etc., R. 510 Discontinuance and Voluntary Nonsuit § 10 defects or irregularities in the service of process or other proceeding as entitle him, on a seasonable motion, to have the suit dismissed as to him.^^ § 11. Setting- aside or waiver of non-suit. After a plaintiff has submitted to a non-suit, he may move the court to set it aside. Such an application is addressed to the discretion of the court,^® and it may be granted either absolutely or upon the payment of costs or such other reasonable terms as the court may see fit to attach,*'' even tliough another suit by the plaintiff would be barred by the statute of limitations.*^ If the non-suit is set aside, the cause is open for hearing.*^ A non-suit may also be waived by the defendant, either ex- pressly or by implication, as, where, under the former practice, the defendant noticed the case for trial,*^ and, in like manner, may the conditions upon which a non- suit is vacated be waived by the defendant.** DISCOVERY AND INSPECTION OF PAPERS § 1. In general. § 2. Mode of applying and to whom. § 3. Grounds for application. § 4. Grounds for refusing application. § 5. Contents of petition. § 6. Eule or order. § 7. Vacation of order. § 8. Effect of order as stay. § 9. Penalty for disobedience of order. § 10. Effect of production of papers. Cross-Eefcreiiccs: Mandamus; Evidence. 38 See § 6, ante. *1 Eeaunie v. Wayne Circuit 39 People v. St. Clair Circuit .Judge, 130 Mich. 245. Judge, 37 Mich. 131. 42 Johnson v. Shepard, 35 Mich. Where obtained fraudulently, dis- 115; Lindsay v. Wayne Circuit continuance should be set aside. Judge, 63 Mich. 735. Thompson v. Bay Circuit Judge, 138 43 People v. Wayne Circuit Mich. 81. Judge, 35 Mich. 498. 40Higley v. Lant, 3 Mich. 612. 44 Higley v. Lant, 3 Mich. 612. § 3 Discovery and Inspection of Papers 511 § 1. In general. By statute, *'tlie supreme court shall have power, in all such cases as shall be deemed proper, to compel any- party to a suit pending therein, to produce and discover books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defense therein," and such court shall, by general rules, pre- scribe the cases in which such discovery may be com- pelled, where the same are not herein provided, and the costs of such proceedings shall always be awarded in the discretion of the court. ' ' ^ Pursuant 'to the latter clause the present Circuit Court Rule 49 provides in detail in regard thereto. § 2. Mode of applying and to whom. The application is by petition which must be made to any circuit court in term time or to the judge thereof in vacation.^ §3. Grounds for application. By rule of court,^ application may be made to compel the production and discovery of books, papers and docu- ments relating to the merits of any suit pending in such court, or of any defense to such suit, in the following cases: 1. By the plaintiff, to compel the discovery of papers or documents in the possession or under the control of the defendant, which may be necessary to enable the plaintiff to declare or answer to any pleading of the de- fendant. 1 Jud. Act, ch. 1, §§17, 18; Comp. tainable, mandamus lies to vacate Laws 1915, §§12022, 12023. an order requiring plaintiff to pro- 2 Jud. Act, ch. 1, §19; Comp, duce certain books and papers to Laws 1915, §12024; Cir. Ct. Rule prepare for trial to maintain such 49. defense. International Harvester 3 Cir. Ct. Eule 49. Co. v. Eaton Circuit Judge, 163 If alleged defense is not main- Midi. .1;". 512 Discovery and Inspection of Papers § 3 2. The plaintiff may be compelled to make the dis- covery of papers or documents, where the same shall be necessaiy to enable the defendant to answer any plead- ing of the plaintiff. 3. The plaintiff may be compelled, after declaring, and the defendant, after pleading, to produce and discover all papers or documents on which the action or defense is grounded. 4. After issue joined in any action, either party may be compelled to produce and discover all such books, papers and documents, as may be necessary to enable the party applying for such discovery to prepare for the trial of the cause. In short, a discovery may be compelled either to en- able a party to plead or to enable a party to prepare for trial. § 4. Grounds for refusing- application. It is no ground for refusal that the adverse party does not admit the existence of the papers, nor that other per- sons are interested therein, nor that the facts can all be brought out by calling the proper parties as witnesses.* Except, perhaps, where a tnist relation exists,^ produc- tion of books and papers will not be ordered to prepare for trial unless their production is indispensably neces- sary,^ and hence will not be ordered where they can be obtained by subpoena duces tecum.''^ But where the in- 4 People V. Newaygo Circuit 7 Ashley v. Calhoun Circuit Judge, Judge, 41 Mich. 258. 138 Mich. 44; Preston Nat. Bank 8 Eddy V. Bay Circuit Judge, 114 v. Wayne Circuit Judge, 137 Mich. Mich. 668; Anti-Kalsomine Co. v. 152; People v. Kent Circuit Judge, Kent Circuit Judge, 120 Mich. 250. 38 Mich. 351. But see Smith v. These two cases are explained in Wayne Circuit Judge, 158 Mich. Preston Nat. Bank v. Wayne Cir- 588, where discovery was sought to cuit Judge, 137 Mich. 152. enable plaintiff to furnish a further 6 People V. Kent Circuit Judge, bill of particulars. 38 Mich. 351; Ashley v. Calhoun Circuit Judge, 138 Mich. 44. § 6 Discovery and Inspection of Papers 513 strument sued on gives the right of inspection, plaintiff is entitled to an order for snch inspection without show- ing a necessity therefor or that a subpoena duces tecum would not compel its production at the trial.® And it seems, that where the discovery is not to prepare for trial but to enable a party to plead, the petition need not nega- tive the ability to obtain the production of the papers by subpoena duces tecum.^ § 5. Contents of petition. The petition for such discovery must state the facts and circumstances on which the same is claimed, and must be verified by affidavit, stating that the books, papers and documents whereof discovery is sought, are not in the possession or under the control of the party applying therefor, and that the party making such affi- davit is advised by his counsel, and verily believes, that the discovery of the books, papers or documents men- tioned in such petition, is necessary to enable him to de- clare, or answer, or to prepare for trial, as the case may be.i° § 6. Rule or order. The order may be for the discovery sought or to show cause why the prayer of the petition should not be granted." The rule granting the discovery is reciuired to specify the mode in which the same is to be made, which may be either by requiring the party to deliver sworn copies of matters to be discovered, or by requir- ing him to produce and deposit the same with the clerk of the court in which the trial is to be had. The order must also specify the time within which the discovery 8 London Guarantee & Accident 10 Cir. Ct. Bule 49, § 2. Co. V. Wayne Circuit Judge, 146 llJud. Act, ch. 1, §19; Comp. Mich. 477. Laws 1915, § 12024. 9 Smith V. Wayne Circuit Judge, 158 Mich. 588. 1 Abljott— 33 514 Discovery and Inspection op Papers § 6 should be made. The court, or presiding judge thereof, in granting such order, must be governed by the prin- ciples and practice of the court of chancery in compelling discovery, except that the costs of such proceedings shall always be awarded in the discretion of the court.^'^ § 7. Vacation of order. Every such order may be vacated by the court, or the judge granting the same: 1. Upon satisfactory evidence that it should not have been granted. 2. Upon the discovery sought being obtained. 3. Upon the party requiring to make discovery deny- ing on oath the possession or control of the books, papers or documents ordered so to be produced.^^ § 8. Effect of order as stay. The order directing the discovery of books, papers or documents, shall operate as a stay of all other proceed- ings in the cause, until such order shall have been com- plied with or vacated; and the party obtaining such or- der, after the same shall have been complied with or vacated, shall have the like time to declare, plead or answer, to which he was entitled at the time of making the order.^* § 9. Penalty for disobedience of order. In case of the party refusing or neglecting to obey such order for a discovery, within such time as the court shall deem reasonable, the court may non-suit him, or may strike out any plea or notice he may have given, or may debar him from any particular defense in relation to which such discovery w^as sought; and the power of 12Cir. Ct. Rule 49, §§ 3, 4. 14 Cir. Ct. Rule 49, §6. ISJud. Act, ch. 1, §20; Comp. Laws 1915, §1202!); Cir. Ct. Rule 49, §5. Dismissal for Want of Prosecution 515 the court to compel such discovery shall be confined to the remedies herein provided, and shall not extend to authorize any other proceedings against the person or property of the party so refusing or neglecting.^^ § 10. Effect of production of papers. The books, papers and documents, or sworn copies thereof, produced under any order made in pursuance of the preceding rules, shall have the same effect, when used by the party requiring them, as if produced upon notice according to the practice of the court.^^ DISCRETION OF COURT Many interlocutory orders rest in the discretion of the court (see Continuance; Pleading, etc.). So the award- ing of costs is sometimes discretionary (see Costs; Su- preme Court; Error, Writ of). Certain writs are also generally held to be discretionary (see Certiorari; Error, Writ of; Mandamus; Prohibition; Quo Warranto; Habeas Corpus). Discretionary rulings are not reviewable on certiorari (see Certiorari) or writ of error (see Error, Writ of) unless there has been an abuse of discretion. Mandamus does not lie to review or coerce acts of dis- cretion except in case of abuse (see Mandamus). DISMISSAL See Replevin; Garnishment; Security for Costs; Limitation of Ac- tions; Certiorari; Error, Writ of; Probate Courts; Justices of the Peiace; Supreme Court; Mandamus. Dismissal where plaintiff refuses to appear as a witness or to testify, see Jud. Act, ch. 17, § 72 ; Comp. Laws 1915, § 12560. DISMISSAL FOR WANT OF PROSECUTION The Judicature Act changes the former procedure to some extent in regard to dismissals for failure to proso- 16 Jud. Act, ch. 1, §22; Comp. 16 Jud. Act, ch. 1, §23; Comp. Laws 1915, §12027; Cir. Ct. Eule Laws 1915, §12028; Cir. Ct. Rule 49, §7. 49, §8. 516 Dismissal for Want op Peosecution cute. It provides that all cases in which no action has been taken or progress made for more than a year, mi- less, by reason of the business of the court, the same have not been reached, shall be placed upon the calendar for the next ensuing term separate and apart from all other causes and that, on the first day of the term, every such cause shall be dismissed by the court for want of prose- cution, but without prejudice, at the cost of the party by whom it was brought into court, unless cause to the contrary be then and there shown.^ If further time for the trial of the issue in such cause be allowed by the court and the plaintiff neglects to try it within the time so al- lowed, the court will dismiss the action in like manner,^ Under the former statute, it was held that a motion for a judgment thereunder was a special motion, and, like other special motions, when based upon some fact not appearing on the face of the proceedings, must be sup- ported by affidavit or some other competent evidence of such fact.^ The ground of these applications for judg- ment is that the plaintiff has unreasonably delayed in making progress with the cause, and the purpose is either to speed the cause or to relieve the defendant by giving him a judgment of the same effect as one upon a non- suit. But, inasmuch as the latter precludes in that case an investigation of the merits, and the mainspring of the proceeding is a supposed equity in favor of the defend- ant, the remedy has always been subject to very strict practice. The defendant must not only make out a com- plete case within the reason on which the application rests and in accordance with the actuating principles, IJud. Act, ch. 18, §2; Comp. Duell v. Oakland Circuit Judge, 206 Laws 1915, §12574; Detroit Lum- Mich. 680. ber Co. v. Oakland Circuit Judge, 2 Jud. Act, ch. 18, §3; Comp. 207 Mich. 62. Laws 1915, § 12575. Setting aside dismissal where 3 Storey v. Child, 2 Mich. 107. fault was that of county clerk, see Double Costs 517 but he must proceed in critical conformity to the rules and practice of the court.* Where defendant does not, in forai, proceed under this statute, he cannot have an action dismissed, where it is at issue and ready for trial, although it has stood untried for twenty years, especially since he could himself bring the cause on for trial.* DISORDERLY CONDUCT See Contempt; Trial. DISQUALIFICATION See Judges; Circuit Court Commissioners; Jury; Sheriffs. DISSENTING OPINIONS See Supreme Court (ground for rehearing). DISSOLUTION See Attachment. DISTRAINT See Animals. DOCKET See Trial; Supreme CotmT. DOCUMENTARY EVIDENCE See Evidence. DOCUMENTS See Discovery, etc. ; Replevin ; Bill op Exceptions. DOUBLE COSTS See Costs; Error, Writ of. 4 Hill V. Webber, 50 Mich. 142; 6 Sayre v. Detroit, etc., R. Co., Abe Stein Co. v. Wood, 151 Mich. 199 Mich. 414. 657. 518 Dower § 1 DOWER S 1. Ejectment to recover. 8 2. Declaration. 9 3. Recovery of damageB. i 4. ABsignment of dower. § 1. Ejectment to recover. At common law, it was competent for the heir to as- sign the widow's dower on the death of the husband, but if it was not assigned, she had certain remedies. She had no right of entry until the dower was assigned to her, and she could not maintain a possessory action. The legal remedy to enforce an assignment of doAver was by writ of dower unde nihil habet, or writ of right of dower, brought against the tenant of the freehold, upon which, if she obtained judgment, dower was assigned. She might then proceed to recover possession by ejectment,^ but could not bring ejectment before assignment.^ By statutory provision, however, ejectment may now be brought as well before assignment of dower as after,^ and it has been ruled in this state that dower can be re- covered only in this form of action.* The action does not necessarily determine the right of possession in the sense as applied to the suit ordinarily and not in dower. It determines the widow's right to dower in the whole premises, but she obtains no judgment of ouster as in other cases. After the judgment that she recover dower in the premises, the circuit court must proceed to ad- measure and assign the dower in the manner prescribed by law.* By statute, an action of ejectment may be brought by 1 May V. Rumney, 1 Mich. 1. Bender, 61 Mich. 408; Moody v. SGalbraith v. Fleming, 60 Mich. Seaman, 46 Mich. 74. 408. 4Galbraith v. Fleming, 60 Mich. 3Jud. Act, ch. 29, §52; Comp. 408; Proctor v. Bigelow, 38 Mich. Laws 1915, §13219; Snyder v. 285. Snyder, 6 Mich. 473; Galbraith v. 6 Rca v. Rea, 63 Mich. 257; Gal- Fleming, 60 Mich. 408; Burrall v. braith v. Fleming, 60 Mich. 408. § 2 Dower 519 any widow entitled to dower, or by a woman so entitled, and her husband, after the expiration of six months from the time her right accrued, to recover her dower of any lands, tenements or hereditaments.® A vendee of the widow cannot sue for unassigned dower.'' In ejectment for dower, a mortgage discharged of record cannot be restored to defeat her claim although it is inequitable that she should recover; restoration being proper only on the chancery side of the court. ^ §2. Declaration. If the action be brought for the recovery of dower, the declaration shall state that the plaintiff was possessed of the one undivided third part of the premises, as her reasonable dower as widow of her husband, naming him.* The land must be described so that possession may be delivered by the sheriff without any reference to any description dehors the writ, and any defect in regard thereto cannot be cured by reference to any deeds or records. ^° The same certainty in describing the premises is required as in other actions of ejectment. A descrip- tion specifying certain subdivisions of a section of land, excepting so much thereof as is contained in the record of the plat of a certain village, recorded in the record of deeds of the county, was held sufficiently certain in the declaration and verdict." Form of Count In Ejectment for Dower The plaintiff says: 1. That the said plaintiff, heretofore, to wit, on , was possessed of one undivided third part of certain real estate and premises, with the appurtenances, situate in the of , in the county of , 6Jud. Act, ch. 29, §2; Comp. 9 Jud. Act, ch. 29, §10; Comp. Laws 1915, § 13169. Laws 1915, § 13177. 7Galbraith v. Fleming, 60 Mich. 10 King v. Merritt, 67 Mich. 194. 408. 11 Lockwood v. Drake, 1 Mich. 8 Putney v. Vinton, 145 Mich. 14. 219. 520 Dower §2 and state of Michigan, known and described as follows, that is to say: (Here describe the premises claimed with such convenient certainty, by setting forth the section, or part of a section, township and range, or the number of the lot, or otherwise, that from such description, possession of the premises claimed may be delivered). 2. That the said plaintiff claims the same as her reasonable dower, as widow of J. B., deceased, late husband of the said plaintiff. 3. That, the said plaintiff being so pos- sessed thereof, the said defendant afterwards, to wit, on , entered into the said undivided third part of the said premises. 4. That the said defendant unlawfully withholds from the said plaintiff the possession thereof. §3. Recovery of damages. If the action be brought for the recovery of dower, the plaintiff can recover as damages a one-third part of the annual value of the mesne profits of the lands in which she recovers her dower, to be estimated, when the suit is against the heirs of her husband, from the time of his death, and, when the suit is against other persons, from the time of her demanding ^^ her dower of such persons ; but such damages must not be estimated for the use of any permanent improvements made after the death of her husband by his heirs or by any other person claim- ing title to the lands. ^' When a widow recovers her dower in any lands alien- ated by the heir of her husband, she will be entitled to recover of such heir, in an action on the case, her dam- ages for withholding such dower from the time of the death of her husband to the time of the alienation by the heir, not exceeding six years in the whole; and the amount which she is entitled to recover from the heir will be deducted from the amount which she would other- wise be entitled to recover from his grantee, and any 18 Bringing of action to recover lackey v. Killackey, 166 Mich. 311. dower is a suflScient demand. Kil lackey v. Killackey, 166 Mich. 311 ISJud. Act, ch. 29, §36; Comp Laws 1915, §13203; How. Stat (2nd ed.) 10934, 10935; Comp Laws 1915, §§11674, 11675; Kil The right of a widow to a pro- portionate share of the mesne prof- its is a legal incident of the right of dower. Miller v. Stepper, 32 Mich. 194. See also Bemis v. Con- ley, 49 Mich. 392. Duces Tecum 521 amount recovered as damages from such grantee will be deducted from the sum she would othei'wise be entitled to recover from the heir." §4. Assignment of dower. The statute provides that if the plaintiff recover, and her dower shall not have been admeasured to her before the commencement of the action, instead of a writ of pos- session being issued, such plaintiff shall proceed to have her dower assigned to her in the manner following: ^* 1. The court, upon the filing of the record of judgment (that is, the entry of the judgment of record), on the mo- tion of the plaintiff, is required to appoint three discreet and disinterested freeholders commissioners for the pur- pose of making admeasurement of the dower of the plain- tiff out of the lands described in the record; and such commissioners are to proceed in like manner, possess the like powers, and be subject to the like obligations, as commissioners appointed by the judge of probate to set off dower; 2. The commissioners are required to make a report of their doings to the court, in writing, as soon as may be after their appointment, which report is to be confirmed by the court, unless good cause to the contrary be shown, and entered at large in the minutes of the court ; 3. Upon the confirmation of the report, a writ of pos- session is to be issued to the sheriff of the proper county, describing the premises assigned for the dower, and com- manding such sheriff to put the plaintiff in possession thereof. DRY GOODS See Beplevin (description of). DUCES TECUM See Subpoenas. 14 How. Stat. (2nd ed.) 10936; IB Jud. Act, ch. 29, §52; Comp. Comp. Laws 1915, § 11676. Laws 1915, § 13219. 522 Duplicity DUPLICITY See Pleading. DURESS Duress is an affirmative defense, notice of which must be given under a plea of the general issue as will be no- ticed in the article on Pleading. The form of notice of duress as a defense as allowed by the state bar associa- tion's forms is as follows: ''The defendant will show that he was induced to execute the said contract by duress on the part of the plaintiff, committed as follows: (Set out specifically the acts constituting the duress)." DWELLING HOUSES See Executions (forcible entry). EARNINGS See Supplementary Proceedings. EDUCATION See Schools. EJECTMENT g 1. Historical. S 2. statutory provisions. S 3. When ejectment lies by statute. 8 4. Ejectment by mortgagee. 8 5. Nature of statutory action. S 6. Remedy as exclusive. S 7. Who may sue. § 8. Defenses. S 9. Who may be sued. S 10. Election between defendants. § 11. Order for survey. § 12. Commencement of action and service of process. § 13. Declaration. § 14. Amendment. 8 15. Joinder of counts. § 16. Plea. § 17. Notice of lis pendens. § 1 Ejectment 523 § 18. Abatement of action, § 19. Verdict. § 20. Judgment. § 21. Judgment by default. § 22. Conclusiveness and vacation of judgment. § 23. Filing and recording. § 24. Kecovery of mesne profits. § 25. Suggestion of claim. § 26. Proceedings by defendants. § 27. Trial of issue. § 28. Set-off. § 29. Assessment of damages. § 30. Proceedings in case of death of defendant. § 31. Eecovery of compensation for buildings and improvements. § 32. Proceedings to determine amount of compensation. § 33. Election by plaintiff to abandon premises. § 34. Proceedings if plaintiff does not elect to abandon premises. § 35. Execution for plaintiff. § 36. Execution for defendant. §37. New trials. Cross-references: Dower (ejectment for); Venue (place of trial); Se(Turity for Costs; Infants (guardian for infant defendants); Limi- tation OF Actions; Executions (ejectment by purchaser at execution sale). § 1. Historical. A writ of ejectione firmae or action of trespass in eject- ment, says Blackstone, lieth where lands or tenements are let for a term of years, and afterwards the lessor, re- versioner, remainderman or any stranger doth eject or oust the lessee of his term. By this writ, the plaintiff recovered back his term, or the remainder of it, with dam- ages.^ It was, therefore, a mixed action, — that is, one brought for the specific recovery of lands, tenements or hereditaments and for damages for injury sustained in respect of such property.*^ The writ of ejectione firmae did not originally include the specific restoration of the term, but was purely for the recovery of damages for the trespass committed in 13 Cooley's Bl. Comm. 199; Cyc. 2 Steph. PI. 39; 1 Chit. PI. 210; Law Diet. tit. "Ejectment." 3 Cooley's Bl. Comm. 200, 524 Ejectment § 1 ejecting the lessee from his farm. But afterwards, when the courts of equity began to oblige the ejector to make a specific restitution of the land to the party immediate- ly injured, the courts of law also adopted the same method of doing complete justice. This method seems to have been settled as early as the reign of Edward IV, and, under Henry VII, was first applied to the trying of the title to the land. In order to convert it into a method of trying titles to the freehold, it was first necessary that the claimant take possession of the land to empower him to constitute some one a lessee for years, who should be capable of receiv- ing the injury of being ejected from his term. This tak- ing possession by one who had the right of entry upon the land so wrongfully withheld was by a formal entry on the premises, and, when he was so in possession, he then and there sealed and delivered a lease for years to some third person or lessee, and, having thus given him entry, left him in possession of the premises. The lessee stayed upon the land until the prior tenant, or he who had the previous possession, entered thereon afresh and ousted him, or until some other person, called the "cas- ual ejector," either by accident or by agreement came upon the land and ejected him. For this ejectment, the ""•see was entitled to his action of ejectment against him that ousted him to recover back his term and damages. If it were brought against a casual ejector, it was the duty of the plaintiff to give notice to the tenant in pos- session, if any, so as to allow the latter an opportunity to defend. In order, therefore, to maintain the action, the plain- tiff, in case of any defense, had to make out four points before the court, namely, title, lease, entry and ouster, that is to say, title in his lessor, which brought the mat- ter of right before the court, lease from the person seized by virtue of that title to the plaintiff, entry by the lessee § 2 Ejectment 525 upon the premises in consequence of the lease, and ouster of the lessee by the defendant. But, as much trouble and formality were found to at- tend the actual making of the lease, entrj^ and ouster, a new and more easy method was invented, depending en- tirely upon a string of legal fictions. By this method, no actual lease was made and there were no actual entry by the plaintiff and no actual ouster by the defendant, but they were all presumed and in fact stated to have occurred. A lease for a term of years was stated to have been made by him who claimed the title, to the plaintiff who brought the action ; it was also stated that the plain- tiff entered and that the defendant, who was called the casual ejector, ousted him. The tenant in possession had to be notified of the action, so that he might have an opportunity, if he saw fit, to apply to be made a defend- ant. If he did not apply, he was supposed to have no right at all to the possession of the premises. If he did apply, he was allowed to be made a defendant only upon the condition that he consent to a rule to confess, at the trial of the cause, three of the four requisites for the maintenance of the plaintiff's action, namely, the lease, entry and ouster, leaving the trial to stand upon the merits of the title only.' § 2. Statutory provisions. The statutes relating to ejectment to recover real prop- erty are found in chapter 29 of the Judicature Act and are very comprehensive. Many of the provisions in chapter 33 of the Judicature Act entitled ''General pro- visions concerning actions relating to real estate" are applicable to ejectment; and some of the provisions in that chapter seem to be applicable to no other action. The statute applies to trial by the court without a jury as 3 See 3 Cooley's Bl. Comm. 199- 203. 526 Ejectment § 2 well as to trial by a jury although in many places the word "verdict" is used without mentioning ''findings," in which case the statute must generally be construed as if it also expressly referred to "finding." Ejectment against private business corporations whose term of ex- istence has expired is expressly provided for by statute.* The practice in actions relating to real estate is re- quired to be the same in all respects as in personal actions except where otherwise specially provided by law; and proceedings may be stayed in the like cases, and all the provisions of law respecting pleadings, process, records and judgments, in personal actions, shall, so far as the nature of such actions will admit, apply to actions relat- ing to real estate.* § 3. When ejectment lies by statute. The common law action of ejectment is retained by the statute, and it is expressly provided that the action may be brought in the cases and in the manner theretofore accustomed, subject to the provisions therein contained.* It may also be brought (1) in the same cases in which a writ of right might previously have been brought to recover lands, tenements, or hereditaments, and by any person claiming an estate therein, in fee or for life, either as heir, devisee, or purchaser; and (2) by any widow en- titled to dower, or by a woman so entitled and her hus- band, after the expiration of six months from the time her right accrued, to recover her dower of any lands, tenements or hereditaments.''' Whenever a right of entry exists, and the interest is tangible, so that possession can be delivered, an action of ejectment will lie. But it will not lie for anything 4Jii(l. Act, ch. 29, §§58, 59; 6 Jud. Act, ch. 29, §1; Comp. Comp. Laws 1915, §§ 13225, 13226. Laws 1915, § 13168. 6 Jud. Act, ch. 33, §16; Comp. 7 Jud. Act, ch. 29, §2; Comp. Laws 1915, § 13373. Laws 1915, § 13169. § 4 Ejectment 527 whereon an entry cannot be made, or of which the sheriff cannot deliver possession, and is therefore only main- tainable for corporeal hereditaments.® Only legal titles can be considered,^ and the court cannot correct mis- takes in plaintiff's deed.^° Ejectment is the proper rem- edy to try bomidary lines, and they cannot be tried in a proceeding before a circuit court commissioner.^^ § 4. Ejectment by mortgagee. Under the statute, no action of ejectment can now be maintained by a mortgagee or his assigns or representa- tives for the recovery of the mortgaged premises, until the title thereto has become absolute upon a foreclosure of the mortgage. ^^ A similar statute has been in effect in this state since 1843; prior to which, the mortgage vested the legal title to the land in the mortgagee, who might, therefore, at any time after a default in the pay- ment of the mortgage money or any part thereof, if not before, where the mortgage did not provide for the mort- gagor's retaining possession until that time, put the mortgagor out of possession by ejectment." But, in the case of mortgages executed since that statute took effect, they are deemed not to convey the legal title, but are only securities for the payment of the debt.^* 8 Right of lessee to enter. Har- 13 Stevens v. Brown, Walk. Ch. 41. low V. Lake Superior Iron Co., 36 14 Dougherty v. Randall, 3 Mich. Mich. 105. Ejectment does not lie 581; Baker v. Pierson, 5 Mich. 456; for a right of way or other ease- Caruthers v. Humphrey, 12 Mich, ment. Taylor v. Gladwin, 40 Mich. 270; Newton v. Sly, 15 Mich. 391; 232. Hogsett v. Ellis, 17 Mich. 351; New- 9 Thatcher v. Wardens, etc., of ton v. McKay, 30 Mich. 380 ; Wager St. Andrew's Church of Ann Arbor, v. Stone, 36 Mich. 364; Lee v. 37 Mich. 264. Clary, 38 Mich. 223; Hazeltine v. 10 Hamilton v. Fenton, 119 Mich. Granger, 44 Mich. 503; Morse v. 580. Byam, 55 Mich. 594. 11 Drake v. Happ, 92 Mich. 580. 12Jud. Act, ch. 29, §54; Comp. Laws 1915, § 13221. 528 Ejectment § 5 § 5. Nature of statutory action. The statute has substantially superseded the old action of ejectment with its fictitious and wearisome forms, and has given, under the same name, a much broader and more potent remedy. As marked out by the legislature, it has the effectiveness of a real action. It is a proceed- ing to try titles as well as to determine who has the right of possession. It is made applicable to cases where for- merly a writ of right was the appointed remedy, and it is the only action for the determination of title to land.^** But it is a possessory action, and does not necessarily involve the title. The party having right to present pos- session is always entitled to recover, and it is quite un- necessary for him to show more, unless some question of damages or the value of improvements made by the de- fendant shall require. ^^ But it is not purely a possessory action, and it may involve the title. ^' It will not lie, in this state, for anything that is not tangible or capable of being delivered to the plaintiff by the sheriff under the writ of possession. ^^ Thus, it does not lie to recover an easement, such as the use of a street or alley.^^ § 6. Remedy as exclusive. It is the only proper remedy where the holder of a legal title seeks to enforce it against one in possession 15 See § 6, post. 133 ; Bertram v. Cook, 44 Mich. 396. All writs of right, writs of dower, 17 Kinney v. Harrett, 46 Mich. writs of entry, and writs of assize, 87. all fines and common recoveries, and 18 Harrington v. City of Port all other real actions known to the Huron, 86 Mich. 46. common law, not enumerated and 19 City of Grand Rapids v. Whit- retained in the title referring to tlesey, 33 Mich. 109; Bay County actions relating to real property, v. Bradley, 39 Mich. 163 ; Taylor and all writs and other process here- v. Gladwin, 40 Mich. 232; 1 Chit, tofore used in real actions, not PI. 210; 3 Cooley's Bl. Comm. 206; specially retained in the statute, are Northern Turnpike Road Co. v. abolished. Jud. Act, eh. 33, §17; Smith, 15 Barb. (N. Y.) 355; Brady Comp. Laws 1915, § 13374. v. Hennion, 8 Bosw. (N. Y.) 528. 16 Covert v. Morrison, 49 Mich. § 7 Ejectment 529 claiming under an invalid title.^° Ejectment and the statutory proceeding to recover possession are the only- possessory remedies.^^ Ordinarily the remedy by eject- ment to recover the possession of real property is exclu- sive and resort cannot be had to a suit in equity.^'* In some instances, however, the remedy by ejectment is in- adequate.^* § 7. Who may sue. No person can recover in ejectment unless he has, at the time of commencing the action, a valid, subsisting interest in the premises claimed and a right to recover the possession thereof, or of some share, interest or por- tion thereof, to be proved and established at the trial.^* The plaintiff must depend for success upon the suf- ficiency of his own title and not upon the insufficiency of the defendant 's.'^^ And it is generally well settled in those states and countries where the distinction between legal and equitable jurisdiction and remedies is kept up that, in an action of ejectment at law, the legal title, so far as relates to the right of possession, must prevail, and that the plaintiff cannot recover upon, nor a defend- ant set up in defense, a merely equitable title against the 20 Beach v. Rice, 186 Mich, 95 j 406; La Coss v. Wadsworth, 56 Bang V. Carpenter, 37 Mich. 363. Mich. 421 (where judgment would 21 Wilkinson V. Williams, 51 Mich. still leave complainant's title 155. clouded) ; Campbell v. Kent Circuit 22 Longcor v. Turner, 191 Mich. Judge, 111 Mich. 575; Shaw v. 240; Beach v. Rice, 186 Mich. 95 Hoffman v. Beard, 22 Mich. 59 Dart V. Barbour, 32 Mich. 267 Cromwell v. Hughes, 144 Mich. 3 Dolph V. Norton, 158 Mich. 417 Blackwood v. Van VIeet, 11 Mich 252. But see, as to putting pur Chambers, 48 Mich. 355; Wilmarth V. Woodcock, 66 Mich. 331. 24Jud. Act, ch. 29, §3; Comp. Laws 1915, § 13170. 25Kushler v. Weber, 182 Mich. 224; Bird v. Stimson, 197 Mich. 582; Van Vleet v. Blackwood, 39 chaser of tax homestead lands in Mich. 728; West Michigan Park possession, Chiodo v. Williams, 180 Ass'n v. Pere Marquette R. Co., Mich. 367. 172 Mich. 179; Webber v. Pere 28 Wilson v. Sauble, 181 Mich. Marquette Boom Co., 62 Mich. 626. 1 Abbott— 34 530 Ejectment § 7 legal title. '^^ If the plaintiff has been in possession of the land claiming title, he may stop with that showing as a prima facie case, and he is entitled to judgment upon it unless the defendant shows either a right in himself or an outstanding title in some third party upon which he is at liberty to rely.^' It is not necessary for the plaintiff to prove an actual entiy under title or the actual receipt of any profits of the premises demanded, but it is sufficient for him to show a right to the possession of the premises at the time of the commencement of the suit, as heir, devisee, purchaser or otherwise.^® Nor need he prove on the trial a lease, entry and ouster or either of them, except where the action is brought by one or more tenants in common or joint tenants against their co-tenants; in which case, the plaintiff, in addition to the evidence which he may be bound to give, must prove that the defendant actually ousted him or did some other act amounting to a total denial of his right as such co-tenant.^' If plaintiff relies on prior possession, it must have been continuous up to the time of the ouster or at least not abandoned.^" Title by adverse possession is suffi- cient,^^ and a grant of land in the adverse possession of 26Eausch V. Briefer, 138 Mich 284; Porter v. Osmun, 135 Mich 361; Eyder v. Flanders, 30 Mich 336, 344; Geiges v. Greiner, 68 Mich 153; Moran v. Moran, 106 Mich, 8 27 Covert V. Morrison, 49 Mich 133. 28Jud. Act, ch. 29, §18; Comp Laws 1915, §13185; Moody v. Ma comber, 159 Mich. 657; Crane v Beeder, 21 Mich. 24; Covert v. Mor One may recover on showing a mere right to possession, where such a right is evidence as against the defendant that the plaintiff has a legal estate of some description. Kinney v. Harrett, 46 Mich. 87. Tenant as purchaser and action against landlord, see Smith v. Cole, 166 Mich. 165. 29Jud. Act, ch. 29, §§19, 20; Comp. Laws 1915, §§ 13186, 13187. rison, 49 Mich. 133. SOEnsley v. Coolbaugh, 160 Mich. But right of possession must 299. exist at the commencement of the 31 Dahlen v. Abbott, 153 Mich, action. Van Vleet v. Blackwood, 465; Nowlen v. Hall, 128 Mioh. 274. 39 Mich. 728. § 8 Ejectment 531 another will support ejectment.^^ The defense that plain- tiff procured his title by fraud cannot be set up.^' A per- son in possession cannot recover, and this rule applies where plaintiff is in possession of a portion of the prem- ises.^* Trustees having a legal title may sue,^^ as may an administrator or executor.^^ On the other hand, a guardian cannot maintain ejectment for the lands of his wards," and a city has not such an interest in its streets as will authorize it to maintain ejectment.^' So the ven- dor of land by an executory land contract giving the vendee the right to immediate possession, but who still retains the legal title cannot maintain ejectment against one who has ousted the vendee.^^ Where dower has not been legally assigned, the person entitled to the fee may bring ejectment against one wrongfully in possession." § 8. Defenses. The general rule is that the plaintiff must recover upon the strength of his own title and not upon the weakness of the defendant's.*^ And it follows that a defendant may, in general, defeat such recovery by showing the weakness of the plaintiff's claim; and he may do this by proving that the title is in himself, and hence not in the plaintiff, or by establishing the existence of a paramount 82 Crane v. Reeder, 21 Mich. 24 comber, 159 Mich. 657. (state) ; Campau V. Dubois, 39 Mich. 87 Kinney v. Harrett, 46 Mich. 274. 87. 83 Loranger v. Carpenter, 148 88 City of Grand Rapids v. Whit- Mich. 549. tlesey, 33 Mich. 109. See also Bay 84 Rea V. Rea, 63 Mich. 257. County v. Bradley, 39 Mich. 163. But it is immaterial that plain- 39 Knite v. Lage, 152 Mich. 638. tiff resumed possession after the Compare Olin v. Henderson, 120 commencement of the action. Smith Mich. 149. V. Cole, 166 Mich. 165. 40 King v. Merritt, 67 Mich. 194. 86 Board of Health of Buena 41 Webber v. Pere Marquette Vista Tp. V. City of East Saginaw, Boom Co., 62 Mich. 627; Van Vleet 45 Mich. 257. v. Blackwood, 39 Mich. 728; Crooks 86 Kline v. Moulton, 11 Mich. v. Whitford, 47 Mich. 283; Stock- 370; Barlage v. Detroit, G. H. & M. ton v. Williams, 1 Doug. 556; Brady Ry., 54 Mich. 564; Moody v. Ma- v. Hcnnion, 8 Bosw. (N. Y.) 528. 532 Ejectment § 8 title outstanding in a third person,'*^ But to have this effect, such outstanding title must be paramount to the plaintiff's, — a present, subsisting and operative legal title on which the owner could sue and recover.** In apparent modification of these principles, the supreme court of Michigan has held that where the facts of the plaintiff's case show a prima facie title in fee as against one showing no better title in himself, the defendant can- not defeat the plaintiff's right of recovery by showing an ancient conveyance to a third party under which the defendant claims no rights. The modification, however, is only apparent, for it is presumed, as a matter of fact, subject to contradiction or impeachment, that the plain- tiff's title is not one which is separate and in conflict with the ancient title, but is a mere continuation of it.'** The common law rule, which excludes all defenses in ejectment which are not legal, has been abrogated in some American jurisdictions, but the courts of the United States and of this state still adhere to it." Defendant may defeat the action by showing title by adverse possession,*® or a tax deed,*"^ or a title acquired pendente lite," or paramount homestead rights."* Where 42 Lee V. Clary, 38 Mich. 223; Mora, 98 U. S. 425; Ferin v. Holme, Manistee Mfg. Co. v. Cogswell, 103 21 How. (U, S.) 481; Greenleaf Mich. 602; Bennett v. Horr, 47 v. Birth, 6 Pet. (U. S.) 302. Mich. 221; Jackson v. Harrington, 46 Curbay v. Bellemer, 70 Mich. 9 Cow. (N. Y.) 86; Adair v. Lott, 106. See Morse v. Hewett, 28 Mich. 3 Hill (N. Y.) 182; Reformed 481; Sleight v. Roe, 125 Mich. 585; Church V. Schoolcraft, 5 Lans. (N. Manistee Mfg. Co. v. Cogswell, 103 Y.) 206, Mich. 602; Michigan Land & Iron 43 Bennett v. Horr, 47 Mich. 221. Co. v. Thoney, 89 Mich. 226; Chris- 44 Bennett v. Horr, 47 Mich. 221 ; topher v. Detroit, L. & N. R. Co., Cook V. Bertram, 86 Mich. 356. 56 Mich. 175. 45 Harrett v. Kinney, 44 Mich. 47 Connecticut Mut. Life Ins. Co. 457; Whiting v. Butler, 29 Mich. v. Bulte, 45 Mich. 113. 122, 127; Michigan Land & Iron 48 Snyder v. Hemmingway, 47 Co. V. Thoney, 89 Mich. 231; Paldi Mich. 549; Hemmingway v. Drew, V. Paldi, 95 Mich. 410; Moran v. 47 Mich. 554. Moran, 106 Mich. 8; PoweU v. 48aRiggg v. Sterling, 51 Mich. Pierce, 168 Mich. 427; Foster v. 157. § 9 Ejectment 533 the record title of plaintiff is perfect, defendant cannot show that the deed to him was fraudulent as to his grantor's creditors.** Defendant may show that plain- tiff's title has been divested by a stranger to the pro- ceeding, as by a tax sale.*" An unassigned dower in- terest of a widow cannot be shown as a defense, since merely a right of action.*^ Abandonment of occupancy by defendant after the commencement of the action is no defense.*^ § 9. Who may be sued. Ejectment does not lie against one not in possession of the property nor exercising any acts of ownership or control over it." It may be maintained against a pur- chaser in possession under a void or irregular foreclosure of a mortgage,** or against one who goes over the line in constructing a partition fence." 'If the premises for which the action is brought are actually occupied by any person, such actual occupant must be named a defendant; if they are not so occupied, the action must be brought against some person exer- cising acts of ownership on the premises claimed, or claiming title thereto or some interest therein, at the commencement of the suit; and all persons claiming any title to the premises adverse to that claimed by the plain- tiff may in all cases be made defendants in the action." 49 Bliss V. Slater, 144 Mich. 648. 66 Jud. Act, ch. 29, §4; Comp. BO Lee V. Clary, 38 Mich. 223. Laws 1915, §13171; Lockwood v. SlMeCammon v. Detroit, L. & N. Drake, 1 Mich. 14; Clark v. Hall, "R. Co., 66 Mich. 442. 19 Mich. 356; Crane v. Seitz, 30 52 0uthwaite v. Gunn, 180 Mich. Mich. 453; Anderson v. Courtright, 66. 47 Mich. 161; Hoyt v. Southard, 58 63 Harrington v. City of Port Mich. 432; Haddy v. Tobias, 85 Huron, 86 Mich. 46. See Connor Mich. 326; Farrand v. Kavanaugh, V. Connor, 134 Mich. 355. 132 Mich. 436; Hendricks v. Easson, 64Bowen v. Brogan, 119 Mich. 49 Mich. 83; Arnold v. Brechtel, 174 218. Mich. 147. 66 Eose V. Linderman, 147 Mich. Tenants of defendant need not be 372. joined as defendants where they 534 Ejectment § 9 A husband and wife who occupy premises owned by either as their home should be joined as defendants." § 10. Election between defendants. The statute requires that where there are several de- fendants claiming under several titles, claims or posses- sions derived from a different source, the plaintiff must elect at the trial, and before the testimony is closed, against which he will proceed ; ^* but this does not apply where the action is against one claimant and those in pos- session under him and where the same defense is open to all.69 § 11. Order for survey. If the court in which the action is pending shall be satisfied that a survey of any lands in the possession of either party, or of any boundary line between the lands of the parties, or between the lands of either of them and the lands of other persons, is necessary or expedient, to enable either party to declare, plead or prepare for trial, or for any other proceeding in the action, it may, upon the application of either party, order that he have leave to make such survey. Such order must specify the premises or boundary line to be surveyed, by a descrip- tion as definite as may be, and a copy of it must be served on the owner or occupant of the premises upon which claim no interest except as tenants, Eowe v. Kellogg, 54 Mich. 206; do not complain of the nonjoinder, Bunce v. Bidwell, 43 Mich. 542; and the action does not affect the Henry v. Gregory, 29 Mich. 68; houses of the tenants or the yard Hodson v. Van Possen, 26 Mich. 68. going with them. Austin v. Cro- Compare Arnold v. Brechtel, 174 well, 193 Mich. 296. Mich. 147. 67 Carby V. Combs, 166 Mich. 347; 68 Jud. Act, ch. 29, §22; Comp. Kalkes v. Storms, 93 Mich. 480; Laws 1915, §13189. Sessions v. Sherwood, 78 Mich. 234; 69 Campau v. Campau, 45 Mich. Haddy v. Tobias, 85 Mich. 326; 367. Cleaver v. Bigelow, 61 Mich. 47; § 13 Ejectment 535 it may be necessary to enter to make such survey, previ- ous to such entry.^" § 12. Commencement of action and service of process. The action may be commenced by service of summons or of the declaration with notice to plead.^^ In actions of ejectment, if the premises are actually occupied, the process or declaration must be served by delivering a copy thereof to the defendant named there- in who is in the occupation thereof, personally, or by leaving it with some person of proper age at the dwelling house of such defendant, if he be absent.^^ If the de- fendant or any defendant named in the declaration or process does not occupy the premises claimed by the plaintiff, the declaration or process must be served upon such defendant personally, if he can be found within this state, and such service may be made in any part of the state; but if such defendant cannot be served by reason of his not being found in the state, the same proceedings may thereupon be had as in chancery cases in case of absent, concealed or non-resident defendants.®^ § 13. Declaration. In the action of ejectment in this state, the use of fictitious names of plaintiffs or defendants and of the names of any other than the real claimants and the real defendants, and the statement of any lease or demise to the plaintiff and of any ejectment by a casual or nominal ejector are abolished, and it is sufficient for the plaintiff to aver in his declaration that on some day, therein to be specified, and which shall be after his title or right ac- crued, he was possessed of the premises in question, de- scribing them, and, being so possessed thereof, the de- eojud. Act, ch. 33, §9; Comp. 62Jud. Act, ch. 29, §13; Comp. Laws 1915, § 13366. Laws 1915, § 13180. 61 See Jud. Act, ch. 29, § 5; Comp. 63 Jud. Act, ch. 29, § 14; Comp. Laws 1915, § 13172. Laws 1915, § 13181. 536 Ejectment § 13 fendant afterwards, on some day to be stated, entered into such premises, and unlawfully withholds from the plaintiff the possession thereof, to his damage any nom- inal sum the plaintiff thinks proper to state.^* The declaration need not disclose the various relations which exist between or among several defendants in connection with the property.^* In such declaration, the premises claimed should be described with such convenient certainty, by setting forth the section or part of a section, township and range, or the number of the lot or otherwise, that, from the de- scription so given, possession of the premises may be de- livered.^® If the plaintiff claims an undivided share or interest in any premises, he must state it particularly in his declaration.®''^ Except in ejectment for dower,®* the plaintiff must state in his declaration whether he claims in fee or for his own life or for the life of another or for a term of years or otherwise, specifying such lives or the duration of such term.®^ Under this statute, plaintiff is not bound under the forms of pleading used in this state to aver the character of his title except as to its extent.'''® But, 64 Jud. Act, ch. 29, §§6, 7; Comp. a strip of land, 10 rods wide, off Laws 1915, §§ 13173, 13174. from the west side of the S. E. V^ 65 Crane v. Seitz, 30 Mich. 453. of the S. W, % of section 35," is 66Jud. Act, ch. 29, §8; Comp. fatally defective for indefiniteness. Laws 1915, § 13175. White v. Hapeman, 43 Mich. 267. The following description is suf- Variance in description as fatal, ficient: "The following real estate see Wilson v. Hoffman, 54 Mich, and premises situate in the city of 246. Port Huron, county of St. Clair, 67 Jud. Act, ch. 29, §9; Comp. and being known and designated as Laws 1915, § 13176. the undivided eighth part of that 68 See Dower. part of the lower Westbrook farm 69 Jud. Act, ch. 29, § 10 ; Comp. in section 15, town 6 north, range Laws 1915, § 13177. 17 east, lately conveyed," etc., "by 70 Richards v. Pierce, 44 Mich, deed, and recorded," etc. Seeley 444; Olin v. Henderson, 120 Mich. V. Howard, 23 Mich. 11. 149. A declaration for "a portion of § 13 Ejectment 537 by a new provision in the Judicature Act, the plaintiff must attach to his declaration, if he claims title, a state- ment of the title relied on, showing from and through whom such title was obtained, and the page and book where the same appears of record. If such title or any portion thereof is not in writing or does not appear of record, such fact must be set forth in such statement. No written evidence of title can be introduced on the trial unless it has been referred to in such statement, but the statement may, on motion, be amended and made more specific.'''^ State Bar Association Form of Declaration in Ejectment (Title of course and cause.) The plaintiff says: 1. That, on , 19.., the plaintiff was possessed of the following premises: (Describe them), which he claims in fee (or, for his life, or as the case may be.) 2. That, while the plaintiff was so possessed, the defendant afterwards, on , 19.., entered into said premises. 3. That the defendant voluntarily withholds from the plaintiff the pos- session thereof. 4. Wherefore, the plaintiff claims a judgment for the possession of said premises and damages in the sum of dollars. Form When the Plaintiff Claims in Fee, or for His Own Life or for the Life of Another The plaintiff says: That the said plaintiff, heretofore, to wit, on , was possessed of certain real estate and premises, with the appurtenances, situate in the of , in the county of , and state of Michigan, known and described as follows, that is to say: (Here describe the premises claimed with such convenient certainty, by setting forth the section or part of a section, township and range, or the part of the lot or otherwise that, from such description, possession of the premises claimed may be delivered). 2. That the said plaintiff claims the said premises in fee (or, for his own life, or, for the life of one E. F., as the case may be). 3. That, the said plaintiff being so possessed thereof, the said defendant 7lJud. Act, ch. 29, §17; Comp. Mich. 91; Kinney v. Harrett, 46 Laws 1915, §13184; Goodall v. Mich. 90; Allie v. Schmitz, 17 Wis. Henkel, 60 Mich. 382; Michigan 169-174; Ballance v. Rankin, 12 111. Cent. R. Co. v. McNaughton, 45 420; Tyler, Ej. 39. 538 Ejectment § 13 afterwards, to wit, on , entered into the said premises. 4. That the said defendant unlawfully withholds from the said plaintiff the possession thereof. Form of Count Where the Plaintiff Claims for a Term of Years The plaintiff says: 1. That the said plaintiff, heretofore, to wit, on , was possessed of cer- tain real estate and premises, with the appurtenances, situate in the of , in the county of , and state of Michigan, known and de- scribed as follows, to wit: (Describe the premises claimed with such con- venient certainty by setting forth the section or part of a section, township and range, or the part of the lot or otherwise that, from such description, the possession of the premises claimed may be delivered). 2. That the said plaintiff claims the said premises upon the demise of one E. F. for a term of years, to wit, for the term of years from the day of , A. D , then next ensuing. 3. That, the said plaintiff being so possessed thereof, the said defendant afterwards, to wit, on , en- tered into the said premises. 4. That the said term is not yet expired. 5. That the said defendant unlawfully withholds from the said plaintiff the possession thereof. Form of Count for an Undivided Share or Interest The plaintiff says: 1. That the said plaintiff, heretofore, to wit, on , was possessed of the one undivided half (or other part, according to the share or interest which the plaintiff claims in the premises) of certain real estate and premises, with the appurtenances, situate in the of , in the county of , and state of Michigan, and known and described as follows, to wit: (Describe the premises claimed with such convenient cer- tainty, by setting forth the section or part of a section, township and range, or the part of the lot or otherwise, that, from such description, possession of the premises claimed may be delivered) . 2. That the said plaintiff claims the said premises in fee (or, for his own life, or, for the life of one E. F., as the case may be). 3. That, the said plaintiff being so possessed thereof, the said defendant afterwards, to wit, on , entered into the said un- divided half (or other part, according to the share or interest which the said plaintiff claims) of the said premises. 4. That the said defendant un- lawfully withholds from the said plaintiff the possession thereof. § 14. Amendment. The declaration may be amended the same as in per- sonal actions.'^ 72 See Arnold v. Brechtel, 174 erly allowed to set forth plaintiff's Mich. 147. interest in the land (Ludeman v. Amendments have been held prop- Hirth, 96 Mich. 17) ; to correct the § 16 Ejectment 539 § 15. Joinder of counts. In any case other than where the action is brought for the recovery of dower, the declaration may contain sev- eral counts, and several parties may be named as plain- tiffs, jointly in one count, and separately in others.'* § 16. Plea. In ejectment, a defendant, when he appeared, was com- pelled to enter into a consent rule and to plead the gen- eral issue of not guilty, and consequently no special plea could be adopted. But, in some instances, the courts would, on special application, permit the defendant to plead to the jurisdiction.''* Under the Michigan statute, in actions of ejectment, no demurrer, plea in abatement or plea to the jurisdic- tion can be filed.'^ The objections formerly raised by those pleadings must now be raised by motion to dismiss or, by notice attached to the plea of the general issue. The defendant can plead the general issue only, which is the same as in personal actions, and, under such plea, may give the same matter in evidence as upon the plea of not guilty in the former action of ejectment. Under such plea, the defendant may give in evidence any mat- ter which, if pleaded in the writ of right or action of dower, would bar the action of the plaintiff.''^ But if the defendant claims title, he must now attach to his date of possession (Newell v. 206). Also to correct a description McLarney, 49 Mich. 232) ; to sub- of the land (Hartz v. Detroit, P. stitute the proper party as plain- & N. Ry., 153 Mich. 337). tiff in place of a guardian (Kinney 73 ,Jud. Act, ch. 29, §11; Comp. V. Harrett, 46 Mich. 87) ; to allege Laws 1915, § 13178. an undivided one-half interest in 74 1 Chit. PI. 542. place of an entire fee (Retan v. 75 Jud. Act, ch. 29, §16; Comp. Sherwood, 120 Mich. 496) ; and to Laws 1915, § 13183. conform the declaration to the 76 Id. Special notice of affirmative proofs where the evidence shows defense that deed was void need not plaintiff owned only an undivided be given. Kushler v. Weber, 205 interest (Hoban v. Cable, 102 Mich. Mich. 400. 540 Ejectment § 16 plea a statement of the title relied on, showing from and through whom such title was obtained and the page and book where the same appears of record. If such title or any portion thereof is not in writing or does not appear of record, that fact must be set forth in such statement. No written evidence of title can be introduced on the trial unless it has been sufficiently referred to in such statement, but the statement may, on motion, be amended and made more specific." The common law rule excluding all defenses in eject- ment which are not legal has been abrogated in many parts of the Union, but the courts of the United States still adhere to it, and it remains in force also in this state."'" Accordingly, the equitable defense that the title of the plaintiff was obtained by fraud cannot be inter- posed.'® So, parol evidence of an arrangement by which third parties were to have an interest in the land would be inadmissible, as nothing but a conveyance of the legal title of the plaintiff could defeat the action."" So, also, an executory contract for the sale of land could not be shown to defeat the plaintiff, as such contract gives the vendee merely an equitable title, the legal title remaining in the vendor.'^ A tax deed giving a prima facie title would constitute a perfect defense to the action of eject- ment."'' 77Jud. Act, ch. 29, §§16, 17 Comp. Laws 1915, §§ 13183, 13184 78Buell V. Irwin, 24 Mich. 145 Jeffrey v. Hursh, 42 Mich. 563 Harrett v. Kinney, 44 Mich. 457 Whiting V. Butler, 29 Mich. 122 Conrad v. Long, 33 Mich. 78; Lo ranger v. Carpenter, 148 Mich. 549 Paldi V. Paldi, 95 Mich. 410 Moran v. Moran, 106 Mich. 8 Geiges v. Greiner, 68 Mich. 153 Yale V. Stevenson, 58 Mich. 537 Shaw V. Hill, 83 Mich. 322; Gates V. Sutherland, 76 Mich. 231; Fenn V. Holme, 21 How. (U. S.) 481; Smith V. McCann, 24 How. (U. S.) Bix V. Smith, 145 Mich. 203 ; Kausch 398 ; Foster v. Mora, 98 U. S. 425. V. Briefer, 138 Mich. 284; Cottrell 79 Harrett v. Kinney, 44 Mich. 457. V. Moran, 138 Mich. 410; Powell v. 80 Conrad v. Long, 33 Mich. 78. Pierce, 168 Mich. 427; Nowlen v. 81 Buell v. Irwin, 24 Mich. 145. Hall, 128 Mich. 274; Michigan Land 82 Connecticut Mut. Life Ins. Co. & Iron Co. V. Thoney, 89 Mich. 226; v. Bulte, 45 Mich. 113. § 18 Ejectment 541 § 17. Notice of lis pendens. It is required by statute that, upon the commence- ment of any action of ejectment, the plaintiff shall file for record, in the office of the register of deeds of the county wherein the lands sought to be recovered are sit- uated, a notice of the pending of such suit, setting forth its title and the general effect thereof and a description of the lands to be affected thereby.^* And it is the duty of the register of deeds to receive, file and record such notice in a book to be kept for that purpose, upon the payment to him of the fees allowed by law for record- ing deeds of conveyance.'* Form of Notice of the Pendency of Suit (Title of court and cause.) To Whom It May Concern: Notice is hereby given that this cause is an action of ejectment now pending in said court, wherein the said plaintiff seeks to recover from the said defendant the possession, which the said defendant unlawfully with- holds from the said plaintiff, of the following described lands, to wit: (Here describe the lands.) Dated, etc. J. K., Plaintiff 's Attorney. § 18. Abatement of action. It is provided by statute that '*in all real and mixed actions," if the plaintiff dies before final judgment, his heir, within such time as the court allows, may appear and prosecute the suit in the same manner as if the action had been originally commenced by him, or the action may be prosecuted by the executor or administra- tor for the benefit of the heir or of the creditors of the deceased.'^ But no real action is now in use in this state, and the only mixed action which obtains is that of eject- ment. In ejectment, the same proceedings may be had 83Jud. Act, eh. 29, §60; Comp. 85 Jud. Act, ch. 12, §42; Comp. Laws 1915, § 13227. Laws 1915, § 12393. 84 Jud. Act, ch. 29, § 61 ; Comp. Laws 1915, § 13228. 542 Ejectment § 18 as in other actions to substitute the names of the execu- tors or administrators or of those who have succeeded to the title of the deceased phiintiff, and the issue will be tried as between the original parties.^® If there are several plaintiffs and any of them die be- fore final judgment, the heir, executor or administrator of the deceased party may be admitted on motion to prosecute the suit jointly with the survivors in the same manner as if he had joined with them in commencing the suit.^' If the interest of the deceased party passes to the surviving plaintiff, or if there be no motion for the admission of another person as heir, executor or admin- istrator within the time allowed by the court for that purpose, the surviving plaintiffs may prosecute the suit for so much of the premises in question as may be claimed by them." Upon the death of a sole defendant to an action of ejectment, the suit abates.^' When there are several de- fendants and any of them dies before final judgment, the action may be prosecuted against the surviving defend- ants for so much of the premises as they hold or claim,®" but not against the personal representatives of the de- ceased defendant. His share of the case is left as at com- mon law, that is, the action is abated as to it.*^ The action is not abated by reason of the right or title of plaintiff expiring after the commencement of the suit,®^ nor by a transfer of the property by plaintiff pen- 86Jud. Act, ch. 29, §25; Comp. 90 Jurl. Act, eh. 12, §45, ch. 29, Laws 1915, §13192; Cook v. Bert- §25; Comp. Laws 1915, §§12396, ram, 86 Mich. 356. 13192; Hoffman v. St. Clair Circuit 87Jud. Act, ch. 12, §43; Comp. Judge, 40 Mich. 351. Laws 1915, § 12394. 91 People v. St. Qair Circuit 88Jud. Act, ch. 12, §44; Comp. Judge, 40 Mich. 351; Conley v. Laws 1915, § 12395. Sinclair, 163 Mich. 306. 89McKenzie v. A. P. Cook Co., 92 Jud. Act, ch. 33, §13; Comp. 113 Mich. 452. See also Conley v. Laws 1915, § 13370. Sinclair, 163 Mich. 306. § 19 Ejectment 543 dente lite,®' nor by reason of an alienation of the prop- erty by defendant.®* § 19. Verdict. The statute has prescribed what the verdict shall be under certain circumstances in the action of ejectment. Thus, it is provided that if the action be brought against several defendants and a joint possession or claim of title of all be proved, the plaintiff will be entitled to a verdict against all, whether they have pleaded separate- ly or jointly,®^ and if it appears on the trial that any of several defendants, at the commencement of the suit, oc- cupied or claimed distinct parcels in severalty or jointly and that other defendants possessed or claimed other parcels in severalty or jointly, all of which titles, pos- sessions or claims were derived from the same source, the jury are required to state particularly in their ver- dict the description of the parcel claimed by each of the defendants, when the verdict is for the plaintiff; but in case the several titles, claims or possessions were derived from a different source, the plaintiff is required to elect at the trial and before the testimony will be regarded as closed, against whom he will proceed, and a verdict will be rendered for the defendants not proceeded against.®^ And, in the following cases, the verdict is required to be as follows: ®' 1. If it be shown on the trial that all the plaintiffs 93McKenzie v. A. P. Cook Co., 97 Jud. Act, ch. 29, §23; Comp. 113 Mich. 452; Snyder v. Hemming- Laws 1915, §13190. way, 47 Mich. 549 (following Mich- Verdict for plaintiff is not bad igan Cent. R. Co. v. McNaughton, although not finding that defendant 45 Mich. 87) ; Hemmingway V. Drew, wrongfully withheld the premises. 47 Mich. 554. Lockwood v. Drake, 1 Mich. 14. 94 Jud. Act, ch. 33, § 13 ; Comp. Sufficiency of description of land Laws 1915, § 13370. in verdict, see Munger v. Grinnell, 96 Jud. Act, ch. 29, § 21 ; Comp. 9 Mich. 544 ; Lockwood v. Drake, 1 Laws 1915, § 13188. Mich. 14. 96 Jud. Act, ch. 29, §22; Comp. Laws 1915, § 13189. 544 Ejectment § 19 have a right to recover the possession of the premises, the verdict in that respect must be for the plaintiffs gen- erally. 2. If it appears that one or more of the plaintiffs have a right to the possession of the premises, and that one or more have not such right, the verdict must specify for which plaintiff the jury find and as to which plaintiff they find for the defendant. 3. If the verdict be for any of the plaintiffs and there be several defendants, the verdict must be rendered against such of them as were in possession of the prem- ises or as claimed title thereto at the commencement of the action. 4. If the verdict be for all the premises claimed, as specified in the declaration, it must in that respect be for such premises generally. 5. If the verdict be for a part of the premises described in the declaration, the verdict must particularly specify such part as has been proved, with the same certainty as that required in the declaration in the description of the premises claimed. 6. If the verdict be for an undivided share or interest in the premises claimed, it must specify such share or interest; and if for an undivided share in part of the premises claimed, it must specify such share and de- scribe such part of the premises as before mentioned.^' 7. It is also required that the verdict shall specify the estate or right which has been established on the trial by the plaintiff in whose favor it is rendered, whether such estate be in fee or for his own life or for the life of an- other, stating such lives, or a term for years or other- wise, specifying the duration of such term.®* 98Bringhurst v. Grand Rapids & 86, 92; Schweitzer v. Bird, 204 I. R. Co., 78 Mich. 570; Reilly v. Mich. 333. Blaser, 61 Mich. 399. This latter provision is mandatory. 99 Verdict not so stating cannot Schweitzer v. Bird, 204 Mich. 333. be sustained. Shaw v. Hill, 79 Mich. § 20 Ejectment 545 If the right or title of a plaintiff in ejectment expires after the commencement of the suit, but before trial, the verdict must be returned according to the fact, and judg- ment will be rendered that he recover his damages by reason of the withholding of the premises by the de- fendant, to be assessed, and that, as to the premises claimed, the defendant go thereof without day.^ §20. Judgment. In cases where no other provision is made, the judg- ment in the action, if the plaintiff prevail, is that the plaintiff recover the possession of the premises accord- ing to the verdict of the jury, if there was such a verdict ; or, if the judgment be by default, according to the de- scription thereof in the declaration, with costs to be taxed.2 But in a default case, it is not sufficient to mere- ly refer to the description of the premises in the declara- tion, although such irregularity does not make the judg- ment subject to collateral attack.^ Lands not described in the declaration cannot be included,* nor can a subse- quently acquired interest.^ It cannot run against one not an occupant nor in any way connected with the prem- ises by claim of title or otherwise.^ It may be for a less IJud. Act, ch. 29, §24; Comp. be that the plaintiff recover the Laws 1915, §13191. premises "according to the descrip- 2Jud. Act, ch. 29, §26; Comp. tion contained in the declaration," Laws 1915, § 13193. While the stat- such entry is not so defective as to ute refers only to a verdict, it render the judgment invalid, the would seem that it is used as syn- premises being specifically described onymous with findings where the in the declaration, and title in fee trial is without a jury. Effect of claimed, and the defect in such entry judgment as establishing title, see is cured by the statute of amcnd- Busch V. Nester, 62 Mich. 381. Im- ments. Morse v. Hewitt, 28 Mich, portance of record, see Bringhurst 481. v. Grand Rapids I. E. Co., 78 Mich. 4 Twogood v. Hoyt, 42 Mich. 609. 570. 6 De Mill v. Moffat, 49 Mich. 125: 3 In the entry of the judgment for Nowlen v. Hall, 128 Mich. 274. the plaintiff, the premises demanded 6 Martin v. Piatt, 64 Mich. 629. should be described, but if the entry 1 Abbott— 35 546 Ejectment § 20 quantity or interest than that specified in the declara- tion.' The recital in the judgment of an incorporeal right does not invalidate it.® When the title of the plain- tiff has expired after the commencement of the suit, and before trial, the judgment is that the plaintiff recover his damages to be assessed, and that as to the premises, the defendant do go thereof without day.^ Judgment for the defendant is for costs, as in ordinary actions." Form of Judgment Upon Finding for Plaintiff (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, and the same having been duly brought on for trial before the court, without a jury, the court, having heard the proofs and allegations of the parties and the arguments of counsel, after mature deliberation thereon, finds that the said defendant is guilty of unlawfully withholding from the said plaintiff the premises described as (insert the description), and that the said plaintiff is well entitled to hold the same in fee (or, for his own life, or as the case may be), as the said plaintiff has in his decla- ration in this cause complained against the said defendant, and that the said plaintiff has sustained damages on occasion of the premises, over and above his costs and charges about his suit in this behalf expanded, in the sum of six cents. Therefore, it is considered that the said plaintiff do recover against the said defendant the possession of the said premises and that the said plaintiff have a writ of possession therefor; and it is further ordered and adjudged that the said plaintiff do recover against the said defendant the damages aforesaid, together with his coats and charges by him about his suit in this behalf expended, to be taxed, and that the said plaintiff have execution therefor. Form of Judgment on Verdict for Plaintiff (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, thereupon came a jury, to wit (insert the names of the 7 Bringhurst v. Grand Rapids & I. come to an end. Michigan Cent. R. Co., 78 Mich. 570 (declaration R. Co. v. McNaughton, 45 Mich. 87. should be amended where recovery It does not apply to cases where only for undivided half) ; Moran v. plaintiff himself has sold the prop- Lezotte, 54 Mich. 83. erty. Jenney v. Potts, 41 Mich. 52. 8 Taylor v. Gladwin, 40 Mich. 232. 10 Defendant is not entitled to 9Jud. Act, ch. 29, §24; Comp. judgment for taxes paid by him Laws 1915, § 13191. on the land. Weimer v. Porter, 42 This statute does not apply where Mich. 569; Ellsworth v. Freeman, the right or title is transferred, but 43 Mich. 488. only to cases where term and rights § 21 Ejectment 547 jurors), good and lawful men, who, being duly chosen, tried and sworn well and truly to try the issue between the parties, after hearing the proofs and allegations of the parties, the arguments of counsel and the charge of the court, retired from the bar, under the charge of S. T., an officer of the court, duly sworn for that purpose, to consider of their verdict to be given, and, after being absent for a time, return into court and say upon their oath that the said defendant is guilty of unlawfully withholding from the said plaintiff the premises described as (insert the description), and that the said plaintiff is well entitled to hold the same in fee (or, for his own life, or as the case may be), as the said plaintiff has in his declaration in this cause complained against the said defendant, and that they assess the dam- ages of the said plaintiff at the sum of six cents. Therefore, it is consid- ered that the said plaintiff do recover against the said defendant the pos- session of the said premises, according to the verdict of the said jury, and that the said plaintiff have a writ of possession therefor; and it is further ordered and adjudged that the said plaintiff do recover against the said de- fendant the damages aforesaid, together with his costs and charges by him about his suit in this behalf expended, to be taxed, and that the said plaintiff have execution therefor. Form of Judgment Upon Finding by Court for Defendant (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, and the same having been brought on for trial before the court without a jury, the court, after hearing the proofs and allegations of the parties and the arguments of counsel, after mature deliberation thereon, finds that the said defendant is not guilty of unlawfully withholding from the said plaintiff the premises described, in manner and form as the said plaintiff has in his declaration in this cause alleged. Therefore, it is consid- ered that the said plaintiff take nothing by his suit, and that the said defendant do go thereon without day; and it is further considered that the said defendant do recover against the said plaintiff his costs and charges by him about his defense in this behalf expended, to be taxed, and that the said defendant have execution therefor. § 21. Judgment by default. **Upon filing due proof of service of process, or declaration, or of the due publication of such order and compliance in all respects with the requirements of law in case of service by publication, or of the service of a copy of such order personally on such defendant within the time limited therein, if such defendant shall neglect to appear and plead within the time provided by law or rule 548 Ejectment § 21 of court, his default for not appearing and pleading may be entered as in other cases." " Form of Judgment by Default for Plaintiff (Title of cause.) In this cause, tlie default of the said defendant for want of an appear- ance (or, a plea) having been duly filed, whereby the said defendant re- mains in this cause undefended against the said plaintiff, wherefore the said plaintiff ought to recover against the said defendant the possession of the premises described in the declaration of the said plaintiff in this cause, together with his costs and charges by him about his suit in this behalf expended. Therefore, it is ordered and adjudged by the court now here that the said plaintiff do recover against the said defendant the pos- session of the premises aforesaid, according to the description thereof con- tained in the said declaration, and that the said plaintiff have a writ of possession therefor; and it is further ordered and adjudged by the court that the plaintiff do recover against the defendant his costs and charges by him about his suit in this behalf expended, to be taxed, and that th« plaintiff have execution therefor. § 22. Conclusiveness and vacation of judgment. Every judgment in ejectment rendered upon a verdict, or upon default after personal service, is by statute made conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming from, through, or under such party by title accruing after the commencement of such action, unless set aside or reversed.^^ Every judgment in ejectment rendered by default when no personal service is had or appearance entered is, from and after two j^ears from the time of its rendition, conclu- sive upon the defendant and upon all persons claiming from or through him by title accruing after the com- mencement of the action; but, within three years after the rendering of such judgment, on the application of the de- fendant, his heirs, executors, administrators or assigns, the court may vacate the judgment and grant a new trial, if satisfied that justice will be thereby promoted and the llJud. Act, ch. 29, §15; Comp. 12 Jud. Act, ch. 29, §29; Comp. Laws 1915, § 13182. Laws 1915, § 13196. § 22 Ejectment 549 rights of the parties more satisfactorily ascertained and established.^^ If the defendant in ejectment, at the time of docketing the judgment therein by default, be either (1) within the age of twenty-one years, (2) insane or (3) imprisoned upon conviction of a criminal offense for any term less than for life, the time during which such dis- ability continues will not be deemed any portion of the two years mentioned, but any such person will, on motion therefor, be entitled to a new trial at any time within three years after such disability is removed.^* And if he dies during the continuance of such disability, his heirs, executors or administrators may be substituted in the ac- tion and will be entitled to such new trial at any time within three years after his death.^^ Except as herein stated, no new trial in an action of ejectment will be granted as a matter of course. ^^ **If the plaintiff shall have taken possession of the prernises by virtue of any recovery in ejectment, such possession shall not in any way be affected by the vacat- ing of any judgment, as herein provided; and if the de- fendant recover on any new trial hereby authorized, he shall be entitled to a writ of possession in the same man- ner as if he were plaintiff. " * ' Upon any new trial granted as herein provided, the defendant may show any matters in bar of a recovery, which he might show to entitle him to the possession of the premises if he were plaintiff in the action." ^' All recoveries had by agreement of parties, or by fraud, against any tenant for life, in dower or by the curtesy, of any lands, tenements or hereditaments, shall be void as against all persons to whom any reversion or remainder ISJud. Act, ch. 29, §29; Comp. 16 Jud. Act, ch. 29, §30; Comp. Laws 1915, § 13196. Laws 1915, § 13197. UJud. Act, ch. 29, §32; Comp. 17 Jud. Act, ch. 29, §§34, 35; Laws 1915, § 13199. Comp. Laws 1915, §§ 13201, 13202. 15 Jud. Act, ch. 29, § 33 ; Comp. Laws 1915, § 13200. 550 Ejectment § 22 of such lands shall appertain, and as against their heirs, unless the appearance of the person having such rever- sion or remainder shall have been duly entered in the court where such recovery shall be had.^^ And if any tenant for life, in dower or by the curtesy, or any tenant for years be impleaded, and the person to whom the re- version or remainder appertains shall come into court beforfe trial or judgment by default, and pray to be re- ceived to defend his right, he will be received for that purpose and permitted to plead to the action, upon such terms as the court may deem just." And, if any tenant for life or years make default, or give up any lands de- manded, so that judgment be given on such default or surrender, the heir, or person to whom the reversion or remainder of such lands appertains may, after the ter- mination of the estate of such tenant, have an action of ejectment to recover the same lands.^" § 23. Filing' and recording. A copy of any final judgment in ejectment affecting or relating to the title to real estate, duly certified by the clerk of the court under its seal, may be recorded where the property is situated and when so recorded has the same effect as a recorded deed. The party in whose favor any final judgment in ejectment shall be rendered shall, within thirty days after the rendition thereof, file for record in said register's office, a duly certified copy of said final judgment, and in case of failure so to do, the com- mencement of said suit or the rendition of said judgment shall not be operative as constructive notice to pur- chasers of said real estate of the right or title of said plaintiff or of any right or title established by said final 18Jud. Act, ch. 33, §3; Comp. 20 Jud. Act, eh. 33, §2; Comp. Laws 1915, § 13360. Laws 1915, § 13359. 19 Jud. Act, ch. 33, § 1 ; Comp. Laws 1915, § 13358. § 25 Ejectment 551 judgment, until such notice of suit, or certified copy of judgment shall be so filed for record.^^ § 24. Recovery of mesne profits. The original object of the action of ejectment was the recovery of damages claimed by a tenant for a term of years for a forcible ejection or ouster from the land de- mised.^^ Afterwards the courts of law, in analogy to the practice of the courts of equity in obliging an ejector to make a specific restitution of the land, introduced a practice whereby the plaintiff was allowed to recover not merely the damages which he had sustained, but also the possession of the land, and the principal use of the action came to be that of trying the title to the land. When the title came to be the principal question in the action, the damages, which formerly were the main ob- ject, were usually recovered in only a very small and inadequate amount, such as a shilling or some other trivial sum; and, in this condition of the action, there- fore, in order to complete the remedy when the posses- sion had been long detained from him who had the right to it, an action of trespass lay, after a recovery in eject- ment, to recover the ' ' mesne profits " ; by which is meant the rents and profits which the tenant in possession had wrongfully received.^* In this state, it is provided by statute that the plain- tiff recovering judgment in ejectment shall also be en- titled to recover damages for rents and profits of the premises recovered.^* § 25. Suggestion of claim. The plaintiff recovering judgment in an action of ejectment, and seeking to recover damages for the rents 21Jud. Act, ch. 29, §60; Coinp. 23 3 Cooley's Bl. Comm. 205. Laws 1915, S 13227. 24Jud. Act, ch. 29, §36; Comp. 22 Stcph. PI. 53. Laws 1915, § 13203. 552 Ejectment § 25 and profits of the premises recovered, must, within one year after the docketing of the judgment, make and file a suggestion of such claim with the clerk of the court in which the judgment was entered, as a continuation of the same.^^ The judgment here referred to is the final judgment in the cause, which does not relate back to any other judgment taken in the cause. On the vacation of a judgment in ejectment in favor of plaintiff, his sugges- tion of a claim for damages, based upon such judgment, is thereby abated and dies with the judgment.^^ A suggestion of a claim for mesne profits is required to be substantially in the same form as a declaration in assumpsit for use and occupation, as near as may be, and may be against the defendants liable for the rents and profits, omitting those not liable. A notice must be an- nexed to the suggestion in such form, as near as may be, as is required to be attached to a declaration in suits commenced by declaration, notifying the defendant that he is required to plead to the suggestion within fifteen days after service thereof, and a copy of the suggestion and of the notice must be served on the defendants named therein in the same manner as in cases of such declarations." Form of Suggestion of Claim for Bents and Profits (Title of court and cause.) And now at this day, to wit, on , at , before the said cir- cuit court for the county of , comes the said A. B., by J. K., his attorney, according to the statute in such case made and provided, and suggests to the said court and gives the said court now here to understand and be informed that the said A. B. claims from the said C. D. the sum of dollars, in which said sum the said C. D. is indebted to the said A. B. for the use and occupation of the real estate and premises described in the judgment heretofore rendered in said cause, from the day of , A. D , until the day of , A. D ; dur- 26Jud. Act, ch. 29, §37; Comp. 27 Jud. Act, ch. 29, §38; Comp. Laws 1915, § 13204. Laws 1915, § 13205. 26 Williams v. Ottawa Circuit Judge, 79 Mich. 549. § 27 Ejectment 553 ing all of which time the said C. D. enjoyed the mesne profits thereof, the value of which said profits amounts to the sum of dollars, above claimed, and, being so indebted, as aforesaid, the said C. D., in considera- tion thereof, afterwards, to wit, on , at , undertook and promised the said A. B, to pay him the said sum of dollars, when he, the said C. D., should be thereunto afterwards requested; yet the said C. D., although often requested so to do, has not yet paid the said sum of dollars, or any part thereof, to the said A. B., but so to do has hitherto wholly neglected and refused, and still does neglect and refuse, to the damage of the said A. B. of the said sum of dollars, above claimed. J. K., Attorney for Plaintiff. Form of Notice to Plead to Suggestion of Damages (Title of court and cause.) To the Above-Named Defendant: Please to take notice that, a suggestion of damages in this cause, of which the annexed is a copy, has been duly filed in the office of the clerk of said court and that you are required to plead to said suggestion within fifteen days after service upon you hereof. Djited, etc. Yours, etc., J. K., Plaintiff's Attorney. § 26. Proceeding's by defendants. The defendants may plead to the suggestion and give notice of any special matters in bar of the claim, except such as were or might have been controverted in the ac- tion of ejectment, in the same manner as in personal actions, and may show on the trial, in bar or in mitiga- tion of the damages claimed by the plaintiff, a recovery by them or by any other person of the same premises or of part thereof subsequent to the verdict in the action of ejectment.^' § 27. Trial of issue. If an issue of fact be joined on the suggestion, it is tried as in other causes, and, if found for the plaintiff, 28Jud. Act, ch. 29, §39; Comp. Laws 1915, § 13206. 554 Ejectment § 27 the same jury must assess the damages to the amount of the mesne profits received by the defendant since he entered into the possession of the premises, subject to the restrictions which will be presently mentioned.^* On the trial of the issue, the plaintiff will be required to establish, and the defendant may controvert, the time when the defendant entered into possession of the prem- ises, the time during which he enjoyed the mesne profits and the value of such profits, but the record of the re- covery in the action of ejectment will not be evidence of such time.^° It is for the value of the use of the premises while withheld by the defendant that the plain- tiff is entitled to recover, and, while the amount received by the defendant for such use may be properly shown as bearing upon the question of such value, yet that amount is neither controlling nor binding upon the plaintiff. The plaintiff is entitled to recover that amount and as much more as he can show the value of the use of the premises to be. The fact that, at the time the suggestion of plain- tiff's claim for mesne profits was made, the defendant had not received any rents and profits does not prevent recovery for them by the plaintiff; ^^ but the plaintiff can recover the rents and profits for no longer term than six years immediately preceding the time when the sugges- tion is served on the defendant.^^ § 28. Set-off. On the trial of the issue, the defendant has the right to set off permanent improvements made on the prem- ises, to the amount of the plaintiff's claim, and, in esti- mating the plaintiff's damages, the value of the use by the defendant of any improvements made by him, or purchased by him in good faith from any person from 29Jud. Act, eh. 29, §40; Comp. 31 Noble v. Fairs, 58 Mich. 637. Laws 1915, §13207. 32 Jud. Act, ch. 29, §42; Comp. SOJud. Act, ch. 29, §41; Comp. Laws 1915, §13209. Laws 1915, § 13208. § 30 Ejectment 555 whom he derives color of title thereto, will not be allowed to the plaintiff.^^ § 29. Assessment of damag-es. If no issue of fact be joined on the plaintiff's sugges- tion of his claim for damages for the mesne profits, and judgment is rendered against the defendant by default or otherwise, the value of the mesne profits must be as- sessed and the plaintiff's damages ascertained in the same manner as in other cases.^* The plaintiff must establish the same matters as when an issue of fact is joined, and the defendant may in like manner contro- vert them and make any set-off to which he is entitled, and the jury must assess the damages in the same man- ner.^* Upon the return of an inquisition of damages or upon the verdict of the jury in case an issue is joined, the court will render judgment as in actions of assumpsit for use and occupation, and the judgment will have the like effect in all respects.^^ § 30. Proceeding's in case of death of plaintiif . If a plaintiff in ejectment dies after issue joined or judgment therein, his personal representatives may en- ter a suggestion of his death and of the granting of let- ters testamentary or of administration to them and thereupon suggest their claim for mesne profits in the same manner and with the like effect as the deceased might have done if living, and the same proceedings in all respects will be had thereon.^"'' 83Jud. Act, ch. 29, §43; Comp. Harrington, 18 Mich. 213. Laws 1915, §13210. 34Jud, Act, ch. 29, §48; Comp. Although defendant is not entitled Laws 1915, § 13215. to compensation for improvements, 35Jud. Act, ch. 29, §49; Comp. under the statute relating to mak- Laws 1915, § 13216. ing and filing a claim therefor, ho 86 Jud. Act, ch. 29, §50; Comp. may still obtain compensation there- Laws 1915, § 13217. for to some extent by way of set- 87 Jud. Act, ch. 29, § 51 ; Comp. off if plaintiff proceeds for the re- Laws 1915, § 13218. covery of mesne profits. King v. 556 Ejectment § 31 § 31. Recovery of compensation for buildings and im- provements. At the common law, there could be no recovery as against the holder of the title for betterments. They became a part of the freehold and passed by the recov- ery in ejectment. The plaintiff was placed in possession of the land in its improved condition. ^^ In this state, relief is provided by statute in the form, not of a per- sonal judgment against the plaintiff, but by making payment for the bettemients a condition precedent to his obtaining possession. So whenever, in an action of ejectment, the plaintiff or any one or more of several plaintiffs, recovers, or recovers any undivided interest in the premises, the defendant or defendants will be al- lowed compensation, in proportion to such recovery, for buildings and improvements made by him or them, or by any person through whom he or they claim title, to the extent that such buildings and improvements increase the present value of the premises, provided the defend- ant or defendants, or the persons through whom he or they claim title, were in actual peaceable occupation of the premises for six years before the commencement of the action, or provided the premises were so occupied for a less time than six years under a color of title and in good faith.^^ The character of the occupation contemplated by the statute is that which under the rules of the common law entitles one to acquire title by adverse possession. It must be actual, open and peaceable.*® The good faith required is simply an honest belief of the occupant in his right or title. The fact that diligence on his part 88Lemerand v. Flint, etc., E. Co., Batzer, 195 Mich. 235; Kushler v. 117 Mich. 309; Robinson v. Batzer, Weber, 205 Mich. 400. 195 Mich. 235. Improvements in fact a detriment 89 Jud. Act, ch. 29, §44; Comp. not allowed for. Kushler v. Weber, Laws 1915, §13211; Jones v. Mer- 205 Mich. 400. rill, 113 Mich. 433; Robinson v. 40 Jones v. Merrill, 113 Mich. 433. § 31 Ejectment 557 might have disclosed to him that he had no title or that he knew the plaintiff claimed the premises does not neces- sarily negative his good faith.*^ Nor does the fact that he claims mider a quit-claim deed.*^ The question of the good faith of the defendant is usually one for the jury.*' The statute affirms an equitable right and should re- ceive no technical construction which will interfere with the purpose aimed at.** But only a defendant who has been in actual adverse possession of the premises, either for six years or under color of title and in good faith, may have compensation for buildings and improve- ments,*^ and also the plaintiff must have an estate in fee. An estate for life in the plaintiff or any other estate less than the fee is not sufficient for this purpose.*^ And where the occupation of the land by the defendant is only by virtue of a license implied from an executory contract for the sale of the land which does not purport to convey any legal possessory interest in the land to the vendee, no claim for improvements can be based upon such contract.*"'' So also, a defendant who has entered as a tenant and made improvements, in the absence of any assertion of an adverse holding, cannot recover the value of improvements made by him.*^ When a grantor remains in possession of the granted premises in sub- ordination to the right of the grantee, and during such occupancy buys an outstanding tax title, the recording 41 Petit V. Flint, etc., R. Co., 119 400; Boucher v. Tremble, 140 Mich. Mich. 492; Thomas v. Wagner, 131 352; Powell v. Pierce, 168 Mich. Mich. 601; Miller v. Clark, 56 Mich. 427; Closser v. McBride, 182 Mich. 337. See also Cook v. Bertram, 86 594. Mich. 356. Defendant must have had at least 42 v^lcland V. Clark, 123 Mich. 179. a colorable right to possession. 43 Jones v. Merrill, 113 Mich. 433; Powell v. Pierce, 168 Mich. 427. Miller v. Clark, 56 Mich. 337. 46 Burkle v. Ingham Circuit Judge, 44 Petit V. Flint, etc., R. Co., 119 42 Mich. 513. Mich. 492. 47 Buell v. Irwin, 24 Mich. 145. 46Kushler v. Weber, 205 Mich. 48 Wolf v. Holton, 92 Mich. 136. 558 Ejectment § 31 of the tax deed is not, standing alone, such an assertion of an independent hostile title as will entitle the grantor to recover for improvements made after securing such tax deed; but a claim of an adverse holding thereunder must have been expressly asserted and brought home to the grantee." It should also be observed that a defendant cannot recover for improvements made after the suit in eject- ment is brought.^" The statute does not contemplate that the expendi- ture made by a defendant for improvements shall be refunded to him, but only that he be allowed such a sum as equals the extent to which the buildings and improve- ments have increased the present value of the premises.*^ §32. Proceeding's to determine amount of compen- sation. In all actions of ejectment, if a defendant wishes to avail himself of the right to compensation for buildings and improvements, he may file a claim in writing, setting forth the character of the occupation and the time thereof, and a request that the jury find whether the premises have been actually and peaceably occupied by him or the person through whom he claims title, and the time of such occupation, and determine the increased value of the premises by reason thereof. A copy of such claim, with notice of the filing thereof, is required to be served on the plaintiff or his attorney at least ten days before the first day of the term at which the cause is tried. The plaintiff may then file a request in writing that the jury also find and determine what would have been the value of the premises at the time of the trial, if no buildings had been erected or improvements made or waste com- 49 Paldi v. Paldi, 84 Mich. 346. 61 Sherman v. A. P. Cook Co., 98 60 Cook V. Bertram, 86 Mich. 356; Mich. 61; Cleland v. Clarke, 123 Van Den Brooks v. Correon, 48 Mich. Mich. 179. 283. § 32 Ejectment 559 mitted. A true copy of such request, with notice of filing, must be served on the defendant or his attorney within five days after service of the notice of claim for compensation for improvements. The jury in all cases in which the above matters are submitted to them are required, if they find for the plaintiff, also to find and determine by their verdict upon those matters.®'^ The test is the actual relative value of the land with and without the improvements. On the one hand, the fact that the improvements were expensive to the defendant and are of peculiar or special value to him is not con- trolling, nor, on the other hand, is the fact that the im- provements are not adopted to the use to which the plaintiff intends to put the premises. The question is whether and how much the actual present value of the premises has been enhanced by the improvements for the purposes for which they are ordinarily used.^' The defendant cannot introduce evidence as to the value of improvements unless he has filed his claim," nor the plaintiff of the value of the premises, unless he has filed his request." It would, however, be permis- sible for the court in its discretion to allow a party to file a claim or request nunc pro tunc, if the other party would not be thereby surprised, or if he is offered a con- tinuance in case he claims surprise.*^ So, also, the court may permit a claim or request to be amended, where an amendment is required to protect the substantial rights of a party."''^ B2Jud. Act, ch. 29, §45; Comp. 66 Brooks v. Fairchild, 36 Mich. Laws 1915, § 13212. 231 ; Rawson v. Parsons, 6 Mich. 63 Petit V. Flint, etc., R. Co., 119 401. Mich. 492; Lemerand v. Flint, etc., 66 Brooks v. Fairchild, 36 Mich. R. Co., 117 Mich. 309; Robinson v. 231. Batzer, 195 Mich. 235. 67 Baldwin v. Cullen, 51 Mich. 33. 64 Newaygo County Mfg. Co. v. Echtinaw, 81 Mich. 416. 560 Ejectment § 33 § 33. Election by plaintiff to abandon premises. If, after the rendition of the verdict, the plaintiff, at the same or the next subsequent term of the court, makes his election on record to abandon the premises to the defendant at the value estimated by the jury, or, in cases where an undivided interest is recovered, at a propor- tionate part of such value, judgment will be rendered against the defendant for the sum so estimated by the jury, with costs of suit, where the recovery is of an en- tire interest, and, where recovery is had of an undivided interest, for a proportionate part of the sum estimated by the jury, with costs of suit. The judgment will be a lien upon the premises in question, and execution may issue and be levied upon the premises, which may be sold by virtue thereof in the same manner and with like effect as any other real estate of the defendant.^^ § 34. Proceeding's if plaintiff does not elect to abandon premises. If, however, the plaintiff does not elect to abandon the premises to the defendant, he must, within a year after the rendition of the judgment for the recovery of the premises, in cases of a recovery of an entire interest, pay to the clerk of the court, for the use of the defend- ant, such sum as has been assessed for the buildings and improvements, with interest thereon, and, in cases where a recovery of an undivided interest is had, a proportion- ate part of such sum as has been assessed for the build- ings and improvements, with interest thereon. No writ of possession can issue nor any new action be sustained for the land or undivided interest, as the case may be, until such sum is paid. But the plaintiff's taxed costs 68 Jud. Act, ch. 29, § 46 ; Comp. cannot elect to abandon his claim Laws 1915, § 13213. and take the value of the land. But where the plaintiff's right to Board of Sup'rs of Cass County v. a parcel of land is confined to the Banks, 44 Mich. 467. use of it for a specific purpose, he § 35 Ejectment 561 must be set off by the clerk against the amount of the verdict recovered by the defendant for buildings and im- provements, and where the amount of the taxed costs equals or exceeds the amount of the verdict, it is not necessary for the plaintiff to make any payment in satis- faction of it. A default to pay the clerk as required will be deemed an abandonment of all claim of title to the premises and will be a bar to the recovery thereof.^* The year within which the plaintiff may pay the sum assessed for the buildings and improvements begins to run from the time of entering final judgment, but the running of the time is suspended pending a review of the case on writ of error.^® § 35. Execution for plaintiff. In the action of ejectment, if the plaintiff recovers judgment, he is entitled to execution, usually called a ''writ of possession," the substantial form of which is prescribed by the statute, and by which the sheriff is 69 Jud. Act, ch. 29, §47; Comp. election once made. Miller v. Clark, Laws 1915, § 13214; Guild v. Kidd, 60 Mich. 162; Eawson v. Parsons, 6 48 Mich. 307; Miller v. Clark, 60 Mich, 401. See also McKenzie v. Mich. 162; Eawson v. Parsons, 6 A. P. Cook Co., 113 Mich. 452. Mich. 401. Where plaintiff recovers a judg- Whcre defendant is held entitled ment for the value of the property to the value of his improvements, instead of for possession, he cannot judgment for plaintiff in the ordi- have the error corrected in the nary form, providing that his de- supreme court by its giving judg- fault to pay the assessment for im- ment for the recovery of possession, provements shall be deemed equiva- Bertram v. Cook, 44 Mich. 396. lent to an abandonment, sufficiently Where only part of defendants are protects defendant. Guild v. Kidd, entitled to recover for improvements, 48 Mich. 307. the fact that the judgment in form Plaintiff has his election, after an allows for improvements in favor estimation of the land without the of all defendants is not ground for improvements, to take judgment for reversal on the exception of plain- the recovery of the premises, subject tiff. Boucher v. Trembley, 140 to the obligation to pay for the im- Mich. 352. provements; or, for the value as 60 Clark v. Green, 62 Mich. 355; estimated independently of the im- Boyce v. Judkins, 79 Mich. 154. provements; but he is bound by his 1 Abbott— 36 562 Ejectment § 35 commanded without delay to deliver to the plaintiff possession of the premises, with the appurtenances, and to collect the costs of the plaintiff, if any have been awarded.^^ Notice of the writ need not be filed, and tax- ation of costs is not a condition precedent.^'' By statute, plaintiff may include in the writ of posses- sion an execution against the property of the defendant to collect the costs or damages due, in the same cases in which he would be authorized to issue such execution separately.^^ Form of Writ of Possession in Ejectment with Fieri Facias for Costs In the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting: Whereas A. B., plaintiff, has lately in our circuit court for the county of , by the judgment of such court, recovered against C. D., defend- ant, the following described premises, to wit: (Describe the premises), which said premises have been and still are unjustly withheld from the said plaintiff by the said defendant, whereof the said defendant is convicted, as appears to us of record; and inasmuch as it is adjudged in our said court that the said plaintiff have execution upon the said judgment according to the force and effect of his said recovery, therefore we command you that without delay you deliver to the said plaintiff possession of the said prem- ises so recovered, with the appurtenances ; and we further command you that, of the goods and chattels of the said defendant in your county, you cause to be made dollars, which in our said court were adjudged to the said plaintiff for the damages which he had sustained, as well by reason of the premises as for his costs and charges by him about his suit in that behalf expended, whereof the said defendant is also convicted, as further appears to us of record; and, if suflScient goods and chattels of the said defendant cannot be found within your county, that then you cause the damages and costs aforesaid to be made of the real estate of the said de- fendant within your county, and have you that money before our said court at , on , to render unto the said plaintiff for his damages, costs and charges aforesaid, together with your certificate of the manner in which you shall have executed this writ; and have you then and there this writ. Witness, etc. eijud. Act, ch. 29, §27; Comp. 63 Jud. Act, ch. 33, §15; Comp. Laws 1915, § 13194. Laws 1915, § 13372. 62 Dawson v. Chippewa Circuit Judge, 127 Mich. 328. Election of Remedies 563 Form of Return of Writ of Possession State of Michigan, 1 County of ( I hereby certify and return that, by virtue of the within writ, I did, on the day of , A. D , deliver possession of the premises within described, with the appurtenances, to the within-named A. B., as I am within commanded. Dated, etc. S. T., Sheriff. § 36. Execution for defendant. Upon a judgment against the plaintiff, or one or more plaintiffs, in cases where they are liable for costs, execu- tion for the collection of the same may be issued as on judgments in personal actions.^* § 37. New trials. New trials in ejectment, as matter of course, are abol- ished by the Judicature Act,^® except in so far as the right to set aside judgments by default under certain circum- stances is a matter of right.^^ New trials for cause are granted ' ' for the same reasons, and in the same manner, as in personal actions."^' ELECTION OF REMEDIES An election of remedies is defined as the choosing be- tween two or more different and coexisting modes of pro- cedure and relief allowed by law on the same state of facts.^' It is an application of the law of estoppel on the theory that a party cannot, in the assertion or prose- cution of his rights, occupy inconsistent positions.*® When a person has a right to choose one of two modes 64Jud. Act, ch. 29, §28; Comp. 67 Jud. Act, ch. 29, §30; Comp. Laws 1915, § 13195. Laws 1915, § 13197. 65 Jud. Act, ch. 29, §30; Comp, 68 See Thompson v. Howard, 31 Laws 1915, § 13197. Mich. 309. 66 See § 21, ante. 69 See note in 13 L. R. A. 91. 564 Election of Remedies of redress, and the two are so inconsistent that the as- sertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or means of knowledge of such facts as would authorize a resort to either, will preclude him thereafter from going back and electing anew.'^° Nor can a plaintiff in any case make a new election while the first action is pending, or after it has been determined on the merits. One having the choice between two inconsistent reme- dies is bound by an election, and suit brought upon one precludes a subsequent resort to the other.''^^ However, the demands must be inconsistent in order to make the election of one right of action an estoppel against the subsequent assertion of the other, unless satisfaction has been obtained by judgment,''^ and there is no inconsistency merely because the forms of action are different.'^' There may be an election of remedies based on contract as well as an election as between the right to sue ex contractu and ex delicto.''* The election to be binding must be with knowledge of the facts.''^' A recovery in an action on a quantum meruit for serv- ices rendered under a contract is an election of remedies so as to preclude a subsequent action for breach of ex- press contract.'^ But it is held that a vendor does not elect his remedy by bringing assumpsit on the contract and proceeding to judgment therein, so as to preclude his resort to replevin.'' There is a difference between an 70 Black V. Miller, 75 Mich. 723 ; 73 Mintz v. Jacob, 163 Mich. 280, Thompson v. Howard, 31 Mich. 309. which well states and illustrates the 71 McDonald v. Young, 198 Mich. doctrine of election. 620; McDonald v. Preston Nat. 74 Mintz v. Jacob, 163 Mich. 280. Bank, 111 Mich. 649; McLaughlin 75 Hogue v. Wells, 180 Mich. 19. V. Austin, 104 Mich. 489. 76 La Vasser v. Chesbrough Lum- 72Humiston, Keeling & Co. v. ber Co., 190 Mich. 403. Bridgman, 195 Mich. 82; Mintz v. 77 Canadian Typograph Co. v. Jacob, 163 Mich. 280; Feldkamp v. Macgurn, 119 Mich. 533. Ernst, 177 Mich. 550. Election of Remedies 565 election of remedies and a mistake of remedy/* and where plaintiff mistakes his remedy and attempts to en- force it in an inappropriate action, wherein no recovery can be had, he is not precluded thereby from resorting to his proper remedy.'''^ There is no choice between two remedies where neither remedy is open to plaintiff, and hence an ineffectual attempt to recover in assumpsit a debt not due is not a waiver of a future tort.*" The stat- ute when it gives a choice of remedies will not allow courts to treat one as identical with the other,*^ but plain- tiff is bound by his election.*'^ For instance, where plaintiff has a choice between two or more forms of ac- tion, he waives the other remedies and must be content with the rule of damages applicable to the form of ac- tion chosen.** The commencement of a suit constitutes an election although it does not proceed to judgment.** The fact that the first action was brought in a court which did not have jurisdiction does not destroy the effect of the election.*^ The election extends beyond the immediate parties, and binds all who claim under or who are connected with them as privies.*^ It has been said that the duty is imposed on courts to see that defendant is not prejudiced by one form of action being chosen rather than another.*''^ The right to elect, in certain cases, to waive a tort and 78 McLaughlin v. Austin, 104 83 Anderson v. Besser, 131 Mich. Mich. 489. 481. 79 Kratzmer v. Detroit Lumber 84 Thomas v. Watt, 104 Mich. 201. Co., 195 Mich. 556, 570; Sullivan v. But see Lewis J. Selznick Enter- Ross' Estate, 113 Mich. 311; Shan- prises v. Harry I. Garson Produc- ahan v. Coburn, 128 Mich. 692; tions, 202 Mich. Ill, holding that First Nat. Bank v. Sweet, 136 Mich. the mere commencement of an ac- 615; Holmes v. Smith, 149 Mich. tion at law does not constitute an 327; Glover v. Radford, 120 Mich. election not to sue in equity. 542. 86 Nield v. Burton, 49 Mich. 53. 80 Bryant v. Kenyon, 123 Mich. 86 Rowley v. Towsley, 53 Mich. 151. 329. 81 Christy v. Farlin, 49 Mich. 319. 87 Chandler v. Childs, 42 Mich. 82 Christy v. Farlin, 49 Mich. 319. 128. 566 Election of Remedies bring assumpsit, has already been stated,®^ and in later articles the right to elect between replevin and an action for conversion is noted.'® The fact that a statute is en- acted giving a right of action different in form from that at the common law does not abrogate the right to pro- ceed at common law for the same cause, unless there is some special provision in the statute to that effect.®** Of course the remedy provided for by statute may be exclu- sive.®^ If plaintiff has an option to sue either in a fed- eral court or in a state court, the bringing and prosecu- tion of an action in one court precludes a subsequent resort to the other court.®* ELECTIONS Elections between counts in the declaration (see Pleading), between articles exempt from levy (see Ex- emptions), as to the judgment in ejectment (see Eject- ment) or replevin (see Replevin), as to the joinder of tort feasors (see Parties), as between case made and bill of exceptions (see Case Made) are all treated of in other articles in this work. Service of process and the priv- ilege from arrest on election day (see Commencement of Actions) is regulated by statute. EMPLOYEES See Workmen 's Compensation Act. ENTRY See Judgments; Motions, etc. 88 See Assumpsit. distraint of hog damage feasant was 89 See Replevin ; Trover. exclusive. 90 Bellant v. Brown, 78 Mich. 294. 92 Michigan R. Commission v. 91 Spiegel v. Straw, 196 Mich. Detroit & M. R. Co., 182 Mich. 234. 576, holding statutory remedy for Error, Writ of 567 EQUITY See Actions; Limitation of Actions; Mandamus; Ejectment; Execu- tions; Nuisances; Waste. EQUITY OF REDEMPTION See Executions. ERROR, WRIT OF § 1. Definition and nature of. § 2. From what court writ may issue. § 3. To what courts writ may issue. § 4. Issuance as matter of course. § 5. Writ as continuance of original suit. § 6. Scope of writ and when proper. § 7. "Final" judgments or determinations. § 8. Proceedings according to the course of the common law. § 9. Determination of probate appeals. § 10. Determination of appeals from justices of the peace. § 11. Review of questions of fact. § 11a. Agreement that decision of lower court shall be final. § 12. By and against whom error may or should be brought. § 13. Notice of issuance of writ where party dies after judgment. § 14. Proceedings in case part of several parties desire to bring error. § 15. Time when writ must be taken out. § 16. How writ obtained. § 17. Form of writ. § 18. Notice of issuance. § 19. Return of writ. § 20. Extending time for return. § 21. Bond for stay of proceedings. § 22. How sufficiency of sureties and penalty of bond determined. § 23. Additional bond. § 24. Proceedings upon filing bond. § 25. Staying proceedings after return of writ. § 26. Entitling cause. § 27. Record. §28. Amendment. § 29. Assignments of error. § 30. Notice of hearing. § 31. Procuring cause to be placed on calendar. § 32. Dismissal of writ. § 33. For failure to return writ or assign errors. § .^4. Time for motion. 8 35. Motion papers and notice of motion. 568 Error, Writ of § 1 § 36. Calendar practice. § 37. Effect of dismissal. § 38. Eeinstatement after dismissal. § 39. Voluntary dismissal of writ. § 40. Who may allege error. § 41. Consolidation of cases. § 42. Scope of review. § 43. Interlocutory orders. § 44. Discretion of lower court. § 45. Questions of fact. § 46. Questions not urged in the trial or lower court or at the trial. § 47. Rulings not excepted to. § 48. Eeview as limited by the record. § 49. Eefusal of new trial. § 50. Where place where error occurs in record not pointed out. § 51. Questions not necessary to be decided. § 52. Constitutional questions. § 53. Eeview on second or further writ. § 54. Presumptions in support of judgment. § 55. For what errors judgment will be reversed. § 56. Error as harmless or prejudicial. § 57. Judgment in supreme court. § 58. When court will order new trial on reversal. § 59. Eeversal in part. § 60. Costs. § 61. Costs as discretionary. § 62. When judgment reversed. § 63. When judgment aflSrmed. § 64. Damages for delay and vexation. § 65. On dismissal. § 66. Costs on rehearing, motion costs, items of costs, and taxation of costs. § 67. Procedure after aflSrmance or reversal. Cross-References: Bill of Exceptions; Case Made; Supreme Couht; Judges; Habeas Corpus; Summary Proceedings; Costs; Assignments OF Error; Briefs; Clerks of Court; Eules of Court. § 1. Definition and nature of. In England, a writ of error, like an original writ, was sued out of chancery, directed to the judges of the court in which a judgment had been given, and commanding them, in the name of the king, in some cases themselves to examine the record, in others, to send it to another court of appellate jurisdiction to be examined, in order that some alleged error in the proceedings might be § 1 Error, Writ of 569 corrected.^ When the writ so issued commanded the judges by whom the judgment had been rendered to ex- amine the records themselves, it was called a ''writ of error coram nobis," if directed to the King's Bench, and a "writ of error coram vobis," if directed to the Com- mon Pleas; but, when it commanded the judges of the court in which the judgment had been rendered to send the record to another court of appellate jurisdiction to be examined, it was called simply a "writ of error. "^ The writ of error coram nobis to the King's Bench was so called because the record and proceedings were stated in the writ to remain before us (coram nobis), that is, before the king, in whose name the writ issued, and who, by a fiction of law, was supposed to preside in per- son in that court; while the writ coram vobis to the com- mon pleas was so called because the record and proceed- ings were stated in the writ to remain before you (coram vobis), that is, the king's justices. The writs coram nobis and coram vobis contained no certiorari clause, for the record was not to be certified to another court, but remained in the court rendering the judgment com- plained of. They were in effect and nature a commission merely to the court to correct error. The writ of error requiring the record to be certified to an appellate court contained a certiorari clause for that purpose, and, like the writs coram nobis and coram vobis, was a commis- sion to the court to examine the record and proceedings and to correct the errors alleged to exist in them, if any be found.' The writ of error was applicable only where the al- leged error was one of law and could not be used to at- tain the correction of an error in a matter of fact. The ISteph. PI. 142; 2 Tidd's Pr. 2 Steph. PI. 142; Teller v. Weth- 1134. At common law, the writ of erell, G Mich. 46. error is an original writ. Jaques 8 Teller v. Wetherell, 6 Mich. 46. V. Caesar, 2 Saund. 100. 570 Ekror. Writ of § 1 writs coram nobis and coram vobis, on the other hand, effecting a review of the record and proceedings by the judges of the court in which the judgment was ren- dered, were not at all applicable for the correction of errors of law, but only where the alleged error involved a matter of fact.* Even where the error alleged was one of fact, the writ coram nobis or coram vobis was not, in all cases, capable of attaining a correction of it. It is elsewhere stated how conclusive is the verdict of a jury in the decision of ques- tions of fact. When an issue of fact has been so deter- mined, the decision is final and indisputable by the par- ties and their privies, unless the same is set aside either in the trial court on motion for a new trial or by the su- preme court on error assigned on the denial of such mo- tion by the trial court. If, therefore, an issue of fact has been wrongly decided by a jury, such wrongful decision does not constitute an error in fact in the sense in which that term is used in the statement that the writ coram nobis or coram vobis was applicable for the correction of errors of fact. But there are certain facts which affect the validity and regularity of the legal decision itself, such as the defendant, while under age, having appeared in the suit by attorney and not by guardian, or the plain- tiff or defendant having died before the suit was com- menced. To such cases, the writ coram nobis or coram vobis applied, because, as it has been said, the error in fact is not the error of the judges and reversing the judgment because of it is not reversing their own judg- ment.* § 2. From what court writ may issue. The writ can issue only from the supreme court. It cannot issue from a circuit court.® 4Steph. PI. 142; 3 Cooley's Bl. 6 Stcph. PI. 143. Comm. 406. 6 Teller v. Wetherell, 6 Mich. 46. § 4 Error, Writ of 571 § 3. To what courts writ may issue. The writ may be issued only to courts of record,''^ and furthermore only to courts of record proceeding accord- ing to the course of the common law.® It follows that the writ cannot be issued to review the proceedings of a justice of the peace except in so far as an indirect review may be had after an appeal to the circuit court or cer- tiorari from the circuit court.® So proceedings of the probate court, not being according to the course of the common law, cannot be reviewed, except in some cases after an appeal to the circuit court in which case the re- view is really of the decision of the circuit court. ^° Like- wise the writ cannot issue to a court of equity. § 4. Issuance as matter of course. The Judicature Act provides that writs of error, upon any final judgment or determination, may issue of course, out of the supreme court, in vacation as well as in term.^"* In 1917 it was provided, by an amendment of the Judi- cature Act, that the writ should issue as of course only where the judgment *' exceeds in amount five hundred dollars." In all other cases the writ might ''issue in the discretion of the supreme court upon proper applica- tion."" The amendment of 1917 was held to apply to judgments rendered before it went into effect,^^ but was 7 Fletcher v. Clark, 39 Mich. 374. by the jury, to allow the writ of 8 See § 8, post. error to issue as a matter of course 9 See § 10, post. upon application made. In view of 10 See § 9, post. the fact that this case has been "Where a verdict of no cause of fully presented * * * we have action results, it is necessary to concluded to allow the writ nunc make the application for an allow- pro tunc." Albrecht v. St. Hed- ance of the writ in accordance with wig's, etc., Society, 205 Mich. 395. the express language of the statute. lOa Jud. Act, ch. 50, § 1 ; Comp. However, it has been the practice of Laws 1915, § 13736. the court, where the ad damnum H Pub. Acts 1917, No. 172. clause of the declaration shows a 12 j. F. Hartz Co. v. Lukaszcew- claim in excess of $500 and a ver- ski, 200 Mich. 230; Miller v. John- diet of no cause of action is found son, 201 Mich. 535. 572 Error, Writ of § 4 repealed in 1919 ^^* so as to leave the statute exactly as it was before the 1917 amendment. § 5. Writ as continuance of original suit. In this state, the writ is regarded as a continuation of the original suit and not as a new suit.^^ At common law and in many of the states, however, the writ is con- sidered as the commencement of a new suit." § 6. Scope of writ and when proper. The writ lies to review "any final judgment or deter- mination, ' ' " provided the judgment or determination is that of a court of record,^® and in a proceeding accord- ing to the course of the common law.^' While it issues as a matter of course," yet jurisdiction cannot be con- ferred by consent or inadvertence,^' and hence if the judgment or determination is one not reviewable by writ of error the writ will be dismissed,^" on the court's own motion if a party does not move to dis- miss. ^^ The writ lies to review an order dismissing any case on motion,''^ or denying plaintiff's motion for judg- ment on the ground that the suit had been discontinued by stipulation,^' or denying defendant's motion to quash 12a Pub. Acts 1919, No. 14. 16 See § 3, ante. 13 Baumgarth v. Firemen 's Fund 17 See § 8, post. Ins. Co., 159 Mich. 207; McLean v. 18 See §4, ante. Isbell, 44 Mich. 129. 19 J. F. Hartz Co. v. Lukaszcewski, 14Lippitt V. Bidwell, 87 Conn. 200 Mich. 230 (under Pub. Acts 608; McCormick v. McClure, 6 1917, No. 172); Bolton v. Cum- Blackf. (Ind.) 466; Turner v. Ed- miiigs, 200 Mich. 234. See also monston, 210 Mo. 411; Pierce v. Courts. Stinde, 11 Mo, App. 364; Fitz- 20 See §32, post. Patrick v. Graham, 119 Fed. 353. 21 See § 32, post. IB Jud. Act, ch. 50, § 1 ; Comp. 22 McCombs v. Johnson, 47 Mich. Laws 1915, § 13736, as amended by 592. Pub. Acts 1919, No. 14 which, how- 23 Carpenter v. Myers, 90 Mich, ever, merely changes the law as to 209. the issuance of the writ as a mat- ter of course. § 6 Error, Writ of 573 an attachment when defendant takes no further part in the proceedings and allows judgment to be entered against him by default,^* or quashing a capias ad respon- dendum,^* or dismissing a writ of replevin and quashing all proceedings with costs on motion,^^ or dismissing a writ of certiorari to a circuit court commissioner for the review of proceedings under the statute to recover pos- session of lands,^''' or transferring a case pending in the circuit court to the federal court ; ^® to review the de- termination of the circuit court in proceedings upon an information filed in the circuit court by a private relator to try the title to an office ; ^® to review the judgment of the circuit court in summary proceedings to recover the possession of lands on appeal from a circuit court com- missioner;'" to review the action of the circuit court in affirming or reversing on statutory certiorari the judg- ment of a justice of the peace, and in all other cases of this nature. It is the only way to review a judgment that a party recover his costs to be taxed.'^ Error also lies on a judgment upon the award of arbitrators under the statute, and upon an order of the circuit court vacat- ing such award.'^ Taxation or retaxation of costs cannot be reviewed on error, since not a judicial action. '^ And proceedings under the statute on appeal to the circuit court from an 24 Pierce V. Johnson, 93 Mich. 125. Judge, 136 Mich. 658; Luther v. 25 Cattcrmole v. Ionia Circuit Kent Circuit Judge, 151 Mich. 71. Judge, 136 Mich. 274. See also But to review the action of the Baxter v. Woodward, 191 Mich. 379. court in taxing costs, mandamus is 26 Jewell V. Lamoreaux, 30 Mich. the proper remedy. Abbott v. 155 ; Cages V. Sanilac Circuit Judge, Mathews, 26 Mich. 176; Stebbins 122 Mich. 490. v. Field, 43 Mich. 336. 27Eobens V. Videto, 33 Mich. 240. 82 Jud. Act, ch. 45, §20; Comp. 28 Crane v. Reeder, 28 Mich. 527. Laws 1915, § 13665. Compare 29 Vrooman v. Mitehie, 69 Mich. Cooper v. Andrews, 44 Mich. 94. 42. 33 Abbott v. Mathews, 26 Mich. 30 Parker v. Copland, 4 Mich. 528. 176. 31 Schmidt v. Wayne Circuit 574 Error, Writ of § 6 assessment of taxes made by the auditor general, are not judicial, so as to be reviewable on error.'* But alleged error in rendering judgment for costs may be reviewed by writ of eiTor.'* A judgment, order or decree, entered by consent, will not support a writ of error.®® Jurisdiction cannot be conferred by consent of the parties,®' nor can it be abridged by agreement of the par- ties whereby they seek to limit the principle of decision and exclude legal considerations.®' §7. "Final" judgments or determinations. A writ of error issues of course to review a final judg- ment or determination of a court of record in a proceed- ing according to the course of the common law.®* A final judgment is contra-distinguished from an interlocutory judgment, which concerns some intermediate matter or issue, and is one which puts an end to the action by de- claring that the plaintiff has or has not entitled himself to recover the remedy for which he sues.*® It is not necessary that a judgment should be a final determina- tion of the rights of the parties to authorize a writ of error. It is enough if it determine the particular suit.*^ The writ is never employed merely to bring up interlocu- 84 Auditor General v. Pullman Holbrook v. Cook, 5 Mich. 225; Palace Car Co., 34 Mich. 59. Steel v. Clinton, 133 Mich. 695; In 35 Luther v. Kent Circuit Judge, re Hicks, 20 Mich. 129 ; Perry v. 151 Mich. 71. Church, 107 Mich. 480; Delaney v. 36 Chapin v. Perrin, 46 Mich. 130 ; Michigan, etc., Lumber Co., 144 Brick V. Brick, 65 Mich. 230; Owen Mich. 351; Bancroft v. Eegents of V. Yale, 75 Mich. 256. University, 192 Mich. 168; Backus 37 See Courts, and see supra, note v. Trumbull Motor Car Co., 194 19. Mich. 199. 38 Watts V. Tittabawasee Boom The fact that the judgment has Co., 47 Mich. 540. been paid or otherwise satisfied does 39 Jud. Act, ch. 50, § 1 ; Comp. not preclude the issuance of a writ Laws 1915, § 13736, as amended by of error to obtain its reversal. Wat- Pub. Acts 1919, No. 14; Brady v. son v. Kane, 31 Mich. 61. Toledo, etc., R. Co., 73 Mich. 457; 40 3 Cooley's Bl. Comm. 398. Painter v. Lebanon, 178 Mich. 47; 41 In re Hicks, 20 Mich. 129. § 7 Error, Writ of 575 tory decisions or discretionary orders made pending the litigation.*^ An order which puts an end to a suit is a final judgment reviewable by error." Among the ad- judications held final so as to be reviewable are the fol- lowing: Decision of the circuit judge dismissing a writ of replevin and quashing all proceedings with costs, on a motion;" order setting aside a capias ad respondendum and directing judgment for defendant;" judgment sub- jecting a respondent in mandamus to liability to pay money or be imprisoned for contempt for failure to obey the writ;*^ judgment directing the removal of a nuis- ance;*''^ order denying the motion of plaintiff's attorney for judgment on the ground that the case was discon- tinued by a stipulation ; " order quashing a writ of gar- nishment and relieving the garnishee from further liabil- ity with costs to defendant ; " order of the circuit court dismissing an appeal taken in relator's name from the probate court on the ground that there was not a suffi- cient showing of authority to take the appeal."® On the other hand, the following have been held not final so as 42 Holbrook v. Cook, 5 Mich. 225 ; Error lies where an action of Polhemus v. Ann Arbor Sav. Bank, trover has been dismissed for want 27 Mich. 44; Clarke v. Bay Circuit of jurisdiction, and the grounds of Judge, 154 Mich. 483; In re Apsey's dismissal are made part of the reo- Estate, 173 Mich. 426. ord. Emerson, Talcott & Co. v. However, .in some cases, where McCormick Harvesting Mach. Co., certiorari and not error was held 51 Mich. 5. the proper remedy to review an 44 Jewell v. Lamoreaux, 30 Mich, order (such as an order overruling 155. a plea of matter in abatement) , the 46 Watson v. Watson, 47 Mich, supreme court has passed on the 427. merits of the controversy on a writ 46 Schwab v. Coots, 44 Mich. 463. of error, the case having been care- 47Crippen v. People, 8 Mich. 117. fully briefed on both sides. La 48 Carpenter v. Myers, 90 Mich. Vasser v. Chesbrough Lumber Co., 209. 190 Mich. 403 ; City of Sault Ste. 49 Eecor v. St. Clair Circuit Judge, Marie v. Minneapolis, St. P. & S. 139 Mich. 156. S. M. E. Co., 184 Mich. 681. 60 City of Flint v. Genesee Circuit 43 City of Flint v. Genesee Circuit Judge, 146 Mich. 439. Judge, 14G Mich. 394, and cases cited. 576 Ekror, Writ of § 7 to be reviewable on error: order on a special appeal from justice court that the cause stand for trial on its merits ; *^ an order overruling or sustaining a demurrer (now super- seded by a motion to dismiss), a substitute for a demur- rer, before final judgment; ^'^ order for security for costs with a stay until filed, and for payment of adjudged costs of a former trial; ^^ affirmance by the circuit court on certiorari of the action of a commissioner dissolving an attachment; " order dismissing a capias, and discharg- ing a defendant from arrest on condition that he file a stipulation not to bring suit for his arrest against either the plaintiff or sheriff;" order overruling a motion to quash a writ ; *^ order declaring an appeal bond forfeited for non-appearance of the criminal for trial ; ^'^ order al- lowing a delayed appeal.^^ The propriety of a ruling on a motion to quash the service of summons or declaration may be raised by writ of error where the moving party desires to stand upon, and not to waive, its alleged rights.^* 61 Dodge V. Nichols, 136 Mich. 28. and dismissing the declaration with 62 Bancroft v. Board of Regents, costs, unless amended and an attor- 192 Mich. 168; Wanner v. Martin, ney's fee paid within a specified 173 Mich. 503; Backus v. Trumbull time, is not reviewable until after Motor Car Co., 194 Mich. 109; the time limited for amendment. Kirchner v. Wood, 48 Mich. 199; Clark v. Village of North Muskegon, Blackwood v. Van Vleet, 10 Mich. 86 Mich. 29. 398 ; Fitzsimmons v. Milwaukee, L. 63 Clark v. Bay Circuit Judge, 154 S. & W. Ry. Co., 98 Mich. 257; Mich. 483. Thompkina v. Bowen, 123 Mich. But order dismissing action for 377; Bennett v. Nichols, 12 Mich. failure to furnish security for costs 22; Perry v. Church, 107 Micb. 480. is a final one. Craig v. Ingram Cir- Especially is this true where a cuit Judge, 171 Mich. 33. demurrer was sustained as to two 64 Gray v. York, 44 Mich. 415. of defendants and overruled as to 66 Adams v. Church, 22 Mich. 79. one of them. Toleikis v. Austin, 66 Brady v. Toledo, A., A. & N. 197 Mich. 333. M. R. Co., 73 Mich. 457. But an order overruling a demur- 67 People v. Stimer, 82 Mich. 17. rer to a plea in abatement was held 68 In re Apsey 's Estate, 173 Mich, final in Campbell v. Hudson, 106 426. Mich. 523. 69 Trumbull Motor Car Co. v. An order sustaining a demurrer, Wayne Circuit Judge, 189 Mich. 554. § 8 Error, AVrit of 577 An order made after a remittitur is filed with the lower court, denying- a motion for a new trial on the merits, is not a final determination so as to be reviewable on writ of error; and the review by writ of error of an order refusing a new trial which is expressly permitted by statute relates to a refusal prior to a writ of error and not after a writ of error. ^° § 8. Proceedings ^,ccording to the course of the com- mon law. The writ, unless it is otherwise provided by statute, lies only to courts of record to review proceedings ac- cording- to the course of the common law.^^ Where the court acts in a summary manner, or in a new course, dif- ferent from the common law, a certiorari, and not a writ of error, is the appropriate remedy.^^ It is not enough tliat the proceedings are had in a court which ordinarily and pi-imarily exercises connnon law jurisdiction.^' When no such issue is involved as could ever be a common law question, the relief must be had by some other process.^* For instance, error does not lie to review a proceed- ing to dissolve an attachment; ^^ nor to review the valid- eOMinkkincn v. Quincy Min. Co., Circuit Judge, 150 Mich. 668; In re ]72 Mich. 404. Erdman's Estate, 179 Mich. 567. eiHolbrook v. Cook, 5 Mich. 225; 63 Cross v. People, 8 Mich. 113; Fletcher v. Clark, .39 Mich. 374; Conrad v. Button, 28 Mich. 365; Chaffee v. Soldan, 5 Mich. 242; Pol- Cameron v. Bentley, 28 Mich. 520; hemus v. Ana Arbor Sav. Bank, Churchill v. Burt, 32 Mich. 490; 27 Mich. 44; Cameron v. Bentley, Smith v. Lapeer Co. Supt. of Poor, 28 Mich. 520; Conrad v. Button, 28 ;!4 Mich. 58. Mich. 365; Hartz v. Wayne Circuit 64 Brinsmade 's Appeal, 52 Mich. Judge, 164 Mich. 231; Conrad v. 537. Freeland, 18 Mich. 255; Comstock 65 Qore v. Ray, 69 Mich. 114. V. Wayne Circuit Judge, 30 Mich. But where .iudgmcnt was entered 98; Miller v. Rosier, 31 Mich. 475; against defendants by default, after Adams v. Church, 22 Mich. 79. they Iiad appeared especially and 62 Holbrook v. Cook, 5 Mich. 225; moved to (luasii an attachment, and United States Gypsum Co. v. Kent no further steps were taken after 1 Abbott— 37 578 Error, Writ of §8 ity or sufficiency of proceedings on a motion to set aside a capias ad respondendum, and it cannot be reviewed on the writ after final judgment ; ^® nor to review the entry of judgment of the circuit court upon the filing of a transcript of a judgment of a justice of the peace; ^"^ nor to review proceedings to compel a son to support his mother.^' So probate proceedings not according to the course of the common law,^® and habeas corpus proceed- ings/" or bastardy proceedings,"^^ cannot be reviewed. But the fact that proceedings in the commencement in a lower court were not in common-law form, does not pre- clude a writ of error if the trial on appeal to the circuit court assumed substantially that nature^^ In one case, where a statute provided a remedy by a special proceeding, it added "subject to the right of ap- peal to the supreme court according to law." It was claimed that the only remedy to correct errors of law was by certiorari and that the statute was declaratory merely of the right of a party to sue out a writ of certio- rari, but was held that the statute contemplated the most effective method of review to be employed which in the particular case was held to be a writ of error.''^* the motion was overruled, the writ American Baptist Missionary Union lies. Pierce v. Johnson, 93 Mich. v. Peck, 9 Mich. 445. 125; Ripon Knitting Works V. Same, Where a proceeding to recover 93 Mich. 129. the possession of land under the 66 Miller v. Rosier, 31 Mich. 475. statute "of forcible entries and de- 67 Townsend v. Tudor, 41 Mich. tainers" is appealed to the circuit 263. court, it becomes in that court a 68 Smith v. Superintendents of proceeding according to the course Poor of Lapeer County, 34 Mich. of the common law, and error is 58. therefore the only mode of review- 69 See § 9, post. ing the judgment of the circuit 70 People V. Calhoun Circuit court. Parker v. Copeland, 4 Mich. Judge, 30 Mich. 266. 528. 71 People v. Brannen, 173 Mich. 73 Township of Custer v. Dawson, 411. 178 Mich. 367, Justice Brooke dis- 72 In re Stroebel, 194 Mich. 634; senting. §9 Error, Writ of 579 §9. Determination of probate appeals. The judgment of a circuit court upon an appeal from the decision of a probate court, where the controversy involves issues analogous to common law issues, may be reviewed by writ of error.''^* Error lies to review the de- termination of a circuit court on an appeal from an order of a probate court upon an administrator's account; '^ to review the adjudication of the circuit court upon an ap- peal from probate court allowing or disallowing a will; "'^ to review the judgment of the circuit court on an appeal from a probate court in a proceeding whereby a creditor seeks to compel an administrator to pay his claim and the case involves substantially the issue plene adminis- travit;" and to review an order refusing to appoint an administrator de bonis non, where it involved a deter- mination of the question of fact whether there were assets still to be administered.'' On the other hand, the writ does not lie to review the appointment of an ad- ministrator ''^ or guardian ^^ or trustee ; '^ or to remove an administrator; ^^ or to review the refusal of the cir- cuit court to affirm a probate order to an executor to ad- vance moneys to beneficiaries on coming of age; '^ or to review the granting of an order of sale of personal prop- erty of an estate by a probate judge ; '* or to review the affirmance by the circuit court of the probate court's re- 74 In re Stroebel, 194 Mich. 634; peal of Mower, 48 Mich. 441; Ap- Labar v. Nicholes, 22 Mich. 200; peal of Brinsmade, 52 Mich. 537. Appeal of Mower, 48 Mich. 441. 80 Cameron v. Bentley, 28 Mich. Appeal, instead of writ of error, 520 ; Appeal of Mower, 48 Mich, does not lie. Appeal of Mower, 48 441. But see Coot v. Ionia Probate Mich. 441. Judge, 93 Mich. 304. 76 Hall V. Grovicr, 25 Mich. 428. 81 In re Erdman's Estate, 179 76 American Baptist Missionary Mich. 567. Union v. Peck, 9 Mich. 445. 82 Holbrook v. Cook, 5 Mich. 225; 77 Brown v. Forsche, 42 Mich. 492. Conrad v. Button, 28 Mich. 365. 78 Owen V. Ward's Estate, 125 83 Knorr v. Millard, 52 Mich. 542. Mich. 30. 84 In re Koenig's Estate, 152 79 Woolley V. Crane, 86 Mich. 360 ; Mich. 432. Holbrook v. Cook, 5 Mich. 225; Ap- 580 Errok, Writ of §9 fusal to relieve an executor from giving bond on sale of realty;'* or to review an order of the circuit court re- versing an order of the probate court for irregularity, and remanding the case to the probate court for action upon an administrator's account;'® or to review an order of the circuit court affirming one of the probate court requiring an executor to furnish a further bond and to render an account.'' So an affirmance by the cir- cuit court of an order of the probate court, extending a commission on claims, and directing the commissioners to hear and adjudicate upon a specified claim, is not a common law final order or judgment, and cannot be re- viewed." An order reinstating an appeal from an order allow- ing the final account of an administrator is reviewable on writ of error after final judgment.'® § 10. Determination of appeals from justices of the peace. "While a writ of error does not lie from the supreme court to a justice of the peace, the final judgments or de- terminations of the circuit court on appeal from a justice of the peace, in proceedings according to the common law, are reviewable by writ of error.®° Thus, error lies to review a joint judgment against a principal and his surety upon a bond on appeal from a justice's court to the circuit court; '^ and to review an order of the circuit court dismissing on motion an appeal from justices' court '^ as for want of prosecution.*^ 85 Fletilicr v. Clark, :!9 Midi. 374. 91 Evers v. Sager, 28 Mich. 47. 86 Holbrook v. Cook, 5 Mich. 225. 92 Stall v. Diamond, 37 Mich. 429; 87 In re Sanborn, 107 Mich. 189. McCombs v. Johnson, 47 Mich. 592. 88 Churchill v. Burt, 32 Mich. 490. The denial of a motion to dismiss 89 Gifford v. Washtenaw Circuit an appeal from a justice's court is Judge, 189 Mich. 546. not reviewable on a writ of error 90 Writ was discretionary where to review a judgment of the circuit .judgment did not exceed .$500, lourt on the merits. Altman v. under 1917 statute now repealed. Young, 38 Mich. 410. See §4, ante. 93 Willis v. Cinibert. 27 Mich. 91. § 12 Eruok, Writ of 581 § 11. Review of questions of fact. With certain exceptions, a writ of error does not lie to review the facts but the review is limited to questions of law.®* § 11a. Agreement that decision of lower court shall be final. An agreement to accept the decision of a lower court as final has been held to be valid so as to preclude an appeal.®^ § 12. By and against whom error may or should be brought. A writ of error may be brought by any party to a final judgment or determination aggrieved thereby.*^ The parties to the judgment should be made parties to the writ of error. The writ brings up the whole case. There- fore, a plaintiff who has recovered judgment against some of several defendants, but against whom judgment is rendered in favor of others of the defendants, must bring his writ of error against all of the defendants, as well as those against whom he has recovered judgment as those for whom judgment has been rendered against him.®'' So, also, a writ of error to bring up a judgment against several parties must be taken out in the name of all. Any one of them may sue out the writ and, if the others do not wish to prosecute it, a severance may be had in the manner which will be presently explained.®' When the prevailing ])arty in the court below has died since the judgment without sui'i'ivors, a writ of error 84 See § 45, post. One who lias uot taken or joined W Hoste V. Dalton, ];57 Midi. ;")22, in an appeal to the circuit court can- ;')26; Cole v. Thayer, 25 Mich. 212. not ))ring error on the decision of 96 Jackson v. Hosmer, 14 Mich. the circuit court. Jackson v. Hos- 88; Taff v. Hosmer, 14 Mich. 249; nier, 14 Mich. 88. Jaquetli v. Jackson, 17 Wend. (N. 97 Mills v. Bunco, 26 Mich. 101. Y.) 434. 98 Spencer v. Fish, 43 Mich. 226. 582 Error, Writ of § 12 may issue without any steps to revive the judgment, in which case, by the common law practice, a scire facias ad audiendum errores was necessary after the writ was re- turnable, and, under that writ, the representatives of a deceased party could be brought in ; but now a more con- venient practice has been authorized in tliis state, whereby, at any time after the return of the writ of error, either the appellant or the representatives of the deceased party may file an affidavit of such death and of the appointment of such representatives, and thereupon suggest the same of record, after which the case may proceed, in general, in the same manner as if the death of the party had not intervened.^® After the death of a party to a judgment aggrieved thereby, if the judgment was to recover any debt or damages only or any per- sonal property, the executors or administrators of such party may bring a writ of error, or, if the judgment was for the recovery of real estate or the possession thereof, or if the title to real estate was determined thereby, the heirs or devisees of the deceased party, to whom such real estate was devised or descended, or might have de- scended, may bring the writ.^ So, also, if one or more of several persons against whom a judgment has been rendered die, a writ of error may be brought by the survivor or survivors.^ If one or more of several persons for whom a judg- ment in a personal action has been rendered die, it has been held that the writ of error must be brought against the survivor or survivors only, and not against the repre- sentatives of the deceased party or parties, unless the judgment has been revived in their favor, in which case the representatives should be joined with the survivor MSup. Ct. Eule 53; Van Valkon- 1 Com. Dig. "Pleader," B, 3, 9. bury V. Rogers, 17 Mich. 322 ; Cour- 2 Brewer v. Turner, 1 Strange ser V. Jackson, 159 Mich. 119; Sey- 234. mour V. Bruske, 140 Mich. 244. § 14 Ereor, Writ of 583 or survivors. If a judgment has been rendered in favor of several parties, and one or more of them die and the action so involve real estate as to constitute the heirs of the deceased party or parties the persons in interest, in- stead of the representatives of the deceased, it has been held that the writ of error must be brought as well against the heirs of the deceased party or parties as against the survivor or survivors.^ The question of a misjoinder or nonjoinder of parties should be raised by a motion to dismiss the writ.* § 13. Notice of issuance of writ where party dies after jud^^ent. It is provided by rule that when, after the death of a party to a judgment without survivors, and before the personal representatives have revived the same, the ad- verse party sues out a writ of error, no notice need be given of the issuance of the writ until the writ is re- turned, but the appellant or the representatives of the adverse party to the judgment may, at any time after the return, file an affidavit of such death and of the appoint- ment of such representatives and thereupon suggest the same of record.* § 14. Proceedings in case part of several parties desire to bring error. In cases where a writ of error is brought by one or more of several parties, such party is required, at least fifteen days before filing his praecipe for writ of error, to serve upon the other parties against whom judgment has been entered a notice of his intention to apply for a writ of error; and the parties upon whom such notice is served must, within ten days thereafter, serve notice on 3 Bartholomew v. Belfield, 2 Bulst. 4 Mills v. Bunee, 26 Mich. 101. 244; Doe v. .Tones. 2 Maule & S. 6 Sup. Ct. Rule 53. 473. 584 Error, Writ of § 14 such party of their intention to join in the writ of error, or, in default thereof, on filing a praecipe for the writ of error and proof of service of such notice, a rule may be filed granting such party or parties leave to prosecute such writ of error severally.* Form of Notice to Join in Writ of Error The Circuit Court for the County of A. B. 1 C. D. and E. F.J To the Above-Named Defendant E. F. : You will please to take notice that the said defendant C. D. intends to apply for a writ of error, to be issued out of the Supreme Court of the State of Michigan in said cause, and that, if you desire to join in said writ, you are required, within ten days after service of this notice upon you, to serve notice of your intention to join in said writ of error, or, in default thereof, a rule will be filed, granting the said C. D. leave to prose- cute said WTit of error severally. Dated, etc. Yours, etc., K. L., Attorney for Defendant C. D. Business address: , Mich. § 15. Time when writ must be taken out. All writs of error upon any judgment or final deter- mination rendered in any cause in any court of law and of record in this state must issue within one year after the rendering of such judgment or final determination made, and not after, except in certain cases of disability or death which will be presently referred to; and, in all cases where a bill of exceptions has been settled and signed by the circuit judge, the writ of error must be taken out within ten days after the bill of exceptions has been signed. But the time for taking out a writ of error may be extended, not exceeding six months, by the su- 6 Sup. Ct. Rule 10. § 15 Ereor, Writ of 585 preme court or by one of the supreme court justices at chambers, when a party has been prevented from taking out the writ by circumstances not under his control^ Such extension will be made only on special motion and after a proper showing.® If the person against whom any such judgment has been rendered or final detennination made is at the time either (1) within the age of twenty-one years, or (2) insane, or (3) imprisoned on any criminal charge, or in execution upon conviction of a criminal offense for any tenn less than for life, the time during which such dis- ability continues will not be deemed any portion of the time limited for bringing a writ of error, but such per- son may bring such writ after the time so limited and within two j^ears after his disability has been removed.® If the person entitled to bring the writ dies during the continuance of his disability, his heirs, devisees, execu- tors or administrators entitled to bring the writ may do so at any time within two years after his death ; ^° but 7Jud. Act, ch. 50, §6; Comp. not be acquired by waiver or con- Laws 1915, §13741; Kaiser v. sent and a writ sued out after the Wayne Circuit Judge, 162 Mich. expiration of the statutory time, 247; Bliss v. Caille Bros. Co., 157 where no extension of time has been Mich. 258. granted, will be dismissed by the Where a motion to dismiss is made court of its own motion. Bolton v. because the writ was not issued Cummings, 200 Mich. 234. within ten days after the bill of ex- 8 Jud. Act, ch, 50, § 6 ; Comp. ceptions was signed, it will be de- Laws 1915, § 13741. nied where a showing is made which The time for issuing a writ of er- would iiave authorized an extension ror may be extended on motion, of time if application had been where the petitioner is himself with- made before the writ of error was out fault, as where failure to sue out sued out. Rasor v. Mott, 194 Mich. the writ within the statutory time is 311. due solely to the neglect of his coun- It is generally held, however, that sel. Belmer v. Boyne City Tanning the supreme court has no jurisdic- Co., 158 Mich. 399. tion of a writ of error sued out 9 Jud. Act, eh. 50, §7; Comp. after the expiration of the statutory Laws 1915, § 13742. period. Riley v. Detroit United Ry., 10 Jud. Act, ch. 50, §8; Comp. iG:\ Mich. 327. Jurisdiction can- Laws 1915, § 13743. 586 Error, Writ of § 15 the existence of any disability specified will not author- ize the bringing of a writ of error after the expiration of five years from the time of rendering the judgment.^^ The time limited by statute within which a writ of error must be issued commences from the rendition of the judgment, ^^ and a party cannot prolong it by mov- ing to vacate the judgment although there be consider- able delay before the motion is decided.^' So the time is not enlarged by the statute permitting the denial of a motion for a new trial to be reviewed on writ of error." When a judgment is entered in vacation, the time with- in which a writ of error must be taken out is to be com- puted from the day the judgment is actually entered by the clerk.^' If a writ of error be issued after the time allowed therefor, it will be dismissed on motion. ^^ § 16. How writ obtained. The party desiring a writ of error to be issued should pay to the clerk of the supreme court the sum of six dol- lars, and request him to issue the writ in accordance with a praecipe, which should specify the court to which the writ is to be issued, the names of the parties, designat- ing who is plaintiff and who defendant and who is the proposed appellant and who the proposed appellee, and the date upon which it is desired that the writ shall be made returnable. Upon such step being taken, the clerk will forthwith issue the writ in accordance with the prae- cipe and deliver it to the party applying for it. In connection with the Judicature Act amendment in 1917 where the judgment is for not more than $500 the writ is not one of right,^' it was provided by a rule of llJud. Act, ch. 50, §9; Comp. IB Jud. Act, ch. 50, §10; Comp. Laws 1915, § 13744. Laws 1915, §13745; McClung v. 12 Teller v. Willis, 12 Mich. 384; McClimg, 39 Mich. 55. Borden v. Peoria M. & F. Ins. Co., 16 Borden v. Peoria M. & F. Ins. 14 Mich. 232. Co., 14 Mich. 232. 18 Buckley v. Sutton, 38 Mich. 1. 17 See § 4, ante. 14 Hill V. Hill, 114 Mich. 599. § 17 Error, Writ of 587 court adopted in 1917 that any one desiring to secure a writ of error ' ' shall, within thirty days from the entry of judgment, prepare a concise statement of what is in- volved in the case and the points relied upon and notice the same on the opposite party for settlement before the circuit judge. The statement when so settled shall be the basis of the application to this court." " This 1917 amendment of the Judicature Act was repealed in 1919."* Form of Praecipe for Writ State of Michigan. In the Supreme Court. A. B., Plaintiff and Appellee, vs. C. D., Defendant and Appellant. To the Clerk of the Supreme Court: Sir:— Please issue a writ of error in the above-entitled cause in favor of the defendant (or, plaintiff), directed to the judge of the circuit court for the county of , and returnable Action of Enclosed find clerk's fee of six dollars. Dated, etc. Yours, etc., K. L., Attorney for Defendant (or Plaintiff) and Appellant. § 17. Form of writ. Writs of error may issue of course out of the supreme court in vacation as well as in term, and are made re- turnable to that court." They are styled **In the Name of the People of the State of Michigan," have the seal of the court affixed or impressed thereon, which is made conclusive evidence that the writ was issued by the court,^° are tested of the day when issued, and must be 18 Sup. Ct. Eule 59, adopted Sept. No. 14, amending Pub. Acts 1917, 28, 1917. No. 172. 18a See §4, ante. 20 How. Stat. (2nd ed.) 11694; 19Jud. Act, ch. 50, §1; Comp. Jud, Acts, ch. 1, §15; Comp. Laws Laws 1915, § 13736; Pub. Acts 1919, 1915, § 12020. 588 Error, Writ of § 17 made returnable at the office of the clerk of the supreme court on a day certain, either in vacation or in term, not less than ten days nor more than forty days from the issuance thereof.^^ In computing the time within which a writ of error is to be made returnable, the date of issue should be excluded and the return day included. ^^ Form of Writ of Error Ib the Name of the People of the State of Michigan. To the Judge of our Circuit Court, for the County of , Greeting: Because, in the record and proceedings, and also in the giving of judg- ment in a plaint which was in our said circuit court before you, between A. B., plaintiff, and C. D., defendant, in a plea of (specify what), manifest error hath intervened to the great damage of the said C. D., as by his com- plaint we are informed; we, being willing that the error, if any there be, should in due manner be corrected and full and speedy justice done to the parties aforesaid, and in this behalf, do command you that, if judgment be thereupon given, then you send to our Supreme Court, distinctly and openly under your seal, the record and proceedings of the plaint aforesaid, together with all things concerning the same, and this writ, so that our said court may have them at the Supreme Court Room, in the Capitol, in the City of Lansing, on the day of next, that, the record and proceedings aforesaid being inspected, we may cause to be further done thereupon, for correcting that error, what of right and according to the law and custom of the State of Michigan ought to be done. Witness, Hon. C. G., Chief Justice of our Supreme Court, at Lansing, this day of in the year of our Lord C. H., Clerk of the Supreme Court. § 18. Notice of issuance. The appellant must cause notice of the issuance and the date and return day of the writ to be served on the adverse party or his attorney in the court below within ten days after the issuance thereof; and an affidavit of such service is required to be filed in the clerk's office on or before the return day.'^^ 81 Hup. Ct. Rule 4. 23 Sup. Ct. Rule 5. 22 Doyle v. Mizner, 41 Micb. 549. § 19 Error, Writ of 589 Form of Notice of Issuing Writ of Error State of Michigan. The Supreme Court. A. B., Plaintiff and Appellant, v.s. CD., Defendant and Appellee. Sir:— Yon will please to take notice that, upon the day of , A. D. , the above-named plaintiff and appellant sued out a writ of error in the above-entitled cause, from the office of the Clerk of the Supreme Court of the State of Michigan, in the City of Lansing, directed to the Circuit Court for the County of , which said writ of error is dated the day of , A. D , and is made returnable on the day of , A. D Dated, etc. Yours, etc., J. K., Attorney for Plaintiff and Appellant. Business address : , Mich. To K. L., Attorney for Defendant and Appellee. § 19. Return of writ. The writ of error is sent by the clerk of the supreme court to appeUant's attorney who sends it to the clerk of the trial court. It is obeyed by sending a transcript of the record oi- proceedings in the court below, to the supreme court. The clerk upon whom the writ of error is served, must cause a transcript of the record to be made, and must certify and annex the same to the writ, and endorse thereon and sign a proper retuni, under the seal of the court in which the judgment was ren- dered; and the appellant must cause the same to be filed in the clerk's office whence such writ issued, on or be- fore the return day mentioned therein.^* Failure to 24 Snp. Ct. Rule G. should be returned with the record. The original bill of exceptions, if Evims v. Norris, fi Mich. fiO. any lias been filed, and not a cnj)y, 590 Errok, Writ of § 19 make a return to the writ within the proper time war- rants a refusal of leave to file the return.** Form of Return To the Supreme Court of the State of Michigan: The execution of the within writ appears by the transcript of record annexed hereto. A. B., Clerk of the Circuit Court for the County of (Date.) § 20. Extending time for return. The time for returning a writ of error may be ex- tended by one of the justices of the supreme court or a circuit judge for good cause shown. The order grant- ing such an extension must be returned with the other papers to the clbrk of the supreme court. The time fixed by the order will be treated in all respects as if it had been the original return day. Such extension can be had only upon proper notice to the adverse party.*^ But failure to serve any assignment of error, where no sat- isfactory excuse is given, warrants a refusal to extend the time to make return to the writ of error, and author- izes a dismissal of the writ." § 21. Bond for stay of proceedings. The statute *^ provides that no writ of error shall operate to stay or supersede the execution in any civil 26 Webster v. Fisk, 9 Mich. 250. any municipal corporation, is a 26 Sup. Ct. Rule 7. party, no bond shall be required to 27 Hanselman v. Adrian, 139 Mich. be given by any such party as a 546. prerequisite to the issuance of a 28 Jud. Act, ch. 50, § 2 ; Comp. writ of error or the taking of an Laws 1915, §13737. See also Doug- appeal, or the making of an order lass V. Manistee Circuit Judge, 42 staying proceedings. ' ' Jud. Act, ch. Mich. 495. 50, § 27; Comp. Laws 1915, § 13762. But "in any suit or proceeding in Stay of proceedings to move for which the State, or any State of- new trial or to settle bill of excep- ficer duly authorized for that pur- tions, see Stat op Proceedings. pose, or any corporate body in In an action on such a bond, it is charge of any State institution, or no defense that its conditions cov- § 21 Error, Writ of 591 action, unless the appellant, with two sufficient sureties, shall give bond to the appellee, with condition that the appellant shall prosecute his writ to effect, and shall pay and satisfy such judgment as shall be rendered against him thereon. But where the judgment sought to be reviewed has been rendered in an action to re- cover possession of lands under the statute,^® if the writ of en'or be sued out by the defendant, the bond is re- quired to be in a penalty not less than twice the amount of the annual rental value of the premises in dispute, and, in addition to the foregoing conditions, must con- tain a further condition, that, if the plaintiff obtain restitution of the premises in the suit, the defendant will forthwith pay all rent due or to become due, or the rental value thereof during the time the same has been detained by the defendant, to the plaintiff for the premises described in the complaint, up to the time the plaintiff obtains possession thereof, together with the costs of suit in prosecuting the complaint and obtain- ing restitution of the premises. If the plaintiff obtains restitution of the premises, he may, at his election, sue and recover on this bond or bring his action under the statute '" to recover double damages. If, however, a bond has been given as provided by the statute for a stay of proceedings for the purpose of moving for a new trial or settling a bill of exceptions,^^ no further ered both the statute for a bond to the principal to pay the judgment stay proceedings on moving for a affirmed on rehearing, after the re- new trial, and also the statute pro- versal thereof on the original hear- viding for a bond on issuing a writ ing. Culver v. Fidelity & Deposit of error, and that the conditions Co. of Maryland, 149 Mich. 630. were in the alternative. Tenhopen 29 Jud. Act, ch. 30 ; Comp. Laws V. Taylor, 103 Mich. 178. 1915, § 13229 et seq. Where a bond is given to stay ex- 80 Jud. Act, ch. 30, § 23 ; Comp. ecution conditioned on payment of Laws 1915, § 13251. the judgment, if not reversed, and 31 Jud. Act, ch. 22, §23; Comp. satisfying such judgment as shall be Laws 1915, § 12812. See also Stay rendered on a writ of error, the of Proceedings. sureties are bound on the default of 592 Error, Writ of | 21 bond ia required to stay execution on the judgment pending the proceedings on the writ of error. ^^ Form of Bond Know All Men by These Presents : That we, C. D., of , as princi- pal, and K. L., of , and M. N., of , as sureties, are held and firmly bound unto A. B. in the sum of dollars, (such sum as shall have been determined, at least double the amount of the judgment upon which the writ of error is brought if the judgment is against the appellant) lawful money, to be paid to the said A. B., his executors, administrators or assigns ; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Dated the day of , 191. .. Whereas, judgment ha.s been rendered in the circuit court for the county of , in favor of the said A. B. against the said C. D. for dol- lars, damages and costs, (or as the judgment may be,) in which judgment and proceedings the said C. D. complains that there is error in substance, and to be relieved therefrom, hath obtained a writ of error to remove the same to the supreme court, to the end that the errors made therein may be corrected. Now, therefore, the condition of this obligation is such, that if the said C. D. .«hall prosecute his said writ of error to effect, and shall pay and satisfy such judgment as shall be rendered against him upon the said writ of error in the said supremo court, then this obligation to be void; otherwise to remain in full force and virtue. (Signatures.) §22. How sufficiency of sureties and penalty of bond determined. The sutticiency of the sureties and the sum for which tlie bond must be given must l)e determined in each case by a justice of the supreme court or by the judge of the circuit court for the county in which the judgment in the case was rendered, or by a circuit court commis- sioner for that county, but the penalty of the bond must not be less than double the amount of the judgment upon wliich the writ of error is brought, if such judgment be against the appellant, nor in any case less than one hundred dollars.^^ 32.Tu(l. Act, ch. oO, §2; Comp. Circuit court has no discretion to Laws 1915 § 137.37. accept a bond with a smaller pen- 33.Tud. Act, ch. 50, §3; Com).. .alty. Hogle v. Wayne Circuit Laws 1015, §1.17.38. .'I'dge, 160 Mich. 575. § 24 Error, Writ of 593 §23. Additional bond. The supreme court or the circuit judge of the county where the cause was tried has power, on special motion, to order an additional bond, fix the penalty thereof and approve the sureties thereto or to refer such approval to a circuit court commissioner of the county in which the cause was pending.'* § 24. Proceeding-s upon filing bond. Tlie bond to stay or supersede the executiou pending proceedings ou a writ of error should be filed in the of- fice of the clerk of the court in which the judgment was rendered, at the time of serving the writ of error on the clerk, and notice thereof must be given to the ap- pellee or his attorney. When this has been done, no ex- ecution can be thereafter issued upon the judgment complained of during the pendency of the writ of error, and, if an execution has been issued, all further pro- ceedings upon it will be stayed upon the officer hold- ing the execution being served with a certificate of the service of the writ of error and the filing of the bond, signed by the clerk with whom the bond has been filed.'^ The bond should not be filed with the clerk until the writ of error is served upon him, for until then there is nothing for tlie bond to operate upon. While possibly the clerk might, on receiving the writ of error, file a bond previously left with him for that purpose, he could not do so otherAvise.'^ Form of Notice of Filing Bond (Title of lower court and cause.) Please take notice that on the day of , 191 . . , a writ of error duly issued out of the supreme court to review the judgment in the above 34Jud. Act, ch. 50, S:<; Gomp. 36 How.-ird v. Hess, 6.'? Mich. 725. t.aws 1915, 8 137.18. 35 Jud. Act, ch. ."0. S A ; Coinji. Laws ]9].l, 8 137."9. 1 .\l>hott— .".8 594 Error, Writ of § 24 entitled cause was served upon the clerk of said circuit court, and at said time there was filed in his office a bond in the penal sum of dollars, running to said , signed by said as principal, and by and as sureties, and conditioned (state conditions of bond), which bond has been duly approved by (add title of judge or commis- sioner), and that thereby the proceedings on said judgment are stayed dur- ing the pendency of said writ of error. Yours, etc., (Date.) A. B., attorney for To , defendant in error (or "attorney for defendant in error.") Form of Certificate to Be Served on Sheriff Having Execution (Title of lower court and cause.) (Venue.) I hereby certify that on the day of , 191 .. , I was duly served with a writ of error from the supreme court in the above entitled cause, and that at the same time there was filed in my office a bond duly approved for a stay of proceedings upon the judgment entered in said cause. A. B., Clerk of the circuit court for the county of (Date.) To , Sheriff of said County: Take notice that by virtue of the writ of error and bond mentioned in the foregoing certificate, all further proceedings upon the execution hereto- fore issued in said cause and now held by you are stayed. Yours, etc., (Date.) G. H., attorney for § 25. Staying proceedings after return of writ. After the return of a writ of error, the circuit court has no authority, where no stay bond has been filed, to allow such a bond to be filed nunc pro tunc. The power to grant such relief after the return of the writ to the supreme court is in that court.^' §26. Entitling cause. In entitling causes brought into the supreme court by writ of error, the party bringing the writ of error, whether plaintiff or defendant in the court below, was 87 People V. Manistee Circuit Judge, 33 Mich. Ill; Coding v. Barnard, 159 Mich. 634. § 27 Error, Writ of 595 styled the plaintiff in error in entitling the cause in that court, and the other party the defendant in error, the name of the plaintiff in error being placed first. But, by a rule of court first adopted in January, 1882, it is provided that hereafter in all cases brought into the supreme court for the purpose of reviewing or re- vising the judgment, order, decree or action of any other court, tribunal or officer, the relative position of the parties, and their designation as plaintiffs, peti- tioners, defendants or respondents, shall be the same in this court as in the court or before the tribunal or offi- cer whose action is in question; but they may further be designated as appellants or appellees.'* Error in en- titling the case in the supreme court, in including a party as to whom the suit was discontinued, is imma- terial.^' §27. Record. The record sent up includes the process, pleadings, etc., in the cause,*" and also the bill of exceptions, if any. The record must show that a question appellant 88 Sup. Ct. Eule 3. verdict are not a part of the rec- 39 Campau v. Brown, 48 Mich. 145. ord. Harvey v. McAdams, 32 Mich. *0 An omission in the record of 472. the regular entry as to the impan- Where the circuit court dismisses eling of the jury and proceedings an appeal and thereafter error ig to trial, where there is enough to brought, the papers and entries re- show very clearly that a jury was lating to the order of dismissal con- impaneled, and the trial proceeded stitute the record without a bill of with, and that the omission was a exceptions. City of Flint v. Gen- clerical mistake, is not fatal. Ken- esee Circuit Judge, 146 Mich. 439. yon v. Woodward, 16 Mich. 326. The return of the justice to the Affidavit in opposition to a motion writ of certiorari, after affirmance to remand the record for correction, in the circuit court, must be in- showing a document not put in evi- eluded. Zeller v. Harris, 23 Mich, dence at the trial, will not be treated 286. as a part of the record. People v. Preparation, printing and service Banhagel, 151 Mich. 40. of record, see Supreme Court, Papers filed on a motion for a §§ 1416. perpetual stay of proceedings after 596 Error, Whit ok § 27 desires to have passed on actually arose and was de- cided in the lower court,*^ and that objections were made and an exception taken.**^ Where the record discloses no judgment, the writ of error will be dismissed." § 28. Amendment. The supreme court has no authority to amend the rec- ords sent up from inferior tribunals,** nor can the record be amended by stipulation of counsel." But it may, in a proper case, compel their correction by the court be- low, by mandamus.*^ The court cannot strike out a bill of exceptions on proof that it was settled without notice to appellee,*' Where an amendment was made in the court below after the cause was removed to the supreme court by writ of error, but no further return was made to the writ, the court refused to entertain a motion, based on an affidavit of such amendment, hold- ing that it could only be informed of amendments made after the record was sent up, by a further return to the writ." And where, six months after errors had been assigned, the a])pellee olitained, without leave of the supreme court, an amendment to the record in the court below with a view to obviate the errors assigned, and then moved for an order for a further return to bring 41 Nelson v. (Jhcboygan Nav. Co., 44 Swcetzcr v. Mead, 5 Mich. 33 ; 44 Mich. 7. Compare Stewart v. Evans v. Norris, 6 Mich. 69; People Grand Rapids & I. Ry. Co., 147 v. Grand Rapids & W. Plank-Road Mich. 48. Co., 64 Mich. 618. See also Federal 48 Lamb v. Lippincott, 115 Mich. Audit Co. v. Sawyer, 196 Mich. 566. 611. The supreme court has no power, 43 Delaney v. Michigan Elm after hearing, upon its own motion, Hooper & Lumber Co., 144 Mich. to correct errors contained in the 351. record. People v. Grand Rapids & Otherwise where return shows a W. Plank-Road Co., 64 Mich. 618. judgment entry and the bill of ex- 46 Rabior v. Kelly, 194 Mich. 107. ceptions as printed refers to a judg- 46 See Mandamus. ment. Lingle v. Dalzell, 141 Mich. 47 Scribner v. Gay, 5 Mich. 511. .^99. 48 O 'Flynn v. Eagle, 7 Mieh. 306. § 28 Error, AVrit op 597 up the amendment, the application was too late;*^ and such motion would not be granted, if there were no ob- jection on the ground of laches.^" When such an amend- ment is desired, the proper practice is to apply to the supreme court upon an affidavit showing the reasons for the amendment, to remit the record to the court be- low for that purpose. The court can then judge whether the case is a proper one to pennit an amendment with a view to affect proceedings already taken in the su- preme court. ^^ There are some amendments which will be supplied in any court, in order to make the record read consist- ently, and where it is unnecessary to make any amend- ments in form at all. Such amendments are supplied from what appears on the face of the record itself.^'* In all other cases where the amendment is asked for upon matters aliunde, the amendment can be made only in the court below, upon a remittitur of the record for that purpose;" and no obstacle will be allowed to be thrown in the way of permitting such amendments, within a reasonable time, whenever it is made to ap- pear that they are proper, and likely to be made." But after the cause is on hearing, and six months after the defect is known to the party who claims to be prejudiced by it, a motion for that purpose is too late.^^ On mo- tion the writ may be dismissed and the record will be remanded by the supreme court to permit appellant to apply for an order extending the time for settling a bill of exceptions, where the lower court has power so to 49 0'Flynn v. Holmps, 7 Mich. regarded as made. Rioe v. Rank- 454. ans, 101 Mich. 378; McKernau v. 60 0'Flynn v. Eagle, 8 Mich. 136. Detroit Citizens' St. Ry. Co., 138 61 Id. See also Bonine v. Gage, Mich. 519. 163 Mich. 288. BSO'Flynn v. Eagle, 8 Mich. 136. 53 Emery v. Whitwell, 6 Mich. 64 Farrand v. Bentley, 6 Mich. 281. 474. In some instances, on error, 65 Vcrplank v. ITall, 21 Mich. 469. amendments of pleadings may be 598 Error, Writ of § 28 do, in order that a new writ of error may be issued.^^ By statute, omissions, imperfections, variances and defects in matter of form contained in the record, plead- ings, process, entries, returns or other proceedings in the cause, and any variance in the record from any process, pleading or proceeding in the cause, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties, or the trial, may be sup- plied and amended by the court where the judgment was given, or by the court into which it is removed by writ of error.^'^ However, this statute authorizes an amendment in the supreme court to save a judgment but not to reverse a judgment.*^ Under the provisions of the statute of amendments, it is the duty of the su- preme court, as well as of the trial court, to make such amendments as justice requires, having due regard for the rights of the parties; and the supreme court has treated a declaration as amended so as to sustain the recovery under another statute, where the declaration sets out sufficient facts to show a right to recover under such statute.^® § 29. Assignments of error. The necessity for, and sufficiency of, assignments of error in a bill of exceptions has been considered in an- other article ; ^" and in that article the decisions have been collected without regard to whether the assign- ments of error were in connection with a bill of excep- tions or otherwise. Suffice it to state that the necessity for the assignment is precisely the same where there is no bill of exceptions, and that the rules as to the suffi- 66 Kaiser v. Detroit United Ry., 69 Fernette v. Pere Marquette R. 163 Mich. 109. Co., 175 Mich. 653, 675. 67 See Amendments, etc. 60 See Assignment op Errors. 68 Johnson v. Muskegon County, 195 Mich. 722. § 31 Error, Writ of 599 ciency of the assignments are the same. To this rule, however, there is one exception in that errors assigned in the affidavit for certiorari in the circuit court are sufficiently assigned for review by the supreme court, on a writ of error, to review the judgment rendered in the circuit court involving error so assigned.^^ §30. Notice of hearing-. After the writ of error has been returned to the su- preme court, either party may notice the cause for hear- ing. Such notice must be given at least thirty days be- fore the first day of the term at which the argument is desired.^^ §31. Procuring' cause to be placed on calendar. Writs of error are calendar causes, and, to be heard at any term, must be placed on the calendar for that term.^^ The priority of causes on the calendar as first made up depends upon the date of filing notice of hear- ing with the clerk. The party noticing a cause for hear- ing must, at least twenty days before the first day of the term for which it is noticed for hearing, give no- tice to the clerk to place the cause on the calendar for the term. No cause can be entered on the calendar by the clerk until the return of the writ of error, nor with- out the notice to the clerk to put the cause on the cal- endar.^* Upon filing stipulation with the clerk not later than the Saturday before the first day of the term, cases may be placed lower down on the calendar and grouped to suit the convenience of counsel. After such re-arrange- 61 Chicago & G. T. R. Co. v. Camp- prima facie sufficient to present the bell, 47 Mich. 265. proceedings below. Ilirsh v. Fisher, 62 Sup. Ct. Rule 34. 138 Mich. 95. Objections to want of notice may 63 Sup. Ct. Rule 43. be waived, where the ease is heard 64 Sup. Ct. Rule 44. without objection and the record is 600 Error, Writ of §31 merit of causes by the clerk, lioAvever, no further changes can be made by counsel, except to continue or place at the foot of the calendar.®^ §32. Dismissal of writ. The writ should be dismissed, on motion of apiDellee, where there are defects not amendal)le or where there is some reason whv the merits should not be heard.®^ 66 Sup. Ct. Rule 44. 66 The writ will be dismissed where the record fails to show that a bill of exceptions was settled and signed by the circuit judge. Daxa- son V. Valin, 142 Mich. 8.3. But where errors are assigned un- der the rule of court providing for a case where no bill of exception is settled, the writ should not be dis- missed for failure to settle a bill of exceptions or case-made, or because no notice of such a settlement was given, or because the record is not signed and certified by the circuit judge. King v. Burden, 142 Mich. 477. The writ will not be dismissed be- cause exhibits referred to in the tes- timony are not in the record. King v. Burden, 142 Mich. 477. Wliere the assignments of error are not in the bill of exceptions, but the record clearly shows that tlie ques- tion involved was fully presented and argued before the trial court, the appeal may be considered with- out remanding the record for cor- rection. Coon v. Dennis, 111 Mich. 450. Where a plaintiff had consented to a new trial on the stipulation by two of the three defendants in the case, that the judgment should be final, a writ of error afterwards sued out by the three jointly was dismissed on motion; and it was held that if the other defendant desired a review of the judgment, he should have sued out a sole writ on his own behalf. Cole v. Thayer, 25 Mich. 212. The objection that writ of error was sued out before the judgment was entered, cannot be made where two full terms have intervened since the return of the writ, and no mo- tion to dismiss was made. McCa- hill v. Detroit City Ry. Co., 96 Mich. 156. Objection to the suing out of a writ of error by counsel is waived, unless made by motion to dismiss the writ. Hager v. Coup, 50 Mich. 54. Where the prevailing party neg- lected to enter his judgment until after the return day of a writ of error which had been taken out, but to which return had not been made, a motion to dismiss a second writ, sued out after judgment was en- tered, should bf denied. Hinckley v. Washtenaw Probate Judge, 45 Mich. 343. Objections to the record should be made at the beginning of the term, and not by separate motions, made on different motion days, to dismiss the writ, and strike out the bill of exceptions. Spencer v. Fish, 43 Mich. 226. § 33 Ehror, AVrit oi' 601 A motion to dismiss the writ is the propei- method of raising the question of the right to sue out the writ,®''^ and of whether the writ is barred by hipse of time,^' and of whether the proper persons are made parties to the writ,^^ but not of whether the writ was taken out for the purpose of delay.'*' Failure to serve the notice of the writ of error upon the appellee is not ground for dismissal, where he has all the information that he would have received from a notice, and the writ has been filed before the motion for dismissal was heard.'^^ A motion to dismiss the writ for not printing the record was denied, it appearing that neither party had ever noticed the case for hearing.'''^ Uncertainty in the as- signments of error is no ground for dismissing the writ,'' but absence of any assignments is ground.'* § 33. For failure to return writ or assign errors. If an appellant fails to liave the writ of error returned on or before the return day thereof, or to assign error It is proper to dismiss a writ of But where the writ is sued out by error with costs on motion of ap- one of two defendants in the names pellee, notwithstanding appellant has of both, and the defendant not join- withdrawn his writ of error and ing files his election not to prosecute given notice thereof, on objection to the writ, it will not be dismissed, the settlement of a bill of excep- Spencer v. Fish, 43 Mich. 226. tions on the ground that a writ of And a motion to dismiss the writ error did not lie. IJllman v. San- because a necessary party was not del, 158 Mich. 396. named therein cannot be made after 67 Hagar v. Coup, 50 Mich. 54; judgment in the supreme court. Wanner v. Martin, 173 Mich. 503; Powers v. Irish, 23 Mich. 429. Apsey V. DeYoung, 173 Mich. 426. 70 Detroit Society, etc. v. Detroit 68 Teller v. Willis, 12 Mich. 268; Society, etc., 167 Mich. 97. Bliss V. Caille Bros. Co., 157 Mich. VI Woodmansie v. Hollon, 16 Mich. 258; Riley v. Detroit United Ry., 379. 163 Mich. 327; Carney v. Baldwin, 72 Ldand v. Blair Tp., 97 Mich. 95 Mich. 442. 612. 69 Mills V. Bunce, 26 Mich. 101. 73 Teller v. Wetherell, 6 Mich. 4C. Objections relating to parties to Compare Mittelstadt v. Kelly, 202 the writ of error must be taken by Mich. 524. motion to dismiss. Sick v. Michigan 74 See 8 33, poHt. Aid Ass'n, 49 Mich. 50. 602 Error, Writ of § 33 and serve copies of the assignments within the time al- lowed for that i)urpose, the appellee may move the court to have the writ of error dismissed for want of prose- cution ; "^^ and the court will grant or deny the motion on such terms and conditions as the justice of the case requires.'^ A motion to dismiss a writ of error for the failure of the appellant to have it returned will be denied if the return is filed before the motion is heard, although costs will be usually awarded to the moving party.'' And, after a lapse of several years, a writ of error will not be dismissed for want of a proper return, where no ex- cuse for the delay is shown.'^ A motion to dismiss for want of prosecution will be denied, where neither party has noticed the case for hearing.'® The supreme court will not relieve an appellant against the consequences of his neglect to cause the transcript of the record to be filed within the time re- quired, unless the neglect is fully explained. ^° And it is not a sufficient excuse that, when the writ of error was served, the clerk of the court below promised to make out the transcript and deliver it within the time required, and that this promise was relied upon and the neglect occurred in consequence of the clerk's failure to perform it.^^ Especially is the neglect not excused by an affidavit which states that the appellant expected the clerk to make the return in due time, but shows no 76 Sup. Ct. Rule 8; Starkweather 77 Woodmansie v. Hollon, 16 Mieh. V. Thorington's Estate, 157 Mich. 379; Babcock v. Twist, 16 Mich. 513. 282; Hill v. Hill, 112 Mich. 633; Motion to dismiss a writ of error, Riley v. Detroit United Ry., 163 for failure to procure a return to Mich. 327. the writ in time, will be granted in 78 Wattles v. Warren, 7 Mich. 309; the absence of a valid excuse for Boardman v. Taylor, 16 Mich. 62. delay, wliere the case does not call 79 Leland v. Township of Blair, for indulgence on other grounds. 97 Mich. 612. Came v. Hall, 7 Mich. 159. 80 Lathrop v. Hicks, 2 Doug. 223. 76 Sup. Ct. Rule 9. 81 Lathrop v. Hicks, 2 Doug. 223. § 35 Ekrok, Weit of 603 request to tlie clerk to do so and no interview with him on the subject.'^ If the appellant apprehends that he will not be able to procure the return of the writ on or before the return day, he should obtain an order for an extension of the time. § 34. Time for motion. Motions to dismiss for informalities or irregularities should be made without delay, unless the delay be suf- ficiently excused, and, where a tenn has intervened, the motion will be denied, unless some very satisfactory reason is shown for the delay.^' After judgment in the supreme court, it is too late to move to dismiss a writ of error for informalities and irregularities.'* Where a writ of error is not taken out within eighteen months, no jurisdiction is acquired by a writ subse- queixtly taken out, and therefore a motion to dismiss it , will be granted, notwithstanding failure to move promptly.'^ §35. Motion papers and notice of motion. The motion must distinctly state the ground upon which it is based, and if it fail to do so, it will not be entertained by the court.'^ Copies of affidavits served with notice of the motion, must be true and complete, including the jurat, and, if defective, the motion will not be heard.'' On a motion to dismiss a writ of error because not issued within the statutory time, the court may accept the statements in the affidavit as proof of »8 Came v. Hall, 7 Mich. 159. 84 Powers v. Irish, 23 Mich. 429. 83 Powers v. Irish, 23 Mich. 429 ; 86 Riley v. Detroit United Ry., 163 Evans v. Norris, 6 Mich. 69; Mich. 327. O 'Flynn v. Eagle, 7 Mich. 306 ; 86 Jaquith v. Hale, 30 Mich. 163. Smith V. Mitchell, 9 Mich. 261; Sick 87 Chesebro v. Chcscbro, 21 Mich. V. Michigan Aid Ass'n, 49 Mich. 50; 506. Came v. Hall, 7 Mich. 159. 604 Ehwoh, AVaiT of § 35 the date when the jiulgnieiit was rendered where the affidavit is not disputed.®* Notice of a motion to dismiss a writ of error is neces- saiy.'* On motion to dismiss the writ for Avant of jurisdic- tion, the appeUant may show himself by affidavit to come within the exceptions of the statute barring his writ.®" But the question whether plaintiff appeared and argued the case in the lower court or consented to the judgment there entered, cannot be raised on affidavit, nor can the question whether a previously decided prin- ciple is applicable to errors assigned.®* § 36. Calendar practice. The calendar practice is the same as in case of mo- tions in general in the supreme court.®'^ Where a motion to dismiss is noticed for hearing on a certain day and then called up, it cannot be taken upon any subsequent day and term, except by consent, unless it has been ordered to stand over to such subse- quent day.®^ §37. Effect of dismissal. Dismissal of writ of error leaves the judgment on which it was sued out operative and conclusive;®* but it does not preclude the suing out of a new writ.®" So 88 Bliss V. Caille Bros. Co., 157 92 See Supreme Couet. Mich. 258^ following Teller v. Willis, 93 Ireland v. Rpalfling, H Mich. 12 Mich. 268. 455. 89 Scribner v. Dosemau, 5 Midi. 94 Hitchcock v. Pratt, 51 Mich. 283. 263. So a motion to dismiss a writ in a 95 Kai.ser v. Detroit United Ry., cause not on the docket of the term 163 Mich. 109. when the motion is made, will not The dismissal of the writ is equiv- be heard without notice. Hill v. alent to a nonsuit and does not bar Bowers, 21 Mich. 303. the issuance of a new writ. Beller 90 Teller v. Willis, 12 Mich. 268. v. Stevens, 40 Mich. 168. 91 Tower v. Detroit & M. R. Co., 7 Mich. 10. §40 Errok, Wkit of 605 where the writ is dismissed because brought by one who had no right to it, a party to the cause who did not join in the writ is not barred from suing out a new writ.®® § 38. Reinstatement after dismissal. After dismissal the order may be vacated, and the case reinstated.®'^ Where a motion is made to reinstate a case at a term following its dismissal for want of prosecution, the party making the motion should show himself in a position to proceed at once to the hearing, if the motion should be granted.®' And where a case is dismissed for failure of appellant to prosecute the appeal, a motion to reinstate the cause will not be granted where there has been great laches in moving.®* § 39. Voluntary dismissal of writ. An appellant will always be allowed to dismiss his writ of error on the payment of costs; ^ but a writ of error cannot be dismissed before it has been returned into the supreme court. A party recovering a judg- ment in the lower court cannot stipulate in the supreme court to dismiss the suit Avithout the consent of his at- torneys, if he is indebted to them at the time for services in the case.^ § 40. Who may allege error. Persons not parties cannot allege error and parties cannot allege errors that affect only other persons or 96Taff V. Ilosmcr, 1-i Mieli. 241). 98 Binglumi v. Parsons, 9 Mich. 97 A cause which had been dis- li4. missed for want of prosecution was 99ynch V. Johnson, 109 Mich. 640; Wakely v. Johnson, 115 Mich. 28'>; Gregg v. Fox, 117 Mich. 495; Ruttcr V. Collins, 103 Mich. 143; Barnette v. Farmers' Mut. Fire Ins. Co., 115 Mich. 247; Milliken v. City of Corunna, 110 Mich. 212; Weiser V. Welch, 112 Mich. 134; People v. Tice, 115 Mich. 219; John Hutchin- son Mfg. Co. V. Pinch, 107 Mich. 12 ; Tyler v. Nelson, 109 Mich. 37; Wie- rengo v. American Fire Ins. Co., 98 Mich. 621; Byerson v. Wayne Cir- cuit Judge, 114 Mich. 352; Ella v. Boyce, 112 Mich. 552; C*lark v. O'Rourke, 111 Mich. 108; Kloek v. Pack, 112 Mich. 670; Cleland v. Clark, 111 Mich. 336; Mower v. Ver- planke, 105 Mich. 398; Vaughn v. McFadyon, 110 Mich. 234; Neal v. Neal, 181 Mich. 114; Moore v. Thompson, 108 Mich. 283; Little v. Mills, 98 Mich. 423; Thomas v. Ann Arbor K. Co., 114 Mich. 59; IJeoplc V. Luby, 99 Mich. 89; People v. Shelters, 99 Mich. 333; Rogers v. Ferris, 107 Mich. 126; Hewitt v. Morley, 111 Mich. 187; Money- weight Scale Co. v. David, 180 Mich. 8; Habitz v. Wabash R. Co., 170 Mich. 71; Dahrooge v. Sovereign Fire Ins. Co., 175 Mich. 248; Walsh V. Lake Shore, etc., R. Co., 185 Mich. 177; Jeup v. Winship, 182 Mich. 231; Aldrich v. J. Calvert's Sons, 186 Mich. 469; Brown v. O'DonncU, 123 Mich. 100; Lamb v. Rathburn, 118 Mich. 666; Shreeves v. Cald- well, 135 Mich, 323; Beld v. Darst, 146 Mich. 143; People v. Grant, 117 Mich. 613; Forster v. Brown, 119 Mich. 86; Smith v. McDonald, 139 Mich. 225; Lee v. Livingston, 143 Mich. 203; Alpena City Water Works Co. V. City of Alpena, 130 Mich. 518; Broughton v. Jones, 120 Mich. 462; Wolf v. Holton, 110 Mich. 166; Stockman v. Mitchell, 109 Mich. 348; Boehm v. City of Detroit, 141 Mich. 277; Menominee v. S. K. Martin Lumber Co., 119 Mich. 201; Olin v. Henderson, 120 .Mich. 149; Obenauer v. Solomon, 1 51 Mich. 570 ; Lee v. United States (iraphite Co., 161 Mich, 157; Rich- ards V. Church Balance-Gear Co., 166 Midi. 464; Foster v. Watson, 153 Mich. 400; Page v. Boehmer, 154 Mich. 693; Merrinane v. Miller 157 Mich. 279; Bennett v. Maurice 162 Mich. 254; Ulmer v. Seelman 1.59 Mich. 253; Osborne v. Os borne, 156 Mich. 413; Hayes v, Wa bash R. Co., 163 Mich. 174; Opso mere v. Opsomere, 167 Mich. 636 O'Dell v. (!off, 153 Mich. 643; See ley V. Swift & Co., 151 Mich. 545 Lewis V. Jacobs, 153 Mich. 664 Clark V. Ulrich, 153 Mich. 695. 75 Scendar v. Winona Copper Co., 169 Mich. 665; Nelson v. Stewart, 174 Mich. 127; Place v. Place, 139 Mich. 509; Ebel v. Piehl, 134 Mich. ti4 ; Henderson v. Sherman, 47 Mich. 267; Butterfield v. Gilchrist, 53 Mich. 22; Foley v. Dwyer, 122 Mi.'h. 587; Burke v. Wilber, 42 Mich. .".27; Jarvis v. Flint, etc., R. Co., 128 Mich. 61; Loser v, Jorgenson, 137 Mich. 220. 76Safford v. Detroit Board of Health, 110 Mich. 81. §46 Erkok, Writ of 623 the court below, the supreme court will not consider the question unless the ground of objection was stated to the court below, nor upon any other ground than that so stated." In other words, error cannot be brought into a case retrospectively.'''^ However, want of juris- diction of the subject-matter cannot be waived and may be first urged on writ of error,'''* and the alleged dis- qualification of the trial judge is reviewable on error, although not urged before the decision was rendered.*" To illustrate: Questions not raised on a motion for a ncAv trial, which might have been urged at that time, cannot be first urged on a writ of error.®^ Failure to file reasons for overruling a motion for a new trial can- not be considered on error where no request was made 77 People V. Moore, 86 Mich. 134; Abbott V. Chaffee, 83 Mich. 256; Krolik V. Graham, 64 Mich. 226; Lu- cas V. Wattles, 49 Mich. 380; Jen- nings V. Prentice, 39 Mich. 421 ; Ives V. Leonard, .50 Mich. 296; Young v. Stevens, 9 Mich. 500; Wicks v. Boss, '67 Mich. 464; Hollister v. Brown, 19 Mich. 163; Brown v. Weightman, 62 Mich. 557 ; Detroit, etc., E. Co. v. Crane, 50 Mich. 182; Mahiat v. Codde, 106 Mich. 387; Howry v. Ep- pinger, 34 Mich. 29; Hogelscamp v. Weeks, 37 Mich. 422; Achey v. Hull, 7 Mich. 423; People v. Summers, 115 Mich. 537; Lungerhausen v. Crittenden, 103 Mieh. 173; Holman V. Union St. R. Co., 114 Mich. 208; Benedict v. Michigan B. & P. Co., 115 Mich. 527; People v. Foglesong, 116 Mich. 556; Bettys v. Denver Tp., 115 Mich. 228; People v. Pope, 108 Mieh. 361 ; Baker v. City of De- troit, 166 Mich. 597; Brown v. Spie- gel, 167 Mieh. 645; Jordan v. Le Messurier, 155 Mich. 188; Lockard v. Van Alstyne, 155 Mich. 507; Hoek v, Allendale Tp., 161 Mich. 571; Rock Island Plow Co. v. Smith, 162 Mich. 180; Taylor v. City of Jack- son, 151 Mich. 639; Sisson v. Lam- pert, 159 Mich. 509; Storch v. Rose, 152 Mich. 521; Northrup v. City of Pontiac, 159 Mich. 250; Patterson v. Gore, 177 Mich. 591; Fidelity & Deposit Co. V. Maile, 177 Mieh. 231 ; Joehen v. Tibbells, 50 Mich. 33; Crane v. Waldron, 133 Mich. 73. 78 Detroit, etc., R. Co. v. Crane, 50 Mich. 182. 79 Thompson v. Michigan Mut. Ben. Ass'n, 52 Mich. 522. 80 Bliss V. Tyler, 149 Mich. 601. 81 Northrup v. City of Pontiac, 159 Mich. 250; Storeh v. Rose, 152 Mich. 521; Casearclla v. National Grocer Co., 151 Mich. 15; People v. .Judge of Superior Court of Detroit, 41 Mieh. 31; Rohde v. Biggs, 108 Mich. 446. P^xcessiveness of verdict cannot be considered on error where not raised in the lower court on motion for now trial. Weateott v. Wade, 153 Mich. 340; Dice v. Sherbernojni. 152 Mich. 601. 624 Error, Writ of §46 therefor.^'^ So variance between the pleadings and the proof cannot be first urged on writ of error*' nor can the sufficiency of the declaration.** Particular defenses not raised nor urged in the trial court cannot be relied on in the supreme court,*^ nor can such court of its own motion dispose of the case upon an existing defense not raised in the trial court.*^ Thus the defense of the statute of limitations cannot first be urged on error,*''' nor the statute of frauds,** nor the defense that the contract sued on was in restraint of trade.** Moreover, a defense that plaintiff had not shown good title cannot be considered where it was first urged on a motion for a new trial.*" Want of jurisdiction of the person cannot be first urged in the supreme court,*^ although the rule appar- ently is otherwise in case of want of jurisdiction of the subject-matter.*^ The unconstitutionality of a statute 82 Groat V. Detroit United Ey., 457; Hollister v. Kinyon's Estate, 153 Mich. 165. 195 Mich. 261; Bennett v. Denton, 83 Reese v. Dyer, 199 Mich. 204; 194 Mich. 610; Conger v. Hall, 158 Scendar v. Winona Copper Co., 169 Mich. 447. Mich. 665; Habitz v. Wabash R. So it is not sufficient to merely Co., 170 Mich. 71; Nelson V. Stewart, plead limitations and make it a 174 Mich. 127; Hammond v. Porter, ground for moving for a new trial, 150 Mich. 328; Hayes v. Wabash where not urged on the trial or oth- Ry. Co., 163 Mich. 174. erwise brought to the attention of 84 Taylor v. Belton, 188 Mich. the trial court. Moden v. Superin- 302; Merrinane v. Miller, 157 Mich. tendents of the Poor, 183 Mich. 120. 279. 88 Bennett v. Denton, 194 Mich. 85 Wood V. Carey, 200 Mich. 217; 610; Obenauer v. Solomon, 151 Mich. City of Kalamazoo v. Perrin, 194 570, 575. Mich. 484 ; Boston Piano & Music 89 Lee v. United States Graphite Co. V. Pontiac Clothing Co., 199 Co., 161 Mich. 157. Mich. 141 ; Ithaca Roller Mills v. 90 Colwell v. Alpena Power Co., Ann Arbor R. Co., 197 Mich. 440; 178 Mich. 183, 255. Richards v. Church Balance-Gear 91 Springer v. Fuller, 196 Mich. Co., 166 Mich. 464. 628; Taylor v. Davarn, 191 Mich. 86 Boston Piano & Music Co. v. 243 (objection to sufficiency of serv- Pontiac Clothing Co., 199 Mich. 141. ice of summons). 87 Swan V. Gregory, 195 Mich. 92 See ante, this section. § 46 Error, Writ of 625 cannot first be urged in the supreme court,®' nor can objections to the granting of a motion for a continu- ance.®* Objections to form of action, as where it is urged the proper form is an action on the case and not assumpsit, are not reviewable on error where not raised in the trial court except on a motion for a new trial.®^ So objections to the introduction of evidence cannot be first urged on a writ of error,®^ nor can additional or other objections thereto not urged in the trial court.®^ Likewise objections to cross-examination of witnesses must be urged in the trial court or are deemed waived.®* If the record does not show an offer of proof, its rejec- tion cannot be considered.®® On excepting to an answer by a witness, a motion to strike it out is necessary in order to assign error there- on.^ So where a question is answered after an objec- tion to it is sustained, error cannot be predicted there- on in the absence of a motion to strike the answer from the record.'' Improper remarks of counsel in argument before the jury are not reviewable unless an objection is made thereto and a ruling of the court obtained thereon,' and 93 Maurer v. Greening Nursery 99 Eberts v. Mt. Clemens Sugar Co., 199 Mich. 522. Co., 182 Mich. 449. 94 Goldberg v. Peerless Pattern 1 Bowen v. Chandler, 172 Mich. Co., 197 Mich. 362. 678. 96 Fuhrman v. Sun Ins. Office, 2 Sullivan v. Truszkowski, 185 180 Mich. 439, 448. Mich. 17. 96 Baxter v. Woodward, 191 Mich. 8 Murphy v. Manistee E. Co., 194 379; Slattery v. Tillman, 197 Mich. Mich. 595; Greenleaf v. Lambert, 349; Simmons v. National Live 192 Mich. 411; Mortensen v. Brad- Stock Ins. Co., 187 Mich. 551; Duf- shaw, 188 Mich. 436; Kasprzak v. finy V. Detroit & M. E. Co., 186 Chapman, 197 Mich. 552; Eberts Mieh. 40 (objection insufficient v. Mt. Clemens Sugar Co., 182 where not made until after dismissal Mich. 449; Spencer v. Johnson, 185 of the witness). Mich. 85; Patterson v. Gore, 177 97 Bobbins v. Magoon & Kimball Mich. 591 ; Wiers v. Shaw- Walker Co., 193 Mich. 200, and see Trial. Co., 171 Mich. 324; Meade v. Dc- 98Soule V. Henry, 197 Mich. 473. troit, J. & C. Ry., 165 Mieh. 489; 1 Abbott— 40 626 Error, Writ of §46 it is not sufficient to merely take an exception where no ruling is asked for or made.* So alleged prejudicial remarks of the court during the trial cannot be re- viewed Avhere the attention of the trial court was not called to them.^ P^ailure of the court to instruct the jury on particular matters is not reviewable in the ab- sence of a request for instructions relating thereto.® The question whether a verdict is excessive or inade- quate will not be reviewed unless the point is presented on a motion for a new trial/ and the same is true as to the question whether a verdict is against the weight of the evidence.' §47. Rulings not excepted to. It was fonnerly the rule that no assignment of eiTor would be considered unless it was supported by an ex- ception, shown by the record to have been duly taken,® rormiller v. Detroit United Ry., 164 Mich. 653, 662. 4 Appleby v. Sperling, 194 Mich. 681 ; Township of Deep River v. Van Antwerp, 174 Mich. 19; Habitz V. Wabash R. Co., 170 Mich. 71; • Crane v. Ross, 168 Mich. 623 ; De- troit Nat. Bank v. Union Trust Co., 158 Mich. 557, 562. To same effect, Good Roads Const. Co. v. Port Hu- ron, etc., R. Co., 173 Mich. 1. 5 Neal V. Neal, 181 Mich. 114. 6 Minds V. Keyes, 189 Mich. 629; Stuart V, Holt, 166 Mich. 549; Pru- ner v. Detroit United Ry., 173 Mich. 146; Amanta v. Michigan Cent. R. Co., 177 Mich. 280; Rivers v. Bay City, etc., Co., 164 Mich. 696, 707; Spray v. Ayotte, 161 Mich. 593. TShowen v. .T. L. Owens Co., 182 Mich. 264. • Myers v. Muskegon Imp. Co., 19.'! Mich. 697; In re Warring 's Estate, 196 Mich. 720. 9 People V. MiUs, 94 Mich. 630 Haines v. Saviers, 93 Mich. 440 Hinthman v. Weeks, 85 Mich. 535 Thorn v. Maurer, 85 Mich. 569 Lindner v. Hine, 84 Mich. 511 Henry C. Hart Mfg. Co. v. Mann's Boudoir Car Co., 65 Mich. 564; Bed- ford V. Penney, 65 Mich. 667; Browne v. Moore, 32 Mich. 254; Lee V. Hardgrave, 3 Mich. 77; Bath V. Caton, 37 Mich. 199; Piatt v. Brand, 26 Mieh. 173 ; Gambs v. Suth- erland 's Estate, 101 Mich. 355; Banks v. Cramer, 109 Mich. 168; Runnclls v. Village of Pentwater, 100 Mich. 512; Bokenfohr v. Bush, 117 Mich. 444; Fitzpatrick v. Hoff- man, 104 Mich. 228; Childs v. Nor- della, 116 Mich. 511; People v. Sum- mers, 115 Mieh. 537; Morse v. Blanchard, 117 Mich. 37; Holman v. Union St. Ry. Co., 114 Mich. 208; Longyear v. Gregory, 110 Mich. 277; Noble v. St. .Joseph, etc., R. Co., 98 §47 Error, Writ of 627 except where the error was apparent on the face of the record witliout a bill of exceptions, as that the written findings by the court of the facts and the conclusions of law do not support the judgment,*" and except errors in the charge of the court, which, by statute,** were permitted to be assigned without exception to the charge, but now it is provided not only that it is un- necessary to except to the charge of the court or to the refusal to charge as requested, but that it is not neces- sary ''in the trial" to except to any ruling or action of the court, if an objection thereto was duly made, but an exception will be deemed to follow as a matter of course, so that now any party considering himself ag- grieved by any such ruling, action, charge or refusal to charge may assign error the same as if exception had been made according to the former practice.*^ But if no exceptions are filed to findings of fact of the trial court, the weight of the evidence cannot be reviewed but the supreme court is confined to determining whether there is any evidence to sustain the findings.** So an order denying a motion for a new trial is not re- viewable where no exception is taken to the denial of Mich. 249; Miller v. Lachman, 117 Mich, 123; Feller v. Green, 26 Mich, Mich, 68; Finley v. Widner, 116 70; Wilcox v. Eagle Tp., 81 Mich. Mich. 679; Knop v. National Fire 271; Stafford v. Crawford, 118 Ins. Co., 101 Mich. .159; People v. Mich. 285. See also Henderson v. Milliard, 119 Mich. 24; In re Gal- City of Detroit, 61 Mich, .178; Tur- lagher's Estate, 120 Mich. :]65; nor v. Burr, 141 Mich. 106. Relby v. Detroit R. Co., 122 Mich, 11 How, Stat. (2nd ed.) 12960; ;m. Comp. Laws 1897, § 10247; Jud. Act, 10 Robards V. Waterman, 96 Mich. eh. 18, §60; Comp. Laws 1915, 233; Cook v. Burnett, 83 Mich. 251; iS§ 12632, 14576. Green v. Bennett, 23 Mich. 464; 18 Jud. Act, ch. 18, §60; Comp. Hubbard V. Garner, 115 Mich. 406; Laws 1915, §12632; Rohmer v, Crippen v. Jacobson, 56 Mich. 386; Labo, 191 Mich. 55. Leitelt v. Parker, 48 Mich. 297 ; Mor- 13 Reese v. Dyer, 199 Mich. 204, gan V. Botsford, 82 Mich. 153; Sim- and see Verdict and Findings. mons Hardware Co. v. Baker, 140 628 Error, Writ of §47 the motion,^* and the same is true of an order denying a motion for a continuance." This matter as to the necessity for exceptions is fully considered in another article.^^ § 48. Review as limited by the record. It is elementary that questions not raised by the rec- ord cannot be reviewed.^' For this reason, questions relating to taxation of costs are not reviewable.^® So error in a proceeding by a sheriff after judgment can- not be taken advantage of on a writ of error to the judgment." So proceedings before the circuit court to vacate a judgment of a justice of the peace as to the surety upon his petition and accompanying affidavits can- not be considered on a writ of error bringing up the judgment record in the suit appealed from the justice court, where judgment was rendered at circuit court against the surety in the appeal.^" The evidence will be entirely disregarded unless con- tained in a bill of exceptions or case made, and it is not 14 Vezina v. Shermer, 198 Mich. tion of costs, cannot be considered. 757; Goldberg v. Peerless Pattern Moore v. Daiber, 92 Mich. 402. Co., 197 Mich. 362. 19 Hitchcock v. Hahn, 60 Mich. 16 Goldberg v. Peerless Pattern 459. Co., 197 Mich. 362. The failure of the plaintiff's at- 16 See Exceptions. torney to make the indorsement re- 17 See § 42, ante. quired by statute upon an execution Only decisions arising on the rec- issued upon a judgment in an at- ord or which become a part of the tachmcnt suit and the levy of the record by a bill of exceptions are sheriff thereunder will not be consid- reviewable. Pearsons v. Eaton, 18 ered by the supreme court on a writ Mich. 79. of error; and, in general, any pro- 18 Lorman v. Phoenix Ins. Co., ceeding in a case after judgment is 33 Mich. 65. On error to review a perfected therein will not be consid- judgment questions relating to re- ered by the supreme court when a taxation of costs are not reviewable. reversal of the judgment is sought Cox V. Klein, 149 Mich. 162. On a upon writ of error. Hitchcock v. writ of error to review the judg- Hahn, 60 Mich. 459. ment, the affirmance by the trial 20Buehler v. De Lemos, 84 Mich, court on appeal of the clerk 's taxa- 554. §48 Error, Writ of 629 sufficient that it accompany the transcript of the record returned with the writ of error.^^ When all the ques- tions are such as can only be raised by a bill of ex- ceptions, and there is no bill of exceptions, the court will affirm the judgment.^^ If all the evidence in rela- tion to an alleged error is not in the record, it will not be considered.^' Where the record does not purport to contain all of the evidence, findings of fact of the trial court cannot be reviewed.^* And where neither the judgment nor the order denying a new trial is printed in the record, nor the reasons given by the court for denying the motion, the order cannot be reviewed.''^ On a writ of error to review a judgment affirmed by the circuit court on certiorari, only such grounds can be considered as are alleged in the affidavit for certiorari.^^ On the other hand, matter improperly included in the record will not be considered.^' So statements improper- ly included in the bill of exceptions will not be consid- ered.^' For the reason also that it constitutes no part of the record, proceedings on a motion to set aside a capias ad respondendum,^® or to dismiss an appeal from a jus- 21 Peabody v. McAvoy, 23 Mich. served on counsel for the opposing 526. party, and for that reason were not 22 Stendell v. Noak, 19 Mich. 391. considered by the trial court, they 23 Connor v. Levinson, 115 Mich. cannot be considered on appeal, al- 297. though incorporated in the record. Presumption that assumed record Eeason v. Detroit, O. H. & M. By. contains all the testimony, see New- Co., 150 Mich. 50. ell V. Reid, 189 Mich. 174. But affidavits on a motion for a 24 Lasley v. Preston, 157 Mich. 66. new trial, considered by the trial 25 In re Bender 's Estate, 159 court) were treated as properly a Mich. 108. part of the record in Hampton v. 26Woodmere Cemetery v. Roulo, Van Nest's Estate, 196 Mich. 404, 104 Mich. 595; Wilson v. McCrillies, although not made a part of the bill 50 Mich. 347; Grand Trunk Ry. Co. of exceptions, where extracts from v. Eusa, 47 Mich. 500; People v. such affidavits were printed in tlio Hobson, 48 Mich. 27. record. 27 Where affidavits, filed with a 28 Watson v. Kane, 31 Mich. 61. motion for a new trial, were not 29 Miller v. Rosier. 31 Mich. 475. 630 Error, Writ of §48 tice's court,^*' or to vacate a Jiuliiiiient,^^ or to set aside the service of a declaration,^^ will not be considered by the supreme court on writ of error. Improper statements of counsel made in the course of argument will not be considered where they are not con- tained in the record. ^^ Failure to liave the record properly indexed generally precludes the review of matters not indexed, including exceptions.^* § 49. Refusal of new trial. For the reason that the refusal of a new trial is dis- cretionary and the further one that it does not consti- tute a part of the record, it was formerly held that the erroneous action of the trial court in refusing to grant a new trial could not be reviewed upon error by the supreme court ;^^ })iit now it is provided by statute that, in all cases taken to the supreme court on writ of error, where a motion for a new trial has been refused by the trial judge, the party appealing may incorporate in the bill of exceptions a record of the proceedings had on the motion, including the reasons given by the trial judge in refusing to grant a new trial, and exceptions may be taken and error assigned on the decision of the circuit judge in refusing the motion, and the same will be reviewed by the supreme court. ^^ AVhen the motion 30 Conrad v. Freeland, 18 Mifh. troit Tug & Wrecking Co. v. Wayne 255. Circuit Judge, 75 Mich. .^60; Bras- 81 Buehler v. Lemos, 84 Mich. 554. sel v. Minneapolis, etc., R. Co., 101 32Millerd v. Reeves, 1 Mich. 107. Mifli. 5; Nelson v. Lumberman's 38Norris v. Detroit United Ry., Min. Co., 65 Mich. 288; Dibble v. 19.T Mich. 578. Rogers, 2 Mich. 404; Greeley v. 84 See Supreme Court, §14. Stilson, 27 Mich. 153; Mahoney v. SSMonnier v.' Mezner, 17 Mich. People, 43 Mich. 39; Gray v. Bar- 271; People v. Pearsoll, 50 Mich. ton, 62 Mich. 186; Johr v. People, 233; Moore v. Daiber, 92 Mich. 402; 26 Mich. 426; People v. Francis, 52 Graham v. Myers, 67 Mich. 277; Mich. 576. Hake v. Buell, 50 Mich. 89; De- 36 Jud. Act, ch. 18, §63; Comp. §49 Error, Writ of 631 for a now trial is based upon the ground that the ver- dict is against the weight of the evidence, it is the duty of the court to examine the evidence and determine for itself whether the verdict is so plainly against justice as to call for a new trial." But it is only where the ver- dict is clearly against the great weight of the evidence that the supreme court will reverse the ruling of the trial judge in refusing a new trial.^® There has been more or less conflict and misunder- Laws 1915, § 12635; Gemberling v. Lazarus, 100 Mich. 324; Brassel v. Minneapolis, etc., E. Co., 101 Mich. 5; Rnop v. National First Inst. Co., 101 Mich. 359; McKea v. Garth Lumber Co., 102 Mich. 488; Finle.v V. Widner, 116 Mich. 697; Hill v. Hill, 114 Mich. 599; In re Gal- lagher's Estate, 121 Mich. 365; Shields v. Moody, 120 Mich. 472. Abuse of discretion must be shown. Nosa v. Munising, etc., E. Co., 196 Mich. 104. 37 In re Melntyre's Estate, 160 Mieh. 117; Hintz v. Michigan Cent. E. Co., 132 Mich. 305; Baldwin v. Grand Trunk B. Co., 128 Mich. 417 ; Whipple vr Michigan Cent. E. Co., 130 Mich. 460; Woods v. Palmer, 151 Mieh. 30; Bernard v. Grand Eapids Paper Box Co., 170 Mich. 238; Bosek v. Detroit United Ey., 175 Mich. 8; Cole v. Detroit Elec Ey,, 132 Mieh. 122; Montmorency County V. Putnam, 127 Mich. 36; Wheeler v. Jennison, 120 Mieh. 422; Sauer v. McClintie-Marshall Con- struction Co., 179 Mich. 618; Sea- man V. Eindge, etc., Co., 195 Mich. 417. SSEced V. McCready, 170 Mich. 532; Gardiner v. Courtright, 165 Mich. 54; Stevens v. Michigan Soap Works, 134 Mich. 350; Krouse v. Detroit United Ey., 170 Mich. 438 Tyler v. Wright, 171 Mich. 579 Vyn V. Keppel, 108 Mich. 244 Blanchard v. Moors, 85 Mich. 380 McDonnell v. Central Drug Co., 170 Mich. 291; Fike v. Pere Mar- quette B. Co., 174 Mieh. 167; People V. Sartori, 168 Mich. 308; Muneey v. Sun Ins. Office, 109 Mich. 542 ; In re Parr 's Estate, 161 Mich. 244; Mcintosh v. Mcintosh, 79 Mich. 198; Hoffman v. Loud, 111 Mich. 156; Malinowski v. Detroit United Ey., 154 Mich. 104; In re Hoyle's Estate, 162 Mich. 275; Du- puis V. Saginaw Valley Traction Co., 146 Mich. 151; Druck v. Antrim Lime Co., 177 Mich. 364; Brennan V. O'Brien, 121 Mich. 491; Darling V. Grand Eapids, etc., E. Co., 184 Mich. 607; McGary v. Buick Motor Co., 182 Mich. 345; Moss v. Detroit, etc., E. Co., 188 Mieh. 1; Morrison V. City of Ironwood, 189 Mich. 117; Silverstone v. London Assurance Co., 187 Mieh. 333; B. Marx & Son v. King, 177 Mich. 662 ; Mink v. Grand Eapids, etc., E. Co., 194 Mich. 324; Simmer v. Cutter's Estate, 194 Mich. 34; McKay v. Detroit United Ey., 195 Mich. 88; Jacobs v. Queen Ins. Co., 195 Mich. 18; Chapman v. Anu Arbor E. Co., 196 Mich. 671. 632 Error, Writ of § 49 standing as to the effect of the failure of the trial judge, where he denies the motion, to state his reasons for de- nying a new trial. In 1917, however, the supreme court held that where the moving party has filed a request for a written finding, and such written finding has not been filed by the court, error may be assigned on the refusal to grant the new trial notwithstanding no rea- sons in writing for denying the motion were filed.'^ On the other hand, in 1916, the supreme court said: ''There was a motion for a new trial which was denied, but no reasons were filed in w^riting by the circuit judge in denying the motion, and there is nothing in the record to indicate that he was requested to give his reasons. We cannot therefore review his action upon the mo- tion for a new trial. " *® It seems to follow that the right of review depends upon the filing of a request to state such reasons.*^ At any event, failure of the trial judge to file a fuller statement of the reasons for over- ruling a motion for a new trial is not reversible error.*^ § 50. Where place where error occurs in record not pointed out. Assignments of error relating to the admission of evi- dence will not be considered where the part of the rec- ord containing the evidence is not referred to.*^ So where there is no reference in the index, or the assign- ments of error, to the page of the record where the ex- ceptions appear, the assignments will not be consid- ered.** And exceptions to the admission of the testi- 89 Clark v. Onaway- Alpena Tel. 42 Clark v. Detroit & M. R. Co., Co., 196 Mich. 168. See also New 204 Mich. 121. Trial. 43 Zimmerman Mfg. Co. v. Dolph, 40 Gordon v. Drake, 193 Mich. 64, 104 Mich. 281. 69, citing GriflBn v. McKnight, 116 44 Niagara Sprayer Co. v. Wood, Mich. 468 and McRae v. Garth Lum- 186 Mich. 303; Duff v. Johnson, 160 ber Co., 102 Mich. 488. Mich. 386; Boeder v. Moore, 95 41 See Bennett v. Denton, 194 Mich. 594. See also Supreme Mich. 610, 613. Court, § 14. § 51 Error, Writ of 633 mony not indexed as required by the rule of court, nor found in the record, are not reviewable, although made grounds of a motion for a new trial.*^ Sometimes, how- ever, the supreme court, as a matter of grace, assumes the labor of looking up the exceptions although they are not indexed.*® § 51. Questions not necessary to be decided. Matters not necessary to be decided on error will not be reviewed.*' It follows that the constitutionality of statutes will not be passed on, where the case can be determined without doing so,*^ and questions not neces- sary to a final determination of the suit will not be con- sidered.** Nor will it be considered whether the rem- edy sought is the best, so long as it is permissible.^" But where questions are presented which will again arise upon a new trial, and are fully argued at the hear- ing, although their decision is not necessary to the de- termination of the cause upon the writ of error, the court will often pass upon them in order to save the necessity of bringing up the same questions again in the same cause. 45 Conger v. Hall, 158 Mich. 447. And where one party concedes See also Showen v. J. L. Owens Co., that the judgment of the court must 182 Mich. 264, be in favor of his adversary to the 46 0anelli v. Littlejohn, 172 Mich. full extent of what he could claim 91 ; Niagara Sprayer Co. v. Wood, on argument, the court will not hear 186 Mich. 303; Mills v. Warner, 167 an argument for the purpose of Mich. 619. See also Supreme expressing their opinion on points Court, § 14. thus rendered unnecessary to the 47 Fessenden v. Hill, 6 Mich. 242 ; decision of the cause. Sanger v. Thompson v. Howard, 31 Mich. 309. True.sdail, 7 Mich. 9. When an objection is taken which 48 See § 52, post, goes to the jurisdiction of the court 49 Phillips v. Village of Kalama- below, and is fatal to the judgment zoo, 53 Mich. 33. brought up for review, the court will 60 Rceg v. Burnham, 55 Mich. 39. not pass upon the other questions raised by the record. Fessenden v. Hill, 6 Mich. 242. 634 Error, Writ of §52 § 52. Constitutional questions. The constitutionality of a statute will not be reviewed where other decisive questions are raised by the record which dispose of the case." § 53. Review on second or further writ. On a second or further appeal, the questions of law settled by the supreme court on a prior writ of error in the same case, will not be reviewed.^^ And where the testimony is substantially the same as on the former appeal, the case must be ruled by the prior decision.^' So a prior opinion, althoui>li not unanimous, settles the law of the case,^* as does a decision by an equally di- vided court." § 54. Presumptions in support of judgment. The court will look at the whole record and give it a reasonable construction and will follow the principles often decided and enforced by the court, that it is the duty of the appellant to show error affirmatively and conclusively, and that every presumption is in favor of the validity and regularity of the action of the court below and will be applied in support of the judginent.^^ 51 Ncgaunee Nat. Bank v. LeBeau, Union Nat. Bank v. Eich, 116 Mich. 195 Mich. 502; North Michigan 414; Anderson Carriage Co. v. Water Co. v. City of Escanaba, 199 Pungs, 15.3 Mich. 580; Gamble v. Mich. 286; Port Huron Engine & Gates, 97 Mich. 465. Thresher Co. v. Township of Port 53 Rouse v. Blair, 198 Mich. 176; Huron, 191 Mich. 590; Powell v. Foley v. Detroit & M. R. Co., 193 Eldred, .19 Mich. 552; Chandler v. Mich. 2:J.3 ; Myers v. Erwin, 180 Nash, 5 Mich. 409. Mich. 469; OdoU v. Goflf, 153 Mich. 58 State Nat. Bank of Albu- 643; Winkleman v. City of Adrian, querque v. Wernicke, 202 Mich. 8; 151 Mich. 519. Jolman v. Alberts, 192 Mich. 25; 54 State Nat. Bank of Albu- Rouse V. Blair, 198 Mich. 176; Gour- querque v. Wernicke, 202 Mich. 8. lay V. Insurance Co., of North Amer- 56 Gourlay v. Insurance Co. of ica, 189 Mich. 384; Le Roy v. Col- North America, 189 Mich. 384. lins, 165 Mich. 380; Woods V. White 56 Turnbull v. Richardson, 69 Star Line, 165 Mich. 73; Breiten- Mifh. 400. wiseher v. Clough, 116 Mich. 340; §54 Error, Writ of 635 Error cannot be presumed, but must be affinnatively shown by the record,*' and the burden of showing it is upon tlie appellant.*' Where the record alone is before the court of review without any bill of exceptions, no error can be presumed, where the record itself does not show error.*' Where tlie record does not purport to contain all or substantially all of the testimony, the supreme court will presume that the evidence intro- duced was sufficient to sustain the judgment,^® and that there was evidence justifying the instructions to the jury,^^ and that there was sufficient evidence to over- come objections complained of.®^ In reviewing a motion for a directed verdict, the court considers the testimony 57 Nixon V. Hood, 201 Mich. 133; Comstock V. Hollon, 2 Mich. 355; Maynard v. Penninian, 10 Mich. 153 ; Kermott v. Ayer, 11 Mich. 181; Taff V. Hosmer, 14 Mich. 309; Jen- nison v. Haire, 29 Mich. 207; Cook V. Hopper, 23 Mich. 511; Peabody V. McAvoy, 23 Mich. 526; Gilbert V. American Ins. Co., 30 Mich. 400; Sirrine v. Briggs, 31 Mich. 443; American Ins. Co. v. Woodruff, 34 Mich, 7; Curley v. Wynian, 34 Mich. 353; Continental Imp. Co. v. Ives, 30 Mich. 448; Zimmer v. Davis, 35 Mich. 39; State Ins. Co. v. Reyn- olds, 35 Mich. 304; Young v. Tay- lor, 36 Mich. 25; Wethcrbee v. Kus- torer, 41 Mich. 359; Brong v. Brown, 42 Mich. 119; Howard v. Patrick, 43 Mich. 121; Hurd v. Newton, 36 Mich. 35; Greenlee v. Lowing, 35 Mich. 63; Brown v. Haak, 48 Mich. 229; Kline v. Kline, 49 Mich. 419; Huff v. Hall, 56 Mich. 456; Manning v. Bresnahan, 6;> Mich. 584; Bostwick v. Losey, .67 Mich, 554; Tralters v. Tofift, 57 Mich. 390; Malachiski v. Stell- wagon, 85 Mich. 41; Bond v. McMahon, 94 Mich. 557; Sloman v. Mercantile Credit Guarantee Co., 112 Mich. 258; Old Second Nat. Bank v. Williams, 112 Mich. 564; Hoffman v. Pack, Woods & Co., 114 Mich. 1 ; American Ins. Co. v. Wood- ruff, 34 Mich. 6; Hamilton v. Lang- ley, 52 Mich. 549, 58 Rodman v. Clark, 81 Mich. 466; Sullivan v. Deiter, 86 Mich. 404; Maynard v. Penniman, 10 Mich. 153; Jolmston v. Scott, 11 Mich. 232; Walters v. TeflPt, 57 Mich. 390 ; Brong v. Brown, 42 Mich. 119 ; Wetherbee v. Kusterer, 41 Mich. 359; Gilbert v. American Ins. Co., :50 Mich. 400. 59 Walters v. Tefft, 57 Mich. 390. 60 Conger v. Flint & P. M. R. Co., 86 Mich. 76; Cappon & Bcrtsch Leather Co. v, Preston Nat. Bank. 114 Mich. 263; Rumncy v. Detroit & M. Cattle Co., 129 Mich. 644. 61 Botsford V. Chase, 108 Mich, 432; Westra v. Westra 's Estate, 101 Mich. 526. 62 Bond V. McMahon, 94 Midi. 636 Error, Writ of § 54 in the light most favorable to the losing party.^' Where no amendments to the findings of the trial court are pro- posed, as authorized by the rule of court, it will be pre- sumed that the evidence warranted the findings made.^* It will not be presumed that the jury disregarded the proofs and acted on something else.®* § 55. For what errors judgment will be reversed. Having considered the principles determining what errors, alleged to have occurred in the court below, will be considered by the supreme court on writ of error and what will not be so considered, it will be necessary to inquire what errors of those which will be considered by the supreme court will constitute a ground for reversing the judgment complained of. When any point in a case brought up on writ of error is alleged as error, the questions presented to the court as a result thereof are whether what is alleged or as- signed as error by the appellant really constitutes an error, and, if so, whether it is of such a nature as may have prejudiced the appellant, and whether, in case it should be deemed a prejudicial error, the appellant participated in the fault or has waived it, either ex- pressly or impliedly, or has done or omitted to do any- 63 Lewis v. City of Marshall, 146 of Detroit, 152 Mich. 445. Mich. 389. But the rule that in determining Where a verdict is directed for a whether a verdict should have been defendant at the close of all the directed for defendant, the testi- cvidence, the evidence in plaintiff 's niony will be given consideration favor must all be accepted as true, most favorable to plaintiff, will not and given the most favorable con- be applied so as to supply facts struction. Kobinson v. Ward, 141 which plaintiff either cannot or will Mich. 1. not disclose. Higgins v. Peninsular On reviewing a directed verdict Portland Cement Co., 152 Mich. 390. for defendant, the court will view 64 Cudney v. Sherrard, 153 Mich, the evidence of plaintiff most favor- 23^; Becker v. Headsten, 137 Mich, able to him, and indulge in all rca- 478. sonable inferences therefrom to 66 Wilcox v. Laflin & Kand Pow- make out his case. Pringle v. City der Co., 44 Mich. 35. §56 Error, Writ of 637 thing whereby he has placed himself in a position which will prevent him from having any advantage from it.^^ §56. Error as harmless or prejudicial. Even if some action of the court below appears to be error, the judgment will not be reversed, unless it ap- pears that the appellant was prejudiced by the error.^"'^ The appellant cannot avail himself of any error which does not affect the merits of the case and which could not have changed the result.^' A fortiori, he cannot complain of errors which are in his favor, and which, if they have any prejudicial effect at all, operate against his opponent only.^® It is not the duty of the appellate 66 Who may allege error, and es- toppel to allege error, see § 40, ante. 67Maxon v. Perrott, 17 Mich. 322; English v. Caldwell, 30 Mich. 362; Lenox v. Fuller, 39 Mich. 268; Eeading v. Beardsley, 41 Mich. 123; Swart v. Kimball, 43 Mich. 443; Barton v. Gray, 57 Mich. 622; Finan v. Babcock, 58 Mich. 301; Landon v. Comet, 62 Mich. 80; Mathews v. Phelps, 61 Mich. 327; Threadgood v. Litogot, 22 Mich. 271; Hammond v. Hannin, 21 Mich. 374; Keating v. Eetan, 80 Mich. 324; Durfee v. Newkirk, 83 Mich. 522; Monroe Tp. v. Whipple, 62 Mich. 560; Markey v. Mutual, etc., Ins. Co., 164 Mich. 350; Granger V. Darling, 156 Mich. 31; Belmer V. Boyne City Tanning Co., 160 Mich. 669; Matla v. Rapid Motor Vehicle Co., 160 Mich. 639; Hun- kins V. Kent, 151 Mich. 482; Heenan V. Forest City Paint & Varnish Co., 138 Mich. 548; Shook v. Marion Mfg. Co., 138 Mich. 467; Field v. Magee, 122 Mich. 556; McCormick V. Olbinski, 132 Mich. 30; Rivard V. Rivard, 109 Mich. 98; Gustav V. Clark, 190 Mich. 381; O'DonneU V. Connecticut Fire Ins. Co., 73 Mich. 1. For excellent treatment of harm- less error, see Elliott's Appellate Procedure, § 631 et seq. 68Lyall V. Sandbourn, 2 Mich. 109; Smith v. Sherwood Tp., 62 Mich. 159; Davis v. Bush, 28 Mich. 432; Eberstein v. Camp, 37 Mich. 176; Barnum v. Stone, 27 Mich. 332; Richards v. Tozer, 27 Mich. 451; Bewick v. Fletcher, 41 Mich. 625; O'Rourke v. O'Rourke, 43 Mich. 58; People v. Campfield, 150 Mich. 675; Rivers v. Bay City Trac- tion & Electric Co., 164 Mich. 696; In re Stockdale's Estate, 157 Mich. 593; Miller v. Tanners' Supply Co., 150 Mich. 292; Van Cleve v. Rad- ford, 149 Mich. 106; Pickard v. Kleis, 56 Mich. 604; Bell v. Zelmer, 75 Mich. 66. 69 Sleight v. Henning, 12 Mich. 371 ; Kelso v. Saxton, 40 Mich. 666 Hudnut V. Gardner, 59 Mich. 341 Brigham v. Gurncy, 1 Mich. 349 Bull V. Brockway, 48 Mich. 523 Clark V. McGraw, 14 Mich. 139 638 Erroi!, Writ of § 56 court to reverse a judgment unless it is satislied that an error has been committed and that such error has done injustice, or may have been prejudicial, to the ap- pellant."^" It has been said ''^ that, while it is unques- tionably the duty of a party who complains of error to show its existence, it generally devolves upon the other party, on whose motion the error was committed, to satisfy the court that the complaining party was not injured by it,'^ and again '' that it is incumbent upon the appellant so to shape his case upon the record as to enable the court to see that the court below not only erred, but erred to his prejudice.''* This rule has now been established by statute which provides that ''no judgment or verdict shall be set aside or reversed, or a new trial be granted by any court in any civil case, on the ground of misdirection of the jury, or the improper admission or rejection of evi- dence, or for error as to any matter of pleading or pro- cedure, unless in the opinion of the court, after an ex- amination of the entire cause it shall affirmatively ap- pear that the error complained of has resulted in a mis- carriage of justice. ' ' ''^ Under this statute, it is proper Comstock V. Smith, 20 Mich. 33S; 70 Durfee v. Newkirk, 83 Mich. Fletcher Paper Co. v. City of 522. Alpena, 160 Mich. 462; Bartlett v. 71 Campau v. Traub, 27 Mich. 215. Jenkins, 150 Mich. 682; Hug^hes v. 72 This implies that prejudice is Detroit, etc., B. Co., 78 Mich. 399; presumed from error, -which is ad- Jackson V. Detroit, etc., R. Co., 161 mitted to be the rule in Gold v. Mich. 163; Rogers v. Fowler, 151 Detroit United Rv., 169 Mich. 178, Mich. 485; Johnson v. Grondin, 170 elting Detroit & Toledo Shore Line Mich. 447; Toledo, etc., R. Co. v. v. Campbell, 140 Mich. 384 and Johnson, 49 Mich. 148; Hanchett v. Churchill v. Judge, 56 Mich. 536. McQueen, 32 Mich. 22; Bowsher v. 73 Kieiiards v. Tozcr, 27 Mich. 451. Grand Rapids, etc., R. Co., 174 Mich. 74 This implies that prejudice is 339; Sheehan v. Dalrymple, 10 not presumed from error. Mieh. 239; English v. Caldwell, 30 75 Pub. Acts 1915, No. 89; Comp Mich. 362; Eaton v. Gladwell, 121 Laws 1915, § 14565; Sparks v. Lord, Mieh. 444; Eames v. Barber, 192 198 Mich. 420; Montgomery v Mich. 1 ; Martinson v. State Bank Montgomery 's Estate, 191 Mieh. (.1' Bolvicw, 137 Minn. 476. ::98: P.arras v. Barras, 191 Mieh. I 5() Error, Writ of 639 to afiinn a judgment on condition that appellee file a remittitur of the excess, where the judgment is other- wise coirect.'^ The act of the trial judge in urging the juiy to agree, because of the cost of the trial to the county and the parties, where they had announced their inability to agree after being out two days, was held, in one case, not a miscarriage of justice, even if preju- dicial error." Likewise an erroneous instruction as to burden of proof does not warrant a reversal where it is apparent that tliere has been no miscan-iage of justice." So where plaintiff by the expenditure of not to exceed eight hundred dollars within a reasonable time could have placed himself in statu quo, a judgment for thirty- five hundred dollars in his favor for breach of contract is a "miscaiTiage of justice."'® There is some conflict in the decisions of the courts of sister states as to whether error is to be presumed prejudicial. In this state, in 1873, the supreme court said: ''But while it is unquestionably the duty of a party who complains of error to show its existence, it generally devolves upon the other party, on whose mo- tion the error was committed, to satisfy the court that the complaining party was not injured by it.'"® In a later case, it was said that ''where the jury proceeds to verdict under an erroneous instruction, it should very clearly appear that the defeated party could not, in any view of tlie case, liave succeeded; otherwise prejudice must be presumed to follow the error. "*^ On the other hand, in case of an erroneous instruction, the court said 473; Snowden v. Detroit, etc, R. 78Barras v. Barras, 192 Mich. Co., 194 Mich. 87; People v. La- 584, r>92. hnala, 198 Mich. 144. 79 Wallace v. H. W. Noble & Co., 76 Sparks v. Lord, 198 Mich. 420. 203 Mieh. 58. See also Cox v. Ilolkobocr, 200 Mich. 80 Campau v. Traub, 27 Mich. 215, 86. 216. See also supra, this section. 77 Snowden v. Detroit, etc., R. Co., 81 Painter v. Lebanon Land Co., 194 Mieb. 87. 164 Mich. 260, 267. 640 Error, Writ of § 56 that "one alleging error must show that he was preju- diced by the erroneous ruling. ' ' ^^ One of the most common grounds for seeking a re- versal on a writ of error is alleged improper argument of counsel before the jury. Whether the judgment will be reversed because of improper argument is governed by no fixed rule,'' and generally the supreme court re- fuses to reverse on such ground although the argument is admittedly improper," at least where, on objection being made, the court instructs the jury to disregard the improper statement and counsel does not persist therein.'^ But if counsel persists in improper argu- ment which is in its nature prejudicial, a reversal is sometimes the result.'^ At any event, error cannot be alleged because of improper argument where no objec- tion is made thereto and no ruling obtained.®' Improper language of the judge in the presence of the jury, while it may be ground for reversal, is gen- erally held not so prejudicial as to require a reversal.'' 82 Granger v. Darling, 156 Mich. Mich. 532 ; Jackson v. Haverf ord 31, which is supported by Eichards Cycle Co., 194 Mich. 286; Rohbina V. Tozer, 27 Mich. 451. v. Magoon & Kimball Co., 193 Mich. 83 What constitutes improper ar- 200; Kasprzak v. Chapman, 197 gument, see Trial. Mich. 552; Rogers v. Ford, 188 Of course improper argument of Mich. 62; Crawl v. Dancer, 180 counsel is not ground for reversal Mich. 607; Spencer v. Johnson, 185 where it could not have affected the Mich. 85. See also Township of verdict. Holcomb v. Alpena Power Deep River v. Van Antwerp, 174 Co., 175 Mich. 500. Mich. 19. 84 Case v. Rudolph Wurlitzer Co., In one case, argument was held 186 Mich. 81. See also Collin v. not ground for reversal whore ob- Kittelberger, 193 Mich. 133, and jcction was sustained and the attor- Trial. ney asked no instruction from the Argument tending to enhance darn- court to disregard the argument, ages was not prejudicial where de- B. F. Goodrich Rubber Co. v. Sewell fendant's attorneys conceded that Cushion Wheel Co., 196 Mich. 600. if a legal liability was established 86 Solomon v. Stewart, 184 Micii. the verdict was not excessive. Bosek 506. V. Detroit United Ry., 175 Mich. 8. 87 See § 46, ante. 85 Goldman v. Detroit United Ry., 88 Murphy v. Manistee R. Co., 200 Mich. 543; Gallant v. Miles, 200 194 Mich. 595; Jolman v. Alberts, § 56 Error, Writ of 641 So the erroneous admission or rejection of evidence is not ground for reversal where not affecting the result, ®* and the same is true as to erroneous instructions to the jury or refusals to instruct.®'' Thus, the erroneous ad- mission of evidence is harmless where the question to which it relates is withdrawn from the jury.®^ So, of course, if a juror is excused for cause, any error in the court refusing to permit a question to be asked him on his voir dire examination is harmless.®^ In some states any reference to defendant being in- sured, whether in the argument to the jury, the examina- tion of witnesses, or in the examination of jurors on their voir dire, is reversible error. In other states, the mis- conduct ordinarily is held not ground for reversal. In Michigan the question has not been decided although in one case the irregularity in questioning a juror on his voir dire as to his agency for an insurance company was held waived by passing the jury for cause.®' Whether a reversal is required where a party is guilty of misconduct in the court room is governed by no fixed rule. In a late case, where the nervous system of plain- tiff was claimed to have been shattered by the accident which was the subject of the litigation, it appeared that shortly after her examination was finished loud scream- ing and shrieking was heard as coming from the cor- ridor, and a trained nurse then on the stand as a witness for plaintiff left the room at the request of plaintiff's counsel who said "This is what I feared." The court then properly instructed the jury to disregard anything 192 Mich. 365. See also Trial. 90 See Instructions to Jury. Attempt to coerce verdict, see 91 Bamlet Realty Co. v. Doff, 183 Holtquist V. O'Connell, 196 Mich. Mich. 694. 484. 92 William R. Roach & Co. v. 89 Thomas v. Bush, 200 Mich. 224; Blair, 190 Mich. 11. Edison Illuminating Co. v. Misch, 93 Snyder v. Mathison, 196 Mich. 200 Mich. 114; Horowitz v. Blay, 378. 193 Mich. 493. 1 Abbott— 41 642 Error, Writ of §56 taking place outside the court room and denied defend- ant's motion for a mistrial. The supreme court held that there was no miscarriage of justice and affirmed a judgment for plaintiff.^* § 57. Judgment in supreme court. If the supreme court, after considering the questions wliich liave been properly presented to it, finds no error to have been committed wliieh did, or may have, preju- diced tlie appellant, and of which he is in position to complain, it will affirm the judgment of the court below; but, if it finds such error to liave been committed, it will either reverse the entire judgment of the lower court or reverse it in part and affirm it in part. The judgment should be affirmed where a reversal will be ineffectual or not beneficial, as where the same judgment must be again rendered on a new trial.^^ And where the supreme court is divided in opinion, the judgment will l)e affirmed.^^ A judgment will not be reversed to enable a defendant to avail himself of a possible defense, which, although good in law, is without equity.^' A judgment for defendant should not be reversed because nominal damages were recoverable, where plaintiff could not recover costs on a judgment for nominal damages.^* 94Golf"lman v. Detroit United Ry., 90; People v. Ingham Circuit Judge, 200 Mich. 543. See also Gagush v. .'57 Mic-h. .'577. Hoeft, 198 Mich. 26.3. 97 Hill v. Rolibins, 22 Mich. 475. 95Altnian v. Fowler, 70 Mich. 57. 98 Stevens v. Yale, 113 Mich. 680; 96 Penniman v. Perce, 9 Mich. Haven v, Beidler Mfg. Co., 40 Mich. 509; Michigan Cent. R. Co. v. Lea- 286; Mears v. Cornwall, 73 Mich. hey, 10 Mich. 193; Marquette & O. 78. R. Co. V. Taft, 28 Mich. 289; Sands Failure to assess merely nominal v. Finan, 38 Mich. 616; Rose v. damages, where no question of per- French, 39 Mich. 136; Mitchell v. manent legal right is involved, is Mitchell, 49 Mich. 68; Nester v. not ground for reversal. Lewis t. Swift, 50 Mich. 42 ; Dutch Reformed Flint & P. M. Ry. Co., 56 Mich. Church Cases, 52 Mich. 329; 638. McPhcrson v. Ryan, 59 Mich. 33; Where i)laintiff can recover only Hoffman v. Harrington, 28 Mich. nominal damages, a judgment for de- § 57 Error, Writ of 643 Where a jiulgiiieiit or order is correct, it will not be reversed because the court gave a wrong or insufficient reason for its rendition.^^ Form of Judgment Affirming Judgment of Circuit Court At a session of the Supreme Court of the State of Michigan, held at the Supreme Court Eoom, in the City of Lansing, on the day of , A. D Present, the Honorable , Chief Justice. Associate Justices. (Title of cause.) The record and proceedings in this cause having been removed to this court by writ of error, issued to the circuit court for the county of , and the same and the matters in error assigned having been seen and in- spected and duly considered by the court, and it appearing to this court that, in such record and proceedings, and in the giving of judgment in said cir- cuit court, there is no error; therefore it is ordered and adjudged that the judgment of the said circuit court for the county of be, and the same hereby is, in all things affirmed, and that the defendant and appellee do re- cover of the plaintiff and appellant his costs, to be taxed, and that he have execution therefor. Form of Judgment Reversing Judgment of Circuit Court At a session of the Supreme Court of the State of Michigan, held at the Supreme Court Eoom, in the City of Lansing, on the day of , A. D Present, the Honorable , Chief Justice. Associate Justices. fendant will not be reversed on nominal damages only, a new trial error. Laetz v. Tierney, 15;i Mich. will not be awarded unless the pro- 279; International Text Book Co. tection of substantial rights require v. Schulte, l.')l Mich. 149. it. Lewis v. Flint & P. M. Ry. Co., Whore the case is such that on 56 Midi. fi.'JS. a new trial the party complaining 99 Crawley v. Studebaker Corp., of error would be entitled to recover 183 Midi. 462; Eamcs v. Barber, 644 Error, Writ of § 57 (Title of cause.) The record and proceedings in this cause having been removed to this court by writ of error, issued to the circuit court for the county of , and the same and the matters in error assigned having been seen and in- spected and duly considered by the court, and it appearing to this court that in said record and proceedings, and in the giving of the judgment in said circuit court for the county of , there is manifest error; therefore, it is ordered and adjudged by the court that the judgment of the said circuit court for the county of be, and the same hereby is, reversed and vacated, and that the said plaintiff and appellant do recover of the said defendant and appellee his costs, to be taxed, and that he have execution therefor, and that this cause be remanded to the court below for a new trial. § 58. When court will order new trial on reversal. If the judgment of the court below be reversed, tlie supreme court will sometimes enter a final judgment in the case and sometimes will order the case sent back to the lower court for a new trial. Whether it will do the one or the other depends upon the condition of the record before the supreme court. If the record is such that the court can determine the merits of the case, the court will dispose of it by entering final judgment, but, if the record is such that it affords the court no certain ground for ascertaining the merits, a final judgment will not be entered, but the case will be sent back for a new trial in the court below. Thus, where a case has been submitted in the court below upon an agreed state of facts, no new trial will be granted upon a reversal of the judgment in the supreme court.^ So, where the plaintiff's declaration discloses no cause of action against the defendant, a new trial will not be ordered.^ And, on the same principle, a 192 Mich. 1; Benson v. Bawden, 149 neous. Perry v. Michigan Alkali Mich. 584; Wright v. De Groff, 14 Co., 150 Mich. 537. Mich. 164; Black v. Miller, 75 Mich. 1 Harrington v. Hilliard, 27 Mich. 323. 271; Barman v. Carhartt, 10 Mich. Where the trial court properly 338; Brown & Brown Coal Co. v. directed a verdict, the Judgment will Antezak, 164 Mich. 110. not be reversed because the grounds 2 Altman v. Fowler, 70 Mich. 57 ; for directing the verdict were erro- Delashman v. Berry, 21 Mich. 516; § 58 Error, Writ of 645 new trial will not be granted where the count of the declaration on which the verdict rests presents no cause of action, even though the plaintiff might have recovered on some other count.* But it has been held that, where the declaration is fatally defective, if no error is as- signed on it, the court, in reversing the judgment, must go through the f oitq of ordering a new trial ; * and, though no recovery could be had on a declaration as it stands, but it is such that the trial court should have allowed an amendment if asked, a new trial must be awarded on reversal.^ But, where the record shows that, even if the declaration were sufficient, there can be no right of action against the defendant, a new trial will not be granted,® and likewise where no recovery can be had under the bill of particulars.' A new trial will not be granted where the court below has no jurisdiction to try the case,^ or where the case is such that, on a new trial, the party complaining of error would be entitled to recover nominal damages only, which would not carry costs, unless the protection of sub- stantial rights requires a new trial.* But where the court has no means of knowing how the jury made up their verdict, even though it be special verdict, a final judgment cannot be entered in the su- Dayton v. Fargo, 45 Mich. 153; Mich. 246; Allen v. Milwaukee Me- Webb V. Leominster Shirt Co., 101 chanics' Ins. Co., 106 Mich. 204; Mich. 136; In re Hiscoek's Estate, Rasch v. Bissell, 106 Mich. 106; 79 Mich. 536; Fisher v. Radford, Wadhams v. Western Assur. Co., 117 153 Mich, 385. Mich. 514; Mynning v. Detroit, etc., 3 Dayton v. Fargo, 45 Mich. 153. E. Co., 67 Mich. 677. 4 Hart v. Brockway, 57 Mich. 189. 7 Sheldon v. Rounds, 40 Mich. 6 Hamilton v. Powers, 80 Mich. 425. 313. 8 Bush V. Meacham, 53 Mich. 574. 6 People V. Morrison, 75 Mich. 30; » Lewis v. Flint, etc., R. Co., 56 Flagg V. Chicago, etc., R. Co., 96 Mich. 638; Haven v. Beidler Mfg. Mich. 30; In re Hiscoek's Estate, Co., 40 Mich. 286; Stevens v. Yale, 79 Mich. 536; Cobbs v. Hixson, 75 113 Mich. 680; Lactz v. Tierny, 153 Mich. 260; Harris v. Harris, 106 Mich. 279. 646 Error, Writ of § 58 preme court. ^" So, where a case tried by the court below without a jury comes to the supreme court without a finding of facts, final judgment cannot be entered in the supreme court, but there must be a new trial; " and the same course has to be pursued where the finding of the court or the verdict of the jury or the report of a referee does not cover the whole case.^^ The supreme court has no power to assess damages, and, where the amount to which the plaintiff is entitled is not liquidated by the finding and there is no basis of fact settled by the finding to regulate and fix the amount, a ncAV trial will be neces- sary." Where a finding or verdict is wholly different from what it would have been if erroneously rejected evi- dence had been admitted, the case must be re-tried." A judgment of reversal without remanding for a new trial, is ordinarily not proper, where the reversal is for insuffi- ciency of the evidence, ^^ or because of erroneous instruc- tions,^^ or where the reversal is for failure to prove facts necessary to warrant a default judgment, where an amended return might be filed curing the defect." Where the report of a referee is too defective to author- ize the entry of any judgment, a new trial will be granted." A new trial must be ordered where the su- preme court judgment would permit the plaintiff to re- 10 Johnson v. Ballou, 28 Mich. also Wiley v. Lovely, 46 Midi. 8'.i; 379; Baylis v. Cronkitc, .S9 Mich. Eanies v. Barber, 192 Mich. 1. 413. 14 Starkweather v. Martin, 28 llBiddlc V. Wendell, 37 Mich. Mich. 471. 452 ; Flint, etc., R. Co. v. Weir, 37 15 Montmorency County v. Put- Mich. 111. nam, 135 Mich. 111. 12 Briggs V. Brushaber, 43 Mich. 16 Schniid v. Village of Frankfort, 330; Carroll v. Grand Trunk E. Co., 134 Mich. 619. 19 Mich. 94; Power Specialty Co. 17 Anderson v. Cole, 114 Mich. V. Michigan Power Co., 190 Mich. 637. 699. 18 Carroll v. Grand Trunk R. Co., 13 Carmichael v. Northwestern 19 Mich. 94. Mut. Ben. Ass'n, 51 Mich. 494. See §59 Error, Writ op 647 cover ono-lialf more than he is entitled to.^^ Other de- cisions will be found in the note below. ^° § 59. Reversal in part. Where a judgment is severable, so that so much of it as is affected by error may be separated from that which is not, it may be reversed in part and affirmed in part.^^ Thus, where the judgment is for distinct things, as for damages and costs, there may be an affirmance in part, and a reversal as to the residue. So where the judgment improperly includes an amount whicli is certain, but is otherwise correct, the supreme court will reverse the judgment as to such amount, and affirm it as to the bal- ance.^^ And where a judgment for treble the damages is improper as to the amount of damages, inasmuch as only single damages should be awarded, it is proper to affirm the judgment for single damages.^' Excessiveness of the verdict is not ground for remanding for a new trial, where the items objected to can be stricken out, and a judgment rendered for those regarding which no error is shown.^* So appellee may remit any excess, and the judgment may thereupon be affirmed; ^® or the affirm- ance may be conditioned on remitting the portion of the recovery which is excessive.^^ Generally, a judgment cannot be affirmed as to one or more defendants, and reversed as to others.^^ This is so notwithstanding the 19 Baylis v. Cronkite, 39 Mich. 413. for the amount of his set-off. Jor- 20 A new trial will be granted on dan v. Walker, 154 Mich. 394. reversal on error where a question 21 Powers v. Irish, 23 Mich. 429. of fact raised by the evidence was 22 People v. Banhagel, 151 Mich. 40. not submitted to the jury. Bryan 23 Skeels v. Starrett, 57 Mich. 350. V. Straus Bros. & Co., 157 Mich. 49. 24 Sloman v. Mercantile Credit In an action on an express con- Guarantee Co., 112 Mich. 258. tract, where defendant's set-off was 26 McCorniick Harvesting Mach. allowed against the verdict for Co. v. McKee, 51 Mich. 426; Bres- plaintiff, and defendant appealed, nahan v. Nugent, 97 Mich. 359. but plaintiff did not, judgment on 26 McDonald v. Smitli, 139 Mich, reversal of the judgment for plain- 211. tiff will be rendered for defendant 27 Powers v. Irish, 23 Mich. 429; 648 Error, Writ of § 59 error sustained affected one of the defendants only, as, where one was an infant and appeared by attorney,^® or one was protected as a judicial officer while the other was liable,^' or judgment was rendered against two, one of whom had not been brought in by process or other- wise.^'' So strictly is the rule referred to applied that a release of errors by the party against whom the error has been committed will not bar the writ as to the others.^^ §60. Costs. The right to recover costs on a writ of error is entirely statutory and did not exist at common law.^*^ It has been said that a reversal of a judgment and an order for a new trial is in effect an allowance of the costs of the supreme court to the prevailing party; ^^ and that where the supreme court reverses or affirms without mentioning costs in the opinion, costs in favor of the pre- vailing party follow as a matter of course by a general direction to the clerk,^* § 61. Costs as discretionary. Under the statutes costs are discretionary where there is a reversal and a new trial is directed or where the Matteson v. Nathanson, 38 Mich. 32 Jeffery v. Hursh, 58 Mieh. 246, 377; Hall v. Calhoun Circuit Judge, 258. 123 Mich. 555. 33 Seymour v. Bruske, 140 Mich. 28 Powers V. Irish, 23 Mich. 429, 244, 253. citing Arnold v. Sandford, 14 Johns. 34 Jarrait v. Peters, 151 Mich. 99, (N. Y.) 424; Cruikshank v. Gard- where the court said: "While see- ner, 2 Hill (N. Y.) 333. tion 11271, Comp. Laws, leaves the 88 Powers V. Irish, 23 Mich. 429, costs within the discretion of the citing Harman v. Brotherson, 1 court in a case where a new trial Denio (N. Y.) 537. is ordered, by general direction to 30 Powers V. Irish, 23 Mich. 429, the clerk the journal entry always citing Richards v. Walton, 12 includes an award of costs in case Johns. (N. Y.) 434. of reversal or affirmance, unless di- 31 Powers v. Irish, 23 Mich. 429, rection to the contrary be given in citing Blanchard v. Gregory, 14 the opinion." Ohio 413. §62 Error, "Writ of 649 judgment is affirmed in part and reversed in part.'* Where the allowance of costs is discretionary, and the conduct of the prevailing party is obnoxious to a sense of justice, costs will not be allowed.^® So where there is a reversal and a new trial ordered, costs should be re- fused where the reversal is based on the ground that the result in the trial court was in the nature of a mistrial.^'' §62. When judgment reversed. By statute, if the judgment be reversed, the appellant will be entitled to recover costs, unless a new trial is ordered, in which case the costs are in the discretion of the court. If the judgment be reversed in part and affirmed in part, costs will be awarded to either party in the discretion of the court.^^ A reversal and order for a new trial are, in effect, an allowance of the costs of the su-preme court to the appellant.^® 35Jud. Act, ch. 47, §20; Comp. Laws 1915, §13701. See Ells v. Rector, 32 Mich, 379. Where point on which a reversal in part was ordered was not raised in the court below nor in the supreme court until the hearing was had, costs were refused, in Snell v. Eace, 78 Mich. 334. Where a judgment is reversed but a new trial ordered, and the rever- sal is because of the iniquity of the transactions out of which the claim arises, costs will not be awarded the appellant for being successful in a defense based on his own turpitude. Williams v. Guarde, 34 Mich. 82. 36 Russell v. North American Ben. Ass'n, 116 Mich. 699. 37 Demill v. Moffat, 45 Mich. 410 ; Watts V. Tittabawassce Boom Co., 47 Mich. 540 ; Rayl v. Hammond 's Estate, 95 Mich. 22. On a case made where the supreme court set aside the judgment be- cause of a mistrial, and ordered an- other trial, it refused to allow costs to either party. Adams v. Cham- pion, 31 Mich. 233; Armstrong v. Adams, 31 Mich. 236. 38Jud. Act, ch. 47, §20; Comp. Laws 1915, §13701; Powell v. Pierce, 168 Mich. 427. Where appellant obtains a sub- stantial reduction of the judgment, costs should be awarded him. Mac- Gillis V. Alcona County, 197 Mich. 40. For division of justices as to costs where judgment reversed in part, see Garlock v. Motz Tire & Rubber Co., 192 Mich. 665, 679. Appellant is entitled to costs on reversal although the ground for reversal was an act of the trial judge of his own motion in direct- ing a verdict. Hoak v. Kellogg, 146 Mich. 541. 39 See § 60, ante. 650 Error, Writ of § 62 However, this statute is not niaiidatoiy, it seems, and costs are not always awarded the appellant by the su- preme court on reversal even where no new trial is ordered.*" Generally, if appellant prevails unless ap- pellee remits a part of the recovery, costs are awarded ai)pellant.*^ Where no index is furnished, costs will not be awarded appellant on a reversal,*^ or at least no costs for the printing of the record." Where the judgment is reversed with costs and a new trial ordered, the appellant is entitled to tax only the costs which accrued in the supreme court. The costs in the court below, in such case, unless otherwise specially directed, abide the event of the new trial.** Where a new trial is ordered on reversal of a ijudgment in ejectment and the appellant is awarded the costs of both courts, this includes the costs of the supreme court and of the trial in the court below, but the costs of former trials, if there have been any, abide the event of the suit.*® Costs of both courts were allowed on reversal with a new trial where recovery was had on a declaration which made out no cause of action.*^ Where a judgment without any sup- port in the facts as found by a referee was reversed, the appellant was allowed the costs of both courts;*' and, where conflicting evidence was taken from the jury and a new trial became necessary in order that it might be passed upon by a jury, the reversal was with the costs of both courts.*® But where a judgment by default for the 40 Powell V. Pierce, 168 Mich. 43 Wcstfall v. Board of Water 427, 433, where the court said: Com 'rs, 93 Mich. 210. "The judgment is in all respects 44 Lester v. Sutton, 7 Mich. 329. reversed, and, as it cannot be said See also Singer Mfg. Co. v. Benja- that upon the points decided either min, 55 Mich. 330; Crittenden v. party has prevailed, neither will re- Schermerhorn, 35 Mich. 370. cover costs of this court." 46 Jeffery v. Hursh, 58 Mich. 246. 41 Allen v. Patrons', etc., Ins. 46 Smith v. Eoss, 51 Mich. 116. Co., 165 Mich. 18, 24. 47 Ives v. O'Brien, 33 Mich. 175. 42 McLclland v. A. P. Cook Co., 48 Singer Mfg. Co. v. Benjamin, 94 Mich. 528, dicta. oo Mich. 330. § 63 Error, Writ of 651 defendant's non-appearance in the court below was re- versed, the appellant was allowed to recover only the costs of the supreme court.*^ Where a judgment was set aside on the ground of a mistrial, no costs were awarded to either party; *® and, if a suit has been instituted in the name of a municipality without authority, no costs can ])e awarded against it upon reversal of a judgment in its favor.^^ § 63. When judgment affirmed. If the judgment be affirmed, or the writ of error be dis- continued or quashed, or the appellant be non-suited, the appellee will be entitled to recover costs." This statute, however, is not mandatory and numerous exceptions have been engrafted thereon by judicial decisions. For instance, where an important error has been amended or c-iired by a correction of the record in the trial court after the taking of the appeal.^^ So no costs are recoverable wlien the judgment of the court below is affirmed by an equally divided court; ^* and, in an amicable suit to test the validity of a statute, it is proper to deny costs to the prevailing party on affirmance of the judgment of the lower court." Costs were withheld, also, wliere there was error, but tlie error did not affect tlie result and the 49 Bagley v. Pridgeon, 42 Mich. Eule applied where appellant re- S.IjO. niits excess and thereafter appellee 50 Adams v. Champion, ?,l Mich. brings the case to a hearing. Hall 2.'!:'.; Demill v. Moffat, 4.'') Mich. 410; v. Concordia Fire Ins. Co., 90 Mich. Wiidey v. Farmers' Mnt. Fire Ins. 403. Co., 40 Mich. 264; Kinney v. Robin- 53 Rogers v. Andersjon, 40 Mich, son, 49 Mich. 247; Watts v. Tittaba- 290. wassee Boom Co., 47 Mich. rAO; 54 Whiting v. Butler, 29 Mich. Guerin v. Smith, 62 Mich. .169; Royl 122; Lndington v. Melendy, 44 Mich. V. Hammond's Estate, 95 Mich. 22. .'360; Clark v. Mitchell, 48 Mich. 51 City of Muskegon v. S. K. Mar- 200; Rose v. French, .'^9 Mich. i:?6; tin Lumber Co., 86 Mich. 62.5. Wright v. Smith, 44 Mich. .^eO. 52Jiid. Act, ch. 47, S21; Comp. 55 Smith v. First Nat. Bank, 17 Laws 191.'), § l.'}702. Mich. 479. 652 Error, Writ of § 63 judgment was affirmed; ^^ and, when the question before the court is a new one and has been dealt with on both sides under a misai)prehension of the statute, the parties were left to pay their own costs upon affirmance of the judgment." Costs w^ere withheld on the affirmance of a judgment for a plaintiff in ejectment where the plaintiff, while proving full title, had omitted to set forth his title as required by the statute; " and where both parties have sued out a writ of error and the judgment of the court below is affirmed, no costs are usually allowed.^^ The failure of the appellee to file a brief is also sufficient rea- son for not allowing costs.^° § 64. Damages for delay and vexation. If, upon a writ of error, the judgment be affirmed or the w^rit be discontinued or quashed or the appellant be non-suited, the supreme court may, in its discretion, assess damages for the delay and vexation, in addition to the costs which the appellee would otherwise be en- titled to recover ; ^^ and, if the judgment so affirmed was rendered after a verdict, the appellee may, in the discre- tion of the court, recover twice the amount of his taxed bill of costs.^^ However, such damages should not be awarded except in plain cases.^^ Where error was brought on a judgment taken by con- 56Finan v. Babeock, 58 Mich. 60 Brick v. Brick, 65 Mich. 230; 301. Hoffman v. Hoffman, 155 Mich. 328 ; 67 In re Smith's Estate, 60 Mich. Sawtells v. Howard, 104 Mich. 54. 136. eiJud. Act, ch. 47, §21; Comp. 58 Fisher v. Hallock, 50 Mich. 463. Laws 1915, § 13702. 59 Employees' Liability Assur. Additional attorney 's fee awarded Corp. V. Grand Eapids Bridge Co., for vexatious appeal in Toles v. 137 Mich. 351; Thayer v. City of Moddaugh, 106 Mich. 398. Grand Rapids, 82 Mich. 298. 62 Jud. Act, ch. 47, §22; Comp. When each party sued out writs Laws 1915, § 13703. of error and each failed, no costs 68 See In re Marx's Estate, 201 were awarded to either party. Ball Mich. 504, where, however, damages V. Watertown Fire Ins. Co., 44 Mich. were awarded. 137. I 64 Error, Writ of 653 fession on a promissory note, and the errors assigned consisted of mere irregularities in the entering of judg- ment, it was held a proper case for awarding damages to the appellee, on affirming the judgment, for the delay and vexation consequent upon the issuing of the writ of error.^* Where, upon affirming a judgment, it appears to the court that the errors assigned are frivolous, special damages will be awarded for the delay and vexation.®* So, where the case is evidently taken up merely for de- lay, the court in affirming the judgment will generally award an additional sum to the appellee by way of pen- alty for the vexatious appeal.^® But damages of this sort will be refused if the court is not satisfied of a want of good faith in bringing the writ of error; ^^ and, where •there has been a partial reversal, even for a small amount, the court will refuse damages as for a frivolous writ of error.®^ Ordinarily such damages will not be allowed unless applied for.®® Where the appeal is frivolous and vexatious, the su- preme court, on affirmance, may award compensatory damages ; ''" as where the appeal is groundless or oppres- 64 Waterman v. Tows, 7 Mich. 78. VOWagar v. Bowley, 109 Mich. 65 O'Connor v. Parker, 23 Mich. 388; Snow v. McCraeken, 107 Mich. 22; Schememann v. Rothfuss, 46 49; Fisher v. Dowling, 66 Mich. Mich. 453; Foran v. Allen, 67 Mich. 370; Maywood v. Logan, 78 Mich. 188; Leonard v. Armstrong, 73 135. Mich. 577; Buck v. Haynes' Estate, Costs may be allowed against an 75 Mich. 397. administrator individually where 66 Meyerfield v. Stettheimer, 20 he has vexatiously appealed. Showers Mich. 418; Toles v. Meddaugh, 106 v. Morrill, 41 Mich. 700. Mich. 398; Erickson v. Drazkowski, Where defendant in the lower 94 Mich. 551 ; Edison v. La Londe, court is erroneously denied his full 88 Mich. 162; O 'Hara v. Mernan, costs, but fails to appeal, and the 79 Mich. 222; Maywood v. Logan, case is affirmed on complainant's 78 Mich. 135. appeal, which is without merit, the 67 Storey v. Bird, 8 Mich. 316. payment of the costs may be im- 68 New Home Sewing Mach. Co. posed against him as damages for V. Bothane, 70 Mich. 443. the vexation. Ooodenow v. Curtis, 69 Underhill v. Muskegon Boom- 33 Mich. 505. ing Co., 45 Mich. 496. 654 Error, Writ of § 64 sive or tliore is clear proof of iiitontional wrong on the part of the party taking it.'^ Damages as for vexatious appeal may be awarded where the amount involved is small and the only substantial points of law in question have already been disposed of on a previous hearing.''^^ However, a i)arty is not ehargeal)le with costs as for a vexations a])i)eal, where the (piestions raised are not so easy of solution as to make it apparent that the apjiejd was taken for delay,'^^ since it must clearly appear that tlie appeal was taken merely for delay.''* The amount of additional costs, which may be im- posed, is discretionary, and such sums as twenty dol- lars,'^ twenty-five dollars,'^ fifty dollars,'' and one hun- dred dollars,'* have been allowed; and in one case it was held that even as high a sum as five hundred dollars was properly imposed for vexatious appeals.'^ § 65. On dismissal. If a writ of error is discontinued or quashed, or the appellant in error is nonsuited, ai)pellee is entitled to recover costs.*" But it is proper to refuse to allow costs on dismissal, where no motion was made for dismissal; *^ or where the writ was dismissed for defects in procedure arising from a stipulation of the parties.*^ But where there was ground for dismissing a writ of error when the motion was noticed, but it was denied because of the sub- 71 Hopkins Mfg. Co. v. Ruggles, 78 In re Marx's Estate, 201 Mich. .51 Mich. 474. 504. 72 Singer Mfg. Co. v. Benjamin, 79 Heath v. Waters, 40 Mich. 457. 59 Mich. 592. 80 Jud. Act, eh. 47, § 21 ; Comp. 73 In re George T. Smith Mi.l- Laws 1915, §1.3702. (llings Purifier Co., 86 Mich. 149. 81 Ideal Furnace Co. v. Inter- 74 Schmemann v. Rothfuss, 4fi national Molders' Union, 204 Mich. Mich. 453. 311; Maxfield v. Freeman, 39 Mich. 75Foran v. Allen, 67 Mich. 188. 64; First Nat. Bank v. Mellen, 45 76 Carver v. Detroit & S. Plank Mich. 413. Road Co., 126 Mich. 458. 82 Harris v. Sweetland, 48 Mich. 77 Port Huron & N. W. Ry. Co. 110. V. Callanan, 61 Mich. 22. § 67 Error, Writ of 655 sequent acts of a[)pellee, costs of the motion should be allowed the moving part}^^^ § 66. Costs on rehearing-, motion costs, items of costs, and taxation of costs. All these matters are treated of under tlie head of '* Supreme Court" for the reason that the governing rules seem to apply to all proceedings in the supreme court except where it is otherwise specially provided. § 67. Procedure after affirmance or reversal. When the supreme court has rendered its decision upon a judgment of the lower court, it is certified to the lower court by remittitur under the hand of the clerk and the seal of the court. In practice this is forwarded by the clerk directly to the clerk of the lower court, without request of the prevailing party. If the judgment is affirmed, the filing of the remittitur operates to terminate the stay of proceedings, if any. If the judgment is re- versed and a new trial granted, filing of the remittitur enables either party to notice the cause for trial, a step which cannot be effectually taken until a remittitur is filed.®* Reversal of a judgment ordering a new trial operates to vacate the judgment, and a new trial is neces- sary before any judgment can be enforced against a joint defendant who did not join in the writ of error.®^ De- crees of the supreme court are final and complete when entered on the journals.®^ After reversal and a new trial ordered, but before the remittitur has issued, the supreme court has no jurisdiction in ejectment to grant an order staying waste or to award costs to the |)arty resisting the motion therefor.®^ So where execution has 88 Woodmansie v. Hollon, 16 86Eyerson v. Eldred, 18 Mich. Mich. 378. 490. 84 Steven's Mich. Pr. §521. 87 Crane v. Rceder, 23 Mich. 92. 85 Hall V. Calhoun Circuit Judge, 123 Mich. 555. 656 Error, Writ of §67 been issued on a judgment of the supreme court, it is too late to apply to the supreme court to change the form of the judgment entry. *^ And a motion in the supreme court for a writ of restitution, based on the final decree thereof, will be denied where the record of the case has been returned to the lower court, since the power rests in the lower court.^® A remittitur issued upon the affirm- ance of a judgment restores to the trial court its jurisdic- tion of the cause, to make such order as may seem proper.^" Where a cause is remanded, after judgment, without directions, th'e trial court can exercise such powers in respect to the execution of the judgment as it would have if judgment had been entered by itself, and it has no further discretion.^^ The decision of the su- preme court is binding on the lower court on a second trial,^'^ and must be followed by the trial court.^' The effect of a reversal by the supreme court where a new trial is ordered is to send the case back to the court below to be tried in the usual and customary manner by the court, with or without a jury, as may thereafter be determined. The case, where tried before a referee the first time, does not again go before him. His powers and duties in the premises cease when he makes his report and a judgment is entered thereon. The parties may, if they desire, have the case again referred to the same referee, but either party has a right to demand that the issue be tried by a jury. Even a previous reference and trial before a referee under a stipulation will not cut off this right.®* The fact that a cause on a previous trial 88 Stoll V. Padley, 100 Mich. 404. Mynning v. Detroit, L. & N. R. Co., 89 Crawford v. Hoeft, 58 Mich. 1. 67 Mich. 677; Wheeler v. Meyer, SOEeynolds v. Newaygo Circuit 301 Mich. 465. Judge, 109 Mich. 403. 93 Wheeler v. Meyer, 101 Mich. 91 People V. Ingham Circuit 465. Judge, 37 Mich. 377. 94 Hopkins v. Sanford, 41 Mich. 92 O 'Neil V. Northern Assurance 243. Co. of London, 155 Mich. 564; Escape 657 was submitted on one of two theories does not preclude a recovery on a subsequent trial on the other theory.®' Where a judgment is entered against joint defendants and one severs to bring a writ of error, and on a second trial plaintiff again recovers judgment with no discon- tinuance as to the defendant not objecting, the new judg- ment must be entered against both.®^ ESCAPE The liability of sheriffs for the escape of prisoners committed to jail on civil process is expressly regulated by the Judicature Act which substantially re-enacts the statutes theretofore existing.^ The action against the sheriff may be in form either assumpsit or trespass on the case.^ So an action lies on the sheriff's bond, in a proper case, where there has been an escape.* Jail liber- ties are referred to hereafter.* Form of Count in Case Against a Sheriff for an Escape on a Capias ad Respondendum The plaintiff says: 1. That, heretofore, to wit, on , at , one C. D. was indebted to the said plaintiff, to wit, in the sum of dollars, upon certain causes of action which the said plaintiff then and there had against the said C. D. 2. That the said plaintiff for the recovery of the said indebt- edness, afterwards, to wit, on the day and year last aforesaid, sued out of the circuit court for the county of a writ of capias ad respondendum, directed to the sheriff of the county of , whereby the said plaintiff was commanded, in the name of the people of the state of Michigan, that he should take the said C. D., if he should be found in the bailiwick of the said sheriff, and keep him in his custody, until he should be discharged ac- cording to law, which said writ was made returnable on the day of 95Cooley v. Kinney, 119 Mich. Uud. Act, ch. 25, §§ 43-46; Comp. 377. Laws 1915, §§ 13021-13024. But plaintiff cannot adopt an 2Jud. Act, eh. 25, §§44, 45; entirely new and inconsistent theory. Conip. Laws 1915, §§ 13022, 13023. Connor v. Lake Shore, etc., K. Co., 3 People v. Gebhardt, 154 Mich. 168 Mich. 29. 504. 96 McPherson v. Bristol, 122 Mich. 4 See Jail Liberties. 354. 1 Abbott— 42 658 Escape , A. D 3. That afterwards to wit, on , at , in the county aforesaid, the said writ was delivered to the said S. T., who then, until and after the return of said writ, was sheriff of the county afore- said, to be executed according to law. 4. That, by virtue of said writ, the said S. T., as such sheriff, afterwards, and before the return of the said writ, to wit, on , and within his bailiwick, to wit, at , took the said C. D. by his body and kept him in his custody until the said de- fendant committed the grievance hereinafter mentioned. 5. That the said defendant afterwards, to wit, on , at , without leave and against the will of the said plaintiff, permitted the said C. D. to escape and go at large, and the said C. D. did then and there escape and go at large whithersoever he would, out of the custody of the said defendant. 6. That the said indebtedness is wholly unpaid and unsatisfied to the said plaintiff. 7. That the said C. D. did not appear in the said court according to the ex- igency of said writ. 8. That thereby the said plaintiff has been, and is, delayed and hindered in the recovery of his said indebtedness and is alto- gether likely to lose the same. 9. That thereby also the said plaintiff has lost the means of recovering his costs and charges by him expended in and about his suit, so commenced against the said C. D. as aforesaid, to wit, dollars. ESTATES See Executions (title of purchaser). ESTATES OF DECEDENTS See Probate Courts; Limitation of Actions; Executions; Executors AND Administrators. ESTOPPEL Estoppel is an affirmative defense notice of which must be given under a plea of the general issue as stated in the article on Pleading. A form apjjroved by the state bar association is as follows: ''The defendant says that the plaintiff' is estopped to say that the goods mentioned in the declaration are the property of the plaintiff, be- cause the goods were purchased by the defendant from one E, F. with the knowledge of the plaintiff who did not make any claim to the ownership of said goods and, by his silence, permitted and induced the plaintiff then and there to purchase the same." Evidence 659 Another Form To the said Plaintiff: You will please to take notice that, on the trial of this cause, the said defendant will give in evidence and insist, in his defense: 1. That the said plaintiff ought not to maintain his said action, because (Here state the mat- ter in estoppel). K. L., Attorney for Defendant. Tlioro may he an estoppel to allei^'e error in the su- preme court (see Error, Writ of), or to plead the statute of limitations (see Limitation of Actions) or to question an execution sale (see Executions). EVICTION See Executions; Ejectjient. EVIDENCE § '1. Scope of article. § 2. Inspection of persons and things in court. § 3. View. § 4. Comparison of handwriting. ^ 5. Proceedings to obtain admission of genuineness of papers. § 6. Notice to produce papers. § 7. When notice to produce not necessary. § 8. Effect of refusal to produce. § 9. Form and requisites of notice to produce. § 10. —When and where notice served. §11. When production of papers may be called for. § 12. Effect of production of papers pursuant to notice. § 13. Classification of writings with reference to rule excluding substitution of oral for written evidence. §14. Writings which law requires. § 15. Writings in which parties have embodied their contract § 16. Writings existence of which is in question. § 17. Oral evidence of facts evidenced by other writings. §18. Proof of laws and resolutions of state. § 19. Proof of written laws and resolutions of other states and countries. § 20. Proof of unwritten or common law of other states and countries. § 21. Proof of ordinances, etc., of municipalities. § 22. Public books and records as evidence. § 23. Proof of records and proceedings of state courts. § 24. Proof of records and proceedings of courts of other states and countries. 660 Evidence § 1 § 25. Proof of proceedings of justices of the peace. § 26. Of other states. § 27. Certificate of sale on execution. § 28. Proof of publication. § 29. Conveyances and instruments entitled to be recorded. § 30. When testimony of subscribing witness is required. § 31, Wills as evidence. § 32, Books of account as evidence. § 33. Statutory extension of principle. § 34. As dependent on aflSdavit, § 35. Affidavit of copartnership or association. Cross-References: Witnesses (competency and examination); Trial (objections to evidence, offers of proof, order of proof, etc.) ; Depositions; Subpoenas; Exceptions; Bill of Exceptions; Error, Writ of. § 1. Scope of article. The admissibility of evidence is not within the scope of a practice work. However, a few references to the common law rules governing parol evidence, etc., and to the statutes of this state fixing the mode of proving cer- tain things, is deemed not out of place. § 2. Inspection of persons and things in court. Evidence of this sort is commonly employed on the trial of actions for personal injuries, where there is a question as to the character and extent of the injuiy. In these cases, it is not error to allow the injured person to exhibit the injured portion of his body to the jury, un- less this would involve an indecent exposure of the per- son, which ought not to be allowed in a judicial proceed- ing.^ Upon the question whether the court has power to compel the injured person to submit to a physical ex- amination, the authorities are widely divergent, but the better rule would seem to be that courts have such gen- eral power, but must exercise it according to a sound 1 Barfoot v. White star Line, 170 igan United Rys., 154 Mich. 233; Mich. 349; Benson v. Raymond, 142 Logan v. Agricultural Society, 156 Mich. 357; Carstens v. Hanselman, Mich. 537. 61 Mich. 426; Fillingham v. Mich- § 2 Evidence 661 discretion, upon such terms and under such proper safe- guards as the circumstances of the particular case sug- gest as effectual to preserve the respective rights of all the parties concerned. Thus, it is held that the court may require a plaintiff suing for an injury to her arm to allow a physician to examine the arm in the presence of the jury.^ But where the examination of a part of the human body would shock the sense of propriety, if not of decency, the court should require the examination to be made by a competent person privately and apart from the jury, and then receive his testimony as to the condi- tions revealed to him.^ But even such private examina- tion is properly refused where the making of it would require the use of anaesthetics.* The court will allow exhibition of parts of the body to the jury when offered by the injured person in many cases where it would neither require such exhibition nor order the person to submit to a private personal examination, the test being, as indicated, whether the exhibition would be indecent. So, where the question was whether the plaintiff's broken leg had shriveled, he was allowed to ex- pose it to the jury as evidence of its condition.' And where the plaintiff claimed that an injury resulted in a swelling of the ankle and a cracking of the skin of the foot and that such condition continued up to the time of the trial, she was permitted to exhibit the parts to the jury that they might see their condition.® And, as parts of the human body may, within proper 2 Graves v. City of Battle Creek, B Langworthy v. Green Tp., 95 95 Mich. 266. Compare McKnight Mich. 93. V. Detroit & M. R. Co., 135 Mich. But where trial was more than 307, where refusal to compel wit- three years after the accident, exhi- ness not a party to exhibit his leg bition of limb was held improper was held proper. in absence of showing that it had 3 Brown v. Swineford, 44 Wis. not changed for the worse. French 282. V. Wilkinson, 93 Mich. 322. 4 Strudgeon v. Village of Sand 6 Edwards v. Village of Three Beach, 107 Mich. 496. Rivers, 96 Mich. 625. 662 Evidence § 2 limits, be shown to the jury, so also may other things, whether animate or inanimate. Thus, planks, stringers and other material taken from sidewalks, bridges and other structures, whose alleged defective condition is claimed to have caused the injurj^ are, when fully identi- fied, properly exhibited to the Jury."'' Sometimes experiments, 1)oth mechanical and chemi- cal, are alhnved to be perfor-med before the jury, })ut always under such restrictions and requirements as to exclude reasonable doubt of imposition.® But where the genuineness of a signature is in issue, the party cannot be required to write his name in court foi* purposes of com])arison.^ §3. View. In addition to the testimony of witnesses and the evi- dence afforded by w^ritings, anotlier class of the instru- ments of evidence consists of the ins]iection or view of objects, either in court or out of court, and has been aptly termed "natural evidence." An inspection has been said to be a substitution of the eye for the ear, and the same is true of a view. The term, "inspection," is usually applied to the critical observation of persons or things in court, while the word, "view," as used in this connection, ordinarily signifies an examination of places or objects out of court. The ancient practice of trial by inspection, whereby the judges of the court, by an actual examination of the thing involved in the issue, decided 7Lombar v. Village of East 8 People v. Mead, 50 Mich. 228; Tawas, 86 Mich. 14; McGrail v. City Ppojile v. Slack, 00 Mich. 448; Kin- of Kalamazoo, 94 Mich. 52; Hudson iiey v. Folkorts, S4 Mich. 616; V. Roos, 76 Mich. 17.3; Stevenson National Cash Register Co. v. Blu- V. Michigan Log-Towing Co., lO"? nienthal, 85 Mich. 464; People v. Mich. 412; Warren v. City Electric Deitz, 86 Mich. 419; Ulrich v. Peo- R. Co., 141 Mich. 298; Jaddatz v. j.le, :^9 Mich. 245. Grace Harbor Lumber Co., 194 Mich. 9 Fir.st Nat. Bank v. Robert, 41 27.3; Williams v. City of Grand Mich. 709. Rapids, 5.3 Mich. 271. § 3 Evidence 663 the dispute upon the testimony of their own senses, is now obsolete, but the examination of persons, phices and objects is resorted to in modem practice, both in crim- inal and in civil eases, not as a mode of trial as formerly, but as one of the most satisfactory means whereby the truth of an issue may be determined. On the same principle on which inspection is permitted of persons and things in court, the jury may be allowed to have a view of places and objects out of court. Testi- mony of localities is better understood by actual view and observation than by description, and may be resorted to even though changes have occurred or been made after the event in issue, for the changes can be as well ex- plained in one place as in the other.^° The power of the court to order a view existed at the common law, but in Michigan it has been provided by statute that, when any Court of record in which an issue of fact is tried by a jury deems it necessary that the juiy view the place or premises in question, or any property or thing relating to the issue between the parties, such court may, on the application of either party and the advancement of a sufficient sum- to pay the expenses of the jury and the officers attending them in taking the view, order such view to be had and direct the manner of elTecting it." The action of the court in permitting or refusing a view in the cases contemplated by the statute will not be ground for reversal on error, unless its discretion has been manifestly abused.^^ 10 Bedell v. Bcrkoy, 76 Mich. 435; Act, cli. 18, § 51; Conip. Laws 1915, People V. Auerbach, 176 Mich. 23; §12623. People V. Winney, 196 Mich. 347. 12 Dupuis v. Saginaw Valley Trac- 11 Jud. Act, ch. 18, § 50 ; Comp. tion Co., 146 Mich. 151 ; Stewart Laws 1915, § 12622. The expenses v. Cincinnati, etc., R. Co., 89 Mich, advanced by any party for the tak- 315; Richmond v. Atkinson, 58 ing of a view may be taxed like Mich. 413; Dupuis v. Saginaw Val- other disbursements in the suit, if ley Traction Co., 146 Mich. 151; the party advancing them prevails Leidlein v. Meyer, 95 Mich. 586; and becomes entitled to costs. Jud. Leonard v. Armstrong, 73 Mich. 664 Evidence § 4 § 4. Comparison of handwriting. Formerly the rule was that the use of papers for the purpose of comparison of handwriting is confined to such as belong in the cause ; " that where a paper is a part of the files in the case, it may be used as a standard of com- parison,^* but that comparison could not be made with writings admitted in evidence solely as a basis for com- parison," and that the signatures to unidentified docu- ments not in evidence were properly rejected when of- fered in evidence for the purpose of comparison.^^ But the Judicature Act provides that any specimen of hand- writing or signature of any person admitted or proved to the satisfaction of the jury to be genuine may be ad- mitted for the purpose of comparison, although not con- nected with the case or otherwise admissible, provided that where not connected with the case or not admissible for any other purpose, it was made before the contro- versy concerning which the suit or proceeding was brought arose. •^'^ Where a witness saw the maker sign the note in the possession of the witness, he may compare the signature with the note in suit and then give his opinion.^* But a party cannot, on cross-examination, be 577; Mulliken v. City of Corunna, cinnati, etc., R. Co., 89 Mich. 315. 110 Mich. 212; Michigan Air Line Effect of attorney going with R. V. Barnes, 44 Mich. 222; Toledo, jury, see Leidlein v. Myer, 95 Mich, etc., R. Co. V. Dunlap, 47 Mich. 586. 456; Withey v. Pere Marquette R. 13 In re Foster's Will, 34 Mich. Co., 141 Mich. 412; Stevenson v. 21 ; Vinton v. Peck, 14 Mich. 287. Michigan Log Towing Co., 103 Mich. 14 Brown v. Evans, 149 Mich. 429 ; 412; Jaddatz v. Grace Harbor Lum- Vinton v. Peek, 14 Mich. 287. ber Co., 194 Mich. 273. 15 Weidman v. Symes, 116 Mich. Rule applied where court refused 619. to permit jury to view automobile. 16 Taylor v. Taylor's Estate, 138 Jaddatz v. Grace Harbor Lumber Mich. 658. Co., 194 Mich. 273. 17 Jud. Act, eh. 17, §51; Comp. Motion for view of place of acci- Laws 1915, § 12539. dent made three years afterwards, 18 Worth v. McConnell, 42 Mich, where conditions had changed, held 473. properly refused in Stewart v. Cin- § 6 Evidence 665 required to write his name in court for purposes of com- parison by the jury, nor to introduce signatures made by him before the instrument in suit.^® § 5. Proceeding's to obtain admission of genuineness of papers. Either party to a suit may exhibit to the other or to his attorney, at any time before the trial, any paper material to the action and request an admission in writing of its genuineness. If the adverse party or his attorney fail to give the admission within four days after such request and the delivery to him of a copy of the paper, if such copy be required, and the party exhibiting the paper is afterwards put to expense in order to prove its genuine- ness and it is finally proved or admitted on the trial, such expense, to be ascertained and summarily taxed at the trial, must be paid by the party who refused the ad- mission, unless it is made to appear to the satisfaction of the court that there were good reasons for the refusal. An attachment or execution may be granted to enforce the payment of such expense.*^® § 6. Notice to produce papers. The familiar rule which requires the best evidence of which the case in its nature is susceptible and excludes secondary evidence until a proper effort has been made to secure the primary evidence is elementary.*^ The cases which most frequently call for the application of 19 First Nat. Bank v. Robert, 41 for the purpose of obtaining an Mich. 709. admission of its genuineness, in 20 Cir. Ct. Rule 35. order to save the necessity of prov- ing the same upon the trial of this Fonn of Admission of Genuineness t i i ^i i * 4.u *. i.u cause, I do hereby admit that the (Title of court and cause.) game is genuine. The annexed (or "within") E. F., Attorney, &c. paper writing, having been exhib- Dated, &c. ited to me by A. B., attorney for 21 Ferguson v. Hemingway, 38 the plaintiff (or "defendant") Mich. 159. 666 Evidence § 6 this rule are those which rehite to the substitution of oral for written evidence, which may be arranged into three classes, including*, in the first class, those instruments which the law requires should be in writing; in the sec- ond, those contracts wliicli the parties have put in writ- ing; and in the third, all othei' writings the existence of wliich is disputed and which are material to the issue. ^'^ Tlie fact tliat tlie primary and best evidence is not in the possession or control of the party who desires to use it, but in the hands of the adverse party, does not of itself warrant the introduction of secondary evidence in the place of it. In such case, it is required that notice be given to the adverse party or his attorney to produce the primary evidence for use on the trial, not that, on ]n*oof of such notice, the adverse party may be compelled to give evidence against himself, but to lay a foundation for the introduction of secondary evidence of the con- tents of the document or writing, by showing that the party offering the secondary evidence has done all in his power to produce the original. ^^ § 7. When notice to produce not necessary. There are some cases in which, although the adverse party is in possession of tlie original evidence, yet no notice to produce it is necessary. Thus, where the in- strument in the hands of the adverse party and that which the other party seeks to introduce are duplicate originals.^* So, where the instrument to be proved is itself a notice, such as a notice to quit or a notice of the dishonor of a bill of exchango,^^ or where, from the na- 22 1 Grpenl. Ev, see. 85. Subpoena duces tecum, see SUB- 23 See Fergiison v. Hemingway, poena s. .^.8 Mich. 1.59; Hood v. Olin, 80 24 1 Greenl. Ev. see. 561; Cleve- Mich. 296; Pangborn v. Continental land, etc., R. Co. v. Perkins, 17 Mich. Ins. Co., 62 Mich. 6:!8; Thompson 296. V. Richards, 14 Mich. 172; People 25 Falkner v. Beers, 2 Doug. 117; V. O'Neill, 107 Midi. 556. Mithifjan Land & Iron Co. v. Re- § 8 Evidence 667 ture of the case aiul the state of the pleadings therein, the adverse party has notice that the other party in- tends to charge him with the possession of tlie instru- ment.^^ And where the phiintiiT sues upon a contract, the defendant is entitled, without notice, to the produc- tion of all i)apers which form any part of the contract,^'' and, in general, where the form of the action or the pleadings give a party notice to be prepared to produce a writing, if necessary, no other notice to produce is re- quisite.^^ So, also, no notice is necessary where the ad- verse party has fraudulently obtained possession of the instrument, as where, after the service of a subpoena duces tecum, he received the paper from the witness in fraud of the subpoena.^* § 8. Effect of refusal to produce. A refusal, after reasonable notice, to produce a docu- ment in the possession of a party authorizes proof of its contents by secondary evidence ; ^° but it does not dis- pense with such proof as is obtainable, and does no-t al- low the tenor of the instrument to be made out by any- thing less than satisfactory evidence of all that is essen- tial. It does not prevent the contradiction of the second- ary evidence that may be introduced or allow a document conclusively to be proved by anything that a party may see fit to affirm to l)e a co]:)y of it. Dispensing with pri- mary evidence only changes tlie degree of evidence re- quired, l)ut in no way allows a case to be made out with- out proof or prevents counter proof.^^ The refused of a l)iihli('. Tp., ();1 Mich. 628; Holmes Kretsingcr, 17 Johns. (N. Y.) 29:5; Realty Co. v. Silcox, 194 Mich. 59. Ilotchkiss v. Mosher, 48 N. Y. 478. See also 2 Jones Evid. 296. 29 1 Greenl. Ev. sec. 561; 2 Tidd 26 Rose V. Lewis, 10 Mich. 48.'?. Pr. 80:?. 27DcWitt V. Prcscott, 51 Midi. 30 Moulton v. Mason, 21 Mich. 298. o64; Boglarsky v. Singer Mfg. Co., 28 Story v. Patten, .l Wend. (N. 65 Mich. 510. Y.) 486; Hammond v. Hopping, 1.'5 31 Moulton v. Mason 21 Mich Wend. (N. Y.) 505; Hardin v. 364. 668 Evidence § 8 party to produce a document when called for under a proper notice does not operate to estop him from after- wards introducing it in evidence as a part of his own case.^* § 9. Form and requisites of notice to produce. The notice must describe the writing demanded so as to leave no doubt that the party was aware of the par- ticular instrument intended to be called for. A notice calling for all the letters which passed between the par- ties or their agents between certain dates, relating to Ihe matter of a sale of goods, is too indefinite.^' There is no authority for making a drag-net out of such a notice. Therefore, for instance, a notice to produce all letters and papers from a certain date covering a period of five years, without indicating them either by date, subject or reference to any particular transaction, is too vague. A party who is prepared with secondary evidence knows what he wishes to prove, and lie should always give such notice as reasonably to enable the party notified to under- stand what is wanted.'* Form of Notice to Produce a Paper at the Trial (Title of court and cause.) Sir:— You will please to take notice that you are required to produce, on the trial of this cause, a certain paper writing, bearing date, etc., (describe the contents of the instrument in substance, as near as may be), or, in default thereof, parol evidence will be given of its contents. Dated, etc. Yours, etc., J. K., Plaintiff 's Attorney. To K. L., Defendant 's Attorney. 32 Moulton V. Mason, 21 Mich. 33 Julius King Optical Co. v. 364. Contra, Tyng v. United States Treat, 72 Mich. 599. Submarine & Torpedo Boat Co., 1 34 Arnstine Bros. & Micr v. Treat, Hun (N. Y.) 161, 60 N. Y. 644. 71 Mich. 561. § 11 Evidence 669 § 10. When and where notice served. As to the time and place of the service of a notice to produce, no precise rule can be laid down except that it must be such as to enable the party, under the known cir- cumstances of the case, to comply with the call. Gener- ally, if the party dwells in another town than that in which the trial is had, a service on him at the place where the trial is had or after he has left home to attend the court is not sufficient; but, if the party has gone abroad, leaving the cause in the hands of his attorney, it will be presumed that he left with the attorney all the papers material to the cause, and the notice should therefore be served on the latter.^* Where parties reside at a dis- tance from the place of trial, a notice to counsel to pro- duce papers which will only allow time to communicate with clients by telegraph is insufficient.^^ The better practice is to give notice to produce before entering upon the trial, but the reasonableness and sufficiency of the notice depends upon the circumstances of each case and is a matter for the court.^''^ A notice served upon the same day upon which the instrument is to be produced is usually insufficient to justify the introduction of secondary evidence, but the circumstances may be such as to render such notice sufficient.^* If a paper is present in court, notice to produce it may be given at the trial.*' § 11. When production of papers may be called for. The regular time for calling for the production of pa- pers is not until the party who requires them has entered upon his case. Until this time, the other party may re- 35 1 Greenl. Ev. see. 562. 88 Pitt v. Emmons, 92 Mich. 542 ; 86 De Witt V. Prescott, 51 Mich. Mortlock v. Williams, 76 Mich. 568. 298; Julius King Optical Co. v. 39 Anon., Anth. N. P. (N. Y.) Treat, 72 Mich. 599. 273. 37 Hansclman v. Doyle, 90 Mich. 142; Muir v. Kalamazoo Corset Co., 155 Mich. 624. 670 Evidence § 11 fuse to produce them, and no cro8S-exaniination as to their contents is permitted. § 12. Effect of production of papers pursuant to notice. The production of papers upon notice does not make them evidence in the cause, unless the party calling for them inspects them so as to become acquainted with their contents, in which case the English rule is that they are admitted as evidence for both parties; but, in the American courts, the rule on this subject is not uniform." In ^Michigan, the rule seems to be that the mere produc- tion of papers pursuant to notice and the inspection of them by the party calling for them do not render them evidence for either party, and that they are not evidence for either party until introduced by one or the other.*^ § 13. Classification of writings with reference to rule ex- cluding substitution of oral for written evidence. It is a general rule that, where written evidence of a fact exists, oral evidence cannot be substituted for it. And for the elucidation of this important principle, which indeed is only a particular application of the elementary rule which requires the best evidence of which the case in its nature is susceptible, written evi- dence may be arranged into three classes, as follows: (1) Those instruments which the law requires should be in writing, (2) those contracts which the parties liave put in writing, and (3) all other writings the existence of which is disputed and which are material to the issue.*'* § 14. Writings which law requires. In the first place, oral evidence cannot be substituted for any instrument which the law requires to be in writ- 40 Calvert V. Flower, 7 Car. & P. « Hulbcrt v. Haniinoiul, 41 Mich. 386; Loug v. Drew, 114 Mass. 77; o4.'5 ; Moulton v. Mason, 21 Mich. Blake V. Euss, 33 Me. 360; Ellison 364. V. Ciuser, 40 N. J. L. 444. « i Greenl. Ev. sec. 85. § 15 Evidence 671 ing, such as records, public documents, official examina- tions, deeds of conveyance of lands, wills other than nuncupative, promises to pay the debt of another and other writings mentioned in the statute of frauds.*' The fact that the paper or entry belongs to a public office does not open the door to parol evidence." Even the admis- sion of tUe fact by a party, unless solemnly made as a substitute for other proof, does not supersede direct proof of matter of record by which it is sought to affect him. But wliere the record or document appointed by law is not part of the fact to be proved, but is merely a collateral or subsequent memorial of the fact, such as the registry of marriages and births and the like, it has not this exclusive character, and any other legal proof is admitted.*' § 15. Writing's in which parties have embodied their contract. In the second place, oral proof cannot be substituted for the written evidence of any contract which the par- ties have put in writing.*^ Here the written instrument 48 Attorney General v. Rice, 64 v. Filer, 80 Mkh. 67; Wade v. Mich. 385; Auditor General v. Stvachan, 71 Mich, 459; Walsh v. Menominee County Sup'rs, 89 Mich. Martin, 69 Mich. 29; Seckler v. 552; Black v. Miller, 75 Mich. 323; Fox, 51 Mich. 92; Kelsey v. Cham- Toliver v. Brownell, 94 Mich. 577; beilain, 47 Mich. 241; Stevens v. Holmes v. Cole, 95 Mich. 272; De- Oaks, 58 Mich. 343; Hunt v. Thorn, rosia v. Loree, 158 Mich. 64; Lynch 2 Mich. 213; Johnson v. Sutherland, V. Kirby, 36 Mich. 238; Clark v. 39 Mich. 579; Finan v. Babcock, Holmes, 1 Doug. 390; Cowley v. 58 Mich. 301; Coots v. Farnsworth, Harrisville Tp. School District, 130 61 Mich. 497; Savereool v. Farwell, Mich. 634; Case v. Dean, 16 Mich. 17 Mich. 308; Martin v. Hamlin, 12. 18 Mich. 3.54; Carney v. Hotchkiss, 44 People V. Lambert, 5 Mich. 349. 48 Mich. 276; Skeels v. Starrett, 45 Black V. Miller, 75 Mich. .S23; 57 Mich. 350; Cline v. Hubbard, 31 Munro v. Meech, 94 Mich. 596. Midi. 237; Bearss v. Preston, 66 46 Kulenkamp v. Oroff, 71 Midi. Mich. 11; Baker v. Morehouse, 48 675; Nichols v. Crandall, 77 Mich. Mich. 3.34; Hyde v. Tenwinkel, 26 401; Hoag v. Graves, 81 Mich. 628; Mich. 93; Grashaw v. Wilson, 123 Wisconsin Fire & Marine Ins. Co. Mich. 364; Gregory v. Village of 672 Evidence § 15 may be regarded, in some measure, as the ultimate fact to be proved, especially in the case of negotiable securi- ties; and, in all cases of written contracts, the writing is tacitly agreed upon by the parties themselves as the only repository and the appropriate evidence of their agree- ment. The written contract is not collateral, but is of the very essence of the transaction.*' The rule applies only in suits between the parties to the instrument or their privies, and does not affect third persons. It is directed against the admission of any other evidence of the language employed by the parties in making the contract than that which is furnished by the instrument itself. The writing, it is true, may be read by the light of the surrounding circumstances in order more perfectly to understand the intent and mean- ing of the parties; but, as they have constituted the writ- ing to be the only outward and visible expression of their meaning, no other words are to be added to it or sub- stituted in its stead." Lake Linden, 130 Mich. 368; Sheley v. Comstock, 144 Mich. 516. V. Brooks, 114 Mich. 11; Kalamazoo 47 M, Eumely & Co. v. Emmons, Novelty Works v. Macalister, 40 85 Mich. 511; Sheley v. Brooks, 114 Mich. 84; Wonderly v. Holmes Lum- Mich. 11; Phelps v. Abbott, 114 ber Co., 56 Mich. 412; Highstone v. Mich. 88. Burdette, 61 Mich. 54; Jones v. 48 Smith v. Van Blarcom, 45 Mich. Phelps, 5 Mich. 218; Johnson v. 371; Hopkins v. Sanford, 41 Mich. Cranage, 45 Mich. 14; Eough v. 243; Lamb v. Story, 45 Mich. 488; Breitung, 117 Mich. 48; Mouat v. Fire Ins. Ass'n v. Wickham, 141 Montague, 122 Mich. 334; Cook v. U. S. 564; Peabody v. Bement, 79 Bell, 18 Mich. 387; National Cash Mich. 47; Brigham v. Martin, 103 Eegister Co. v. Blumenthal, 85 Mich. Mich. 150; Sheley v. Brooks, 114 464; Hallett v. Gordon, 122 Mich. Mich. 11; Kleis v. Niagara Ins. Co., 567; Hutchinson v. Hutchinson, 102 117 Mich. 469; Brown v. Schiappa- Mich. 635; Citizens' Sav. Bank v. casse, 115 Mich. 47; Hutchinson v. Vaughan, 115 Mich. 156; First State Hutchinson, 102 Mich. 635; Phelps Sav. Bank v. Webster, 121 Mich. v. Abbott, 114 Mich. 88; Baird v. 149; Central Sav. Bank v. O'Con- Grand Rapids School Furniture Co., nor, 139 Mich. 82; Michigan Shingle 98 Mich. 457; Eaton v. Gladwell, Co. V. London, etc., Ins. Co., 91 108 Mich. 678; Cleveland Refining Mich. 441; Ferguson v. Arthur, 128 Co. v. Dunning, 115 Mich. 238; Mich. 297; Detroit Shipbuilding Co. Herpel v. Herpel, 162 Mich. 606; 15 Evidence 673 The rule, however, does not exclude the admission of parol evidence to show that the instrument is altogether void or that it never had any binding force or to show fraud or failure of consideration ; *^ nor does the rule apply where the original contract w^as verbal and entire, and a part only of it was reduced to writing; ^^ nor where a new and distinct agreement is made upon a new" con- sideration, wlietlier as a substitute for the original agree- ment or in addition to and beyond it; ^^ nor to show that, l)y a subsequent agreement, the time or performance was enlarged or the place of performance changed.*'' So, also, parol evidence may be admitted to explain an am- biguity in the language of the instrument;" to explain Goebel v. Look, 153 Mieh. 204; In- ternational Text-Book Co. v. Mar- vin, 166 Mieh. 660; Superior Drill Co. V. Carpenter, 1.50 Mich. 262; Hail V. Duplex-Power Co., 168 Mich. 6M; Chicago, etc., R. Co. v. Lane, 150 Mich. 162; Sturgis v. Detroit, etc., E. Co., 166 Mich. 2.31; Rumsey V. Fox, 158 Mieh. 248; Sheffler v. Sherman, 167 Micli. 42; R. L. Polk Printing Co. v. Smedley, 155 Mich. 242; Union Trust Co. v. Detroit River Transit Co. 162 Mich. 670; Mishler v. International Harvester Co., 188 Mich. 104; Wolf v. Me- gantz, 184 Mich. 452; Johnson v. O'Neill, 181 Mich. 326. 49 Jennison v. Stone, 33 Mich. 99 ; Gibson v. Pelkie, 37 Mich. 380; Suth- erland v. Crane, 1 Walk. Ch. 523; Chambers v. Livermore, 15 Mich. 381; Match v. Hunt, 38 Mich. 1; Groesbeek v. Seeley, 13 Mich. 329; Fire Ins. Ass'n v. Wickham, 141 U. S. 564; Kulenkamp v. Groff, 71 Mieh. 675; Macomb v. Wilkinson, 83 Mich. 486; Kranich v. Slierwootl, 92 Mich. 397; Peck v. Jennison, 99 Mich. 326; Shrinii)tion & Sons v. 1 Abbott— 43 Netzorg, 104 Mich. 225; Ruch v. Ruch, 159 Mich. 231; Highstone v. Burdette, 61 Mich. .54; Eckler v. Alden, 125 Mieh. 215; Rambo v. Patterson, 133 Mich. 655; Van Houten v. Metropolitan Life Ins. Co., 110 Mich. 682. 50 Blackwood v. Brown, 34 Mieh. 4; Wisconsin Marine & Fire Ins. Co. Bank v. Manistee Salt & Lum- ber Co., 77 Mich. 76; National Cash Register Co. v. Blumenthal, 85 Mich. 464; Stahelin v. Sowle, 87 Mieh. 124; Hutchinson Mfg. Co. v. Pinch, 107 Mich. 12; Electric Appliance Co. v. Standard Electrical Co., 151 Mich. 662; Obenaner v. Solomon, 151 Mich. 570; Potter v. Shields, 174 Mich. 121. 51 Summers v. Wagner, 87 Mich. 272. 52 Freese v. Arnold, 99 Mich. 13; Town V. Jepson, i:'.3 Mich. 673; Mouat V. Bandet, 123 Mich. 345. 53 Kendrick v. Beard, 81 Mich. 182; Wickes Bros. v. Swift Elec- tric Co., 70 Mich. 322; Germain v. Central Lumber Co., 116 Mich. 245; Seckler v. Fox, 51 Mich. 92; Powers 674 Evidence § 15 the meaning of particular words ; " to show the nature or identity of the subject-matter to which the instrument refers ; ^* and to show the known and established usage respecting the subject to which the contract refers.*^ § 16. Writing-s existence of which is in question. In the third place, oral evidence cannot be sub- stituted for any writing, the existence of which is dis- puted, and which is material either to the issue between the parties or to the credit of witnesses, and is not merely the memorandum of some other fact." § 17. Oral evidence of fa,cts evidenced by other writings. But when the writing docs not fall within either of these three classes, there is no ground for excluding oral evidence. Thus, if a written communication be ac- companied by a verbal one, the latter may be received as independent evidence, though not to prove the con- tents of the writing or as a substitute for it. And the pay- ment of money may be proved by oral testimony, though a receipt be taken; and, in an action for conversion, it is admissible to prove a verbal demand of the goods, al- though a demand in writing was made at the same time." And parol evidence is admissible to show that a bill of sale absolute on its face was intended to operate as a V. Hibbard, 114 Mich. 533; Stur- Williams v. Walsh Mfg. Co., 169 gis V. Detroit, etc., R. Co., 166 Mich. Mich. 676; Chase v. Ainsworth, 135 231; Dunham v. W. Steele Packing Mich. 119. & Provision Co., 100 Mich. 75 ; 55 Knickerbocker v. Wilcox, 83 Baker V. Baird, 79 Mieh. 255; Greg- Mich. 200; Tuthill v. Katz, 163 ory V. Village of Lake Linden, 130 Mich. 618; Brittson v. Smith, 165 Mich. 368. Mich. 222. 64 Preston Nat. Bank v. Geo. T. 56 Obenauer v. Solomon, 151 Mich. Smith Middlings Purifier Co., 102 570 ; Saginaw Milling Co. v. Schram, Mich. 462; Christopher v. Hech- 186 Mich. 52. heimer, 127 Mich. 451; MacKinnon 57 1 Grccnl. Ev. sec. 88. Boiler & Machine Co. v. Central 68 Title Guaranty & Surety Co. v. Michigan Land Co., 156 Mich. 11; Aetna Indemnity Co., 167 Mich. Steele v. Kellogg, 163 Mich. 132; 535. § 19 Evidence 675 mortgage,^^ and that a deed purporting to be an absolute conveyance was intended as a mortgage.^"' § 18. Proof of laws and resolutions of state. The printed copies of the constitution, laws and reso- lutions of this state, whether of a public or private na- ture, which are published under the authority of the government are admitted as sufficient evidence thereof in all courts and in all proceedings within this state.^^ § 19. Proof of written laws and resolutions of other states and countries. Printed copies of the constitution, laws and resolu- tions of any other of the United States or any territory thereof or of any foreign state, if purporting to be pub- lished under the authority of the respective govern- ments, or if commonly admitted and used as evidence in their courts, will be admitted in all courts and in all proceedings within this state as prima facie evidence thereof; and the courts of this state may also take judi- cial notice thereof without their formal introduction in evidence.®^ 59 Seligman V. Ten Eyck 's Estate, 62 Jud. Act, eh. 17, §25; Comp. 74 Mich. 525; Fuller v. Parrish, Laws 1915, §12513; Morse v. 3 Mich. 211; Picard v. McCormick, Hewitt, 28 Mich. 481; People v. 11 Mich. 68; Pinch v. Willard, 108 Lambert, 5 Mich. 349; People v. Mich. 204; Buhl Iron Works v. Calder, 30 Mich. 85; Wilt v. Cut- Teuton, 67 Mich. 623. ler, 38 Mich. 189; Rice v. Rankans, 60 Emerson v. Atwater, 7 Mich. 101 Mich. 378; Dawson v. Peterson, 12; Barber v. Milner, 43 Mich. 248; 110 Mich. 431; People v. McQuaid, McArthur v. Robinson, 104 Mich. 85 Mich. 123. As to the former 540. Jeffrey v. Hursh, 49 Mich. 31; rule, see Worthington v. Hanna, 23 Stevens v. Hulin, 53 Mich. 93 ; Kel- Mich. 530 ; Great Western R. Co. v. logg V. Northrup, 115 Mich. 327; Miller, 19 Mich. 305; People v. Carveth v. Winegar, 133 Mich. 34. Lambert, 5 Mich. 349. 61 Jud. Act, ch. 17, § 24 ; Comp. Laws 1915, §12512; Wilt v. Cutler, 38 Mich. 189. 676 Evidence § 20 § 20. Proof of unwritten or common law of other states and countries. The unwritten or common law of any other state or tei'ritory of the United States, or of any foreign state or country may be proved as facts by parol evidence; and the books of reports of cases adjudged in their courts may also be admitted as cvick'uce of such law; and the courts of this state may also take jndicial notice there- of.*"^ The rule formerly was that the common hiw as it exists in this state would be presumed to prevail in an- other state or foreign country, in the absence of proof to the contrary.^* § 21. Proof of ordinances, etc., of municipalities. Courts of general jurisdiction, as distinguished from purely municipal courts, w^ili not take judicial notice of municipal ordinances and resolutions.^® Whenever it is necessary to prove any of the laws, resolutions, regu- lations or ordinances of any incorporated village or city in tliis state, they may be read in all courts and in all proceedings (1) from a record thereof kept by the clerk, (2) from a copy of the ordinance or of the record thereof certified by the clerk under the corporate seal of the vil- lage or city, (3) from a printed copy jnirporting to be published by authority of the council or board of trus- tees in a newspaper publislied in the viUage or city, or (4) from any volume of ordinances j)urp()rting to have been printed by authority of the council or board of trustees. In such cases, it is not necessary to i)rove also the enactment, publishing or any other thing concerning the sanie.^*^ 63,Jucl. Act, eh. 17, §27; Comp. v. Loomis, 106 Mich. 250. Laws 1915, !5 12515. 65 People v. Qiiider, 172 Mich, 64TIutchin.s v. Kimmell, 31 Mich. 280. 1.3.',; High's Appeal, 2 Doug. 515; 66 J ml. Act, eh. 17, §26; Comp. Crane v. Hardy, 1 Mich. 56; Ellis Laws 1915, §12514. V. Maxson, 19 Mich. 186; People § 23 Evidence 677 § 22. Public books and records as evidence. Books kept l)y persons in pnblic ofliee, in wliicli tlie}^ are required, either by statute or the nature of their ofiice, to record particnhir transactions occurring in the course of their public duties and under their personal ob- servation, are admissible in evidence on account of the extraordinary confidence reposed in them from their having- been made by authorized and accredited agents appointed for the purpose, as well as from the publicity of their subject-matter. When the books themselves are produced, tliey are received as evidence without further attestation. But they must be accompanied by proof that they come from the proper repository.^''' By statu- tory provision, copies of all papers, records, entries and documents required by law to be filed by any public officer in his office or to be entered or recorded therein and' duly filed, entered or recorded according to law, cer- tified by such officer to be a true transcript compared by him with the original in his office, are evidence in all courts and proceedings in like manner as the originals would be if ijroduced.*' § 23. Proof of records and proceedings of state courts. Under the system established by the statutes and the practice of the courts in Michigan, a connnon law record of a judgment is not necessary. The fdes and journal entries are a substitute for the common law record and constitute the record itself. ^^ They are competent evi- dence to prove a judgment, and, for that purpose, are admissible not only in the court whose records they are, 67 1 Greenl. Ev. sec. 485. v. Kccslcr, .'56 Mu-li. 69; Huntoon v. 68Jud. Act, ch. 17, §19; Coni]). O'Brien, 79 Mich. 227. Laws 1915, §12507; HofTman v. 69 Norvell v. McHenry, 1 Mich. Pack, Woods & Co., 114 Mich. 1; 227; Crane v. Hardy, 1 Mich. 56; Sheldon v. Merrill, 69 Mich. 156; Keiiyon v. Baker, 16 Mich. 373; Murphy v. Cady, 145 Mich. 33; Bills Emery v. Wliitwell, 6 Mich. 474. 678 Evidence § 23 but also in all the other courts of this stated" If the files have been lost, the calendar entries may be introduced in evidence to show the steps that have been taken in a case.'^ By virtue of the statute, the copies of the files and entries, duly certified, may be used as evidence in like manner as the original files and entries.'^ A copy of any order, judgment or decree of any court of record in this state, duly authenticated by the cer- tificate of the judge or clerk of the court under the seal of the court, is admissible in evidence in any court of this state and is prima facie evidence of the jurisdiction of the court over the parties, of all facts recited therein and of the regularity of all proceedings prior to and including the making of the order, judgment or decree.'^ § 24. Proof of records and proceedings of courts of other states and countries. The records and judicial proceedings of any court in the several states and territories of the United States or of any foreign country are, by statutory provision, ad- mitted in evidence in the courts of this state upon being authenticated by the attestation of the clerk of such court, with the seal of the court annexed or of the officer in whose custody such records are legally kept, with the seal of his office annexed.'* And copies of such records and proceedings in the courts of a foreign country may also be admitted in evidence upon due proof (1) that the copy offered has been compared by the witness with the original and is an exact copy of the whole of such original, (2) that such original was in the custody of the 70 Prentiss v. Holbrook, 2 Mich. Laws 1915, § 12506. And see Jud. 372; Crane v. Hardy, 1 Mich. 56. Act, ch. 17, §29; Comp. Laws 1915, TlNorvell v. McHenry, 1 Mich. §12517. 227. 74 Jud. Act, ch. 17, §15; Comp. 72 Jud. Act, ch. 17, §19; Comp. Laws 1915, §12503; Capling v. Laws 1915, § 12507. Herman, 17 Mich. 524. 78 Jud. Act, ch. 17, §18; Comp. §25 Evidence 679 clerk of the court or other officer legally having charge of the same, and (3) that such copy is duly attested by a seal, which shall be proved to be the seal of the court in which such record or proceeding shall be.'* And proof of any record or judicial proceeding of the courts of any foreign country may also be made accord- ing to the rules of the common law.''^^ The usual modes of authenticating foreign judgments are either (1) by an exemplification of a copy under the great seal of a state, or (2) by a copy proved to be a true copy by a wit- ness who has compared it with the original, or (3) by the certificate of an officer properly authorized by law to give a copy, which certificate must itself also be duly authenticated. If the copy is certified under the hand of the judge of the court, his handwriting must be proved. If the court has a seal, it ought to be affixed to the copy and proved. And if it is proved that the court has no seal, it must be shown to possess some other requisites to entitle it to credit. If the copy is merely certified by an officer of the court, without other proof, it is inadmis- sible.'^ § 25. Proof of proceedings of justices of peace. The original entry of any judgment or other proceed- ing, or a transcript from the docket of any justice of the peace of any judgment had before him, of the proceed- ings in the cause previous to such judgment, of the exe- cution issued thereon, if any, and of the return to such execution, if any, when certified by the justice having control of the docket, is evidence in all courts of this state to prove the facts stated in such original or in such transcript.'^ When the judgment is entered in the 76Jua. Act, ch. 17, §16; Comp. 78 Jud. Act, ch. 17, §30; Comp. Laws 1915, §12504. Laws 1915, §12518; Holcomb v. 76Jud. Act, ch. 17, §17; Comp. Tift, 54 Mich. 647. Laws 1915, § 12505. The docket entries to and includ- 77Capling V. Herman, 17 Mich. ing a judgment in an attachment 524. suit must be supplemented by proof 680 Evidence . § 25 docket, it cannot be proved by the parol evidence of the justice of the contents of the docket. The docket is the best evidence of the judgment; but, if the judgment has not been entered in the docket, the minutes or memo- randa of the justice, made at the time of giving the judg- ment and filed with the papers in the cause, when proved by the justice, are competent evidence.''^ A transcript of a justice's judgment, not ceitifiod, may bo i)r()ved by the testimony of the justice. *° § 26. Of other states. The official certificate of any justice of the peace within any other state of the United States of the proceedings and judgment in any case before him as such justice, with the certificate of the clerk of any court of record in the county or district in which the justice has executed his office, attested by his official seal, setting forth that the signature to tlie certificate of the justice is genuine and that he was such justice at the date of sucli proceed- ings and judgment, is sufficient evidence of such pro- ceedings and judgment. ^^ § 27. Certificate of sale on execution. The certificate given to the purchaser of real estate at a sale upon execution by the officer making the sale or the record thereof or a transcript of such record, duly certified by the register of deeds, is prima facie evidence of the facts therein set forth and of the regularity of the sale and all proceedings in the cause anterior thereto.®'' of a proper affidavit for the writ. justice. Jud. Act, ch. 17, §31; Goodrich v. Burdick, 26 Mich. .39. Comp. Laws 1915, § 12519. 79Hickey v. Hinsdale, 8 Mich. SOWilber v. Goodrich, .34 Mich. 267; Schlatterer v. Niokodenuia, 50 84. Mich. 315. 81Jud. Act, ch. 17, §23; Comp. The proceedings in any cause or Laws 1915, 8 12511. matter had before a justice may 82 .Jud. Act, ch. 23, §95; Comp. also be proved by the oath of tlie Laws 1915, § 12910. § 29 Evidence 681 § 28. Proof of publication. The affidavit of the i)riiiter, or of the foreman or clerk of any printer, of a public newspaper published in this state of the publication of any notice or advertisement which, by any law of this state, is required to be pub- lished in such newspaper is entitled to be road in all courts in this state and in all proceedings before any officer, body or board in which it is deemed necessary to refer thereto, and will be prima facie evidence of such publication and of the facts therein stated.^^ § 29. Conveyances and instruments entitled to be re- corded. All conveyances and other instruments authorized by law to be filed or recorded, and which are acknowledged or proved according to law, and, if the same have been filed or recorded, the record or a transcript of tlie record, or a copy of the instrument on file, certified by the officer in whose office it has been filed or recorded, may be read in evidence in any court within this state without fur- ther proof thereof, but the effect of such evidence may be rebutted by other competent testimony.^* The term, ''conveyance," as here used, embraces every instrument in writing by which any estate or interest in real estate is created, alienated, mortgaged or assigned or by which the title to real estate may be affected in law or in equity, except wills, leases for a term not exceeding three years 83.Jud. Act, ch. 17, §;^8; Conip. 84 Jud. Act, eh. 17, §20; Conip. Laws 1915, §12526. Laws 1915, S 12508; Webb v. Holt, The supreme court has defined a 113 Mich. 338. newspaper as a sheet of paper As to recording patents for land printed and distributed at short in- from the United States or this state, tervals for conveyincj intelligence of or certified copies of such patents, passing events, a public print that and tiie force and effect thereof, see circulates news, advertisements, pro- llow. Stat. (2nd ed.) 10846, 10847; ceedings of legislative bodies, public Comp. Laws 1915, §§ 11717, 11718. documents and the like. Lynch v. Durfec, 101 Mich. 171. 682 Evidence § 29 and executory contracts for the sale or purchase of lands."^ But letters of attorney or other instruments con- taining a power to convey lands as the agent or attorney for the owner of the lands and every executory contract for the sale or purchase of lands, when acknowledged or proved as provided by law, may be recorded in the regis- try of deeds of any county in which are situated the lands to which such power or contract relates, and, when so acknowledged or proved, the record thereof, when re- corded, or a transcript of the record duly certified, may be read in evidence in the same manner and with the like effect as a conveyance recorded in such county.®^ § 30. When testimony of subscribing" witness is required. It is a general rule, framed originally in regard to deeds, but later extended to every species of writing, that a written instrument must be proved by the subscribing witnesses, if there be any, or at least by one of them." A subscribing witness is one who was present when the in- strument was executed and who, at that time, at the request or w^ith the assent of the party executing it, sub- scribed his name to it as a witness of the execution. It, however, is not necessary that the witness should have actually seen the party sign or have been present at the very moment of signing. If he is called in immediately afterwards and the party acknowledges his signature to the witness and requests him to attest it, this will be deemed part of the transaction and, therefore, a sufficient attestation.'^ To this rule, requiring the production of subscribing witnesses, there are several classes of exceptions. The first is where the instrument is thirty years old; in which 86 How. Stat. (2nd ed.) 10856; Biilen v. Granger, 63 Mieh. 311; Comp. Laws 1915, §11726. .Tones v. Phelps, 5 Mich. 218; Gibbs 86 How. Stat. (2nd ed.) 10857; v. Linabury, 22 Mich. 479. Comp. Laws 1915, § 11727. 88 1 Greenl. Ev. sec. 569a. 87 Hess V, Griggs, 43 Mich. 397; § 30 Evidence 683 case, it is said to prove itself, the subscribing witnesses being presumed to be dead and other proof being pre- sumed to be beyond the reach of the party.*® A second exception is where the instrument is produced by the ad- verse party pursuant to notice, the party producing it claiming an interest under the instrument.®" In this case, the party producing the instrument is not per- mitted to call on the other for further proof of its execu- tion; for, by claiming an interest under the instrument, he has admitted its execution. The same principle is applied where both parties claim similar interests under the same deed; in which case, the fact of such claim may be shown by parol.®^ A third class of exceptions to this rule arises from the circumstances of the witnesses them- selves, the party, either from physical or legal obstacles, being unable to produce them; as, if the witness is proved or presumed to be dead or cannot be found after diligent inquiry or is out of the jurisdiction of the court or has become an adverse party.®^ A fourth exception has been sometimes admitted in regard to official bonds required by law to be taken in the name of some public function- ary in trust for the benefit of all persons concerned, to be preserved in some public office for their protection and use, of the due execution of which, as well as of their sufficiency, such officer must first be satisfied and the bond approved before the party is qualified to enter upon the duties of his office.®* And the rule requiring the production of subscribing witnesses has been relaxed to a very important extent in this state by statutory provision. One such provision is that every written instrument, except promissory notes 89 Township of Jasper v. Martin, 90 1 Greenl. Ev. sec. 570 ; Ray- 161 Mich. 336. See also Willets v, burn v. Mason Lumber Co., 57 Mich. Mandlebaum, 28 Mich. 521; Hein- 273. miller v. Hatheway, 60 Mich. 391 ; 91 1 Greenl. Ev sec. 571. - King V. Merritt, 67 Mich. 194; 92 1 Greenl. Ev sec. 572. Murphy v. Cady, 145 Mich, 33. 93 1 Greenl. Et sec. 573. 684 Evidence 1 30 and bills of exchange and except the last wills of de- ceased persons, maj^ be proved or acknowledged in the manner now provided by law for taking the proof or ac- knowledgment of conveyances of real estate, and that the certificate of the proper officer, indorsed thereon, will entitle such instrument to be received in evidence on the trial of any action, with the same effect and in the same manner as if such instrument were a conveyance of real estate.** It is also provided by statute that, whenever, upon the trial of any action, civil or criminal, or upon the hearing of any judicial proceeding, a written instru- ment is offered in evidence to which there is a subscrib- ing witness, it shall not be necessary to call such sub- scribing witness, but such instrument may be proved in the same manner as it might be if there were no sub- scribing witness, except in cases of written instruments to the validity of which one or more subscribing wit- nesses are required by law.*^ § 31. Wills as evidence. Every will, when proved as provided by law, is re- quired by statute in this state to have a certificate of such proof indorsed thereon or annexed thereto, signed by the judge of probate and attested by his seal. Every will so certified and the record thereof or a transcript of such record, certified by the judge of probate and attested by his seal, may be read in evidence in all courts within this state without further proof .^^ § 32. Books of account as evidence. The admission of a party's ))ooks of account in proof of the delivery of goods or services performed charged 94Ju(l. Act, eh. 17, §41; Comp. 96 Jud. Act, ch. 52, §30; Comp. Laws 1915, §12529; Cameron v. Laws 1915, §13802. Culkins, 44 Mich. 531. 95 Jud. Act, ch. 17, §50; Comp. Laos 1915, § 12538. § 32 EviDExcE 685 therein, the entries having been made by his clerk, is upon the principle that they arc a part of the res gestae. They constitute parts of a chain or combination of trans- actions between the parties, the proof of one of which raises a presumption that another has taken place. The books must have been kept for the purpose, and the entries must have been made contemporaneously with the delivery of the goods and by the person whose duty it was for the time being to make them ^''' and who had personal knowledge of the facts stated in them.®* When the person who made the entries had no per- sonal knowledge of the acts recorded, but made them from the statements or reports of others, the book is mere hearsay. In one of the earliest reported cases upon this subject, the plaintiff, being a brewer, sued the de- fendant for beer sold and delivered, and, to sustain the a.ction, offered his book of account as evidence. It ap- peared that the book was kept by the plaintitf 's clerk, that plaintiff's draymen came every night and reported the beer delivered during the day and that the dray- men set their hands to the entries when the clerk had made them; and upon proof of the handwriting of the drayman w^ho delivered the beer to the defendant, and of the death of the drayman, the book was admitted in evidence and held sufficient to sustain the action.'* In this case, the entries, being signed by the draymen who liad personal knowledge of the delivery of the beer, were treated as the entries of the draymen and accordingly admitted. In another early case, the question was whether the defendant had delivered a watch to a third person as directed ])y the plaintiff, and an entry made by the defeiidnnt himself in a book which he kei)t for 97 Kiix V. Central Micliigan 8av. 99 Priep v. Earl of Torriiiijtoii, I Bank, 9:S Midi. fill. Salk. 285; 1 Smith's Lead. Cas. 98 8wan v. Tliurman, 112 Midi. i;59; Brain v. Prooce, 11 Mcps. & W. 416; Baxter v. Reynolds, 112 Midi. 77:5; Goul.l v. Conway, 59 Barb. (N. 471. Y.) 355. 686 Evidence § 32 that pui'pose, upon proof that such was his custom in his business, was held admissible to establish the fact of the delivery of the watch. ^ From the earliest cases, the admission of book-entries has proceeded upon the theory that the persons making the entries had personal knowledge of the facts stated in the entries.^ The value of such an entiy as evidence lies in this, that it was contemporaneous with the principal fact done, form- ing a link in the chain of events and being a part of the res gestae. It is upon this ground that such entries are admitted, and therefore it can make no difference as to their admissibility whether the party who made them be living or dead or whether he was interested in mak- ing them, his interest going merely to affect the weight or credibility of the evidence when admitted.* But whether the person who made the entries be living or dead, the entries cannot be introduced to prove facts of which he had no personal knowledge at the time the entries were made.* In this country at least, books of account are admis- sible as evidence of the facts entered, whether kept by the party himself or by his clerk, and the New York rule, as expounded in the case of Vosburgh v. Thayer,* has been recognized in Michigan. According to this rule, the books of account of the party cannot be ad- mitted unless a foundation is first laid by proving that the party had no clerk, that some of the articles charged have been delivered, that the books produced are the account books of the party, and, by those who have dealt and settled accounts with him, that he keeps fair and honest accounts.^ When the parties to a suit were IDigby V. Stedman, 1 Esp. 328. 5 Vosburgh v. Thayer, 12 Johns. 2 Swan v. Thurman, 112 Mich. (N. Y.) 461. 416; Peters v. Oallagher, 37 Mich. 6 Jackson v. Evans, 8 Mich. 476; 407; Fish v. Adams, 37 Mich. 598. Foster v. Coleman, 1 E. D. Smith 3 1 Greenl. Ev. sec. 120. (N. Y.) 85; Conklin v. Stamler, 2 4 Swan V. Thurman, 112 Mich. 416. Hilt. (N. Y.) 422; 8 Abb. Pr. (N. § 32 Evidence 687 excluded from being examined as witnesses, it was cus- tomary for the party to prove by those who had dealt and settled accounts with hifn that he kept fair and honest accounts, but since the incompetency of parties as witnesses has been removed by statute, the party of- fering his books of account may himself testify as well to their correctness as to any other fact, and it is there- fore unnecessary to adduce the testimony of persons who have settled accounts from the books.' Or where the books have been kept by a party's bookkeepers, it may be proved that they were correctly and accurately kept by the testimony of such bookkeepers.^ In order to entitle books of account to be received as evidence, it must appear that the person keeping and producing them is usually precise and punctilious re- specting the entries therein and that they were designed at least to embrace all the items of the account which are proper subjects of entry.^ When books of account are received in evidence, it is only where the entries are apparently made of items as they arise and as con- temporaneous res gestae. But an entry, not of particu- lar payments or advances or even of any aggregate, but merely of what remains due as a balance after allow- ing set-offs and counter-claims, does not come within any known rule of evidence.^" Where the suit is brought upon an account shown to Y.) 395; Tomlinson v. Borst, 30 8 Seventh-Day Adventist Pub. Barb. (N. Y.) 42; Burke v. Wolfe, Ass'n v. Fisher, 95 Mich. 274; Bax- 38 N. Y. Super. Ct. 263; Linnell ter v. Keynoltls, 112 Mich. 471; V. Sutherland, 11 Wend. (N. Y.) Union Central Life Ins. Co. v. Smith, 568; Larue v. Eowland, 7 Barb. 119 Mich. 171. (N. Y.) 107. 9 Countryman v. Bunker, 101 7 Montague v. Dougan, 68 Mich. Mich. 218; Montague v. Dougan, 98; Brown v. Weightman, 62 Mich. 68 Mich. 98. 557; Seventh-Day Adventist Pub. 10 McClintock 's Appeal, 58 Mich. Ass'n v. Fisher, 95 Mich. 274; 152; Eobinson v. Hoyt, 39 Mich. Mally v. Excelsior Wrapper Co., 181 405. Mich. 568; Smaltz v. Newhof, 178 Mich. 500. 688 Evidence §32 have been charged in plaintiff's books of account, the defendant is entitled to a full cross-examination upon all that the books would show. He is not bound to make the plaintiff his witness, and the plaintiff should pro- duce the books. ^* § 33. Statutory extension of principle. The principle admitting books of account as evidence has been given a more extensive application in this state by a statutory provision which declares that, in all trials, hearings and proceedings in any cause or suit in any court or before any officer, arbitrators or referees, books of account containing charges or entries for money paid, laid out, furnished or lent shall be received in evidence and deemed to be evidence of such charges and entries and that such moneys ^vere so paid, laid out, furnislied or lent as is in such books charged or en- tered, and of the liability of the person charged there- for, in the same manner and to the same extent as books of account containing charges for goods, wares or mer- chandise sold and delivered are received and admitted as evidence of the sale and delivery of such goods, wares and merchandise and of the liability of the person charged therefor; but this does not apply to cases of persons acting or having acted as commission mer- chants or agents for the sale of produce, grain or other }H-operty on commission, except as to the amount charged as commission for selling or buying such pro- duce, grain or other property, unless accompanied by a voucher or receipt for the money claimed to have been laid out, lent or furnished. ^^ The books of a corpora- tion defendant, when properly kept by the proper offi- cers or agents of the company, are competent to prove 11 McCausland v. King, 60 Mich. Laws 1915, §12541; Eichards v. 70. Burroughs, 62 Mich. 117; Boglarsky 12Jud. Act, ch. 17, §53; Comii. v. Singer Mfg. Co., 65 Mich. 510. § 34 Evidence 689 the paj^ment of moneys by the defendant to the plain- tiff." § 34. As dependent on affidavit. It is provided by statute that, in all actions brought in any court of this state to recover the amount due on an open account or upon an account stated, if the plain- tiff or some one in his behalf shall make an affidavit of the amount due, as near as he can estimate the same, over and above all legal set-off, and annex thereto a copy of the account and cause a copy of such affidavit and account to be served upon the defendant with a copy of the declaration filed in the cause, or with the process by which the action is commenced, such affi- davit shall be deemed prima facie evidence of such in- debtedness, unless the defendant, with his plea, shall, by himself or agent, make an affidavit and serve a copy thereof on the plaintiff or his attorney, denying the same; and if the defendant in any action gives notice with his plea of a set-off founded upon an open account or upon an account stated and annexes to his plea and notice a copy of such account and an affidavit made by himself or by some one in his behalf, showing the amount or balance claimed by the defendant upon such account and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to liave such account or balance set off against the claim made by the phnntiff, and serves a copy of the account and affidavit, with a copy of his plea and notice, upon the plaintiff or his attorney, such affidavit will be deemed prima facie evidence of such set-off and of the plaintiff" 's liability tliereon, unless the plaintiff" or some one in his behalf, within after ten days after such service in causes in the circuit court and before trial in other 13 Caiithcr v. James Jcnks & Co., 76 Mich. 510. 1 Abbott— 4-1 690 Evidence § 34 cases, makes an affidavit denying such account or some part thereof and the plaintiff's indebtedness or liability thereon, and serves a copy of it upon the defendant or his attorney; and in case of a denial of part of such set- off, the defendant's affidavit will be prima facie evi- dence of such part of the set-off as is not denied by the plaintiff's affidavit. Any affidavit mentioned herein will be deemed sufficient if made within ten days next preceding the issuing of the writ or filing of the decla- ration or plea.^* To render the affidavit effectual as prima facie evi- dence, the statute must be complied with, and the rec- ord must show the fact or competent proof made there- of." One of the essentials is that proof be made of the service of the affidavit as the statute requires. ^^ But the adverse party may waive strict compliance with the requirements of the statute; and accordingly, where the affidavit was not in compliance with it, and would not properly be received in evidence if seasonably objected to, it was held that a party who appears and allows the paper to be made evidence and withheld all objection until the proof was closed, had, by his silence, acquiesced in the reception of the affidavit as evidence and waived his right to object to its insufficiency thereafter.^' The affidavit is made prima facie evidence, but, like other evidence, it must be introduced in evidence.^' § 35. Affidavit of co-partnership or association. In any suit or proceeding instituted in any of the courts of this state, wherein it becomes necessary to prove the co-partnership of any firm or association, the plaintiffs may cause to be served upon the defendant, 14Jud. Act., ch. 17, §52; Comp. 17 Locke v. Farley, 41 Mich. 405; Laws 1915, § 12540. Gordon v. Sibley, 59 Mich. 250. 16 McGowan v. Lamb, 66 Mich. 1* Gordon v. Sibley, 59 Mich. 250. 615. 16 Gordon v. Sibley, 59 Mich. 250. § 1 Exceptions 691 with a copy of the declaration filed in the cause or with the process by which the suit is commenced, an affidavit stating" that the plaintiffs were the persons comprising such partnership at the time the contract in question was made or the cause of action accrued; and such affi- davit will be prima facie evidence of the existence of such partnership or association, unless the defendant files with his plea an affidavit denying the existence of such partnership or association.^® EXAMINATION See Witnesses; Depositions; Jurt; Supplementary Proceedings; Garnishment; Eeferences. EXCEPTIONS § 1. Necessity for. § 2. Eefusal to submit special questions. § 3. Misconduct of counsel, § 4. Findings where trial by court without a jury. § 6. Exceptions where no ruling. § 6. Time for. § 7. Insertion in bill of exceptions. Cross-Eeferences: Bill of Exceptions; Error, Writ of; Case Made; Supreme Court; Security for Costs (exception to sureties) ; Replevin (exception to sureties); Bail; Costs; References. § 1. Necessity for. In order to preserve a question for review on writ of error, an exception is often necessary to be taken to the ruling of the court. However, the necessity for excep- tions on the trial has been to a large extent dispensed with by the Judicature Act which provides that **it shall not be necessary in the trial of any action or pro- ceeding in any court of record, to except to any ruling or action of the court, if an objection thereto was duly made, but an exception shall be deemed to follow as a matter of course, and it shall not be necessary to except in any case to the charge of the court to the jury, or to 19Jud. Act, ch. 17, §48; Comp. Laws 1915, §12536. 692 Exceptions § 1 the refusal of the court to charge as requested; but any party considering himself aggrieved by any such ruling, action, charge or refusal to charge, may assign errors the same as if exception had been made according to the practice heretofore in use." * A direction of a verdict is a ''charge" within this statute, and hence need not be excepted to.^ It will be noticed that this statute says that no exception shall be necessary ''in the trial" of any action, etc., provided an objection was duly made, and hence it is apparent that it does not do away with tlie necessity for exceptions before the trial or after the trial. An order ruling on a motion for a continuance, made before the trial is called, is not reviewable unless ex- cepted to;' nor is an order ruling on a motion to amend the judgment.* An order denying a motion for a new trial must be excepted to ^ and if not excepted to the question as to the sufficiency of the evidence cannot be inquired into in the supreme court ^ nor can the exces- siveness of the verdict.' Where an exception during or on the trial is neces- sary, the failure to except is not obviated by a motion for a new trial and an exception to the order denying the motion.* A motion for a new trial does not perform l.Ju(l. Act, ch. 18, §00; Comp. 41 1 ; Maluler v. Wax, 192 Mich. 479; Laws 1915, §12(5:52. Dyer v. People's Ice Co., 188 Mich. That no exception is necessary 20."!; Ilotchkisa v. Weinmann-Mat- where request for directed verdict tliews Co., 17.5 Mich. 6.52. See also non obstante veredicto is denied as Nkw Tkial. expressly provided for by statute, 6 Dyer v. People 's Ice Co., 188 see Tri.xl. M'u-h. 20.''., 207; Partridjje v. Meeker, 2 Goodman v. Fangert, 204 Mich. 1G9 Mich. :i03. 66; Parsille v. Brown, 188 Mich. 7 Sergeant v. Grand Rapids & I. 48.5. R. Co., 198 Mich. .S85; Dyer v. Peo- 8 Goldberg v. Peerless Pattern Co., pie's lee Co., 188 Mich. 20.'5. 197 Mich. .S62. 8 Degrandchamp v. Slepaki, 187 4 Kahn v. Minthnrn, 178 Mich. Mich. 4.".0 ; Dykstra v. Grand Ra])ids, .'{12. etc., R. Co., 1(55 Mich. 1:5; Conger v. BOreenleaf v. Lambert, 192 Mich. § 4 Exceptions 693 the office of supplying exceptions not taken at the trial.* Thus, it does not supply the absence of exceptions to findings where the trial is by the court without a jury." § 2. Refusal to submit special questions. It has been held that an exception must be taken to the refusal to submit to the jury a special question," and doubtless the new provision of the Judicature Act does not abolish the necessity for such an exception. §3. Misconduct of counsel. If an objection is made during the trial to miscon- duct of counsel, and a ruling of the court obtained there- on, it would seem that no exception is necessary under the new provision of the Judicature Act already re- ferred to. However, there is no decision of the supreme court to support this statement, and all the decided cases, none of which refer to the provisions of the Judi- cature Act, are to the contrary.^^ § 4. Findings where trial by court without a jury. The necessity for exceptions to findings of the court, where the trial is by a court without a jury, as fixed by statute, is stated in another article. Suffice it to state in this connection ^^ that where a case is tried without a jury, and no requests for amendments to the findings are made and no exceptions are taken to the findings, neither tlie conclusions of fact or of law in tl»e findings are reviewable on writ of error; ^* and the findings of Hall, ir>8 Mieh. 448. See also Fed- K. Co., 165 Mi(-h. U, 18. See also eral Audit Co. v. Sawyer, 196 Mich. Verdict.s and Findinos. r>66. 12 See Error, Writ of; Trial. 9 Federal Audit Co. v. Sawyer, 13 See Verdicts and Findino.s. 196 Mich. r}66; Moore v. Royal Oak 14 Cas^earelli v. New York Cent. Lumber Co., 171 Mich. 400. R. Co., 202 Mieh. .'^04. 10 Federal Audit Co. v. Sawyer, See also Walker v. Village of 196 Mich. .'366; Moore v. Royal Oak Brooklyn, 184 Mieh. 520; Federal Lumber Co., 171 Mich. 400. Audit Co. v. Sawyer, 196 Mi.-h. 566. 11 Dykstra v. Grand Rapids, etc., 694 Exceptions § 4 fact are not reviewable in such a case even though the order denying a new trial expressly awards exceptions to the order and also to findings of fact." In order to obtain a review of the sufficiency of the evidence in a case tried without a juiy, an exception to the findings of fact on the ground that the findings are against the clear weight of evidence must be filed in the trial court.^^ If parties submit a cause upon a stipulation of facts, no exception is necessaiy to enable the supreme court to decide whether the facts support the judgment." § 5. Exceptions where no ruling. An exception does not preserve anything for review, ordinarily, unless there is a ruling which is the subject of the exception. For instance, it is held in a multitude of cases that a mere exception to alleged improper argu- ment of counsel raises no question for review." How- ever, it seems that where the objection is to remarks or prejudicial conduct of the trial judge there is no chance for a ruling and the only method to preserve the question for review is by objection and exception, pro- vided an exception is necessaiy. So one does not lose the benefit of an exception merely because the trial court has failed to rule definitely upon the objection on which it is based, but has permitted the case to proceed, sub- ject to the objection, reserving it for consideration." § 6. Time for. Generally it is necessary that an exception be taken at the time when the ruling is made and it cannot or- dinarily be taken thereafter, except, of course where the 15 Cascarelli v. New York Cent. 18 Wheeler v. City of Detroit, 127 E. Co., 202 Mich. 304. Mich. 329, and see Error, Writ of. 16Jud. Act, ch. 18, §15; Comp. 19 Young v. Detroit, etc., E. Co., Laws 1915, § 12587, applied in Eeese 56 Mich. 430. V. Dyer, 199 Mich. 204. 17 Kooman v. De Jonje, 186 Mich, 292. Executions 695 party for some reason could not take an exception at that time. But an exception need not be taken at the time of the ruling where the matter is held in abeyance by the court, it being sufficient to except when it was manifest that the ruling was not to be remedied.^" If exceptions are taken to the findings of the court, where the trial is without a jury, they must be filed within the four days fixed by rule of court unless the time has been extended.^^ § 7. Insertion in bill of exceptions. An exception to an order denying a motion for a new trial, in order to be reviewable, must be contained in the bill of exceptions, and it is not sufficient that the exception appears in the record proper.*^^ So exceptions to findings of fact and conclusions of law, where the trial is by the court without a jury, must be settled and incorporated in the bill of exceptions.^^ EXECUTIONS I, In General § 1. Time when may issue. § 2. When may be made returnable. § 3. Kinds. § 4. Simultaneous writs to different counties. § 5. Service by persons specially appointed. !J 6. Against whom may issue. S 7. Duty of officers in service of writ, § 8. Set-off of executions. § 9. Service begun by one and completed by another officer. II. Execution Against Property A. Form and Issuance § 10. Form of writ. § 11. Indorsement. 20 Foley V. Comstock, 122 Mich. 98, 105. See also Bill op Excep- 349. TioNS. 21 Rameau v. Valley, 168 Mich. 23 Rameau v. Valley, 168 Mich. 569, and see Verdicts and Findings. 569. 22 In re Keene 's Estate, 189 Mich. 696 Executions § 12. When property bound by writ. § lo. Alias and pluries writs. S 14. Sequential execution in special cases. B. Property Subject to Levy § 15. In general. § 16. Coin and other money. S 17. Goods mortgaged or pledged. S 18. Mortgagee 's interest. S 19. Property held in trust and other equitable estates. § 20. Partnership property. § 21. Growing crops. § 22. Manuscripts, copyrights, books, etc. § 23. Choses in action. § 24. Corporate shares. § 25. Property devoted to public use. S 26. Property assigned for benefit of creditors. § 27. Property of deceased person. § 28. Franchises. § 29. Property in custody of the law, § 30. Real property. § 31. Equity of redemption. S 32. Leasehold interests. § 33. Property held jointly. C. Levy and Lien S 34. SuflSciency of, effect and time for. § 35. Levy on mortgaged goods. § 36. Duty of officer in caring for jiroperty before sale. $ 37. Effect of and remedy for excessive levy. § 38. When levy may be made and service of writ completed. S 39. Indemnity bonds. § 40. Priority of executions. § 41. Notice of levy on real estate. § 42. Effect on leasehold interests. 8 43. How long levies on land endure. § 44. Bill in aid of levy. S 45. Waiver or abandonment of levy. § 46. Claims of third persons to property levied on. D. Sale § 47. In general. § 48. Time of sale. § 49. Place of sale. S 50. Notice of sale. § 51. Postponement or adjournment of sale. § 52. Sale of perishable property. § 53. How sale conducted. Executions 697 § 54. Sale of real estate in parcels. § 55. Certificate of sale. § 56. Title and rights of purchaser. § 57. How purchaser of lands protected against loss through irregularity of judgment or sale. § 58. Disposition of surplus moneys. S 59. When property to be re-sold, § 60. Setting aside sale. S 61. Irregularities affecting validity of sale, E. Return § 62, Necessity for, sufficiency of, and who may make. § 63, Time for making, § 64. Setting aside. S 65. Conclusiveness. § 66. Effect of insufficiency, F. Redemption § 67. Within one year. § 68. By whom made. S 69. By part owners, heirs or devisees. S 70. By owners of undivided shares. S-71. Redemption of leaseholds. § 72. Effect of redemption on sale and certificate of sale. § 73. After one year and within fifteen months. § 74. By second or other creditors. § 75. Right of plaintiff to acquire purchaser 's interest except as creditor. § 76. To whom payment by creditors to be made and effect of payment. § 77. Evidence of right to acquire purchaser's interest. §78. Redeeming and acquiring purchaser's rights in mortgaged premises. G. Sheriff 's Deed 8 79. Right to, necessity for, etc. 8 80, Time for taking and recording conveyance. H. Payment and Discharge S 81. Payment. § 82. Certificate of satisfaction, III. Body Executions § 83. When proper, time for and effect of. § 84. Form of writ. S 85. Service of writ. S 86. Bond for liberty of jail limits, S 87. Return of writ. S 88. Proceedings upon return of not found. 698 Executions § 1 § 89. Expense of keeping person in jail. § 90. Discharge as poor debtor. Cross-references: Supplementary Proceedings; Garnishment (execu- tion against garnishee); Attachment; Exemptions (property exempt by statute); Homestead (exemption of) ; Replevin (executions in actions of) ; Ejectment (execution in actions of); Judgment (execution as satisfaction of) ; Stay of Proceedings. I. In General § 1. Time when may issue. If the judgment in a cause be not set aside, arrested or reversed, tlie next step is the execution of it, or, in other words, the putting of the sentence of the law into effect.! In this state, the statute provides that, whenever a judgment has been rendered in a court of record, ex- ecution to collect it may be issued to the sheriff or other proper officer of any county of the state.^ At the com- mon law, an execution could issue immediately after final judgment was entered,^ and, if not issued within a year and a day thereafter, the presumption arose that the party, by reason of the satisfaction of the judgment or otherwise, was no longer entitled to execution, and he was thereby left to seek his remedy by an action on the judgment, until the statute of Westminster II, after which he might have a scire facias and require his ad- versary to show cause why an execution should not issue.* In this state, the time after final judgment for issuing execution is not expressly prescribed either by the statute or the rules. It may issue at the same term at which the judgment was rendered or afterwards, in va- cation or in term,* but never, it is hardly necessary to 13 Cooky's Bl. Comm. 412. 6 People v. Clerk of Bay County 2Jud. Act, ch. 23, §1; Comp. Circuit Court, 14 Mich. 169. Laws 1915, § 12816. It may be issued in vacation. 8 Stevens v. Manson, 87 Me. 436. Christler v. Locke, 103 Mich. 86. 4 Shirley v. Wright, 1 Salk. 273. § 1 Executions 699 say, until any order staying proceedings, if any, has become inoperative. The fact that a writ of error has issued to remove the case to the supreme court will not prevent the prevailing party from causing execution to issue, unless the statutory stay bond has been filed,® but the court may stay the execution for twenty days after the entry of judgment for the settlement of a bill of exceptions.'' In this state, the rule of the common law requiring the issuance of an execution within a year and a day does not prevail, but it is held that the execution must issue, if at all, within ten years from the entry of the judg- ment, for the reason that an action on the judgment is barred after that time and an execution ought not to issue on a judgment upon which an action is barred.® This rule is a general one and applies to suits in which property has been attached as well as to others, but it is important to observe that, in attachment suits, the lien of the attachment will be lost if there be any un- reasonable delay in taking out execution ; ^ and where the writ of attachment has not been personally served upon the defendant, so that the execution can be levied 6 Jud. Act, ch. 50, § 2 ; Comp. But where execution is issued and Laws 1915, § 13737 ; Douglass v. levied on land within the ten years, Manistee Circuit Judge, 42 Mich. it should not be set aside or the sale 495 ; Castor v. Allegan Circuit restrained because the ten years ex- Judge, 54 Mich. 318. inre before a sale is made, where 7Cir. Ct. Rule 66, §1. See also the five years after the levy, as Peterson v. Wayne Circuit Judge, fixed by statute within which a sale 108 Mich. 608. must be made and after which the Time for stay, see Hatch v. Wash- execution lien ends, has not expired, tenaw Circuit Judge, 200 Mich. 1, Moshcr v. Borden, 201 Mich. 106. and also Stay of Proceedings. 9 Trowbridge v. Bullard, 81 Mich. 8 Jud. Act, ch. 9, § 13, subd. 1 ; 451 ; Grand Rapids Chair Co. v. Run- Comp. Laws 1915, § 12323, subd. 1; nels, 77 Mich. 104; Bushey v. Raths, People V. Wayne Circuit Judge, 37 45 Mich. 181; Geiges v. Greiner, 68 Mich. 287; Jerome v. Williams, 13 Mich. 153. Mich. 521; Ludeman v. Hirth, 96 Mich. 17. 700 Executions § 1 only upon the property attached, the avoidance of un- reasonable delay is of much greater importance. The question of what amounts to unreasonable delay de- pends largely upon the special circumstances of the case, but, in general, it should be said that a distinction is made between those cases in which only real estate has been attached and those in which the levy of attach- ment has been made upon personalty; for the attach- ment of real estate does not interfere at all with the defendant's possession, while the attachment of per- sonalty divests him of it." It has been held that a de- lay of two months,*^ or even eight months,^^ in levying execution in case of attachment of real estate was not unreasonable; while slight delay, in the absence of pecu- liar circumstances, would be, in case of the attachment of personalty. An execution cannot be considered as issued until it is placed in the hands of an officer for service.^' § 2. When may be made returnable. Execution issued upon any judgment rendered by a court of record in this state, or upon any transcript of a justice 's judgment, may be made returnable not less than twenty, nor more than ninety days from the date there- of." §3. Kinds. An execution may be either (1) against the goods and chattels, lands and tenements of the party against whom judgment has been recovered, or (2) against the body of such party, in the cases authorized by law." lOLant V. Morgan's Adm'r, 43 14 Jud. Act, ch. 23, §§ 1, 2; Comp. U. S. App. 623. Laws 1915, §§12816, 12817; First 11 Geiges v. Greiner, 68 Mich. 153. Nat. Bank v. Dwight, 83 Mich. 189. IZLant V. Morgan's Adm'r, 43 16 Jud. Act, ch. 23, §3; Comp. V. S. App. 623. Laws 1915, § 12818. 13 Peterson v. Wayne Circuit Judge, 108 Mich. 608; First Nat. Bank v. Dwight, 83 Mich. 189. § 4 Executions 701 The former is called a "fieri facias," from the words in which, when the writs were in Latin, the sheriff was commanded "quod fieri facias de bonis," that he cause to be made of the goods and chattels of the defendant the sum or debt recovered. At common law, a writ of fieri facias atfected only the goods and chattels, and not the lands and tenements, of the defendant,^^ but now, by statute, as just stated, it applies to both forms of prop- erty. The execution against the body is called a "capias ad satisfaciendum," and authorizes the arrest of the de- fendant and his imprisonment until the satisfaction of the demand against him.^' § 4. Simultaneous writs to different counties. Executions, whether against the body or against the property of a person, for the collection of judgments of courts of record in this state, may be issued at the same time to sheriffs of different counties and enforced there- in by them, but no execution against the body can issue while there is an execution against the property of the defendant not returned, nor can an execution against his- property be issued wiiile there is an execution against his body unretunied, unless by the order of the court which rendered the judgment. In case levies are made on more than one execution so issued, sale can be made on only one execution at a time and under the direction of the plaintiff" 's attorney; and no more sales of property can be made than are necessary to satisfy the judgment." It is to l)e observed, liowever, tliat the statute permit- ting executions to be issued at the same time to sheriffs of different counties specifies only those for the collec- tion of judgments, so that a writ of return upon a judg- 16 3 Coolcy'a Bl. Comni. 417. Coiiii). Laws 1915, §S 12825, 12826; 17 3 Coolcy's Bl. Comni. 417. Sink v. Oceana Circuit Judge, 146 ISJud. Act, ch. 23, §§10, 11; Mich. 121. 702 Executions § 4 ment in replevin is governed by the common-law rule, which allows the writ to be issued only to the sheriff of the county in which the judgment was rendered.'^® § 5. Service by persons specially appointed. It is provided by statute that the judge of any circuit court of this state may, in any suit or proceeding com- menced or pending therein, on the application of any party thereto by petition signed by such party or by his attorney or agent, duly verified, showing the facts, ap- point some disinterested person to serve any process or other papers, original or final, or to do any act therein which the sheriff by law might do in the cause, in cases where the sheriff and coroners of the county are parties or interested or incapacitated to act.^° Such appointment is required to be in writing under the hand of the judge and filed in the cause.^^ The per- son so appointed will have the same power and may pro- ceed in the same manner as is prescribed for sheriffs in the performance of like duties. The fees payable to him are the same as those payable to sheriffs for like services. Such persons so designated and receiving the process or other papers, original or final, is, in respect to them, deemed a coroner of the county, and is liable to all the provisions of law respecting sheriffs so far as they are applicable.^^ The judge may, in his discretion, require the person so appointed, before acting under the appointment, to give a bond to the people of the state in such penal sum, and with such surety or sureties, as the judge may approve, conditioned for the faithful performance and execution by him of his duties in the case, without fraud, deceit or WRathbun v. Eanney, 14 Mich. 21 Jud. Act, ch. 13, §23; Comp, 382. Laws 1915, § 12426. 20 Jud. Act, ch. 13, §23; Comp. 22 Jud. Act, ch. 13, §§23, 24; Laws 1915, § 12426. Comp. Laws 1915, §§ 12426, 12427. § 6 Executions 703 oppression, and for the payment of all moneys that may come into his hands by virtue of the appointment.''^ § 6. Against whom may issue. As a general rule, an execution may issue against the person or persons against whom judgment has been ren- dered, but not against a part of them only, nor against any person not a party to the judgment, it being a gen- eral requirement that the execution must conform to the judgment.^* Where judgment has been rendered against two or more persons and one of them dies, the execution should, in order to conform to the judgment, be issued in form against all, but it can be levied only upon the property of the survivor or survivors.''^ Execution may issue against a private corporation, whether domestic or foreign,^® a married woman ^"^ or a lunatic.^' And when- ever any person becomes surety for costs for another in any court in this state, whether such security be required by law to be given or be required by an order of the court, in case the defendant in the action recovers final judgment for costs against the plaintiff, judgment may be entered immediately and in the same suit as well against the surety as against the plaintiff, and execution may issue against the surety in the same manner as if he himself had been a party to the suit.^® Execution for the collection of a money judgment is forbidden by statute to issue either against the body or against the goods and chattels, lands and tenements of 28Ju(i. Act, ch. 13, §23; Comp. 26 Gardner v. Mobile, etc., K. Co., Laws 1915, § 12426. 102 Ala. 635; Overton Bridge Co. 24Penoyer v. Brace, 1 Ld. Eaym. v. Means, 33 Neb. 857. 244. 27 Baldwin v. Kimmel, 16 Abb. Execution against partnership, see Pr. (N. Y.) 358. Jud. Act, ch. 23, § 13 ; Comp. Laws 28 Noel v. Modern Woodmen of 1915, § 12828. America, 61 111. App. 597. 26Beed v. Garfield, 15 111. App. 29 Jud. Act, ch. 22, §4; Comp. 290. Laws 1915, § 12794. 704 ExEcuTioxs § 6 any executor, administrator, heir, devisee or legatee, ex- cept in the cases specially provided by law.^" When a judgment has been recovered against a county or the board of supervisors of a county, or against any county officer in an action prosecuted by or against him in his name of office, no execution can issue upon such judgment. The judgment must be collected as other county charges, and, when so collected, will be paid by the county treasurer to the person to whom it has been adjudged, upon tlie delivery of a proper voucher there- for.'^ And whenever a judgment has been recovered against a township, village or city, or against the trus- tees or common council or against any other officers there- of, in any action prosecuted by or against them in their name of office, no execution can be issued upon such judgment ; but the amount of the judgment, together with the costs and interest, will be assessed upon the taxable property of the township, city or village in the manner specifically pointed out by the statute.'^ The same is true also where a judgment has been recovered against a school district.®' § 7. Duty of officers in service of writ. The sheriff or other officer to whom an execution is de- livered should, upon receipt of it, indorse upon it the year, month, day and hour of the day when he received it. This is a duty imposed by the statute for the purpose of enabling the question of priority among several ex- ecutions, in certain cases where such priority depends upon the order in which they were received by the officer, more easily and certainly to be determined.'* Such in- aOJiul. Act, eh. 2."?, §4; Comp. 33 Jud. Act, fh. 24, §§ 8-12; Comp. Laws 1915, § 12819. Laws 1915, 8§ 12973-12977. 31Jud. Apt, eh. 24, §7; Cnm(). 34 Jud. Aet, ch. 2?,, S5; Comp. Laws 1915, § 12972. Laws 1915, § 12820. 32.1ud. Act, ch. 24, §S 5, 6; Com].. Laws 1915, §§ 12970, 12971. § 8 Executions 705 dorsement may also have an important bearing in case the conduct of the officer in the service of the execution should at some future time be brought into question. But the statute is not mandatory and the failure of the officer to make the indorsement in no respect nullifies his proceedings thereunder.^* When an officer has received an execution, if it be fair upon its face, it is his duty to serve it in obedience to its commands, either by taking the body of the defendant or seizing his property, as the case may be, in the man- ner and under the limitations prescribed by law, as will be presently explained. The officer is protected from liability in seizing property under an execution without regard to anterior defects, if the process be fair upon its face and apparently issue from a court having jurisdic- tion of the subject-matter,^^ even though he has knowl- edge of the existence of such defects.^'' § 8. Set-off of executions. Executions between the same parties may be set off, one against the other, if required by either party.^® When one of the executions has been delivered to an officer for service, the debtor therein may deliver his execution to the same officer, and it thereupon becomes the duty of the officer to apply it to the satisfaction of the first ex- ecution and make an indorsement of such application upon each of the executions. The balance due on the SSShepard v. Schrutt, 163 Mich. bull, 16 Mich. 228; Adams v. Hub- 485. bard, 30 Mich. 104; Gidday v. With- The omission may be cured by erspoon, 35 Mich. 368; Miller v. amendment. Forsyth v. Washtenaw Hahn, 116 Mich. 607; Grand Kapids Circuit Judge, 180 Mich. 633. Brewing Co. v. Pettis, 159 Mich. 679. 36 Watkins v. Wallace, 19 Mich. 37 Wall v. Trumbull, 16 Mich. 228 ; 57; People v. Eix, 6 Mich. 144; Bird v. Perkins, 33 Mich. 28; Foster Michels v. Stork, 44 Mich. 2; Dunn v. Wiley, 27 Mich. 244. V. Gilman, .34 Mich. 256; Ortman v. 38 Jud. Act, ch. 23, §15; Comp. Greenman, 4 Mich. 291; Bird v. Laws 1915, §12830. Perkins, 33 Mich. 28; Wall v. Trum- 1 Abbott— 45 706 Executions § 8 larger execution may then be collected and paid in the same manner as if there had been no set-off.'® But such set-off is not allowed when the creditor in one of the ex- ecutions is not the debtor in the other in the same ca- pacity and trust, or when the sum due on the first execu- tion has been lawfully and in good faith assigned to an- other person before the creditor in the second execution became entitled to the sum due on it, or when there are several creditors in one execution and the sum due on the other is due from part of them only, or when there are several debtors in one execution and the sum due on the other is due to a part of them only, nor is it allowed as to so much of the first execution as is due to the at- torney in that suit for his taxable fees and disburse- ments.*" § 9. iService begfun by one and completed by another of- ficer. When an officer has begun to serve an execution and dies or becomes incapable of completing the service, it may be completed by any other officer who might by law have executed the writ if it had been originally deliv- ered to him; and, if the first officer has not made a cer- tificate of his doings, the second officer should certify whatever he finds to have been done by the first and add a certificate of his own doings in completing the service.*^ A sheriff' may, therefore make a sale of property seized under execution by his predecessor.*^ But a sheriff and his under sheriff and deputy sheriffs may execute all process in their hands at the expiration of the term for 39Jud. Act, ch. 23, §16; Comp. 40 Jud. Act, eh. 23, §17; Comp. Laws 1915, § 12831. Laws 1915, § 12832. Refusal of .judge to compel sheriff « Jud. Act, ch. 23, § 21 ; Comp. to make a set-off is not reviewable Laws 1915, § 12836. on mandamus, but relief may be ob- 42 Taylor v. Boardman, 23 Mich, tained in equity. Lyon v. Smith, 317. 66 Mich. 676. § 10 Executions 707 which the sheriff was elected, and the execution of which had been begun by them respectively; and, in case of a vacancy in the office of sheriff, every deputy in office un- der him may execute any writ or process in his hands or in the hands of such sheriff at the time the vacancy hap- pened, and has the same authority, and is under the same obligation, to serve, execute and return it as if the sheriff had continued in office." II. Execution Against Property A. Form and Issuance § 10. Form of writ. The style of the fieri facias should be *'In the Name of the People of the State of Michigan. ' ' The writ should be directed to the proper officer, usually the sheriff of the county into which it is to be sent, should be made returnable on some specified day not less than twenty nor more than ninety days from the time of its issue, should have the proper teste, should be signed by the clerk or deputy clerk and by the attorney for the party causing it to issue, and should be sealed with the seal of the court from which it emanates. It should also iden- tify and be in substantial conformity with the judgment upon which it is based, showing by what court it was rendered, the names of the parties and the amounts re- spectively of the debt or damages and the costs. The names of all the parties should be set forth, even though some of them have died since the rendition of the judg- ment. A mistake, however, in regard to some of the foregoing matters will not, according to the weight of authority and the better opinion, render the writ absolutely void, but at the most merely voidable, and to remedy it the 43Jud. Act, eh. 13, §39; Conip. Laws 1915, § 12442. 708 Executions § 10 court will permit an amendment.** Thus, the want of a seal does not render the writ void, and the seal may be supplied on motion to amend.*^ So the writ may be amended as to the name of the judge in whose name it is tested,*® or as to the name of the county to the sheriff of which it is directed,*' and an amendment may be per- mitted to specify a proper return day.*' So while a sub- stantial conformity with the judgment is an essential, a slight variance in the names of the parties may be elim- inated by amendment; *® and since in this state it is usual and proper, if not necessary, to indorse the title of the court and cause and other details upon process, which, when put on, forms a part of tbe process for the purpose of identification, the omission of the name of one of the parties from the body of the writ will not render the writ insufficient, even without amendment, if it be properly indorsed with the title of the cause.*" The writ must contain a proper command to the officer. To authorize the sale of real estate, it must command the officer to whom it is directed that, of the goods and chat- tels of the person against whom it issues, in the county of such officer, he cause to be made the debt, damages or 44 An execution issued on a ,iuflg- amended judgment, rights accruing ment in assumpsit, with a general under the execution by levy will be command to levy, is not invalid be- saved. Seymour v. Bruske, 140 cause reciting the action was to en- Mich. 244. force a mechanic 's lien and describ- 45 Arnold v. Nye, 23 Mich. 286. ing the property against which it 46 Ross v. Luther, 4 Cow. (N. Y.) was asserted. Allured v. Voller, 107 158. Mich. 476. 47Walden v. Davison, 15 Wend. An execution is not void because (N. Y.) 575. it commands the officer, in addition 48 Goode 's Adm 'r v. Miller, 78 Ky. to the legal costs, to collect a certain 235 ; Cramer v. Van Alstyne, 9 amount for the execution, although Johns. (N. Y.) 386. the latter is unwarranted, since it 49 Cawthorn v. Knight, 11 Ala. will be treated as surplusage. Hoi- 579. lister V. Giddings, 24 Mich. 501. 50 McGuire v. Galligan, 53 Mich. Where an execution is recalled to 453. reform it so as to comply with an § 10 Executions 709 other sum of money and costs for which the judgment was rendered, and, if sufficient goods and chattels cannot be found, that then he cause the amount of such judg- ment to be made of the real estate of the person against whom the judgment was rendered within such county.^^ It is the duty of the officer to obey this command and to proceed against any goods and chattels to be found with- in his county before resorting to real estate; but it will be presumed that he has done so, and, therefore, when he has seized real estate, it is not essential that he recite that sufficient goods and chattels could not be found.^'^ Form of Fieri Facias for Plaintiff in Assumi«it The Circuit Court for the County of ...... In the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting: We command you that of the goods and chattels of C. D., defendant, in your county, you cause to be made the sum of dollars, which A. B. lately in the circuit court for the county of recovered against the said defendant, for his damages which he had sustained, as well by reason of the not performing certain promises and undertakings before then made by the said defendant to the said plaintiff as for the costs and charges by the said plaintiff about his suit in that behalf expended, whereof the said defendant is convicted, as appears of record in said court; and if sufficient goods and chattels cannot be found within your county, that then you cause the damages and costs aforesaid to be made from the real estate of the said defendant within your county, and have you that money before the circuit court aforesaid on the day of , A. D , to render unto the said plaintiff for his damages, costs, and charges aforesaid; and have you then and there this writ. Witness, Hon. J. S., circuit judge, at , this day of , A. D C. K., J. K., Attorney for Plaintiff. Clerk. Form of Fieri Facias for an Executor or Administrator Upon Judgment Recovered by Decedent In the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting: We command you that of the goods and chattels of C. D., defendant, you cause to be made dollars, which A. B., plaintiff, in his lifetime, lately 51Jud. Act, ch. 23, §12; Comp. 52 Johnson v. Crispcll, 39 Mich. Laws 1915, § 12827. 82; Atwood v, Bearss, 45 Mich. 469. 710 Executions | 10 in our circuit court for the county of recovered against him for hia damages which he had sustained, as well by reason of the not performing certain promises and undertakings then lately made by the said defendant to the said plaintiff as for the costs and charges by the said plaintiff about his suit in that behalf expended (or as the case may be, according to the form of the action), whereof the said defendant is convicted, as appears to us of record ; and, if suflScient goods and chattels of the said defendant can- not be found in your county, that you then cause the damages and costs aforesaid to be made of the real estate of the said defendant within your county; and whereupon it is considered in our said circuit court that E. F., executor of the last will and testament of the said A. B., deceased (or, ad- ministrator of all and singular the goods, chattels, rights, and credits which were of the said A. B., deceased, at the time of his death, who died intestate), have execution against the said defendant, as further appears to us of record; and have you that money before our said circuit court at , on , to render unto the said E. F., executor (or, adminis- trator) as aforesaid ; and have you then and there this writ. Witness, etc. rorm of Fieri Facias for Plaintiff on Transcript of Judgment of Justice of the Peace In the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting : We command you that of the goods and chattels of C. D., defendant, in your county, you cause to be made dollars, which A. B., plaintiff, lately before E. F., a justice of the peace of the township of , in said county, recovered against the said defendant for his damages which he had sustained, as well by reason of the not performing certain promises and un- dertakings then lately made by the said defendant to the said plaintiff as for the costs and charges by the said plaintiff about his suit in that behalf expended (or as the case may be, according to the form of the action), whereof the said defendant is convicted, as appears to us of record, a certi- fied transcript of which said judgment has been heretofore duly filed in the office of the clerk of our said circuit court, together with an affidavit stat- ing the amount remaining due upon said judgment, and entered and dock- eted by the said clerk in his said office, according to the statute in such case made and provided ; and if sufficient goods and chattels of the said defendant cannot be found within your said county, that you then cause the damages and costs aforesaid to be made of the real estate of the said defendant within your county; and have you that money before our circuit court at , on , to render unto the said plaintiff for his damages, costs, and charges aforesaid; and have you then and there this writ. Witness, etc. § 11. Indorsement. In some cases, before an execution is delivered to an officer to be served, it must be indorsed witli a direction § 11 Executions 711 to the officer limiting liim to some extent in the manner of service. Thus, when a judgment is rendered in form against two or more joint defendants, but the process by which the suit was commenced was served upon only a part of them, the execution upon such judgment, though issued in form against all of the defendants, must have the names of the defendants who were not served indorsed upon it, and must not be served upon the person of any defendant w^hose name is so indorsed or levied upon his sole property; but it may be levied upon any personal property owned by him as a partner with any of the de- fendants who were served.^^ When a judgment has been obtained against a public officer and the sureties upon his official bond, a direction is required to be indorsed upon the execution, by the at- torney issuing it, to levy it first upon the property of the officer and, if "sufficient of such property cannot be found to satisfy the execution, then to levy upon the property of the sureties.^* In suits commenced by writ of attachment, when a copy of the attachment has not been served and the defendant has not appeared in suit, the judgment is not conclusive against the defendant. In such case, the execution may issue in the same form as if a copy of the attachment had been personally served on the defendant, but will authorize the officer to whom it is directed to sell only the property attached in the suit, and it is the duty of the attorney issuing the execution to indorse thereon or annex thereto a description of the property so attached, with a direction to the officer to sell the same, or so much thereof as may be sufficient to satisfy the execution, and not to levy the same or any part thereof upon any other property.^^ 63Jud. Act, ch. 23, §19; Comp. 65 Jud. Act, ch. 26, §§26, 27; Laws 1915, § 12834. Comp. Laws 1915, §§ 13053, 13054. 54 Jud. Act, ch. 21, §6; Comp. Noncompliance with statute can- Laws 1915, S 12788. not be taken advantage of on writ 712 Executions § 11 And whenever an execution against the property of the defendant is issued upon a judgment for a debt secured by mortgage of real estate, it is the duty of the plaintiff or his attorney to indorse upon the execution a brief de- scription of the premises mortgaged, with a direction to the officer not to levy the execution upon the mortgaged premises or any part thereof.**^ § 12. When property bound by writ. Whenever an execution is issued against the property of any person, his goods and chattels, lands and tene- ments, levied upon by such execution, are bound from the time of the levy.*' § 13. Alia,s and pluries writs. Upon the return of a fieri facias unsatisfied in whole or in part, successive or alias executions may be issued, one after another, for the amount unpaid upon the judg- ment ; ** but an alias execution should not be issued until the first one has been returned, nor should it be issued upon a return which fails to show the first writ unsatis- fied in whole or in part. In the absence of a return of the first writ, where no property has been levied upon, or where real estate has been levied upon, such levy being not even a prima facie satisfaction, the issuance of an alias would be a mere irregularity,*® which might be cured by a return nunc pro tunc ; ^^ but if a levy has been made upon personal property under the first writ, which is a prima facie satisfaction, the absence of a return would render the proceedings under the alias not merely irregular, but absolutely void.^^ of error. Hitchcock v. Hahn, 60 59 Spafford v. Beach, 2 Doug. 150. Mich. 459. 60 Miller v. Hanley, 94 Mich. 253. 66Jud. Act, ch. 23, §§124, 125; 61 Friycr v. McNaughton, 110 Comp. Laws 1915, §§ 129.39, 12940. Mich. 22; Farmers' & Mechanics' 67Jud. Act, ch. 2.3, §6; Conip. Bank v. Kingsley, 2 Doug. 379. Laws 1915, § 12821. 68 Jud. Act, ch. 23, § 1 ; Comp. Laws 1915, § 12816. § 15 Executions 713 § 14. Sequential execution in special cases. If an execution is retunied unsatisfied in whole or in part because of tlie sale of property which afterwards appeared not to have belonged to the judgment debtor or not to have been liable to execution, and any damages have been recovered against the judgment creditor or the officer who served the execution on account of the seizure and sale of the property, the court may, on the application of the judgment creditor, order a new ex- ecution to be issued on the judgment for the amount then remaining justly and equitably due thereon.^^ And where, in an action for the recovery of the possession of real estate sold by virtue of an execution, judgment is rendered against the purchaser or his heirs or assigns in consequence of any irregularity in the proceedings concerning the sale, and the purchaser or his heirs or as- signs have recovered of the party for whose benefit the sale was made the amount paid on the purchase, such party or his personal representatives may have a further execution on the judgment by virtue of which the sale was made to levy the amount paid on the sale with in- terest.*^ B. Property Subject to Levy § 15. In general. Property subject to attachment is also subject to ex- ecution.** Therefore, the statutes and decisions relating to both are considered herein. Exemptions of personal property and the procedure connected therewith is treated of in the article on Exemptions, while the exemp- tion of homesteads is considered in the article on Home- steads. 62Jufl. Act, ch. 23, §64; Comp. 64 Jnd. Act, ch. 23, §42; Comp. Laws 1915, § 12879. Laws 1915, § 12857. 63Jud. Act, ch. 23, §129; Comp. Laws 1915, § 12944. 714 Executions § 15 By statute, all chattels, real or personal, and all other goods liable to execution by the common law may be taken and sold thereon, except as is otherwise provided by law, and as will be presently explained.^^ The right of seizure is not confined to property existing within the state at the time of suit or judgment.®^ § 16. Coin and other money. Current gold and silver coin may be taken in execu- tion and paid to the creditor as money collected, and should not be exposed to sale thereon.^'' Any bills or other evidence of debt, issued and circulated as money, may be taken in execution and paid to the creditor at their par value as money collected, if he will accept them; otherwise they must be sold as other chattels.®^ § 17. Goods mortg^a^ed or pledged. At the common law, goods and chattels mortgaged, whether in possession of the mortgagor or mortgagee, were not subject to levy and sale upon execution either before or after condition broken.^® Under the provisions of an old statute in this state, the interest in goods pledged, by way of mortgage or otherwise, of the person making the pledge might be taken and sold under execu- tion, but it was held that, inasmuch as a mortgage oper- ated to divest the title of the mortgagor and convey it and the right of possession to the mortgagee, subject to the conditions of the mortgage, the mortgagor had no in- terest which could be subjected to execution, unless, by express stipulation in the mortgage, the mortgagor was entitled to retain the property until condition broken or for some other definite time ; in which case, the mortgagor 65Jud. Act, ch. 23, §42; Comp. 68 Jud. Act, ch. 23, §39; Comp. Laws 1915, § 12857. Laws 1915, § 12854. 66 Ralston v. Chapin, 49 Mich. 274. 69 Taunahill v. Tuttle, 3 Mich. 104, 67 Jud. Act, ch. 23, §38; Comp. Laws 1915, § 12853. § 17 Executions 715 was held to have a leviable interest until condition broken, but not afterwards, because, by the breach of the condition, the title to the property became absolute in the mortgagee.''" But, at a later time, mortgages of chattels came to be regarded in this state as being of an entirely different nature, so that, instead of being a conveyance of the title to the mortgagee subject to the condition of the mort- gage, and by the breach of it to become absolute, it came to be looked upon as leaving the title to the property in the mortgagor and creating a lien upon the property in favor of the mortgagee, so that the position of the parties was that of debtor on the one side and creditor secured by lien on property upon the other.'^ This is the doc- trine which now prevails in this state in relation to chat- tel mortgages, and under it the title of the mortgagor cannot be divested except by actual foreclosure of the lien.'^ The statute, therefore, provides that, when goods or chattels are pledged by way of mortgage or otherwise for the payment of money or the performance of any con- tract or agreement, such goods or chattels may be levied upon and sold on execution against the person making such pledge, subject to the lien of the mortgage or pledge existing thereon; and the purchaser at the sale will be entitled to pay to the person holding the mortgage or pledge the amount actually due thereon, or otherwise perform the terms and conditions of the pledge, at any time before the actual foreclosure of the mortgage or TOTannahill v. Tuttle, 3 Mich. well v. Pray, 41 Mich. 307; Wilson 104; Eggleston v. Mundy, 4 Mich. v. Montague, 57 Mich. 638; Haynes 295; Bacon v. Kimmel, 14 Mich. v. Leppig, 40 Mich. 602; Gard- 201. ner v. Matteson, 38 Mich. 200; Flan- 71 LiK'king v. Wesson, 25 Mich. ders v. Chamberlain, 24 Mich. 305. 443; Kohl v. Lynn, 34 Mich. 360; 72 Kohl v. Lynn, 34 Mich. 360; People V. Bristol, 35 Mich. 28; Brink v. Frcoff, 40 Mich. 511; Grove Grove v. Wise, 39 Mich. 161; Cad- v. Wise. 39 Mich. 161. 716 Executions § 17 pledge, and, on such payments or performance or a full tender thereof, will thereupon acquire all the right, in- terest and property which the defendant in execution would have had in the goods or chattels if such mortgage or pledge had not been madeJ* When a levy is made upon mortgaged chattels, it is only a levy upon the right of redemption. This right is not an apportionable one, and consequently the officer making the levy cannot select a portion of the mort- gaged goods and confine his levy to such portion, but must take all of them. The property cannot be sold in parcels. In so far as the mortgaged property is within the jurisdiction of the officer, it is his duty to levy on the whole of it and sell it in one parcel or lot, subject to the mortgage ; and, after levying on a part of it, a reason- able time must be given him to find the rest of the mort- gaged property."'^* A levy upon mortgaged chattels quite frequently gives rise to questions as to the respective rights in relation to the property which may be exercised by and belong to the officer making the levy and the owner of the mort- gage lien. The law does not intend to allow either the mortgagee or the execution creditor to overreach or in- fringe the rights of the other, but aims to secure, as far as practicable, the application of the debtor's property to both demands upon principles of justice. The officer therefore has the right, as against the mortgagee, to re- tain the goods in safe and convenient custody for the time prescribed by law for bringing the property to a sale, notwithstanding the fact that the mortgage is past due.''^^ While lie is bound to hold his possession in such 78Jud. Act, eh. 23, §40; Comp. 472; Haynes v. Leppig, 40 Mich. Laws 1915, §12855. 602; Daggett, Bassett & Hills Co. 74 Baldwin v. Talbot, 46 Mich. 19 ; v. McClintock, 56 Mich. 51. Bayne v. Patterson, 40 Mich. 658; 76 Cary v. Hewitt, 26 Mich. 228 Worthington v. Hanna, 2.3 Mich. Macomber v. Saxton, 28 Mich. 516 530; Harvey v. McAdams, 32 Mich. Wilson v. Montague, 57 Mich. e.'JS § 17 Executions 717 a way as not to interfere with the mortgagee's right of sale, he has a right to retain it in custody until a sale is made, and has a right to know the amount and condition of the mortgage indebtedness.'® When the mortgagee proceeds to sell, there is no rea- son why he cannot so far act in concert with the officer as to protect both rights. Unless he has actually adver- tised before the levy, the sale by the officer will usually take place before the mortgagee can have any occasion to act at all. It is easy to imagine possible conflicts, but sensible and honest men can as easily avoid them. Con- current possessions are not rare, and, if the right exists, it must be respected or the parties must take the conse- quences.'' The officer may; for the purpose of the levy, take possession of the property when it is in the hands of the mortgagee.'* The payment or tender of the amount due upon the mortgage is not a condition precedent to the making of the levy and sale.'® A levy upon mortgaged chattels may be made at any time before foreclosure. After foreclosure, the title to the goods has been removed from the mortgagor, and he has no interest in them. Before foreclosure, the title is in him, and subjects the goods to levy under the statute.'" An execution creditor, for whom a levy has been made upon mortgaged chattels, has the same right to protect his interest in the property that any other lien-holder would have, and, to this end, he may pay off the mort- gage, demand and receive an assignment of the mortgage and be subrogated to the rights of the mortgagee." First Nat. Bank v. Summers, 7i5 Judge, 53 Mich. 560; Barber v. Mich, 107; Nelson v. Ferris, ;'.0 Smith, 41 Mich. i:?8. Mich. 497. 78 King v. Ilubbell, 42 Mich. 597. 76 Haynes v. Leppig, 40 Mich. 602. 80 Wilson v. Montague, 57 Mich. See also Merrill v. Denton, 7.'^ Mich. 6.38; Gary v. Hewitt, 26 Mich. 228; 628. Macomber v. Sexton, 28 Mich. 516; 77 Haynes v. Leppig, 40 Mich. Nelson v. Ferris, 30 Mich. 497. 602 ; King v. Hubbell, 42 Mich. 597. 81 Lucking v. Wesson, 25 Mich. 78 Smith v. Menominee Circuit 443. 718 Executions § 18 § 18. Mortgagee's interest. The interest wliicli a mortgagee has in the mortgaged property is not subject to levy.*^ § 19. Property held in trust and other equitable estates. The earlier decisions conclusively established that trust estates were not attachable. This still obtains as a general rule, although by statute an exception has been introduced permitting attachment of legal or equitable interests of parties to contracts for the sale and purchase of land, including lands fraudulently conveyed and cer- tain equities and rights of redemption specially provided for.83 § 20. Partnership property. While, according to the weight of authority, with which the supreme court of this state concurs, a levy may be made upon the individual interest of a partner in the partnership property, such interest must be treated as consisting of a right to an aliquot share of what re- mains after the payment of the partnership debts and the adjustment of accounts between the partners. Ac- cordingly, the sheritf cannot levy upon specific articles belonging to the partnership. It may be doubtful if he can do more in any case than to sell the entire interest of the execution defendant, leaving the purchaser to se- 82Feldman v. Preston, 194 Mich. §12897. See also Jud. Act, eh. 23, 352; Columbia Bank v. Jacobs, 10 S140; Comp. Laws 1915, §12955, Mich. 349. as to payments by vendee in land 83 Trask v. Green, 9 Mich. 358 ; contract in case of levy on interest Maynard v. Hoskins, 9 Mich. 485; of vendor. Gorham v. Wing, 10 Mich. 486; Gor- A levy on the interest of the ven- ham V. Arnold, 22 Mich. 247 ; Thayer dor takes the full legal title and the v. Arnold, 32 Mich. 336; Lee v. beneficiary interest subject to the Enos, 97 Mich. 276; Feldman v. liability of conveying on complete Preston, 194 Mich. 352; Jud. Act, performance by the vendee. Doak ch. 23, § 81 ; Comp. Laws 1915, v. Runyan, 33 Mich. 75. § 22 Executions 719 cure his rights by proceeding's for an accounting against the co-partner of the debtor." §21. Growing" crops. While it is quite true that growing crops are a part of the realty, yet, for the purposes of a levy and sale on execution, they are treated as personalty.®^ The statute provides that, when a levy is made upon grain while growing, or on any unharvested crops, by virtue of an execution, the officer making the levy shall file in the office of the township clerk of the township or city clerk or recorder of the city where such grain or crops are at the time of making the levy, and that such clerk or re- corder shall file such notice in his office in the same man- ner as he is required by law to file chattel mortgages. Such notice will be constructive evidence to all persons of the interest of the plaintiff in the execution. No sale of unharvested crops or grain can lawfully be made un- til they are ripe or fit to be harvested ; but a levy thereon will be continued beyond the return day of the execution, if necessary, for thirty days after they are ripe or fit to be harvested.®^ § 22. Manuscripts, cop3a'ights, books, etc. Unpublished manuscripts are not subject to execution. The right of the proprietor of a manuscript to publish it or keep it from publication is not only a pro))erty right, but one which is purely incorporeal and attended with considerations of a nature entirely different from any involved in other rights. The law will not permit it to be interfered with except as he chooses to make it pub- lic, and the right is one which is entirely independent of S^Kinze v. Cox, 113 Mich. 546; 85 Preston v. Ryan, 45 Mich. 174; Lambert v. Griffith, 50 Mich. 286; Friyer v, McNaughtoii, 110 Mich. Hutchinson v. Dubois, 45 Mich. 22. 143 ; Haynes v. Knowles, 36 Mich. 86 Jud. Act, eh. 23, § 55 ; Comii. 407. Laws 1915, §12870. 720 Executions § 22 locality, and belongs essentially to the owner, wherever he may be, and in whatever locality one or more copies of the writings may be found. The value, when it is con- sidered at all in a pecuniary sense, depends on the in- fonnation or interest of the composition or document, and not on the particular bundle of papers which records it. Even after a work is published, no creditor can reach the copyright, unless some special provision of law is made upon the subject, and it is also well settled that the author's rights are never subject to disturbance except in accordance with statutes. No law can compel a man to publish what he does not choose to publish, and it would be very absurd to hold that books could be seized and sold on execution, which, after the sale, the pur- chaser could not use. Accordingly, it was held that a set of manuscript abstract books would not be subject to execution.®''' It is now, however, provided by statute that all ab- stract books, maps, plats, charts and other records owned or kept by any person, co-partnership or coi-poration for the purpose of furnishing abstracts or information con- cerning the title to lands in this state, shall be liable to seizure and sale on execution in like manner as other per- sonal property.®^ § 23. Choses in action. In the absence of express statutory authority, choses in action are not subject to levy.*^ Orders for the pay- ment of money, such as warrants upon a county treas- urer, being choses in action, are not subject to levy on execution. For the same reason, promissory notes and bills of exchange are not.®" 87 Dart V. Woodhouse, 40 Mich. 194 Mich. 405, 411; Feldman v. 399. Preston, 194 Mich. 352. 88 Jufl. Act, ch. 23, § 37 ; Conip. 90 Jensen v. Oceana Circuit Judge, Laws 1915, § 12852. 194 Mich. 405, 411; People v. Audi- 89 Jensen v. Oceana Circuit Judge, tors of Wayne County, 5 Mich, 223. § 24 Executions . 721 § 24. Corporate shares. Any share or interest of any stockholder in any cor- poration incorporated under the authority of any law of this state, unless expressly exempted by law, may be taken in execution,®^ if standing in his name on the books of the corporation.®^ The officer of the company who is appointed to keep a record or account of the shares or interest of the stock- holders therein, or in whose office there is required to be kept any list or statement showing the stockholders of the corporation and the number of shares held by each or their interest therein, is required, uyjon the exhibiting to him of the execution, to give to the officer holding the execution a certificate of the number of shares or amount of the interest held by the judgment debtor.®^ The officer holding the execution must leave a copy of it, certified by him, with the clerk, treasurer, cashier or agent of the corporation, if there be any such officer, and, if there be not, then with any officer or person who has at the time the custody of the books and papers of the corporation within this state.®* No levy upon shares of stock for which a certificate is outstanding, however, will 91 Jud. Act, ch. 23, §58; Comp. that the legislature provide specifi- Laws 1915, §12873. cally therefor and prescribe in de- As to the exemption of shares in tail, or at least in substance, all building and loan associations, see the means necessary for that ob- Jud. Act, ch. 23, § 45 ; Comp. Laws jeet. Van Norman v. Jackson Cir- 1915, §12860; and Morley Bros. v. cuit Judge, 45 Mich. 204. See National Loan & Investment Co., 120 Lyon v. Denison, 80 Mich. 371. Mich. 171. 92 Feige v. Burt, 118 Mich. 243. Shares of stock in incorporated 93 Jud. Act, ch. 23, §59; Comp. companies were not leviable at com- Laws 1915, § 12874; Blair v. Comp- mon law, being intangible entities ton, 33 Mich. 414. and incapable of caption by the 94 Jud. Act, ch. 23, §60; Comp. methods of that system. Courts of Laws 1915, § 12875; Blair v. Comp- equity used to afford a remedy to ton, 33 Mich. 414. the creditor against such property, Shares cannot be levied upon if but in order that it may be pro- the debtor is not the legal owner, ceeded against without going into a Van Norman v. Jackson Circuit court of equity, it is indispensable Judge, 45 Mich. 204. 1 Abbott— 46 722 Executions § 24 be valid until the certificate has been actually seized by the officer making the levy or has been surrendered to the corporation which issued it or its transfer by the holder has been enjoined or restrained.®^ To this end, it has been provided that the court from which the ex- ecution issued may, upon motion and without notice, make an order restraining such transfer.®^ A copy of the execution and the return thereon, certi- fied by the officer executing the writ, must, within four- teen days after the sale, be left with the officer of the company whose duty it is to keep a record of the trans- fer of shares; and the purchaser will thereupon be en- titled to a certificate or certificates of the shares bought by him, upon paying the fees therefor and for recording the transfer.®''' If the shares or interest of the judgment debtor were attached in the suit in which the execution issued, the purchaser will be entitled to all dividends which accrued after the levy of the attachment.®' § 25. Property devoted to public use. Property devoted to a public use is not subject to ex- ecution,®® and hence the track and roadbed of a railroad comj^any are not subject to execution,^ except pursuant to special statutory provisions.^ § 26. Property assigned for benefit of creditors. An execution levied on property assigned for the bene- fit of creditors after such assignment and before the ex- 96 Jud. Act, ch. 23, § 60 ; Comp. 98 Jud. Act, ch. 23, § 63 ; Comp. Laws 1915, § 12875. Laws 1915, § 12878. 96 Jud. Act, ch. 23, §61; Comp. 99 Campbell v. Western Electric Laws 1915, § 12876. Co., 113 Mich. 333. 97 Jud. Act, ch. 23, § 62 ; Comp. 1 Hackley v. Mack, 60 Mich. 591. Laws 1915, § 12877; Blair v. Comp- 2 McKee v. Grand Rapids, etc., R. ton, 33 Mich. 414; Newberry v. De- Co., 41 Mich 274. troit, etc.. Iron Mfg. Co., 17 Mich. 141. § 28 Executions 723 piration of the time provided for the filing of a bond by the assignee, shall not be valid or create any lien on the property.* §27. Property of deceased person. Executions cannot be issued against the estate of a deceased person until the time limited by the court for the payment of debts has expired,* nor against an ex- ecutor or administrator * except in certain cases where the appointment of commissioners to allow claims has been omitted.^ § 28. Franchises. At common law the franchises of a corporation could not be sold on execution;' but it is provided by statute in this state that ''when any judgment shall be recov- ered against any turnpike or other corporation, author- ized to receive toll, the franchise of such corporation, with all the rights and privileges thereof, together with all their corporate property, both real and personal, may be taken on execution, and sold at public auction. " ' A street railroad company is a "corporation authorized to receive toll," within this statutory provision,^ but it has been held not to apply to telephone corporations, but only to other corporations of the nature of turnpike cor- porations.^" It authorizes the sale only of the right to the possession of the road and its fixtures, and the right of franchise of receiving the tolls for the time agreed upon.^^ 3Jud. Act, ch. 42, §1; Comp. 8 Jud. Act, ch. 23, §65; Comp. Laws 1915, § 13604. Laws 1915, § 12880. 4 Jud. Act, ch. 55, §15; Comp. 9 McKee v. Grand Eapids St. Ry. Laws 1915, § 13878. Co., 41 Mich. 274. 5 Jud. Act, ch. 23, §4; Comp. 10 Ripley v. Evans, 87 Mich. 217. Laws 1915, § 12819. 11 Joy v. Jackson & M. Plauk 6 Jud. Act, eh. 61, §29; Comp. Road Co., 11 Mich. 155, 169. Laws 1915, § 14080. 7 James v. Pontiac & G. Plank Road Co., 8 Mich. 91. 724 Executions § 28 A sale of the franchise for a certain i)eriod in part pay- ment of the execution is unauthorized.^^ § 29. Property in custody of the law. Ordinarily property in custody of the law is not sub- ject to levy without leave of court. ^^ Where an ex- sheriff has attached property in his custody, it is his duty, after an execution has been issued in the suit, to expose such property to the sheriff, on request, so that it may be taken in execution and sold.^* § 30. Real property. By provision of the statute, all the real estate of a debtor not expressly exempted, including legal and equi- table interests in lands acquired by the parties to con- tracts for the sale and purchase of lands, ^^ whether in possession, reversion or remainder, and in lands fraudu- lently conveyed with intent to defeat, delay or defraud his creditors, and the equities and rights of redemption hereinafter mentioned are subject to the payment of his debts, liabilities and obligations, and may be levied upon and sold on execution.^^ 12 James v. Pontiac & G. Plank ' ' Real estate of the debtor, ' ' as Eoad Co., 8 Mich. 91. used in the statute, refers to his 13 Campau v. Detroit Driving Club, legal estate, and does not authorize 130 Mich. 417; Jensen v. Oceana an execution on a trust interest of Circuit Judge, 194 Mich. 405, 411. the debtor in real estate. Trash v. 14 Fletcher v. Morrell, 78 Mich. Green, 9 Mich. 358; Gorham v. 176. Wing, 10 Mich. 486; Feldman v. 16Doak V. Runyan, 33 Mich. 75; Preston, 194 Mich. 352, 359. Lipp V. Jacobs, 198 Mich. 357. In the absence of proof of a fraudu- 16 Jud. Act, ch. 23, § 82 ; Comp. lent conveyance of land to the per- Laws 1915, § 12897. See also Pub. son holding the legal title, the Acts 1917, No. 215. grantor has no interest therein sub- Equitable interest cannot be sold, jcct to execution. McArthur v. 0*1- except as provided above, under ex- iver, 60 Mich. 605. ecution at law. Grover v. Fox, 36 Where the creditor knows, at the Mich. 453 ; Gorham v. Arnold, 22 time of the levy, that the debtor has Mich. 247. parted with his title to the lands, he § 32 Executions 725 § 31. Equity of redemption. All rights of redeeming mortgaged real estate and real estate sold on execution may be sold on execution in the same manner as other real estate, except that, when a judgment is recovered for all or any part of a debt se- cured by mortgage of real estate, it is not lawful to sell the equity of redemption by virtue of an execution upon the judgment." If an execution upon such a judgment cannot be collected out of the other property of the de- fendant, the officer must return it unsatisfied in whole or in part, as the case may be.^' When an execution against the property of a defendant is issued upon a judgment for all or any part of a debt secured by mortgage, it is the duty of the plaintiff or his attorney to indorse upon it a brief description of the premises mortgaged, with a direction to the officer not to levy the execution upon the mortgaged premises or any part thereof. ^^ § 32. Leasehold interests. Leasehold interests in land were formerly sold upon ex- ecution as personalty. The sale of an estate for years in land, for example, was held to be utterly void if made should proceed by bill in aid of ex- fraud of creditors, against a levy by ecution. Spring v. Raymond, 134 an attachment or execution creditor. Mich. 84, Dixon v. Hill, 5 Mich. 404. Lands purchased by the judgment 17 Jud. Act, ch. 23, §§121, 124; debtor but conveyed directly to third Comp. Laws 1915, §§ 12936, 12939. persons, to defraud creditors, are not Interest of mortgagor in land is subject. Trask v. Green, 9 Mich. leviable. Walker v. White, 60 Mich. 358; Maynard v. Hoskins, 9 Mich. 427; Hyde v. Shank, 77 Mich. 517; 485, Gorham v. Arnold, 22 Mich. 547. Where land has been previously The interest of one who conveys conveyed, a levy under execution by deed absolute in form but in- against the vendor gives no better tended as a mortgage is leviable, title than is held by the debtor. Flynn v. Holmes, 145 Mich. 606. First Nat. Bank v. Buck, 56 Mich. 18 Jud. Act, ch. 2.3, §126; Comp. 394. Laws 1915, § 12941. No one but a purchaser for a valu- 19 Jud. Act, ch. 23, § 125; Comp, able consideration can claim title to Laws 1915, § 12940. projierty which has been assigned in 726 ExECUTioJ^s § 32 in accordance with the statutory provisions for the sale of real estate on execution; ^° but now, by statute, lease- hold interest in lands are subject to levy and sale upon execution, and the proceedings therefor are the same in all respects as in case of a sale of the fee simple, except that, in the case of farm leases, the debtor has the right to select from the crops growing on the farm any of the crops to the extent provided for in subdivisions six, eight and nine of section forty-three of chapter twenty-three of the Judicature Act relating to exemptions.^^ The term, "leasehold interest," as used in this state, includes mining licenses for mining ores or minerals, but not tenancies at will.^^ § 33. Property held jointly. The interest of a joint tenant in the joint estate ^' or of a tenant in common ^^ is subject to execution. And where a judgment is obtained against two defendants on a joint and several demand, the interests, joint or several, of both defendants in land, is leviable.^^ But a crop raised on a farm held in the names of husband and wife as tenants by entirety is not subject to execu- tion against the husband where there was no agreement between the spouses as to the ownership of the crop.^^ So land held by husband and wife as tenants by entirety is not subject to levy under an execution on a judgment rendered against either husband or wife alone, although it is subject to levy on a joint judgment against both hus])an(l and wife.^'' 20 Buhl V. Kenyon, 11 Mich. 249; 23 Midgley v. Walker, 101 Mich. Grouse v. Mitchell, 130 Mich. 347. 583. 21 .Tud. Act, ch. 23, § 141 ; Comp. 24 Michigan State Bank v. Kern, Laws 191.5, §12956. 189 Mich. 467. The exception was first Intro- 25 Hewitt v. Durant, 78 Mich. 186. duced by the Judicature Act. 26 Dickey v. Converse, 117 Mich. 22Jud, Act, ch. 23, §146; Comp. 449. Laws 1915, § 12961. 27 "Upon principle, we can see no § 34 Executions 727 C. Levy and Lien § 34. Sufficiency of, effect and time for. A levy is the act by which a sheriff sets apart and ap- propriates, for tlie purpose of satisfying the command of a writ of execution, a part or the whole of the prop- erty of the person against whom the execution issues,^^ or, more briefly, it is the taking possession of property by an officer under a writ ; ^^ and it may be laid down as a general principle, respecting the levy on goods and chattels, that the acts of the officer in asserting his rights and divesting the possession of the defendant should be of such a character as would make him liable as a tres- passer but for the protection of the process.^" In mak- ing a levy upon personal property, the officer must re- duce it to his possession so far as can be done under the circumstances, though in doing so it is not necessary that any notoriety should be given to the act in order to make it effectual. What is an actual possession sufficient to constitute a levy must depend upon the nature of the property, and, in general, it may be said that it should be such a custody as will enable the officer to retain and assert his power and control over the property to such reason why the real estate of bus- of homestead and statutory exemp- Vjand and wife held by them as ten- tions. " Sanford v. Bertrau, 204 ants by the entireties, independent Mich. 244. of homestead and statutory exemp- 28 Lloyd v. Wyckoff, 11 N. J. L. tions, should not be subjected to 218; Burkett v. Clark, 46 Neb. 466. the payment of their joint de^bts. 29 Pracht v. Pister, 30 Kan. 573. They own the entire property. The 30 Quackenbush v. Henry, 42 Mich, parts cannot be greater than the 75; Drake, Attachm. sec. 255a, cit- whole. They may dispose of it by ing Bcekman v. Lansing, 3 Wend, their joint action. Each is liable to (N. Y.) 446; Westervclt v. Pinek- pay the whole judgment, and both ney, 14 Wend. (N. Y.) 123; Camp v. are liable to pay any part of it. As Chamberlain, 5 Donio (N. Y.) 198; a general proposition it may be said Goode v. Longmire, 35 Ala. 668; that real estate owned jointly by in- Abrams v. Johnson, 65 Ala. 465; dividuals is subject to levy and sale McBurnie v. Overstreet, 8 B. Hon. upon an execution running against (Ky.) 300; Allen v. MeCalla, 25 such owners jointly, in the absence Iowa 464. 728 Executions §34 an extent that it cannot probably be withdrawn or taken by another without his knowing it.^^ In levying upon machinery fastened to a building by bolts, it is not neces- sary, in order to make good or retain the levy, to detach and remove the property from the building or place in which it was found; ^^ and, in levying upon growing- crops, a constructive possession only is all that is possible or necessary.^' But, according to the most liberal rule, the levy must be so made that it identifies or gives the means of identifying what is levied upon, so that any property levied on may be made chargeable to the officer and property not levied on cannot subsequently be claimed. The property must be seized manually or by the assertion of such control as may be made effectual if necessary.^* The officer may enter upon the premises of the execu- tion defendant for the purpose of levying upon his goods, but in doing so he should exercise a due regard for the rights of the defendant, and in no case should he oust him from the possession of the premises.^^ The officer also has no right to break the outer door of the defendant's dwelling for the purpose of a levy, and a levy so made would be invalid; ^^ but, if he has entered without break- ing an outer door, he may break any inner door if neces- sary, after making demand that it be opened,^''' and he may break even an outer door of a store or other building not being a part of the defendant 's dwelling.^® 31 Drake v. Attachm. sec. 256. (Del.) 246; People v. Hubbard, 24 32 Patch V. Wessels, 46 Mich. 249. Wend. (N. Y.) 369. 33 Grover v. Buck, M Mich. 519. 37 Snydacker v. Brosse, 51 111. 357. Mode of levying on growing crops, 38 Haggerty v. Wilber, 16 Johns. sec §21, ante. (N. Y.) 287; Nelson v. Van Ga- 34 Quackenbush v. Henry, 42 Mich. zelle Valve Mfg. Co., 45 N. J. Eq. 75. 594. SB Bayne v. Patterson, 40 Mich. He may break down a common 658. outer entrance to a store and a 86 Bailey v. Wright, 39 Mich. 96; dwelling. Stearns v. Vincent, 50 Ilsley V. Nichols, 12 Pick. (Mass.) Mich. 209. 270; Saunders v. Milward, 4 Harr. § 34 Executions 729 A levy upon real estate does not dispossess the owner as formerly, and it is not necessary for the officer making the levy to enter upon the land, or even to have it in view, the lien of the execution being perfected under the pres- ent practice by filing a notice of levy in the office of the register of deeds of the county in which the land affected is situated,^® which answers the same purpose as the tak- ing of possession does in the case of personal property.*" The lien so obtained is, from the filing of the notice, valid against all prior grantees and mortgagees of whose claims the party interested had not actual or construc- tive notice.*^ The notice of levy should be definite and certain,*^ and, being an official act required by law and intended for the very purpose of enabling all persons to know what levy has been made, is primary evidence of the levy, which, as to purchasers at least, must be held conclusive proof that nothing has been levied on which is not described in it." A levy may be made at any time from the issue of the writ to and including the return day, but not after- wards.** When, however, an officer has begun to serve an execution on or before the return day, he may com- plete the service and make return after the return day.** Levying on exempt property,*^ on a homestead,*'' on money or evidences of debt,*^ or on shares of stock,*® is noticed elsewhere. 39JucI. Act, eh. 23, §83; Comp. Whitney, 61 Mich. 518. Laws 1915, §12898; Campau v. « Canipau v. Barnard, 25 Mich. Barnard, 25 Mich. 381; Vronian v. 381. Thompson, 51 Mich. 452 ; First Nat. 44 Quackenbush v. Henry, 42 Mich. Bank v. Phillpotts, 155 Mich. 331. 75; Smith v. Thompson, Walk. Ch. 40 Ward v. Citizens' Bank, 46 1; Blair v. Compton, 33 Mich. 414; Mich. 332. Evans v. Caiman, 92 Mich. 427. 41Jud. Act, ch. 23, §83; Comp. 45 Jud. Act, ch. 23, §22; Comp. Laws 1915, § 12898. Laws 1915, § 12837. 42 Savidge v. Seager, 175 Mich. 46 See Exemptions. 47; Campau v. Barnard, 25 Mich. 47 See Homestkads. 381 ; Burrowes v. Gibson, 42 Mich. 48 See § 16, ante. 121; Davis Sewinpr Mach. Co. v. 49 See §24, ante. 730 Executions § 34 Form of Notice of Levy Upon Real Estate Under Fieri Facias State of Michigan. (Title of court and cause.) To Whom It May Concern : Notice is hereby given that by virtue of a writ of fieri facias issued out of said court in favor of the said plaintiff (or, defendant), against the goods and chattels, lands and tenements of the said defendant (or, plain- tiff), to me directed and delivered, I did, on the day of , A. D , levy upon the following described lands and tenements, to wit: (Describe the lands and tenements.) Dated, etc. S. T., Sheriff of said County. § 35. Levy on mortgaged goods. Where mortgaged chattels are levied on on a writ against the mortgagor, the officer may take and retain possession of the goods for the time necessary before exe- cution sale,^** notwithstanding the mortgage is past due ; ^^ and the mortgagee cannot claim possession as against the officer, while he holds under his levy, al- though the mortgage debt is due,^^ and notwithstanding the levy and the debt on whicli it is based are subsequent to the mortgage debt.^^ However, the mortgagee and the officer may have concurrent possession of the mortgaged goods, the officer retaining custody until the mortgagee's sale and having a right to know the amount and condi- tions thereof; and when the mortgagee sells he can pro- tect the rights of the officer as well as his own.** The levy is in effect a levy on the right of redemption,** but it may be necessary to take possession of distinct articles separately.*^ The levy must be subordinate to the rights of the mortgagee, and if the sale is made witliout first paying off the mortgage it must be a sale of the goods in 50 Wilson V. Montague, 57 Mich. 54 Haynes v. Leppig, 40 Mich. 602. 638; King v. Hubbell, 42 Mich. 597. 66 Bayne v. Patterson, 40 Mich. 51 Cary v. Hewitt, 26 Mich. 228. 658. 62 Nelson v. Ferris, 30 Mich. 497. 56 Harvey v. McAdams, 32 Mich. 53 Wilson V. Montague, 57 Mich. 472. 638. § 36 Executions 731 gross, subject to the mortgagee's lien.*'' The execution creditor need not pay off the mortgage as a condition precedent to -an execution sale thereof against the mort- gagor;** but the interest of the mortgagee cannot be disturbed by an execution creditor unless he pays the mortgagee or makes a tender, which he may do at any time before sale.*^ If the value of mortgaged property does not exceed the mortgage, a levy under execution confers no interest.^" § 36. Duty of officer in caring for property before sale. Having made the levy, it is the duty of the officer to keep the property under sufficient safeguards for its protection until it can be offered for sale. By virtue of the levy, he is vested with a special interest in the goods levied upon, and is liable for their value in case they are lost through his fault, and may, by the usual legal reme- dies, protect his special interest in case it is disturbed.^^ His custody of the goods and liability for their safe- keeping is in the nature of a bailment. He becomes bailee for all the parties interested. He must use due diligence to keep them safely to satisfy the execution, but he is not an insurer, and is not, like a common carrier, answerable for a loss of the goods by fire. He is not responsible be- yond reasonable watchfulness and precaution and the employment of pro])er means of security. He should, however, be held to greater care than owners usually take of their property, for the reason that goods so held are more liable to be molested than goods not under seizure. "^^ 67 Smith v. Menominee Circuit 60 Stack v. Olmsted, 127 Mich. 359. Judge, 53 Mich. 560. 61 Drake Attachm. sees. 290, 291. 58 King V. Hubbell, 42 Mich. 597. See Jud. Act, ch. 23, § 50 ; Comp. Contra, Worthington v. Hanna, 23 Laws 1915, §12865. Mich. 530. 62 Fletcher v. Aldrich, 81 Mich. 69 Wilson V. Montague, 57 Mich. 186. 638. 732 Executions § 36 The officer must do no act and suffer no omission which will amount to an abandonment of the levy. To this end, it is necessary that the control of the property from the levy to the sale be continuous. It is not indispensable that the goods remain in the actual and continued posses- sion of the officer, nor that an assistant of the officer be left in possession of them, nor that they be removed. Where the officer does not himself keep the goods in his actual possession, it is customary that he place them in the charge of a custodian or keeper, or deliver them to a receiptor for their delivery to him on demand; but they may be left in the custody of the defendant at the risk of the officer. The possession of the receiptor is in law the possession of the sheriff, and, accordingly, a seizure of the goods from the receiptor is considered as being a seizure from the sheriff.^^ As between the receiptor and the sheriff, if the former fail to deliver the goods to the latter on demand, he is liable to the sheriff in an action for conversion.^* An officer who has levied upon a quantity of wheat in the mow has no authority to thresh it before selling it,^' nor has he any authority to work animals which he has taken on execution to pay the expenses of keeping them.^^ § 37. Effect of and remedy for excessive levy. It is the duty of the officer to levy upon such a quan- tity of the defendant's property as will be sufficient to satisfy the execution and the costs of the levy and sale, if so much can be found not exempt from execution, but he should not seize an excessive amount. The officer thus owes a duty, on the one hand, to the plaintiff to seize enough, and, on the other, to the defendant not to seize too much. The officer is vested with considerable dis- 68 Mayhue v. Snell, 37 Mich. 305. 65 Stillman v. Gibbs, 40 Mioh. 42. 64Burk v. Webb, 32 Mich. 173; 66 Bushey v. Baths, 45 Mich. 181. Bowen v. Gulp, 36 Mich. 224. § 39 Executions 733 cretion in the matter, and his levy will not be open- to criticism as being excessive, unless it be grossly exces- sive, especially where the property levied upon is real estate. If a levy be excessive, it is not for that reason void, but merely voidable, and the remedy of the execu- tion defendant is by motion, before sale, to the court from which the process emanated, to set the levy aside. ^' § 38. When levy may be made and service of writ com- pleted. A levy must be made on or before the day on which the execution is made returnable; otherwise it will be in- valid.^^ If it be made within that time, the service of the writ may be completed by a sale of the property after that day.^® Where the officer has commenced the execu- tion of the writ before the return day, he may complete it afterwards; and so, where he has commenced its execu- tion during his official term, he may complete it after his term of office has ceased. Such was the rule at common law, and it has been recognized by statute in Michigan and many of the other states.''^" § 39. Indemnity bonds. Under an execution, an officer is authorized to seize only the property of the execution debtor not exempt from execution, and only so far is he protected by his w^rit. If he exceeds his authority by seizing the prop- erty of a third person or property of the execution debtor that is exempt, he becomes liable to the party aggrieved and enjoys no protection in such case by the writ. Be- tween this liability on the one side and the duty to seize the property of the defendant according to the exigency of the writ on the other, the officer is sometimes per- 67Campau v. Godfrey, 18 Mich. 69 Smitli v. Thompson, Walk. Ch. 27. 1. 68 Quackcnbush v. Henry, 42 Mich. 70 Blair v. Compton, 33 Mich. 414. 75; Blair v. Compton, 33 Mich. 414. 734 Executions § 39 plexed as to what course to pursue in cases where the real ownership of the property is in doubt, or, if that be not in doubt, where it is uncertain whether the property is such as, under the circumstances, is exempt from execu- tion. To alleviate this embarrassment on the part of the officer, it is provided by statute that, whenever there is any reasonable doubt as to the ownership by a judgment debtor of any goods or chattels or as to their liabilitj^ to be taken on execution, the officer holding the execution may require of the judgment creditor sufficient security to indemnify him for taking such goods and chattels thereon; and, if such security be refused, the officer will not be liable for omitting to take si^ch goods or chattels.'''^ Form of Bond of Indemnity to Sheriff for Levying Under an Execution Know all men by these presents, that we, A. B., as principal, and E. F. and G. H., as sureties, are held and firmly bound unto S. T., sheriff of the county of , in the sum of dollars, lawful money, to be paid to the said S. T., or his certain attorney, executors, administrators or assigns, for which payment, well and truly to be made, we bind ourselves, our, and each of our, heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , in the year one thousand nine hundred Whereas the above-bounden A. B., on the day of , A. D. , obtained a judgment in the circuit court for the county of against C. D. for the sum of dollars, damages and costs, upon which an execution was, on the day of , A. D , issued out of said court, directed and delivered to the said S. T., sheriff as afore- said, commanding him that, of the goods and chattels of the said C. D., he should cause to be made the damages and costs aforesaid; And whereas certain goods and chattels appear to belong to the said C. D., but are claimed by W. S., which said goods are described as follows: 'Here describe the property:) Now, the condition of this obligation is such that if the above-bounden J . B. shall well and truly save and keep harmless and indemnify the said S T. and all persons assisting him in and about the taking of the said goods and chattels under and by virtue of the said execution from all dam- ages, costs, actions, judgments, decrees, and executions that shall at any 71Jud. Act, ch. 23, §18; Comp. tachment levy. Smith v. Cicotte, 11 Laws 1915, § 12833. Mich. 383. Rule applies equally well to at- § 41 Executions 735 time arise, be brought or rendered against him or them or any of them for the taking and making sale, under said execution, of the said goods and chattels, or any part thereof, which he may deem the property of the said C. D., and in entering any land, building, or other premises for the purpose of taking said goods and chattels, or any part thereof, then this obligation is to be void; otherwise to remain in full force and effect. A. B. [L. S.] E. F. [L. S.] (Add justification.) G. H. [L. S.] § 40. Priority of executions. If there be several executions issued out of a court of record against the same defendant, the one wliicli has been first delivered to the officer to be executed will have preference, notwithstanding a levy may have been first made under another execution; but, if a levy and sale of any goods or chattels have been made under such other execution before an actual levy under the execution first delivered, such goods and chattels cannot be levied upon or-sold by virtue of the first execution; and, as between one or more executions and one or more attachments against the property of the same person, the rule is the same. But any execution or attachment issued out of a court not of record, if actually levied, wdll have prefer- ence over any other execution or attachment issued out of any court, whether of record or not, which has not been previously levied.'^ § 41. Notice of levy on real estate. The statute declares that no levy by execution on real estate shall be valid against bona fide conveyances made subsequent to the lev}^ until a notice thereof, containing the names of the parties to the execution, a description of the premises levied upon and the date of the levy, is filed by the officer making the same in the office of the register of deeds of the county where the premises are situated, 72Jud. Act, ch. 23, §§7-9; Comp. Laws 191.'5, §S 12822-12824. 736 Executions § 41 that such levy shall be a lien thereon from the time when such notice is so deposited, and that the lien thus ob- tained shall, from the filing of the notice of levy, be valid against all prior grantees and mortgagees of whose claims the party interested shall not have actual or con- structive notice." A notice of levy in the case of real estate answers the same purpose as the taking possession of the property in the case of personalty.''^* It is the duty of the register of deeds to enter upon the notice of levy so filed with him a minute of the time of receiving it and to record it in a book to be kept for that purpose. He is required to make an index to such record, in such manner as will be convenient for public reference, of the names of parties to the execution as stated in the notice, and is entitled to receive for making and filing the notice the sum of fifty cents, and, for recording the notice, the same fees as for recording notices of the pendency of suits in chanceiy. These fees the officer making the levy should add to the costs to be collected by his execution and collect them in like manner.'* § 42. Effect on leasehold interests. In regard to leasehold interests in lands levied upon by execution, upon the filing of notice of levy, it will be notice of all the rights acquired by the plaintiff and pur- chaser at the sale, and the plaintiff in execution or his 73Jud. Act, ch. 23, §83; Comp. priority accorded to a conveyance Laws 1915, §12898; Savidge v. Sea- duly recorded; but possession at the ger, 175 Mich. 47, holding notice time of levy of a tenant in common insufficient where name of plat was is notice of more than his record wrong, and also that description title. Schmidt v. Steinbach, 193 sufficient in deed is not necessarily Mich. 640. To same effect, Atkinson sufficient in notice; Corey v. Smal- v. Akin, 197 Mich. 289. ley, 106 Mich. 257; Lachelt v. Mc- 74 Ward v. Citizens' Bank, 46 Inerney, 185 Mich. 413, holding Mich. 332 ; First Nat. Bank v. Phill- judgment creditor had no actual no- potts, 155 Mich, 331. tice; Gardner v. Mason, 130 Mich. 76 Jud. Act, ch. 23, §83; Comp. 436. Laws 1915, § 12898. The levy is thereby given the same § 44 Executions 737 attorney is thereafter entitled to reasonable notice from the lessor in case the lessor intends to forfeit the lease for any default made by the lessee or persons claiming under him, to the end that the plaintiff shall have a rea- sonable opportunity to comply with the terms of the lease and save a forfeiture; and, in case the plaintiff or execution jiurchaser is compelled to pay any rent due at the date of the sale on execution or previous thereto, no redemption will be allowed until the amount so paid is refunded to the plaintiff or execution purchaser, with in- terest, in addition to the amount for which such lease- hold interests have been sold on execution.''''^ § 43. How long levies on land endure. It is now provided by statute that every levy by execu- tion on real estate shall cease to be a lien thereon and shall become and be void at and after tlie expiration of five years from the making of the levy, unless such real estate be sooner sold thereon." Before the enactment of this statute, no limitation was put upon the duration of a lien by execution levy on land, and it was held that the lien was not lost by delay in proceeding to sale, where no fraudulent purpose was shown on the part of the execution creditor.'''* The time during which a sale was enjoined is not to be included in figuring the five years."'^^ § 44. Bill in aid of levy. Where the equitable interest of a judgment debtor is levied on, the judgment creditor may file a bill to ascer- tain the rights and equities of the debtor.*" The title of 76 Jnd. Act, eh. 23, §142; Comp. tioiis in the Tiioantinie. Mosher v. Laws 1915, § 12957. Borden, 201 Mich. 106. 77Ju(l. Act, eh. 2.3, §84; Comp. 78 Ward v. Citizens' Bank, 46 Laws 1915, §12899; Bliss v. Slater, Mich. ,332; Ludeman v. Hirth. 96 144 Mieh. 648. Mieh. 17. Five year limit is not affected by 79 Steele v. Bliss, 166 Mich. 59.3. judgment being barred by limita- SO.Jud. Act, cli. 23. §82: Conu». 1 Abbott— 47 738 Executions § 44 a mortgagee of land before foreclosure is an equitable title rather than a legal one, and hence within this stat- ute.*^ Where a judgment creditor seeks to levy on land fraudulently conveyed by the debtor, he must strictly comply with this statute.'*^ The failure of a judgment creditor to proceed under this statutoiy provision is fatal.^' Where the legal title to property has been trans- ferred by the execution debtor before a levy, the sheriff cannot file a bill in aid of the levy, since the remedy is available only to a creditor or his legal representatives.'* So where defendant in an attachment suit is not served and does not appear, plaintiff cannot maintain a bill in aid of his execution.®^ A judgment which is voidable but not void is a sufficient foundation for a bill in aid of exe- cution.*^ Execution purchasers cannot file a bill to set aside a fraudulent conveyance of the property before the judgment.®''' A return terminates the lien of the levy, so that a bill in aid of execution will not thereafter lie.*' The purchaser of the interest of the grantor in a deed ab- solute intended as a mortgage takes a legal interest or title and is not obliged to file his bill in aid of execution to ascertain the equities of the parties.** § 45. Waiver or abandonment of levy. An officer may waive or relinquish a levy,*° but an abandonment is not necessarily implied by a return in- dorsed on the writ stating the fact of levy and that the Laws 1915, § 12897. See Lipp v. 84 Hackley v. Mack, 60 Mich. 591. Jacobs, 198 Mich. 357, and Stace's 86 Bliss v. Tyler, 159 Mich. 502. Mich. Chancery Practice, § 503. 86 Griffin v. McGavin, 117 Mich. 81 Gordon v. Township of Bur- 372. leigh, 153 Mich. 493. 87Cranson v. Smith, 47 Mich. 189. 82 Jcnison v. Eankin, 57 Mich. 49 ; 88 Studley v. Ann Arbor Sav. Newcomb v. Montague, 194 Mich. 74. Bank, 112 Mich. 181. See also L. Starks Co. v. Eppink, 89 Flyun v. Holmes, 145 Mich. 606. 185 Mich. 233. 90 Weber v. Henry, 16 Mich. 399 ; 83 Kunze v. Solomon, 126 Mich. Cohen v. Henry, 16 Mich. 405. 290. § 47 Executions 739 writ was returned as commanded by plaintiff.^^ Whether an officer has waived his levy of execution is ordinarily a question for the jury,®*^ and the taking out of a second execution is not conclusive of an abandonment of the prior execution.** Delay in advertising the sale is not necessarily an abandonment.** § 46. Claims of third persons to property levied on. At common law, a third person cannot intervene and claim property levied on, and there is no statute in this state authorizing such procedure.*^ AVhere a third per- son claims title or rights in property levied on or sold as the property of another, he may bring trover *^ or re- plevin,*'' against the officer; and one claiming rights in property sold on execution is not precluded by the re- turn of the officer from showing the real facts as to the validity of the levy and sale.*® When an officer claims property under an execution, he must show that the exe- cution was warranted by the judgment, where sued therefor.** D. Sale § 47. In general. There are certain rules applicable both to sales of real, and to sales of personal, property, while some of the stat- utes relate only to one or the other kinds of sales. 630 (extent and validity of oflScor's lien are questions for the jury) ; Hanselman v. Kegel, 60 Mich. 540; Carew v. Matthews, 41 Mich. 576 (suflSciency of plea in abatement) ; McMillan v. Lamed, 41 Mich. 521 (execution creditor properly joined 96 Peterson v. Swenningston, 178 as defendant). See also Grand Kap- Mich. 294, 297. ids Brewing Co. v. Pettis, 159 Mich. 96 See Freedman v. Campfield, 92 679. Mich. 118; Tunningly v. Butcher, 98 Winfield v. Adams, 34 Mich. 437. 106 Mich. 35, instructions to jury. 99 Gidday v. Witherspoon, 35 97 O'Connor v. Gidday, 63 Mich. Mich. 368. 91 Vroman v. Thompson, 51 Mich. 452. 92 Vanosdall V. Hamilton, 118 Mich. 533. 93 Friyer v. McNaughton, 110 Mich. 22. 94 Baldwin v. Talbot, 46 Mich. 19. 740 Executions §47 The sale may be made by the successor in office of the officer making the levy ^ or by the officer making the levy after his term has expired.^ The law in force at the time of the sale, and not the law in force at the time of the rendition of judgment, controls the conduct of the sale.^ § 48. Time of sale. It is the duty of the sheriff, in serving a writ of execu- tion, to conduct the business from beginning to end with an intelligent view of the respective interests of all the parties concerned, and especially in such a way as not needlessly to injure the defendant. He is vested with some discretion as to when he shall bring the property on for sale, and does not become a trespasser ab initio by keeping it a little longer than is absolutely necessary for giving notice and making sale.* The reasons and cir- cumstances of the particular case must largely govern in questions of this kind. The time of sale is fixed by the notice of sale, and a sale before the time advertised is void.^ A sale made after nine o'clock at night has been held invalid because of the hour.'' In case of a sale of real estate, the statute fixes the time for sale as between nine a. m. and the set- ting of the sun.'' Growing crops or unharvested grain cannot be sold until ripe or fit to be harvested,® but perishable property should be sold as soon as practicable.^ 1 Taylor v. Boardman, 2.'> Mich. 6 McNaugliton v. McLean, 73 317. Mich. 250. 2Vroman v. Thompson, 51 Mich. 7 Jud. Act, eh. 23, §87; Comp. 452; Blair v. Compton, 33 Mich. 414. Laws 1915, § 12902. 3 Crane V. Hardy, 1 Mich. 56. 8 Jud. Act, ch. 23, §55; Comp. 4 Bird v. Perkins, 33 Mich. 28; Laws 1915, § 12870. Stilson V. Gibbs, 40 Mich. 42. 9 See § 52, post. 5 Wienskauwski v. Wisncr, 114 Mich. 271. § 50 Executions "^^l § 49. Place of sale. Real estate must be sold on execution at the court house in the county where located." Personal property must be sold in the county to the sheriff of which the exe- cution was issued. ^^ § 50. Notice of sale. In case of personal property, it is provided by statute that no sale of any goods or chattels can be made by virtue of an execution, unless at least ten days' previous notice of such sale has been given by fastening up writ- ten or printed notices thereof in three public places in the city or township where the sale is to be had, specify- ing the time and place when and where the same is to be had.^^ In addition, where the execution is against any ''turnpike or other corporation authorized to receive toll," certain special provisions are applicable." In case of real estate, notice of the time and place of holding the sale is required by statute to be given as follows: 1. A written or printed notice thereof must be fastened up in three public places in the township or city where the real estate is to be sold, six weeks previous to the sale, and, if the sale is to be made in a township or city different from that in which the premises to be sold are situated, then such notice must also be fastened up in three public places in the township in which the premises are situated. 2. A copy of such notice must be published once in each week for six successive weeks in a news- paper printed in the county in which the real estate is to be sold, if there be one. 3. If there be no newspaper printed in such county, then such notice must be pub- lished once in each week for six successive weeks in some lOJud. Act, ch. 23, §87; Comp. 13 Jud. Act, eh. 23, §66; Comp. Laws 1915, § 12902. Laws 1915, § 12881. 11 Baker v. Casey, 19 Mich. 220. 12 Jud. Act, ch. 23, § 51 ; Comp. Laws 1915, § 12866. 742 Executions § 50 newspaper printed in an adjoining county.^* In every such notice, the real estate to be sold must be described with common certainty, by setting forth the name or number of the township in which it is situated and the number of the lot or by some other appropriate descrip- tion of the premises.^^ Form of Notice of Sale of Personal Property NOTICE OF SALE Notice is hereby given that, by virtue of a writ of fieri facias issued out of the circuit court for the county of , in favor of A. B. against the goods and chattels, land and tenements of C D. in said county, to me di- rected and delivered, I did, on the day of , A. D , levy upon and take the following described goods and chattels, belonging to the said C. D., to wit: (Here describe the property;) all of which I shall expose for sale at public vendue, to the highest bidder, at , on the day of , A. D , at o 'clock in the noon. Dated, etc. S. T., J. K., Attorney for Plaintiff (or. Defendant). Sheriff. Business address: , Mich. 14 Jud. Act, ch. 23, § 85 ; Comp. the want of notice, or the taking Laws 1915, § 12900. down or defacing the same, does not The ofl&cer is liable to the party affect the validity of a sale to a injured in five hundred dollars dam- purchaser in good faith, and without ages, besides the actual damages notice of the omission, taking down, proven on the trial, if he sell with- or defacing. Jud. Act, ch. 23, §§ 88- out the previous notice required by 90; Comp. Laws 1915, §§12903- law, or otherwise than in the man- 12905. ner prescribed by the statute. If Sheriff's deed not invalid because any person shall take down or de- his return fails to show that notices face any notice of a sale of real of sale were duly posted. Grand estate, put up by any officer, previ- Rapids Nat. Bank v. Kritzer, 116 ous to the day of sale therein speci- Mich. 688. fied, unless upon satisfaction of the 16 Jud. Act, ch. 23, §86; Comp. execution by virtue of which such Laws 1915, §12901; Burrowes v. notice shall have been given, or upon Gibson, 42 Mich. 121; Bcysehlag v. the consent of the party suing out Van Wagoner, 46 Mich. 91. such execution, and of the defendant Affidavit of publishers is sufficient therein, such person shall be liable to prove newspaper publication of therefor to the party in whose favor notice of sale. Vroman v. Thomp- such execution was issued, in the son, 51 Mich. 452. sum of fifty dollars damages. But § 51 Executions 743 Form of Notice of Sale of Real Estate NOTICE OF SALE Notice is hereby given that, by virtue of a writ of fieri facias issued out of the circuit court for the county of , in favor of A. B., against the goods and chattels, lands and tenements, of C. C, in said county, to me directed and delivered, I did, on the day of A. D. .' , levy upon and take all the right, title and interest of the said C. D. in and to the following described lands, to wit: (Here describe the property;) all of which I shall expose for sale at public vendue, to the highest bidder, at the front door of the court house, at , in the said county (specifying the building where the circuit court is holden in the county in which the real estate is situate, and adding; that being the place of holding the circuit court within said county), on the day of , next, at 'clock in the noon (name some time between the hour of nine o'clock in the morning and the setting of the sun). Dated, etc. S. T., . _ . Sheriff. J. K., Attorney. Business address : , Mich. § 51. Postponement or adjournment of sale. If, at the time appointed for the sale of any real or personal property on execution, the officer deems it ex- pedient and for the interest of all persons concerned to postpone the sale for want of purchasers or other suffi- cient cause, he may postpone it from time to time until it has been completed. In every such case, he must make public declaration thereof at the time and place previous- ly appointed for the sale; and, if the postponement be for a longer time than twenty-four hours, notice thereof must be given in the same manner as the original notice of the sale was required to be given. ^^ In case of a sale of real estate, the sheriff or other offi- cer making the sale has power to adjourn the sale from time to time for a reasonable cause. If the adjournment be for more than one week, he is required to give notice of it in the newspaper in which the original notice was 16 Jud. Act, ch. 23, § 5?, ; Comp. Laws 1915, § 12868. 744 Executions § 51 printed, and immediately following the same, and must continue the publication of both such notices during the time for which the sale is adjourned; but he is not re- quired to post any notice of the adjourned sale except at the place where it is to be made.^' § 52. Sale of perishable property. AVhenever the sheriff, by virtue of an execution issued by a court of record, levies upon any peaches, black- berries, raspberries, strawberries or other perishable property, it is his duty to proceed to sell the same at such time, place and manner as the court from wliich the execution issued orders." In such order, the court should direct that notice of the time and place of sale be given to the defendant or his agent and how such notice shall be given. ^^ § 53. How sale conducted. No personal property should be exposed for sale on execution unless the property is present and within the view of those attending the sale, and it must be offered for sale in such lots or parcels as are calculated to bring the highest price.^° A sale of personal property not within the bailiwick of the sheriff, nor within the view of the bidders, is in- valid and conveys no title to the purchaser.^^ Thus, a sale of a growing crop of corn made at a place half a mile distant, and from which the property sold could not njud. Act, eh. 23, §85; Comp. 116; Eowan v. Eedfeld, 31 Ark. 648; Laws 1915, §12900. Gaskill v. Aldrich, 41 Ind. 338; 18Jud. Act, ch. 23, §§56, 57; Ainsworth v. Greenle, 3 Murph. (N. Comp. Laws 1915, §§12871, 12872. C.) 470; Tibbetts v. Jageman, 58 19Jud. Act, ch. 23, §57; Comp. 111.43, Laws 1915, § 12872. Sale is voidable but not void where 20 Jud. Act, ch. 23, § 52 ; Comp. personal property is not present at Laws 1915, § 12867. place of sale. Winfield v. Adams, 34 21 Baker v. Casey, 19 Mich. 220; Mich. 437. Cresson v. Stout, 17 Johns. (N. Y.) § 53 Executions 745 be seen, cannot be supported ; ^^ but a sale of wheat on the ground, made at a point within plain view of the wheat and of the place where it was advertised to be held, but thirty or thirty-five rods from the latter, is con- sidered as being held substantially at the place ap- pointed.^' It is the duty of the officer to sell the property in such lots or parcels as to command the highest price, and, if he willfully sacrifices the property, he is liable to the party injured; but he has a large discretion, and is not always required to sell each particular article sepa- rately.^* When mortgaged chattels have been levied upon and are to be sold under execution, they must be sold, not in parcels, but all together, subject to the lien of the mortgage, unless, however, the mortgage be first paid, in which case they may be sold as if the mortgage ha'd never existed.^^ The sheriff should limit his sale to enough of the prop- erty levied upon to satisfy the execution, with costs and expenses. Continuing to sell after the execution is satis- fied is lawless conduct and cannot be justified upon any theory.^^ The sale must be for cash, unless by the order of the court or the agreement of the interested parties. If, without such an order or agreement, the officer sells on credit or accepts anything in lieu of cash, he does so at his own risk and must account as for a cash sale. If the property levied upon be no more than sufficient to satis- fy the execution and costs of sale, it would seem that the consent merely of the execution plaintiff to a credit sale 530; Harvey v. McAdams, 32 Mich. 472; Smith v. Menominee Circuit Judge, 53 Mich. 560; Ganong v. Green, 71 Mich. 1 ; Daggett, Bassett & Hills Co. V. McClintock, 56 Mich. 51; King v. Hubbell, 42 Mich. 597. 25 Worthington v. Hauna, 23 Mich. 26 Allen v. Kinyon, 41 Mich. 281. 22Winfield v. Adams, 34 Mich. 437. 23 Perkins v. Spaulding, 2 Mich. 157. 24 Perkins v. Spaulding, 2 Mich. 157. 746 Executions § 53 would be sufficient to authorize it; but, if more property has been levied upon than will be needed to satisfy the execution and costs, the consent also of the execution de- fendant and subsequent purchasers, mortgagees and at- tachment or execution creditors, if any, to a sale on credit should be obtained. The sale should be made to the highest bidder. The officer, however, need not entertain the bids of infants and other unresponsible persons, unless in some way guaranteed. The officer himself should not, either directly or indi- rectly, become a purchaser at a sale conducted by him,^'' but the parties to the judgment or other persons inter- ested in it may become purchasers. § 54. Sale of real estate in parcels. When any real estate offered for sale by virtue of an execution consists of several known lots, tracts or par- cels, such lots, tracts and parcels should be separately exposed for sale. The defendant has the right to direct which piece or parcel shall be first exposed for sale, and no more tracts or parcels should be exposed for sale than appears necessary to satisfy the execution with the costs and expenses of sale.^' The provision of the statute that the sale shall be in parcels is in the interest of the party or parties entitled to redeem, to give the right to redeem each parcel sepa- rately; ^ and the right cannot be divested by a sale made in gross, which would be unlawful even though the prop- 27 The sheriff or other officer to 28 Jud. Act, ch. 23, § 92 ; Comp. whom an execution is directed, and Laws 1915, § 12907. As to selling as also his deputies, are forbidden a single parcel undivided interests either directly or indirectly to be in- which the defendant owns in several terested in the purchase of any real parcels of land, see Jud. Act, ch. 23, estate at any execution sale. Jud. §139; Comp. Laws 1915, S 12954. Act, ch. 23, §91; Comp. Laws 1915, 29 Clark v. Stilson, 36 Mich. 482; § 12906. Macomb v. Prentis, 57 Mich. 225. § 55 Executions 747 erty could not be sold in parcels for want of bidders.'*' But a sale in gross, when there should have been a sale in parcels, is no more than an irregularity, which, al- though subject to correction on application to the court from which the execution issued, does not render the sale void or susceptible to collateral attack.'^ The statute contemplates a sale of land by lot or gov- ernment additions.'^ Where a man owning two lots has put up a single building covering both of them, the prem- ises so covered should be sold on execution as one parcel.^' § 55. Certificate of sale. Upon the sale of any real estate by virtue of an execu- tion, it is the duty of the officer making the sale to make and subscribe as many certificates as may be necessary, containing (1) a particular description of the premises sold, (2) the price bid for each distinct lot or parcel sold, (3) the consideration money paid for each lot or parcel, and (4) the time when the sale will become absolute and the purchaser or purchasers will be entitled to a deed. Upon each certificate, he should indorse the rate of in- terest borne by the judgment upon which the execution issued.'* He should deliver one of these certificates to each purchaser at the sale.'^ It is not the purpose of the certificate of sale to convey either the title or the right of possession of the real estate to the purchaser at the sale. It is intended to preserve the evidence which entitles the purchaser to a deed when the time of redemption expires, if the property be not 30 Udell V. Kahn, 31 Mich. 195. 33 Geney v. Maynard, 44 Mich. 31 Hoffman v. Buschman, 95 Mich. 578. 538; Cavenaugh v. Jakeway, Walk. 34Jud. Act, ch. 23, §93; Comp. Ch. 344; Khode v. Hassler, 113 Mich. Laws 1915, § 12908. 56; Brown v. O'Donnell, 123 Mich. 35 Jud. Act, ch. 23, §94; Comp. 100. Laws 1915, §12909. 82 Helton V. Moody, 117 Mich. 321. 748 Executions § 55 redeemed.^^ It is the deed that conveys the title and right of possession. In the meantime, the judgment debtor is entitled to the possession, rents and profits of the land,'' but he must not commit any waste thereon or remove any buildings, fences or other fixtures belonging to it which would pass by a conveyance of the land. If he does so, the purchaser, or anj^ person who has ac- quired the rights of the purchaser, may maintain against him any action therefor which an absolute owner of the land might maintain.^' In the case of leasehold interests, however, the pur- chaser is entitled to immediate possession,'® and it is therefore made the duty of the officer, within ten days after making the sale, to execute to the purchaser a con- veyance, which, if the unexpired term of the lease ex- ceeds three years from the time of the sale, should be by deed executed and acknowledged so as to entitle it to be recorded in the office of the register of deeds. Such deed should be deposited at once with the register of deeds, but should not be recorded until the expiration of a year from the day of the sale. The date on which the deed will be thus entitled to be recorded should be in- dorsed on the deed by the officer executing it.'*" One of the certificates of sale should, within ten days after the sale, be filed by the officer making the sale in the office of the register of deeds of the county in which the sale was made.*^ The failure of the officer to perform his official duty in respect of filing the certificate within the ten days will not, however, deprive the purchaser of his title. If the execution debtor or third persons are 36 Gorham v. Wing, 10 Mich. 4S6, Comp. Laws 1915, §§ 12929, 12930. 493; Pike v. Halpin, 188 Mich. 447. 39 Jud. Aet, ch. 23, §143; Comp. 37 See Jud. Act, ch. 23, §113; Laws 1915, § 12958. Comp. Laws 1915, §12928; Ward v. 40 Jud. Act, ch. 23, §144; Comp. Carp Kiver Iron Co., 47 Mich. 65; Laws 1915, §12959. Pike V. Halpin, 188 Mich. 447. 41 Jud. Act, ch. 23, §94; Comp. 38 Jud. Act, ch. 2.3, §§114, 115; Laws 1915, §12909. § 55 Executions 749 honestly misled by its absence from the files, they may properly complain unless they are protected; but, except to protect them in their purchases or other rights of claim or redemption, there is no reason why the failure of the officer to file the certificate should impair the pur- chaser's rights.*^ The certificate of sale filed by the officer in the office of the register of deeds is to be recorded in a book to be kept for that purpose by the register of deeds, and the original certificate, or the record thereof, or a transcript of the record duly certified by the register of deeds, is prima facie evidence not only of the facts therein set forth, but of the regularity of the sale and all proceed- ings in the cause anterior to the sale.*^ The record of the certificate is constructive notice to subsequent pur- chasers of the rights acquired by the purchaser at the execution sale.** Form of Certificate of Sheriff of Saie of Real Estate on Fieri Facias State of Michigan, 1 County of , j^^* I, S. T., sheriff of the county of , do hereby certify that, by vir- tue of a certain writ of fieri facias, issued out of the circuit court for the county of , in favor of A. B. and against C. D., to me directed and delivered, I did this day, in the manner provided by statute, and after having given notice of sale according to law, sell at public vendue unto E. F., of , for the sum of dollars, the said E. F. being the highest ])idder and that being the highest sum bid for the same, all the right, title and interest which the said C. D. had, on the day of , A. D (date of the levy), or at any time afterwards, in and to the following described lands and tenements, to wit: (Here describe the projjerty;) together with all and singular the appurtenances thereunto be- longing, or in any wise appertaining; that the said sum of dollars, so bidden, as aforesaid, by the said E. F., has been paid to me; and that the said E. F. or liis assigns will be entitled to a deed of conveyance of 42 Taylor v. Gladwin, 40 Mich. Act, ch. 23, §144; Comp. Laws 2:52; and see Lilly v. Gibbs, 39 1915, §12959. Mich. 394. As to the conveyance 43 Jud. Act, ch. 23, §95; Comp. to the purchaser of leasehold in- Laws 1915, § 12910. terests sold on execution, see Jud. 44 Atwood v. Bearss, 45 Mich. 169. 750 Executions § 55 the said lands ou the day of , in the year one thousand nine hundred , unless the same shall be sooner redeemed according to law. Given under my hand and seal this day of , A. D S. T., Sheriff. Form of Indorsement to Be Made by Sheriff Upon Foregoing Certificate I hereby certify that the rate of interest borne by the judgment on which the within-named execution was issued is per centum per annum. S. T., Sheriff. § 56. Title and rights of purchaser. The jDurchaser obtains no better title than the debtor had at the time of the levy." Hence a subsequently ac- quired title does not inure to the benefit of the pur- chaser.*^ If the debtor sells the land levied on after the levy, the execution purchaser takes the legal title and need not have the former conveyance set aside.*'^ But if a purchaser of corporate stock at an execution sale has notice of an unrecorded transfer thereof as collateral se- curity, such transfer is valid as against the purchaser." In case of real estate, title does not vest until the ex- piration of the time to redeem and the execution of a sheriff's deed," and until then the judgment debtor is entitled to possession.*" § 57. How purchaser of lands protected against loss through irregularity of judgment or sale. If the purchaser of any real estate sold on execution or his heirs or assigns should be evicted or if, in any action brought for the recovery of the lands, judgment 45 Clark v. Stilson, 36 Mich. 482; 48 May v. Clcland, 117 Mich. 45. Newberry v. Detroit, etc., Mfg. Co., 49 See § 79, post. 17 Mich. 141. 50 Debtor may work mine during 46 McArthur v. Oliver, 60 Mich. such period. Ward v. Carp River 605. Iron Co., 50 Mich. 522. 47 First Nat. Bank v. Phillpotts, 155 Mich. 3.-51. § 59 ExECUTioxs 751 should be rendered against him or them in consequence of any irregularity in the proceedings concerning the sale or of the judgment upon which the execution was issued being vacated or reversed, he or his heirs or as- signs may recover of the party for whose benefit the lands were sold the amount paid on the purchase, with interest. ^^ § 58. Disposition of surplus moneys. If, after the sale of any real estate on execution, there remains in the hands of the officer any surplus money after satisfying the writ or writs of execution on which the real estate was sold, with the interest thereon,^^ the officer must pay it over to the judgment debtor or his legal representatives on demand.^^ And the same is true of a sale of personal property. In case of a sale of mort- gaged chattels, the surplus, if any, belongs and should be paid by the officer to the mortgagor.^* The lawful fees and charges of a sale should be considered as a part of the amount due on the execution.^® § 59. When property to be re-sold. If the highest bidder for any article at a sale on execu- tion refuses to take and pay for it, the officer is required to sell it again at the same time or witliin ten days there- after, giving notice of the second sale, and account for what he receives on the second sale and also for any dam- ages that may be recovered of the first bidder for any loss on the resale as for so much received on the execu- tion.*^ eiJud. Act, ch. 23, §128; Comp. B4Munger v. Sanfonl, 144 Mich. Laws 1915, § 12943. 323. 62 As to computing the interest, 66 Jud. Act, ch. 23, §123; Comp. see Jud. Act, ch. 23, §20; Comp. Laws 1915, §12938. Laws 1915, § 12835. 66 Jud. Act, ch. 23, §54; Comp. 63 Jud. Act, ch. 23, §120; Comp. Laws 1915, §12869. Laws 1915, § 12935. 752 Executions § 60 § 60. Setting aside sale. Where an execution sale is invalid, it may be set aside on motion," but not without notice to the purchaser,^* nor for an irregularity where the motion is not made un- til several years after the sale.**^ It is ground for setting aside that separate tracts of land are erroneously sold as one parcel.^" The inadequacy of the price is ordinarily, standing by itself, not a ground;" but it is a ground where coupled with other objections.^^ Failure of the sheriff to pay into the court the sum realized from the sale, so as to allow the execution debtor to withdraw the amount of his homestead exemption, is not ground.^^ In a proper case a suit in equity lies to set the sale aside,®* but irregularity is not sufficient since there must be fraud to give chancery jurisdiction.®^ Where the execution debtor neglected to redeem within a year, he cannot thereafter sue to set the sale aside on the ground that the levy was excessive.®® § 61. Irregnlarities affecting validity of sale. Whenever the execution upon its face authorizes the officer to sell, and is based upon a subsisting judgment, the title of a bona fide purchaser will not be affected by any irregularities in the execution.®"'' Thus, want of no- tice of the sale cannot invalidate the title of an innocent 57 See Bacon v. Kimmel, 14 Mich. 63 Flynn v. Kalamazoo Circuit 201; Vroman v. Thompson, 51 Mich. Judge, 136 Mich. 23. 452, bill to remove cloud from title 64 Vroman v. Thompson, 51 Mich, by setting aside execution sale. 452. 58 Wilkie v. Ingham Circuit Judge, First Nat. Bank v. State Sav. 52 Mich. 641. Bank, 123 Mich. 321. 59 Spafford v. Beach, 2 Doug. 150. 65 Cavenaugh v. Jakeway, Walk. eOHolton V. Moody, 117 Mich. 27. 321. 67 See Elliott v. Hart, 45 Mich. eiAldrich v. Maitland, 4 Mich. 234. 205. 66 Campau v. Godfrey, 18 Mich. 62 Id. Ch. 344. § 62 Executions 753 purchaser at such sale.^' So the neglect of the officer to levy until after the return day of the w^rit, or his omission to file the certificate of sale,^^ will not prejudice the title of a purchaser in good faith, without notice. So the title of a purchaser of real estate sold on execution, is not affected by the insufficiency of the sheriff's return to the execution. His certificate of sale and deed, and not his return, are the evidence of such title.'''" However, the purchaser takes no title where the judgment is void and the want of jurisdiction appears on the record,'^ nor where the levy is defective.'^ E. Return § 62. Necessity for, sufficiency of, arid who may make. It is the duty of the sheriff" or other officer to whom a writ of fieri facias has been delivered to make his return in due season of the manner in which he has executed it. This should be by certificate, either indorsed upon or annexed to the writ, under the hand of the officer, stating briefly, but precisely, what has been done by virtue of the writ and in obedience to its commands. If a sale has been made, the return should specify the property sold and the sum for which each article or parcel was sold.""* The return should specify the property levied upon and sold and the amount realized upon the sale, or if no prop- erty could be found, or not enough to satisfy the execu- tion, or if the property could not be sold for want of bid- ders or has been lost or destroyed or replevined from the officer at the suit of a third person, or if any other special fact exists material to the service of the writ, it should be set forth in the return. But it is not necessary that 68 Cook V. Knowles, 38 Mich. 316. 72 Eggleston v. Muiuly, 4 Mich. 69 Taylor v. Gladwin, 40 Mich. 295. 232. 73Jud. Act, ch. 23, §148; Comp. 70 Sec § 79, post. Laws 1915, § 12963. 71 Wilson V. Arnold, 5 Mich. 98. 1 Abbott— 48 754 Executions § 62 the officer returning a sale of real estate should specifical- ly state that he could not find sufficient goods and chat- tels of the defendant to satisfy the execution,''* nor is it necessary that he should certify to the posting or publi- cation of the notice of sale.'* When an officer has begun to serve an execution and dies or becomes incapable of completing the service and return, the service may be completed by any other officer who might by law have executed the writ if it had been originally delivered to him; and, if the first officer has not made a certificate of his doings, the second officer should certify whatever he finds to have been done by the first and add thereto a certificate of his own doings in completing the service.''^ And when an officer has be- gun to serve an execution on or before the return day, he may complete the service and return afterwards.''^'' If an officer fails to make a return, he may be compelled to do so by any person interested in procuring a return, by means of the procedure by rule and attachment.''' Form of Return to Fieri Facias Satisfied State of Michigan, ] County of I I hereby return the within writ of fieri facias satisfied, both as to dam- ages (or, debt and damages) and costs. Dated, etc. S. T., Sheriff. Form of Return to Fieri Facias of Levy and Sale State of Michigan, County of I hereby certify and return that, by virtue of the within writ, I did, on the day of , A. D , levy on the following described 74 Atwood V. Bearss, 45 Mich. 469. 77 Jud. Act, eh. 23, § 22 ; Comp. 75 Grand Rapdds Nat. Bank v. Laws 1915, § 12837. Kritzer, 116 Mich. 688. '8 Cir. Ct. Rule 20. 76 Jud. Act, ch. 23, § 21 ; Comp. Laws 1915, § 12836. § 62 Executions 755 property, to wit: (Here describe the property), as the property of the defendant named in the said writ; and I further return that afterwards, and on the day of , A. D ,1 sold at public vendue, at , after giving notice of the time and place of said sale according to law, the property aforesaid, to the highest bidder, for the sums re- spectively herinafter mentioned, that is to say: One horse sold for $ One heavy lumber wagon sold for $ The money arising from said sales I have ready, as I am commanded in said writ. Dated, etc. S. T., Sheriff. Form of Return to Fieri Facias Satisfied in Part, and Nulla Bona as to Residue State of Michigan, ) County of ( I hereby certify and return that I have caused to be made of the within damages and costs the sum of dollars, which I have ready, as I am within commanded; and I further return that the within-named defendant has no goods or chattels, lands or tenements, in my bailiwick, whereof I can cause the residue of said damages and costs to be made, as I am within commanded. Dated, etc. S. T., Sheriff. Form of Return to Fieri Facias of Levy, and the Property Replevied State of Michigan, County of I hereby certify and return that, by virtue of the within writ, I did, on the day of , A. D , levy on the following property, to wit: (Here describe the property), as the property of the defendant named in said writ, which said property was afterwards, on the day of , A. D , taken from me by a writ of replevin, issued out of the circuit court for the county of (or as the case may be), wherein one E. F. is plaintiff and I am defendant; wherefore, I cannot have the money, or any part thereof, before the court, as I am in said writ com- manded. Dated, etc. S. T., Sheriff. Form of Return to Fieri Facias of Levy on Property Remaining Unsold for Want of Bidders State of Michigan, ^ County of | I hereby certify and return that, by virtue of the within writ, to me directed and delivered, I have levied on the following described property, 756 Executions § 62 to wit: (Here describe the property), which still remains in my hands un- sold for the want of buyers; wherefore, I cannot have the money, or any part thereof, before the court, as I am within commanded. Dated, etc. S. T., Sheriff. Form of Return to Writ of Fieri Facias of Nulla Bona State of Michigan, ) County of J ^^• I hereby certify and return that the within-named defendant has no goods or chattels, lands or tenements, in my bailiwick, whereof I can cause the damages and costs within mentioned, or any part thereof, to be made, as I am within commanded. Dated, etc. S. T., Sheriff. § 63. Time for making. An officer may lawfully return an execution at any time on the return day, except where it is Sunday.'''® But it has been held that the debtor is entitled to have no return made before the return day, where a return of nulla bona is to be used as a basis of other proceedings.*" § 64. Setting aside. A return may be set aside in a proper case. For in- stance, a judgment debtor may move, in the suit in which the judgment was rendered, to set aside the return, and may show its falsity.®^ § 65. Conclusiveness. The sheriff cannot contradict his return. A return is generally conclusive as to the facts which it recites, ex- cept as to third persons. The return is not conclusive as to third persons.*'^ While the return stands, it is con- clusive on the parties.®* But even when it is conclusive, parol evidence is admissible to show that the return pur- 79 Peek v. Cavell, 16 Mich. 9. 81 William Wright Co. v. Wayne 80 First Nat. Bank v. Dwight, 83 Circuit Judge, 109 Mich. i:59. Mich. 189; Stewart v. Stevens, Har. 82 Nail v. Granger, 8 Mich. 450, 169; Smith v. Thompson, Walk. Ch. time of levy. 1, 83 Flynn v. Kalamazoo Circuit § 67 Executions 757 porting to be made on Sunday was in fact made the day before, where the date is contradicted by other parts of the record.®* It cannot be collaterally attacked in a judgment creditor's suit,®^ but a party may move in the main case to set aside the return, and show its falsity.*^ § 66. Effect of insufficiency. The insufficiency of the return does not affect the title of the execution purchaser,®' and the omission to return a want of personal property is not fatal to a sale of land where there is no showing that there was any personal property.*® F. Redemption § 67. Within one year. Within one year from the time when the sale is made, tlie real estate sold, or any distinct lot, tract or portion which was separately sold, may be redeemed by payment of the sum of money which was bid on the sale of such lot or tract, together with interest on that sum from the time of the sale to the time of redemption, computed at the rate per centum per annum borne by the judgment imder Avhich the sale was made. Such payment may be made either to the purchaser, his personal representa- tives or assigns, or to the officer who made the sale or to the register of deeds in whose office the certificate of sale is filed, for the use of the purchaser.®^ The statutory redemption will not be valid unless made in conformity Judge, 136 Mich. 23, holding that 87 Crane v. Hardy, 1 Mich. 56; the proper practice, where the re- Spafford v. Beach, 2 Doug. 150. turn is deemed untrue, is to move 88 Atwood v. Bearss, 45 Mich. 469. to amend the return; Lieblein v. 89 Jud. Act, ch. 23, §96; Conip. Hansen, 178 Mich. 11, 17. Laws 1915, § 12911. 84 Maeomber v. Wright, 108 Mich. As to the redemption of leasehold 109. interests in real estate sold on execu- 85 William Wright Co. v. Wayne tion, see .Jud. Act, ch. 23, §145; Circuit Judge, 109 Mich. 139. Comp. Laws 1915, §12960. 86 Id. 758 Executions § 67 with the statute, by the proper parties and within the statutory time.®" In computing the time, it has been held that the day on which the sale was made is to be ex- cluded.®^ The statute seems to rest mainly upon the idea that real estate may be sold for less than its value, and to give the time for redemption mainly on this ground. This is an adequate remedy for a sale at an inadequate price and if a party does not avail himself of it, he can- not, after the time has expired, successfully move the court to set aside the sale.®^ The one year limit may be extended by agreement be- tween the execution creditor and the execution debtor, and such agreement may be oral.®' It follows that the year limit is waived by a senior execution creditor where, after the expiration of such period and before any junior execution creditor has acquired any rights, he accepts payment of his judgment.®* § 68. By whom made. Redemption may be made (1) by the person against whom the execution was issued and whose right and title was sold in pursuance thereof, or (2), if such person be dead, by his devisee of the premises sold, if they have been devised, and, if they have not been devised, by the executor or administrator, with the approbation of the judge of probate, or by the heirs of such person, or (3) by any grantee of such person who has acquired an abso- lute title by deed, sale under mortgage or under an execu- tion or by any other means to the premises sold or to any lot, tract, parcel or portion which has been separately sold, or (4) by the purchaser of the title and right of re- 90 Whiting v. Butler, 29 Mich. 92 Campau v. Godfrey, 18 Mich. 122; Pellston Planing Mill & Lum- 27. ber Co. v. Van Wormer, 198 Mich. 93 Pellston Planing Mill & Lumber 648. Co. V. Van Wormer, 198 Mich. 648, 91 Gorham v. Wing, 10 Mich. 486. 653. See generally Time. 94 Id. § 70 Executions '759 demption of the person against whom the execution was issued.®* § 69. By part owners, heirs or devisees. . Any lieir or devisee of the person against whom the execution was issued, or any grantee of such person who has acquired an absolute title to a portion of the estate sold or to a portion of any lot, tract or parcel that has been separately sold, or the executor or administrator of such person with the approbation of the judge of pro- bate, may redeem the lot, tract or parcel so sold on the same terms and in the same manner as if he were grantee of the whole lot, tract or parcel, and will have the same remedy to enforce contribution from those who own the residue of such lot, tract or parcel as if the sum required to be paid by him to effect such redemption had been col- lected by a sale of the portion belonging to such grantee.®*' § 70. By owners of undivided shares. If there be several persons having undivided shares as joint tenants or tenants in common in the premises sold, or in any particular lot or tract sold, each one may re- deem the share or interest belonging to him by paying to the purchaser or to the officer who made the sale or to the register of deeds in whose office the certificate of sale has been filed, for the use of the purchaser, a sum bear- ing the same proportion to the whole purchase money bid for the premises, or for the particular lot or tract, as the share proposed to be redeemed bears to the whole of such premises, lot or tract, together with the interest on such sum from the time of the sale to the time of redemp- tion, computed at the rate borne by the judgment.®'' OSJud. Act, ch. 23, §97; Comp. 97 Jud. Act, ch. 23, §99; Comp. Laws 1915, § 12912. Laws 1915, § 12914. 96 Jud. Act, ch. 23, §98; Comp. Laws 1915, § 12913. 760 Executions § 70 When a judgment debtor is the owner of an undivided interest in several parcels of land with the same persons, and such interest in any or all of the parcels has been levied upon and sold as a single parcel, such interest may- be redeemed only on payment of the entire sum bid, with interest at the rate borne by the judgment.^^ § 71. Redemption of leaseholds. In cases where the unexpired term of a leasehold sold on execution exceeds three years at the date of the sale, the defendant has one year after the sale in which to re- deem from the purchaser or his assigns.^^ Such redemp- tion is made in the same manner as the redemption of real estate sold on execution. The deed then becomes void and the defendant is entitled to re-possess and en- joy the premises. But if the purchaser was compelled to pay any rent due or past due at the date of the sale, no redemption will be allowed until the amount so paid has been refunded to the purchaser, with interest, in addi- tion to the amount for which the leasehold was sold.^ § 72. Eifect of redemption on sale and certificate of sale. Upon the payment of a sufficient amount being made to the purchaser or to either of the officers authorized to receive payment of redemption money by any person en- titled to redeem any real estate sold on execution, the sale of the premises so redeemed and the certificate of sale, to the extent of the premises or shares so redeemed, will be null and void.^ § 73. After one year and within fifteen months. In case the persons entitled to redeem omit to do so within a year from the time of the sale, then the interest 98Jud. Act, ch. 23, §139; Comp. Uud. Act, eh. 23, §142; Comp. Laws 1915, § 12954. Laws 1915, § 12957. 99Jud. Act, ch. 23, §145; Comp. 2 Jud. Act, ch. 23, §100; Comp. Laws 1915, § 12960. Laws 1915, § 12915. § 73 Executions 761 vested in the purchaser by the sale may be acquired within three months after the expiration of the year by the persons and on the terms which will be now ex- plained.^ Any creditor of a person against whom the execution issued who has, in his own name or as assignee, repre- sentative, trustee or otherwise, a decree in chancery or a judgment at law, under which an execution has been levied upon the real estate so sold, or a decree which is a lien thereon without execution and levy, may at any time before the expiration of fifteen months from the time of the sale, by paying the sum of money which was paid on the sale, together with interest thereon at the rate borne by the judgment from the time of the sale, ac- quire all the rights of the original purchaser, subject to be defeated as will be presently explained.* If such creditor's levy or decree be a lien upon any lot, tract or parcel that has been separately sold, he may, by pay- ing the sum bid for it, with interest, acquire all the rights of the original purchaser to it, subject to be de- feated as will be explained.* And, if the creditor's levy or decree is a lien on only a specific portion of a lot, tract or parcel, he may acquire the title of the original pur- chaser to the whole of the lot, tract or parcel in the same manner as if his lien extended to the whole;® or, if his lien is upon an undivided share or interest, he may, with- in the same time, on the same terms and in the same man- ner, acquire the title of the original purchaser to such share or interest by paying such part of the whole pur- chase money as is in just proportion to such share or interest.' SJud. Act, ch. 23, §101; Comp. 6 Jud. Act, ch. 23, §103; Conip. Laws 1915, § 12916. See Pellston Laws 1915, § 12918. Planing Mill & Lumber Co. v. Van 6 Jud. Act, ch. 23, §104; Comp. Wormer, 198 Mich. 648. Laws 1915, § 12919. 4 Jud. Act, ch. 23, §102; Comp. 7 Jud. Act, ch. 23, §105; Comp. Laws 1915, § 12917. Laws 191.5, § 12920. 762 Executions § 74 § 74. By second or other creditors. Subject to the provision that creditors are allowed to acquire the rig-hts of the original purchaser in the order of their liens upon the property,® whenever any creditor has acquired the title of the original purchaser, any other creditor who might have acquired such title may become a i)urchaser thereof from the first creditor who acquired it, upon the following conditions: 1. By reimbursing to the first creditor, liis personal representatives or assigns the sum which he has paid to acquire the title of the original purchaser, together with interest thereon at the rate borne by the judgment on which the execution sale was made from the time of the first creditor's payment to the time of reimburse- ment. 2. If the levy under the execution or decree by virtue of which the first creditor acquired the title of the orig- inal purchaser is prior to the levy or decree of the second creditor, then the latter must also pay to the first cred- itor the amount due on his judgment or decree. 3. But if the levy or decree of the first creditor at the time of his acquiring the title of the original purchaser has ceased to be a lien as against the second creditor, it will not be necessary for the latter to pay the amount due on the first creditor's judgment or decree.* And, in the same manner, any third or other creditor who might acquire the title of the original purchaser may become a purchaser thereof from the second, third or any other creditor who may have become purchaser from any other creditor,^*' and, if the original purchaser at the execution sale is also a creditor of the execution defendant, and, as such creditor, might acquire the title of any purchaser, he may avail himself of his judgment or decree in the 8Jud. Act, ch. 23, §188; Comp. Laws 1915, §12921. Laws 1915, §12953. 10 Jud. Act, ch. 23, §107; Comp. 9.1ud. Act, ch. 23, §106; Comp. Laws 1915, §12922. § 76 Executions 763 same manner and on the same terms to acquire the title which any creditor may have obtained." §75. Right of plaintiff to acquire purchaser's in- terest except as creditor. The plaintiff under whose execution real estate is sold has no right, by virtue merely of the judgment on which the execution issued, to acquire the title of the original purchaser at his sale or the title of any creditor to the premises sold, but, if he has any other judgment or de- cree which would entitle him to acquire such title, he may avail himself of it in the same manner and on the same terms as any other creditor.^^ § 76. To whom payment by creditors to be made and effect of pa3mient. . The sums required to be paid by a creditor to acquire the title of the original purchaser or of a creditor who has acquired it may be paid to such purchaser or cred- itor, his representatives or assigns, or to the officer who made the sale or the register of deeds in whose office the certificate of sale is filed, for the use of the original pur- chaser or creditor entitled to the same." And, upon such payment being made, the title of the original pur- chaser or creditor will be thereby transferred to the creditor becoming the purchaser thereof.^* Such creditor is entitled to receive from the person from whom lie pur- chases an assignment executed and acknowledged in the same manner as deeds of conveyance of land are re- quired to be executed and acknowledged to entitle them llJud. Act, ch. 23, §108; Comp. see Jud. Act, ch. 23, §§136, 137; Laws 1915, § 12923. Comp. Laws 1915, §§ 12951, 12952. 12 Jud. Act. ch. 23, §109; Comp. 13 .Jud. Act, ch. 23, §110; Comp. Laws 1915, § 12924. Laws 1915, § 12925. As to the rights of a mortgagee 14 Jud. Act, ch. 23, §111; Comp. of lands sold on execution to acquire Laws 1915, § 12926. the title of the original purchaser, 764 Executions § 76 to be recorded, because, before he will be entitled to a conveyance of the land in case it is not redeemed, the assignment or assignments under which he claims must be so executed and acknowledged or proved and be re- corded in the office of the register of deeds of the county in which the lands are situated.^^ § 77. Evidence of right to acquire purchaser's interest. To entitle a creditor to acquire the title of the original purchaser or to become a purchaser from any other creditor, he must present to and leave with such pur- chaser or creditor or with the officer who made the sale or the register of deeds in whose office the certificate of sale is filed, the following evidence of his right: 1. A certified copy of the judgment or decree under which he claims the right to purchase. 2. A true copy of all the assignments of such judg- ment or decree which are necessary to establish his claim, verified by his affidavit or the affidavit of some witness thereto. 3. An affidavit of such creditor, his agent or attorney of the true sum due on such judgment or decree at the time of claiming the right to purchase.^® § 78. Redeeming and acquiring purchaser's rights in mortgaged premises. When a riglit of redeeming mortgaged real estate and real estate sold on execution has been levied upon and sold on execution, such equity of redemption may be re- deemed, and the rights of any purchaser acquired, in the same manner and on the same terms and conditions as other real estate sold on execution.^''' If the purchaser of such an equity of redemption or any creditor having 15Jud. Act, ch. 23, §127; Comp. 17 Jud. Act, ch. 23, §121; Comp, Laws 1915, § 12942. Laws 1915, § 12936. 16 Jud. Act, ch. 23, §112; Comp. Laws 1915, § 12927. § 79 Executions 765 acquired his rights pays the debt due on the mortgage or the amount of the sale of premises sold on execution, or any part thereof, the amount so paid must be paid, witli interest, to such purchaser or creditor in redeeming the premises or purchasing the rights of such purchaser or creditor, as the case may be.^^ G. Sheriff's Deed § 79. Rig"ht to, necessity for, etc. After the expiration of fifteen months from the time of the sale of any real estate on execution, if any part of the premises sold remains unredeemed by the person against whom the execution issued, or by any person entitled to redeem them within one year from the time of the sale, the officer making the sale or his successor in office is required to complete the sale by executing, in due form of law, a conveyance of the premises so re- maining unredeemed, either to the original purchaser or to the creditor who may have acquired the title of such original purchaser, or to the assigns of such purchaser, or to the creditor who may have purchased the title from any other creditor, as the case may be ; and such convey- ance will be valid and effectual to convey all the right, title and interest which was sold on the execution. ^^ But before any assignee or his personal representatives will be entitled to a conveyance, every assignment under which he claims title must be executed and acknowledged or proved in the same manner as deeds are required to be to entitle them to be recorded and must be recorded ( in the office of the register of deeds of the county in which the real estate involved is situated.^" ISJiid. Act, ch. 23, §122; Comp. tiator of the person entitled, see Laws 1915, § 12937. .Tud. Act, ch. 23, §§ 117, 118; Comp. 19Jud. Act, ch. 23, §116; Comp. Laws 1915, §§12932, 12933, Laws 1915, §12931. 20 Jud. Act, ch. 23, §127; Comp. As to when the conveyance is to be Laws 1915, § 12942. made to the executor or adminis- 766 Executions § 79 The right and title of the person against whom the execution was issued to any real estate sold thereby is not divested by the sale until the expiration of fifteen months from the time of the sale, when, if the real estate has not been redeemed and a deed has been executed in pursuance of the sale, the grantee in such deed is deemed vested with the legal estate from the time of the sale on execution, for the purpose of maintaining an action for any injuiy to such real estate.^^ Neither at common law nor by statute is the purchaser entitled to the rents and profits before his title becomes absolute. The judgment debtor has the right to these, and he may make the cus- tomary use of the lands himself or rent them, if that seems the preferable mode of rendering them profitable while his right continues.^'' In the case of leaseholds, it is the duty of the officer making the sale to execute to the purchaser a conveyance of the leasehold interest within ten days after the sale. If the unexpired term of the lease exceeds three years 21Jud. Act, ch. 23, §113; Comp. sheriff had been lost. Whiting v. Laws 1915, § 12928; Whipple v. Far- Butler, 29 Mich. 122. rar, 3 Mich. 436. A deed to consummate an execu- As to actions for the injury to tion sale, executed before the time lands committed after the sale and for redemption has expired, is void, before the conveyance, see Jud. Act, and is not afterwards made valid by eh. 23, § 114; Comp. Laws 1915, the failure to redeem within the stat- § 12929. utory time. Gorham v. Wing, 10 The certificate of sale and the Mich. 486. deed are the purchaser's evidence of Where the execution ran against title. Cook v, Knowles, 38 Mich. 316. two persons, the deed is not defec- The title of a purchaser of realty tive because using the singular num- at an execution sale is not complete ber in a recital not essential to the until he obtains a deed from the deed, such as the statement that real sheriff. Cook v. Knowles, 38 Mich. estate was levied on because personal 316; Gorham v. Wing, 10 Mich. 486. property could not be found. John- Where there is no valid redemp- son v. Crispell, 39 Mich. 82. tion, a junior purchaser of the prop- 82 Ward v. Carp River Iron Co., erty cannot insist, as against a judg- 47 Mich. 65; Whiting v. Butler, 29 ment debtor and the purchaser at Mich. 122; Whipple v. Farrar, 3 a prior sale, that the right of such Mich. 436; Pike v. Halpin, 188 Mich, prior purchaser to a deed from the 447. § 79 ■ Executions 767 at the time of the sale, the conveyance should be exe- cuted and acknowledged in manner and form to entitle it to be recorded in the office of the register of deeds. The purchaser is entitled to immediate possession and the conveyance may, and should, be deposited at once with the register of deeds, but it should not be recorded until the expiration of a year from the day of sale, in which time, if redemption is made, the conveyance be- comes void.^^ Form of Deed by Sheriif to Purchaser of Real Estate Sold on Fieri Facias This indenture, made the day of , in the year one thousand nine hundred , between S. T., sheriff of the county of , party of the first part, and E. F., of , party of the second part, witnesseth: Whereas, by virtue of a writ of fieri facias issued out of the circuit court for the county of , in favor of A. B. and against C. D., directed and delivered to the then sheriff of said county, commanding him that, of the goods and chattels of the said C. D. in his county, he should cause to be made certain money specified in said writ, and, if sufficient goods and chat- tels of the said C. D. could not be found in said county, that then he should cause said moneys to be made from the lands and tenements of the said C. D. within his county, as will more fully appear by the said writ now on file in said court; And whereas suflScient goods and chattels of the said C. D. could not be found in said county, whereof he, the said sheriff, could cause to be made the moneys specified in said writ, and therefore the said sheriff levied upon and took all the right, title and interest of the said C. D. in and to the lands hereinafter described, with the appurtenances thereunto belonging or in any wise appertaining, and did, on the day of , A. D. , sell the said lands at public vendue, at (here specify the place), in said county, in the manner provided by statute and after giving notice of sale according to law; And whereas, at said sale, the said lands were struck off and sold to E. F. aforesaid, for the sum of dollars, that being the highest sum bid for the same; And whereas the said sheriff, after receiving from the said E. F. the sum of money last hereinbefore mentioned, gave to the said E. F. a certi- ficate of sale in form and manner as is required by law, which said certifi- cate was duly filed in the office of the register of deeds of the said county of ; And whereas fifteen months have elapsed since said sale and the giving of 23Jud. Act, ch. 23, §§143-145; Comp. Laws 1915, §§ 12958-12960. 768 Executions § 79 said certificate, and the said lands have not been redeemed according to law: Now, this indenture witnesseth, that the said party of the first part, in pursuance of the statute in such case made and provided and in considera- tion of the said sum of money so paid by the said E. F. as aforesaid, has granted, bargained, sold, released, assigned and conveyed, and by these presents does grant, bargain, sell, release, assign and convey, unto the said party of the second part, his heirs and assigns all the right, title and in- terest which the said C. D. had, on the day of , A. D. (the date of the levy), or at any time thereafter, in and to the lands aforesaid and the appurtenances all and singular thereunto belonging or in any wise appertaining, which said lands are described as follows: (Here describe tlie property.) To have and to hold the said lands and tenements, with the appurtenances aforesaid, unto the said party of the second part, his heirs and assigns forever, as fully and absolutely as the said party of the first part, as sheriff as aforesaid, can, may or ought, by virtue of the premises, to grant, bargain, sell, release, assign and convey the same. In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. S. T. [L. S.] Signed, sealed, and delivered in presence of Sheriff. W. S. J. B. (Add acknowledgment.) § 80. Time for taking and recording conveyance. The legal holder of the certificate of sale of real estate under execution is entitled to a conveyance as soon as the time for redemption has expired, if redemption has not within that time been effected. But if the convey- ance is not taken and recorded within ten years from the expiration of the time for redemption, the certificate of sale becomes null and void.^* H. Payment and Discharge §81. Payment. The ofticer has no authority to receive anything in payment except legal currency.^* Where one of the exe- 24Jud. Act, ch. 2.3, §119; Comp. 25 Heald v. Bennett, 1 Doug. 51.3. Laws 1915, § 129.34; Pike v. Halpin, 188 Mich. 447; Bliss v. Slater, 144 Mich. 648. § 83 Executions 769 cution debtors pays the execution, he may recover from his solvent co-debtors their proportionate share.^® § 82. Certificate of satisfaction. When an execution levied on real estate is fully paid, satisfied or discharged, it is the duty of the clerk of the court that issued such execution to give to defendant a certificate that it is satisfied or discharged, and such certificate may bo recorded in the same manner as pro- vided for the recoi'ding of the notice of a levy on real estate.^' In all cases of redemption of lands sold on execution or of payment of the judgment, where the record in the office -of the register of deeds shows a levy, it is the duty of the officer making the sale or of the person who re- ceived the money or his attorney to discharge the levy or judgment from the record.^* III. Body Executions § 83. When proper, time for and effect of. It is the intent of a capias ad satisfaciendum to im- prison the body of the debtor until satisfaction be made for the debt, costs and damages, and it therefore did not lie at the common law against any privileged persons, peers or members of parliament, or against executors or administrators, or against such other persons as could not be held to bail.^® In j\lichigan, it lies by statute "in the cases authorized by law," ^^ which must be either by 26 Tliornton v. Damni, 120 Mich. the body of any executor, adminis- olO. trator, heir, devisee or legatee, ex- 27 Jud. Act, ch. 2.{, § 83 ; Comp. ccpt in cases specially provided by Laws 1915, §12898. law. Jud. Act, ch. 2:'., §4; Comp. 28 Jud. Act, eh. 23, §147; Comp. Laws 1915, §12819. Laws 1915, § 12962. No female can be imprisoned. See 29;', Cooley's Bl. Comm. 414. Commencement of Action.s. 30 Jud. Act, ch. 23, §3; Comp. By statute, an execution cannot Laws 1915, § 12818. 1)0 iss\ii'd, directed both against the Exeention cannot issue against inoiicity and the. body of the de- 1 Abbott— 49 770 Executions § 83 existlii.U' statute or by common law. Tho common-law rule was that a capias ad satisfaciendum could be issued in those cases, and those only, in whicli the suit might have been commenced by capias ad respondendum, or, in other words, when the latter was the immediate proc- ess upon the original writ; the only exception to which was the case of an attorney or officer of the court, who might be taken in execution, althoug^h sued by bill. Originally the capias ad satisfaciendum lay at common Jaw only in trespass vi et armis; but, as statutes were subsequently passed in England giving the capias ad respondendum as the mesne process in other cases, the capias ad satisfaciendum was held to follow as a common law incident. ^^ Tt may therefore be stated, as the general rule, that the plaintiif may have a capias ad satisfacien- (him upon his judgment in any suit which might have ])een connnenced by capias ad respondendum, whether it actually was so commenced or otherwise, but not in any suit which could not have been commenced by capias ad respondendum.^^ Thus, the capias ad satisfaciendum is ap])ropriate in actions on contract, express or implied, to recover damages for any breach of promise to marry where fraud is alleged, or for moneys collected by any public oflficer, or for any misconduct or neglect in office or in any professional employment, or in case of fraud or bi'each of trust, and also in actions of tort in general, but not in replevin ^^ or ejectment. hi those cases in whicli bail has been taken on the arrest of a defendant, and the ])ail bond has been as- fendant, unless by an orrlor of court, Jiulfje, 180 Mieh. 6311, holding it inl- and where there is no order such material that action was in fact com- an execution is void and incai)ahle nienced by summons; Hunt v. Bur- of amendments. Sink v. Oceana Oir- dick, 42 Vt. 610; Wesson v. Cham- cuit Judge, 146 Mich. 121. berlain, 3 N. Y. 331; Eames v. 31 Fuller v. Bowker, 11 Mich. 204. Stevens, 26 N. H. 117. 32 Fuller v. Bowker, 11 Mich. 204; 33 Fuller v. Bowker, 11 Mich. 204; Forsythe v. Washtenaw Circuit Tomlin v. Fisher, 27 Mich. 524. § 83 Executions 771 si,ij;Tied to the plaintiff, and in tlioye cases in which spe- cial bail has been filed, no execution can issue against the body of the defendant in the action until an execu- tion against the goods and chattels, lands and tenements of the defendant has been issued to the sheriff or other proper officer of the county in which the defendant was arrested and has been returned unsatisfied in whole or in part.'* But if the defendant be imprisoned on execution in another cause, or upon jDrocess in the same action, or upon the surrender of the defendant in exoneration of his bail in such action, or if an execution has been re- turned unsatisfied as just referred to, an execution may in either case issue against the body of the defendant;'^ but no execution against the body of a person can issue while there is an execution against his property not re- turned, unless by order of the court rendering tlie judg- ment.'^ When the body of a ])arty has been taken on an execu- tion issued for that purpose, no other execution can be issued against liim or his property, except in the cases specially provided by law; but if any person who has been taken on an execution escapes, he may l)e retaken by a new execution against his body, or an execution against his property may be issued in the same manner as if no execution has been previously issued.'''' When tlie delendant, at the time judgment is rendered against him in a court of record, is in the custody of a sheriff or other officer, either u])on process in the suit in whicli tile judgment was rendered or upon being sur- rendered in discharge of his bail in such suit, the i)laiii- tilT nmst charge the defendant in execution within three 34Jud. Act, oh. 2.'], §26; Coinp. 36 Ju.l. Act, ch. 2:!, nO; Comp. Laws 1915, U2841; Fish^ v. Bar- Laws 1915, § 12825. bour, 43 Mich. 19; De Myer v. Mc- 87 Jud. Act, ch. 2:?, §S 28, 29; Gonegal, 32 Mich. 120. Comi.. Laws 1915, §§12843, 12844. 35, Jud. Act, ch. 23, §27; Comp. Laws 1915, § 12842. 772 Executions § 83 months after the hist day of the term next folknvin*;- that on wliich the judgment has been obtained.^* And, when a defendant is in custody upon surrender in discharge of his bail made after judgment obtained against him and such bail is thereupon exonerated, tlie plaintiff must charge the defendant in execution within three months after such surrender, or, if an execution against the property of the defendant has been issued, within three months after the return day of such execution.^® If the plaintiff neglects so to charge the defendant in execu- tion, the defendant may be discharged from custody by a supersedeas, to be allowed by any judge of the court in which the judgment has been obtained, unless good cause to the contrary be shown, and, after being so dis- charged, the defendant will not be liable to be arrested upon any execution which may be issued upon the judg- ment.*" An execution issued after the expiration of the three months is prima facie a nullity.*^ The removal by the defendant of the cause to the supreme court, no stay bond being filed, is no excuse for the plaintilT's failure to charge the defendant within three months, since the plaintiff was at liberty to proceed in the usual manlier to collect his judgment," nor is the pendency of other proceedings, whether at law or in chanceiy." But what circumstances constitute "good cause" for the delay of the plaintiff is a matter resting in the sound discretion of the court.** S8Jud. Act, cl). 23, §23; Comp. 43 Mctcalf v. Moore, 128 Mich. Laws 1915, § 12838. 138; Lapham v. Oakland Circuit 39,Jud. Act, cli. 23, §24; Comp. Judge, 170 Mich. 56-4. Laws 1915, § 12839. 44 Lapham v. Oakland Circuit 40Jud. Act, ch. 23, §25; Comp. Judge, 170 Mich. 564, holding good Laws 1915, § 12840. cause shown where defendant's at- 41 In re Lauer's Estate, 184 Mich. torneys frequently assured plaintiff 497. their client would settle and negotia- 42 Douglass v. Manistee Circuit tions for a compromise were pend- Judge, 42 Mich. 495. ing. §84 Executions 773 § 84. Form of writ. A capias ad satisfaciendum in form commands the sheriff of the comity or other proper officer to take the defendant, if he may be found in his county, and safely keep him so that tlie officer may have the body of the defendant before the court on the return day to satisfy the phuntiff the sum of money due upon the judgment. The writ should be styled, directed, tested, subscribed, sealed and made returnable in the same manner as a fieri facias, and must, in like manner, identify and confonii to the judgment upon which it is based. Form of Capias ad Satisfaciendum In the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting: You are hereby commanded to take C. D., defendant, if he can be found within your county, and him safely keep, so that you may have his body (before the circuit court for the county of , at , on , to satisfy A. B., plaintiff, dollars, which the said plaintiff lately in the circuit court for the county of recovered against the said defendant for his damages which he had sustained [if the action is ex delicto substitute for what follows: "as well on occasion of a certain grievance, theretofore committed by the said defendant against the said plaintiff as for the costs and charges by the said plaintiff about his suit in that behalf expended, whereof the said defendant is convicted, as appears of record in said court; and have you then and there this writ." Or, if the action be for conversion, substitute for what follows: "as well ou occasion of the conversion of certain goods and chattels of the said plaintiff by the said defendant as for the costs and charges by the said plaintiff about his suit in that behalf expended, whereof the said defendant is convicted, as appeai-s of record in said court; and have you then and tliore this writ."] as well by reason of the nonperformance of certain promises and undertakings theretofore made by the said defendant to the said plaintiff as for the costs and charges by the said plaintiff about his suit in that behalf expended, whereof the said defendant is convicted, as appears of record in said court; and have you then and there this writ. Witness, Hon. J. S., circuit judge, at , this day of , in the year C. K., Clerk. J. K., Attorney for I'lrniitiff. Business address: , Mich. 774 ExEcuTioN.s § 84 Form of Alias Capias ad Satisfaciendum In the Name of the People of the State of Michigan. To the Sheriff of the Ck)uuty of , Greeting: You are hereby commanded, as you have been before commanded, that you take C. D., if he can be found in your county, and him safely keep (proceed from this point as in other AVTits of capias ad satisfaciendum). Form of Pluries Capias ad Satisfaciendum In the Name of the People of tlie State of Michigan. To the Sheriff of the County of , Greeting: You arc hereby commanded, as you have oftentimes before been com- manded, that you take C. D., if he may be found in your county, and him safely keep (proceed from this point as in other writs of capias ad satisfaciendum). § 85. Service of writ. It is llio duty of tlie slierilt' to execute the capias ad satisfaciendum in obedience to the commands of the writ, l)y arresting the defendant, if he can be found in the county, and keeping him under arrest until he is dis- charged according to hnv. The officer must use all rea- sonable endeavor to execute the writ, notwithstanding any direction he may receive from the plaintiif or his at- torney.*^ The statute provides that, whenever any per- son is arrested by virtue of an execution issued upon any judgment, he shall be safely kept in secure custody, in the manner prescribed by law, at his own expense, until he shall satisfy the execution or Ix' discharged according to law.*<5 § 86. Bond for liberty of jail limits. Every person in custody of a sheriff by virtue of an execution in a civil action or in consequence of a sur- render in exoneration of his bail is entitled to the liberty 45 Jvul. Act, ch. 2'), §16; Comp. Prison regulations permissible, see Laws 1915, § 12994. Leach v. Whitbeck, 151 Mich. 327. 46Jud. Act, ch. 23, §30; Comp. Laws 1915, § 12845. § 8fi EXECITTTOXS 775 of the jail limits (which are co-extensive with the limits of the county), upon executing a bond to the sheriff and his assigns, with one or more sufficient sureties who are inhabitants and householders of the county, in a penalty not less than double the amount directed to be levied by the execution, conditioned that he shall not, at any time or in any manner, escape or go without the jail limits of the county, until legally discharged.*' The bond is held for the indemnity of the sheriff taking it and of the party at whose suit the prisoner Avas confined.*^ It is, in effect, a substitute for the custody of the sheriff, and, after the prisoner has been admitted to the liberty of the jail limits, the sheriff has no longer any power over him, either to restrain or discharge him.'*® If, however, the sheriff discovers that any surety on the bond is insuffi- cient, he has power to commit the prisoner who executed it to close confinement in jail until other good and suffi- cient sureties are offered.^'' The sureties in a bond for the liberty of the jail limits may surrender their principal to the keeper of the jail at any time before a judgment has been rendered against them on the bond, but they will not be thereby exon- 47Jud. Act, ch. 25, §§22-24; sheriff, on the demand of the latter, Comp. Laws 1915, §§13000-13002. is bound thereby. Kruse v. Kings- The bond is not invalid merely be- bury, 102 Mich. 100. cause of clerical mistakes, especially The bond will not support a re- where immediately corrected. In re covery thereon where it recites that Friedrich, 113 Mich. 468. the principal was in custody by vir- The bond stands as an indemnity tue of a capias ad respondendum in- to the officer and to the judgment stead of a capias ad satisfaciendum, creditor, and also to the successor of Gunn v. Geary, 44 Mich. 615. the officer without any written as- For form of bond, see B.ml. signment to him, and on breach of 48 Jud. Act, ch. 25, §25; Comp. the bond the latter may assign it to Laws 1915, § 13003. the party for whose benefit it was 49 Kruse v. Kingsbury, 102 Mich, given. Where a new bond may be 100. taken in place of an old one a per- 50 Jud. Act, ch. 25, §26; Comp. son who signs such a bond as an ad- Laws 1915, § 13004. ditional surety, after delivery to the 776 Executions § 86 erated from any liability incurred before the making of such surrender.^^ To effect the surrender, the bail may take their principal to the keeper of the jail, and, upon the written requirement of the bail, the keeper will take the jn'incipal into his custody and indorse upon the bond an acknowledgment of the surrender of the principal, and, if required, will give the bail a certificate acknowl- edging such surronder.^^ The going at large within the jail limits by a prisoner who has executed a bond en- titling him to the liberty of the jail limits will not be deemed an escape; but, if he goes at large beyond such limits without the assent of the party at whose suit he is in custody, it will be deemed an escape and forfeiture of the bond, and the sheriff will have the same authority to pursue and re-take the prisoner as if the escape had been made from the jail.®* In case of an escape, the plain- tiff may have a new execution against the body or an execution against the property of the defendant,®* or he may luring an action against the sheriff for the escape,®® or he may take an assignment of the bond for the liberty of the jail limits and maintain an action upon it.®^ But, during the prosecution of such an action, the plaintiff cannot take out a new execution against the body of the defendant.®''' The acceptance of an assignment of the bond is a bar to any action by the party receiving the assignment against the sheriff for the escape.®' In case the party at whose suit a person has been confined to the liberties of a jail refuses or neglects to take an assign- ment of the bond and prosecutes the sheriff for the os- SlJiid. Aot, ch. 25, §27; Coiiip. Wayne Circuit Judge, 127 Mich. 414. Laws 1915, §13005. 55 Jud. Act, ch. 25, §31; Comp. 62Jud. Act, ch. 25, §28; Comp. Laws 1915, §13009. Laws 1915, § 13006. 66 Jud. Act, ch, 25, §§37, 38; 63 Jud. Act, ch. 25, §29; Comp. Comp. Laws 1915, §§13015, 13016. Laws 1915, § 13007; Page V. Mitch- 67Grosslight v. Wayne Circuit ell, 13 Mich. 63. Jmlge, 127 Mich. 414. 64 Jud. Act, ch. 23, §29; Comp. 58 Jud. Act, ch. 25, §39; Comp. Laws ]9]5, §12844; Grosslight v. Laws 1915, § 13017. § 86 Executions 777 cape, the court in which the action is pending will stay all proceedings upon the judgment against the sheriff until he has had a reasonable time to prosecute the bond taken by him and to collect the amount of any judgment he may recover thereon; ^^ but the sheriff is not entitled to a stay of proceedings where the judgment against him is for an escape committed with his assent, aid or as- sistance.^" Form of Count Agaiaist a Sheriff for an Escape Under a Capias ad, Satisfaciendum The plaintiff says: 1. That the said plaintiff heretofore, to wit, in the term of the year ...... of the circuit court for the county of j by the con- sideration and judgment of said court, recovered against one CD dollars, which were adjudged to the said plaintiff in and by said court for the damages which he had sustained, as well on occasion of the not performing of certain promises and undertakings before that time made by the said C D. to the said plaintiff as for his costs and charges by the said plaintiff about his suit in that behalf expended. 2. That the said plaintiff, afterwards, to wit, on , sued and prosocutod out of said court a writ of capias ad satisfaciendum upon the said judgment, directed to the sheriff of the county of , by which said writ, the said sheriff was commanded, in the name of the people of the state of Michigan, that he should take the said C. D., if he should be found in his county, and him safely keep, so that the said sheriff might have his body before the court aforesaid, at the court house, in , in said county, on the day of , A. D , to satisfy the said plaintiff the damages and costs aforesaid, and that the said sheriff should have then and there that writ. 3. That said writ afterwards, and before the delivery thereof to the said sheriff to be executed, was duly indorsed with a direction to the said sheriff requiring him to levy the sum of dollars, with interest from the day of , A. D , besides his fees, etc. 4. Tluit said writ, so indorsed as aforesaid, afterwards, and before the said return thereof, to wit, on , at , in the county aforesaid, was delivered to the said S. T., wlio then and thenceforth, until, at, and after the return of the said writ, was sheriff of said county, to be executed according to law. 5. That, by virtue of said writ, and of the indorsement thereon aforesaid, the said S. T., afterwards, and before the said return of the said writ, to wit, on , and within his county, to wit, at , arrested the said C. D. and detained him in his custody in execution for the said sum of money mentioned in and indorsed on tlie said writ and the 59Jud. Act, eh. 25, §41; Comp. 60Jud. Act, ch. 25, §42; Comp. Laws 1915, § 13019. Laws 1915, § 13020. 778 Executions § 86 interest thereon an Midi. 41, and see Garnishment. 788 Exemptions rigors of the common law, under which a debtor might be stripped of his possessions and left utterly destitute, should be construed liberally and beneficially for the debtor, to further the wise public policy upon wliich such provisions are founded.* They apply to contracts previously entered into,^ and the exemption extends to an assignee of exempt prop- erty;^ but a debtor is not entitled to exemptions unless he is a resident of the state.''^ 4Alvord V. Lent, 23 Mich. 369; Stewart v. Welton, 32 Mich. 56; Fischer v. Mclntyre, 66 Mich. 681; Rosenthal v. Scott, 41 Mich. 632; Wilson V. Bartholomew, 45 Mich. 41 ; Kenyon v. Baker, 16 Mich. 373; Car- penter v. Herrington, 25 Wend. (N. Y.) 370; Finlen v. Howard, 126 111. 259; Gregory v. Latchem, 53 Ind. 449; Montague v. Richardson, 24 Conn. 338; Reynolds v. Haines, 83 Iowa 342; Richardson v. Buswcll, 10 Mete. (Mass.) 506; Cobbs v. Coleman, 14 Tex. 594;. Freeman v. Carpenter, 10 Vt. 433; Richardson V. Duncan, 2 Heisk. (Tenn.) 220; Shepherd v. Merrill, 90 N. C. 208; Mallony v. Berry, 16 Kan. 293. 6 Rockwell V. Hubbel 's Adm 'rs, 2 Doug. 197. A statute increasing exemptions is not invalid because made ap- plicable to contracts pieviously en- tered into. Breitung v. Lindaucr, 37 Mich. 217. 6 An assignee of exempt property of judgment debtors succeeds to their rights to exemption, but he lannot claim goods as exempt where he fails to assert that they were ex- empt but claims them as his own. McCausey v. Hoek, 159 Mich. 570. 7 Where one removes to a foreign state he loses the benefit of the ex- emption laws of this state as to any property afterwards found within the state (McHugh v. Curtis, 48 Mich. 262) ; but where his family occupy the old home with his con- sent, and there has been no separa- tion between husband and wife, his voluntary absence does not deprive liis family of their rights in the household property nor terminate its exempt character. Freehling v. Bres- nahan, 61 Mich. 540. Temporary residence in another state, caused by the unlawful seizure of household goods, will not subject the goods to levy at the suit of the party guilty of the original tres- pass, on the ground that the owner is a non-resident of the state and not a householder therein. Erickson V. Drazkowski, 94 Mich. 551. The rule of comity existing be- tween the states forbids the purchase of a claim for the express purpose of assisting the original creditor in evading the exemption laws of his state by having it sued on in the state where the assignee resides, Drake v. Lake Shore, etc., R. Co., 69 Mich. 168. The statutory exemption of a cer- tain portion of an indebtedness for personal labor from garnishment cannot l>e claimed by nonresidents of the state. Kelson v. Detroit, etc., R. Co., 146 Mich. 563. § 4 Exemptions 789 Exemptions from garnishment belong to the person whose debt is garnished and not to the debtor,® and the garnishee cannot urge the point.® The fact that the debtor has other property in another county not levied on from which he might select his ex- emption does not prevent him from claiming property as exempt in the county where levied on.^® Where the facts are not conflicting, the question whether certain articles of personal property are exempt is one of law for the court." § 4. Property which statute exempts. In this state, the following property is exempt from levy and sale under execution, or upon any other final process of a court: 1. All sewing machines, not exceeding one for each family, all spinning wheels, weaving looms with the ap- paratus, and stoves put up and kept for use in any dwell- ing house. 2. A seat, pew or slip, occupied by any person or fam- ily in any house or place of public worship. 3. All cemeteries, tombs and rights of burial, while in use as repositories of the dead. 4. All arms and accoutrements required by law to be kept by any person ; all wearing apparel of every person or family.^*^ 5. The library and school books of every individual and family, not exceeding one hundred and fifty dollars, and all family pictures. 6. To each householder, ten sheep, with their fleeces and the yarn or cloth manufactured from tiiem, two cows, five swine and provisions and fuel for comfortable sub- 8 School Dist. No. 4 of Marathon 11 Fischer v. Mclntyre, 66 Mich. Tp. V. Gage, 39 Mich. 484. 861. 9 Seitz V. Starks, 136 Mich. 90. 12 Elliott v. Whitmoro, .5 Mich. 10 Baldwin v. Talbot, 43 Mich. 11. n.-.fi. 790 Exemptions §4 sistence of such householder or family for six months.^' 7. To each householder, all household goods, furniture and utensils, not exceeding in value two hundred and fifty dollars.^* 8. The tools, implements, materials, stock, apparatus, team, vehicle, horses, harness or other things to enable any person to carry on tlie profession, trade, occupation or business in which he is wholly or principally engaged, not exceeding in value two hundred and fiftv dollars.^* 13 King V. Moore, 10 Mich. 538. Yearling heifer as cow, see Par- sons V. Kimmel, 206 Mich. 676. The right to determine which par- ticular animals of a larger numlier .shall be exempt rests with the hus- band and is not subject to the wife 's concurrence or consent. Harley v. Procunier, 115 Mich. 53. "Householder" means head who has charge of and provides for a family. The exemption as to provisions is estimated with regard to the size of the family, counting in adult chil- dren living with the debtor. Stilson V. Gibbs, 53 Mich. 280. Growing crops of corn and pota- toes are exempt under this subdivi- sion. King V. Moore, 10 Mich. 538. 14Jud. Act, ch. 23, §43; Comp. Laws 1915, §12858; Vanderhorst v. Bacon, 38 Mich. 669; Erickson v. Drazkowski, 94 Mich. 551. A piano is not exempt under this subdivision. Kehl v. Dunn, 102 Mich. 581. Boarding house keeper is entitled to furniture exem])tion although he has abandoned business. Vander- horst V. Bacon, 38 Mich. 669. Who is "householder," see pro- ceding note. 16 A business exemption cannot be claimed by one whose business is unlawful. McCarthy v. Paine, 141 Mich. 571. Offering property for sale does not deprive the owner of the right to claim such property to be exempt. Boyle V. Walsh, 105 Mich. 237; O 'Donnell v. Segar, 25 Mich. 367. Where a husband abandons his principal business, the property ex- empt because necessary to enable liim to prosecute said business loses its exempt character. (Betz v. Bren- ner, 106 Mich. 87; Miller v. Miller, 97 Mich. 151) ; but the fact that the debtor has .suspended his business for a month, and taken the ma- chinery claimed to be exempt to the railroad to be shipped out of the .state for his use, does not preclude liis right to an exemption, so long as he remains a resident of the state (Wood v. Bresnahan, 63 Mich. 614). So when one who had been engaged in the hardware business made an assignment of his property, reserving certain tinners ' tools as being exemjit, it was held that he was entitled to retain them as ex- empt from sale on execution, not- withstanding he had done little or notliing in the business for four inontlis afterwards, in the absence of any showing that he had gone §4 Exemptions 791 To entitle a person lo an exemption under this last sub- division, the business in which he is engaged, wholly or principally, must be sliown,^^ and, where he is engaged in two or more occupations or lines of business, the ex- emption attaches only to that in which he is "})rincipal- ly" engaged, which need not necessarily be the most profitable.^''' To be exempt, property need not be abso- lutely essential to the carrying on of the business, but it must be suitable and actually used or intended to be used therefor." The exemption is a privilege purely personal to the judgment debtor. It may therefore be waived by him and, if waived, cannot be asserted on behalf of any of his creditors. ^^ The word ''team," as used in this subdivision, must be construed to mean either one yoke of oxen, a horse or a pair of horses, as the case may be.*^" .Under this provision, machinery may be exempt.^^ So, iuto other business, or relinquished his former occupation. Harris v. Haynes, 30 Mich. 140. A married woman who supports her family or contributes to its svip- port by the use of a team may claim the benefit of the law exempting a team. McHugh v. Curtis, 48 Mich. 262. The debtor may choose between articles necessary to carry on his business. For instance, although the use of a team is absolutely necessary to conduct the business of the debtor so that he can claim it as exempt, he nevertheless has a right to select in- stead thereof other property to the value of $250 necessary to enable him to carry on the same business. Wyckoff V. WylHs, 8 Mich. 48. A liusband may abandon his ex- emption, by going and staying away, without consent of his wife to such abandonment, even after goods have been set aside Ijy the officer as ex- empt. Betz V. Brenner, 106 Mich. 87. Absconding forfeits right to this exemption. J. L. Hudson Co. v. No- Name Hat Co., 174 Mich. 109. 16 Murphy v. Mulvcna, 108 Mich. 347.' 17 Smalley v. Masten, 8 Mich. 529. See also Kenyon v. Baker, 16 Mich. ■>70 18 Morrill v. Seymour, 3 Mich. 64; Kenyon v. Baker, 16 Mich. 373 ; Smalley v Masten, 8 Mich. 529. Of a stock of goods owned by a ]i;irtnership, each partner is entitled to the statutory exemption. Skin- ner V. Shannon, 44 Mich. 86; Waite v. Mathews, 50 Mich. 392; Chip- man v. Kellogg, 60 Mich. 438; Mc- Coy v. Brennan, 61 Mich. 362. 19 J. L. Hudson Co. v. No-Name Hat Co., 174 Mich. 109. 20Jud. Act, ch. 23, §43; Comp. Laws 1915, § 12858. 21 Wood V. Brosnahan, 63 Midi. 614. 792 Exemptions § 4 also, a dentist's tools,^^ a carpenter's lumber,^' a farmer's seed wheat,^* or his two-year-old colt,*^^ masquerade suits made by a tailor and kept by him to let,^^ a horse and wagon used in the defendant's business,^'^ a team," a tinner's tools,^' merchandise'" and a wagon made by a blacksmith for sale '^ come within the provision; but a saloon-kee])er's pool tables are not exempt,''^ nor a horse and buggy purchased for speculative purposes by one whose business is that of an inventor.^' But the property exempted in this eighth subdivision is not exempt from any execution issued upon a judg- ment rendered for the purchase money for the same prop- erty, and any sale of such property after the commence- ment of a suit to recover the purchase price thereof, and the filing- of the notice hereinafter specified, will be null and void as against such execution, provided the plain- tiff files, or causes to be filed, with the clerk of the city, village or township in which the owner of the pro])erty resides, a notice stating the time when the suit was com- menced, the amount claimed to be due, that the suit is brought to recover the purchase money for the property, a description of the property sought to be reached and the name of the defendant.'* 22 Mason v. Perrott, 17 Mich. 332. 262; Miller v. Miller, 97 Mich. 151. 2» Hutchinson v. Eoe, 44 Mich. 389. 29 Harris v. Hayues, 30 Mich. 140. 24Stilson v. Gibbs, 46 Mich. Slo. 30 Eosenthal v. Scott, 41 Mich. Sec also Hutchinson v. AVhitmorc, 632; Worman v. Giddey, 30 Mich. 90 Mich. 25.3. 151. 25 Tunniugly v. Butcher, 106 Mich. 31 Stewart v. Welton, 32 Mich. 56. 35. But see Hogan v. Ncunicistcr, 32 Goozen v. Phillips, 49 Mich. 7. 117 Mich. 498, holding otherwise 33 Boyle v. Walsh, 105 Mich. 237. where colt unbroken and not shown 34Jud. Act, ch. 23, §44; Corap. to have been intended for farm Laws 1915, § 12859. work. This statute does not create a lien 26 Fi.scher v. Mclntyre, 66 Mich. ui>on the property. The notice is 681. analogous to a lis pendens in other 27 Emerson v. Bacon, 58 Mich. cases and is designed to preserve the 526. status of the property pending suit. 2»McHugh V. Curtis, 48 Mich. Roberts v. McGur, 82 Mich. 221. § 6 Exemptions 793 9. A sufficient quantity of hay, grain, feed and roots, whether growing or othenvise, for properly keeping for six months the animals exempt from execution. ^^ The shares held by a householder member of a build- ing and loan association incorporated under act number seventeen of the public acts of nineteen hundred one of this state are exempt from execution to the amount of one thousand dollars par value, it such member has no homestead under the general laws of the si ate. ^^ § 5. Proceeds of exempt property. The proceeds of a sale of exempt personal property, if intended for reinvestment in other exempt personal prop- erty to take the place of that sold, is exempt." § 6. Insurance money. By statute, moneys payable on a life insurance policy taken out by a husband or father for the benefit of his wife or children, cannot be reached by his creditors.^* So moneys paid by benefit societies are protected by statute.^® So far as the vendor is concerned, ficient. Lillihridfre v. Walsii, 104 the statute virtually takes the prop- Mich. 459. erty out of the exempt class, and the 35 Jud. Act, ch. 23, §43; Comp. judgment need not recite that the Laws 1915, § 12858. recovery is for purchase money. Applies only to animals debtor Lillibridge v. Walsh, 97 Mich. 459. lias at time of levy. King v. Moore, The statute is not limited to cases 10 Mich. 538. where no security has been taken. 36 Jud. Act, ch. 23, §45; Comp Eoberts v. McGur, 82 Mich. 221. Laws 1915, §12860; Morley Bros That statute does not extend to v. National Loan & Investment Co. assignee of purchase money obliga- 120 Mich. 171. tion, see Shepard v. Cross, 33 Mich. 37 CuUen v. Harris, 111 Mich. 20 96. 38 Comp. Laws 1915, § 9345. Stat Cows kept for use on a farm are iite does not apply to assignment of subject to sale for purchase money policy to wife or children where although also exempt to the farmer payable to the insured, his executors, under subdivision six as a house- administrators or assigns. Ionia holder. Feenstra v. Tanis, 145 Mich. County Sav. Bank v. McLean, 84 409. Mich. 625. Actual notice of suit, where stat- 39 Kocor v. Commercial & Savings utory notice is not filed, is not suf- Bank of St. Clair, 142 Mich. 479; 794 Exemptions § 7 § 7. Levy where part of property exempt. An examination of the statutory provisions relative to the exenii^tion of personal property from execution will disclose the distinction that some property is exempt in specie, irrespective of value in money, and other prop- erty is exempt only to a fixed value. When a levy is made upon property of any class or species which is ex- empt by law from execution to a specified amount or value, the officer levying the execution should make an inventory of so much of such property belonging to the person against whom the execution is issued as will be sufficient, in the judgment of the officer, to cover the amount of sucii exemptions and satisfy the execution, and cause it to be appraised at its cash value by two disinterested freeholders of the township or city w^here the property may be, on oath to be administered by him to such appraisers.*'' Upon such inventory and appraisal being completed, the defendant in the execution, or his authorized agent, may select from the inventoiy an amount of property not exceeding, according to the ap- Hunt V. Branch Circuit Judge, 141 property as shall be sufficient in Mich. 423. his judgment to cover the amount 40 Jud. Act, eh. 2.3, §46; Conip. of such exemptions and satisfy the Laws 1915, § 12861. execution. Subsequent proceedings Heretofore when a levy was made are the same as heretofore, upon property of a class or species Fees of appraisers, see Jud. Act, which was exempt by law from exe- cli. 2?,, §48; Comp. Laws 1915, cution to a specified amount or § 12863. value, it has been required that the Inventory or appraisal need not officer levy upon all the property be made in all the counties where of the defendant belonging to such the debtor has property where the class, and the officer must inventory execution is issued and sought to and appraise the same. In case the be enforced only in one county, judgment debtor had a large amount Alvord v. Lent, 2.3 Mich. 369. of such property in comparison to Appraisal need not be served, the size of the judgment, this was Jones v. Peck, 101 Mich. 389. a hardship upon both plaintiff and Amount found by appraisers is defendant. It is now provided that conclusive on officer. Wood v. Bres- the officer shall levy upon and make nahan, 63 Mich. 614. an inventory of so much of such §7 Exemptions 795 praisal, the amount or value exempted by law from ex- ecution; but if neither the defendant nor his agent appears and makes such selection, it is the duty of the officer to make it for him.*^ The Judicature Act adds a new provision fixing the method of procedure where a levy is made upon an article of personal property be- longing to an exempt class but worth more according to the appraisal than the amount of the exemption.*'^ 41Jud. Act, ch. 23, §47; Comp. Laws 1915, § 12862. The right of selection is given by tlie statute in the first instance only to "defendant in the execution or his authorized agent." It follows that whether a fraudulent vendee is entitled to claim the exemption which his fraudulent debtor is entitled to or not, no duty to make the selection is imposed on the offi- cer who levies on a claim against the vendor, and the vendee waives the right of selection where he does not demand it. Williams v. Brown, 137 Mich. 569. Wife cannot select exemption where property owned liy husband. Harlcy v. Prooinier, 115 Mich. 53. Where the execution is levied on a stock of goods belonging to a partnership, and each partner selects the same article, the officer may make a selection for them. Chip- man V. Kellogg, 60 Mich. 438; Skin- ner v. Sliannon, 44 Mich. 86. Tiie right to select exempt prop- erty owned by a husband belongs to iiim and not to his wife. Harlcy V. Procunier, 115 Mich. 53. 42 Whenever a levy is made upon any article, belonging to a class or species which is exempt from exe- cution to a specified amount or value, and the value thereof as de- termined by the ajipraisal, shall be in excess of the amount of the ex- emption allowed therein to the de- fendant in execution, levy and sale thereof may be made under the exe- cution in the ordinary way, and unless the amount of the exemption shall have been claimed or set off in other property or waived, the officer shall pay to the defendant in exe- cution, the amount of such exemp- tion, in money from the proceeds of the sale, and the balance of sucii jiroceeds shall be applied towards the satisfaction of the execution. If at the sale no bid shall be made for such property, in excess of the amount of the exemption allowed tiierein such property shall not be sold, but shall be returned to the defendant. If the defendant in execution shall before such sale, pay to tlie officer the difference between tlic appraised value of such prop- erty, and the amount of the exemp- tion therein, not to exceed the amount due on such execution witii costs of such levy, to be applied upon the execution, such property shall not be sold, but shall be re- lumed to the defendant: Provided, that if after such officer shall have coiii]>leted ttie levy ujion such prop- erty, the (U^fendant in execution shall give to such officer a sufficient bond, to be approved by him, con- ditioned tluit said defendant will 796 Exemptions § 7 If, in case of a le\^ upon such property, the officer fails to cause it to be appraised and to allow the defendant or his agent to make a selection from it of the amount ex- empted, or if, in case of either the defendant or his agent neglecting or refusing to make the selection, the officer fails to do so for him, the levy will be invalid to the ex- tent of the exemption." The execution debtor is under no duty to give notice to the officer that he claims certain property as exempt. It is the officer's duty to protect the debtor in this re- spect without notice," and, if he does not, he is liable to an action at the suit of the execution defendant for the value of the exempt property." A debtor is entitled to his exemption although he has property in another county Avliich has not been levied upon,** or even in the same county; and he is under no obligation to select for his exemption property which is covered by a chattel mortgage,*'^ and, where the officer makes the selection, he should not select property which is mortgaged for its full appraised value.*^ A levy upon mortgaged property is in law only a levy upon the right of redemption, which is not apportionable, so that, for the protection of the mortgagee, the property must be dealt with as one lot, and not in parcels. Therefore no deliver said property to such offi- 43 Town v. Elmore, 38 Midi. ,"?05; cer or before the time of sale, pay Murphy v. Mulvena, 108 Mich. 347. to him the difference between the 44 Vandorhorst v. Bacon, 38 Mich, appraised value of such property, 669. and the amount of his exemption, 46 Stilson v. Gibbs, 53 Mich. 280; not to exceed the amount due on Bayne v. Patterson, 40 Mich. 658; such execution vrith costs accrued, Wyckoff v. Wyllis, 8 Mich. 48. then such officer may permit such 46 Baldwin v. Talbot, 43 Mich. 11. defendant to have possession of such 47 Ganong v. Green, 71 Mich. 1 ; property during the period inter- Baldwin v. Talbot, 43 Mich. 11; vening between the making of the Bayne v. Patterson, 40 Mich. 658. \evy and the time of sale. Jud. Act, 48 Bayne v. Patterson, 40 Mich, ch. 23, S50; Comp. Laws 1915, 658. § 12865. § 8 Exemptions' 797 selection can be made of any specific portion of it so as to bind the mortgagee." The appraisal should be made, if practicable, in the place where the goods are found. They must not be moved when the appraisal can be made without re- moval.*'" The appraisers should be disinterested. This requirement is designed for the benefit and protection of the execution debtor. Accordingly, the selection of the attorney for the plaintiff in attachment proceedings against the same defendant to act as one of the appraisers under the execution levy would be unlawful."^ But if an appraiser, instead of being disinterested, is one who would be presumed rather to favor the defendant than otherwise, as, for instance, a member of his own family, the defendant cannot complain.*'* While the officer is entitled to a reasonable time in which to make an inventory and appraisal, yet, where it is important to the defendant's business that he should have the benefit of his exemptions without delay, the officer is bound to act promptly in allowing him to select them or in setting them off to him.'^^ When a levy is made upon partnership property, if the several partners, in selecting the amount of their respective exemptions, cannot agree, the officer may intervene and make the se- lections for them." § 8. Duty of officer as to property exempt in specie. Wlienever the defendant in an execution has cows, sheep, swine or other animals or articles, some of which are exempt from sale on execution and some of whicli are noF so exempt, the officer may take all of such ani- mals or articles into his possession, and the defendant or 49Bayiic V. Patterson, 40 Mich. 52Grovor v. Buck, .'^4 Mich. 519. 658. 53 Handy v. Clippert, 50 Mich. BOVandorhorst v. Bacon, .".S Mich. .;.'>'). And soo K'mg v. Moore, 10 669. Mich. n.'lS, ."4.1. SlBaync v. Patterson, 40 Mich. 54 skinner v. Shannon, 44 Mich. 6.58. ."6. 798 Exemptions § 8 his authorized agent may, immediately on being noti- fied of the levy, select so many of them as are exempt from execution ; but if the defendant is absent or neglects to make such selection on being notified, it is the duty of the officer to make it for him." § 9. Waiver of exemptions. The right to exemption may be waived,^^ but in some cases it has been held that a husband cannot waive with- out the consent of his wife." What constitutes a waiver is largely dependent upon the facts of the particular case.'^ § 10. Transfer of exempt property. A debtor may do as he pleases with any of his exempt property free from claims of his creditors,*^ and where he duly selects from his stock in trade an amount ex- empt by law, he can use or dispose thereof as he sees fit without subjecting it to liability.^'^ So garnishment process will not reach exempt personal property assigned by the principal debtor.^^ A conveyance of exempt prop- erty is supeiior to the levy of any attachment except one 55 .Tud. Act, ch. 23, §49; Comp. cTiiptioiis by a writing given to the Laws 1915, §12864; King v. Moore, olticer and stating his consent to a 10 Mich. 538; Murphy v. Mulvena, »a]e of all his property. Rich v. 108 Mich. .".47. French, 99 Mich. 27. 56 J. L. Hudson Co. v. No-Name So where one delivers exempt Hat Co., 174 Mich. 109. i>roperty to another to be trans- Waiver signed by mistake is of formed by the labor of the latter no effect. Charpentier v. Bresnahan, into books to be sold, he thereby 74 Mich. 48. waives exemptions as to such prop- 57 King V. Moore, 10 Mich. 538. erty, and subjects it to a lien for Consent of wife not necessary tlie labor bestowed on it. Rogers v. where exemption claimed under sub- Raynor, 102 Mich. 473. division 8 of the statute. Charpen- 59 McCormick v. Kistler, 175 Mich, tier V. Bresnahan, 62 Mich. 360; 422 ; Buckley v. Wheeler, 52 Mich. 1. Wilson V. Montague, 57 Mich. 638. 60 Rosenthal v. Scott, 41 Mich. 68 See Vanderhorst v. Bacon, 38 632. Mich. 669. 61 Anderson v. Odell, 51 Mich. He may waive his right to ex- 492. Extension of Time 799 for purchase price, in which case it is superior only where the conveyance is prior in time; and the purchaser ob- tains a title superior to the lien of any subsequent attach- ment levy.^^ § 11. Consent of wife. It is a principal object of the statutory exemptions to secure their benefits to the family of the debtor, and hence it is provided that any chattel mortgage, bill of sale or other lien created by the husband upon any of the per- sonal property, exempted from sale under execution or other final process, except such as is mentioned in the 8th subdivision hereinbefore referred to, shall be void un- less the same be signed by the wife also.^^ Where a hus- band owns five cows, a mortgage on two of them, without his wife's signature, is valid, since it will be presumed that he mortgaged those not exempt.^* But the husband may make an absolute sale of any of his personal prop- erty exempt from sale on execution without the written assent of his wife, and it would seem that no assent on her part to such sale is required.'^^ EXHIBITION See Evidence, §2 (exhibition lief ore jui'y). EXHIBITS See Pleadixg; Bim. of Exceptions; Supreme Court. EXPERTS See Witnesses. EXTENSION OF TIME See Time. 62 Buckley v. Wheeler, 52 Mioh. 1. 65 Miller v. Miller, 97 Mich. 1;11 ; 63Ju(l. Act, eh. 23, §43; Comp. Holinan v. Gillette, 24 Mich. 414; Laws ]91;', 8 12S;')8. P.nrsoiis v. Kiinnicl, 173 N. W. .'539. 64Hnrley v. Procunier, 115 Mich. .53. 800 EXTRADITTOX EXTRADITION See Habeas Corpvs. FACTS See Verdict and Findings; Case Made; Error, Writ of (review of); Certiorari. FALSE IMPRISONMENT Actions for false imprisonmont aro based on a tort, the elements of which are an unlawful arrest or deten- tion without cause.* The action is distin.o'uisliable from an action for malicious prosecution.^ An actual manual arrest is not necessary to constitute a false imprison- ment,' but there must be some sort of personal coercion.* The officer need not resort to actual violence.* The im- prisonment must be false,® but a person who makes com- plaint is liable only where the officer making the arrest is liable.' Delay for an unreasonable leno-th of time in bi-ino-ing a person arrested before the court constitutes false imprisonment,* A justice of the peace is not liable because of an erroneous judicial decision.® The fact that plaintiff, when arraigned, made no objection to the man- ner of his arrest, but pleaded guilty to the charge, is no waiver of any illegality in the arrest.*'' Advice of coun- 1 Thomas v. Rosecrantz, 193 Mich. upon a person either by force or 357; Schneider v. Shepherd, 192 fear. Moore v. Thompson, 92 Mich. Mich. 82; Bates v. Kitchel, 166 498, 503. Mich. 695; 160 Mich. 402; Gallon 4 Hill v. Taylor, 50 Mich. 549. V. House of Good Shepherd, 158 5 Josselyn v. McAllister, 25 Mich. Mich. 361, 367; Larson v. Collins, 4.1. 195 Mich. 492; Durham v. Fceney, 6 .Jolinson v. Maxon, 23 Mich. 129. 195 Mich. 318; Schneider v. Shep- 7 Hill v. Taylor, 50 Mich. 549. herd, 192 Mich. 82; Paulus v. Grob- 8 Oxford v. Berry, 204 Mich. 197. ben, 104 Mich. 42. But see Freisenhan v. Maines, 137 2 Haskins v. Ralston, 69 Mich. 63, Mich. 10. and see Tryon v. Pingree, 112 Mich. 9 Gardner v. Couch, 137 Mich. 338. 358; Brooks v. Mangan, 86 Mich. SBrushaber v. Stegemann, 22 576; Pardee v. Smith, 27 Mich. 33. Mich. 266. 10 McCiillough v. Greenfield, 133 It is enough if restraint is put 'Mich. 463. Fees 801 sel, while sometimes a defense,^^ is no defense to a per- son not acting in good faith. ^'^ The dechiration must allege imprisonment and the wrongfulness thereof,^' and plead any special damages suffered.^* A count for malicious prosecution may be added by amendment. ^^ Justification of the arrest, if re- lied on as a defense, must be set forth in a notice under tlie general issue/^ especially where the arrest is with- out a warrant.^''^ See Contempt. See Exemptions. FALSE PERSONATION FAMILY PICTURES FEES The fees of clerks of courts are expressly enumerated in chapter 46 of the Judicature Act and in the rules of court. The taxation of fees of a sheriff or attorney, upon the settlement of an execution or any suit or demand (see Jud. Act, ch. 47, § 31. Laws 1915, $ 13712) is ex- pressly required by statute. Chapter 48 of the Judica- ture Act, Laws 1915, § 13718 et seq., provides in detail as to the fees of sheriffs, witnesses and jurors. Chapter 49 of the Judicature Act, Laws 1915, ^^ 13723 et seq., enumerates the fees of circuit court commissioners, of appraisers, for publishing legal notices, and states cer- 11 Murphy v. Walters, .34 Mich.' 14 Fuller v. Bowker, 11 Mich. 204. 180; Perry v. Sulier, 92 Mich. 72. 16 People v. Wayne Circuit Judge, But see Josselyn v. McAllister, 22 27 Mich. 164. Mich. 300. 16Tubbs v. Haessi«:, 149 Mich. 12 Burbanks v. Lepovsky, l;!4 185. Mich. .384. 17 White v. McQueen, 96 Mich. 13 See Brushabcr v. Stef,'emann, 249; Tublis v. Haessig, 149 Mich. 22 Mich. 266, holding declaration to ISf). contain a sufficient averment of malice. 1 Abbott— i^l 802 Fees tain rules applicable to fees generally. Judges or other judicial officers are not entitled to fees (Jud. Act, ch. 4, § 11, Laws 1915, § 12258) except where expressly given by statute. FEMALES Soe Women; Majiried Women. FI FA See Executions. FILING See Plelvding; AFFffiAviTs; Commencement of Actions; Bill of Particulars; Garnishment; Replevin; Ejectment; Papers; Motions; References; Briefs; Bill of Exceptions; Case Made; Attachment; Mandamus. FINDINGS See Verivict and Findings; Jitdgj[ent; Replevin; Ejectment; Bill of Exceptions ; Error, Writ of. FINES Chapter 35 of the Judicature Act, Laws 1915, ^ 13393 et seq., is entitled "Collection of Penalties, Fines and Forfeited Recognizances." It authorizes an action of assumpsit in the name of the people for the recovery of fines, provides for the collection of fines for violating ordinances, etc. In another chapter of the Judicature Act (ch. 20) are certain provisions (>^^5-9) imposing fines for neglect to execute ])rocess, neglect to attend as a juror, and neglect of officer to attend a jury, witii added provisions as to notice of the fine, mode of collection, etc. Fines for refusal of officers to obey a peremptory man- damus (see Mandamus) and fines for refusal to grant a writ of lia))eas cori)us (see Habeas (\)rpus) ai"e also pro- vided for bv statute. See Partnership. See Eeplevin. See Exemptions. Forfeitures 803 FIRMS FIXTURES FOOD FORCIBLE ENTRY AND DETAINER Sec Su.MJiARY Pkoceedings, etc. FORECLOSURE See Mortgages; Mandamus. FOREIGN CORPORATIONS See Coki'Okations ; Garnishment; Attachment; Venue; Courts; Costs; Commencement of Actions; Quo W.\rranto; Mandamus. FORFEITURES Cliaptor ."!.") ol' the Judicature Act, (onip. Laws 1915, $ 13393 et seq., is entitled "Collection of Penalties, Fines and Forfeited Recognizances." It provides in detail as to who may sue, pleading, etc. It also expressly pro- ^•ides that "if an action of tres]jass on the case be brought to recover any goods or other things forfeited by tlie provisions of any statute, the declaration may allege that such goods or other things were forfeited according to the i)rovisions of such statute, referring to the same as presciibed in llie foregoing section, wiihout setting fortli the s])ecial nuitter."^ In anotlu'r chapter of the Judi- catui'e Act it is provided that "whenever, by the pro- visions of law, any property, real or personal, shall be forfeited to the people of this state, or to any officers, for l.Iiul. Ai-t, ell. .S.'i, ST; Comp. l.rnvs 191.1, S IM.-JOi). 804 FORFEITUKES llifir use, an inronnation for tlie rocovciy ot* such prop- erly alleging the grounds of such forfeiture, may be hk'd by the Attorney General in the circuit court; upon which the like proceedings and judgment shall be had, if the infornuition be to recover personal property, as in per- sonal actions, and if to recover real property, as in actions of ejectment." ^ The venue of such actions,' tlie time to sue for,* the right of plaintiff to costs,^ etc., are stated elsewhere. FORM OF ACTION See Actions; Assumpsit; Tkovek; Eeplevin; etc. FORMER JEOPARDY See Habeas Cokpus. FORMER RECOVERY See Judgments. See Time. See Executions. FRACTIONS FRANCHISES FRATERNAL BENEFIT SOCIETIES Sec Commencement or Actions; Venue; Costs; Garnishment. FRAUD Cross-Eeferenccs: Commencement or Actions; Abatement; Trover; Attachment; Limitation of Actions. In pleading fraud, while the facts upon which the claim of fraud is based must be alleged rather than con- 2Jud. Act, eh. 38, §25; Comp. 4 Sec Limitation of Actions. Laws 1915, § 13548. 5 See Costs. 3 See Venue. Fraud 805 elusions, it is sufficient if the substance of the transac- tion and the result is alleged.^ Damages cannot be re- covered for fraud under the common counts in assump- sit.^ If fraud is relied on as a defense, notice thereof must be given under a plea of the general issue.^ Form of Declaration for Fraudulent Representations or Breach of Warranty (8. B. A. Fonii) (Title of court and cause.) The plaintiff says: 1. That, on , 19..., the defendant offered to sell him a certain farm then owned by the defendant, described as 2. That, to induce the plaintiff to purchase said farm, the defendant represented to the plaintiff that the said farm was thoroughly tile drained throughout. 3. That the plaintiff was thereby induced to purchase said farm for dollars, which was then and there paid to the defendant, relying on the truth of the said representations. 4. That the said representations were not true, and a large part of said farm was entirely without tile drain. 5. That the defendant made the said representations fraudulently, know- ing them to be false and for the purpose of inducing the plaintiff to purchase the said farm. 6. That the defendant, in consideration of the purchase of the said farm by the plaintiff, warranted that the said land was thoroughly tile drained throughout. 7. That the said farm was not as warranted, but a large part of it was wholly without any tile drains. 8. Wherefore, etc. Form of Notice of Fraud (S. B. A. Form) The defendant will show: 1. That he was induced to enter into said contract by the fraud of the plaintiff, in representing to the defendant that tiie said goods were new stock and had not been on plaintiff's shelves more than two months. 2. That this i-eprescntation was false, to the plaintiff 's knowledge, in that said goods were old stock which had been on the plaintiff's shelves from to months, and were shopworn and greatly damaged. .3. That, within a reasonable time after discovering this fraud, and on 1 Watson V. Wagner, 202 Mich. 2 Barciiy v. Carpenter, 181 Mich. 397. 78, and see Assumpsit. See also Scofield v. Clarke, 179 3 See Pleading. Mich. 681 ; Ward v. Cook, 158 Mich. 283. 806 Fkaud , 19..., the tlcfenclant repudiated the said sale and notified the plaintiff that he would not accept or pay for the said goods. FRAUDULENT CONVEYANCES See Executions; Gaknisiiment. FRAUDULENT DEBTORS § 1. Nature of proceedings. § 2. Affidavit. § .".. Warrant. § 4. Rights of defendant on being brouglit before officer. § 5. Witnesses and jury. § 6. Determination, eoniinitnicnt and discharge. § 7. Appeal by defendant. § 8. Rc>covery on bond of defendant. § 1. Nature of proceedings. Imprisonment for debt, that drastic and often unjust- ly o])pressive institution of tlie common law, has been abolislied in Michigan, so that now by the law of this state no person can be imprisoned when the only thing alleged against him is that he owes a debt. The provi- sion of the constitution of the state is that no person sliall be imprisoned for debt arising out of or founded u])on contract, express or implied, except in cases of fraud or breach of trust or of moneys collected by pub- lic officers or in any professional employment.^ It is provided by statute that no jierson shall be ar- rested or imprisoned on any civil process issuing out of any court of law or on any execution issuing out of a court of equity in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, ex])ress or implied, or for the recovery of any damages for the non-performance of any contract.^ This provision of the statute, however, 1 Const. Art. IT, sec. 20. 2 .Tud. Act, ch. 44, § 1 ; Conip. Laws 1915, §13630. § 1 Fraudulent Debtors 807 does not extend to proceedings as for contempts to en- force civil remedies, or to actions for fines, penalties or forfeitures or on promises to marry where fraud is al- leged or for moneys collected by any public officer or for any misconduct or neglect in office or in any professional employment.^ In all cases where, by the foregoing provisions of the statute, a defendant cannot be arrested or imprisoned, it is lawful for the plaintilf, who has commenced a suit or has obtained a judgment or decree against him in any court of record or justice's court, to apply to any judge of the court in which the suit is brought, or to any cir- cuit judge or circuit court commissioner, or to any jus- tice of the peace before whom the suit is pending or judg- ment obtained or before whom such proceedings have been transferred, for a warrant to arrest the defendant.* The action is a civil one, and not criminal, and the pur- pose is to compel the payment of the debt.^ The pro- ceeding does not lie against a woman.^ No warrant should be issued for the arrest of a defend- ant when there is a valid subsisting levy upon person- alty sufficient to satisfy the debt. The existence of sucli levy, however, does not render the proceedings void and therefore susceptible of collateral attack, but it does render them so irregular as to enable the defendant to avoid them by a direct attack.''' The federal bankruptcy law does not sui^ersede the statute providing for the arrest of a defendant, so as in all cases to preclude resort to this remedy. One against whom an involuntary petition iu ])niikruptc'y has l)een 3,Jiul. Act, eh. 44, §2; Conip. 6 Jud. A.t, rli. 13, §42; Comp. Laws 1915, §13631. Laws 1915, §12445; People v. Bar- 4 Jud, Act, ch. 44, §3; Comp. tow, 27 Mich. 68; Carnahan v. Car- Laws 1915, §13632. iiahan, 143 Mich. 390. 5Duniiiier v. Nungcsscr, 107 Mich. VJolinson v. Maxon, 23 Mich. 129. 481 ; Wayne County v. Randall, 43 Mich. 137. 808 Fraudulent Debtors § 1 filed or who has filed a voluntary petition may be ar- rested under the statute on a warrant based upon an in- debtedness from which he would not be released by a discharge in bankruptcy, but in the case of a debt of which the debtor's discharge in bankruptcy would be a release, if bankruptcy proceedings have been instituted, no proceedings should be taken for the arrest of the de- fondant under the state statute. If the defendant has ]>een ari'ested on a warrant issued under the statute, the subsequent filing of a petition in bankruptcy does not ipso facto relieve him from arrest. He would, however, be entitled to relief upon a proper application. Such ap- plication should be made in the first instance to the state court, as this practice will be more likely to avert a con- flict of jurisdiction; but, if the state court denies the re- lief, application may then be made to the federal court.' §2. Affidavit. The warrant can issue only upon satisfactory evidence adduced to the officer authorized to issue it by the affi- davit of the plaintitf or some other person or persons that there is a debt or demand due to the plaintiff from the defendant, specifying the nature and amount thereof as near as may be, for which the defendant, according to the foregoing provisions of the statute, cannot be ar- rested or impi-isoned, and establishing one or more of the following particulars: 1. Tliat the defendant is about to remove any of his property out of tlie jui'isdiction of the court in which the suit is brought, with intent to defraud his creditor or creditors; or 2. That the defendant has property or rights in action wliicli he fraudulently conceals, or that he has rights in 8 In re Walker, 1 Low. 222; Hazle- gers, 2 Biss. 71; Minon v. Van ton V. Valentine, 1 Low. 270 ; In Nostrand, Holmes, 251 ; In re re Seymour, 1 Ben. .348; In re O'Mara, 4 Biss. .'506. Wliitehouse, 1 Low. 429; In re Wig- § 2 Fraudulent Debtors 809 action or some interest in some public or corporate stock, money or evidence of debt wliicli lie unjustly refuses to apply to the payment of a judgment or decree wiiicli lias been rendered against him belonging to the plaintiff; or 3. That he has assigned, removed or disposed of, or is about to dispose of, any of his property, with intent to defraud his creditor or creditors; or 4. That he fraudulently contracted the debt or in- curred the obligation respecting which the suit was brought.^ The property concerning which any such charge is made must be such as is not exempt from levy and sale under execution. ^° The affidavit is the basis upon which all the subse- quent proceedings rest, and must therefore comply with every requisite of the statute, not only as to the allega- tions relating to the indebtedness, but also as to the facts upon which it is claimed the defendant is liable to arrest as a fraudulent debtor. Where the affidavit states that the defendant is justly indebted unto the plaintiff in a specified sum upon two promissory notes, and that such sum is now due from the defendant to the plaintiff, the statement as to the amount due and the character of the indebtedness is sufficient." But a statement that the amount of the plaintiff's claim against the defendant is "about" a specified sum, "as near as deponent can fix the same," is insufficient, for it does not contain any legal evidence of tlie existence in fact of any debt what- ever. A statement of the debt by way of recital merely SJud. Act, eh. 44, §4; Comp. §13; Comp. Laws 1915, §13642. Laws 1915, § 13633. See also Duninior v. Nungcsser, 107 The removal, concealment or dis- Mich. 481. posal of any property referred to 10 Jud. Act, ch. 44, §13; Comp. ■will not be deemed to apply to Laws 1915, § 13642. property which is expressly ex- H Dummcr v. Nungesser, 107 empted by law from levy and sale Mich. 481. under execution. Jud. Act, ch. 44, 810 Fraudulent Debtoks § 2 is not oiioiii>li. What is required is an atitirmative allega- tion or averment that the debt exists.*^ When the in- del)tedness for which a warrant is sought is alleged to be in judgment, the affidavit should set forth such a judg- ment as will authorize the proceeding, and should give the date of the judgment and show the form of action in wliich it was rendered. An affidavit which fails to show whether the judgment was in tort or on contract is fatal- ly defective.^^ It is only in cases Avhere fraud is charged that a war- rant can be had." The affidavit must, therefore, show facts which amount to a prima facie case of fraud.^^ Thus, the fact that a debtor has admitted that he has sold his stock of goods at less than half their value, and refuses to pay more than thirty cents on the dollar, is not sufficient to make out a case of fraud.^^ The affidavit should set forth such facts and circumstances as will authorize the officer who is asked to issue the warrant to find such a state of facts as will bring the case within the statute.*''^ The facts and circumstances which are relied upon to make out a case within the statute must be stated posi- tively on the affiant's own knowledge, and not merely on his information and belief or by way of recital." That the affiant is personally cognizant of the facts set forth must appear with reasonable certainty upon the face of the affidavit, either expressly or by a fair presumption from the nature of the facts and the circumstances dis- 12 Lee's Case, 49 Mieh. 629. Willisou v. Desenberg, 41 Mich. 156; 13 Badger V. Keade, 39 Mieh. 77L Supe v. Francis, 49 Mieh. 266; 14 Dunimer v. Nungesser, 107 .Johnson v. Maxon, 23 Mich. 129. Mich. 481. 18 Stcnsrud v. Delamater, 56 Mich. ISTeachout's Case, 15 Mieh. 346. 144; Proctor v. Prout, 17 Mieh. 473; 16 Stensrud v. Delamater, 56 Badger v. Reade, 39 Mich. 771 ; Mich. 144; Wm. Barie Dry Goods Marble v. Curran, 63 Mich. 283; Co. V. Casler, 131 Mieh. 23; Paulus Lee's Case, 49 Mich. 629; Duinmer V. GrolDben, 104 Mich. 42. v. Nungesser, 107 Mich. 481; Paulus 17 Proctor V. Prout, 17 Mich. 473; v. Groffen, 104 Mich. 42. § 2 Fraudulent Debtors 811 closed.^^ If the plaintiff does not know the facts, other affidavits must be produced from those who do know them. It is also held that the facts must be specific, and not merely general, so that the defendant may know pre- cisely what he is called on to controvert.^" No one can be held under the statute for any construc- tive fraud, or where he is guilty of no personal delin- quency and the act complained of is the immoral con- duct of another, such as that of a partner.^^ Form of Affidavit to Obtain a Warrant for the Arrest of a Fraudulent Debtor State of Miehioan, ) County of ( A. B., lieing duly sworn, deposes and says that he has commenced a suit, as plaintiff, against C. D., as defendant, by summons (or as the case may be) issued out of the circuit court for the county of , on the day, of , A. D , upon a demand which the said A. B. has against the said C. D., arising upon (here specify the nature of tlie demand), which said suit is still pending (or, that he has obtained a judgment against C. D., as defendant, in the circuit court for the county of , on the day of , A. D , upon a demand which he had against the said defendant arising upon [here specify the nature of the demand]); and that there is due upon such demand (or, judgment) to the said A. B., plaintiff, from the said C. D., defendant, the sum of ...... dollars, as near as may be, for which said demand the defendant, according to the pro- visions of chapter forty-four of the Judicature Act of nineteen hundred fifteen, cannot be arrested or imprisoned. And this deponent further says that the said defendant is abont to remove his property (or, certain of his property) out of the jurisdiction of said court, with intent to defraud Iiis creditors. Or, And tliis deponent furtlier says tliat tlu' said defendant has property or rights in action, which he fraudulently conceals (or, that he has rights in action or interests in some public or corporate stock, moiu^y, or evidence of debt, which he unjustly refuses to apply to the payment of deponent's said judgment, so olttnined against the said defendant, as aforesaid). Or,' And this de])onent furtlur says that the said defendant has assigned, 19 Proctor v. Prout, 17 Mich. 47:5. 21 Watson v. Hinchman, 42 Mich. 20 Badger v. Peade, 39 Mich. 771. 27. 812 Fraudulent Debtors § 2 removed, or disposed (or, is about to dispose) of his property (or, certain of his property) with intent to defraud his creditors. Or, And this deponent further says that the said defendant fraudulently contracted the debt or incurred the o))ligation respecting -which the afore- said suit is brought. And this deponent further says that tlie facts and circumstances which establish the particulars aforesaid are as follows: (Here state all the facts and circumstances showing the truth of the ground upon which ])laintifF relies for obtaining a warrant.) A. B. Subscribed, etc. §3. Warrant. No warrant can issue unless ''satisfactory evidence" is adduced to the officer to whom the application is made by affidavit; ^^ but, upon such proof being made to his satisfaction, it is his duty to issue a warrant under his liand, in behalf of the people of this state, directed to the sheriff or any constable of the county within which such officer resides, therein briefly setting forth the nature of the com])laint and commanding the officer to whom it is directed to arrest the person named in the warrant and l)ring him before such officer without delay. The war- rant must be accompanied by a copy of all the affidavits which were presented to the officer and upon which the warrant issued, which copies must be certified by the officer issuing the warrant and be delivered to the defend- ant at tlie time of serving the warrant by the officer serv- ing it.^^ When "satisfactory evidence" is adduced, the law gives tlie right to the process and makes it the duty of the officer to issue it. The sufficiency of the evidence, when not wholly wanting in I'egai-d to any material fact, is, as to the point of jurisdiction, for the officer applied to. While evidence by the affidavit of the creditor or of some other person or persons is to be adduced to support 22Jud. Act, ch. 44, §4; Comp. 23 Jud. Act, ch. 44, §.5; Comp. Laws ]91.'j, § 1.^6:53. I^aws 1915, § 13634. § 3 Fraudulent Debtors 813 each of the statutory requisites to endow the officer with jurisdiction, the proof, or extent of the effect or conclu- siveness of the evidence, is to be such as to satisfy the officer. His jurisdiction does not depend upon the weight of the evidence in the abstract or on the conflicting opin- ions of different courts or magistrates respecting the cogency or conchisiveness of the evidence. The juris- diction to issue the warrant vests if the evidence is *' sat- isfactory" to liim.^^ It is the duty of the officer to whom the warrant is de- livered for service to execute it by arresting the defend- ant and bringing him before the officer who issued the warrant, or, in case of the hitter's absence or inability, before some other officer having jurisdiction in the case, and to keep the defendant in custody until he has been duly discharged or committed as will be hereafter ex- plained.^^ A copy of all the affidavits upon which the warrant issued, certified by the officer who issued the war- rant, must be delivered to the defendant at the time the warrant is served by the officer who serves it.^*^ Form of Warrant for Arrest of Fraudulent Debtor State of Michigan, ) County of j'^*'' To the Sheriff of the County of , Greeting: Whereas it satisfactorily appears to me (name an«l oflicial designation), by the affidavit of A. B., a copy of which is hereto annexed, that the said A. B. has commenced a suit, as plaintiff, against C. D., as defendant, by summons (or as the ease may be) issued out of the circuit court for the county of , on the day of , A. D , upon demand which the said A. B. has against the said C. D., arising upon (here specify the nature of the demand, or, that the said A. B. has ol)tained a judgment against C. D., as defendant, in the circuit court for the county of , on the day of , A. D ), for which said demand the defendant, according to tlie provisions of chapter forty-four of the .Tudica- 24.Tohnson v. Maxon, 2?> Mich. 26 .Tud. Act, ch. 44, S.l; Comp. 127; Supe v. Francis, 49 Mich. 266. Laws 1915, § L'^6:U. 25 .Tud. Act, ch. 44, §6; Comp. Laws 19L1, SL^6.'^.'1. 814 Fraudulent Debtors | 3 ture Act of uinetoeii huiuliod lit'toon, cannot l)e aivested and imprisoned, and that the said defendant is about to remove his property (or any of his property) out of the jurisdiction of said court, with intent to defraud his creditors (or as the ease may be, as stated in the affidavit). You are therefore conimande*!, in tlio name of tlie people of the state of Michigan, to arrest the said C. D. and bring him before me, at , without dfday, to answer to the said complaint, and tiiat such further proceedings may be had thereupon as are authorized by law. Given under my hand at , this day of , A. D Circuit Judge (or as the case may be). § 4. Rights of defendant on being brought before officer. ir the (lefoiubuit desires to question the jurisdiction of the officer who issued the warrant or of the officer before whom he is brought after being arrested, he may do so by motion to dismiss the proceedings, whether the want of jurisdiction appears upon the face of the papers, as wliere the facts and circumstances alleged in the affidavit for the wai'rant are not sufficient to l)ring the case witliin the statute, oi- can be made to appear only by the bring- ini>- in of some extrinsic fact or circumstance.^' If the defendant does not wish to raise a preliminary objection to tlie jurisdiction, he may, on l)eing brought before the officer, contro\-ert any of tlie facts and circumstances on Avhich the wai-rant issued, and may, at his option, verify his allegations by his own affidavit. In case of his so verifying- them, the plaintiff may examine him on oath touching any fact or circumstance material to the in- quiry. The answers of the defendant on such examina- tion ai'e required to be reduced to writing and subscribed by him. The officer conducting the inquiry must also receive such other proofs as the parties may offer, either at the time of their first appearance or at such other time as the hearing may be adjoni-ned to.^® The whole issue is ui)on the allegations of the plain- 27 Clark V. Mikesell, 81 Mich. 4.1. 28.Jud. Act, ch. 44, §7; Comp. Laws 1915, § 13636. § 5 Fraudulent Debtors 815 tiff, and the result depends upon them and their truth, which is held admitted if not denied.^® The mere denial, however, by the defendant, of the truth of the allega- tions in the affidavits upon which the warrant issued, will not rendei- it necessary for the plaintiff to inti'oduce evi- dence in supjjort of tliem. Unless the defendant not only denies their truth or the truth of some essential one of them, and supports his denial by evidence in the shape of affidavits or otherwise, the issue must be decided in favor of the plaintiff.^" If the defendant introduces evi- dence, the weight of the evidence is for the officer, wdiose finding or conclusion thereon w^ill not be reviewed.^^ In case of an adjournment, the officer before whom tlie hearing is pending may take a recognizance w^itli surety from the defendant for his appearance at the adjourned meeting, conditioned that the defendant will not mean- while secrete, destroy, dispose of or in any manner make way with or put out of his possession any of his property not exempt from sale on execution. If the defendant does not enter into such a recognizance, he must be committed to the county jail and there remain until the time to wdiich the hearing is adjourned or until he gives the re- cognizance.^^ § 5. Witnesses and jury. The officer conducting the inquiry has the same au- thority to issue subpoenas for witnesses, enforce obedi- ence to such subpoenas and punish witnesses refusing to testify as he has in cases of other proceedings before liim.^' The defendant will be entitled to a jury of six jurors, if he demand one, to try the issue joined in the matters 29 Badger V. Reade, 39 Mich. 771. 32 Jud. Aet, eh. 44, §7; Corap. 30 Spencer v. Hiltoii, 10 Wend. Laws 1915, §13636. (N. Y.) 6in. 33.Tiid. Aet, cli. 44, §S; Conip. SlWillison v. DosenberK, 41 Mioli. Laws 1915, S 13637. ].16. 816 FiiAUDULEXT Debtous § 5 nlk'^tMl a.i'aiiist liiiii in tlie aflidavit or aflidavits exliib- ited to or before the officer conducting- the inquiry. The jury is to be selected and summoned in the same man- ner, as near as may be, as in the trial of criminal cases before justices of the peace, and the officer has the same power in relation to the selection, summoning and swear- ing such jury and conducting the jury trial, as near as may be, as is given to justices of the peace in the trial of criminal cases before them.^* § 6. Determination, commitment and discharge. If the officer is satisfied that the allegations of the plaintiff" are substantiated, and that the defendant has done, or is about to do, any of the acts specified upon which a warrant Avas authorized to be issued, it is his duty, by a commitment under his hand, to direct that the defendant be committed to the jail of the county in which the hearing is had, there to be detained until he is dis- charged according to law, and the defendant will be com- mitted and detained accordingly.^^ But a commitment of the defendant will not be granted, if he either (1) pays the debt or demand claimed, with the costs of the suit and of the proceedings against him, or (2) gives security to the satisfaction of the officer be- fore whom the hearing is had that the debt or demand of the plaintiff, with the costs of the suit and the pro- ceeding aforesaid, shall be paid within ninety days, if a judgment has been recovered thereon, or witiiin ninety days after judgment has been obtained, in case judgment has not been rendered thereon, or (3) enters into a bond to the plaintiff in a penalty not less than twice the amount of the debt or demand claimed, with such surety or sureties as shall be approved by the officer, condi- tioned that the defendant will, within thirty days there- 84Jurl. Act, ch. 44, §8; Conip. 36 Jud. Act, ch. 44, §9; Conip. Laws 1915, § 13637. Laws 1915, § 13638. § 7 Fraudulent Debtors 817 after, make a general assignment of all his property for the benefit of his creditors in accordance with the provi- sions of chapter forty-two of the Judicature Act or file a petition under the federal bankruptcy law, and dili- gently prosecute it until he obtains a discharge, and that he will not, before making such assignment or filing his petition for adjudication, in an}^ way dispose of any money, property or rights in action or interest in any public or corporate stock or evidence of debt or any- thing valuable whatsoever which he possessed at the time of his arrest, not exempt from execution.'® The statute requires that a defendant who has been committed shall remain in custody in the same manner as other prisoners until a final judgment has been ren- dered in his favor in the suit prosecuted by the creditor at whose instance he has been committed, or until he has mxide a general assignment for the benefit of his creditors in accordance with chapter forty-two of the Judicature Act or has been adjudicated a bankrupt in accordance with the federal bankruptcy law; but he may be dis- charged by the officer committing him or by any other person authorized to discharge the duties of such officer, on paying the debt or demand claimed or giving security for the payment thereof as above mentioned or on ex- ecuting the bond mentioned.^''' § 7. Appeal by defendant. A defendant who has been committed or ordered to be committed may, at any time within twenty-four hours jifter the making of the order of commitment, appeal therefrom to the circuit court of the county, upon enter- ing into a bond to the plaintiff in a sum not less than double the amount of the plaintiff's demand and not less than five hundred dollars, with one or more sufficient 36Jud. Act, ch. 44, §10; Com]). 37.J,k1. Act, eli. 44, §11; Comp. Laws 1915, § 13639. Laws 1915, § 13640. 1 Abbott— 52 818 FnAUDiLBXT Debtoks § 7 sureties, to be approved by the officer, conditioned to ap- pear before that court on the first day of the next term thereof, prosecute his appeal to effect and abide the or- der and judgment of that court, and with like conditions as to the disposition of his property and eflfects pending the appeal as before mentioned. The officer from whose order or judgment the appeal is taken must thereupon discharge the defendant from custody or order his discharge, and is required to make a special return of the proceedings had before him and cause the affidavit or affidavits and the warrant and re- turn, together with the bond, to be filed in the circuit court on or before the first day of the next term thereof.^* The circuit court will have full jurisdiction of the case the same as was had by the officer before whom the pro- ceedings were commenced, and may conduct it to a final hearing and determination in like manner, with the same right on the part of the defendant to demand and have a trial by jury.^^ § 8. Recovery on bond of defendant. Whenever a bond, conditioned that the defendant will make a general assignment or file a petition in bank- ruptcy and prosecute it to effect and not dispose of his property as already mentioned, becomes forfeited by the non-performance of its condition, the plaintiff is entitled to recover on the bond tlic amount due him on the judg- ment in the original suit." FRAUDULENT SALES AND CONVEYANCES Sec Sales. aSJiid. Act, ch. 44, §11; Comp. 40 Jud. Act, ch. 44, §14; Comp. Laws 1915, §13640. Laws 19ir>, §1.'?643; Supe v. Fran- SB Jud. Act, ch. 44, §11; Comp. cis, 49 Mich. 266. Laws 1915, § 13640. See Exemptions. See Exemptions. Garnishment 819 FUEL FURNITURE GARNISHMENT I. In General § 1. Origin, nature and development. 55 2. How viewed by courts. § 3. In what cases writ may issue. § 4. Who subject to writ. S ~>. State, counties, municipalities and private corporations. § 6. Joinder of two or more. S 7. What debts or property may be reached. § 8. Contingent claims. § 9. 'Indebtedness created after issue of writ. § 10. As dependent on principal defendant having right of action against garnishee. §11. Exempt property. §12. Indebtedness on note. § 13. Waiver by garnishee. II. Affidavit § 14. Necessity for and sufficiency of. § 15. Amendment. § 16. Making and filing. III. Writ § 17. Form and contents. § 18. Service of writ. § 19. On domestic corporations. § 20. On foreign corporations. §21. On municipal corporations. § 22. Where garnishee resides out of county. IV. Disclosure, iNTERROfiATORiEs and Oral Examination § 2.'>. Disclosure by garnishee — Time for filing. § 24. Contents and effect. §25. Amendments or supplementary disclosure. § 26. Special interrogatories. § 27. Oral examination of garnishee. §28. Order to appear for examination. ^ 29. Examination to determine ownership of negotiable instruments. § 30. Disposition and effect of testimony and answers of garnishee. § 31. When default of garnishee may be entered and judgment rendered. §32. Protective force of judgment. 820 Garnishment § 1 §33. Default judgment against garnishee after default of principal defendant. V. Statutory Issue § 34. How formed. § 35. Demand for trial of issue. § 36. Trial of issue. § 37. Evidence. VI. Claims of TiiiRn Persons § 38. Procedure in general. § 39. Position of claimant when served. §40. Issue, trial and judgment. § 41. Imjmrtance of summoning in claimants. VII. Discontinuance or Dismissal § 42. In general. § 43. On giving bond. VIII. Delivery op Property to Commissioner or Receiver § 44. Written promises for payment of money or delivery of property. § 45. Delivery of personal property subject to lien. § 46. Effect of refusal to obey order. IX. Procedure Where Principal Defendant a Non-Resident op Foreign Corporation § 47. Statutory provisions. S 48. When and what judgment may )>o entorod aj^ainst non-resident prin- cipal defendant. X. Judgment, Execution and Co.sts § 49. Judgment when garnishee is found liable to principal defendant. § 50. Judgment against garnishee in case of no trial of statutory issue. § 51. Judgment and execution when garnishee is liable for goods and chattels of defendant. § 52. Judgment when property has been conveyed to garnishee in fraud of creditors. § 53. Effect of judgment against garnishee. § 54. Setting aside or removal to supi-eme court of judgments. § 55. Costs. § 56. Executions. Cross Fief erencm: Exemptions (property exenijit) ; Prohibition, Writ of. I. In General § 1. Origin, nature and development. Althou*>li tho ])ioceodinf>' in I'arnishniont is frequently spoken of by tlie courts as entirely statutory and iu der- § 2 Garnishment 821 ogation of the common law, it is not an innovation of modern times. On the contrary, the proceeding may very clearly be identified with the custom of foreign attach- ment of London, which had a very ancient existence. Whether this custom of foreign attachment in turn is cor- rectly to be ascribed for its origin to the Roman law need not be discussed in this place. Suffice it to say that the proceeding in garnishment, as known to modern jurispru- dence, is a development of and from the custom of foreign attachment of London, from which as a source also may be traced the modern proceeding by writ of attachment. Indeed, although attachment and garnishment, as they exist today, are widely different in some of their impor- tant characteristics, yet they are identical in their funda- mental principle as well as in their common origin, for they both operate upon the defendant's property, with the object of subjecting it to the eventual satisfaction of a liability, in advance of any judicial determination of the existence of such liability.^ § 2. How viewed by courts. Before entering into the consideration of the procedure in garnishment, and for the better understanding of the same, it should be said that the remedy is purely statutory and artificial, and the mode of conducting it is regulated and defined by statute.^ The statute, providing as it does 1 See Foster v. Kent Circuit Wayne Circuit Judge, 73 Mich. 155. Judge, 116 Mich. 285; Newland v. Garnishment as an adversary pro- Wayne Circuit Judge, 85 Mich. 151; rcoding, see Barlow v. Lincoln-Wil- Karp V. Citizen's Nat. Bank, 76 lianis Twist Drill Co., 186 Mich. 46. Mich. 679; Cook v. Field, 3 Ala. Effect of hankrui.tcy proceedings 53; Welsh v, Blackwell, 14 N. J. on judgment in garnishment, see L. .344 ; Lyman V. Wood, 42 Vt. 113 ; Wilson v. Van Buren County Cahoon v. Levy, 5 Cal. 294; Mills Farmers' Mut. Fire Ins. Co., 184 V. Findlay, 14 Ga. 230; Haber v. Mich. 530. Nassitts, 12 Fla. 589. 2 People v. Casa Circuit Judge, 39 Garnishment proceedings always Mich. 407; Smith v. Holland, 81 depends on anotlier suit as a basis. Mich. 471. Milwaukee Bridge & Iron Works v. 822 Garnishment §2 a harsh and peculiar remedy, in deroo-ation of the com- mon law, is subject to strict construction.^ There is no authority for any action or prohibition of action outside of the statute.* No presumption can be raised in sup- port of the plaintiff's claim, nor is the proceeding one supported by such equitable considerations as appeal to the court to give it effect in doubtful cases.* § 3. In what cases writ may issue. The statute provides that, in all personal actions aris- ing upon contract,^ brought in the several circuit courts or in municipal courts of civil jurisdiction, whether com- menced by declaration, writ of capias, summons or at- tachment, and in all cases where there remains any sum unpaid upon any judgment or decree rendered in any of such courts or upon any transcript of judgment filed in any such court, if the plaintiff,'^ his agent or attorney 3W. H. Warner Coal Co. v. Nel- son, 204 Mich. :U7; Maynards v. Cornwell, a Mich. 309; Blake v. Hi*bbard, 45 Mich. 1; Iron Cliffs Co. V. Lahais, 52 Mich. 394; Wei- mester v. Manville, 44 Mich. 408; Ettelsohn v. Fireman's Fuud Ins. Co., 64 Mich. 331; Crisp v. Ft. Wayne, etc., B. Co., 98 Mich. 64S; Heritage v. Armstrong, 101 Mich. 85; Foster v. Kent Circuit Judge, 116 Mich. 285; King v. Harrigan, 145 Mich. 436; Ford v. Detroit Dry Dock Co., 50 Mich. 358; Hansel- man V. Kegel, 60 Mich. 540. 4W. H. Warner Coal Co. v. Nel- son, 204 Mich. 317; Hanselman v. Kigel, 60 Mich. 540; Siovers v. Woodburn Sarven Wheel Co., 43 Mich. 275; Ford v. Detroit Dry Dock Co., 50 Mich. 358; Kennedy V. McLellan, 76 Mich. 598; Mil- waukee Bridge & Iron Works v. Brevoort, 7.". Mich. 155. 5 Farwcll v. Chambers, 62 Mich. :116; Folkerts v. Standish, 55 Mich. 463. 6 A foieign judgment is regarded as a contract for the purposes of this statute. Union Nat. Bank v. Muskegon Circuit Judge, 117 Mich. 678; Wattles v. Wayne Circuit .Judge, 117 Mich. 662. Tliat service of process on the principal defendant was made out- side the state is no ground for quashing the garnishment proceed- ings. Nachtegall v. Reilley, 165 Mich. 347. 7 The word "]»laintiff," means tlie moving party or suitor in the garnishment proceeding. The rem- edy is given to the person who re- covered judgment or decree, whether ho ]»e plaintiff or defendant. Esler V. Kent Circuit Judge, 108 Mich. .543. Nonresident may sue out writ § 3 Garnishment 823 shall file with the clerk at the time of or after the coiii- mencement of suit, or at any time after the rendition of judgment or decree or the filing of a transcript of judg- ment, an affidavit stating that he has good reason to be- lieve, and does believe, that any person (naming liim) has property, monej^, goods, chattels, credits or effects in his hands or under liis custody or control belonging to the defendant or to any or either of the defendants, or that such person is indebted " to the defendants or to any or either ^ of the defendants, whether such indebted- ness is due or not,^° and that the principal defendant is justly indebted to the plaintiff on such contract, judg- ment, decree or transcript in a given amount, over and above all legal set-offs, and that the plaintiff or affiant is justly apprehensive of the loss of the same unless a writ of garnishment issue to such person, a writ of garnish- "ment shall be issued, sealed and tested in the same man- ner as writs of summons, directed to the sheriff, reciting the commencement of the suit or the rendition of judg- ment or decree against the principal defendant or any or either of the defendants or the filing of a transcript of judgment and the filing of the affidavit, and connnand- ing the sheriff to summon such person to appear before the court, on or before a day to be named therein, whicli although botli parties are iionresi- liokliug that plaintiff can garnish dents. Newland v. Wayne Circuit money in the hands of a third per- Jndge, 85 Mich. 151. son belonging to one of two joint. An assignee of a claim may gar- dofeiidants to satisfy his claim nishee the assignor although the against both defendants; and fol- assignment was made to him for lowing Meigs v. Weller, 90 Mich, that purpose. Barlow v. Lincoln- G29. But an indcbtedjiess to the AVilliams Drill Co., 186 Mich. 46. defendant and another is not avail- 8 A debt is none the less subject able. Robbina v. Vandcrmeiden, 182 to garnishment because it is secured Mich. 674; Kennedy v. McLoUan, by lien or otherwise or because it 76 Mich. 598; Markham v. Gehan, has assumed the form of a judg- 42 Mich. 74; Nachtegall v. R<'illey, ment. Keister v. Donovan, 17.'} 165 Mich. .■!47, ;?52. Mich. 328. 10 Thorj. v. Preston, 42 Mich. 511. 9 Hoof V. Blake, 187 Mich. 38, 824 Garnishment § 3 day must not be less than fourteen days from the date of issuin^i; the writ, to make disclosure in writing under his oath, to be filed with the clerk of the court, touching his liability as garnishee of the principal defendant or any or either of the defendants, as charged in the affi- davit and thenceforth to pay no money and deliver no property to the principal defendant or any or either of the defendants, and of such writ to make due return. ^^ It has never been the practice in this state to give the principal defendant notice of the steps taken in the garnishment proceeding.*'^ § 4. Who subject to writ. As a general proposition, irrespective of the ulterior question of liability, all persons are subject to garnish- ment.** By the terms of the present statute, all corpora- tions of whatever nature, the state and eveiy county therein may be proceeded against as garnishees.** The statute,** however, declares that no person shall be ad- judged a garnishee in either of the following cases: 1. By reason of any money or thing received or col- lected by him as sherilf or other officer by force of an 11 Jud. Act, ch. 28, § 1 ; Comp. signment was made for that pur- Laws 1915, § 13122. As to clerical pose. Barlow v. Lincoln-Williams defects in writ, sec Millard v. Len- Twist Drill Co., 186 Mich. 46. awce Circuit Judge, 107 Mich. 134; 14 Jud. Act, ch. 28, §46; Comp. Lyon V. Baldwin, 194 Mich. 118. Laws 1915, § 13167, as amended by The judgment against the prin- Pub. Acts 1919, No. 233. cipal defendant may be entered nunc Formerly, a municipal corporation pro tunc on motion without notice was not subject. to garnishees where the garnishment The fact that a foreign corpora- proceedings is based on the judg- tion is exempt from process of gar- ment. Taber v. Wayne Circuit nishment under the laws of its home Judge, 156 Mich. 652. state will not exempt it from such 12 Ketcham v. Kent Circuit Judge, process when doing business in this 115 Mich. 60. state. First Nat. Bank v. Burch, 13 Drake, Attachm. sec. 468. 80 Mich. 242. The assignor of the claim sued on 15 Jud. Act, ch. 28, § 37 ; Comp. may be garnished although the as- Laws 1915, § 13158. § 4 Garnishment 825 execution or other legal process in favor of the prin- cipal defendant. 2. By reason of any money in his hands as a public officer for which he is accountable, merely as such officer, to the principal defendant. ^^ 3. Nothing in the statute contained shall be applicable to any indebtedness of a garnishee to the principal de- fendant for the personal labor of sucli defendant or his family, unless such indebtedness exceed the amount al- lowed him as exempt under section five of chapter seven- ty-six of the Judicature Act, and, in case of such excess, only to the amount of such excess. A receiver is not a public officer within the meaning of the statute just alluded to,^"'' but, for other reasons, a receiver cannot be garnished without the leave of the court which appointed him." The matter of granting such leave is within the discretion of tlie court, and an order by which leave has been granted may be set aside if the court afterwards believes it to have been improvi- dently granted.^* So, also, the clerk of a court cannot be summoned as a garnishee,^® nor can the administrator or executor of the estate of a deceased pergon.^^ A resident of another county may be garnished where the affidavit states the non-residence, provided the action against tlie principal defendant is properly brought.^'^ 16 Applies to county treasurer of Iron Hall, 105 Mich. 283. holding installment of saloon license 19 Citizens' Commercial & Savings fee. Bay City Brewing Co. v. Bank v. Bay Circuit Judge, 110 McDonnell, 106 Mich. 172. Applied Midi. G:V.',; Cohnen v. Sweenie, 10') to register in chancery. Voorhees Mich. G-l.T. V. Sessions, 34 Mich. 99. 20 Voorhees v. Sessions, 'M Mi<-h. 17 Cohnen v. Sweenie, 105 Mich. 99. 643. 21Wliite v. Ledyard, 48 Mich. 18 People V. Brooks, 40 Mich. 333 ; 204; Hudson v. Saginaw Circuit Sievers v. Woodburn Sarven Wheel .ludge, 114 Mich. 11(5. Co., 43 Mich. 275; ButhM- v. Wen- 22 Nichol v. Nevers. 190 Midi, ddl, 57 Midi. 02; Rickman v. Rick- 20;;. man, 180 Mich. 224; Cohen v. Order 826 Garnishment § 5 § 5. State, counties, municipalities and private cor- porations. All corporations of whatsoever nature, the state and every county tlierein, may be served and proceeded against as garnishees in the same manner and with like effect as individuals under tlie provisions of the statute relative to gai'nishment and tlie rules of law relative to proceedino's against corporations. But before garnish- ment proceedings can be commenced against a municipal corporation, the state or any county therein, the plain- tiff must liave obtained a judgment against the principal defendant in a coui't of competent jurisdiction.^^ The fact that a foreign corporation is exempt from process of garnishment under the laws of its home state will not exempt it from such process when doing busi- ness in this state.^* When a foreign coiporation comes within this state and seeks to carry on its business, it must do so in compliance with the laws of this state. A corporation created by a state is a mere creation of local law. Even the recognition of its existence by other states and the enforcement of its contracts made therein depend purely upon tlie comity of those states, — a comity which is never extended where the existence of the cor- poration or the exercise of its powers is prejudicial to their interests or repugnant to their policy. Corpora- tions of one state have no right to exercise their fran- chises in another state except upon the assent of such 23Ju(l. Act, eh. 28, §46; Comp. American Ins. Co. v. Chippewa Cir- Laws 1915, § 1?,167, as amended by cult Jiulg^e, 105 Mich. 566. Pub. Acts 1919, No. 233. Garnishee process should be served Prior to Act No. 266, Pub. Acts on a corporation such as a bonding 1889, there was no provision in the company in the manner provided statutes for the service of any writ for service of process in general on of garnishment upon a foreign cor- such company. Drueke-Lynch Co. poration, except as to particular v. Michigan Bonding & Surety Co., kinds of foreign corporations. Mil- 204 Mich. 180. ■waukee Bridge & Iron Works v. 24 First Nat. Bank v. Burch, 80 Brevoort, 73 Mich. 155; German- Mich. 242. § 6 Garnishment 827 other state and upon sueli terms as may be imposed by the state Avhere the business is to be done. It is upon such considerations that the power of the legishiturc to subject foreign corporations to garnishment process, and to prescribe such mode of service as it sees lit, is based. ^* § 6. Joinder of two or more. Two or more persons, severally liable, may be gar- nished in the same action, and their disclosures and all other proceedings will be several, and judgment may be rendered for such sum as the court shall order, for or against each severally, and execution may issue accord- ingly.^^ Under this statute, several garnishees may be joined in one affidavit and one writ, notw^ithstanding they are severally indebted to the principal defendant or severally in possession or control of property belong- ing to him; ^"^ but both the affidavit and writ should show that the persons are proceeded against severally and not jointly. However, one proceeded against as severally liable to the principal defendant cannot be held liable where his liability is joint.^® But if two or more are proceeded against as jointly liable to the principal de- fendant, they cannot be held liable as garnishees unless in fact their liability is joint. Of course if the garnishees reside in different counties, there must be separate writs. Two insurance companies issuing policies together under a conmion name, may l^e garnished under such name by creditors of a policyholder for the amount due under his policy, and a single judgment taken, although by the terms of the policy the liability of the companies is sev- eral for their jn'oportionate share of the loss.'^' 26 First Nat. Bank v. Burch, 80 28 Lyon v. Ballentine, 6;i Mii-h. 97. Mieh. 242. 29 Ferry v. Cincinnati Under- 26Jucl. Act, ch. 28, §33; Conip. writers, 111 Mich. 261. Laws 1915, § 13154. 27 State Sav. Bank v. Wayne Cir- cuit Jiulgo, 9.3 Mich. 300. 828 Garnishment § 7 § 7. What debts or property may be reached. From the time of the service of the writ of garnish- ment upon the garnishee, he will be liable to the plain- tiff (1) to the amount of property, money, goods, chattels and effects under his control, belonging to the principal defendant, or (2) of any debts due or to become due from the garnishee to the principal defendant, or (3) of any judgment or decree in favor of the latter against the former, and (4) for all property, personal and real, money, goods, evidences of debt or effects of the prin- cipal defendant which the garnishee defendant holds by conveyance, transfer or title that is void as to the cred- itors of the principal defendant, and for the value of all property, personal and real, money, goods, chattels, evi- dences of debt or effects of the principal defendant, which the garnishee defendant received or held by a convey- ance, transfer or title that was void as to creditors of the principal defendant.^" § 8. Contingent claims. The statute provides that the garnishee defendant shall ''also be liable on any contingent right or claim against him in favor of the principal defendant." ^^ This pro- 30 Jiid. Act, ch. 28, §2; Conip. know funds belonged to principal Laws 1915, § 13123. defendant). See Eice v. Third Nat. This statute is not uneonstitu- Bank, 97 Mich. 414. tional, as permitting a court of law Shares of stock in corporation are in garnishment proceedings to try subject. Old Second Nat. Bank v. the validity of a debtor's convey- Williams, 112 Mich. 564. ances. Webber v. Hayes, 117 Mich. Claim under insurance policy is 256. not subject where company has Deposits in a Ijank are subject. option to replace property. Tliorp Mclntyre v. Farmers & Merchants' v. Preston, 42 Mich. 511; Martz v. Bank, 115 Mich. 255 (mingling Detroit Fire & Marine Ins. Co., 28 funds of husband with those of Mich. 201. wife in a bank with understanding Trust property cannot be reached, that entire fund shall be treated as Peninsular Sav. Bank v. Union Trust his) ; Sykes v. City Savings Bank, Co., 127 Mich. 355. 115 Mich. 321; Ferry v. Home Sav. 31 ,Tud. Act, ch. 28, §2; Comp. Bank, 114 Mich. 321 (deposit in Laws 1915, § 13123. name of third person where bank § 9 Garnishment 829 vision probably refers to the contingent liability of an indorser or guarantor or the like, and does not cover moneys which may or may not become due under a con- tract for services. Thus, the balance payable on a con- tract for services, where not completed and the balance not due, cannot be reached.'^ It follows that where com- pletion of a contract is a condition ijrecedent to payment, the payor is not garnishable on his debt before the con- tract is completed. '^ So it has been held that install- ments on a building contract not due cannot be reached,'* nor can rent payable in the future,'^ although the mere fact that the claim is not due does not prevent its gar- nishment. The only claims which can be reached are those which are already fixed in amount or capable of being fixed, and not dependent for their validity or amount on anything to be done or earned in the future, or the continued liability for which may be changed by events.'* § 9. Indebtedness created after issue of writ. The garnishee will not be liable for any indebtedness to the principal defendant created after the issue of the writ of garnishment, but only for such as existed both then and at the time of the service upon him of the writ.'' The question of a garnishee's liability as such upon any particular indebtedness depends upon whether the in- 32 Siiiiinons Hardware Co. v. Detroit Post & Tribune Co. v. Baker, 140 Mich. 12.3; Kiely v. Ber- Re'iUj, 46 Mich. 459; Bethel v. trand, 67 Mich. 332. Judge of Superior Court, 57 Mich. 33 Kiely v. Bertrand, 67 Micli. 332. 379; Hartz v. Detroit, etc., Ins. Co., See also Webber v. Bolte, 51 Mich. 28 Mich. 201; Wattles v. Wayne 113. Circuit Judge, 117 Mich. 662. 34 Hopson V. Dinan, 48 Mich. 612. If the garnishee has paid the debt 35 Thorp V. Preston, 42 Mich. 511. before the service of the writ, it 36 Thorp V. Preston, 42 Mich. 511. cannot be reached. Patek v. Chi- 37 Hopson V. Dinan, 48 Mich. 612; cago & N. W. R. Co., 147 Mich. 377; Hitchcock V. Miller, 48 Mich. 603; Hamilton v. Kogers, 67 Mich. 135. Cogswell V. Mitts, 90 Mich. 353; 830 Garnishment § 9 debtedness was garnishable at the time of the institution of the proceedings, and not at all upon whether it has become so at a subsequent time." So, if the garnishee's liability is sought to be founded u])on the possession by him of the personal property of the defendant, it must be confined to such personal property as was in the pos- session of the garnishee at the time of the service of the writ, and cannot be extended to property of the defend- ant which thereafter came into the ]Jossession of the gar- nishee;^® and this is true whether it be claimed that the property is held by conveyance, traUvSfer or title void as to the creditors of the principal defendant or not.*" Of course, where the liability of the garnishee is sought to be based upon the value of property which the garnishee received or held by conveyance void as to the creditors of the defendant and afterwards disposed of, it is un- necessary that the property should be in the possession of the garnishee at the time of the service of the Avrit.*^ § 10. As dependent on principal defendant having right of action against garnishee. As a general rule, a garnishee cannot be held upon any liability to the jnincipal defendant which the latter could not enforce against the former in an action at law.*^ Thus, an indebtedness which the principal defendant had 38 Martz V. Detroit Fire & Marine An unaiecptetl order on a debtor Ins. Co., 28 Mich. 201 ; Bethel v. does not create any liability whicli Logan, 57 Mich. .'579; Old Second is subject. Stone v. Dowling, 119 Nat. Bank v. Williams, 112 Mich. Midi. 470; Tabor v. Van Vranken, 564 ; Stone v. Dowling, 119 Mich. 476. ;;9 Mich. 79;?. 39 Drake, Attachin. sees. 45;!, 482. A recovery for libel cannot be 40 Fearcy v. Cummings, 41 Mich. readied until judgment is entered .■576; Bethel v. Linn, 63 Mich. 464. on the verdict. Detroit Post & 41 Heineman v. Schloss, 8.3 Mich. Tribune Co. v. Reilly, 46 Mich. 459. 153. A buyer of eattle cannot be gar- 42 Bay City Brewing Co. v. nished as a debtor of the seller be- McDonell, 106 Mich. 172; Farwell fore delivery, where no payment V. Chambers, 62 Mich. 316; Clay has ])een made or credit given and Lumber Co. v. Hart's Branch Coal something passed by way of earn- Co., 174 Mich. 613. est. Case v. Dewey, 55 Mich. 116. § 10 Garnishment 831 duly assigned before the institution of the garnishment proceeding- would not sustain any liability against the ganiishee in such proceeding." So, where the garnishee and the principal defendant were co-partners, and, in order to determine their relative rights, an accounting is necessary, any claim which the principal defendant may eventually be shown to possess against the gar- nishee cannot be made the subject of garnishment, at least in advance of such accounting.** There are, how- ever, some exceptions to the mle, and one of them em- braces those cases where the principal defendant has made a fraudulent conveyance of his property; in which, although the conveyance be perfectly valid as between the parties to it, and, therefore, no action can be main- tained by the principal defendant to recover the prop- erty, yet the grantee may be held as a ganiishee and the property subjected to the plaintiff's process.*^ •But the converse of the general rule alluded to is not true, that a garnishee can be held upon any liability to the principal defendant which the latter can enforce. Thus, indebtedness which the statute exempts from gar- nishment in favor of the principal defendant, although capable of being made the subject of an action by the defendant against the garnishee, cannot become the basis for charging the garnishee in favor of the plaintiff, unless the riglit of exemption be waived.*® So, when the money or property in the hands of a garnishee has been taken from the principal defendant by an unlawful seiz- 43 Tabor v. Van Vrankon, 39 v. Sexton, i?, Mich. 454; Cumminga Mich. 793; Neumann v. Calumet & v. Feaiey, 44 Mich. 39; Bethel v. Hecla Min. Co., .57 Mich. 97; Blu- Linn, G3 Mich. 4G4; Gumberg v. nienthal v. Simons, 110 Mich. 42. Treusch, 103 Mich. 543; Baker v. 44Farwen v. Chambers, 62 Mich. Parkhur.st, 119 Mich. 542; Mussel- 316; Kane v, Clough, 36 Mich. 436. man Grocer Co. v. Kidd, etc., Co., 46Jud. Act, ch. 28, §32; Comp. 151 Mich. 478; Pierson & Hough Laws 1915, §13153; Blake v. Hub- Co. v. Noret, 154 Mich. 267. bard, 45 Mich. ] ; Fearey v. Cum- 46 School Dist. No. 4 v. Gage, .39 niings, 41 Mich. 376; Farrington Mich. 484. 832 Garnishment § 10 ure, as where money has been wronofuHy taken from a prisoner by a jailer, it cannot be reached by garnish- ment.*' So, also, a debt dne to the principal defendant and another cannot be made the basis to charge the debtor as garnishee." § 11. Exempt property. Property of tlic piincipal dorondant exempt by law from execution is also exempt from garnishment process at the election of the principal defendant, whether in the hands of a third person by bailment or otherwise.*® So, also, such process will not reach property, whether real or personal, which has been assigned by the principal defendant, if it would be exempt from execution in his hands, even though the assignment, were the property not exempt, would be voidable as operating to defraud the creditors of the defendant.^" And the principle is extended so far as to protect from garnishment the pro- ceeds of a sale of exempt property or a judgment re- covered by the owner for a wrongful conversion of it or the amount due from an insurance company as indemnity for the destruction of such property by fire. The protec- tion, however, does not endure indefinitely, but it does remain until such time as the owner has reasonable op- portunity to appropriate the proceeds to the purpose of replacing the exempt property so sold, converted or de- stioyed.^^ 47 Hul)bar(l v. Garner, 115 Mich. W Wilson v. Bartholomew, 45 406. Mich. 41. 48 Markham v. Gehan, 42 Mich. O" »" is^ue as to whether money 74; Kennedy v. McLellan, 76 Mich. "^ ^^'^ ''^"'^s ^^ ^ garnishee is ex- .198; Wellover v. Soule, 30 Mich. ™'Pt from garnishment, the amount AO-, c^ T-> T Tin in-- » fjf property owned by defendant is 481; Stone v. Dowling, 119 Mich. . . , .,, \^ . , „ immaterial. Kecor v. Commercial & 476; Roof v. Blake, 187 Mich. 38; .- • t) i * o*. m • i^o ' ' Savings Bank of St. Clair, 142 Meigs V. Weller, 90 Mich. 629; ^fj^.j, 479 Nachtegali v. Reilley, 165 Mich. 50 Wilson v. Odell, 51 Mich. 492. 347. SlCullen v. Harris, 111 Mich. 20. § 14 Gaknishment 833 § 12. Indebtedness on note. A negotiable promissory note is subject to garnish- ment after maturity, if owned by the principal defend- ant,®^ but not before maturity.^® § 13. Waiver by garnishee. While a garnishee cannot waive anything affecting the rights of other parties,®* he may waive any of his own rights,®® including, it seems, irregularities in the issuance and service of the writ of garnishment.®^ II. Affidavit § 14. Necessity for and sufficiency of. The affidavit referred to above is a jurisdictional re- quirement and must conform strictly with the terms of the statute. If the affidavit be omitted, or if it be defec- tive, the court will acquire no jurisdiction.®''^ The affidavit may be made either by the plaintiff or by his agent or attorney. If made by an agent or attorney, it need not state affirmatively the character of the affiant. The use of the word, ''agent," or ''attorney," by way of recital or description, is sufficient.®^ Where the gar- nishment proceedings are ancillary to an action upon contract, it was held, under the former statute that the affidavit must show the nature of the contract, whether 62 Somers v. Losey, 48 Mich. 294; 101 Mich. 85; Lichtenberg v. Wayne Serviss v. Washtenaw Circuit Judge, Circuit Judge, 106 Mich. 38; Keppel 116 Mich. 101; Snider v. Ridgeway, v. Moore, 66 Mich. 292. Compare 49 111. 522. Ettelsohn v. Fireman's Fund Ins. BSLittlefield v. Hodge, 6 Mich. Co., 64 Mich. 331. ?26; Carson v. Allen, 2 Chand. 66 Chamberlain v. Wallace, 174 (Wis.) 123. See also Karp v. Citi- Mic-h. 613. zens' Nat. Bank, 76 Mich. 679. 67 Ettelsohn v. Fireman's Fund 64 Keppel v, Moore, 66 Mich. Ins. Co., 64 Mich. 331; Weimeister 292; Johnson v. Dexter, 38 Mich. v. Manville, 44 Mich. 408, clerical 695; Blake v. Hubbard, 45 Mich, 1. defect. 66 Chamberlain v. Wallace, 174 68 Wetherwax v. Paine, 2 Mich. Mich. 613, overruling, so far as to 555. the contrary. Heritage v. Armstrong, 1 Abbott— 53 834 Garnishment § 14 express or implied, and that the indebtedness upon which the action is brought is an indebtedness upon such con- tract,^^ but the present statute does not classify con- tracts as being express or implied. The affidavit must aver that the affiant is justly appre- hensive of the loss of the debt unless a writ of garnish- ment issue to the person whom it is intended to summon as garnishee. Therefore, when made by an attorney or agent, it should not allege that the plaintiff is apprehen- sive, nor should it aver apprehension unless the writ of garnishment issue to the plaintiff, but unless it issue to the person to be summoned as garnishee.^'' But an affi- davit by one of several plaintiffs is not defective for stat- ing that the plaintiffs are apprehensive.^^ Where the affidavit states that a suit has been com- menced by the plaintiff against the principal defendant, it need not also allege that the suit is still pending, for the statute does not require it and it will be presumed, from the fact that an action has been commenced, that it is still pending.^^ Indeed, an affidavit stating that the suit is about to be commenced will confer jurisdiction if made upon the same day the suit is commenced.^^ Nor is the affidavit required to show that the debt upon which the principal action is brought is due at the time of the commencement of the garnishee proceedings.^* If the garnishee defendant resides in another county or is a foreign corporation, the affidavit should so state.^* When the plaintiff desires to charge several persons as garnishees for debts severally owed by each to the B9 Conway v. Ionia Circuit Judge, & Stock Board, 99 Mich. 80. 46 Mich. 28; Wcimeister v. Man- 62 State Sav. Bank v. Hosmer, 95 ville, 44 Mich. 408; Coe v. Hinkley, Mich. 100. 109 Mich. 608; Ettelsohn v. Fire- 63 Millard v. Lenawee Circuit man's Fund Ins. Co., 64 Mich. 331. Judge, 107 Mich. 134. 60 Wcimeister v. Manville, 44 64 State Sav. Bank v. Hosmer, 95 Mich. 408; Duryea v. Kaymond, 146 Mich. 100. Mich. 488. 65 Niehol v. Nevers, 196 Mich. 61 Williams v. International Grain 203. § 15 Garnishment 835 principal defendant, and for property of the principal defendant severally held by each, which the statute ex- pressly provides may be done,^^ it is not necessary for the plaintiff to make a separate affidavit for each proposed garnishee. It is the evident intent of the statute to en- able the plaintiff, by a single affidavit and writ, to sum- mon in any and all persons indebted to the principal de- fendant, or having property in their custody belonging to the principal defendant, and require a disclosure from each. Only the subsequent proceedings against the gar- nishee defendants are required to be against each of them severally, but the affidavit in such case against sev- eral persons severally liable to the principal defendant should neither expressly nor impliedly charge them with a joint liability, for this would render it ineffective to charge them severally. The better practice is to allege distinctly in the affidavit the character of the liabilities as being several rather than joint.^'' §.15. Amendment. Although an affidavit is fatally defective if it fails to comply with the requirements of the statute, it is held that amendments may be allowed for the correction of merely clerical errors. Thus, where a clerical mistake is made in the date of an affidavit, an amendment may be allowed to correct it, especially where the record itself shows the nature of the error.^* And where, in an affidavit made by the attorney for the plaintiff, the name of the attorney was by mistake inserted where the name of the garnishee should have been, the affidavit showed upon its face that the error was merely a clerical one, subject 66 Jud. Act, ch. 28, § 33 ; Comp. 68 Wattles v, Wayne Circuit Laws 1915, §13154. Judge, 117 Mich. 662; Union Nat. 67 State Sav. Bank v. Hosmcr, 95 Bank v. Muskegon Circuit Judge, Mich. 100; Ball v. Young, 52 Mich. 117 Mich. 678; Sachs v. Norn, 139 476. See also Lyon v. Ballentine, Mich. 357. 63 Mich. 97. 836 Garnishment § 15 to correction by amendment.^® But an affidavit by an agent or attorney of the plaintiff which states that the plaintilY is apprehensive, instead of that the affiant is apprehensive, is not subject to amendment.''* § 16. Making- and filing. The affidavit cannot be filed before the commencement of the principal suit, but it may be tiled at that time. Within the meaning of the statute, where the suit is com- menced by declaration, it is commenced when the declaration is filed, and, where otherwise commenced, it is commenced when the plaintiff has performed what- ever act entitles him to process.''^ It is not necessary, before the affidavit in garnishment may be filed, that the declaration or process shall have been served upon the principal defendant or that he shall have appeared in the suit, or even that the declaration or process shall have been delivered to an officer for service. The gar- nishment proceedings are supported and the court will have jurisdiction of the garnishee defendant, subject tD the necessity of obtaining jurisdiction of the principal defendant.''' The statute provides when the affidavit in garnish- ment shall be filed, but is silent as to when it may be made. It may be made before the commencement of the principal suit, and, where made on the same day, the court acquires jurisdiction;'^ but, if made the day before, it would be of doubtful validity.'* 69 Millard v. Lenawee Circuit 73 Millard v. Lenawee Circuit Judpe, 107 Mich. 134. Judge, 107 Mich. 134. 70 Duryea v. Raymond, 146 Mich. 74 Union Nat. Bank v. Muskegon 488. Circuit Judge, 117 Mich. 678. See 71 McDonald v. Alanson Mfg. Co., also Drew v. Dequindre, 2 Doug. 107 Mich. 10. 93; Wilson v. Arnold, 5 Mich. 98; 72Coe V. Hinkley, 109 Mich. 608; Tcssenden v. Hill, 6 Mich. 242; McDonald v. Alanson Mfg. Co., 107 McPherson v. McOillis, 93 Mich. Mich. 10. 525. § 16 Garnishment 837 Form of Affidavit for Writ (Title of court and principal cause, if principal suit has been commenced; if not, no title.) State of Michigan, ) County of f A. B., being duly sworn, deposes and says that he is the plaintiff in the above-entitled cause (or, in an action about to be commenced in the circuit court for the county of against 0. D., as defendant), and that said cause is a personal action arising upon contract; that he has good reason to believe, and does believe, that G. R. has property, money, goods, chattels, credits, or effects in his hands or under his custody or control, belonging to the said C. D. (or, if there be several defendants, to any or either of them, naming him or them), and that the said G. R. is indebted to the said C. D. (or, if there be several defendants, to any or either of them, naming him or them), whether such indebtedness is due or not; that the said C. D. is justly indebted to the said plaintiff upon said contract in the sum of dollars, over and above all legal set-offs. Deponent further says that he is justly apprehensive of the loss of the said sum of money, so due from the said C. D. to the said A. B., as afore- said, unless a writ of garnishment issue to the said G. R. A. B. Subscribed, etc, rorm of Affidavit for Writ Upon Judgment (Title of court and cause.) County of , ss. A. B., being duly sworn, deposes and says that, on the day of , A. D , a judgment was rendered in said court in favor of A. B., as plaintiff, and against C. D., as defendant, upon which there remains unpaid, at the date hereof, the sum of dollars; that he has good reason to believe, and does believe, that G. R. has property, money, goods, chattels, credits or effects in his hands or under his custody or control, belonging to the said 0. D, (or, if there be several defendants, to any or either of them, naming him or them), and that the said G. R. is indebted to the said C. D. (or, if there be several defendants, to any or either of them, naming him or them), whether such indebtedness is due or not; that the said C. D. is justly indebted to the said A. B., plaintiff as aforesaid, upon the said judgment, in the said sum of dollars, over and above all legal set-offs. Deponent further says that he is justly apprehensive of the loss of the said sum of money, so due from the said C. D. to the said A. B., as aforesaid, unless a writ of garnishment issue to the said G. R. A. B. Subscribed, etc. 838 Garnishment § 16 Form of Affidavit for Writ Upon Transcript of Judgment of Justice of Peace (Title of court and cause.) County of , ss. A. B., being duly sworn, deposes and says that a judgment was rendered ■by J. P., a justice of the peace in and for the township of , in the said county of , on the day of , A. D , in favor of the said A, B. and against C. D., the above-named defendant, for the sum of dollars, damages and costs, of which said judgment a transcript was, on the day of , A. D , duly filed, entered, and docketed in the office of the clerk of the circuit court for the county of , aforesaid, and that there remains unpaid upon the said transcript at the date hereof the sum of dollars ; that he has good reason to believe, and does believe, that G. R. has property, money, goods, chattels, credits or effects in his hands or under his custody or control, belonging to the said C. D. (Or, if there are several defendants, to any or either of them, naming him or them), and that the said G. R. is indebted to the said C. D. (or, if there are several defendants, to any or either of them, naming him or them), whether such indebtedness is due or not; and that the said C. D. is justly indebted to the said A. B., plaintiff, upon said Transcript, in the said sum of dollars, over and above all legal set-offs. Deponent further says that he is justly apprehensive of the loss of the said sum of money so due from the said C. D. to the said A. B., as afore- said, unless a writ of garnishment issue to the said G. R. A. B. Subscribed, etc. Form of Affidavit for Writ in Action Against Non-Resident or Foreign Corporation, Principal Defendant To the general form of affidavit for writ of garnishment before the words, "Deponent further says," etc., insert the following: And deponent says that the said C. D., principal defendant, as aforesaid, is a non-resident of this state and resides in the state of .... (or, that the said C. D., principal defendant, as aforesaid, is a foreign corporation, organized under the laws of the state of ) . III. Writ § 17. Form and contents. The form and contents of the writ is specially pre- scribed by statute.'^ It has been held not necessary to allege therein that defendant is a non-resident or foreign 76 See §3, ante. § 17 Garnishment 839 corporation/^ and the writ is not defective because the day of the week and the day of the month named therein do not correspond, since the day of the month will con- trol.''"'^ All persons made garnishees who reside in the same county may be included in one writ.''^® A mere clerical error as to the month in the return day is waived by appearance and answer on the day intended, and is not fatal to the proceedings, and the summons might be amended in this regard after answer, or the mistake be disregarded.''^* So a mistake in warning the agent of "plaintiff" who drew the affidavit, to pay no more money to the principal debtor, is not fatal.^® Form of Writ in Action Upon Contract State of Michigan. The Circuit Court for the Counity of In the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting: Whereas A. B., as plaintiff, has conunenced a personal action arising upon contract, in the circuit court for the county of , against C. D., as defendant, by writ of summons (or, capias ad respondendum, writ of attachment, or declaration, as the case may be), and has filed in the office of the clerk of said coui-t the affidavit of A. B., said plaintiff, stating, amongst other things, that he has good reason to believe, and does believe, that (here allege the corresponding contents of the affidavit) : Now, therefore, you are hereby commanded to warn and summon the said G. E. to appear before said court on or before the day of , (some day not less than fourteen days from the date of issuing the writ of garnishment), to make disclosure in writing under oath, to be filed with the clerk of said court, touching the liability of said G. R., as garnishee of C. D., principal defendant (or any or either of the defendants, naming him or them), as charged in the said affidavit, and thenceforth to pay no money and deliver no property to the said C. D., principal defendant (or any or either of the defendants, if there be several), until discharged. And of this writ make due reiturn on or before the day of , Witness, etc. 76 Williams v. International Grain 79 Wellover v. Soule, 30 Mich. & Stock Board, 99 Mich. 80. 481. 77 State Sav. Bank v. Wayne Cir- 80 Millard v. Lenawee Circuit cuit Judge, 95 Mich. 100. Judge, 107 Mich. 134. 78 See § 6, ante. 840 Garnishment § 17 Form of Writ in Action on a Judgment State of Michigan. The Circuit Court for the County of In the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting : Whereas, on the day of , , a judgment was ren- dered in the circuit court for the county of , in favor of A. B., as plaintiff, and against C. D., as defendant, for the sum of dollars, damages, and dollars, costs of suit; And whereas the said A. B. has filed in the office of the clerk of said court the affidavit of A. B., stating, amongst other things, that he has good reason to believe, and does believe, that (here allege the corresponding contents of the affidavit) : Now, therefore, you are hereby commanded to warn and summon the said G. E. to appear before said court on or before the day of , (some day not less than fourteen days from the date of issuing the writ of garnishment), to make disclosure in writing under oath, to be filed with the clerk of said court, touching the liability of said G. R. as garnishee of C. D., principal defendant (or any or either of the defendants, naming him or them), as charged in the said affidavit, and thenceforth to pay no money and deliver no property to the said C. D., principal de- fendant (or any or either of the defendants, if there be several), until discharged. And of this writ make due return on or before the day of , Witness, etc. Form of Writ Upon Transcript of Judgment of Justice of the Peace State of Michigan. The Circuit Court for the County of In the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting : Whereas a judgment was rendered by J. P., a justice of the peace in and for the township of , in the said county of , on the day of , , in favor of A. B., as plaintiff, and against C. D., as defendant, for the sum of dollars, damages and costs, of which aaid judgment a transcript was, on the day of , , duly filed, entered and docketed in the office of the clerk of the said circuit court for the county of ; And whereas the said A. B. has filed in the office of the said clerk the affidavit of A. B., stating, amongst other things, that he has good reason to believe and does believe that (here allege the corresponding contents of the affidavit) : Now, therefore, you are hereby commanded to warn and summon the said G. R. to appear before said circuit court on or before the day of , (some day not less than fourteen days from the date of issuing the writ of garnishment), to make disclosure in writing under oath, § 19 Garnishment 841 to be filed with the said clerk, touching the liability of the said G. E. as garnishee of the said C. D., principal defendant (or any or either of the defendants, naming him or them), as charged in the said affidavit, and thenceforth to pay no money and deliver no property to the said C. D., principal defendant (or any or either of the defendants, if there be several), until discharged. And of this writ make due return on or before the day of , Witness, etc. § 18. Service of writ. The method of serving the writ in ordinary cases is not specially prescribed by statute,^^ but it seems that it is to be served in the same manner as process in gen- eral.*^ The fact that the copy served omitted the date of issue and the name of the clerk is not fatal.^* It has been held that actual service is necessary and cannot be waived by the garnishee as against the principal defend- ant so as to bind the latter,^* and that a joint debt can- not be reached where there is service on only one of the debtors.*' The return of service of the writ must show legal serv- ice of the writ on the garnishee.*® The service of the writ creates a lien on the property of the principal defendant in the hands of the garnishee defendant.*'' § 19. On domestic corporations. In case of garnishment proceedings against a domestic corporation, the writ of garnishment may be served in the same manner as process in general,** i. e., except 81 Lyon v. Baldwin, 194 Mich. 86 Hirth v. Pfeifle, 42 Mich. 31. 118. 86 McCain v. Wayne Circuit 82 Lyon v. Baldwin, 194 Mich. 118. Judge, 187 Mich. 73, where return This applies to service on a cor- failed to show how person served poration such as a bonding com- was connected with garnishee de- pany. Drueke-Lynch Co. v. Mich- fendant. igan Bonding & Surety Co., 204 87Riekman v. Rickman, 180 Mich. Mich. 180. 224, 251. 83 Lyon V. Baldwin, 194 Mich. 118. 88Jud. Act, ch. 28, §46; Comp. 84 Hebel v. Amazon Ins. Co., 33 Laws 1915, § 13167, as amended by Mich. 400. Pub. Acts 1919, No. 233. 842 Garnishment § 19 where provision is made for some special method of service upon the corporation,'® upon ''any" officer, di- rector, trustee or agent of the corporation or by leaving it during the regular office hours at the office of the cor- poration with any person in charge of the office.®** Serv- ice upon a corporation owning or operating a steam, elec- tric or street railway in the state may also be made upon any station agent or ticket agent at any station or depot along the line or at the end of the road of the company, or upon any conductor in charge of any train or car of the company along the line or at the end of the road of the company, except conductors of street cars in cities where the home office of the corporation is located.®^ Prior to the Judicature Act an agent could not be served unless a ''general" agent. Thereunder it was held that every servant of a corporation, whatever be the grade of his duties is, in a sense, an agent, but there must be something more definite than the mere designation of a man as agent before a court can say that his relation to the corporation is such as to make him its representative for the purpose of receiving service of process of it;®^ and that a return of service by delivering a copy of the writ to a person described as the agent of the corpora- tion, "having charge of its affairs within said county," is insufficient to give the court jurisdiction, for it omits 89 Under this statute, service of 90Jud. Act, ch. 13, §29; Comp. garnishee process, against a Mich- Laws 1915, §12432; Pub. Acts 1919, igan bonding company should be No. 233. This is true also of part- made on the commissioner of insur- nership associations and unincorpo- ance, as provided for by Jud. Act, rated voluntary associations. See ch. 13, §33; Comp. Laws 1915, Commencement of Actions. §12436, and Pub. Acts 1907, No. 91Jud. Act, ch. 13, §30; Comp. 321, rather than on the secretary Laws 1915, § 12433. of the company as provided for in 92 Lake Shore, etc., E. Co. v. Hunt, ordinary cases by Jud. Act, ch. 13, 39 Mich. 469. See German-Amer- §29; Comp. Laws 1915, §12432. ican Ins. Co. v. Steere, 105 Mich. Drueke-Lynch Co. v. Michigan 566. Bonding & Surety Co., 204 Mich. 180. § 21 Garnishment 843 to state the nature of the corporation 's affairs within the county and therefore does not show that the agent had any authority to control the affairs of the corporation, but if the return states that the corporation was con- ducting a business of some kind within the county and that such business was within the charge and control of the agent, it will be sufficient.^^ These decisions appar- ently are of no force under the Judicature Act. A book- keeper is not such an officer or agent as can appear for or bind the corporation by which he is employed.®* § 20. On foreign corporations. In case of the garnishment of a foreign corporation, the writ of garnishment may be served upon any officer or agent of the coi-poration within this state, and any person representing the corporation in any capacity will be deemed an agent for this purpose. If the corporation has a legally designated agent or attorney in the state appointed in pursuance of statute for receiving service of process upon the corporation, service may also be made upon such agent or attorney.®* A resident agent of a foreign mining company, whose duties consist in acting as custodian of the corporate property in the county where its mining operations are carried on and inspecting the work of its contractors in such county, is a competent agent upon whom to make service of a writ of garnishment against the corpora- tion.®^ § 21. On municipal corporations. In garnishment proceedings against a county, service of the writ of garnishment may be made upon the chair- 93Kirby Carpenter Co. v. Trom- service upon insurance companies, blcy, 101 Mich. 447. see Jud. Act, ch. 13, §33; Comp. OiPettit V. Muskegon Booming Laws 1915, §12436. Co., 74 Mich. 214. 96 Shafer Iron Co. v. Stone, 88 96 Jud. Aft, ch. 13, §31; Comp. Mich. 464. Laws 1915, §12434. And as to 844 Garnishment § 21 man of the board of supervisors or the county clerk. If against a city, service may be made upon the mayor, the city clerk or the city attorney. If against a village, serv- ice may be made on the president or clerk or, in their ab- sence, upon any trustee. If against a township, service may be made upon the supervisor or township clerk. If a school district be proceeded against as garnishee, serv- ice of the writ may be made upon the president of the board of education, director, moderator or treasurer of the district.^' § 22. Where garnishee resides out of county. If any person named in the affidavit for a writ of gar- nishment be stated to reside out of the county in which the suit in garnishment is brought, the writ of garnish- ment may be served by any competent person, and any execution against the garnishee may be directed to the sheritf of any county in this state in which he resides. Such sheriff is required to serve the execution in the manner required in other cases and to make return of his doings to the clerk of the county from which the execution issued.^^ It is, however, only when jurisdic- tion of the principal suit has been obtained in the county in which the suit is planted, either by personal service of process or attachment of property or credits in that county, that a writ of garnishment may be issued to a different county.®^ There is no authority for maintain- ing garnishment proceedings in any court other than that in which the principal suit is pending or judgment has been rendered. 97Jud. Act, ch. 13, §35; Comp. 99 Stern v. Frazer, 105 Mich. 685; Laws 1915, § 12438. Fell v. Gorman, 144 Mich. 521. 98Jud. Act, ch. 28, §36; Comp. Laws 1915, §13157; Nichol v. Nevers, 196 Mich. 203. § 24 Garnishment 845 IV. Disclosure, Interrogatories and Oral Examination § 23. Disclosure by garnishee — Time for filing. In accordance with the tenor of the writ of garnish- ment, the disclosure of the garnishee should be filed with the clerk of the court on or before the day fixed in the writ for that purpose,^ and within the same time a copy of the disclosure should be served upon the attorney for the plaintiff. However, a circuit court commissioner of the county where the garnishment proceedings have been com- menced or the circuit judge may, for proper cause shown by the affidavit of any credible person, make an order extending the time for the garnishee to file his disclosure. Such order must be filed with the clerk of the court and a copy of it served on the plaintiff or his attorney; but such time cannot be extended more than three times, except by consent.^ After the writ of garnishment has been properly served upon the garnishee, but not until it has been properly served, for the garnishee has no power to bind the prin- cipal defendant by consenting to anything short of a valid service,^ and on or before the day named in the writ for the appearance of the garnishee, he should file his disclosure in writing under oath touching his liability as garnishee of the principal defendant, as charged in the affidavit. § 24. Contents and effect. The disclosure should in all cases answer the allega- tions of the affidavit, but nothing more. If the affidavit charges the garnishee with having in his hands or under IJud. Act, ch. 28, §1; Comp. principal defendant. Iron Cliffs Laws 1915, § 13122. Co. v. Lahais, 52 Mich. 394. A disclosure before jurisdiction 2 Jud. Act, ch. 28, §6; Comp. of the principal case has been ob- Laws 1915, § 13127. tained is of no force, and not cured 3 Hebel v. Amazon Ins. Co., 33 by the subsequent appearance of the Mich. 400. 846 Gaknishment § 24 his custody or control property belonging to the prin- cipal defendant, and also with being indebted to the principal defendant, the disclosure should cover both of these different grounds; but, if the affidavit simply charges that the garnishee has property belonging to the defendant, the disclosure should be silent as to any in- debtedness to the defendant, and vice versa.* In answering the allegations of the affidavit, the gar- nishee should set forth in his disclosure the facts bear- ing upon the question of his liability to the defendant, taking great care not to admit a liability where none exists or to admit a liability greater than exists. Very frequently a garnishee is unable to state, of his own per- sonal knowledge, whether he is liable at all to the de- fendant, or to set forth on his own knowledge some of the facts which may have an important influence upon the question either of the existence or of the amount of a liability to the defendant. In such a case, it is en- tirely competent for the garnishee to make his averments upon information and belief. He has the right, and it is his duty, to state in his answer every fact within his knowledge which has any legitimate tendency to show that he ought not to be charged, and he may state even matters of hearsay touching his liability to the principal defendant.^ He is allowed to claim any set-off which he has against the principal defendant of which he could have availed himself if he had not been garnished, and, if he does so, he will be liable only for the balance after adjustment of the mutual demands, but he cannot make a counterclaim for any unliquidated damages.® While a garnishee may by his disclosure admit away 4Botsford V. Simmons, 32 Mich. etc., K. Co., 98 Mich. 648; O'Connor 352; Mack v. Brown, 20 Mich. 335. v. White, 124 Mich. 22; Walker v. 6 Drake v. Lake Shore, etc., E. Detroit, etc., E. Co., 49 Mich. 446. Co., 69 Mich. 168; Sexton v. Amos, 6 Jud. Act, ch. 28, §38; Comp. 39 Mich. 695; Crisp v. Ft. Wayne, Laws 1915, §13159. § 24 Garnishment 847 his own rights, as by averring that he is indebted to the defendant when he actually is not, or by averring an in- debtedness to the defendant when the indebtedness is really to another person, he cannot in this manner waive or admit away the rights either of the defendant or of such other person.' Where the garnishee is uncertain whether the indebtedness owing by him to the principal defendant is subject to an exemption in favor of the lat- ter, he is not compelled to determine the question, but may state any fact that has come to his knowledge, by hearsay or otherwise, and that he does not know whether the defendant is entitled to the exemption or not. The disclosure should take this form for the garnishee's own protection, for, if the defendant should be entitled to an exemption, the garnishee would be liable to him for the amount of it, regardless of the nature of his disclosure or his liability upon it.^ The garnishee may thus subject •himself to a double liability, but it is always within his power to protect himself by his disclosure, for he cannot be held until his liability is clearly established. He may also, for the purpose of his own protection against the possibility of a double liability, make a further and sup- plemental disclosure setting forth facts, whether mat- ters of hearsay or otherwise, limiting the admissions of his original answer.^ A disclosure does not stand on the same footing as the testimony of a witness. It rather is the answer of a party upon which the plaintiff may take judgment, if it dis- closes a liability, unless the garnishee demands a trial. 7 Hebel v. Amazon Ins. Co., 33 8 Crisp v. Ft. Wayne, etc., K. Co., Mich. 400; Hirth v. Pfeifle, 42 98 Mich. 648. Mich. 31; Tabor v. Van Vranken, 9 Drake v. Lake Shore, etc., R. 39 Mich. 793; Union Bank v. Han- Co., 69 Mich. 168; Barber v. Howd, ish, 97 Mich. 404; Hitchcock v. Mil- 85 Mich. 221; Karp v. Citizens' ler, 48 Mich. 603; Hosley v. Scott, Nat. Bank, 76 Mich. 679; Allen v. r)9 Mich. 420; First Nat. Bank v. Hamburg-Bremen Fire Ins. Co., 121 Mellcn, 45 Mich. 413; Kimball v. Mich. 86. Macomber, 50 Mich. 362. 848 Garnishment § 24 It is somewhat analogous in its functions to an answer in chancery, — whatever is admitted by it the plaintiff may treat as established.^" On the other hand, unless there be a demand for a trial of the statutory issue, which will be hereafter explained, the disclosure, supplemented, as it may be at the option of the plaintiff, by the garni- shee's answers to special interrogatories or upon a per- sonal examination of the garnishee, which also will be presently explained, must be the exclusive basis for any judgment recovered by the plaintiff against the garni- shee. Such disclosure and supplementary answers, un- less contested by the plaintiff upon a statutory issue, are conclusive upon the plaintiff and cannot be contradicted by him." Where, however, the garnishee makes dis- closure or answers, even denying any liability, and the trial of a statutory issue is claimed, the disclosure and answers are not conclusive upon the plaintiff, but may be met by adequate testimony to the contrary.^^ The liability of the garnishee, in case of such issue, depends not solely upon his disclosures and his answers to spe- cial interrogatories and upon a personal examination, but upon the result of the trial as deteraiined by the evi- dence, including not only these, but also whatever other competent and material evidence is adduced.^' It is provided by statute that, if any person summoned as a garnishee, or if any officer, agent or other person who shall appear and answer for a corporation so sum- moned shall, upon his disclosure or examination on oath, knowingly and wilfully answer falsely, he shall, out of his own goods and estate, pay to the plaintiff in garnish- 10 Allen V. Hazen, 26 Mich. 142. Mich, 695; Spears v. Chapman, 43 11 People V. Cass Circuit Judge, Mich. 541. 39 Mich. 407; Smith v. Holland, 81 12 Fearey v. Cummings, 41 Mich. Mich. 471; Fearey v. Cummings, 41 376; Cummings v. Fearey, 44 Mich. Mich. 376; Cummings v. Fearey, 44 39; Whitfield v. Stiles, 57 Mich. Mich. 39; Lyon v. Kneeland, 58 410. Mich. 570; Thompson v. Jarvis, 39 13 Whitfield v. Stiles, 57 Mich. 410. § 24 Garnishment 849 ment or to his executors or administrators the full amount due on the judgment recovered therein, with in- terest, to be recovered in a special action on the case; and he shall, moreover, on conviction thereof upon indict- ment, be adjudged guilty of perjury." Unless the plaintiff in the action, within ten days after notice is served upon him or his attorney of the filing of the garnishee's disclosure with the clerk of the court, files special interrogatories thereto, or files a demand for an examination of the garnishee before the judge of the court or a circuit court commissioner, the disclosure will be deemed sufficient unless the judge or court, on applica- tion and showing, extends the time for filing such inter- rogatories or demand for such examination.^^ But the plaintiff may have a trial of the statutory issue, without filing special interrogatories or demanding a personal examination of the garnishee. ^^ Form of Disclosure Admitting Liability The Circuit Court for the County of A. B. vs. G. E., Garnishee of C. D., Principal Defendant. County of , sa. Comes now the said garnishee, and, for disclosure touching his liability as garnishee of the said C. D., principal defendant, as charged in the affidavit for the writ of garnishment in this cause, says: 1. That, at the time of the service upon him, the said garnishee, of the said writ of garnishment, he, the said garnishee, had in his hands and nndcr his custody and control the following goods and chattels: (Here describe the property,) belonging to the said C D., and that the said goods and chattels still remain in the hands and under the custody and control of the said garnishee, but that he had not in his hands or under his custody 14,Jud. Act, eh. 28, §40; Comp. land, 81 Mich. 471; People v. Cass Laws 1915, §13161. Circuit Judge, ."^O Mich. 407. ISJud. Act, ch. 28, §3; Comp. 16 Hobson v. Kelly, 87 Mich. 187. Laws 1915, §13124; Smith v. Hol- 1 Abbott— 54 850 Gaenishment § 24 or control any other property, money, goods, chattels, credits, or effects belonging to the said C. D. 2. That, at the time of the service upon him, the said garnishee, of the said writ of garnishment, he, the said garnishee, was indebted to the said C. D., principal defendant, in the sum of dollars, over and above all legal set-offs; that said indebtedness is now due (or, that said indebtedness will mature on the day of , A. D ) ; and that he was not indebted to the said C. D., principal defendant, in any other sum or sums whatsoever, either due or to become due. (If any other person than the defendant claims the property or indebted- ness, the garnishee may add the following: And the said garnishee further (declares that the said goods and chattels and the said indebtedness are claimed by O. P., who resides in the of , in the county of ) G. E. L. M., Attorney for Garnishee. Business address: , Mich. State of Michigan, ) County of ( On this day of , in the year , before me, a , in and for said county, personally came G. R., the garnishee named in the foregoing disclosure by him subscribed, and, having been by me first duly sworn, says that he has read (or, has heard read) the said disclosure and knows the contents thereof, and that the same is true in substance and in fact. (Official title.) Form of Disclosure by Garnishee Denying Liability The Circuit Court for the County of A. B. vs. G. R., Garnishee of C. D., Principal Defendant. County of , ss. Comes now the said garnishee, and, for disclosure touching his liability as garnishee of the said C. D., principal defendant, as charged in the affidavit for the writ of garnishment in this cause, says: 1. That, at the time of the service upon him, the said garnishee, of the said writ of garnishment, he, the said garnishee, had not in his hands or under his custody or control any property, money, goods, chattels, credits or effects belonging to the said C. D., principal defendant. § 26 Garnishment 851 2. That, at the time of the service upon him, the said garnishee, of the said writ of garnishment, he, the said garnishee, was not indebted to the said C. D., principal defendant, in any sum or sums whatever, either due or to become due. G. R. L. M., Attorney for Garnishee. Business address : , Mich. State of Michigan, | County of , t On this day of , in the year , before me, a , in and for said county, personally came G. E., the garnishee named in the foregoing disclosure by him subscribed, and, having been by me first duly sworn, says that he has read (or, has heard read) the said disclosure and knows the contents thereof, and that the same is true in substance and in fact. (Official title.) § 25. Amendments or supplementary disclosure. The disclosure is amendable in the discretion of the court, ^^ as by showing that it was a mistaken one and that in fact the garnishee was not indebted to the judg- ment debtor but to a third person. ^^ So a garnishee has the right to make a further and supplemental dis- closure.^® And where debtors of an insolvent have been sued by their creditor's assignee after being garnished, they should ask leave to file a supplemental disclosure setting up the alleged assignment.*^" §26. Special interrogatories. If special interrogatories are filed, where the dis- closure is not satisfactory, the garnishee or his attorney in the action must be served with a copy of them, to- gether with a notice from the plaintiff or his attorney that the garnishee is required to answer such interroga- tories in writing within ten days after such service. It 17 Newell V. Blair, 7 Mich. 103; 19 Drake v. Lake Shore & M. S. Dunn V. Detroit Sav. Bank, 118 Ry. Co., 69 Mich. 168. Mich. 547. 20 Butler v. Wendell, 57 Mich. 62. ISGerow v. Hyde, 131 Mich. 442. 852 Garnishment § 26 thereupon becomes the duty of the garnishee to answer the interrogatories on oath and file his answer with the clerk of the court within such ten days, but the time for answering may be extended on application and showing to the court.^^ Form of Special Interrogatories (Title of court and eause as in form of disclosure.) Comes now the said plaintiff, by J. K., his attorney, and, to the disclosure of the said G. R., garnishee as aforesaid, specially interrogates the said G. R., as follows : 1. Did you not, at the time of the service upon you of the writ of gar- nishment herein, have in your custody, at , a certain promissory note (describe it, if description be known) belonging to the said C. D.? (Or, whatever the fact is supposed to be which it is desired should be disclosed.) 2. Were you not, at the time of the service upon you of the said writ of garnishment, indebted to the said C. D. in a sum of money for goods which, before that time, he, the said C. D., had bargained and sold to you? (Or any other question calculated to bring out facts showing the existence of an indebtedness by the garnishee to the principal defendant.) J. K., Attorney for Plaintiff. Form of Answer of Garnishee to Special Interrogatories (Title of court and cause as in form of disclosure.) Comes now the said garnishee, and for answer to the special interroga- tories, now on file, to the disclosure of the said garnishee in this cause, says: 1. To the first interrogatory, that he did not, at the time of the service upon him of the writ of garnishment herein, have in his hands or under his custody or control, at or elsewhere, the promissory note 81 Jud. Act, ch. 28, §4; Comp. in, and that said garnishee is re- Laws 1915, § 13125. quired to answer to the same, in writing on oath, and file his answer Form of Notice to Be Served by .., .,„ ,^ , „* -i i. -xi,- Plaintiff Upon Garnishee with ^^*^ *^« ^^"^ «^ ^^'^ «o"^t ^t^^° Copy of Special Interrogatories t^" a^Js after the service upon you (Title of court and cause.) of this notice and a copy of the „. . said special interrogatories. You will please to take notice Dated, etc. that the annexed is a copy of spe- Yours, etc., eial interrogatories, this day filed J. K., in said cause, to the disclosure here- Attorney for Plaintiff, tofore filed by said garnishee here- To S. K., Attorney for Garnishee. § 27 Garnishment 853 described in said interrogatory or any similar promissory note belonging to the said 0. D., principal defendant. Or, 1. To the first interrogatory, that, at the time and place mentioned in said interrogatory, he, the said garnishee, had in his custody a promissory note of the description made, but said note did not then or at any time theretofore or thereafter belong to the said C. D., principal defendant, but was then and there, and now is, the property of one M. E. G. E., Garnishee Defendant. State of Michigan, 1 County of , C On this day of , in the year , before me, a , in and for said county, personally appeared G. E., the garnishee named in the foregoing answer, by him subscribed, and, having been by me first duly sworn, says that he has read (or, heard read) the said answer, and knows the contents thereof, and that the same is true in substance and matter of fact. (Official title.) § 27. Oral examination of garnishee. Where plaintiff is dissatisfied with the disclosure, he may, instead of filing interrogatories, file in the cause a demand for the examination of the garnishee before the judge or a circuit court commissioner and cause a copy of it to be served upon the garnishee, with a notice re- quiring him to appear before the judge or commissioner at a time and place to be named in the notice, not less than three nor more than ten days after service of the notice, which time may be enlarged by the judge or com- missioner on special cause shown, and submit to an ex- amination on oath concerning all matters of his liability as such garnishee, which copy must be served and sei'v- ice proven, when required, in the same manner as in cases of service of a declaration in suits commenced by declara- tion. If this be done, the garnishee defendant is re- quired to appear and submit to examination pursuant to the notice.^* 22,Tud. Act, ch. 28, §4; Comp. Laws 1915, § 13125. 854 Garnishment § 27 Such sei'vice, however, can be made only in the county where the suit is brought or in the county where service has been made of a ^vrit of garnishment issued to some other county of the state for service upon a resident of such county.^' Moreover, tlie practice of requiring gar- nishees to submit to a personal examination is inappli- cable where the garnishee is a non-resident ; ^^ and it was formerly held not to be applicable to foreign corpora- tions,^^ but the present statute expressly authorizes foreign corporations doing business in this state to be proceeded against in this manner and provides that serv- ice upon such a corporation shall be valid when made upon the resident agent of the corporation.^^ However, the personal attendance for examination of any officer or agent of such foreign corporation not found within the state cannot be required, but he may be personally examined in the state of his residence in the same manner as depositions are taken of parties without the state.^''' Fonn of Demand for Personal Examination of Gamisliee (Title of court and cause as in form of disclosure.) The said garnishee having heretofore filed his disclosure touching his lia- bility as such garnishee, as charged in the affidavit for the writ of garnish- ment herein, comes now the said plaintiff, by J. K., his attorney, and de- mands an examination of the said garnishee before the Honorable J. S., 23 Eaniville v. Kent Circuit Judge, vided, however, That this section 118 Mich. 196. shall not be construed to require the 24 Eaniville v. Kent Circuit Judge, personal attendance for examina- 118 Mich. 196. tion of any officer, or agent of such 25 Shafer Iron Co. v. Stone, 88 foreign corporation not found with- Mieh. 464. in this State, but the personal ex- 26 Jud. Act, ch. 28, § 4 ; Comp. amiuation of any officer, or agent Laws 1915, § 13125, which provides, of such corporation without this in regard to interrogatories and oral State, may be had in the state of examination, that "the provisions his residence, in the same manner of this section shall apply to foreign as depositions are taken of parties corporations doing business within without the State. ' ' this State, and service shall be valid 27 Jud. Act, ch. 28, § 4 ; Comp. when made upon the resident agent Laws 1915, § 13125. of said foreign corporation: Pro- § 28 Garnishment 855 circuit judge (or, circuit court commissioner for said county), in accordance with the statute in such case made and provided. Dated, etc. J- K., Attorney for Plaintiff. Form of Notice to Be Served by Plaintiff Upon Garnishee with Copy of Demand for Examination of Garnishee (Title of court and cause.) Sir:— You will please to take notice that the annexed is a copy of a demand for an examination of the said garnishee, now on file in this cause, and that said garnishee is required to appear before the Honorable J. S., circuit judge, at his chambers, in the court house, in the of , on thq day of , A. D , at . . o 'clock in the noon, at which time and place to submit to an examination, on oath, concerning all matters of his liability as such garnishee. Dated, etc. ' Yours, etc., J. K., Attorney for Plaintiff. To S. K., Attorney for Garnishee. , § 28. Order to appear for examination. If a garnishee fails to appear for examination at the time and place appointed by a proper notice to appear, or if he fails or refuses to file his answers to such writ- ten interrogatories as may have been filed by the plain- tiff, or if his answers are not full and responsive to the written interrogatories, the judge of the court or a cir- cuit court commissioner, upon the application of the plaintiff, will make an order that the garnishee appear before him and submit to an examination at a time and place to be named in the order.'** Form of Petition Where Garnishee Fails to Appear for Examination (Title of court and cause.) To , Circuit Judge (or "Circuit Court Commissioner") of said county. Your petitioner, C. N., the plaintiff above named, respectfully shows: I. That on the day of , 191. ., a writ of garnishment was duly issued pursuant to law on the filing of an affidavit in the above entitled 28Jud. Act, eh. 28, §4; Comp. Laws 1915, § 13125. 856 Garnishment § 28 cause, wherein was summoned as garnishee of said , defendant, and was thereby required to make disclosure concerning his liability as such garnishee. II. That the said writ of garnishment was duly served on said garnishee on the day of , 191 . . , as shown by the records and files of said cause. III. That said garnishee filed his disclosure with the clerk of the above named court on the day of , 191. .. IV. That a demand for an examination of said garnishee before , circuit judge (or "circuit court commissioner"), was filed in said cause on the day of , 191 . . . V. That a copy of such demand was duly served upon said garnishee as appears by the records and files of said cause, on the day of , 191.., together with a notice from said plaintiff requiring said 'garnishee to appear before said circuit judge (or "circuit court commis- sioner ") , on the day of at .... o 'clock in the noon, at the ofiice of said circuit judge (or "circuit court commissioner"), to submit to an examination concerning his liability as garnishee. VI. That said garnishee failed and neglected to appear for examination at the time and place fixed in said notice. Wherefore your petitioner prays that an order may be made requiring said garnishee to appear before said circuit judge (or "circuit court com- missioner"), and submit to such examination at a time and place to be named in the order. Attorney for plaintiff. Plaintiff. (Verification.) § 29. Examination to determine ownership of negotiable instruments. The statute provides that all bills of exchange and promissory notes or other negotiable instruments in the hands of a garnishee at the time of the service of the writ of garnishment shall be deemed effects, within the mean- ing of the statute. It also provides that, if it appears by the disclosure that the garnishee either at that time or thereafter and prior to the disclosure, was indebted to the principal defendant by such a bill, note or nego- tiable instrument made payable in this state, or the parties to which, at the time of making it, resided in this state, the judge or commissioner may issue a citation requiring the principal defendant to appear before him within ten days and answer on oath all interrogatories § 29 Garnishment 857 respecting the posesssion, transfer or other disposition of such bill, note or other negotiable instrument. The citation may also contain the name of any other person supposed to claim an interest in such paper, so that he may appear and show that it was transferred to him in good faith and for an adequate consideration before the service of the writ of garnishment. The citation may be served by any person at least five days prior to the return day, service shown by affidavit, and annexed to the com- missioner's report.^® The citation should contain an order enjoining and re- straining the principal defendant from selling, trans- ferring or in any way disposing of any such bill of ex- change, promissory note or other negotiable instrument; and in case of any violation by the defendant of such order, he will be deemed guilty of a contempt of the court in which the action is pending and be punishable as in other cases of contempt.^" The parties cited are to be examined in like manner as the garnishee, and, if it does not appear that the note or bill was so transferred, the maker or acceptor will be charged as garnishee, and the payment of the judgment rendered against him will be a discharge from the paper or such part of it as is equal to the amount so paid by him, together with all costs taxed in his favor." If the principal defendant or other party cited re- fuses to appear upon such citation, upon the filing of the report, he may be proceeded against as for a contempt, or brought before the court on a bench warrant, fined in the discretion of the court and held in custody until dis- closure to the court, which should be reduced to writing by the clerk and attached to the rei^iort.^^^ 29Jud. Act, ch. 28, §24; Comp. Laws 1915, §13145. Laws 1915, §13145; Barnes v. SlJud. Act, ch. 28, §25; Comp. Reilly, 81 Mich. 374 ; Smith v. Hoi- Laws 1915, § 13146. land, 81 Mich. 471. 32 Jud. Act, ch. 28, §26; Comp. 30.Tud. Act, ch. 28, §24; Comp. Laws 1915, §13147. 858 Garnishment | 30 § 30. Disposition and effect of testimony and answers of garnishee. The testimony given on the personal examination of a garnishee is required to be reduced to writing by the commissioner or judge, signed by the garnishee and filed with the clerk of the court; and it and the answers to written interrogatories, in cases where written interroga- tories are filed and answered, will be deemed part of the disclosure of the garnishee. ^^ § 31. When default of garnishee may be entered and judgment rendered. If the garnishee does not appear and file his disclosure with the clerk of the court on or before the return day of the writ of garnishment, or, if the time for so doing be extended, then at the expiration of such extended period, or if special interrogatories be filed and served, and the garnishee does not file his answers thereto as required by the notice thereon, or if demand for his examination before a judge or a circuit court commis- sioner be filed and a copy served as provided by law and the garnishee does not appear and submit to an examina- tion as required by the notice indorsed thereon, the de- fault of the garnishee for want of appearance and dis- closure, or for want of answers to such special interroga- tories, or for want of appearance and submission to such examination, may be entered in the cause and made absolute as in other personal actions; and, in case of a final judgment against the principal defendant, judg- ment may be rendered and execution issued against the garnishee, his goods and chattels, lands and tenements, for such amount as the plaintiff recovers against the principal defendant.^* Eefusal to answer need not be Laws 1915, § 13125; Marx v. Wayne fraudulent. Barnes v. Reilly, 81 Circuit Judge, 119 Mich. 19. Mich, .374. 84Jud. Act, ch. 28, §5; Comp. 33Jud. Act, eh. 28, §4; Comp. Laws 1915, § 13126. § 31 Gaknishment 859 Where the garnishee is a foreign corporation, if the officer or agent served with the writ of garnishment, shall neglect or refuse to file disclosure to said writ, the default of said foreign corporation may be entered as in other cases, and upon the entry of judgment against the principal defendant, judgment may be entered in said garnishee proceedings against said foreign corporation for the amount thereof, including costs: provided, no judgment on default shall be rendered against said for- eign corporation until the expiration of sixty days after the entry of judgment against the principal defendant, and the plaintiff shall within twenty days after judgment against the principal defendant, serve notice by mail on the foreign corporation at its home office, that judgment has been obtained against the principal defendant, and that at the expiration of sixty days from date of said judgment application would be made for judgment against it.^* An affidavit of default is not ob- Form of Notice as Prescribed by jectionable because it states that Statute the garnishee failed to appear for In the circuit court for tlie county examination before the ' * court " of instead of before the ' ' circuit judge , plaintiff, at his office" as required by the vs. order. Nichol v. Nevers, 196 Mich , defendant. 203. , garnishee defendant. Where the garnishee fails to obey To said garnishee defendant: an order to appear for examination, Take notice, that on the judgment by default may be entered day of Anno Domini against him on motion without giv- judgment for the sum of ing him notice of the default or the dollars including costs, was entered assessment of damages; and it is in said court against the above immaterial that he had filed a dis- named principal defendant, and at closure. Nichols v. Nevers, 196 the expiration of sixty days from Mich. 203. the entry of said judgment, appli- 36 Jud. Act, ch. 28, §46; Comp. cation will be made to said court Laws 1915, § 13167, amended by for the entry of judgment against Pub. Acts 1919, No. 233. you as garnishee defendant in said cause. Yours, etc., > Plaintiff's Attorney. 860 Garnishment § 31 It is a general rule that the right of the plaintiff to examine the garnishee may not be exercised in disregard of the privileges which would belong to the garnishee if he were examined as a witness on an ordinary trial, and, where such a privilege obtains, the default of the garnishee for not answering cannot regularly be entered. Thus, when a wife is sought to be charged as garnishee of her husband for property which it is alleged she holds by a conveyance void as to the creditors of her husband, she cannot be examined by the plaintiff without the con- sent of her husband in regard to the transfer of such property, and her default for refusing to submit to such examination cannot be regularly entered, and, if entered, will be set aside by the court on motion.^^ Defaults against garnishee defendants may be set aside for any cause for which defaults for want of ap- pearance and plea may be set aside, upon such terms as the court shall impose.'' A default regularly filed can- not be set aside upon an application made more than six months afterwards.^' § 32. Protective force of judgment. An intended garnishee cannot bind the principal de- fendant by a waiver of regular and valid service upon him of the writ of garnishment. If, without such service, he voluntarily submits himself to the jurisdiction, the garnishment proceeding will afford no protection to him against the urging of his claim by the principal defend- 86 Berks v, Adsit, 102 Mich, 495 ; This rule does not apply where Morgan v. Sprague, 124 Mich. 131. default is improperly rendered. 37Jud. Act, ch. 28, §5; Comp. Petley v. Wayne Circuit Judge, 124 Laws 1915, § 13126; Nichol v. Nev- Midi. 14, followed McCain v. Wayne ers, 196 Mich. 203. Circuit Judge, 187 Mich. 73; W. H. 38Cir. Ct. Eule 32, §4; Caille Warner Coal Co. v. Nelson, 204 Bros. Co. V. Saginaw Circuit Judge, Mich. 317, 155 Mich, 480. § 33 Garnishment 861 ant. The right of the principal defendant can only be bound without his consent when a real service is effected in some form by which his right is attached; but, when such service is effected, the garnishee need not wage battle at every step. The law not only recognizes his right to suffer default, but provides what the practice shall be in such case, and invests the judgment with the same protective force as it does one awarded after a vigorous contest.^® §33. Default judgment against garnishee after de- fault of principal defendant. The Judicature Act provides that if plaintiff obtains judgment against the principal defendant and the latter does not, within two days, serve upon the garnishee notice of motion for new trial or of his intention to remove the case to the supreme court, the statutory issue shall stand for trial at that term of the court.*" Thereunder it has been claimed that after judgment against the principal defendant, where the garnishee is also in default, plain- tiff may proceed at once to judgment against the gar- nishee defendant unless objection is made. But it is held that where the ganiishee failed to appear or consent, the want of appearance did not waive his right to insist upon the provisions of the statute being complied with; that the judgment against the garnishee entered before the end of two days was premature and invalid; that a joint judgment against the principal defendant and the gar- nishee is unauthorized; and that a motion by the gar- nishee to set aside the default judgment was not too late because not made within six months." 39HebPl V. Amazon Ins. Co., 33 40Jucl. Act, ch. 28, §13; Comp. Mich. 400; Kcppel v. Moore, 66 Laws 1915, § 13134. Mich. 292 ; Chamberlain v. Wallace, 41 W. H. Warner Coal Co. v. Nel- 176 Mich. 609; Lichtenberg v. son, 204 Mich. 317. Wayne Circuit Judge, 106 Mich. 38. 862 Garnishment § 34 V. Statutory Issue § 34. How formed. The affidavit for the writ of garnishment will be held and considered as a declaration by the plaintiff against the garnishee as defendant, and upon the filing of the disclosure, or upon the filing of the answers to written interrogatories in cases where they are required and filed, or upon the filing of the report of the testimony or statement made by the garnishee on his personal ex- amination in cases where such examination is had, the matter of the affidavit will be considered as denied, ex- cept so far as it is admitted by the disclosure, answers to interrogatories or report, which admission will have the effect of admissions in a plea and also will be con- sidered prima facie evidence of the matters admitted. Thereupon a statutory issue will be deemed framed for the trial of the question of the garnishee's liability to the plaintiff." When two or more persons severally liable have been made garnishees by means of a single affidavit for that purpose, the affidavit will stand as a declaration against each of them.*' § 35. Demand for trial of issue. If the plaintiff or the garnishee defendant, within ten days after filing the disclosure, answers or statement, files with the clerk of the court a demand for the trial of the cause, the cause will stand for trial in the manner provided by the statute. The time for filing the demand may be extended by the court upon application and show- ing." The garnishee is entitled to ten days in which to demand a trial of the issue and consequently a judgment 42Jud. Act, ch. 28, §11; Comp. 44 Jud. Act, ch. 28, §11; Comp. Laws 1915, § 13132, Laws 1915, § 13132; Muncey v. Sun 43 State Sav. Bank v. Hosmer, 95 Ins. Office, 109 Mich. 542. Mich. 100. § 36 Garnishment 863 cannot be entered against him until that time has ex- pired." Form of Demand for Trial of Statutory Issue (Title of court and cause.) Comes now the said plaintiff (or, garnishee) by J. K., his attorney, and demands a trial of the statutory issue between the said plaintiff and the said garnishee in the above entitled cause. Dated, etc. J. K., Attorney for Plaintiff (or Garnishee.) § 36. Trial of issue. In case judgment has been rendered in favor of the plaintiff in the principal action before the framing of the statutory issue, such issue may be brought on for trial in the same manner as a personal action.*® If the plaintiff has not recovered judgment in the prin- cipal action, then the statutory issue will stand for trial at the term at which the issue against the principal de- fendant is tried and finally disposed of, and, if the latter issue is determined against the plaintiff at any time thereafter, upon motion of the garnishee, judgment will be entered in his favor upon the statutory issue and for costs against the plaintiff, reciting the framing of such issue and the judgment in favor of the principal defend- 46 King V. Harrigan, 145 Mich. the disclosure, without regard as to 436. whether he has himself filed such After the ten days, where no de- a demand. Fearey v. Cummings, 41 mand for a trial is filed by the Mich. 376. garnishee, and the oral examination A demand for a trial of issues as shows the liability of the garnishee, against a garnishee is not necessary judgment may be rendered against where the disclosure is accepted as the garnishee on motion without true, and the only question is notice to him. Heald v. Montcalm whether the fund belongs to the Circuit Judge, 166 Mich. 297. principal defendant or to the inter- If the garnishee files a demand vener. Muncey v. Sun Ins. Office, for trial, plaintiff may take advan- 109 Mich. 542. tage thereof as well as the garnishee 46 Jud. Act, ch. 28, §12; Comp. and may show liability on the part Laws 1915, § 13133. of the garnishee not admitted in 864 Garnishment § 36 ant;*'' but, if the plaintiff obtains judgment against the principal defendant, and the latter does not within two days thereafter serve upon the garnishee notice of a mo- tion for a new trial or of his intention to remove the cause to the supreme court, the statutory issue will stand for trial at any time thereafter the same as in other cases." And whenever, in case of a recovery by the plaintiff against the principal defendant, he has removed the cause to the supreme court and the judgment has been affirmed, the statutory issue in garnishment will stand for trial at any time thereafter the same as in other cases." The garnishment statute contemplates speedy proceed- ings. Its necessary operation is to tie the hands of the garnishee and subject him to expense and annoyance. It cannot be regarded as a proceeding in the ordinary course, for it involves many consequences which could not other- wise arise in an ordinary suit either at law or in equity. If these proceedings could be delayed indefinitely, it might not only injure the garnishee, but also affect other persons who have claims on property in his hands. It is, therefore, the right of a garnishee to have the proceed- ings on the statutory issue disposed of as the statute pro- vides it shall be, and the cause cannot be kept open longer without either a regular continuance or the ex- press or implied consent of the garnishee.^" The gar- 47 Jud. Act, ch. 28, §12; Comp. which judgment in the principal Laws 1915, § 13133. suit was rendered does not require 48 Jud. Act, ch. 28, §13; Comp. its dismissal in the supreme court Laws 1915, § 13134. where there is nothing in the record 49 Jud. Act, ch. 28, §17; Comp. to show that it was not continued Laws 1915, § 13138. over the term by consent or on cause 50 Blake v. Hubbard, 45 Mich. 1. shown. Old Second Nat. Bank v. See also Crippen v. Fletcher, 56 Williams, 112 Mich. 564. Mich. 386; Old Second Nat. Bank But where garnishment proceed- V. Williams, 112 Mich. 564. ings were allowed to rest for two Failure to bring on the garnish- years, without a formal continuance ment issue for trial at the term at or any action equivalent to consent §37 Garnishment 865 nisliee may waive his right to have the statutory issue tried at the same term at which judgment is rendered against the principal defendant.^^ §37. Evidence. Upon the trial of the statutory issue, which is solely between the plaintiff and the garnishee,^^ the report or any other competent evidence supporting or controvert- ing it may be offered by the plaintiff, and the garnishee may offer any evidence not controverting the disclosure, or, in the discretion of the court, he may be allowed to show errors and mistakes in his disclosure, and may also show the amount of the judgment and costs against the principal defendant." Upon the trial of the issue, the plaintiff must show, by means of the garnishee's dis- closure and his answers to special interrogatories and upon personal examination, and by whatever other com- by the garnishee, they will be deemed to have been abandoned. Blake v. Hubbard, 45 Mich. 1. SlCluett V. Eosenthal, 100 Mich. 193 ; Meigs v. Weller, 90 Mich. 629. The garnishee waives his right to have the statutory issue tried at the same term judgment is rendered against the principal defendant by consenting that the case stand from day to day and not he taken up for trial before a day specified. Meigs V. Weller, 90 Mich. 629. So, under the old procedure, where plaintiff noticed the cause for trial at two succeeding terms but coun- termanded the notice, the act of the garnishee's attorney in apply- ing for and obtaining an attorney fee as costs of the continuance was a waiver of the delay. Kicly v. Bertrand, 67 Mich. 332. B2Keppel v. Moore, 66 Mich. 292, where it is held that subsequent attaching or garnishing creditors 1 Abbott— 55 should not be allowed to intervene as parties to the proceedings. See also Muneey v. Sun Ins. Office, 109 Mich. 542. 63Jud. Act, ch. 28, §14; Comp. Laws 1915, § 13135. In First Nat. Bank v. Mellen, 45 Mich. 413, a judgment which had been rendered against a garnishee who disclosed an indebtedness to the principal de- fendant was vacated by the court when it appeared, on motion to va- cate it, that the disclosure was in- correct in that the indebtedness dis- closed was to a third person instead of to the principal defendant. The written examination of the garnishee, signed by him, is evidence against him on the trial. Newell v. Blair, 7 Mich. 103. And the gar- nishee may show that a disclosure made by him, as taken down in the minutes and signed by the garnishee, was not the disclosure actiially made. Siithoiland v. Riirrill, 82 Mich. 13. 866 Garnishment § 37 petent evidence is necessary for the purpose, that, at the time of the making of the affidavit and of the service of the writ of garnishment upon the garnishee, the facts upon which it is sought to charge the garnishee existed as alleged in the affidavit. And," where the garnishee is to be charged for having in his possession property be- longing to the principal defendant or conveyed by him in fraud of creditors, there should be proof of the value of the propertj^" The fact of the recovery of judgment by the plaintiff against the principal defendant should be proved to show that a stage of the proceedings has been reached which entitles the plaintiff to proceed to judg- ment in the garnishee suit, and to fix the limit of re- covery against the garnishee. And, as the garnishee pro- ceeding is ancillary to the principal suit, and the pend- ency of the latter is therefore before the court, the fact of the recovery of judgment against the principal de- fendant may be shown by the judgment entry merely." VI. Claims of Third Persons § 38. Procedure in g"eneral. When the answer of a garnishee declares that some person other than the principal defendant claims all or a part of the indebtedness or property in his hands and specifies the name and residence of such claimant, the court may, on motion, order that such claimant be in- terpleaded as a defendant to the garnishee action and that notice thereof, setting forth the fact, with a copy of the order, in such form as the court directs, be served upon him. After such service has been made, the gar- nishee may pay or deliver the indebtedness or property 64 Bethel v. Linn, 63 Mich. 464; 56 Farrington v. Sexton, 43 Mich, Krementz v. Howard, 109 Mich. 454; Strong v. Hollon, 39 Mich. 466; Ferry v. Home Sav. Bank, 114 411. Mich. 321; Keppel v. Moore, 66 Mich. 292. § 38 Garnishment 867 to the clerk of the court and have a receipt therefor, which will be a complete discharge from all liability to any party for the amount so paid or the property so de- livered.^^ But the right of the plaintiff to try the title to an indebtedness or property disclosed by the garaishee and claimed by a person other than the principal defend- ant extends to any case where the disclosure or the an- swers to special interrogatories or upon personal exam- ination of the garnishee show such claim, and that right cannot be cut off by the failure of the garnishee to pay or deliver the money or property into court.^''' Upon such a disclosure, the garnishee has no further interest in the proceedings except to have the right as be- tween the claimant and the principal defendant deter- mined; and, where the disclosure is accepted as true except as to the claim of such third party, there is no necessity or propriety in demanding, as against the gar- nishee, a trial of this question.^^ Such notice may be served within or without the State of Michigan by any competent person and proof of serv- ice should be filed with the clerk of the court where the garnishee proceedings are commenced. If personal sei^^- ice cannot be had, then such service must be made as the court directs.*® 66Jud. Act, ch. 28, §28; Comp. 57 Marx v. Wayne Circuit Judge, Laws 1915, § 13149; Bryant v. Wil- 119 Mich. 19. cox, 137 Mich. 669; Keister v. Dono- 58 Muncey v. Sun Ins. Office, 109 van, 173 Mich. 328. Mich. 542. If a partnership is summoned in as 59 Jud. Act, ch. 28, § 28; Conip. a claimant and it is found that the Laws 1915, § 13149; Muncoy v. Sun fund belongs to it, the fund cannot Ins. Office, 109 Mich. 542; Pecard v. be awarded to plaintiff on the theory Home & Co., 91 Mich. 346; Stone v. that the partnership had not jtroj)- Dowling, 119 Mii-h. 476. crly registered under the statute, Faihire to give notice of apjdica- since the partnership was not volun- tion to defendant does not make or- tarily in court nor asking affirmative der "void." Marx v. Wayne Cir- relief. Robbins v. Vandermeiden, cuit Judge, 119 Mich. 19. 182 Mich. 674. 868 Garnishment § 39 § 39. Position of claimant when served. Upon service being made and proof of service filed in the cause, the claimant will be deemed a defendant to the garnishee action, and, within twenty days, must an- swer. In his answer, he may set forth his claim or any defense which the garnishee might have made. In case of default, judgment may be rendered and will conclude any claim upon the part of such defendant.^® § 40. Issue, trial and judgment. For the purpose of trying the title as between the plaintiff and any defendant or defendants, and between two or more defendants, so interpleaded, to the money, property or indebtedness paid or delivered by the gar- nishee to the clerk, the court may order an issue to be formed and may proceed to try it or direct the trial of it by a jury as in other cases. ®^ On such trial, the de- fendant so interpleaded has the burden of proof of es- tablishing his claim.^^ The issue may be in the form provided for the statutory issue between the plaintiff and garnishee already explained, and the judgment or judgments entered therein w^ill have the same force and effect as in suits between the same parties relative to the same subject-matter.^' The judgment against the claimant cannot take the forai of a money judgment, but is intended to be one which sliall be conclusive between the parties as to the claim, and, if against the claimant, shall extinguish his eojud. Act, ch. 28, §28; Comp. eijud. Act, ch. 28, §28; Comp. Lawa 1915, §13149. Laws 1915, §13149. Claimant becomes a party with 62 Jackson v. People 's Sav. Bank, same duties and responsibilities as 120 Mich. 702; Burnham v. Home its assignor or the principal defend- Ins. Co., 119 Mich. 588; Kahn v. ant. Citizens' Bank of Rudyard v. Minthorn, 178 Mich. 312. Chippewa Circuit Judge, 186 Mich. 63 Jud. Act, ch. 28, §28; Comp. 494. Laws 1915, § 13149. § 41 Garnishment 869 claim to the indebtedness or property disclosed by the garnishee. When the claim is so extinguished, the plaintiff is then in the same position that he would have been if no person other than the principal defendant had claimed the indebtedness or property, and must proceed to judgment against the garnishee defendant as in or- dinary cases.^* § 41. Importance of summoning in claimants. A plaintiff cannot subject indebtedness or property in which persons not parties to the garnishment pro- ceedings may have a substantial interest to the satis- faction of his claim against the principal defendant un- til such persons are in some manner brought before the court. When, therefore, the disclosure of the garnishee shows that other persons claim an interest in the prop- erty or indebtedness disclosed, it becomes incumbent upon the plaintiff to summon in such persons in order that they may have their day in court and be given an opportunity, if they can and will, to establish thoir claims. If the plaintiff does not do this, but leaves it doubtful whether, on account of such claims, the prop- erty or indebtedness disclosed is really such that he is entitled to appropriate it to the satisfaction of his de- mand against the principal defendant, he will not be allowed so to appropriate it. He must make out a clear and unequivocal case. He will not be permitted to sub- ject property or indebtedness so long as there is any- thing before the court which, while uncontroverted, in- dicates that some person not before the court has or may have some substantial interest which would be thereby affected.^^ 64 Pceard v. Home & Co., 91 Mich. 66 Kennedy v. McLcllan, 76 Mich. 346; Stone v. Dowling, 119 Mich. 598; Lyon v. Ballentinc, 63 Mich. 476. 97; Smith v. Holland, 81 Mich. 471. 870 Garnishment § 41 Form of Motion by Plaintiff for Order to Interplead Claimant of Prop- erty or Indebtedness Disclosed by Garnishee (Title of court and cause.) Comes now the said plaintiff, by J. KL, his attorney, and moves the court now here to grant an order that O. P., of the of , in said county, be interpleaded as a defendant to the above-entitled garnishee action, for the following reason, to wit: 1. It appears by the disclosure of the said garnishee now on file in this cause that, at the time of the service of the writ of garnishment herein, he, the said garnishee, had in his hands and under his custody and control certain goods and chattels belonging to the said C. D., principal defendant, and that he, the said garnishee, was indebted to the said C. D., and that the said O. P., who, said disclosure declares, resides in the of , aforesaid, claims the said property and indebtedness. This motion is based upon the record in this cause, and upon the affidavit of E. P., now on file herein. Dated, etc. J. K., Attorney for Plaintiff. Form of Order for Interpleading Claimant of Property or Indebtedness Disclosed by Garnishee (Title of court and cause.) It appearing from the disclosure of the garnishee in this cause that, at the time of the service upon him, the said garnishee, of the writ of garnish- ment herein, he, the said garnishee, had in his hands and under his custody and control the following goods and chattels: (Here describe the property,) belonging to the said C. D., and was indebted to the said C. D., and that said property and indebtedness are claimed by O. P., of ; on motion of J. K., attorney for plaintiff, it is ordered that the said O. P. be inter- pleaded as a defendant to the above-entitled garnishee action, and that notice hereof, with a copy of this order, be served upon the said O. P. without delay, to appear in this cause within twenty days after service upon him of notice of this order, and answer, setting forth his claims, if any he have, to the said property or the said indebtedness, or any part thereof, or his de- fense, if any, to this action. J. S., Circuit Judge. Form of Notice to Be Served Upon Claimant of Property or Indebtedness (Title of court and cause.) To O. P.: You will please to take notice that the disclosure of G. R., the above- named garnishee, now on file in this cause, declares that, at the time of the service upon him of the writ of garnishment herein, he, the said garnishee, § 42 Garnishment 871 had in his hands and under his custody and control the following goods and chattels: (Describe them,) belonging to the said C. D., principal de- fendant, and was indebted to the said C. D. in the sum of dollars; and, further, that you reside in the of , in said county (or as the case may be), and claim the said property and indebtedness (or as the case may be). You will also please to take notice that the annexed is a copy of an order this day entered in said cause, and that you are required, within twenty days after service of notice hereof and of a copy of said order upon you, to appear in this cause and answer, setting forth your claim, if any you have, to the said property and indebtedness, or any part thereof, or your defense, if any, to said action. Dated, etc. Yours, etc., J. K., Attorney for Plaintiff. Business address: , Mich. VII. Discontinuance or Dismissal § 42. In gceneral. Proceedings in garnishment being entirely ancillary to the principal suit, a failure of the plaintiff to recover judgment against the principal defendant, or a satis- faction in any manner of a judgment which he has ob- tained, will operate as a discontinuance of all proceed- ings against the garni shee,^^ but, where the principal defendants are a firm, a verdict discharging one of the partners because he is an infant does not release the gar- nishee, who would be fully protected as against the firm by paying a judgment against him, for the infant could not individually sue the garnishee for firm prop- 66Jud. Act, ch. 28, §41; Conip. tiff assigns his claim to a third per- Laws 1915, § 13162. son and the garnishee pays such If the garnishee, after being third person. Burnham v. Home served with the garnishment writ, Ins. Co., 119 Mich. 588. But the pays the debt or delivers the prop- garnishee cannot escape liability by erty to the principal defendant or to reason of a payment to one not en- a third person, he does so at his titled to the money. Sykes v. City peril. However, the garnishment Sav. Bank, 115 Midi. .'^21. proceedings are abated where plain- 872 Gaenishment § 42 erty.®' If a judgment recovered by the plaintiff is sub- sequently set aside, the garnishment proceedings fall to the ground therewith.^' And as, in all cases where the principal defendant does not appear in the cause within the time fixed by the statute and rules of court, it is incumbent upon the plaintiff to proceed and per- fect his judgment against the principal defendant as soon as he is entitled thereto, if he fails to do so, the court may, in its discretion, on motion of the garnishee or any one interested in the proceedings, render judg- ment discontinuing the garnishee proceedings, with costs against the plaintiff.^' So, if the plaintiff fails to bring in the principal defendant within the time al- lowed therefor, the court may, in its discretion, on the motion of the garnishee, dismiss the garnishment pro- ceedings, although at the time the plaintiff may be, by means of alias and pluries writs, using every effort to reach the principal defendant. The garnishee cannot, without his own consent or waiver, be subjected to any unreasonable delay on the part of the plaintiff, whether wilful or unavoidable, to prosecute his suit to a temii- nation.'" But garnishees are not discharged, nor are the proceedings against them discontinued, by any change in the record of the principal case resulting from the death of a joint defendant.'''^ The death of the garnishee abates the proceeding.'''^ § 43. On giving bond. By statute,'''^ the principal defendant in any action in which process of garnishment has been issued may, at 67 Bethel v. Chipman, 57 Mich. 70 Noble v. Bourke, 44 Mich. 193 ; 379. Blake v. Hubbard, 45 Mich. 1. 68Withington v. Southworth, 26 71 Bethel v. Chipman, 57 Mich. Mich. 381; Segar v. Muskegon 379. Shingle & Lumber Co., 81 Mich. 344; 72 White v. Ledyard, 48 Mich. Iron Cliffs Co. v. Lahais, 52 Mich. 264. 394. 73Jud. Act, ch. 28, §44; Comp. 69Jud. Act, ch. 28, §45; Comp. Laws 1915, §13165; People v. Laws 1915, § 13166. Wayne Circuit Judge, 26 Mich. 186. § 43 Gaknishment 873 any time after service of such process and previous to the rendering of judgment thereon, file with the clerk of the court his bond, with at least two sufficient sure- ties, to the plaintiff as obligee, in a penal sum equal to double the amount of the claim of the plaintiff as sworn to in the affidavit filed for the writ of garnishment, with condition to pay any judgment obtained against the de- fendant or defendants in the action and abide the order of the court therein. This bond and the sureties must be previously ap- proved by the judge of the court or circuit court com- missioner, on a notice of at least twenty-four hours to the plaintiff or his attorney of the time and place of presenting the bond for approval; and, if neither the plaintiff nor his attorney resides in the city, village or township where the bond is to be presented for approval, such notice must be a notice of at least four days, and at least one day must be added for each additional one hundred miles or fraction thereof of distance. The judge or commissioner is required to examine the de- fendant and sureties on oath as to their sufficiency and responsibility, and may take such other evidence in re- lation thereto, in his discretion, as either party may of- fer. On filing the bond, so approved, with the clerk of the court, the proceedings in garnishment will be thereby discontinued, and the costs of the proceedings will abide the event of the principal suit. If the plaintiff recovers judgment against the principal defendant, on applica- tion to the court, execution thereon may be ordered to issue against the sureties in the bond as well as the de- fendant. When proceedings in garnishment are discontinued by reason of the filing of such bond, it is the duty of the clerk forthwith to notify the attorney for the plain- tiff of the filing of the bond, and it is the duty of such 874 Garnishment § 43 attorney, within twenty-four hours after the receipt of such notice from the clerk, to give notice in writing to the persons against whom process of garnishment has been issued that the proceedings in garnishment have been discontinued. This notice should be served upon the attorney for the garnishee, if he has appeared by attorney, but otherwise upon the garnishee, and may be served in the same manner as other notices are re- quired to be served.'* Form of Bond to Stay Proceedings Know all men by these presents, that we, C. D., as principal, and E. F. and G. H., as sureties, are held and firmly bound unto the said A. B. in the sum of dollars (a sum equal to double the amount of the claim of the plaintiff as sworn to in the affidavit for the writ of garnishment), lawful money, for the payment of which, well and truly to be made, we bind ourselves, our, and each of our, heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , in the year one thousand nine hundred The condition of this obligation is such that, whereas the said A. B. has lately prosecuted the said C. D., by writ of summons (or, by writ of attachment, capias ad respondendum, or declaration), issued out of the circuit court for the county of , and has caused to be issued out of said court a writ of garnishment, whereby G. R. was duly summoned to answer the said A. B., as garnishee of the above-bounden 0. D. ; And whereas the amount of the plaintiff 's claim against the said C. D., as sworn to in the affidavit for said writ of garnishment, is the sum of , dollars : Now, if the said C. D. shall pay any judgment obtained against him by the said A. B. in said action, and abide the order of the court therein, then this obligation is to be void; otherwise to remain in full force and effect. (Add justification.) [Signatures.] Form of Notice to Plaintiff of Time and Place for Approval of Sureties for Bond (Title of court and cause.) Sir:— You will please to take notice that the annexed is a copy of a bond proposed to be filed with the clerk of said court, and that the said bond will 74Jud. Act, ch. 28, §44; Comp. Laws 1915, § 13165. 1 44 Garnishment 875 be presented, for approval of the sureties therein named, to the Honorable J. S., circuit judge, at his chambers, in the court house, in the of , in said county. Dated, etc. Yours, etc., K. L., Defendant's Attorney. To J. K., Attorney for Plaintiff. Form of Notice to Plaintiff of the Filing of Bond to Stay Proceedings (Title of court and cause.) Sir:— You are hereby notified that the above-named defendant, C. D., has filed in my office a bond to the above-named A. B., plaintiff, in the sum of dollars, v?ith J. K. and H. M. as sureties, to stay the proceedings in this cause against the said garnishee, which said bond -was, previously to the filing thereof, as aforesaid, duly approved by the Honorable J. S., circuit judge. Dated, etc. Yours, etc., W. B., Caerk, * To J. K., Plaintiff's Attorney. Form of Notice to Garnishee of Discontinuance Upon Bond Filed (Title of court and cause.) Sir:— You are hereby notified that the above named C. D., principal defendant, has filed a bond in the office of the clerk of said court, under the provi- sions of the statute in such case made and provided, and that, in accord- an(^e therewith, the proceedings in garnishment in this suit have been discontinued. Dated, etc. Yours, etc., J. K., Plaintiff's Attorney. To S. K., Attorney for Garnishee. VIII. Delivery of Property to Commissioner or Receiver § 44. Written promises for payment of money or deliv- ery of property. If, upon the disclosure or the trial of the statutory issue, hereinafter explained, it appears that the gar- nishee had in his possession, at the time of the service 876 Garnishment § 44 of the process upon liim or thereafter, any promissory note, bill of exchange, order, receipt, bond or other written promise for the payment of money or the de- livery of property belonging to the principal defendant, the garnishee must deliver it to the commissioner or other person appointed by the judge or commissioner as a receiver, if by him or the court so ordered; and it is his duty, under the direction of the court, to collect and apply the proceeds upon any execution in favor of the plaintiff and against the garnishee and to pay him the surplus, if any."^^ This practice is not applicable to reach a note or other promise for the payment of money which belongs jointly to the defendant and a third per- son.''' § 45. Delivery of personal property subject to lien. If, upon the disclosure or the trial of the statutory issue, it appears that the garnishee had in his posses- sion, at the time of the service of the writ or thereafter, any personal property of the principal defendant sub- ject to a pledge, lien or mortgage in favor of the gar- nishee and that the property has not been sold by the garnishee, it is the duty of the garnishee to deliver it to the commissioner or receiver, if the commissioner or judge so order, to be by him disposed of under the direc- tion of the court, if a greater amount than the incum- brance can be obtained therefor, the balance, after pay- ing the amount of the incumbrance, to be applied upon any execution in favor of the plaintiff against the garnishee, or the plaintiff may be allowed by like order -to pay or tender the amount due the garnishee ; '' but the receiver or commissioner cannot properly be given greater powers over property in the hands of a mortga- 76Jud. Act, ch. 28, §7; Comp. 77 Jud. Act, ch. 28, §8; Comp. Laws 1915, § 13128. Laws 1915, § 13129. 76 Kennedy v. McLellan, 76 Mich. 598. § 46 Garnishment 877 gee or other lien-holder than a sheriff would have under an execution. It is proper to empower the receiver or commissioner to examine the property and make an in- ventory of it for the purposes of an intelligent sale, but the contract rights of the mortgagee or other lien-holder cannot be infringed in any material way, and the sale, if made by the commissioner or receiver without first paying off the incumbrance, must be of the property in gross, subject to the mortgage or other lien, and all of the proceedings must be at the expense, not of the mort- gagee or other lien-holder, but of the fund that may be realized on the sale.'' § 46. Effect of refusal to obey order. If, in either of the cases specified in the last two pre- ceding sections, the garnishee refuses to comply with the order of the judge or commissioner for delivering, the garnishee may be held liable for the amount of the note, order, choses in action or personal property upon the report of the commissioner of such refusal and amount, and judgment may be rendered and execution issued accordingly, as upon default.'* To such report, the judge, commissioner or receiver is required to add a statement of any order made by him and the deliver- ing to him of any property or thing, with a description and valuation thereof, to be ascertained by an appraise- ment or inquiry upon oath or in such mode as the com- missioner or judge direct. '° 78 Smith v. Menominee Circuit the mortgagee, there is no substan- Judge, 53 Mich. 560; Daggett, Bas- tial reason why it may not be sett & Hills Co. V. McClintock, 56 granted. Cohnen v. Sweenie, 105 Mich. 51. Mich. 643. The statute contemplates that sur- 79 Jud. Act, ch. 28, § 9 ; Comp. plus in the hands of a lienor may be Laws 1915, § 13130. reached by process in garnishment, 80 Jud. Act, eh. 28, § 10 ; Comp. and if, in the discretion of the court. Laws 1915, § 13131. justice requires leave to garnish a On special motion and cause receiver holding at the instance of shown, any party may have an or- 878 Garnishment § 47 IX. Procedure Where Principal Defendant a Non-Resi- dent or Foreign Corporation § 47. Statutory provisions. If the phiintiff, in addition to the allegations required to be contained in the affidavit for the writ of garnish- ment, sets forth in such affidavit that the principal de- fendant is a non-resident of the county or state where the suit is commenced, or that one of the principal de- fendants is such a non-resident, or that the principal defendant is a foreign coi-poration created in any juris- diction (naming it), the principal writ or declaration and the affidavit may be filed of the day of issue, and the writ of garnishment may be served as in ordinary cases. Within sixty days after such service, the plaintiff must cause to be delivered to such non-resident defendant or to the president, secretary, cashier or treasurer of such foreign corporation residing out of this state, or upon any officer, clerk, or agent residing or to be found within this state, a true copy of the principal writ or declara- tion, affidavit and writ of garnishment, with return of service thereon, and with a written or printed notice at- tached, signed by the plaintiff or his attorney, stating that such non-resident defendant or foreign corporation is notified to appear and defend within thirty days after such service or default will be entered and judgment taken; and, upon filing an affidavit of such service, further proceedings to judgment may be had as in or- dinary personal actions. If there are several principal defendants some of whom reside in this state, notice must be served on the resident defendants of the time and manner of giving notice to the non-resident defendants."^ der on the commissioner for an of the cause. Jud. Act, ch. 28, § 43 ; amendment of his report or for a Comp. Laws 1915, § 13164. further report or any other order on 81 Jud. Act, ch. 28, §29; Comp. the commissioner to which he is en- Laws 1915, § 13150. titled at any time in the progress The next section of the act pro- § 47 Gaenishment 879 Unless a personal service of the declaration or process by which the principal suit was commenced is made upon the principal defendant, or he enters his appearance therein, the service by delivering to him a true copy of the principal writ or declaration, affidavit and writ of garnishment with return of service thereon, and with the notice above specified, within sixty days after the service of the writ of garnishment on the garnishee defendant, is absolutely prerequisite to the acquirement by the court of jurisdiction over either the principal defendant or the garnishee. ^^ In the absence of such service, the gar- nishee may have the garnishment proceedings dismissed on motion to the court. If, however, he does not move to dismiss, but, disregarding the absence of service on the principal defendant within the sixty days, permits the proceedings to go on, if, after such time, a valid per- sonal service is obtained upon the principal defendant of the declaration or process by which the principal suit was commenced, or the principal defendant appears therein, a judgment rendered against the garnishee will not be invalid by reason of the failure to obtain service on the principal defendant within such sixty days.*^ This is on the theory that the principal suit will sup]iort the vides that whenever the action shall The proceedings are substantially be commenced by writ of attachment in rem and are justified by the prin- against a non-resident defendant or ciples underlying such proceedings, foreign corporation, and a writ of Moore v, Wayne Circuit Judge, 55 garnishment shall issue, the same Mich. 84. proceedings shall be had in respect Failure to describe defendant as to personal service upon the prin- a foreign corporation in the sum- cipal defendant, as are specified in mons is immaterial. Williams v. the previous section, that is, personal International Grain & Stock Board, service of notice of the proceedings. 99 Mich. 80. The primary object of proceed- Service on the president of the ings under this statute is not to ob- corporation while in the state is tain a personal judgment against good. National Coal Co. v. Cincin- the principal defendant, but to nati, etc., Min. Co., 168 Mich. 195. reach the res in the hands of a third 82 Axtcll v. Gibbs, 52 Mich. 640. person. Newland v. Wayne Circuit 83 Coe v. Hinkloy, 109 Mich. 608. Judge, 85 Mich. 151. 880 Gaknishment § 47 garnishment proceedings, even though no service has been obtained upon the principal defendant, subject, however, to the necessity of obtaining such service.^* Foiin of Notice to Be Served Upon Non-Resident or Foreign Corpora- tion, Principal Defendant (Title of court and cause.) To the Above-Named Principal Defendant: You will please to take notice that annexed hereto are copies of the summons (or, writ of attachment, or declaration, as the case may be) by which this suit was commenced, and of the affidavit for writ of garnish- Iment, and of the writ of garnishment herein, with the return of service thereon; and that you are required to appear and defend the above- entitled suit within thirty days after the service of this notice upon you, or your default will be entered and judgment taken herein, according to the statute in such case made and provided. Dated, etc. Yours, etc., J. K., Plaintiff's Attorney. § 48. When and what judgment may be entered against non-resident principal defendant. Besides the service by delivering to the principal de- fendant a true copy of the principal writ or declaration, affidavit and writ of garnishment with the return of service thereon and the notice mentioned in the last pre- ceding section, it is necessary, in order to give the court jurisdiction to render a judgment against the principal defendant where he does not appear in the cause, that some sort of service as to him should be made either upon the person or upon his property or credits. The statute which authorizes the service of notice out of the state presupposes that some sort of service has been made in the county in which the suit was commenced, and the notice is required for the purpose of fairness and to pre- clude secret and collusive proceedings.^^ Where service upon the garnishee has been obtained within the county 84 McDonald v. Alanson Mfg. Co., 85 People v. Wayne Circuit Judge, 107 Mich. 10. 26 Mich. 100. §49 Gaenishment 881 and the notice has been given to the principal defendant, the court acquires jurisdiction to render judgment by default against the principal defendant;'^ not, however, a personal judgment, but to subject the indebtedness or property in the hands of the garnishee to the payment of the plaintiff's demand.*'' The service of a writ of gar- nishment within the county, followed by a discontinu- ance of the garnishment proceedings, will not be sufficient to give the court jurisdiction, even though other writs of garnishment have been served in other counties of the state,®* for, although the statute ®^ contemplates the issue of writs of garnishment to different counties than that in which the principal suit is pending, this is only where there is jurisdiction of the principal suit in the county in which it is planted, obtained either by personal service of process or attachment of property or credits within that county.®" Although no judgment can be had against the principal defendant when he is not served within the county and does not voluntarily appear, unless such facts are established as will be sufficient to charge the gar- nishee, yet whether the existence of such facts is shown by the disclosure of the garnishee or not is immaterial. If their existence is not so shown, the question of their ex- istence is a proper subject of inquiry upon a statutory issue between the plaintiff and the garnishee.®^ X. Judgment, Execution and Costs § 49. Judgment when garnishee is found liable to prin- cipal defendant. If, by the verdict on the statutory issue, the garnishee be found liable as such for an amount equal to or greater 86 Moore V. Speed, 55 Mich. 84. 89 Jud. Act, ch. 28, §36; Comp. 87 Newland v. Wayne Circuit Laws 1915, § 13157. Judge, 85 Mich. 151; Serviss v. 90 Stern v. Frazer, 105 Mich. 685. Washtenaw Circuit Judge, 116 Mich. 91 Serviss v. Washtenaw Circuit 101. Judge, 116 Mich. 101; Nachtegall 88 Stern v. Frazer, 105 Mich. 685. v. Rcilley, 165 Mich. 347, 1 Abbott— 56 882 Gaknishment § 49 than the judgment and costs against the principal de- fendant, judgment can pass against the garnishee only for the latter amount, but in other cases it will pass for the amount of liability ascertained by the verdict; ®^ but, when the garnishee is found indebted to the principal defendant, and the time of payment has not arrived, no judgment can pass until after the time of maturity, which is required in such case to be named in the finding or verdict.®' § 50. Judgment against garnishee in case of no trial of statutory issue. If no trial of the statutory issue be demanded, then, after the expiration of the time limited for making such demand, judgment may be rendered against the garnishee defendant on plaintiff's motion to the court at any time after final judgment against the defendant in the prin- cipal cause, without further notice to the garnishee.** The disclosure and answers to special interrogatories and upon personal examination of the garnishee must, for the purpose of a motion for judgment against the garnishee, be taken as true, and no judgment will be entered against the garnishee unless a clear and unqualified liability has been established.*'' § 51. Judgment and execution when garnishee is liable for goods and chattels of defendant. When a garnishee is chargeable by reason of any goods or chattels, other than money, which he holds or is bound 92 Jud. Act, ch. 28, §15; Comp. This right to judgment on motion Laws 1915, § 13136. without notice seems to be limited 98 Jud. Act, ch. 28, § 18; Comp. to the cases where the disclosure ad- Lawa 1915, § 13139. mits a liability of the character 94iJud. Act, ch. 28, §11; Comp. charged in the affidavit, and such a Laws 1915, §13132; Heald v. Mont- judgment on motion cannot go be- calm Circuit Judge, 166 Mich. 297; yond the plain admissions in the dis- King V. Harrigan, 145 Mich. 436. closure. To warrant judgment 96 Smith v. Holland, 81 Mich. 471. thereon, a garnishee 's disclosure § 51 Garnishment 883 to deliver to the principal defendant, not subject to any lien, judgment may be rendered and execution issued against the garnishee for so much thereof as may be necessary to satisfy the same, and he is required to make delivery to the officer, whose duty it is thereupon to sell and apply and account for the proceeds as usual in or- dinary executions.®^ If the garnishee be found to be un- der contract for the delivery of any specific articles to the principal defendant or to make payment therein, judgment will be rendered and execution issued against the garnishee for so much thereof as will be necessary to satisfy the execution, and the articles must thereupon be paid and delivered to the plaintiff according to the contract,®''' but, when specific goods are to be delivered to the principal defendant at a certain time and place, the garnishee cannot be compelled by reason of the garnishment to deliver them at any other time and place, but may deliver as provided for in the contract, unless previously adjudged liable as garnishee.®' The plain- tiff will be deemed the agent of the principal defendant for the purpose of recovering the goods, chattels and articles so contracted to be delivered to the principal defendant, and may levy his execution thereon to the amount of his debt and costs. If no division of the goods, chattels or articles can be made, the whole may be sold. The property unsold and the surplus proceeds of the must be explicit in its admission, the possession of the garnishee at and not too ambiguous to show the time of the service of the writ whether any indebtedness exists or, of garnishment, and also what was if so, to whom. Weirch v. Scribner, the value of such property. Bethel 44 Mich. 73; Spears v. Chapman, 43 v. Linn, 63 Mich. 464. Mich. 541. 97Jud. Act, eh. 28, §20; Comp. 96Jud. Act, ch. 28, §19; Comp. Laws 1915, §13141. Laws 1915, §13140; Bethel v. Linn, 98 Jud. Act, ch. 28, §21; Comp. 63 Mich. 464. Laws 1915, §13142; Hamilton v. The jury must find what property Rogers, 67 Mich. 135. of the principal defendant was in 884 Garnishment § 51 property sold must be delivered by the officer to the prin- cipal defendant on demand.®* If a person adjudged liable as garnishee for any goods, chattels or other property whatever refuses to expose the same so that the plaintiff may levy his execution thereon, the court will, on return thereof made by the officer, grant a rule upon the garnishee to show cause why execution should not issue against him, his own goods and estate, and, upon due service of such rule, and no sufficient cause being shown to the contrary, execu- tion may be issued against him for sucli sum as the court may adjudge.^ § 52. Judgment when property has been conveyed to garnishee in fraud of creditors. If a garnishee has in his possession any property of the principal defendant which he holds by a conveyance or title which is void as to the creditors of the defendant, or has received and disposed of any such property, he may be adjudged liable as garnishee on account of such property and for its value, although the principal de- Tendant could not have maintained an action therefor against him.^ It is unnecessary to show that the fraud in the conveyance or title affected any creditor other than the plaintiff.' § 53. Effect of judgment against garnishee. A judgment against any person as a garnishee will acquit and discharge him and his executors or adminis- trators from all demands by the principal defendant, his executors or administrators for all moneys or property paid or delivered by the garnishee by force of such pay- ment; and, if any garnishee is sued therefor or for any- 99Jud. Act, ch. 28, §22; Comp. 8 Jud. Act, eh. 28, §32; Comp Laws 1915, § 13143. Laws 1915, § 131.53. 1 .Jud. Act, ch. 28, § 23 ; Comp. 8 Gumberg v. Truesch, 103 Mich Laws 1915, § 13144. 543. 1 55 Garnishment 885 thing done by virtue of the statute regulating garnish- ment proceedings, he may, under the general issue, give the special matter in evidence.* No judgment can be rendered against a garnishee unless it will discharge him from liability to the principal defendant to the extent of the judgment.* § 54. Setting aside or removal to supreme court of judg- ments. Any judgment or final order in a suit in garnishment may be set aside or removed to the supreme court in like manner and with the same effect as in other personal actions.® §55. Costs. If, on the trial of the statutory issue, judgment is ren- dered against the garnishee for a greater amount or for other property than he would have been chargeable for on his disclosure, it will carry full costs; otherwise, the garnishee will recover costs, and execution may issue as in ordinary cases.' If the garnishee appears and makes disclosure, he will be allowed his costs for trial and at- tendance as in case of a witness, and, in case an attor- ney is employed to prepare the disclosure, such further sum as the court thinks reasonable for his counsel fees and other necessary expenses.^ In case the garnishee is adjudged liable, his costs may be taxed and deducted 4Jud. Act, ch. 28, § 35; Comp. lanaw Circuit Judge, 107 Mich. 332. Laws 1915, § 13156. 8 Jud. Act, ch. 28, §39; Comp. 6 Hamilton v. Rogers, 67 Mich. Laws 1915, §13160. 135. Where the court has fixed the 6 Jud. Act, ch. 28, §42; Comp. costs at an amount which he deems Laws 1915, § 13163; Eecor v. St. reasonable, the supreme court will Clair Circuit Judge, 139 Mich. 156; not interfere. United States Life Gorman v. Calhoun Circuit Judge, Ins. Co. v. Muskegon Circuit Judge, 140 Mich. 230. 117 Mich. 319, whore an attorney fee 7 Jud. Act, ch. 28, §16; Comp. of fifteen dollars allowed to the gar- Laws 1915, § 13137; Jackson v. Lee- nishee was held reasonable. 886 Garnishment § 55 from the property or money in his hands, and he will be chargeable only for the balance. If the garnishee be discharged, whether by reason of his having no money or property, or because the plaintiff does not recover judgment against the principal defendant, or for any other cause, his costs and charges must be paid by the plaintiff, and the garnishee may have them taxed and judgment and execution therefor.® § 56. Executions. Execution may be issued by the court against the prin- cipal defendant for any balance due the plaintiff on his judgment against such defendant beyond the amount for which the garnishee is found liable, and further execu- tions may be issued from time to time against the prin- cipal defendant or any garnishee as the court may order, until the satisfaction of the judgment in full.^" Form of Execution Against a Gamisliee In. the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting: We command you that of the goods and chattels of E. F. in your county you cause to be made dollars, which A. B., plaintiff, lately in our 'circuit court for the county of , recovered against the said E. F. as garnishee of C. D., the principal defendant, in a certain personal action brought by the said A. B. against the said C. D., in which the said E. F. was duly summoned as garnishee of the said C. D., as aforesaid, whereof the said garnishee is convicted, as appears to us of record; and if suf- ficient goods and chattels of the said garnishee cannot be found within your county, that then you cause the said sum of money to be made of the real estate of the said garnishee within your county; and have you that money before our said circuit court at , on , to render unto the said plaintiff in satisfaction of the judgment aforesaid. Witness, etc. 8Jud. Act, ch. 28, §39; Comp. Lenawee Circuit Judge, 107 Mich. Laws 1915, §13160; Strong v. Hoi- 267. Ion, 39 Mich. 411; Johnson v. Del- 10 Jud. Act, ch. 28, §34; Comp. bridge, 35 Mich. 436; Wolcott v. Laws 1915, § 13155. ^ 1 Guardian ad Litem oe Next Friend 887 GENERAL ASSUMPSIT See Assumpsit. GENERAL ISSUE See Plkading. GOOD FAITH See Ejkctment. GOODS SOLD AND DELIVERED See Assumpsit; Pleading. GOVERNOR See Mandamus. GRAIN See Replevin (description of in writ). GUARDIAN AD LITEM OR NEXT FRIEND § 1. For infant or mentally incompetent plaintiff. § 2. Appointment. § 3. Bond of next friend. § 4. When and where order of appointment to be filed. § 5. Guardian ad litem for defendant. § 6. Appointment. § 7. Liability. § 8. Procedure in case of insanity pendente lite. § 9. Effect of failure to give security. Cross-Sefereiices: Security for Costs; Costs; Trial (next friend as interpreter). § 1. For infant or mentally incompetent plaintiff. When an infant or a person who is insane or otherwise mentally incompetent has a right of action, he is entitled to maintain an action thereon.^ But no rule is clearer than that an infant cannot empower an agent or attor- ney to act for him,2 and, not having the power to appoint an attorney, an infant must, according to the former IJud. Act, ch. 12, §28; Comp. 2 Armitage v. Widoe, 36 Mich. Laws 1915, § 12379; Bloomingdale v. 124. Chittenden, 74 Mich. 698. Guardian ad Litem or Next Friend § 1 English practice, as well as that obtaining in this state, sue by a prochein ami or next friend.^ Another reason for requiring an infant's suit to be prosecuted by a next friend is that the defendant may have some one respon- sible to him for costs,* and accordingly the statute has made no such requirement when an infant sues, not alone, but with an adult plaintiff. Still there must be, even in such cases, some competent party representing on the record the interests of the infant plaintiff, and the courts seem to have recognized no exception to this rule but in the case of joint executors, some of whom are under age and others not. As the authority is joint in such a case, the adult executors represent all.^ The statute in this state requiring the appointment of a next friend in the case of a suit brought by an infant or a person who is insane or otherwise mentally incompetent provides that, before the declaration is filed or any process issued in the name of such a person, who is a sole plaintiff, a com- petent and responsible person shall be appointed by the circuit judge or a circuit court commissioner to appear as next friend for him, who shall be responsible for the costs of the suit. But if the plaintiff has a guardian of his estate, it is competent for the guardian to bring the action.^ The statute does not mean that the next friend shall be financially responsible to pay the costs, but that he shall be answerable for or liable to respond; that is, that he may be held for the costs the same as though he were the party in interest in the suit.' He has authority to 8 Haines v. Oatman, 2 Doug. 430. Next friend may first be appointed 4 Sick V. Michigan Aid Ass 'n, 49 on appeal in the circuit court. Mc- Mich. 50. Donald v. Weir, 76 Mich. 243. 6 Sick V. Michigan Aid Ass 'n, 49 1 Rabidon v. Muskegon Circuit Mich. 50. JiHlge, 110 Mich. 297. ejud. Act, ch. 12, §28; Comp. Laws 1915, § 12379; Stoner v. Eiggs, 128 Mich. 129. § 1 Guardian ad Litem or Next Friend 889 receive payment of the judgment and to satisfy it,® pro- vided he has given security to the plaintiff as required by law, but not otherwise.^ He cannot admit away the rights of the infant or other incompetent.^" Where the infant becomes of age before the trial, he may himself prosecute the action, and it is proper to formally amend the record to show that the suit is prose- cuted by plaintiff himself, either by striking out the name of the next friend or by a suggestion of record that plain- tiff has attained his full age; but failure to make such an amendment is not ground for reversal unless the fail- ure is in some way prejudicial to defendant.^^ While the projier course is to entitle a cause in which an infant is the real plaintiff in the name of the infant by his next friend, yet the proceedings are not invalidated by prose- cuting the action in the name of the next friend.^^ After issue joined, a declaration in the name of a guardian may be amended by making the ward the plaintiff, suing in the name of the guardian as his next friend, where the issue is in no way changed.^' Where a judgment is en- tered in the name of the next friend, without showing the capacity in which he sues, it may be amended by in- serting the infant's name." If the plaintiff fails to procure the appointment of a next friend, the defendant may raise the objection by a motion to dismiss" or he may waive it; and he does waive it by going to trial on the merits. ^^ If the defend- ant raises the objection that the appointment of a next 8 Baker v. Pere Marquette K. Co., 13 Morford v. Dieffenbaeker, 54 142 Mich. 497. Mich. 593. 9 Cir. Ct. Eule 63. 14 Kees v. Maxim, 99 Mich. 493. 10 Burt V. McBain, 29 Mich. 260, 16 Haines v. Oatnian, 2 Doug. 430; 265, agree to discontinue and dis- Blood v. Harrington, 8 Pick. (Mass.) miss action for slander. 552; Greenman v. Cohee, 61 Ind. 11 Bernard v. Pittsburg Coal Co., 201 ; Lumpkins v. Justice, 1 Ind. 557. 137 Mich. 279. 16 Follows v. Niver, 18 Wend. (N. 12 Kees V. Maxim, 99 Mich. 493. Y.) 564; Smith v. Allen, 16 Ind. 316. 890 Guardian ad Litem or Next Friend § 1 friend for the plaintiff has been omitted, the court may- allow an appointment nunc pro tunc and an amendment accordingly, and, if not objected to, the defect will be cured by the verdict or judgment.^'' § 2. Appointment. The procedure for the appointment of a next friend in this state is prescribed by statute, and is somewhat different from that of the common law, which, before any statute on the subject, was followed in Michigan.^* By the present practice, the appointment must be made, in the case of a suit intended to be brought in the cir- cuit court, by any judge thereof or circuit court commis- sioner, on the petition of the infant, if he be over the age of fourteen years, and in all other cases on the petition of his next of kin or other relative or friend whom the officer to whom the petition is presented deems a proper person to make it, and upon the written consent of the person proposed to be next friend, duly acknowledged before any officer authorized by law to take acknowledg- ments of deeds. ^^ Form of Commencement of Declaration by an Infant The Circuit Court for the County of (Title of cause, if suit not eommeneed by declaration,) County of , ss. A. B., by J. K., who is admitted by the court here to prosecute for the said A. B., who is an infant under the age of twenty-one years, as the next friend of the said A. B., plaintiff, in this suit, complains of C. D., defendant herein, etc. Form of Petition by Infant Over Fourteen Years of Age for Appoint- ment of Next Friend To the Circuit Court for the County of (or. Circuit Court Commis- sioner of the County of ) : The petition of A. B., of , respectfully shows: 1. That he is an infant of the age of years. 17 Sick V. Michigan Aid Ass'n, 49 18 Haines v, Oatman, 2 Doug. 430. Mich. 50; Schemerhorn V. Jenkins, 7 19 ,Tud. Act, ch. 12, §29; Comp. Johns. (N. Y.) 373; Smith v. Car- Laws 1915, §12380. ney, 127 Mass. 179. § 3 Guardian ad Litem or Next Friend 891 2. That he has a cause of action against C. D. for (briefly state what) upon which he desires to commence a suit in the circuit court for the county of against the said C. D., claiming therein a judgment for dollars. 3. That E. F., of , is a suitable and proper person to appear as next friend to the said A. B. in said suit. Wherefore, your petitioner prays that the said E. F. may be appointed his next friend to bring said suit for him. Dated, etc. A. B. (Consent of Person Proposed as Next Friend.) I, E. F., of , do hereby consent to act as next friend to the above mentioned A. B. in the proposed suit mentioned in the foregoing petition. (Add acknowledgment.) § 3. Bond of next friend. Before any person will be appointed next friend for an infant or incompetent in any suit to recover any debt or damages, lie must, if required by the officer to whom application for the appointment is made, execute a bond to the proposed plaintiff in a penalty at least double the amount claimed in the suit, with such sureties as shall be approved by such officer, conditioned that such next friend shall duly account to the plaintiff for all moneys which may be recovered in the suit.^** The bond must be delivered to the officer before the appointment is made, and be filed by him in the office of the judge of probate of the county in which the infant resides.^^ Form of Bond by Next Friend Know all men by these presents, that we, E. F. and G. H., are held and firmly bound unto A. B. in the sum of dollars (penalty at least double the amount claimed in the suit), lawful money, to be paid to the said A. B., his executors and administrators, for which payment well and truly to be made we bind ourselves, our, and each of our, heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , in the year one thousand nine hundred The condition of this obligation is such that, if the above-bounden E. F. 20Jud. Act, ch. 12, §29; Comp. 21 .Jud. Act, ch. 32, §29; Comp. Laws 1915, § 12380. Laws 1915, § 12380. 892 Guardian ad Litem or Next Friend § 3 shall duly account to tho said A. B. for all moneys which may be recovered in a suit now to be commenced in the circuit court for the county of , by the said A. B., as plaintiff, and against C. D., as defendant, wherein the said E. F. has been duly appointed to appear as next friend for said A. B., then this obligation is to be void; otherwise to remain in full force and effect. E. F. [L. S.] G. H. [L. S.] State of Michigan, ) ^^ County of f E. F. and G. H., sureties of the principal named in the foregoing bond, being duly sworn, each for himself deposes and says that he is worth in unincumbered property, not exempt from execution under the laws of this state, the sum of dollars, after payment of all just debts, claims and liabilities. E. F. G. H. Subscribed, etc. § 4. When and where order of appointment to be filed. The order for the appointment of a next friend must be fortliwitli filed in the office of the clerk of the court in which the action is to be begun.''^ § 5. Guardian ad litem for defendant. After the service of process, or the service of declara- tion if the suit be commenced by declaration, against a defendant who is an infant or is insane or otherwise men- tally incompetent, the suit is to be defended by the guar- dian of the estate of the defendant if there be one, but, if there be no such guardian, then the suit cannot be any further prosecuted until a guardian ad litem for such defendant has been appointed.^^ Failure to appoint a 22 Jud. Act, ch. 12, §28; Comp. There is no distinction between Laws 1915, § 12379. sane and insane persons in proceed- 23 Jud. Act, ch. 12, §30; Comp. ings at law as to the method of ob- Laws 1915, § 12381. taining jurisdiction of their persons. Same rule applicable to actions IngersoU v. Harrison, 48 Mich. 234; relating to real property. Jud. Act, Stoncr v. Riggs, 128 Mich. 129; Er- ch. 33, §8; Comp. Laws 1915, win v. Fay, 165 Mich. 503. § 13365. That judgment against insane de- § 6 Guardian ad Litem or Next Friend 893 guardian ad litem renders a judgment against an infant voidable but not void; but where several years have elapsed since the judgment its vacation may be barred by laches.^* Failure to have a guardian ad litem ap- pointed on taking an appeal from the probate to the cir- cuit court is a mere irregularity which may be cured by the appointment of a guardian ad litem in the circuit court.^^ The person appointed guardian ad litem should be a person disinterested in the subject-matter of the suit, or at least not interested adversely to the interests of the infant. The guardian is intended for the benefit and pro- tection of the infant, and the whole object of requiring a guardian at all would be perverted by appointing a person adversely interested.^^ Indeed the court should appoint some person who may be relied upon actively to protect the defendant's interests.^' § 6. Appointment. If the defendant is an infant more than fourteen years of age, he may nominate his guardian ad litem. In all other cases, the nomination may be made by the next of kin of the defendant or any other relative or friend whom the judge or circuit court commissioner deems a proper person to make the nomination. If the judge or commis- sioner approves the nomination, he will make the ap- pointment accordingly upon the filing of the written con- sent of the person proposed as guardian ad litem. If he does not approve the nomination, he may appoint some other suitable person. 28 f endant, where there is no guardian 26 Damouth v. Klock, 29 Mich. ad litem, is merely voidable, see 289. Johnson v. Cook, 179 Mich. 117, 27 Erwin v. Fay, 165 Mich. 50.3; 24 Schimpf v. Wayne Circuit Frieseke v. Frieseke, 138 Mich. 458. Judge, 129 Mich. 103. 28 Jud. Act, ch. 12, §30; Comp, 26 In re Sanborn's Estate, 109 Laws 1915, § 12381. Mich. 191. 894 Guardian ad Litem or Next Friend §6 If no nomination of a person for guardian ad litem is made within twenty days after the service of the process or declaration by which the suit was commenced, the plaintiff may obtain an order from the court in which the action is pending appointing some suitable person to act as guardian ad litem.^* Form of Aflldavit to Obtain Appointment of Guardian ad Litem for Infant Defendant (Title of court and cause.) County of , ss. A. B., the above named plaintiff, being duly sworn, deposes and says that service of the process (or declaration) by which this action was com- menced was duly made upon the said defendant on the day of , A. D , as appears by the return of S. T., sheriff of said county, now on file herein, and that the said defendant is an infant under the age of twenty-one years. And this deponent further says that twenty days have elapsed since the said service of said process (or, the said service of the said declara- tion, if the suit was commenced by declaration) upon the said defendant and that no nomination or appointment of a guardian ad litem for the said defendant has been made. A. B. Subscribed, etc. § 7. Liability. Guardians ad litem are not liable for the costs of the suit, unless specially charged by the order of the court for some personal misconduct in the cause.*® § 8. Procedure in case of insanity pendente lite. If, while an action is pending, either party should be- come insane, it may be prosecuted or defended by his general guardian or the court may appoint a next friend or guardian ad litem as the case may require.'^ 29Jud. Act, ch. 12, §30; Comp. 31Jud. Act, ch. 12, §31; Comp. Laws 1915, § 12381. Laws 1915, § 12382. 30Jud. Act, ch. 12, «30; Conii). Laws 1915, § 12381. Habeas Corpus 895 § 9. Effect of failure to give security. Unless the next friend, guardian ad litem or general guardian prosecuting or defending a suit on behalf of an infant, insane or otherwise mentally incompetent plaintiff or defendant gives security to such party accord- ing to law, he will not be entitled to receive as such any money or property belonging to such party or awarded to him in the suit except such costs and expenses as are al- lowed by the court.^^ HABEAS CORPUS § 1. Kinds. § 2. Historical. § 3. In what cases may issue. § 4. To whom application to be made. § 5. Proof when application presented out of county. § 6. Refusal to consider application. § 7. Eecord of allowance. §' 8. Contents of petition, § 9. Duty of court or officer to whom petition presented. § 10. Certiorari instead of habeas corpus. § 11. When writ granted without application. § 12. Indorsement of allowance of writ. • § 13. Charges for bringing up prisoner. § 14. Requisites of writs. § 15. Service of writs. § 16. Duty of person served. § 17. Return. § 18. Attachment to compel. § 19. Penalty for obstructive acts. § 20. Hearing and determination. § 21. When prisoner to be let to bail. § 22. Disposition of prisoner pending judgment. § 23. Notice of writ. § 24. Hearing and other proceedings on return of certiorari. § 25. Proceedings in case of disobedience of order for discharge. § 26. Habeas corpus after certiorari issued or applied for. § 27. Discharge as former jeopardy. § 28. Punishment for re-imprisonment. § 29. Warrant before issuing of habeas corpus or certiorari, §30. Costs. 88 Cir. Ct. Rule 63, 896 Habeas Corpus § 1 § 31, How habeas corpus proceedings reviewed, § 32. Habeas corpus ad testificandum. Cross-Eeferences: Witnesses (habeas corpus to bring up prisoner to testify) ; Contempt (habeas corpus in contempt proceedings) ; Fraudulent Debtors (habeas corpus to review imprisonment under proceedings to punish fraudulent debtors), § 1. Kinds. The writ of habeas corpus is so called from the em- pliatic words in the Latin form of the writ, signifying **that you have the body." There are various forms of the writ which were in use in England at an early date, some of which are now employed both in that country and in America. All of them were designed to remove prisoners from one court into another and differed one from the other in respect of the purpose for which the removal of the prisoner was sought. Thus, there was the habeas corpus ad respondendum, to remove a pris- oner that he might be charged with a new action in a higher court; the habeas corpus ad prosequendum, to re- move a prisoner to the jurisdiction wherein it was alleged that he committed a crime; the habeas corpus ad satis- faciendum, to remove a prisoner to a higher court that he might be charged with process of execution; the habeas corpus ad testificandum, to remove a prisoner in order that he might give testimony in a court; the habeas corpus ad faciendum et recipiendum, commanding the judge of an inferior court to produce the body of the de- fendant, with a statement of the cause of his detention; and the habeas corpus ad subjiciendum, commanding the person having another in detention to produce the body of the prisoner, with the day and cause of his cap- tion and detention, to do, submit to and receive what- ever the judge or court awarding the writ consider proper in that behalf.^ This last is the one commonly 13 Cooley's Bl. Comm, 129, 130; etc., Co., 117 Ga. 305; And. Law Cyc. Law Diet. tit. ' ' Habeas Cor- Diet. tit. ' * Habeas Corpus. ' ' pus"; Simmons v. Georgia Iron, § 2 Habeas Corpus 897 understood when the writ of habeas corpus is mentioned. § 2. Historical. The writ of habeas corpus was issuable from the King's Bench and was used to protect or restore liberty by bring- ing the prisoner before the court and ordering his im- mediate discharge if he was unlawfully restrained of his liberty. But it was evaded to such an extent by officials wlio yielded to royal and ministerial usurpations that it became powerless, and finally the court went so far as to decide that it had no power to release a prisoner de- tained without cause if he were imprisoned by the ex- press command of the king or by the lords of the privy council. Whereupon the petition of right in 1628, as- serted the illegality of this decision and various provi- sions were shortly afterwards enacted to restore the writ to- its former efficiency. But even then the judges con- trived either to refuse the writ or to discharge the pris- oner on one pretext or another, and it was not until the year 1679 that statute of 31 Charles II, commonly known as the Habeas Corpus Act, by its provisions so skillfully drawn as almost to preclude the possibility of evasion, firmly re-established the writ and gave it the position which it has since had.^ It was used in the American colonies and is protected by express provisions not only in the federal constitution,' but also in those of the vari- ous states, the provision of the Michigan constitution, like that of the federal constitution, being that the priv- ilege of the writ shall not be suspended unless, in case of rebellion or invasion, the public safety may riMiuire it* 2 Parsons v. Russell, 11 Midi. 11:1; 3 IT. S. Const. Art. I, soc 9, s\il.(l. Am. Cyc. tit. "Habeas Corpus"; 2. Speilins E.xtr. Relief, see. llfjO. 4 ('oust. Art. IT, see. 11. 1 Abbott— 57 808 Habeas Corpus § 3 § 3. In what cases may issue. In Michis>an, it is ^n'ovided by statute that every per- son committed, detained, confined or restrained of his liberty within this state for any criminal or supposed criminal matter or under any pretense whatever,^ except as will l»e presently specified, may prosecute a writ of habeas cori)us or of certiorari to inquire into the cause of his imprisonment or restraint.'' But the following Ijci'sons will not be entitled to prosecute such writ: (1) Persons committed or detained by virtue of any process issued by any court of the United States or any judge thereof, in cases where such courts or judges have ex- clusive jurisdiction under the laws of the United States or have acquired exclusive jurisdiction by the commence- ment of suits in such courts; ' (2) persons committed for treason or felony or for suspicion thereof or as acces- saries before the fact to a felony, where the cause is plainly and specially expressed in the warrant of com- mitment; (o) persons convicted or in execution upon legal process, civil or criminal; (4) persons committed on original process in any civil action on which they were liable to be arrested and imprisoned, unless when excessive and unreasonable bail is required.* 6 " Under any pretense whatever " 6 Jiul. Aft, ch. 37, §7; Comp. extends the remedy to cases other Laws 1915, §13459; Palmer v. than where persons are charged Buck, 83 Mich. 528; Miller v. Rosier, with crime. In re Jackson, 15 Mich. 31 Mich. 475 ; In re Hamilton, 51 417. Mich. 174. Habeas corpus may be issued nor ^ In re Spangler, 11 Mich. 298. only to review imprisonment on a * Jud. Act, ch. 37, § 8 ; Comp. criminal or quasi criminal charge Laws 1915, *! 13460. but also to review imprisonment in If execution against the body is civil actions or proceedings subject issued, habeas corpus does not lie to certain statutory rules. Furthc- to obtain discharge from custody more it may be issued although ther? on the ground that the declaration is no imprisonment, as where to de- does not state facts sufficient to termine the riglit to the custody of authorize a judgment for a body a child. See In re Knott, 1()2 Mich. execution. In re Joseph, 206 Mich. 10; Smith v. Kiel, 150 Mich. 417. 659. § 3 Habeas Cobpus 899 Jurisdiction is tiie only question open on habeas cor- pus.' It is not the office of habeas corpus to review the proceedings of a trial court where jurisdiction is shown, and, as in other instances where the attack is a collateral one, the general rule is that jurisdiction and regularity of procedure are presumed in the case of the judgment of a superior court. ^*' To secure a i-eview of proceedings under which one has been convicted by a court having jurisdiction of the offense charged under a valid statute or ordinance, an appeal or a writ of error should be em- jjloyed." And, on the same principle, habeas corpus can- not be maintained where there has been a valid convic- tion and an irregular sentence which may be corrected by a new sentence,^^ since where a trial court has im- posed an illegal sentence, it has power to substitute a legal sentence, even though the illegal sentence has been partly executed,^' nor can it be maintained for an irregu- laT commitment, as where a certificate required to be in- dorsed upon the commitment was informal;^* in both of which classes of cases, the court will remand the pris- oner in consonance with the principle that habeas cor- pus cannot be used to defeat the interests of justice on anything- short of a jurisdictional defect. And, in gen- eral, merely technical errors and irreg'ularities will not be considered in habeas corpus proceedings.^* But it is 9 In re Buslicy, lO.j Mu-h. 64; In .j(i2; In \v (."ofTccn, .'{S Midi, .".ll; In iv .lolmson, 104 Mich. ;>4;?. w Eaton, 27 Midi. 1; In re Ellis, " Tlic writ of habeas corpiis may 7!) Mich. ."522; Hamilton's Case, 51 not be used as a substitute for a Midi. 174. writ of error or to perform its 12 In re Butler, l.'!8 Midi, bl.i; functions." In re Joseph, 200 In re Vitali, lo'.i Mich. 514. Mich. 659. 13 Peoi»le v. Farrell, 140 Midi. 10 In re Lewis, 124 Mich. 199; In 264. re Manaca, 146 Mich. 697; In re 14 In re Collins, l.'Jo Mich. 91; Tubbs, V.i9 Mich. 102. In re Reinheimer, 97 Mich. 619. 11 In re Lewis, 124 Midi. 199; 1m 15 In re Forscntt, 167 Mich. 438; re Bashey, 105 Mich. 64; In re Satt, In re Satt, 164 Mich. 472; In ro 164 Mich. 472; In re Masuire, lit Bui-icr, ;{9 Mich. 20;i ; Hamilton's Mich. 80; In re Underwood, .JO Mici-. Case, 51 Mich. 174; In re Bissell, 40 900 Habeas Corpus § 3 a proper reiiiedy for a conviction or conunitmont with- out jurisdiction." § 4. To whom application to be made. Application for the writ should be made by i)etition, signed either by the party for whose relief it is intended or by some person" in his behalf, as follows: To the supreme court during- its session; to the circuit court or the circuit judges thereof of the county where the pris- oner is detained; to any municipal court of record or the judge thereof of any city where the i)risoner is detained; or, if there be no municipal court within the city or the judge thereof be absent from the city and the circuit judge be absent from the county or for any cause be in- capable of acting or has refused to grant such writ, then application may be made to the circuit court or to the circuit judge of any adjoining county.^^ But no prisoner detained in the jail of any county awaiting or pending trial or sentence upon any criminal charge can be re- moved therefrom by writ of habeas corpus unless the writ has been issued by the supreme court or by the cir- cuit court of that county or is made returnable before it.^' § 5. Proof when application presented out of county. When an application for such a writ is made to an officer not residing in the county where the prisoner is detained, it is his duty to require proof, by oath of the party applying or by other sufficient evidence, that there is no officer in such county authorized to grant the writ, Mich. 63; In re Knott, 162 Mich. 10, plk-atiou. In re Moukl, 162 Mich. 15. 1. 16 Hamilton's Case, 51 Mich. 174; 18 Jud. Act, ch. 37, §9; Comp. Goodchild v. Foster, 51 Mich. .599; Laws 1915, § i:!461. Ex parte Allen, l."i9 Mich. 712; Pal- That .iudge may act in chambers, nier v. Kalamazoo Circuit .Tnrljje, S.". see Coodchild v. Foster, 51 Mich. Mich. 528; In re Morton, 10 Mich. 599. 208. 19 Jud. Act, ch. 37, § 71 ; Com]). 17 Any person may make the ap- Laws 1915, §13523. § 8 Habeas Corpus 901 or, if one reside there, that he is absent or has refused to grant the writ or, for some cause to be specially set forth, is incapable of acting. If such proof is not pro- duced, the application must be denied.*® § 6. Refusal to consider application. Any judge who willfully or corruptly refuses or neg- lects to consider an application or petition for a writ of habeas corpus or certiorari will be deemed guilty of mal- feasance in office.*^ § 7. Record of allowance. When a writ of habeas coipus or certiorari is allowed and heard by a circuit judge sitting at chambers, it is his duty to cause a record of his action or proceedings thereon to be made on the journal of the circuit court at its next session.** § 8. Contents of petition. The petition for a writ of habeas corpus or certiorari must state in substance: (1) That the person in whose behalf the writ is ap- plied for is imprisoned or restrained of his liberty, the officer or person by whom he is confined or restrained and the place where, naming both parties, if their names be known, or describing them if their names be not known. (2) That the prisoner is not committed or detained by virtue of any process, judgment, decree, or execution hereinbefore specified. (3) The cause or pretense of the confinement or re- straint according to the best of the knowledge and be- lief of the party. 20Jii(l. Act, ch. .",7, §10; Comp. 22 Jud. Act, ch. 37, §9; Conip. Laws 19L-), § 13462. Laws 1915, § 13461. 21Jud. Act, ch. 37, §9; Comp. Laws 1915, § 13461. 902 Habeas Corpus § 8 (4) If the confinement be by virtue of any warrant, order or process, a copy thereof must be annexed, or it must be averred tliat, for some sufficient reason, a de- mand for such copy could not be made or tliat such de- mand was made and that such copy was refused.^^ (5) If the imprisonment be alleged to be illegal, the l)etition must also state in what the alleged illegality consists. (6) It must specify whether the party applies for the writ of habeas corpus or for the writ of certiorari. (7) It must be verified by the oath of the party mak- ing the application.^* Form of Petition for Habeas Corpus or Certiorari to Inquire Into Cause of Detention To the Circuit Court for the County of (or as the case may be) : The petition of C. D., of , respectfully shows: 1. That the said C. D. is now imprisoned by S. T., sheriff of the said county of , in the county jail of said county, at , in said county, for a supposed criminal offense, to wit: (State the offense.) 2. That he is not committed or detained by virtue of any process, judg- ment, decree or execution specified in the eighth section of chapter thirty- seven of tlie Judicature Act of nineteen hundred fifteen. .">. That, according to the best of your petitioner's knowledge and belief, such confinement is by virtue of a warrant (or, order, or, process), a copy of which is hereto annexed. (If, for any reason, a demand of such copy could not be made, some sufiicient reason therefor must be averred, as fol- lows: .'!. That a copy of the warrant, order or process by virtue of which he is so confined, as aforesaid, could not be demanded, for the reason that [here state tlie reason] ; or, if a copy has been demanded and re- fused, say: 3. That, before the making of this application, a copy of the warrant, order or process by virtue of which he is so confined, as aforesaid, was demanded of the said S. T., and the legal fees therefor at the same time were tendered to him, but that such copy thereof was refused.) 4. That your petitioner has fully and fairly stated the facts pertaining 23 Any officer or other person who the person so detained in the sum refuses or neglects for six hours to of two hundred dollars damages, deliver a copy of any order, warrant, Jud. Act, ch. 37, § 56; Comp. Laws process or other authority by which 1915, § 13508. he detains any person to any one 24 Jud. Act, ch. 37, §11; Comp. who demands such copy and tenders Laws 1915, § 13463. the lawful fees therefor is liable to §]0 Habeas Corpus 903 to his said confinement to K. L., his eounsel, who resides at , and that he is advised by his said counsel, npon such statement as aforesaid, and verily believes, that his said imprisonment is illegal, and the illegality thereof consists iu this, to wit: (State wherein the illegality consists.) Wherefore, your petitioner prays that a writ of habeas corpus (or, certiorari) may be issued to inquire into the cause of your petitioner's said imprisonment and detention and that your petitioner may be relieved therefrom. C. D. K. L., Attorney for Petitioner. Business address: , Mich. (Add verification.) § 9. Duty of court or officer to whom petition presented. It is the duty of any court or officer empowered to grant a writ of habeas coipus or certiorari to inquire into the cause of detention, to whom a petition is presented, to grant the writ applied for without delay, unless it ap- pears from the petition itself or from the documents an- nexed that the party applying for it is prohibited from prosecuting the writ.^^ If any court or officer author- ized to grant such writs refuses to grant a writ when legally applied for, every member of the court who has assented to such refusal and every such officer will sever- ally be liable to the party aggrieved in one thousand dollars damages.^® § 10. Certiorari instead of habeas corpus. Whenever an application is made for a writ of habeas corpus according to the provisions of law to any court or officer, if it appears to the court or officer, upon the facts set forth in the petition, that the cause, matter or offense for which the prisoner is confined or detained is not bailable according to the provisions of law, instead of a writ of habeas corpus being awarded, a writ of cer- tiorari may be granted, directed to the officer or other person in whose custody or under whose control tlie pris- 25Jud. Act, ch. .S?, S12; Comp. 26 Jud. Act, cli. :'.7, S17; Coinp. Laws 191.'], § 13464. l-aws lillf*, S i:54()9. 904 Habeas Corpus § 10 oner is alleged to be, in like manner as if a writ of cer- tiorari had been applied for by the prisoner 27 § 11. When writ granted without application. When the supreme court or any justice thereof or a judge of a circuit court has evidence from any judicial proceeding before them that any person in the county where such court or officer shall be is illegally confined and restrained of his liberty, it is the duty of such court or officer to issue a writ of habeas corpus or certiorari for his relief, although no petition be presented or ap- plication be made for the writ.^* § 12. Indorsement of allowance of writ. Every writ of habeas corpus or certiorari must be in- dorsed with a certificate of its allowance and with the date of such allowance, which, if the writ be awarded by a court, must be signed by the chief justice or other presiding officer of the court, and, if it be awarded by any officer out of court, the indorsement must be signed by such officer.*® Whenever a writ of habeas corpus is required in any action or matter, civil or criminal, to which the people of the state are a party, the application for the writ may be made by the attorney general or prosecuting attorney having charge of such action or matter, and, when so issued, the court or officer allowing it should state in the indorsement of the allowance of the writ that it was allowed upon such application.^'' § 13. Charges for bringing up prisoner. Every officer allowing a writ of habeas corpus directed to any person other than a sheriff, coroner, constable or S7Jud. Act, eh. 37, §.".8; Comp. sejud. Act, eh. 37, §60; Comp. Lawa 1915, S 13490; In re Adams, Laws 191.'3, § 13512. 169 Mich. 606. 30 Jud. Act, ch. 37, §61; Comp. 2«Jud. Act, ch. 37, §16; Comp. Laws 1915, § 13513. Laws 1915, § 13468. § 14 Habeas Corpus 905 marshal may, in his discretion, require, as a duty to be performed in order to render the service of the writ ef- fectual, that the charges of bringing up the prisoner be paid by the petitioner. In such case, he should, in the allowance of the writ, specify the amount of the charges so to be paid, but not to exceed the fees allowed by law to sheriffs for similar services.'^ § 14. Requisites of writs. The forms of the writ of habeas corpus and the writ of certiorari are prescribed by the statute,'^ but it is ex- pressly forbidden that any such writ be disobeyed for any defect of form. It is sufficient (1) if the person hav- ing the custody of the prisoner be designated either by his name of office, if he have any, or by his own name, or, if both such names be unknown or uncertain, by an assumed appellation; and any one served with the writ will be deemed the person to whom it is directed, al- though it may be directed to him by a wrong name or description or to another person; (2) if the person im- prisoned or restrained or who is directed to be produced be designated by name, or, if his name be uncertain or unknown, if he be described in any other way so as to designate the person intended.'' All writs of habeas corpus or certiorari issued by any court should be under the seal of the court. If awarded by any officer out of court, the writ should be under the seal of the court to which it is made returnable, or, if it be returnable before some body other than a court of record or before some officer out of court, it may be un- der the seal of the supreme court or of the circuit court for the county in which it is issued or of the officer is- SlJucl. Act, oh. 37, §68; Coirip. 33 Jud. Act, ch. 37, 5 15; Comp. Laws 1915, § 13520. Laws 1915, § 13467. 32 Jud. Act, eh. 37, §§13, 14; Comp. Laws 1915, §§ 13465, 13466. 906 Habeas Corpus § 14 suing it.'* Such writs may be made returnable at a day certain or I'ortiiwith, as the case may require.'* Form of Habeas Corpus to Inquire Into Cause of Detention III tlic Name of the People of the State of Michigan. To tlie Sheriff of the County of (or, To A. B.) : We command you that you have the body of C. D., by you imprisoned and detained, as it is said, together with the time and cause of such imprison- ment and detention, by whatsoever name the said C. D. shall be called or charged, before our justices of our supreme court (or, before E. F., one of the justices of our supreme court, or as the case may be), at , on (or, immediately after the receipt of this writ), to do and receive what shall then and there be considered concerning the said C. D.; and have you then and there this writ. Witness, etc. Form of Habeas Corpus ad Respondendum In the Name of the People of the State of Michigan. To the Sheriff of the County of , Greeting: We command you that you have the body of C. T>., by you imprisoned and detained, as it is said, before the circuit court for the county of on the day of , A. D (or, forthwith), to answer for certain misconduct alleged to have been committed by him in contempt of said court, and safely and securely to detain him at the place where said court shall be sitting, until the further order of said court. Witness, etc. Form of Certiorari to Inquire Into Cause of Detention In the Name of the People of the State of Michigan. To the Sheriff of the County of (or. To A. B.) : We command you that you certify fully and at large to our justices of our supreme court (or, to E. F., one of the justices of our supreme court, or as the case may be) at , on (or, immediately after the receipt of this writ) the day and cause of the imprisonment of C. D., by you detained, as it is said, by whatsoever name the said C. D. shall be called or charged ; and have you then and there this writ. Witness, etc. § 15. Service of writs. "Writs of habeas coi'pus can be served only by an elec- tor of some county within the state. Service will not be 34Jud. Act, ch. 37, §58; Comp. 35 Jud. Act, oh. 37, §59; Comp. Laws 1915, § 13510. Laws 1915, § 13511. § 16 Habeas Corpus 907 deemed complete unless the party serving the writ tenders to the person in whose custody the prisoner is, if such person be a sheriff, coroner, constable or mar- shal, the fees allowed by law for bringing up the pris- oner.^*^ The payment of such fees, however, is not neces- sary where the writ is sued out by the attorney general or a prosecuting attorney.*"'' Everj^ writ of habeas corpus or certiorari may be served by delivering it to the person to whom it is di- rected. If he cannot be found, it may be served by leav- ing it at the jail or other place in which the prisoner is confined with any under officer or other person of proper age having charge for the time of the prisoner.^* If the person upon whom the writ ought to be served conceal himself or refuse admittance to the party attempting to serve it, it may be served by fixing it in some conspicu- ous place on the outside either of his dwelling house or of the place where the prisoner is confined.** The writ itself must be served, not merely a copy of it.*° § 16. Duty of person served. It is the duty of every sheriff, coroner, constable or marshal, upon whom a writ of habeas corpus has been served, whether the writ is directed to him or not, upon the payment or tender of the charges allowed by law, to obey and return the writ according to its exigency; and it is the duty of every other person upon whom such writ has been served, who has the custody of tlie prisoner for whose relief the writ was issued, to obey and execute it according to its command, without requiring the pay- ment of any charges unless payment of charges has been 36Jiul. Aft, ch. 37, §62; Coni].. 39,Tiul. Act, eh. ?,7, §65; Comp. Laws 1915, § 13514. Laws 1915, § 1.3517. 37Jud. Act, eh. 37, §63; Comp. 40 Klein v. Kloin, How. N. P. 266; Laws 1915, § 13515. Palmer v. Kalamazoo Circuit .Tndge, 38Jud. Act, eh. 37, §64; Comp. 83 Mich. 528; In re Wilson, 4 City Laws 1915, § 13516. Hall Rec. (N. Y.) 47. 908 Habeas Corpus § 16 required by the officer issuing the writ.*^ And likewise it is the duty of the person upon whom a writ of cer- tiorari has been served to obey and return it according to its exigency, upon payment of the fees allowed by law for making a return and for copying the warrant or other process to be annexed thereto.*** §17. Return. The person upon whom a writ of habeas corpus or certiorari has been duly served is required to state in his return plainly and unequivocally: (1) Whether he has or has not the party in his cus- tody or under his power or restraint. (2) If he has the party in his custody or power or un- der his restraint, the authority and true cause of such imprisonment or restraint, setting forth the same at large. (3) If the party be detained by virtue of any writ, warrant or other written authority, a copy thereof must be annexed to the return, and the original must be pro- duced and exhibited on the return of the writ to the court or officer before whom it is returnable. (4) If the person upon whom the writ has been served has had the party in his power or custody or under his restraint at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return must state particularly to whom, at what time, for what cause and by what authority such transfer took place." The return must be signed by the person making it, and, unless he is a sworn public officer and makes his return in his official capacity, it must be verified bv his oath.** 41Jud. Act, eh. 37, §66; Comp. 44 . Tad. Act, eh. 37, §19; Comp. Laws 1915, § 13518. Laws 1915, § 13471. 42 Jud. Act, eh. 37, § 67 ; Comp. Material faets stated in return, Laws 1915, § 13519. if not denied, must be taken as true. 4S.Iud. Act, ch. 37, §18; Comp. In re Mason, 8 Mich. 70. Laws 1915, § 13470. But court may inquire into the § 18 Habeas Corpus 909 If a writ of habeas corpus be issued, the person or of- ficer on whom it has been served must also bring the body of the person in his custody, according to the command of the writ, except in case of the sickness or infirmity of the prisoner of such a nature that he cannot, without danger, be brought before the court or officer before whom the writ is returnable; in which case, the party liaving custody of the prisoner may state that fact in Ills return, verifying it by his oath; and, if the court or officer is satisfied of the truth of such allegation and the return is otherwise sufficient, the court or officer will ]:)roceed to decide upon such return and to dispose of the matter in the same manner as if a writ of certiorari had been issued instead of a writ of habeas corpus.*^ If the writ be made returnable at a certain day, the return must be made and the prisoner produced at the time and phice specified tlierein. If it be returnable forthwith, and the place be witiiin twenty miles of the place of service, the return must be made and the prisoner produced within twenty-four hours, and the like time will be allowed for every additional one hundred miles.*^ § 18. Attachment to compel. If the person upon whom a writ of habeas corpus or certiorari has jjoeii duly served refuses or neglects to obey it, by producing the paity named in the writ of ha])eas corpus and making a full and explicit return to tlie writ of ]ial)eas corpus oi- certiorari within the time required, and no sufficient cause be shown for such re- fusal or neglect, it is the duly of the coui't or ollicer be- fore whom the writ has been made retui'na))le, upon due proof of the service thereof, forlhwith to issue an at- liiith of a rolnin tliat tho c-hild 45.)iul. Act, cli. ;!7, §§ 2n, ?>7 ; whose eustotly is in disinite was out- Tonip. Laws IPIH, SS l:!472, i;U80. side tho stato. In lo Knott, ir)2 46 Jiul. Ai't, eh. :!7, S(>!); ('oin|). Mk-h. 10. Laws 19 LI, § L'!r.2L 010 Habeas Corpus § 18 tachment against such person.*' Such attachment should be directed to the sheriff of the county, commanding him forthwith to apprehend such person and bring him be- fore such court or officer; and, on being so brought, such person will be committed to close custod}'' in the jail of the county, Avitliout being allowed the liberties thereof, until he makes return to llie writ and complies with any order wliieh may be made by the court or officer in re- lation to the prisoner.** If a sheriff has neglected to return the writ, the attachment may be directed to any coroner or other person to be designated therein, who will have full power to execute it; and the sheriff, upon ])eing brought up, may be committed to the jail of any county other than his own.** The court or officer by whom an attachment to compel the return of a writ of habeas coi'pus or certiorari has been issued may also at the same time or afterwards issue a precept to the same sheriff or otlier person to whom the attachment is directed, commanding him to bring- forthwith before such court or officer tlie party for whose benefit tlie habeas corpus or certiorari was allowed, who will thereafter remain in the custody of sucli sheriff or otlioi" person until lie is discharged, bailed or remanded as the court or officer issuing the precept may direct.'^" When an attachment to compel the return of a habeas corpus or certiorari or a precept to })ring up the pris- oner has been delivered to a sherilT or other pei'son, he may call to his aid in executing it the power of the county as in other cases. ^^ 47.Jud. Act, ch. 37, §21; Cnini.. 49 .Turl. Act, ch. ?.7, §2?.; Comp. Laws igi."), n.3473. Laws 1915, § 1.''.47;'). Effect of mistake in date of com- 50 .7 ml. Aft, eh. .'!7, §24; Comp. mitment, see Tn re Knott, 162 Mich. Laws 1915, § 13476. ]fi. 51Jud. Act, ch. 37, §25; Comp. 48.1iul. Act, fh. 37, §22; Cnriip. L.aws 1915, §13477. Law.s 1915, § 13474. § 20 Habeas Corpus 911 § 19. Penalty for obstructive acts. Any person who has in his custody or unik-r liis })(»w('r a prisoner who would be entitled to a writ of habeas cor- pus or certiorari to inquire into the cause of his deten- tion, or for whose relief such a writ has been duly issued, who, with intent to elude tlie service of the writ or avoid its eifect, transfers the prisoner to the custody or phices him under the power or control of another or conceals him or changes the place of his confinement, and any person who knowingly aids or assists in so doing, will be deemed guilty of a misdemeanor, the penalty for wliich is a fine not exceeding one thousand dollars or imprison- ment in the county jail not exceeding six months or both such fine and imprisonment in the discretion of the court.*^ § 20. Hearing and determination. 'The court or officer before whom a prisoner is brought on a writ of habeas corpus is required innnediately after the return of the writ to proceed to examine into the facts contained in the return and into the cause of the confine- ment or restraint of the prisoner whether it is for any criminal or supposed criminal matter or not." The pris- oner, on the return of tlie writ of habeas corpus, may deny any of the material facts set forth in the return or allege any fact to show either that his imprisonment or deten- tion is unlawful or that he is entitled to liis discharge. Such allegations or denials must i)e on oath. Thereupon tile court or officer will ])roceed in a sunnnary way to hear such allegations and proofs as may be produced in sup- port of or against the imprisonment or detention and to dispose of the prisoner as justice may require." The 52Ju(l. Act, eh. ;!7, §§ 49-51 ; Laws 1915, §1.3488; In re Wilson, Comp. Laws 1915, §n;5501-i:i50.''.. 4 City Hall Ree-. (N. Y.) 47; In re 53Ju(l. Act, fh. H7, §26; Comp.Stei.hcn, 1 Wlicelor, Cr. Cas. (N. Laws 1915, S i:!478. Y.) :i2;{. 54 Jud. Aet, ch. o7, §;>(!; Comii. 912 Habeas Corpus §20 inai('i-i;il r.-icls stated in the rutiiri), il' not (leiiied, are goii- orally lakoii as trne." But if tlic return is evasive or otherwise iusiiriieicnt in matter of substance, the fact that it has not been dcsnied does not preclude the court from iufjuiring- into the truth of its allegations.^^ If no legal cause be shown for the imprisonment or restraint or for the continuation of it, the court or ofKcer is bound to dischai-ge tlie prisoner from the custody or restraint under which he is held." But it is the duty of the court or officer forthwith to renuuid the prisoner, if it appears that he is detained in custody either (1) by vir- tue of process issued by any court or .I'udge of the United States in a case where such court or judge has exclusive jurisdiction; or (2) by virtue of the final judgment or de- cree of any competent court of civil or criminal jurisdic- tion or of any execution issued upon such judgment or decree; or (3) for any contempt specially and plainly charged in the commitment by some court, officer or body having authority to commit for the contempt so charged; and (4) that the time during which the prisoner may be legally detained has not expired.^* And if it appears that the prisoner is in custody by virtue of civil process from any court legally constituted or issued by any officer in the course of judicial proceed- ings before him authorized by law, the prisoner can be discharged only in one of the folloAving cases: (1) Where the jurisdiction of the court or officer has been exceeded, either as to matter, place, sum or pei'son. (2) Where, though the original imprisonment was lawful, yet, by some act, omission or event which has taken place afterwards, the prisoner has become entitled to be discharged. 55 In re Mason, 8 Mich. 70'. 58 Jiul. Aft. ch. 1^7, §28; Comp. 56 In re Knott, 162 Mich. 10. Laws 1915, §13480. 67 Jud. Act, ch. 37, S 27 ; Coinii. Laws 1915, § 13479. § 21 Habeas Corpus 913 (3) Where tlie process is defeetive in some matter of substance requiretl by law, rendering the i)rocess void. (4) Where tlie process, though proper in I'onn, has been issued in a case not allowed by law. (5) Where the person having the custody of the pris- oner under such })rocess is not the person empowered by law to detain him. (6) Where the process is not authorized b.y anj^ judg- ment, order or decree of any court or by any provision of law.^3 But no court or officer, on the return of a habeas corpus or certiorari, has power to inquire into the legality or justice of any process, judgment, decree or execution specified in section eight of chapter thirty-seven of the Judicature Act, or into the justice or propriety of any commitment for contempt made by any court, officer or body according to law and specially and plainly charged in the commitment.^" § 21. When prisoner to be let to bail. If it appears that the prisoner has been legally com- mitted for a criminal offense, or if he appears by the testimony offered with the return, or upon the hearing thereof, to be guilty of any such offense, although the commitment be irregular, the court or officer before whom the prisoner has been brought must proceed to let the ]nisoner to bail, if the case is bailable and good bail is offered, or, if not, forthwith remand the prisoner.^^ If the prisoner be not entitled to his discharge and is not bailed, it is the duty of the court or officer to remand him to the custody or place liim under the restraint from 69Jud. Act, ch. .j7, §29; Conip. niodity a sentence. In ro Hamilton, Laws 1915, § 13481. ISS Mich. 499. eO.Tud. Act, ch. ?,1, §:!0; Comii. 61 . hid. A.t. di. :\1 , §.11; Conip. Laws 1915, § 13482. Laws 1915, §1.{48;{; In re Collins, The supreme court cannot impose 1.35 Mich. 91. a proper sentence nor amend or 1 Abbott— 58 914 Habeas Corpus § 21 which he was taken, if the person who had him under custody or restraint be legally entitled thereto, and, if he be not so entitled, the prisoner should be committed to the custody of such officer or person as by law is en- titled to his custody.^^ § 22. Disposition of prisoner pending judgment. Until judgment be given upon the return, the court or officer before wiiom the prisoner is brought may either commit him to the custody of the sheriif of the county in which the court or officer is or place him in such care or under such custody as his age and other circumstances may require. ^^ § 23. Notice of writ. When it appears from the return of the writ that the prisoner is in custody on any process under which any other person has an interest in continuing his imprison- ment or restraint, no order can be made for his discharge until it appears that the part}^ so interested or his attor- ney, if he have one, has had at least four days' notice o.f the time and place at which the writ has been made re- turnable.^* An order of discharge made after such no- tice is res adjudicata as to the legality of the imprison- ment, even in an action for false imprisonment.^* When it appears from the return to the writ that the prisoner is detained upon a criminal accusation, the court or officer can make no order for his discharge until suffi- cient notice of the time and place at which the writ has been returned or is made returnable has been given to the prosecuting attorney of the county, or to the attorney 62 Jud. Act, ch. 37, § 32 ; Comp. Appearance of attorney as waiver Laws 1915, § 13484. of notice, see People v. Kehl, 15 63 Jud. Act, ch. 37, §33; Comp. Mich. 330. Laws 1915, § 13485. 65 Custer v. Bates, 127 Mich. 285. 64 Jud. Act, ch. 37, §34; Comp. Laws 1915, § 13486. § 24 Habeas Corpus 915 general, if there be no prosecuting attorney within the coiinty.^^ Form of Notice to Prosecuting Attorney of Issuing Writ of Habeas Corpus To H. C, Prosecuting Attorney of the County of Sir:— You will please to take notice that a writ of habeas corpus has been issued by the circuit court for the county of , to inquire into the cause of the imprisonment of C. D., now confined in (specify the place), under a criminal accusation, and that the said writ is returnable before the said circuit court, at , in said county, on the day of , A. D , at o'clock in the noon (or, fortli- with, as the case may be). Dated, etc. Yours, etc., J. K., Attorney for C. D. Business address: , Mich. Form of Notice to Party Interested of Issuing Writ of Habeas Corpus To*E. F. (or, to K. L., Attorney for E. F.) Sir:— You will please to take notice that a writ of habeas corpus has been issued by the circuit court for the county of , to inquire into the cause of the imprisonment of C. D., now confined in (specify the place) on process under which you have, or claim to have (or, under which the said E. I'\ has, or claims to have), an interest in continuing the said imprisonment of the said C. D., and that the said writ of habeas corpus is returnable before the said circuit court, at , in said county, on the (lay of , A. D , at o 'clock in tlio noon. Dated, etc. Yours, etc., J. K., Attorney for C. D. Business address: , Mich. § 24. Hearing- and other proceedings upon return of cer- tiorari. [Tpon return being made of a writ of certiorari, tbe court or officer befoi-e whom it is retui'iia))le sliould ]>ro- ee.Tud. Act, ch. :!7, S.'{r>; Comjt. Laws 191 f), 8 i:?487. 916 Habeas Corpus § 24 ceed in the same manner as upon the return of a writ of habeas corpus and hear the proofs of the parties in support of and against the return." If it appears that the prisoner is illegally imprisoned, confined or restrained of his liberty, the court should make an order that those having him in their custody discharge him forthwith. If it appears that the prisoner is legally detained, imprisoned or confined and is not entitled to be bailed, the court or officer should cease from all further proceedings in the matter.*^' If it appears that the prisoner is entitled to bail, the court or officer should make an order, directing the sum in Avhich he shall be held to bail and the court at which he shall be required to appear, and that, on such bail being entered into in conformity to such order and the provisions of law, the prisoner be discharged.^® Upon the production of an order letting a prisoner to bail to any circuit court commissioner of the county in which the prisoner is detained or to any judge of a court of record, he is authorized to take the recognizance of the prisoner and of two sufficient sureties in the sum directed in the order, conditioned for the appearance of the pris- oner at the coui"t designated in the order. But, previous to taking the recognizance, tlie officer must be satisfied by the oath of the persons offering themselves as sure- ties that they are residents of the county and are sever- ally worth double the sum in which they are required to be bound, over and above all demands against them.'" The judge or commissioner taking the recognizance should file it with the clerk of the court before which the prisoner is bound to appear and certify on the order the compliance therewith. The production of the order so 67Jiul. Act, ch. 87, §;!9; Ooinp. 69 Jml. Aft, ch. .".7, §42; Comp. Laws 19ir), §13491. Laws 191.1, §18494. 68, hid. Act, ch. :57, §40; Comp. 70Jiul. Act, ch. 'M , §4.1; Comp. Laws 191.'5, § i:!492. Laws 1915, § 13495. § 27 Habeas Corpus 917 certified will entitle the prisoner to be discharged from imprisonment for the cause returned to the certiorari.'^ § 25. Proceeding's in case of disobedience of order for discharge. Obedience to an order for the discliarge of a prisoner may be enforced by the court or officer granting the order by attachment in the same manner as in case of neglect to make return to a writ of habeas corpus and with the like effect in all respects, and the person guilty of such disobedience will be liable to the party aggrieved in the sum of one thousand dollars damages, in addition to any special damages which he may have sustained."^^ No sheriff or other officer will be liable to any civil action for obeying any order of discharge, and if action is brought against him for suffering any person committed to his custody to go at large pursuant to such order, he may give evidence thereof under his plea of the general issue in bar of the action.'^ § 26. Habeas corpus after certiorari issued or applied for. Notwithstanding a writ of certiorari has been issued or returned, the court or officer before whom the writ was returnable may issue a writ of habeas corpus, the pro- ceedings upon which will be the same as in other cases in which the writ of habeas corpus is issued. If a court or officer has refused to allow a writ of certiorari, or, upon the return of a writ of certiorari, refuses to dis- charge the person detained, if such person claims a writ of habeas coi'pus, he will be entitled to it ns in other cases.'* § 27. Discharge as former jeopardy. No person who has been discharged by the order of any court or officer upon a ha])eas corpus or certiorari 71.Tiu]. Act, eh. 37, §44; Conip. TS.Jiul. Act, eh. 37, §46; Coinp. Laws 1915, § i;{496. Laws \9\ri, §13498. 72.THd. Act, eh. ?i7, §4.'); Comp. 74 J ml. Act, oh. .37, §41; Comp. Laws \9iri, §13497. Laws 19in, § 13493. 918 Habeas Corpus § 27 can be again imprisoned, restrained or kept in custody for the same cause. But it will not be deemed the same cause, (1) if he has been discharged from a commitment on a criminal charge and is afterwards committed for the same of^'ense by the legal order or process of the court wherein he is bound by recognizance to ai)pear, or in whicli he is indicted or convicted for the same offense;'^ or (2) if, after a discharge for defect of proof or for any material defect in the commitment in a criminal case, the prisoner is again arrested on sufficient proof and committed by legal process for the same otfense; or (3) if, in a civil suit, the party has been discharged for any illegality in the judgment or process and is afterwards imprisoned by legal process for the same cause of action; or (4) if, in any civil suit in which process may lawfully issue against the body, he has been discharged from com- mitment on original process and is afterwards committed on execution in the same cause, or on original process in any other suit after the first suit has been discontinued.''® § 28. Punishment for re-imprisonment. If any person, eitliei' solely or as a meml)er of any court, or in the execution of any order, judgment or ])rocess, knowingly re-commits, imprisons or restrains of his liberty, or causes to be re-committed, imprisoned or restrained of his libeity, for the same cause, any per- son discharged upon a writ of habeas corpus or cer- tiorari, or knowingly aids or assists therein, he will be liable to the party aggrieved in the sum of one thousand dollars damages and will also be deemed guilty of a mis- demeanoi*." 75In re Reinheimer, 97 Mich. 610. 77.Tii(l. Act, ch. :>,1, S48; Comp. •rejiid. Act, ch. .-57, §47; Comp. T,a\vs lOl.'"), S i:5500. Laws 1915, §1:1499; In re Rein- heimer, 97 Mich. 619; In re Collins, l.if) Mich. 91. § 30 Habeas Corpus 919 § 29. Warrant before issuing of habeas corpus or cer- tiorari. Whenever it appears by satisfactory proof that any one is held in illegal confinement or custody and that there is good reason to believe that he will be carried out of the state or suffer some irreparable injury before he can be relieved by the issuing of a habeas corpus or certiorari, any court or officer authorized to issue those writs may issue a warrant, reciting the facts and directed to any sheriff, constable or other person, commanding him to take the prisoner and forthwith bring him before such court or officer to be dealt with according to law."'^' When the proof is also sufficient to .instify the aiTest of the person having the prisoner iu his custody as for a criminal offense committed in taking or detaining the prisoner, the warrant should also contain an order for the arrest of such person for such offense.'® Any officer or person to whom such warrant is directed is required to execute it by bringing the prisoner tiierein named, and the person who detains him if so connnanded by the warrant, before the court or officer issuing it, and thereupon the person detaining the prisoner must make a return in like manner, and the like proceedings are to be had as if a writ of habeas corpus had been issued in the first instance.*" If the person having the prisoner in liis custody is brought before the court or officer as for a criminal of- fense, he nuist be examined and committed, biiiled or dis- charged in like manner as in otlier criminal cases of the like nature.*^ §30. Costs. The prevailing party in a habeas corpus or certiorari VS.Tud. Act, ch. 37, §52; Comp. SO.Tu.l. Act, ch. 37, §54; Coinp. Laws 1915, §13504. Luus 1915, §13506. 79Jud. Act, ch. 37, §53; Coinp. BlJud. Act, cli. 37, §55; Comp. Laws 1915, § 13505. Laws 1915, § 13507. 920 Habeas Corpus § 30 proceeding may recover his costs in tlie discretion of the court. *^ § 31. How habeas corpus proceedings reviewed. It was once lield that the supreme court would review the determination of a circuit court in a habeas corpus proceeding by writ of error,*' but, in hiter cases, it was hehl that such proceedings before a cii'cuit judge at chambers, not being according to the course of the com- mon law in the sense in which that expression is applied to proceedings reviewable on writ of error, are not re- viewable on writ of error, and tliat the proper method of review is by certiorari; " and now it is held that cer- tiorari is the writ by whicli the supreme court reviews all such habeas corpus proceedings as are reviewable and that a writ of error does not lie in any case.*^ And likewise it is held that mandamus does not lie.'® In reviewing habeas corpus proceedings, the supreme court can only determine whether the prisoner is law- fully imprisoned. It cannot amend or modify the sen- tence under which he is imprisoned,*' and it will not weigh the evidence.'* § 32. Habeas corpus ad testificandum. Every court of record has power, upon the application of any party in any suit or proceeding, civil or criminal, pending in the court, to issue a writ of habeas corpus for the purpose of bringing before the court any prisoner who is detained in any jail or prison within this state, to be examined as a Avitness in the suit or proceeding in 82.Jucl. Act, ch. 37, §57; Conip. 85 In re Brock, 144 Mich. 42. Laws 1915, §1.3509; In re Knott, 86 Attorney General v. Daboll, 90 162 Mich. 10. Mich. 272. 83 In re Hicks, 20 Mich. 129. 87 In re Hamilton, 188 Mich. 499. 84 People v. Calhoun Circuit 88 In re Sneden, 105 Mich. 61; Judge, 30 Mich. 266; People v. Fair- Corie v. Corie, 42 Mich. 509; Car- man, 59 Mich. 568; People v. Con- penter v. Carpenter, 149 Mich. 138; ant, 59 Mich. 565. Smith v. Kiel, 150 Mich. 417. § 32 Habeas Corpus 921 behalf of the party making the api)licati()n, except that a person under sentence for a felony cannot be so brought up in any civil cause. ®^ The application for the writ must be verified and state: 1, The title and nature of the suit or proceeding in regard to which the testimony of the prisoner is desired. 2. That the testimony of the prisoner is material and necessary to the party on the trial or hearing of the suit or proceeding, as he is advised by counsel and verily be- lieves.®" The writ may be issued not only by the court in which the suit or proceeding is pending, but also by any justice of the supreme court, judge of a circuit court or any offi- cer authorized to perform the duties of circuit judge, upon the application of a party to a suit or proceeding- pending in a court of record or before any officer or body authorized to examine witnesses in a suit or proceed- ing.®^ It is the duty of the officer to whom a writ of habeas corpus ad testificandum is delivered to obey and return the writ according to its command in the manner and in the time prescribed by law. For neglecting or refusing so to do, he is liable to the party on whose application the writ was issued in the sum of five hundred dollars.®^ Whenever a person is in execution on any civil process or committed on a criminal charge, and a writ of habeas corpus is issued to bring him before a court, officer or body to testify or to answer for any contempt or other 89Jii(l. Act, cli. 37, §1; Com]). was issiu'il oa the applii'ation of the Laws 1915, § 1345.3. Attorney General or a prosecuting eO.Tud. Act, ch. 37, S2; Comp. attorney, the officer neglecting or re- Laws 1915 § 13454. fusing to execute the writ is liable 91 .Tud. Act, ch. 37, § 3; floinj). to the [)eoph^ of this state in the sum Laws 1915, § 13455. of live hundred dollars, .lud. .\ct, 92Jud. Act, ch. 37, 8 6; Comp. ch. ;!7, SG; Comp. [,aws 1915, Laws 1915, § 13458. If the writ § 13458. 922 Habeas Corpus § 32 matter, and it is returned ii])on the writ that the pris- oner is so charged in execution or is so committed, he must be remanded after having testified, and, if an order of commitment be made against him, he must be so com- mitted to tlie prison from which he was takon.^^ " Form of Petition for Habeas Corpus ad Testificandum (Title of the cause.) To the Ciiciiit Court for the County of (or, To the Honorable J. S., Judge of the Circuit Court for the County of ) : The petition of A. B., the above-named plaintiff, respectfully sliows: 1. That this action is brought to recover (state the nature of the action). 2. That the defense thereto is (state the defense briefly). 3. That your petitioner has fully and fairly stated the facts pertaining to this cause to J. K., his counsel therein, who resides at , and has fully and fairly disclosed to his said counsel what he expects to prove by W. S. 4. That the testimony of the said W. S. is material and necessary for your petitioner on the trial of this cause, as he is advised by his said coun- sel, upon such statement and disclosure as aforesaid, and verily believes; and that, without the benefit of the testimony of the said W. S., your petitioner cannot safely proceed to the trial of this cause, as he is also advised by his said counsel, upon such statement and disclosure as afore- said, and verily believes. 5. That this cause is for trial at the next term of this court, appointed to be held on the day of , A. D 6. That the said W. R. is now a prisoner in the custody of the sheriff of the county of , for (state for what he is in custody). Your petitioner therefore prays that a writ of habeas corpus may be issued, directed to the sheriff of the said county of , commanding him to bring before this court the said W. S., to be examined as a witness on the trial of this cause in behalf of your petitioner. A. B. J. K., Attorney for Plaintiff. Business address: , Mich. (Add verification.) Form of Habeas Corpus ad Testificandum In the Name of the People of tlie vState of Michigan. To the Sheriff of the County of , Greeting: We command you that you have the body of W, S., detained in prison in your custody, as it is said, under safe and secure conduct, before the 93.Tud. Act, ch. ?,7, S.'); Comp. Laws 1915, § 13457. § 1 Homesteads 92:3 circuit court for the county of , on the day of , A. D. , to testify in a certain cause now pending in said circuit court, then and there to be tried between A. B., as plaintiff, and 0. D., as defend- ant, on behalf of the said plaintiff (or, defendant), and, immediately after the said W. S. shall then and there have given his testimony in said cause, that you return him to said prison under safe and secure conduct; and have you then and there this writ. Witness, etc. HANDWRITING See Evidence (comparison of). HARMLESS ERROR See Ekkok, Wkit of. HEIRS Sec Executions; Waste. HIGHWAYS See Certiorari. HOGS Sec Animals; Exemptions. HOLIDAYS See Courts, § 14. HOMESTEADS § 1. statutory exemplion in general. § 2. Procedure. §3. When homestead claimed exceeds in value lifteen hundred dollars. § 4. Effect of deatli of owner of homestead. § 5. Waiver. Cross-Ecfcrciicc: Exemptions (general rules as to). § 1. Statutory exemption in general. The coiistitulioii of tliis stale providt'S tliat cvcrv homestead of not exceeding forty acres ^ of land and tlic dwellino- house thereon and the apiniitonances, to be selected by the owner thereof, and not included in any 1 Forty-one acres are not exempt. Jlolley V. Ilorton, KM Micii. 31. 924 Homesteads §1 town i>lat, city or village, or, instead thereof, at the option of the owner, any lot in any city, village or re- corded town i)lat, or snch parts of lots as shall be equal thereto, and the dwelling house thereon and its appurte- nances, owned and occupied by any resident of the state, not exceeding in value fifteen hundred dollars, shall be exempt from forced sale on execution or any other final process from a court.^ The statute substantially reiter- ates the constitutional provision, but purports to limit the exemption to executions or other final process for "debts growing out of or founded on contract, either ex- press or implied." ^ It is obvious that the constitutional 2 Const. Art. XIV, sec. 2; Mc- Bride v. Putnam, 99 Mich. 469; Kaeding v. Joachimsthal, 98 Mich. 78. As to the necessity of the wife joining in a conveyance of the home- stead, see Weaver v. Miehello, 193 Mich. 572; Dye v. Mann, 10 Mich. 291; Stevenson v. Jackson, 40 Mich. 702; Sammon v. Wood, 107 Mich. 506; Lott V. Lott, 146 Mich. 580; Rogers v. Day, 115 Mich. 664; Gadsby v. Monroe, 115 Mich. 282; Evans v. Grand Rapids, etc., R. Co., 68 Mich. 602; Shoemaker v. Collins, 49 Mich. 595; Amphlett v. Hib- bard, 29 Mich. 298; Fisher v. Meis- ter, 24 Mich. 447; Ring v. Burt, 17 Mich. 465; McKee v. Wilcox, 11 Mich. .358; Fournier v. Chisholm, 45 Mich. 417; Gardner v. Gardner, 123 Mich. 673; Allen v. Cadwell, 55 Mich. 8; Dikeman v. Arnold, 71 Mich. 656; H. Stern, Jr. & Bros. Co. V. Wing, 135 Mich. 331 ; Phillips V. Stauch, 20 Mich. 369; Cleland v. Clark, 123 Mich. 179; Lawrence v. Vinkemulder, 157 Mich. 294; Mail- hot v. Turner, 157 Mich. 167; Jas- per Tp. V. Martin, 161 Mich. 336; Cooper V. Cooper, 162 Mich. 304; Clement v. Buckley Mercantile Co., 172 Mich. 243; Way v. Root, 174 Mich. 418; Agar v. Streeter, 183 Mich. 600; Carlson v. Wisconsin Land & Lumber Co., 186 Mich. 212. Abandonment of homestead, see Stotts V. Stotts, 198 Mich. 605; Steel V. Blanchette, 193 Mich. 167. 3 Jud. Act, ch. 23, § 73 ; Comp. Laws 1915, § 12888. Statutes arc to be liberally con- strued in favor of debtor. Canney V. Canney, 131 Mich. 363; Barber v. Rorabeek, 36 Mich. 399. Party in possession need not have a complete title. A homestead may be claimed in land Of which a party is in possession under contract to purchase. In such case, the vendee, if a married man, cannot alienate his interest in the land under the contract without his wife joining with him, and if he refuses or neg- lects to perform his contract the wife may perform it for him, and have the land conveyed to her hus- band subject to a lien thereon in her favor for the amount she pays in fulfilling the contract. McKee V. Wilcox, 11 Mich. 358. The constitution exempts a home- stead as an entirety, and not a part §2 Homesteads 925 exemption is not so limited and it, rather than the stat- ute, must control, so that the exemption extends not merely to executions u])<)n judgments in actions ex con- tractu, but also to those in actions ex delicto.* The fee of the land is not exempt. The land is exempt only as a homestead, and, subject to the homestead right, it is liable to levy upon execution.* Any person owning- and occupying any house on land not his own, and claiming said house as a homestead, is entitled to the exemption.^ §2. Procedure. The statute provides that whenever a levy is made upon the lands and tenements of a householder whose of, or an undivided interest in a lioniestead. Amphlett v. Hibbard, 29 Mich. 298. In order that premises may Ije ex- empt as a homestead under the con- stitution and laws of this state, they must have been set apart as a home, and for the purposes of tlie owner and his family. And when the owner of a city lot built a double house upon it, in such a way as to show that he designed it for the use of two families, and not for one, and leased one part of it, occupying the other part of it himself, it was lield that lie could not claim the whole as exempt from execution as a home- stead, although the entire value did not exceed fifteen hundred dollars. Dyson v. Sheley, 11 Mich. 527. Neither the constitution nor the statute exempts a contemitlated fu- ture homestead, and therefore laud on which no dwolliug-liouso liad ever been erected or commenced, and on which neither the owner nor his fam- ily ever resided, is not a homestead. Coolidge V. Wells, 20 Mich. 79. But premises having the legal properties of a homestead, and occu- pied as such by husband and wife, in which the husband has only an equitable interest, will be protected as a homestead, notwithstanding the legal title is vested in the wife, and a portion of it is occupied for busi- ness purposes. Orr v. Schraft, 22 Mich. 260. 4Mertz V. Berry, 101 Mich. 52. 6 Drake v. Kinscll, 38 Mich. 232. 6Jud. Act, ch. 23, §78; Comp. Laws 1915, §12893; Maata v. Kip- pola, 102 Mich. 116. For cases bearing upon tlie ques- tions of the abandonment of a liomc- stead and of the necessity of actual occupancy, see Kaeding v. Joach- imsthal, 98 Mich. 78, note 1. As to tlie exemption of shares in building and loan associations, see .Tud. Act, ch. 2.3, §45; Comp. Laws 1915, §12860; and Morley Bros. v. National Loan & Investment Co., 120 Mich. 171. 926 Homesteads § 2 homestead has not been pUitted and set apart by metes and bounds, such householder shall notify the officer at the time of making the levy what he regards as his home- stead, with a description thereof, within tlie limits al- lowed by law, and the remainder alone will be subject to sale under such levy. If, at the time of the levy the householder fails or neglects to notify the officer making the levy what he regards as his homestead, with a de- scription thereof, the officer must call upon him to make his selection of a homestead out of the land, describing it minutely. If, after such notice, the owner of the land fails to select his liomestead, the officer may select a homestead out of the land for him, and the remainder over and above that part selected by the officer, or by the owner of the land, as the case may be, alone will be sub- ject to sale under the levy. If the selection of a home- stead out of the lands levied upon is made by the officer, he must select lands in compact form, which include the dwelling house and its appurtenances.' If the plaintiff in the execution is dissatisfied with the quantity of land selected and set apart either by the owner of the land or by the officer making the levy, he may cause it to be sui'\'eyed, beginning at a point to be designated by the owner or l)y the officer making the levy, and set off land in compact form, including the dwelling house and its appurtenances, to the amount which is exempt. The expense of such survey may be charged and collected on the execution.® After the survey has been made, the officer may sell the property levied upon, and not included in the set-off, in the same manner as is provided for the sale of real estate in other cases; and, in giving a deed of it, he may describe the property according to the original levy, 7Ju(l. Act, ch. 23, §75; Conii.. S.lud. Act, eh. 23, §76; Comp. Laws 1915, § 12890. Laws 1915, § 12891. § 3 Homesteads 927 excepting therefrom by metes and bounds, according to the certificate of the survey, the quantity set off.* §3. When homestead claimed exceeds in value fifteen hundred dollars. Whenever the homestead of a debtor exceeds in value the amount of fifteen liundred dollars, he will not for that i*eason lose tlie benefit of his homestead exemption; but in all such cases, when, in the opinion of the creditor or officer holding an execution against him, the premises claimed by liim as exempt are worth more than fifteen hundred dollars, the officer must summon six persons qualified to act as jurors, who, upon oath to be adminis- tered to them by the officer, must appraise the premises; and in case the value is more than fifteen hundred dol- lars, and the premises cannot be divided, they must make and sign an appraisal of its value and deliver it to the officer, whose duty it is to deliver a copy to the debtor or to some of his family of suitable age to understand its nature, with a notice attached that, unless the debtor shall pay the officer the surplus over and above the fifteen hundred dollars, or the amount due on the execution, within sixty days thereafter, the premises will be sold." And, if the surplus or amount due on the execution is not paid within the sixty days, it is lawful for the officer to proceed to advertise and sell the premises and, out of the proceeds of the sale, to pay the debtor the sum of fifteen hundred dollars, which will be exempt from execution for one year thereafter, and apply the balance on the execution; but no sale can be made in such case unless > a greater sum than fifteen hundred dollars is bid for the premises, in which event the officer may return the execu- ».Tu(l. Act, I'll. 2.!, §77; Comp. lO.Tiul. Act, eh. 23, SSO; Comp. Laws 1915, S 12892. And spe Lii'))- Laws lOlfi, S 1289rK lein V. Hanson, 178 Mi«-h. 11, 17. 928 Homesteads § 3 tion for want of property or report the facts to the court, as the case may require." § 4. Effect of death of owner of homestead. The homestead of a family, after the death of the own- er thereof, shall be exempt from the payment of his debts in all cases during the minority of his children. ^'^ If the owner of a homestead die, leaving a widow but no chil- dren, such homestead shall ])e exempt, and the rents and profits thereof shall accrue to her benefit during the time of her widowhood, unless she be the owner of a home- stead in her own right. ^^ But if the owner leaves no wife nor minor children on his death, the exemption expires with his death. ^* § 5. Waiver. No waiver of the homestead right can affect a wife's interest therein, nor the interest of any other equally en- titled thereto.^* So there is no waiver by failure to claim an exemption until an appraisal is made and presented by the ofificer making the levy.^^ HOUSEHOLD GOODS See Exemptions. HOUSEHOLDER See Exemptions. HUSBAND AND WIFE See Married Women. HYPOTHETICAL QUESTIONS See Witnesses. llJud. Art, oh. 2.1, §81; Comp. 14 Brown v. Reiser, 182 Mioh. 4.12. Laws 19iri, §12806. 15 Allen v. Crane, 152 Mich. 380. 12 Const. 1908, Art. XIV, sec. .".. 10 Holley v. Horton, 164 Mich. .31; 13 Const. 1908, Art. XIV, sec. 4. Riggs v. Sterling, 60 Mich. 643. Infants ^29 IMPEACHMENT See Witnesses; Judges. IMPRISONMENT See Commencement of ActioNvs; Bail; Contempt; Executions; Fraudulent Debtors; Jail Liberties; Escape. IMPROVEMENTS See Ejectment. INCOMPETENTS See Guardians ad Litem, etc. INCRIMINATING EVIDENCE See "Witnesses. INDEBITATUS ASSUMPSIT See Assumpsit. INDEMNITY See Attachment; Executions; "Replevin, INDEX See Supreme Court; Error, Writ of; Briefs. INDICTMENT See Summary and Special Proceedings to Recover Land, INDORSEMENTS See Attachment; Commencement of Actions; Pleading; Deposi- tions; Executions; Papers; Bail; Supreme Court; Certiorari; Habeas Corpus. INFANTS Infants may sue by tlioir onnrdian or next fiiond and if siiod a ftiiardian ad litem is ai)poiiit(»d {^oo rHiar«lians 1 Abbott— .W • *-!0 Infants ad Litem, etc.). However, infancy postpones the stat- ute of limitations (see Limitation of Actions) and ex- tends the time for suing out a writ of error (see Error, Writ of). If a child under the age of ten years is pro- duced as a witness, the court must examine the child as to whether the child has sufficient intelligence and sense of obligation to testify (Jud. Ad, cli. 17, ^08; Comp. Laws IDlf), j; 12r)r>(5). INFORMATION AND BELIEF Sco Commencement of Actions; Attachment; Fraudulent Debtors; Garnishment. INFORMATION IN NATURE OF QUO WARRANTO See Quo Warranto. INITIALS See Affidavits. INJUNCTION See Mandamus; Stay of Proceedings; Waste; Executions. To stay trial of action at law, see .hid. Act, cli. 19, S 8; Comp. Laws lOlf), S 12662. INSANE PERSONS See Guardians ad Litem, etc INSOLVENT DEBTORS See Executions. INSPECTION See Discovery, etc.; Mandamus; Evidence. INSTALMENTS See \rORTfiAOES. 1 1 Instructions to Jury 'J^il INSTRUCTIONS TO JURY § 1. Naturo ami ollioc of charge. § 2. Writing and filing. § 3. Eequests to charge. § 4. Form, requisites and sufficiency. § 5. Necessity. § 6. How charge construed. § 7. Confining to issues and evidence. § 8. Depriving jury of determination of disputed questions of fact. § 9. Kespective functions of court and jury as to written instruments. § 10. Singling out particular witnesses or evidence. § 11. Charging as to credibility of witnesses. § 12. Charge as to failure to produce witnesses. § 13. Charge as to duties of jury. § 14. Charge as to result of verdict. § 15. Charge as to burden of proof, etc. § 16. Definition of terms. S 17. Basing belief on evidence. § 18. Reading from law books. § 19. Curing error in instructions. Cruss-Bcfcrenccfi: Verdict (spei-ial questions submitted to jury) ; ExCEP- Tlo5;s; Error, Writ of (iKirnile.ss error, etc.). § 1. Nature and office of charg-e. The office of the judge's charge to the .jury is (1) to exphiin the issues, (2) to notice the position taken by the parties and suggest, so far as the case may require it, the principles of evidence and their application, and (3) to declare what rule or rules of law will be a]i])lical)le to any state of facts which may be found on the e\'i(U'nce.^ In charging the jury, the trial court should fornudate the legal rules to guide the jury in the case before them with as little extraneous combinati(m as possil)h>. The object of a charge is not to teach law to the jurors, but to direct their conduct in the controversy they are called on to decide.^ Concise charges are, therefore, not only com- mendable, but essential to a good understanding of the case by tlie jury, and a charge which is continuous and 1 Scouvais V. Leavitt, 50 Midi. 2 Leudberg v. Brotherton Iron 108. Min. Co., 75 Mich. 84. 932 IXSTRUCTIONS TO JuRY § 1 harmonious is bettor understood than one consisting- of a succession of abstract propositions.' While not com- mendabk', the preceding particuhir instructions with *'I am asked to charge you" ordinarily is not reversible error.* § 2. Writing and filing. The statute provides that, in all jury trials in courts of record, in charging or instructing juries, the court shall instruct them only as to the law of the case and that such instructions may be given by the court of its own motion, and requires that they be taken in full by the court ste- nographer or, in case there be no stenograi)lier, that they be in writing and filed in the case.* The object of the statute is to hold circuit judges to a more strict account- ability and to insure to parties the benefit of all legal ex- ceptions.® But if the statute is not complied with by reason of the omission of the judge to reduce all of the charge to writing, a party who desires to object to it must do so before the juiy has gone out.''^ Where, how- ever, a judge reads to the jury a section of a public stat- ute without making it a part of his written charge, the parties are as fully protected as if the statute were copied mto the charge, and the spirit of the requirement of a charge in writing is complied with.^ § 3. Requests to charge. After the evidence is concluded and l)ei'ore the case is argued or submitted to the jury, either party may pre- sent written requests for instructions on any point of 8 Kinney v. Ferguson, 101 Mich. 6 Swartoiit v. Michigan Air Line 178. ' K. Co., 24 Mich. 389. 4 Newton v. Consolidated Const. 7 Garton v. Union City Nat. Bank, Co., 184 Mich. 6.'!. VA Mich. 279; Jossolyn v. McAllis- 6Jud. Act, ch. 18, §58; Conip. tcr, 22 Mich. 300. Laws 1915, §12630; Newton v. Con- 8 Swartout v. Michigan Air Line solidated Const. Co., 184 Mich. 63; R. Co., 24 Mich. 389. Sheahan v. Barry, 27 Mich. 217. § 4 Instructions to Jury 933 law arising in tlie cause, and, upon such written requests so presented, an argument may be made by the counsel for the resi^ective parties previous to the court passing tliereon. Any request not substantially covered by the charge as given will be deemed to be refused.* This last sentence of the Judicature Act abolishes the require- ment that the court mark each request to charge ** Given" or ''Refused." In respect of the time when counsel should present to the court requests to charge, the duties of counsel and court are reciprocal; — that of counsel in good faith to present such requests as he desires the court to give the jury in time to enable the court to examine them before commencing his charge to the jury, and that of the court to peraiit counsel, at any time before the jury has re- tired, at least to hand in any further requests which he might consider essential to a proper protection of the rights and interests of his client. Counsel are justified in assuming that the court will fully cover in the charge all essential parts of the case, and if, after the charge has been given, they see that some essential has been over- looked, no practice or rule of court adopted for mere con- venience, as, for instance, a rule requiring requests to charge to be handed to the court before the argument is commenced, will deprive them of their right to present a request covering the omission. ^° § 4. Form, requisites and sufficiency. Requests to cliai'go should be based upon the evidence in the case " and be pertinent to the issue which is being 9.Jik1. Act, eh. 18, §59; Comp. Louisville, etc., R. Co. v. Wood, IK? Laws 1915, § 12631. Ind. 544; Cluskey v. City of St. lOCrippen v. Hope, .38 Mich. 344; Louis, 50 Mo. 89; Taylor v. Plum- People V. Garbutt, 17 Mich. 9; Peo- nier, 105 N. C. 56; Wetherby v. Fos- ple V. Demasters, 105 Cal. 673; Har- ter, 5 Vt. 136; Cady v. Owen, 34 nau V. Haight, 189 Mich. 600; Brick Vt. 598; Manhattan Life Ins. Co. V. Bosworth, 162 Mass. 338; Tully v. Francisco, 17 Wall. (U. S.) 672. V. Despard, 31 W. Va. 370. Contra: H Canii>au v. City of Detroit, 104 934 Instructions to Jury §4 tried.^^ They should not be based upon a i)osition not held by cither paity,^^ nor should they be so framed as to be misleading," or so obscure or complex as not readily to be understood by the Jury.^^ Requests should be ac- curate,*® unambiguous,*''' specific," complete,** and not predicated on isolated portions of the testimony;^" and where relating to facts nmst make an application of such facts.^* It is proper to refuse a request which simply embodies propositions of fact,^^ or consists of abstract propositions of law the application of which to the case in hand would not be readily apparent to the jury.'^^ But although a charge in tiie language of the request would be improper or absurd, yet a refusal to charge on the subject may be error.''* Requests should be refused which assume a fact as existing where there is room for finding tliat it did not exist or no room for finding that it did exist.^* It is not error to refuse a requested in- struction that does not correctly state the facts which it assumes,^'' or one which is argumentative or partly good Mi<-h. ofiO; Pooplo v. Goseh, 82 Mit-li. 12Lang(> V. Porley, 47 Mk-li. ;'..J12 ; Pottilione v. Smith, 37 Mich. 579. 13 Schoenberg v. Voigt, 36 Mich. ;!10; Welch v. Jackson, etc.. Trac- tion Co., 1.j4 Mich. :!99. 14 Holland v. Rea, 48 Mich. 218; McKercher v. Curtis, 35 Mich. 478; Kchrig V. Peters, 41 Mich. 476; Dodge V. Brown, 22 Mich. 446. IB Schoenbergi v. Voigt, 36 Micii. 310. 16 Smith V. McDonahl, 139 Mich. 225. 17 Holland v. Rea, 48 Mich. 218. 18 Herbstrcit v. Beckwith, 35 Mich. 93. 19 Clintsman v. Alfred .7. Brown Seed Co., 127 Mich. 280 20 Foley v. Riverside Storage & Cartage Co., 85 Mich. 7, 21 In re Barclay's Estate, 146 Mich. 650. 22Sclioenberg v. Voigt, 36 Mich. 310. 23 Mosaic Tile Co. v. Chiera, 133 Mich. 497. 24 Dodge V. Brown, 22 Mich. 446. 25 Lewis v. Rice, 61 Mich. 97; Parke v. Nixon, 141 Mich. 267; Place V. Place, 139 Mich. 509; Mc- Netton V. Herb, 158 Mich. 525; Con- nor V. McRae, 193 Mich. 682; Scitz V. Starks, 144 Mich. 448; Foley v. Riverside Storage & Cartage Co., 85 Mich. 7; Wilcox v. Young, 66 Mich. 687; Hunter v. Village of Durand, 137 Mich. 53. 26Conley v. Wood, 73 Mich. 903; Bourman v. Van Buren, 44 Mich. 496. H Instructions to Ji^p>y 935 and partly bad or which is inapplicable to the case.^' Noi- ls it error to refuse an instruction if the ground of it is covered by the general charge.^* It is not error not to give an instruction in the exact form and language re- quested, if the ground is fully and cori-ectly covered by equivalent instructions given in the language of the 27(ioul(l V. Sainidfjs, 09 Mich. 5; People V. Crawford, 40 Mich. 498; Feierta«' v. Fciertag, 73 Mich. 2.'}7; Sword v. Keith, 31 Mich. 247; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Bedford v. Penney, 58 Mich. 424; Wilcox v. Young, 66 Mich. 687; Beck v. Schick, 110 Mich. 665; Wood v. Standard Drug Co., 190 Mich. 654; Courtemanehe v. Supreme Court I. O. O. F., 136 Mich. 30; Bower v. Earl, ]8 Mich. 367; Schoenberg v. Voigt, 36 Mich. 310;. People v. Palmer, 105 Mich. 568. 28 Shearer v. Middleton, 88 Mich. 621 ; Moore v. City of Kalamazoo, 109 Mich. 176; People v. Hubbard, 92 Mich. 322; Hurd v. Newton, 36 Mich. 35; Ellis v. Whitehead, 95 Mich, 105; Hart v. Village of New Haven, 130 Mich. 181; Styles v. Vil- lage of Decatur, 131 Mich. 443 ; Stevens v. Pendleton, 94 Mich. 405; Roux V. Blodgett & D. Lumber Co., 94 Mich. 607; Parkey v. Calloway, 147 Mich. 693; Sweet v. Western Union Tel. Co., 139 Mich. 322; Fer- ris V. McQueen, 94 Mich. 267; Peo- ple V. Hare, 57 Mich. 506; Comstoek V. Georgetown Tp., 137 Mich. 541 ; Finkbinder v. Ernst, 135 Mich. 226; Power v. Harlow, 57 Mich. 107; Van Den Brooks v. Correon, 48 Mich. 283; Dawson v. Falls City Boat Club, 125 Midi. 4:5.3; Lott v. Sweet, 33 Mich. 308; Leonard v. Pojje, 27 Mich. 145; Bates v. Kuney's Estate, 124 Mich. 596; TJenand v. City of Bay City, 124 Mich. 29; Daniels v. (;iegg, 28 Mich. 32; Hoyt v. Jeffers, 30 Mich. 181 ; Joslin v. Le Baron, 44 Mich. 160; Chilson v. Wilson, 38 Mich. 267; Cooper v. Mulder, 74 Mich. .■i74; Keables v. Christie, 47 Mich. 594; Westra v. Westra 's Estate, 101 Mich. 526; Champlain v. Detroit Stamping Co., 68 Mich. 238 ; Crane Lumber Co. v. Otter Creek Lumber Co., 79 Mich. 307; Saunders v. Gloss, 117 Mich. 130; People v. Hilliard, 119 Mich. 24; Mahiat v. Codde, 106 Mich. 387; Brundage v. Shelly, 113 Mich. 20; Eeilly v, Con- way, 121 Mich. 682; Arndt v. Burke, 120 Mich. 263; Ellis v. Whitehead, 95 Mich. 105; People v. Berry, 107 Mich. 256; Darling v. Thompson, 108 Mich. 215; People v. ILammond, 177 Mich. 416; People v. Quimby, 134 Mich. 625; People v. Swartz, 118 Mich. 292; Harris v. Stewart, 112 Mich. 82; Canfield v. City of Jackson, 112 Mich. 120; Wright V. Irwin, 35 Mich. ;{47; Breitenwischer v. Clough, 116 Mich. :!40; Peojile v. Weaver, 108 Mich. 649; Schattler v. Daily Herald Co., 162 Mich. 115; Chapman v. Strong, 162 Mich. 631; Feist v. Root, 189 Mich. 596; Tiley v. Detroit United Ry., 190 Mich. 7; Wood v. Standard Drug (;o., 190 Mich. 654; Parnell v. Pnngs, 190 Mich. 638; Miller v. DuVal, 191 Mich. 386; Snyder v. East Bay Lumber f!o., 135 Midi, 31; People v. Cutler, 197 Mich. 6. 936 Instructions to Jitry eourt.^' But if a party's theory of the case is supported by some evidence, he is entitled to have it presented to the jury in the charge of the court,'" and a specific request for such instruction would be improperly refused, unless the instruction asked for is fully covered by the general charge. ^^ In the absence of ]:)ositive error, however, a party who has presented no requests to charge cannot comphiin that his theory of the case was not pi'operly presented to the jury,'^ especially when the court at the conclusi(m of his charge asks counsel if anything has been overlooked. '^ Instructions to the jury which cover 29 Campau v. Dubois, 39 Mich. 274; Lewis v. Rice, 61 Mieh. 97; Continental Ins. Co. v. Horton, 28 Mich. 173; Clark v. Eiee, 46 Mich. 308; Westra v. Westra's Estate, 101 Mich. .526; Barshow v. Lake Shore, etc., R. Co., 147 Mich. 226; People V. Parsons, 105 Mich. 177; Alton V. Meeuwenberg, 108 Mich. 629; Com.stock V. Georgetown Tp., 137 Mich. 541; People v. Hubbard, 92 Mich. 322; Kendrick v. Towle, 60 Mich. 363; Sword v. Keith, 31 Mich. 247; Pound v. Port Huron, etc., R. Co., 54 Mich. 13; Piewaty v. Shel- don, 167 Mich. 218; Stevens v. Pen- dleton, 94 Mich. 405; Fisher v. People, 20 Mich. 135; Schweyer v. Jones, 152 Mich. 241; Conroy V. Haffner, 182 Mieh. 289; Heddle V. City Electric R. Co., 112 Mieh. 547; Smith v. McDonald, 139 Mich. 225; Houser v. Carmody, 173 Mich. 121 ; American Seed Co. v. Cole, 174 Mich. 42; Keenan v. City of Mt. Pleasant, 176 Mich. 620; People v. Breen, 192 Mich. 39; People v. Hoek, 169 Mich. 87; People v. Kar- aniol, 173 Mich. 354; People v. De Fore, 64 Mich. 693; People v. Mc- Clintic, 193 Mieh. 589; Simon v. Detroit United Ry., 196 Mich. 586. SODikeman v. Arnold, 71 Mich. 656; Wildey v. Crane, 69 Mich. 17; Miller v. Miller, 97 Mich. 151; Al- ton V. Meeuwenberg, 108 Mich. 629; Welling V. Kalamazoo Lumber Co., 177 Mich. 340; Commercial Bank v. (!liatfield, 121 Mich. 641; Comstock V. Norten, 36 Mieh. 277; Winches- ter V. King, 46 Mich. 102. 31 O 'Callaghan v. Boeing, 72 Mich. 669; Cooj)er v. Mulder, 74 Mich. 374; Babbitt v. Bumpiis, 73 Mich. 331 ; People v. Parsons, 105 Mich. 177; Carrel v. Kalamazoo Cold Storage Co., 112 Mich. 34; People V. Jacks, 76 Mieh. 218. 32 Record Pub. Co. v. Merwin, 115 Mich. 10; Hitchcock v. Knights of Maccabees, 107 Mich. 391; Wolf v. Holton, 110 Midi. 166; Ward v. Cook, 158 Mich. 283; Hydrex Silent Exhaust Works v. Scager Engine Works, 189 Mich. 431; Minds v. Keyes, 189 Mich. 629; Alderton V. Williams, 139 Mich. 296; Proulx V. Bay City, 143 Mich. 550; Da- vis V. McMillan, 142 Mich. 391; Peterson v. Toner, 80 Mich. 357; Rankin v. West, 25 Mich. 195; Sjiringer v. Fuller, 196 Mich. 628. 33Wiik V. Black, 188 Mich. 478; West V. Hudson, 171 Mich. 669. § 4 Instructions to Jury 937 all the essential features of the case are sufficient; if counsel desire more explicit instructions, they should present their requests to the court. ^* Where a request to instruct is in plain and simple form, it should be given without change, where proper, and its omission is error unless its substance has been as well given by the court in its own language.^® It has been held the duty of the court to use, if possible, the precise words contained in the request to charge;^® but the general rule is that the exact language need not be fol- lowed if all that is proper and pertinent is contained therein.^' It is i)roper to refuse requested instructions and in lieu thereof for the judge to charge in his own words,'® provided the ground is fully and correctly cov- ered.'® AVhere a requested instruction is partly errone- ous, the judge may refuse it and is not obliged to rewrite it to cure the error.*** It is proper practice and com- mendable for the trial court to extract from requests to 34Mahiat v. Coddo, 106 Mich. Bokenfolir v. Busli, 117 Midi. 444; 387; Eecord Pub. Co. v. Merwin, 115 Miller v. Shuniway, 135 Mich. 654; Mich. 10; Barnett v. Farmers' Mut. Record Pub. Co. v. Merwin, 115 Fire Ins. Co., 115 Mich. 247; Rankin Mich. 10; Beath v. Cliapoton, 124 V. West, 25 Mich. 195; Hollywood Mich. 508; McDonald v. Smith, V. Reed, 55 Mich. 308; Hitchcock 139 Mich. 211 ; Alderton v. Williams, V. Supreme Tent Knights of Macca- 139 Mich. 296; Major v. Brewster, bees, 107 Mich. 391; Lynch v. John- 148 Mich. 623. son, 109 Mich. 640; Peterson v. 36 Babbitt v. Bumpus, 73 Mich. Toner, 80 Mich. 350; Pray v. Cad- 331. well, 50 Mich. 222 ; Barton v. Gray, 36 Cook v. Brown, 62 Mich. 473. 57 Mich. 622; Vernon v. Cornwell, 37 Alton v. Nceuwenberg, 108 104 Mich. 62; People v. Willett, 105 Mich. 629; Lewis v. Rice, 61 Mich Mich. 110; Davis v. Michigan Cen- 97. See also Smith v. McDon- tral R. Co., 147 Mich. 479; Pichard aid, 139 Mich. 225; Moore v. City V. Bryant, 92 Mich. 430; Kinney v. of Kalamazoo, 109 Mich. 176. Folkorts, 84 Mich. 616; Merrinanc 38 Pound v. Port Huron & S. W. V. Miller, 148 Mich. 412; Crowell v. Ry. Co., 54 Mich. 13. Truax, 94 Mich. 585 ; Howry v. Ep- 39 Campau v. Dubois, 39 Mich, pinger, 34 Mich. 35; Hovey v. Michi- 274. gan Tel. Co., 124 Mich. 607; Kar- 40 Williams v. City of Lansing, wick V. Pickands, 181 Mich. 169; 152 Mich. 169. Little V. Williams, 107 Mich. 652; 938 Instructions to Jury §4 chari2:e such matters as sliould be explained to the jury, weaving them into a charge which, from its continuity and liarmony, will be better understood than a succession of abstract propositions would be.*^ §5. Necessity. The trial judge should present the substantial issues of the case, and the principles of law governing, with- out regard to whether any specific instructions are re- quested.*^ And it is expressly provided by statute that the charge or instructions may be given by the court of its own motion. But a party who requests no instructions cannot complain that the court failed to intelligently present his case to the jury." And failure to give a particular instruction is not error, in the absence of a re- quest to so charge," This applies, inter alia, to an in- struction as to the burden of proof.*^ So where a party desires a fuller charge than that given by the court, he must request more specific instructions.*^ 41 Kiiuu'V V. Ferguson, 101 Mich. 178. 42 Barton v. Gray, 57 Mich. 622. 43, Hitehcock v. Supreme Tent of Knights of Maccabees of the World, 107 Mich. .".91. 44 Karwick v. I'ickauds, 181 Mi<-li. 169; Alderton v. Williams, 139 Mich. 296; Lamb v. Lamb, 161 Mich. 80; McDonald v. Smith, i;}9 Mieh. 211; Hovey v. Michigan Telejjhone Co., 124 Mich. 607; Barnett v. Farmers' Mut. Fire Ins. Co., ll.j Mich. 247; Lynch V. .Johnson, 109 Mich. 640; Little V. Williams, 107 Mich. 652; Eecord Pub. Co. v. Merwin, 115 Mich. 10; Bokenfohr v. Bush, 117 Mich. 444; Miller v. Shumway, l.''>5 Mieh. 654; Vernon v. Cornwell, 104 Mich. 62; Crowell v. Truax, 94 Mich. 585; Fraser v. Haggerty, 86 Mich. 521 ; Kinney v. Folkerts, 84 Mich. 616; Peterson v. Toner, 80 Mich. ;;50; Little v. Williams, 107 Mich. 652; Sandler v. Bresnahan, 54 Mich. .342; Cook v. Perry, 4:5 Mich. 62;;; White v. Campbell, 25 Mich. 46:5. But see Wright v. De- troit, G. H. & M. Ry. Co., 77 Mich. 123. Judgment will not be reversed for incorrectly stating the issues unless the court 's attention is called to such errors. Wood v. Wells, 103 Mich. 320. 45 Beath v. Chapoton, 124 Mich. 508; Major v. Brewster, 148 Mich. 623. 46 Schneider v. C. H. Little Co., 200 Mich. 361; Hartwig v. Kell, 199 Mich. 603; Bischoff v. Harris, 198 Mich. 59; Hammond v. Porter, 1.50 Mich. 328; TJlmer v. Seelman, 159 Mich. 253; Logan v. Lake Shore 6 IXSTRUCTIOXS TO JuEY 939 § 6. How charge construed. The charge of the court to the jury must be considered and constiiied as an entirety, and not by excerpts apart from the context.*''' Undue weight shoukl not be given to any portion of it,*® and if it is correct as a whole, it will be sustained, although parts of it, standing alone, may seem o)),jeetiona])le.*^ If part of it is correct and part of it incorrect, it will generally be presumed tliat the jury followed the incorrect part.^° & M. S. Ry. Co., 148 Midi. (iO;;; Davis V. Michigan Cent. R. Co., 147 Mich. 479; Crossette v. Jordan, 132 Mich. 78; Barnett v. Farmers' Mut. Fire Ins. Co., 115 Mich. 247; Ma- hiat V. Codfle, 106 Mich. 387 ; Barton V. Gray, 57 Mich. 622; Pickard v. Bryant, 92 Mich. 430; Pray v. Cad- well^ 50 Mich. 222; Rankin v. West, 25 Mich. 195. See also Major v. Brewster, 148 Mich. 623; Merrinano V. Miller, 148 Mich. 412; Alderton v. Williams, 139 Mich. 296. 47 Schneider v. C. H. Little Co., 200 Mich. 361 ; People v. Finley, :!8 Mich. 482; McGinnis v. Kempsey, 27 Mich. 363; Coots v. Chanilu-r- lain, 39 Mich. 565; Merchants' Bank V. Ortmann, 48 Mich. 419; Provost V. Brueck, 110 Mich. 136; Burdick V. Michael, 3,2 Mich. 246; Knney v. Dutcher, 56 Mich. 308; Daniels v. Clegg, 28 Mich. 32; Wheeler & Wil- son Mfg. Co. V. Walker, 41 Mich. 239; Frankel v. Coot.s, 41 Mich. 75; Greenlee v. Lowing, 35 Mich. 64; Driscoll V. People, 47 Mich. 413; Marshall v. Wabash R. Co., 184 Mich. .593; Bcattie v. City of De- troit, 137 Mich. 319; Kunst v. Rin- gold, 116 Mich. 88; Eggleston v. Boardman, 37 Mich. 14; Dibble v. Nash, 47 Mich. 589; Ck'vel.nnd v. Miller, 94 Mich. 97; Russell v. Phelj.s, 42 Mich. 377; Whelpley v. Stoughton, 119 Mich. ;!14; Welch v. Ware, 32 Mich. 77. 48 Eggleston v. Boardman, 37 Mich. 14; Seoley v. Swift & Co., 151 Mich. 545. 49 Coots V. Chamberlain, 39 Mich. 565; Lyon v. Watson, 109 Mich. 390; Bouma v. Dubois, 169 Mich. 422; Whelpley v. Stougliton, 119 Mich. 314; Pi'ovost v. Brueck, ll(t Mich. 136; Cleveland v. Miller, 94 Mich. 97; Kuney v. Dutcher, 56 Mich. ;!08; Beattie v. City of De- troit, 1:17 Mich. 319; Greenlee v. Lowing, 35 Mich. 64 ; People v. Finley, 38 Mich. 482; Watson v. Watson, 58 Midi. .",08; Wheeler & Wilson Mfg. Co. v. Walker, 41 Mich. 239; Brown v. McCord & Bradfield Furniture CV)., 65 Mich. 360; Kunst v. Ringold, 116 Mich. 88; Wegner V. Herkimer, 167 Mich. 587; An- derson Carriage Co. v. Pangs, 153 Mich. 580; Frolich v. Independent Glass Co., 173 Mich. 428; West v. Hudson, 171 Mich. 669; .lordon v. Wixsoii, 189 Mich. 288; Rouse v. Michigan, etc., R. ('o., 158 Mich. 109; Butler v. Rockett, 191 Mich. 499; Swan v. Gregory, 195 Mich. 457; Hall v. City of Flint, 195 Mi68. Co. V. Central Michigan Land Co., Instructions as to effect of wilfully 156 Mich. 11. swearing falsely, see O 'Rourke v. 76 Hastings v. Boland, 136 Mich. O 'Rourke, 43 Mich. 58; Hillman v. 240. Schenck, 68 Mich. 293 ; Cole v. Lake 77 Laviolette v. Alberts, 126 Mich. Shore & M. S. Ry. Co., 95 Mich. 96. 77; Malinowski v. Detroit United 78 See Lovely v. Grand Rapids & Ry., 154 Mich. 104; Knowles v. Peo- I. Ry. Co., 137 Mich. 653; Conkey pie, 15 Mich. 408; Marcott v. Mar- V. Carpenter, 106 Mich. 1; Dibble quette, H. & O. R. Co., 49 Mich. § 11 Instructions to Jury 945 error to refuse to charge that the jury should consider the fact testified to by a witness that he was hired to de- tect viohitions of the local option law, and that such fact should be considered in determining- the credit to be given to his evidence.'® So where there is evidence that a witness is demented, it is proper to charge that if the jury believes from the evidence that the witness is with- out sufficient mental capacity to understand what is go- ing on, they cannot consider his testimony.'" So where a witness is shown to have been convicted of crime, it is proper for the court to instruct the jury that they may consider that fact in determining his credibility.'^ It is proper to instruct that the jury are under no obligation to believe any of the testimony of a witness who swears falsely as to one material fact, but it is safer to instruct them further in the same connection that the credibility of such a witness is exclusively a question for them.'^ It is improper to instruct that if the jury believe a wit- ness has sworn falsely or erroneously in any part of his testimony, the.y will disregard all his evidence, because leaving out the question of materiality and permitting the jury to disregard all his evidence if they find that he 99; People v. O'Brien, 68 Mich. 468. the jury. Uiiderliill v. Ky. Co., 81 False swearing must be intentional Mich. 43; Michigan Pipe Co. v. or wilful. Rawlings v. Clyde Plank Michigan Fire & Marine Ins. Co., 92 & Macadamized Road Co., 158 Mich. Mich. 482, 488; Goppelt v. Burgess, 134. Instruction as to testifying ].'!2 Mich. 28; Preuschoff v. B. falsely in material matters, specify- Stroh Brewing Co., 132 Mich. 107; ing them, held properly modified liy Ahhott v. City of Detroit, loO Mich, omitting the particulars named. 24."); Zart v. Singer Sewing Machine Fraser v. Haggerty, 86 Mich. 521. Co., 162 Mich. 387. The jury are not bound to believe 79 People v. Rice, 103 Midi. 3.j0. a witness whose testimony is incon- 80 Bowdlc v. Detroit St. Ry. Co., sistent with the circumstances, al- 103 Mich. 272. though there is no other testimony 81 Conkey v. Carpenter, 106 Mich, bearing on the same question. If 1. there is anything tending to create 82 Hillman v. Schwcuk, 68 Mich, distrust in the trutlifulncss of a wit- 293. ncss, the question must be left to 1 Abbott— 60 946 Instructions to Jury § 11 lias sworn erroneously on any point.'' So such an in- struction is properly refused where it leaves out the ques- tion of intentional falsehood and the question of cor- roboration by other witnesses." And it is reversible error in an instruction on the credibility of a party as a witness to assume improperly that he was guilty of per- jury in a prior suit.*® It is not error to refuse to charge that the jury liad no rigiit to disregard the testimony of any witness, merely because he was employed by de- fendant railroad company, where there was nothing to indicate that the jury would so regard the testimony of any witness and the court had given general instructions as to credibility.*^ And the court has no right to instruct that servants or agents of a party, called as witnesses, have any such interest as affects their testimony.*''' It is proper to charge that if the knowledge or employment of a witness has impaired or biased his judgment, such fact may be considered in weighing his testimony, where counsel have commented on their arguments on the in- terests of the witnesses.** It is not the right of either party to insist that the court call attention to the testi- mony of a particular witness and give cautionary instruc- tions as to its credibility, altliough it may not be error so to do, but it is sufficient if the court lays down general rules to guide the jury in weighing testimony.** And it is error to instruct, where an attempt has been made to im})each a witness, that one testifying he has never heard the reputation of the witness for truth jind veracity ques- tioned is not entitled to the same consideration as one who testifies that he has heard it questioned.*" «3Gerardo v. Brush, 120 Mich. 87 Marquette H. & 0. R. Co. v. 405. Kirkwood, 45 Mich. 51. «4Gcrardo v. Brush, 120 Mich. 88 McDonoll v. Rifle Boom Co., 405. 71 Mich. (il. •5 Place V. Place, 139 Mich. 509. 89 Hcddle v. City Electric Ry. Co., 86Hintz v. Michigan Cent. R. Co., 112 Mich. 547. 140 Mich. 565. 90 Conkcy v. Carpenter, 106 Mich. 1. § l.S Instructioxs to Jury 947 It is proper to instruct that the testimony of expert witnesses should be given the same consideration, every- thing else being equal, as that of any other witness.®^ § 12. Charge as to failure to produce witnesses. Tlie court may proi)ei*ly comment on the failure to call a witness to testify as to a material fact peculiarly within the knowledge of the witness, or to produce obtainable testimony. '2 However, the court is not obliged to in- struct that the absence of a material witness for the op- posing party militates against such party.'^ And it is error to so instruct that the jury may draw unfavorable inferences against one claiming the protection of the statute precluding plaintiff from testifying to matters within the knowledge of the deceased, in certain cases.'* So where an action is brought by the assignee of a claim, who lias no knowledge of the facts in issue, it is error to charge that his abseiace during the trial should be con sidered l>y the jury.^^ § 13. Charge as to duties of jury. It is propel' to charge that the jury must not be con- trolled by sympathy,'^ but wliei'c it appears that the ver- dict was just, and was not brought about by sympatliy loi- piaiiilirr, it will not ))e disturbed because of a refusal so to charge.^' It is not necessarily error to refuse to instruct that it is the duty of the jury to reconcile their opinions if able to do so but that no individual is re- (|iiir('d to suri'ender his individual opinion.®* Whei'e a 91 Aiitliony v. Cass County ironic 95 Hitclicock v. Davis, 87 Midi. Tol. Co., 165 Midi. ;i8S, ;;!)9. fil29. 92 Griggs v. Saginaw & F. R. Co., 96 Rhpalinn v. Rairy, 27 Midi. 217. 196 Midi. 2r)8; Dowagiae Mfg. Co, Spo also Robhins v. Magoon & Kim- V. Rdiiiciflcr, 181 Midi. .l.tS. ball Co., 19:1 Mifh. 200. 93 Cross V. Lake Shore & M. S. 97 Doyle v. Dobson, 74 Midi. r,G2. Ry. Co., 69 Midi. :i6;;. 98 See Shaller v. Detroit TTnited 94 Ludlow V. Pearl's Estate, 5.") Ry., 1.39 Mieli. 171. Midi. :!12. 948 Instructions to Jury §13 railroad is a party, it is not improper to caution the jur^' against a popular prejudice, against railroads, coupled with an admonition to be impartial and decide justly.*® § 14. Charge as to result of verdict. Tlio jury should not bo charged that plaintiff cannot lie allowed costs unless he recovers a certain amount.^ § 15. Charge as to burden of proof, etc. On request, a charge should be given as to the burden of proof,^ and it is proper to instruct as to the preponder- ance of evidence.^ But it is improper to require the jury to find for a party only on ''clear and convincing proof," * or to require the showing of a state of facts from which no other "rational conclusion" can be drawn. ^ Where the probabilities either way are weak, it is error to direct the juiy to find the fact by the greater probability with- out an instruction that the evidence must satisfy them that tlie fact exists.^ It is proper to caution tlie jury as to the care to be used in considering the testimonv of M Cornell v. Manistee & N. E. R. Co., 117 Mich. 2:!8. IJohnson v. Henry, 127 Miy lire as follows: dollars on a dwelling house at , and dollars on the furniture and other goods in said dwelling house. 2. That the plaintiff was then and at the time of the loss hereinafter mentioned interested in the said house and goods to the amounts so insured thereon respectively. 3. That, on ,19..., the said house and goods were damaged by fire, of which the defendant had notice. 4. That the amount of said damage to the plaintiff is dollars, which sum is now due and payable by the defendant to the plaintiff. 5. Wherefore, etc. INTEREST See Executions (rate on judgment); Judgments; Costs; Eeplevin; Garnishment; Witnesses; Jury; Judges. INTERLOCUTORY See Judgments; Defaults; Costs; Certiorari; Error, Writ of; Mandamus. INTERPLEADER See Garnishment. INTERPRETERS See Witnesses. INTERROGATORIES See Depositions; Garnishment. INTERURBAN RAILROADS See Commencement of Actions. INTOXICATING LIQUORS See Trial. INVENTORY See Attachment; Exemptions. IRREGULARITIES Sue Amendments. JaiTv T.tberties 953 ISSUES See Instructions to Jury; Ck>sTs (several issues); Garnishment. Framing issues, see Motions, etc.; Mandamus; Probate Courts. JAIL LIBERTIES By statute, '* every person who shall be in the custody of the sheriff of any county by virtue (1 ) of any capias ad respondendum, or (2) any execution in a civil action, or (?>) any attachment for the non-payment of costs, or (4) in consecjuence of a surrendei* in exonei'ation of liis bail; sliall be entitled to the liberty of the jail limits, whicli limits shall be co-extensive with tlie limits of such county, upon executing" a bond to such sheriif and his assigns, by tlie prisoner and one or more sufficient sureties, being in- habitants and householders of the county, in a penalty not less than double the amount of the sum in which the sherifi' was required to hold the defendant to bail, if he be in custody on original process, or be surrendered in ex- oneration of his bail before judgment docketed against him; or not less than double the amount dii'ected to be levied by the attachment or execution, if he be in custody upon attachment or execution; or not less than double the amount for which judgment shall have been rendered against him, if he be surrendered after judgment dock- eted. Such bond shall be conditioned, that the person so in custody of such sheriff, shall not at any time or in any manner, escape or go without the jail limits of the coun- ty, until legally discharged."^ Other provisions of the statute relate to recommitment foi- insufficiency of the sureties, surrender by the sure- ties on the bond, escape of the prisoner, actions on the ))ond, assignment of bond, etc.^ The bond is not invalid merely ])ecause of clerical mis- l.Iud. Act, ch. 25, §§22-24; Z.Iud. Act, ch. 25, §§2r)-42; Conij). Laws 1915, §§ 1.^000-1. '{002. (Vimp. Laws 1915, §§ l.'^OO.I -1.^020. Rcc also Executions, § 86. f)r>4 Jail Liberties takes, especially where immediately: coirected.^ Tlie bond stands as an indemnity to the officer and to the ,iud.^ment creditor, and also to the successor of the officer without any written assigmnent to him, and on breach of the bond the latter may assii>;n it to the party for whose benefit it was given.* Where a new bond may be taken in ])lace of an old one a peison who signs such a bond as an additional sni'ety, after delivery to the sheriff, on the demand of tiie hitter, is bound thei'eby.* The bond will not su])port a recovery thereon whei'e it recites that the principal was in custody by virtue of a capias ad respondendum instead of a capias ad satisfaciendum.^ Whei'e tile sheriff, after taking tlie ))()nd, discovers that any surety is insuflicient he may i-etake and iin))rison the debtor until other good and sufficient sureties are ofl'ered. Likewise the statute provides for a suirender of the principal by the sureties on the bond, how such surren- der shall be made, and what shall constitute an escape of the jn'incipal so as to make the sni'eties liable on the bond. In an action on the bond by the sheriff, defendants may give notice of a voluntary return of the prisoner to the liberties of the jail fiom which he escaped, or his recapture by the sheriff, before the commencement of the suit;''' but a judgment against the sliei-iff in an action against him foi- an escape is conclusive of iiis riglit to recover against such prisoner and his sureties, wliere due notice is given them of the suit. In an action on the bond, the recoveiy of a judgment against plaintiff as sheriff for the escape of the i^risoner is evidence of his damages, jnst as if judgment had l)een collected, and he may also recover his costs and reasonable expenses in defending the suit against him. sin re Fiiodricli, li:! Mifli. 408. 6 fluiin v. C.oaiy, 44 Mifli. 615. 4 Kniso V. Kino;shuiy, 10i2 Mit'li. 7 Error to refiisp to poimit ameml- 100. iiuMit to allof^o sucli dofenso. Smith, 6 K ruse v. Kiiiffslmry, lO'J Midi. Stui'u;('nii & Co. v. (irosslitilit, 12.'! 100. Mi.li. S7. Jail Liberties 9«*^ By statute, where the boiid is forfeited the creditor, or his executors or administrators if he has died, is entitled to an assiirnment of the bond by indorsement. This is not a mandatory provision to the extent of prohibiting a sheriff from assigning by his deputy.* The statutes provide at length what shall constitute an escape and the liability of the sheriff therefor. If the defendant escape from the jail limits out of custody on the ca. sa., the plaintiff has the choice of several reme- dies. He may either take an assignment of the bond for the jail limits, or sue the sheriff" for the escape, or issue a new writ.^ If, instead of taking an assignment of the bond executed for the jail liberties, the plaintiff" prose- cute the sheriff' for the escape, the court will stay all pro- ceedings on the judgment recovered therein against the sheriff until he shall have had a reasonable time to prose- cute a suit upon the bond, and collect the amount of any judgment he may recover therein, unless such escape was committed with the assent, aid or assistance of such sheriff. Form of Boud for Liberty of Jail Limits Know all mea by these presents, that we, C. D., of , as principal, and E. F. and G. H., of , as sureties, are held and firmly bound unto S. T., sheriff of the county of , in the sum of dollars, lawful money, to be paid to the said S. T., or to his certain attorney, executors, administrators, or assigns, for which payment, well and truly to be made, we bind ourselves, our, and eaih of our, heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, arid dated this day of , in tlie year one thousand nine hundred Whereas the above-bounden C. D. is now in custody of the said S. T., sheriff, by virtue of a writ of capias ad respondendum [or other writ] issued out of the circuit court for the county of , on the day of , A. D , at the suit of A. B., as plaintiff, and against the above-bounden C. D. as defendant, for the sum of dollars, which said writ was made returnable on the day of , A. D 8 Hughes V. Hally, 137 Mich. 43.3. 9 See Grosslight v. Wayne Circuit Judge, 127 Mich. 414. 956 Jail Liberties Now, tlic condition of tliis obligation is such that if the abovc-bounden C. D. shall remain a true and faithful prisoner, and shall not at any time or in any manner, escape or go without the jail limits of the said county of until legally discharged, then this obligation is to be void; otherwise to remain in full force and effect. C. D. LL. S.] E. F. [L. S.] (Add justification.) G. H. [L. S.] JOINDER See Error, Writ of; Pleading. JOINDER AND SPLITTING OF CAUSES OF ACTION 1. Joinder Right to join separate causes of action. In actions ex contractu. In actions ex delicto. Actions founded on statute and actions at common law. Causes of action as affecting all parties and alike. Ordering separate trials. Inconsistent counts. § 8. Abandonment of special count. § 9. Effect of misjoinder. § 10. Consolidation of actions. II. Splitting Cause or Causes of Action § 11. Rule. CrossBefcrcncc: Pleading (necessity for separate counts, etc.). I. Joinder § 1. Right to join separate causes of action. The law as to what causes of action may be joined was radically changed by the Judicature Act wdiich pro- vides that, with certain exceptions hereinafter noted, "plaintiff may join in one action, at law or in equity, as many causes of action as he may have against the de- fendant, but legal and equitable causes of action shall not be joined."^ This is supplemented by a new pro- 1 Jud. Act, ch. 8, § 1 ; Comp. Laws 1915, § 12309. § 1. § 2 Ji 3. S 4. § 5. S 6. § 7. § 3 Joinder and Splitting of Causes of Action 957 vision ill tlie 1916 Circuit Court Rules that "a count in trespass on the case may be ,ioined with a count in as- sumpsit in an action of assumpsit, and a count in assump- sit may be joined with a count of trespass on the case in an action of trespass on the case.^ Formerly, while causes of action ex contractu could all be joined and while causes of action ex delicto could generally be joined, counts in form ex delicto could not be joined with counts in form ex contractu.^ § 2. In actions ex contractu. Even under the old practice before the Judicature Act, plaintiff, in actions in form ex contractu, could join as many different counts as he had causes of action of the same nature.* He could join special with common counts in assumpsit,* and counts on a contract with counts on an award.^ § 3. In actions ex delicto. Counts ex delicto could be joined to some extent before the Judicature Act even though the form of action was not the same, but decisions holding that there could be no joinder because of the difference in form of action are 2Cir. Ct. Rule 22, §4. dard Paper Co., 182 Mich. 476, 48:?; .Joinder of causes of action in ac- Mahder v. Wax, 192 Mich. 479. tion by road contractor personally 4 Tedd 's Pr. 10, 11. and as assignee against casualty 5 Carland v. Western Union Tel. company, sec Sullivan v. Fidelity & Co., 118 Midi. :!G9. Casualty Co., 208 Mich. 68. Common counts may be joined 3 Haines v. Beach, 90 Mich. r>6>\. with a special count waiving a tort. The question generally was First Nat. Bank v. Steel, 1;j6 Mich, whether the counts or causes of ac- •'588; Tregent v. Maybee, 54 Mich, tion were in fact based on contract 226. or tort. See Churchill v. Howe, 186 Siteeial count on a judgment may Mich. 207; City of Kalamazoo v. l>e joined with the common counts Standard Paper Co., 182 Mich. 476, and with counts for use and occupa- 48:?; Manistee Navigation Co. v. tion. Hogsett v. Ellis, 17 Mich. Sol. Louis Sands Salt & Lumber Co., 174 6 Rawlinson v. Shaw, 117 Mich. 5. Mich. 1; City of Kalamazoo v. Stan- 958 Joinder and Splitting of Causes of Action § 3 110 longer the law.'^ A cause of action for false iinprison- nieiit may be joined with one for shmder,* as may counts for false imprisonment and malicious prosecution,® or counts for malicious prosecution and slander.^" Like- wise, counts for alienating- a wife's affection and for seduction may be joined." The statutory action given to i)ersonal representatives for negligently causing the death of their decedent may be joined with the action under the survival act given them for negligent injuries to the person of their decedent. ^^ § 4. Actions founded on statute and actions at com- mon law. It was formerly held that an action founded ui)on a statute could not be joined with one at common law,^^ but this nile is changed by the Judicature Act. § 5. Causes of action as affecting all parties, and alike. It is a well settled rule that the several causes of action must all exist in the same right, and affect all the jwirties to the action, or they cannot be joined; and a party cannot join a demand as a representative of another with one in his individual capacity, nor a de- 7 Charters v. Industrial Works, 13 Peoiik- v. Wasiiteiiaw Circuit 179 Midi. 1, 17; Cribbs v. Stevcr, .hul^n-s, 1 Doug. 434, 447; Hogsctt 181 Mifh. 82, 86. v. Ellis, 17 Midi. 360. See also 8 Moore v. Thoiiipsoii, i)2 Midi. Wadiusett Nat. Bank v. Steel, l.'J.j 498. Midi. 688, holding that a creditor 9 Haskiiis v. Ealston, 69 Mich. 63. of a corporation cannot join with the 10 Slater V. Walter, 148 Mich. 650. couiniou counts in assumpsit and See also Cadwell v. Corey, 91 Mich. with counts based on fraud, a count 335. l,ased on the statute imposing Ha- ll Mead V. Randall, 111 Midi. 268. bility on directors in three times the 12Carbaiy v. Detroit United Ry., amount |>aid in on stock held by l.">7 Mich. 683; Ely V. Detroit I'nited them for the violation of certain Ky., 162 Mich. 287. Contra, see statutory jirovisions. Hurst V. Detroit City Ry. Co., 84 Mich. 539. § 5 Joinder and Splitting of Causes of Action ^^^ mand against one as an individual with one against him as a representative.^* So where the interests of different persons are not joint, they cannot sue jointly," and where defendants are not jointly liable they cannot be sued in one action. ^^ Where several persons are joint trespassers, a joint action may be maintained against them.^"^ Where several persons insured by the same policy assign theii' interests to the same person, he may join all the said interests in the same action." So where one policy of insurance was issued to plaintiif and a third person, each of whom owned their shares in severalty, and another policy was issued to plaintiff alone, and no part of the property of the third person was destroyed, plaintiff may sue alone on both policies in one action." The Judicature Act provides that ''when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant, the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for unit- ing the causes of action in order to promote the con- venient administration of justice."^" 14 See Winslow v. .Joiinoss, 64 distinct torts, charged to each, with- Mich. 84; Burhaus v. Corey, 17 out concert of action or community Mich. 282. of responsibility, cannot be joined. ISDurfcc V. Al)bott, 50 Mich. 470; Otto v. Village of Highland Park, Walsh V. Varney, :!8 Mich. 7:!. 204 Mich. 74. 16 People V. Sheehan, 118 Mich. " Chapter 8 of the .Judicature Act, 5.'j9. devoted mainly to section 1 above nWienskawski v. Wisner, 114 quoted, is entitled Moinder and Mich. 271, holding persons connected severance of causes of action and with execution sale joint trespassers. the con.solidation of actions.' *Ae- 18 Mercantile Ins. Co. v. Holthaus, tions ' and 'causes of action,' though 4.'J Mich. 423. often used as synonymous, do not ISBeebe v. Ohio Farmers' Tiis. strictly and technically have the Co., 9.3 Mich. .'514. same meaning. To what extent the 20Jud. Act, ch. 8, SI; Comp. Legislature had in mind tltf dis- Laws 191.5, § 12.309. tinction when including the two Causes of action against indepen- terms in this title, and, if at all, dent tort-feasors for diftVr(>nt and jnst what definitions were intended, 9G0 Joinder and SruTTixn of Causes of Action § 6 §6. Ordering separate trials. By the Judicature Act, "if it appears that any such may be conceded as somewhat cou- .ieotural in view of the difficulties found attending attempts to give general definitions applicable under all conditions (vide 'Action,' vol. ] of Corpus Juris). But that por- tion of the section and chapter ap- I)licable here deals with ' causes of action,' which are generally recog- nized and often defined as the fact or combination of facts giving rise to or entitling a party to sustain an action. "The provisions of section 1 re- lating to joining actions between one plaintiff and one defendant, and several suits commenced against joint and several debtors, have no application to this declaration. We liave here three separate defendants and two plaintiffs. 'Where there is more than one plaintiff, the cause of action must be joint,' which may l)e passed as meaning the plaintiffs must be legally and jointly inter- ested as 'actors' or plaintiffs in the causes of action joined, and, as to these three defendants, the alleged liability 'must be asserted against all,' for all are 'material' if prop- erly made defendants, 'or sufficient grounds must appear for uniting the causes of action to promote the convenient administration of jus- tice. ' "No mention of convenience is made in the declaration, nor does it appear that convenient administra- tion or the ends of justice will be promoted by mingling the issues of these two distinct causes of action for separate torts, charged to have been committed by different tort- feasors, without CO operation in the respective trespasses alleged, de- j)endent on different lines of proof and demanding separate considera- tion, with separate verdicts and judgments as to each. Inconven- ience, confusion of issues, and prej- udice from testimony admissible as to one and inadmissible as to the other, when trying together distinct common-law causes of action for damages against different defend- ants, are as inferable from such in- 7iovation as that it would facilitate or convenience the administration of justice. The distinctions V>etween actions at law and suits in chancery liave not been abolished in this state, and these tort actions are triable by jury. Were the issues triable be- fore the court without a jury, as in chancery, the convenience and pro- priety of their consolidation might be more apparent. While its provi- sions as to joinder of actions and l)arties are broad in terms and go far beyond the former settled prac- tice, it is inferable from the general tenor of the Judicature Act consid- ered in its entirety and, we think, from the very language under con- sideration relative to parties defend- ant, that it was not the legislative intent to ignore the fundamental principles of procedure to the extent proposed in this declaration, where, as plaintiffs sound their counts, it is sought to join in a single action and have determined the liability of alleged independent tort-feasors for different and distinct torts charged to each, without concert of action or community of responsibility, in- evitably amounting to both a join- der of parties severally lialile and § 8 Joinder and Splitting of Causes of Action 961 causes of action cannot be conveniently disposed of to- gether, the court may order separate trials." ^^ § 7. Inconsistent counts. Formerly, inconsistent counts could not be joined,^' but the joining of two repugnant counts did not pre- clude a recovery upon one of them, especially where one was abandoned at the trial.^' However, the 1916 Circuit Court Rules now provide that '* inconsistent causes of action or defenses are not objectionable, and when the party is in doubt as to which of two or more statements is true, he may in separate counts or para- graphs allege or charge facts although the same may be inconsistent with other counts or paragraphs in the same pleading.'"^* § 8. Abajidonment of special count. On the trial, plaintiff may abandon the special count and seek a recovery on the common counts alone.^^ But where suit is brought both on a special and on the com- mon counts, and the two positions are inconsistent, plaintiff cannot, after the evidence is all in, abandon the special count and recover on the common counts, where the whole trial was conducted on the theory of recovering on the special count.^^ a joinder of different causes of ac- Murphy v. McGraw, 74 Mich. 318 tion, each against a different de- (count for breach of warranty and f endant. ' ' Otto v. Village of High- to recover money paid without con- land Park, 204 Mich. 74. sideration) ; Hogle v. Mevering, 161 21Jud. Act, ch. 8, §1; Comp. Mich. 472. Laws 1915, § 12309. 23 Berringer v. Cobb, 58 Mich. 22 Counts held not inconsistent, 557. see Loudon v. Carroll, 130 Mich. 79 24 Cir. Ct. Eule 21, § 7. See also (common counts and counts for Pleading. fraud and deceit) ; Barton v. Gray, 2B Wynian v. Crowley, 33 Mich. 48 Mich. 164; Kimball & Austin 84; Berringer v. Cobb, 58 Mich. Mfg. Co. V. Vroman, 32 Mich. 310 557. (count for breach of warranty and 26 Wetmore v. McDougall, 32 count for money had and received) ; Mich. 276. 1 Abbott— 61 962 Joinder and Splitting of Causes of Action § 9 § 9. Effect of misjoinder. In order to urge a misjoinder of causes of action, de- fendant should move to dismiss the action or set up the defense in tlie notice attached to the plea," or a motion to compel an election may be made at the trial.^* It is held that a misjoinder is cured by verdict where no ob- 'jection is made.^* § 10. Consolidation of actions. Where the plaintiff has two causes of action which may be joined in one action, he ought to bring one action only; and if he commence two actions, he may be com- pelled to consolidate them. The statute provides that whenever several suits are pending in the same court, by the same plaintiff against the same defendant, for causes of action which may be joined, the court in which they are being prosecuted may, in its discretion, order the several suits to be consolidated into one action. And when several suits have been commenced against joint and several debtors in the same court, the statute pro- vides that the plaintiff may, in any stage of the pro- ceedings, consolidate them into one action.^'' II. Splitting- Cause or Causes of Action § 11. Rule. Where a party has several existing causes of action growing out of the same contract, or resting in matter of account wliich may be joined and sued for in the same action, they must be joined; and if in such case the de- mands or causes of action be split up, and a suit brought for a part only, and subsequently another suit for the residue, the first action may be pleaded in bar of the second. ^^ The same principle has been applied to claims 27 See Pleading. 80 See Consolidation of Actions. 28 See Pleading. 81 Kruce v. Lakeside Biscuit Co., 2»Schafer v. Boyce, 41 Mich. 256. 198 Mich. 736; Button v. Shaw, 35 Joint Ownership 963 for damages in actions ex delicto.^^ So a single cause of action cannot be split up and made the subject of two or more actions, for the reason that no person should be unnecessarily harassed with a multiplicity of suits.^^ JOINT LIABILITY See Attachment; Discontinuance; Limitation of Actions; Judg- ment; Defaults; Executions; Garnishment; Parties, JOINT OWNERSHIP Cross-Beferences: Replevin; Tenants in Common. The English rule is that, in actions for injuries to per- sonal property, joint tenants must join.^ Thus, a joint tenant of a chattel cannot maintain trover against his co-tenant for any interference with his right of posses- sion, unless there be a destruction of the chattel or some- thing equivalent thereto.^ A sale of a chattel by one of two joint tenants is not a conversion, unless it operates to deprive his co-tenant of his property.^ The general rule is that in actions for injuries to real property, joint tenants must join.* Mich. 431; Milroy v. Spurr Moun- 11 Chit. PI. 74; Pickering v. tain Iron Min. Co., 4.3 Mich. 231 Pickering, 11 N. H. 141; Glover v. (splitting claim for several months' Austin, 6 Pick. (Mass.) 209. labor) ; Blackburn v. Blackburn, 2 26 Am. & Eng. Eneye. Law, 787; 132 Mich. 525. See also Stickel v. citing Wickman v. Wickman, 2 K. Steel, 41 Mich. 350; Reid, Murdoch & J. 478; Mayhew v. Herrick, 7 C. & Co. V. Ferris, 112 Mich. 693; B. 229, 62 E. C. L. 229; Bleaden People V. Detroit, G. H. & M. Ry. v. Hancock, 4 Car. & P. 152; Fen- Co., 157 Mich. 144; Harrington v. nings v. Granville, 1 Taunt. 241; Huflf & Mitchell Co., 155 Mich. 139; Barnardiston v. Chapman, 4 East Muir v. Kalamazoo Corset Co., 155 121. Mich. 441. 3 26 Am. & Eng. Encyc. Law, 787. 82 Allison V. Connor, 36 Mich. 283. 4 1 Chit. PI. 74; Draper v. Wil- 33 Jensen v. Gamble, 191 Mich. liams, 2 Mich. 536; Day v. Walden, 238, applying rule to action on a 46 Mich. 575. See also Achey v. note. Hull, 7 Mich. 423; Gent v. Lynch, 964 Judges § 1 JUDGES § 1. Qualifications. § 2. Powers, duties and liabilities, § 3. Holdings court for other judges. § 4. Disqualification. § 5. Transfer of causes because of interest of judge. § 6. Application for transfer. § 7. Consent for transfer. § 8. Order for hearing application. § 9. Hearing of application. § 10. To what county transferred. § 11. Effect of transfer. § 12. How transfer effected. § 13. Fees of clerk. § 14. Effect of office becoming vacant. § 15. Effect of removal beyond limits of jurisdiction. § 16. How vacancies filled. ' Cross-Eefcrences: Courts; Supreme Court; Circuit Courts; Probate Courts; Justices of the Peace; Bill of Exceptions (who may settle); Trial (misconduct of); New Trial; Mandamus; Contempt. § 1. Qualifications. By statute, no person is eligible to the office of circuit judge unless he is an attorney duly admitted to practice in this state. ^ A member of the legislature is forbidden by the constitution to hold the office of circuit judge.^ § 2. Powers, duties and liabilities. No circuit judge can practice or act as counselor or attorney in any court of this state during his term of office.^ Nor can lie have any partner practicing in the 23 Md. 58; Dewey v. Lambier, 7 Before the Judicature Act circuit Cal. 347 ; Merrill v. Inhabitants of judges were merely prohibited from Berkshire, 11 Pick. (Mass.) 269. practicing in their own circuits. 1 Jud. Act, 'ch. 2, §40; Comp. A person who has determined a Laws 1915, § 12123. suit as judge cannot afterwards act 2 Const. Art. V, see. 7. See Mur- as attorney or counselor in it. Jud. tba V. Lindsay, 187 Mich. 79. Act, ch. 1, §76; Comp. Laws 1915, 8 Jud. Act, ch. 4, § 9; Comp. Laws § 12081. Nor can he act as a judge 1915, §12256; Gallagher v. Kern, in a controversy with which he has 31 Mich. 138; Bashford v. People, been connected as counsel. Shan- 24 Mich. 244. non v. Smith, 31 Mich. 451. § 3 Judges 965 circuit court of which he is judge, nor be directly or in- directly interested in the costs of any suit that is brought in his circuit, except in those suits in which he is a party or is interested in the subject-matter.* He is also for- bidden to demand or receive any compensation for giv- ing his advice in any matter pending before him or which he has reason to believe wdll be brought before him for decision, or for drafting or preparing any papers or other proceedings relating to any such matter, except in those cases where fees are expressly given by law to such judge for services performed by him.^ So the judges of the circuit courts are rendered by the constitution in- eligible to any other than a judicial office during the term for which they are elected, and for one year thereafter.® In all judicial circuits where there is more than one circuit judge, provision is made by statute as to their re- spective powers, presiding judges, reservation of ques- tions of law for the full court, sitting together of two judges in the hearing of trials, apportionment of busi- ness, etc.'' § 3. Holding court for other judges. The constitution provides that each circuit judge shall hold court in the county or counties within the circuit in which he is elected, and in other circuits as may be pro- vided by law.^ It is provided by statute that '^upon proper showing and request made by the presiding judge of any of the circuit courts of this state, that the busi- ness of such court has increased beyond the capacity of 4 Jud. Act, ch. 4, § 10; Comp. that judges of the circuit court may Laws 1915, § 12257. hold court for each other when re- 5 Jud. Act, ch. 4, §11; Comp. quired by law, legislation requiring Laws 1915, § 12258. judges of a particular circuit to 6 Const. Art. VII, see. 9. hold terms of court in a certain cir- 7 Jud. Act, eh. 2, §§47-54; Comp. cuit and vice versa, under certain Laws 1915, §§12130-12137. circumstances, is constitutional. Toll 8 Const. Art. VII, sec. 8. v. Jerome, 101 Mich. 468. Under the constitutional provision 966 Judges § 3 the judge or judges of said circuit court to properly dis- pose of, or in case a vacancy sliall exist in the office ot the circuit judge in any judicial circuit, or by reason of the inability of any circuit judge to discharge the duties of his office, it shall be the duty of the Governor to desig- nate a judge or judges of some other circuit or circuits, whose official duties will permit for the time being, to hold the court temporarily for such time as he may deem advisable, and the judge or judges so designated shall perform the duties and hold court for such time in like manner and with like effect as they severally and re- spectively could have done if they had been elected to such office in the circuit where such duties as judge are performed."® If a judge of probate removes out of his county, or be temporarily absent therefrom, or shall die, resign, or be necessarily occupied in the performance of other duties required of him by law, or otherwise become incapaci- tated for executing the duties of his office, the judge of the circuit court for such county shall hold the probate court unless he also be incapacitated for executing such duties, or the judge of any circuit court or the probate judge of any county of this state, who is not legally in- capacitated for so executing the duties of such probate judge, may upon the written request of such probate judge or in case of his absence or legal disability to make such request, then upon the request of the circuit judge of such county, hold the probate court, and the judge so acting shall have all the powers and perform all the duties of the judge of probate therein, until the return of the judge of probate so temporarily absent or such incapacity is removed, or until another judge of probate shall be elected or appointed and qualified, and if any 9 Jud. Act, eh. 2, § 267. No acceptance of appointment is Statute is constitutional. In re necessary. Harvester v. Kelly, 23 Bromley's Estate, 113 Mich. 53. Mich, 337. § 4 Judges 967 such judge so acting as judge of probate shall have be- gun any hearing which is not concluded at that time he shall have authority to hear such matter to its conclu- sion and give judgment thereon. In all cases where a circuit judge or a probate judge of any other county shall perform the duties of the judge of probate, an entry of the reason for such circuit judge or probate judge so performing such duties shall be made in the records of such probate court. ^° § 4. Disqualification. Judges are always subject to that fundamental and universal maxim that no man shall be a judge in his own cause, which includes not only any cause in which the person exercising judicial authority is a party to the record, but also any matter in which he is interested. This maxim is deeply rooted in the common law and can never be overlooked wherever impartial justice is one of the objects of judicial administration.^^ Lord Coke as- serts that ''even an act of parliament made against natural equity, — as to make a man a judge in his own case, — is void in itself." An express provision of law, investing a court with the power to try all cases involv- ing certain amounts or of a certain character, would give the judge no right to try his own cause or give final judgment in his own favor, though the case in every other respect should fall within the class he is expressly authorized to try. An exception of such cases would be implied, and the exception would be just as valid and just as readily recognized by all the courts as if it had been expressed. ^^ The degree of interest necessary to disqualify a person lOJud. Act, ch. 3, §11; Comp. 79 Mich. 642, and cases cited; West Laws 1915, § 12239. v. Wheeler, 49 Mich. 505 ; Shannon 11 Parsons v. Russell, 11 Mich. v. Smith, 31 Mich. 452; Peninsular 113; Stockwell v. White Lake Tj)., R. Co. v. Howard, 20 Mich. 18. 22 Mich. 341 ; Horton v. Howard, 18 People v. Gies, 25 Mich. 83. 968 Judges § 4 for sitting as a judge in the trial of a cause is very small, any tangible interest being sufficient." The action of a judge, so disqualified to sit in a case, is not simply ir- regular, but is without jurisdiction,^* so that a decision rendered by him would be utterly void." And the rule is carried so far that if one of the judges constituting a court is disqualified on this ground, the judgment will be void, even though the proper number may have con- curred in the result, not reckoning the interested party." The rule is one the observance of which does not lie «"ithin the discretion of the court. It is not left to the judge's own sense of propriety or decency. The prin- ciple forbids him to act in such a capacity at all, when he is thus interested or when he may possibly be subject to this limitation.^''' The failure to observe the rule is not waived by the neglect of a party to take advantage of it on the first opportunity, but it may be raised in the appellate court for the first time." No statute is needed to establish these disqualifications." Yet the legislature of Michigan has provided, by way of declaration and amplification of the common law, that no judge of any court can sit as such in any cause or proceeding in which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties,^" nor 13 Clement v. Everest, 29 Mich. 20 Mich. 18; Bliss v. Caille Bros. 19, 21; Baldwin v. McArthur, 17 Co., 149 Mich. 601; Sandusky Grain Barb. (N. Y.) 414. Co., 184 Mich. 126. 14Cooley Const. Lim. 411. 19 People v. Judge of Saginaw 16 Bliss V. Caille Bros. Co., 149 Circuit, 26 Mich. 342, 345. Mich. 601; Horton v. Howard, 79 20 As for example, nephew or Mich. 642. cousin to any of the parties, Horton 16 Cooley Const. Lim. 411, citing v. Howard, 79 Mich. 642; or where Queen v. Justices of Hertforshire, 6 a party is a blood relative of the Q. B. 753; State v. Crane, 36 N. J. judge's wife within the ninth degree L. 394. of consanguinity. Bliss v. Caille 17 Peninsular R. Co. v. Howard, Bros. Co., 149 Mich. 601 ; or where 20 Mich. 18. he was a brother-in-law of the coun- 18 Peninsular R. Co. v. Howard, sel of one of the parties, Knicker- § 4 Judges 969 can he decide or take part in the decision of any question which shall have been argued in the court when he was not present and sitting therein as a judge.^^ Nor, by- statute, can any judge sit as a court in any cause in which he is related within the third degree of con- sanguinity to either of the attorneys or counselors of either party to such cause ; but such disqualification must be made to appear and it may be waived by stipulation filed in the cause, and furthermore will be deemed to have been waived unless the objection on account of such disqualification has been filed in writing at or before the commencement of the trial or hearing.^^ Nor, by statute, can any judge of an appellate court, or of any court to which a writ of certiorari or of error shall be returnable, decide or take part in the decision of any cause or matter, which was determined by him while sitting as judge of any other court.^^ However, a circuit judge is not disqualified because he is a brother-in-law of one of the counsel for plaintiff although such counsel had the case on shares, where the contract for compensation was rescinded before the ques- tion of disqualification was decided.^* So a supreme court judge is not disqualified from sitting in a case merely because his son is a member of a firm who were attorneys of record for plaintiff where neither the son nor his partner took any part in the proceedings before the supreme court, and the management of the case in the trial court was in other hands.^^ bocker v. Worthing, 138 Mich. 224. transactions. Barnard v. Judge of 21Jud. Act, ch. 4, §7; Comp. Superior Court, 191 Mich. 567. Laws 1915, § 12254. Waiver, see Cninn v. Gunn, 205 22Jud. Act, ch. 4, §7; Comp. Mich. 198. Laws 1915, § 12254. 23 Jud. Act, ch. 4, §8; Comp. A judge is not disqualified from Laws 1915, § 12255. passing on interlocutory motions 24 Knickerbocker v. Worthing, 138 because his son and nephew are act- Mich. 224. ing as attorneys in related proceed- 25 Maclean v. Scripps, 52 Mich. ings involving the same series of 214, 254. 970 Judges § 4 The relationship of a judge to a stockholder of a party is equally as disqualifying as relationship to a natural party.^^ So a judge cannot appoint a receiver for a cor- poration in which stock is held in the name of a sister of the judge's wife.^''' The rule of disqualification of judges must yield to the demands of necessity as where it would destroy the only tribunal in which relief could be had.*^* The fact that a judge is interested has been held no objection to his making fomial orders that put the case on the road to a determination,'^^ A judge is not disqualified to rehear a motion or cause which has been passed upon by another judge sitting in the same court.^° § 5. Transfer of causes because of interest of judge. Whenever any civil suit or proceeding is pending in any circuit court in this state in which the judge of the court is interested as a party or as a member of any cor- poration which is a party, or has been consulted or em- ployed as counsel in the subject-matter to be litigated in the suit, or in which for any other reason he would be excluded from sitting as judge, the cause may be trans- ferred to some other circuit court, or such judge may call in any other judge not disqualified to sit in the case.^^ § 6. Application for transfer. Any party who desires to transfer a suit or proceed- ing may apply to the judge of any adjoining circuit who 86 Davis Colliery Co. v. Charlevoix 80 Manufacturers' Mut. Fire Ins. Sugar Co., 155 Mich. 228. Co. v. Gratiot Circuit Judge, 79 27 Davis Colliery Co. v. Charlevoix Mich. 241. Sugar Co., 155 Mich. 228. 31Jud. Act, ch. 10, §3; Comp. 28 Bliss V. Caille Bros. Co., 149 Laws 1915, § 12342. Mich. 601. If judge, deeming himself dis- 29 McFarlane v. Clark, 39 Mich. qualified, calls in another judge, who 44. sets the case for trial, another court § 7 Judges 971 is not disqualified, for an order to transfer the case. It was formerly held that the application could not be made to the judge who is disqualified to try the cause, and that he was not expected or allowed to exercise any dis- cretion in the matter,*^ but under the new provision in the Judicature Act the judge of the court in wliich the suit is pending may call in any other judge not disquali- fied to sit in such cause.*' The application must be in writing and set forth specifically the grounds for the transfer.** The petition is not required to be verified and it need not set forth that the judge of the circuit to which the transfer is sought is qualified to sit, although this fact should be made to appear to the judge to whom the application is made ; *^ but the petition should show that the judge from whose court the cause is sought to be transferred is dis- qualified.*^ The rule *'' which limits the time for moving for a change of venue does not apply to applications of this character.** § 7. Consent for transfer. The parties to a suit may, by stipulation in writing, consent to a transfer of it without application to a judge; in which case, the stipulation will have the same effect as an order duly made for the transfer.*® cannot order a change of venue be- 36 Fellows v. Canney, 75 Mich. cause of disqualification of the first 445. judge. Sharrar v. Ionia Circuit 37 Cir. Ct. Rule 38. Judge, 205 Mich. 500. 88 Conistock v. Alpena Circuit 32 Shannon v. Smith, 31 Mich. 451. Judge, 152 Mich. 212. 33Jud. Act, ch. 10, §3; Comp. 39 Jud. Act, ch. 10, §4; Comp. Laws 1915, § 12342. Laws 1915, §12343; Palmiter ▼. 34 Jud. Act, ch. 10, §4; Comp. Pere Marquette Lumber Co., 31 Laws 1915, § 12343. Mich. 183. 36 Grostick v. Detroit, etc., R. Co., 96 Mich. 495; Kelley v. Simpson, 79 Mich. 392. 972 Judges § 8 § 8. Order for hearing application. On receiving an application for the transfer of a case, it is the duty of the judge to appoint a time and place of hearing, and, from time to time, as may be necessary, to direct the manner in which notice of the hearing shall be given to all parties interested in the application." § 9. Hearing of application. On the day appointed for the hearing or to which the hearing has been adjourned, when it appears that notice of hearing has been duly given, the judge will proceed to hear and determine the application. For this purpose, he may issue subpoenas for witnesses and require their attendance as in other cases, and will hear the proofs and allegations of the parties touching the application before him. If he is satisfied that the judge of the cir- cuit court where the suit is pending is disqualified to sit in the cause, within the intent and meaning of the statute, he should grant an order for the transfer of the case to the circuit court of some other county, which he must specify in the order.*^ When an application sets forth a proper cause for removal, which is established by proof, the judge to whom the application is made must grant the order for the transfer. The statute in this re- spect is imperative. The only matter left to his discre- tion is the circuit and county to which the cause shall be transferred.*^ § 10. To what county transferred. The discretionary power of the judge as to the county to whicli he shall order a transfer is limited by the statute which provides that, in case the parties to the suit or 40Jud. Act, ch. 10, §5; Comp. Grostick v. Detroit, etc., R. Co., 96 Laws 1915, §12344. Mich. 495; Bolles v. Sault Sav. 41Jud. Act, ch. 10, §6; Comp. Bank L. & T. Co., 86 Mich. 229; In Laws 1915, §12345. re Sanborn, 96 Mich. 606. 42 Pack V. Simpson, 74 Mich. 28; § 12 Judges 973 proceeding agree by stipulation in writing or otherwise upon the circuit court to which the case shall be trans- ferred, the judge shall order the transfer accordingly, but, if no agreement be reached, the judge shall hear such proofs as may be offered by the parties and order a trans- fer to the county in which the case can be tried with the most convenience, expedition and economy, and in which the circuit judge is not disqualified to sit in the case." § 11. Effect of transfer. In the order of transfer, the proceedings before the judge should be briefly recited. On filing the order with the clerk of the court to which the suit or proceeding is transferred, that court will have jurisdiction to the same extent as if the cause or proceeding had been legally com- menced in it and may grant such orders as may be neces- sary to procure the transfer of the existing files and or- ders in the case to it and to cause due notice of the trans- fer.4* § 12. How transfer effected. Upon delivering to the clerk of the court where the cause was pending before the transfer a copy of the or- der of transfer, duly certified by the clerk of the court in which the order is filed, the clerk to whom such cer- tified copy is delivered is required to attach together the originals of all the papers filed in the suit or proceeding, and to make true copies of all the orders made therein which are entered upon the books of record in the court, and to transmit the same, certified under his hand and seal to be the originals of such files and true copies of such orders, to tlie clerk of the court in which the order 43 Jud. Act, ch. 10, §7; Comp. cuit, see Daniel v. Citizens' Mut. Laws 1915, §12346; Simpson v. Fire Ins. Co., 149 Mich. 626. Kelley, 81 Mich. 116. 44 Jud. Act, ch. 10, §8; Comp. That judge who hears application Laws 1915, § 12.'?47. may transfer ease to his own cir- 974 Judges § 12 of transfer lias boon filed; which files and copies, when so filed and deposited in the office of the clerk to whom the transfer is to be made, will have the same force and effect in all respects, and be subject to the rules and or- ders of the court, as original proceedings therein." § 13. Fees of clerk. The clerk whose duty it is to transmit the files and orders in any cause in compliance with an order of trans- fer is entitled to six cents per folio for all copies of or- ders and proceedings necessarily made, and one dollar in addition thereto, which will be in full for all services rendered in connection with such transfer.*^ § 14. Effect of office becoming vacant. No process, proceeding or suit, civil or criminal, be- fore any of the courts of record, shall be discontinued by the occurrence of any vacancy in the office of any judge, or of all the judges of such court, nor by the issuing of any new commission to any judge or judges of any such court, but the persons appointed in any such new com- mission shall have power to continue, hear and determine such process, proceeding or suit, as their predecessors might have done if no new commission had been issued.*' § 15. Effect of removal beyond limits of jurisdiction. Whenever a judge removes beyond the limits of the jurisdiction for which he was elected, he is deemed to have vacated his office,*® but a circuit judge may be elected or appointed from any part of the state, and con- tinue to hold the office, though he does not reside within his circuit, and it is only when a judge actually residing 45Jud. Act, eh, 10, §9; Comp. 47 Jud. Act, eh. 4, §2; Comp. Laws 1915, § 12348. Laws 1915, § 12249. 46Jud. Act, ch. 10, §10; Comp. 48 Const. Art. VII, see. 9. Laws 1915, § 12349. Judgment 975 in his circuit removes from it, that he vacates his office.*^ A person is eligible to the office of circuit judge who does not reside within the circuit for which he is elected, and may continue to be a non-resident during his official tcrm.^' § 16. How vacancies filled. When a vacancy occurs in the office of judge of any court of record, it must be filled by appointment of the governor, which appointment continues until a successor is elected and qualified; and when elected, such successor holds the office during the residue of the unexpired term.*^ JUDGMENT § 1. What constitutes. § 2.. Judgment without issue. § 2a. Declaratory judgments. § 3. Kinds of. § 4. Judgment record. § 5. Time for entry. § 6. Entry in vacation upon special finding. § 7. Entry nunc pro tunc. § 8. Form and contents. § 9. Parties to judgment. § 10. Judgment against part of plaintiffs or defendants as authorized by statute. §11. Motion for judgment by one defendant. § 12. Judgment in actions on joint obligations where only part of defendants served. § 13. Conformity to pleadings, evidence, verdict, etc. § 14. Judgment notwithstanding the verdict. § 14a. Sojmmary judgment in action on contract in absence of aftidavit of merits. § 15. Interest. § 16. Amendment. § 17. Opening or vacating. 49 People V, Goodwin, 22 Mich. 51 Const. Art. VIT, see. 20. 496. Vacancy can be filled only by the 60 People V. Goodwin, 22 Mich. governor. Attorney General v. Reni- 496. . han, 184 Mich. 272. 976 Judgment § 1 § 18. Arrest of judgment. § 19. Lien. § 20. Satisfaction by arrest. § 21. Void or voidable judgments. § 22. Effect of judgment. § 23. Persons affected. § 24. Pleading a judgment. Cross-Beferences: Defaults; Offer of Judgment; Confession op Judgment; Cognovits; Payment Into Court; Tender; Executions; Supplementary Proceedings; Security for Costs (judgment against surety); Executors and Administrators (judgments against); Set-off (set-off of judgments) ; Stay of Proceedings. Judgment in particular actions, see Ejectment; Keplevin; Garnishment; etc. Judgment in supreme court, see Supreme Court; Error, Writ of; Certiorari; Man- damus; etc. § 1. What constitutes. When the issue has been decided, whether it be of fact or of law, the next step in the progress of the cause in its logical order is the entry of the judgment. The judg- ment is the sentence of the law, pronounced by the court, upon the matter contained in the record.^ It is the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it, and it is evidenced only by a record, or that which is by law, as the files and journal entries in this state, substituted in its stead.^ It is the decision or sentence of the law, given by a court of justice or other competent tribunal as the result of the proceedings instituted therein.^ The judg- ment, though pronounced or awarded by the judges, is not their determination or sentence, but the determina- tion and sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact. It depends, therefore, not upon the arbitrary caprice of the judge, but on the settled and invariable principles of justice. The judgment, in short, is the rem- 13 Cooley's Bl. Comm. 395; Cyc. 3 Crippen v. People, 8 Mich. 117. Law Diet. tit. "Judgment." As to motion for summary judgment 2Whitwell v. Emory, 3 Mich. 84. after issue joined, see § 14a. § 2a Judgment 977 edy prescribed by law for the redress of injuries, and the suit or action is the vehicle or means of administering it. What that remedy may be is, indeed, the result of deliberation, and therefore the style of the judgment is not that it is decreed or resolved by the court, for then the judgment might appear to be their own and not that of the law, but that ''it is considered" that the plaintiff do recover his damages, his debt, his possession and the like, which implies that the judgment is not their own, but the act of law, pronounced and declared by the court after due deliberation and inquiry. § 2. Judgment without issue. Judgments are also sometimes entered in a cause wherein no issue has been joined, or where, if issue has been joined, it has been superseded by the act or omis- sion of one or both of the parties. Such, for instance, are judgments by confession,* upon default,* upon cogno- vit,^ and the like, of all of which proceedings and the incidents thereof notice will be taken in appropriate places in this work. Suffice it here to say only that a judgment entered in any of these cases is none the less a judgment than if it be entered after the verdict of a jury or the finding of the court or the decision of the court upon an issue of law. § 2a. Declaratory judgments. By an act adopted in 1919, it is provided that no action or proceeding in any court of record shall be open to objection on the ground that a merely declaratory judg- ment, decree or order is sought thereby, and the court may make binding declarations of rights whether any consequential relief is or could be claimed, or not, includ- ing the determination, at the instance of anyone claim- 4 See Confession op Judgment. 6 See Cognovits, 5 Sec Defaults. 1 Abbott— 62 978 Judgment § 2a ing to be interested under a deed, will or other written instrument, of any question of construction arising un- der the instrument and a declaration of the rights of the parties interested. Declarations of rights and determina- tions of questions of construction, as herein provided for, may be obtained by means of ordinary proceedings at law or in equity, or by means of a petition on either the law or equity side of the court as the nature of the case may require, and where a declaration of rights is the only relief asked, the case may be noticed for early hearing as in the case of a motion. Where further re- lief based upon a declaration of rights shall become neces- sary or proper after such declaration has been made, ap- plication may be made by petition to any court having jurisdiction to grant such relief, for an order directed to any party or parties whose rights have been deter- mined by such declaration, to show cause why such further relief should not be granted forthwith, upon such reasonable notice as shall be prescribed by the court in the said order. When a declaration of rights, or the granting of further relief based thereon, shall involve the determination of issues of fact triable by a jury, such issues may be submitted to a jury in the form of inter- rogatories, with such instructions by the court as may be proper, whether a general verdict be rendered or re- quired or not, and such interrogatories and answers shall constitute a i)art of the record of the case. Unless the parties shall agree by stipulation as to the allowance thereof, costs in such proceedings shall be allowed in ac- cordance with such special rules as the supreme court may make, and in the absence of such rules the practice followed in ordinary cases at law or in equity shall be followed wherever applicable, and when not applicable, the costs or such part thereof as to the court may seem just, in view of tlie particular circumstances of the case, may be awarded to either party. This act is declared to § 4 Judgment 979 be remedial, and is to be liberally construed and liberally administered with a view of making the courts more serviceable to the people.'^ § 3. Kinds of. Every judgment, whether it be rendered after the trial of an issue or not, is of one of two sorts, viz., either ''in- terlocutory" or "final." Interlocutory judgments are such as do not constitute a complete determination of the suit, but leave something further to be done in order to attain that result. An example of an interlocutory judg- ment is that of respondeat ouster, that the defendant answer over. Another is that which is entered where the right of the plaintiff to recover is established, but the extent of his recovery remains to be determined afterwards.^ And, in reference to the last example, it is said that the only object of an interlocutory judgment is to direct the assessment of damages for the purpose of a final judgment.^ Final judgments are such as at once put an end to the action by declaring that the plain- tiff has entitled himself to the remedy he sues for or that he has not.'^" They constitute a complete determination of the suit and leave nothing further to be done in order to attain that result. § 4. Judgment record. No judgment can exist until it is put in due form by the court and entered.*^ The rendering of a judgment is an act which, on theory at least, and formerly always in practice, required the holding of the court in order to perform it, and consequently it is always considered as taking place in term time.** No formal judgment record 7 Pub. Acts 1919, No. 150. H People v. McCutcheon, 40 Mich. 83 Cooley's Bl. Comm. 896, 397. 244. 9 Wilcox V. Sweet, 24 Mich. 35.3. 12 Hemmens v. Bentley, 32 Mich. 10 3 Cooley's Bl. Comm. 398; Cyc. 89. Law Diet. tit. "Final." 980 Judgment § 4 is now made up under the practice prevailing in ]\Iich- igan, but the files and journal entries are deemed a sub- stitute for such record and to constitute the record itself.^' This, however, does not dispense with any of the essential requisites and evidences of a judgment, and the almost uniform practice has been to require the jour- nal entries of proceedings had subsequent to the join- ing of issue to be as full as the postea of a judgment record. Indeed, to a very great extent, the language itself has been adopted.^* § 5. Time for entry. It is customary to file decisions in term without oral announcement and for the clerk to enter judgment in the journal in accordance with such decision. So, after verdict, while in some circuits the practice has prevailed of deferring the entry of judgment until a formal mo- tion for judgment is made, such practice has generally given way to the custom of the clerks to enter judgment immediately or after the time within which a motion to set aside the verdict may be made.^^ If the case is tried without a juiy, judgment cannot be entered until after the findings of fact and of law have been filed.^^ § 6. Entry in vacation upon special finding. Although, as a general rule, judgments are actually rendered and entered in term and are always, in theory, supposed to be, the statute makes special provision for 13 Norvell v. McHenry, 1 Mich. reference to the title of the cause. 227; Kenyon v. Baker, 16 Mich. First Nat. Bank v. Garland, 109 373; Prentiss v. Holbrook, 2 Mich. Mich. 515. 372; Crane v. Hardy, 1 Mich. 56; IS Knack v. Wayne Circuit Judge, Emery v. Whitwell, 6 Mich. 474; 147 Mich. 485. See also Harvey v. Hovey v. Smith, 22 Mich. 170. McAdams, 32 Mich. 472. 14 Whitwell v. Emory, 3 Mich. 84. 16 Wisconsin Chair Co. v. Charle- A judgment entry defective as to voix Circuit Judge, 189 Mich. 548. naming of parties may be aided by § 8 Judgment 981 cases wherein the court has made a special finding of the facts and the law upon the request of either party.^' In such cases, the finding is forthwith filed with the clerk and judgment entered thereon. Notice of the entry of such judgment is required to be given by the clerk to all the parties or their attorneys." The time prescribed by law within which a writ of error is to be taken, when the judgment is entered in vacation, is to be computed from the day when such judgment is actually entered by the clerk ^^ and written notice thereof given to the party against whom the decision is rendered,^" unless the right to notice has been waived.^^ The notice is an essential accompaniment of the entry of a judgment in vacation.^^ § 7. Entry nunc pro tunc. In furtherance of justice, courts may cause the entry of judgments nunc pro tunc in proper cases, as in case of the omission of the clerk to record it,^^ or where a default against one of defendants was not entered when it could have been.^* § 8. Form and contents. A judgment is entitled in the cause, states whether the trial was by jury or by the court without a jury, specifies the amount of the judgment, etc. If trial was by the court without a jury, it need not contain the judge 's find- ings.^^ A judgment is not uncertain in amount merely because blanks are left for the amount of costs taxed, 17Juf]. Act, eh, 18, §14; Comp. McClung v. McClung, 39 Mich. 55. Laws 1915, § 12586. 21 Riehardson v. Yawkoy, 9 Mich. ISJud. Act, ch. 18, §14; Comp. i:!9. Laws 1915, §12586; Wisconsin 22 McClung v. MeClung, 39 Mich. Chair Co. v. Charlevoix Circuit 55. Judge, 189 Mich. 548. 23 In re Shepard, 109 Mich. 631. 19Jud. Act, ch. 50, §10; Comp. 24 Steers v. Hohues, 79 Mich. 439. Laws 1915, § 13745. 25 Lonian v. Benson, 9 Mich. 237. 20 People V, Wilson, 12 Mich. 25; 982 Judgment § 8 where the costs were thereafter taxed. ^^ The judgment must not be made payable in a particuhir kind of money .^' A judgment in assumpsit is not void because of an in- effectual attempt to enforce a mechanics' lien in the same proceeding.^^ So a judgment is not invalid because it gives plaintiff a lien on realty, since the question as to lien can be urged only when the judgment is sought to be enforced at law against realty.^' A judgment entry is not invalid because it designates the defendants only by reference to the title of the cause.'" So one sued by actual service of process, under a name which he is called by and known, is bound by a judg- ment under that name.'^ Form of Judgment Upon Verdict for Plaintiff in Assumpsit (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, thereupon came a jury, to wit (insert names of jurors), good and lawful men, who, being duly chosen, tried and sworn well and truly to try the issue between the parties, after hearing the proofs and allegations of the parties, the arguments of counsel and the charge of the court, retired from the bar, under the charge of S. T., an officer of the court, duly sworn for that i)urpose, to consider their verdict to be given, and, after being absent for a time, return into court and say upon their oath that the said defendant did undertake and promise in manner and form as the said plaintiff has, in his declaration in this cause, complained against him, and that they assess the damages of the said plaintiff, on occasion of the premises, over and above his costs and charges by him about his suit in this behalf expended, at the sum of dollars. Therefore, it is considered by the court now here that the said plaintiff do recover against the said defendant his damages aforesaid, together with his costs and charges aforesaid, to be taxed, and that the said plaintiff have execution therefor. 26Sehroeder v. Boyee, 127 Mich. 30 First Nat. Bank of Athens v. ,33. ■Garland, 109 Mich. 515, holding that 27 Buchegger v. Schultz, 13 Mich. entry may be construed in connee- 420. tion with the pleadings and record. 28 Allured v. Voller, 107 Mich. 31 Field v. Plummer, 75 Mich. 437. 476. 29 Conlin v. Lamont Iron Co., 116 Mich. 626. § 8 Judgment 983 rorm of Judgment on Verdict in Assumpsit Against Two or More De- fendants, Wlien One Pleads and the Other Makes Default (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, thereupon came a jury, to wit (insert the names of the jurors), good and lawful men, who, being duly chosen, tried and sworn well and truly to try the issue between the parties, after hearing the proofs and allegations of the parties, the arguments of counsel and the charge of the court, retired from the bar, under the charge of S. T., an oflScer of the court, duly sworn for that purpose, to consider of their verdict to be given, and, after being absent for a time, return into court and say upon their oath that the said defendant C. D. did undertake and promise in manner and form as the said plaintiff in his declaration in this cause complains against him, and that they assess the damages of the said plaintiff as well against the said C. D. as against the said defendant E. F., on occasion of the premises, over and above his costs and charges by him about his suit in this behalf expended, at the sum of dollars. Therefore, it is considered that the said plaintiff to recover against the said defendants C. D. and E. F. his damages aforesaid, together with his costs and charges aforesaid, to be taxed, and that the said plaintiff have execution therefor. Form of Judgment on Finding by Court for Plaintiff in Assumpsit (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, and the same having been duly brought on for trial before the court, without a jury, the court, having heard the proofs and allegations of the parties and the arguments of counsel, after mature deliberation thereon, finds that the said defendant did undertake and promise in manner and form as the said plaintiff has, in his declaration in this cause, com- plained against him, and that the said plaintiff has sustained damages, on occasion of the premises, over and above his costs and charges by him about his suit in that behalf expended, to the sum of dollars. Therefore, it is considered that the said plaintiff do recover against the said defendant his damages aforesaid, together with his costs and charges aforesaid, to be taxed, and that the said plaintiff have execution therefor. Form of Judgment on Verdict for Defendant in Assumpsit (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, thereupon came a jury, to wit (insert the names of the jurors), good and lawful men, who, being duly chosen, tried and sworn well and truly to try the issue between the parties, after hearing the proofs and allegations of the parties, the arguments of counsel and the charge of the court, retired from the bar, under the charge of S. T., an officer of the 984 Judgment § 8 court, duly sworn for that purpose, to consider of their verdict to be given, and, after being absent for a time, return into court and say upon their oath that the said defendant did not undertake and promise as the said plaintiff in his declaration in this cause alleged. Therefore, it is considered that the said plaintiff take nothing by his suit, and that the said de- fendant do go thereof without day; and that the said defendant do recover against the said plaintiff his costs and charges by him about his suit in this behalf expended, to be taxed, and that the said defendant have execution therefor. Form of Judgment on Verdict for Defendant in Assumpsit, When De- fendant Has Given Notice of Set-off (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, thereupon came a jury, to wit (here insert the names of the jurors), good and lawful men, who, being duly chosen, tried and sworn well and truly to try the issue between the parties, after hearing the proofs and allegations of the parties, the arguments of counsel and the charge of the court, retired from the bar, under the charge of S. T., an officer of the court, duly sworn for that purpose, to consider of their verdict to be given, and, after being absent for a time, return into court and say upon their oath that the said plaintiff was and is indebted to the said defendant in manner and form as the said defendant in his notice of set-off in this cause alleged, and assess the amount thereof, over and above the costs and charges of the said defendant about his defense in this behalf expended, at the sum of dollars. Therefore, it is considered that the said plaintiff take nothing by his suit, and that the said defendant do recover against him, the said plaintiff, the sum of money aforesaid, together with the costs and charges aforesaid, to be taxed, and that the said defendant liave execution therefor. Form of Judgment for Defendant Upon Finding of the Court in Assumpsit (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, and the same having been duly brought on for trial before the court, without a jury, the court, having heard the proofs and allega- tions of the parties and the arguments of counsel, after mature deliberation thereon, finds that the said defendant did not undertake and promise in manner and form as the said plaintiff in his declaration in this cause complained against him. Therefore, it is considered that the said plaintiff take nothing by his suit, and that the said defendant do go thereof with- out day; and that the said defendant do recover against the said plaintiff his costs and charges by him about his defense in this behalf expended, to be taxed, and that the said defendant have execution therefor. § 8 Judgment 985 Form of Judgment on Verdict for Plaintiff in Action on the Case (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, thereupon came a jury, to wit (here insert the names of the jurors), good and lawful men, who, being duly chosen, tried and sworn well and truly to try the issue between the parties, after hearing the proofs and allegations of the parties, the arguments of counsel and the charge of the court, retired from the bar, under the charge of S. T., an officer of the court, duly sworn for that purpose, to consider of their verdict to be given, and, after being absent for a time, return into court and say upon their oath that the said defendant is guilty in manner and form as the said plaintiff has in his declaration in this cause complained against him, and that they assess the damages of the said plaintiff on occasion of the premises, over and above his costs and charges by him about his suit in this behalf expended, at the sum of dollars. Therefore, it is considered that the said plaintiff do recover against the said defendant his damages aforesaid, together with his costs and charges aforesaid, to be taxed, and that the said plaintiff have execution therefor. Form of Judgment for Defendant Upon Finding by Court in Case (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, and the same having been duly brought on for trial before the court, without a jury, the court, having heard the proofs and allegations of the parties and the arguments of counsel, after mature deliberation, finds that the said defendant is not guilty in manner and form as the said plaintiff, in his declaration in this cause, complained against him. There- fore, it is considered that the said plaintiff take nothing by his suit, and that the said defendant do go thereof without day; and it is further ordered that the said defendant do recover against the said plaintiff his costs and charges by him about his defense in this behalf expended, to be taxed, and that the said defendant have execution therefor. Form of Judgment Upon Verdict for Defendant in Action on the Case (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, thereupon came a jury, to wit: (insert the names of the jurors), good and lawful men, who, being duly chosen, tried and sworn well and truly to try the issue between the parties, after hearing the proofs and allegations of the parties, the arguments of counsel and the charge of the court, retired from the bar, under the charge of S. T., an officer of the court, duly sworn for that purpose, to consider of their verdict to be given, and, after being absent for a time, return into court and say upon their oath that the said defendant is not guilty in manner and form as the said plaintiff, in his declaration in this cause, complained 986 Judgment § 8 against him. Therefore, it is considered that the said plaintiff take nothing by his suit and that the said defendant do go thereof without day; and it is further ordered that the said defendant do recover against the said plaintiff his costs and charges by him about his defense in this behalf expended, to be taxed, and that the said defendant have execution therefor. Form of Judgment Upon Finding for Plaintiff in Action on the Case (Title of cause.) In this cause, the parties being in court, by their respective attorneys, ready for trial, and the same having been duly brought on for trial before the court, without a jury, the court, having heard the proofs and allegations of the parties and the arguments of counsel, after mature deliberation thereon, finds that the said defendant is guilty in manner and form as the said plaintiff, in his declaration in this cause, complained against him and that the plaintiff has sustained damages on occasion of the premises, over and above his costs and charges by him about his suit in this behalf expended, in the sum of dollars. Therefore, it is considered that the said plaintiff do recover against the said defendant his damages afore- said, together with his costs and charges aforesaid, to be taxed, and that the said plaintiff have execution therefor. Form of Judgment Sustaining Motion to Dismiss Attacking the Declara- tion (Title of cause.) In this cause, the motion of the said defendant assailing the declaration of the said plaintiff having been duly brought on for argument, and the premises being seen and understood by the court now here, and it appearing that the said declaration and the matters therein contained are not sufficient in law for the said plaintiff to have and maintain his action against the said defendant, therefore, it is considered that the said plaintiff take nothing by his suit, that the same be dismissed, and that the said defendant do go thereof without day; and it is further considered that the said de- fendant do recover against the said plaintiff his costs and charges by him about his defense in this behalf expended, to be taxed, and that the said defendant have execution therefor. Form of Judgment Overruling Motion to Dismiss Attacking the Declara- tion (Title of cause.) In this case, the motion of the said defendant assailing the declaration of the said plaintiff having been duly brought on for argument, and the premises being seen and understood by the court now here, and it appearing that the said declaration and the matters therein contained are sufficient in law for the said plaintiff to have and maintain his action against the said defendant; therefore, it is considered that the said motion be denied with costs to the said plaintiff hereby taxed in the sum of dollars. § 9 Judgment 987 § 9. Parties to judgment. A judgment against several defendants is proper only where all the defendants are jointly liable on the cause of action,^^ and a judgment against plaintiff cannot be entered in favor of several defendants jointly where some of them are not found to have been interested.'^ A judg- ment ordinarily may be rendered against all or a part of defendants where the action is based on a tort.'* It is well settled that on a joint debt no recovery can be had against less than all the debtors unless one has been legally discharged or in fact there never was any joint obligation.'^ Where defendants are sued jointly on a joint agreement, plaintiff cannot discontinue as to part of defendants and recover against one of them alone, except where disability of bankruptcy, infancy or the like exists.'^ So where plaintiff sues two on a contract made by them jointly, but before offering evidence states that the two defendants did not contract with him, but that one or the other of them did, and the evidence showed that one of defendants made the identical con- tract sued on, judgment is properly rendered against such defendant.'''' So where an action is brought against several joint defendants but a valid defense is shown by part of them, a judgment cannot be rendered for plain- tiff against the other defendants without taking a dis- continuance as to the successful defendants." The right of a plaintiff to proceed against several de- fendants and obtain a joint judgment against all, or a judgment against one or more of them, in accordance 32 Anderson v. Fruitvalc Transp. Sec also Eimniele v. Huebner, 190 Co., 195 Mich. 734. Mich. 247. See also Cutler v. Spens, 191 Mich. 36 Strohschein v. Kranich, 157 603, 617. Mich. 335. 33 Steele v. Matteson, 50 Mich. 37 Root & McBride Co. v. Walton 313. Salt Ass'n, 140 Mich. 441. 34 See Longyear v. Gregory, 110 38 Beckman v. Sylvester, 109 Mich. Mich. 277. 183. 36 Post V. Shafer, 63 Mich. 85. 988 Judgment ' § 9 with the facts as the jury find them to be, as provided for by rule of court, is considered elsewhere.^' § 10. Judgment ag-ainst part of plaintiffs or defend- ants as authorized by statute. "In any action against two or more defendants, judg- ment may be rendered for the plaintiff against some one or more of the defendants, and also in favor of some one or more of the defendants against the plaintiff, accord- ing as the rights and liabilities of the respective parties shall appear, either upon confession, default, by pleading or on trial; and when judgment shall be rendered in favor of any defendant, he shall recover costs against the plain- tiff, in the same manner as though judgment had been rendered for all the defendants; but no judgment shall be entered upon any purely several liability against any party not served with process. ' ' " **It shall not be necessary for the plaintiff to include in the same record a judgment against all parties severally, or jointly and severally liable, but judgment may be en- tered against any of the parties thereto, whenever the plaintiff would be entitled to the same if the suit had been commenced against such parties only; and if the trial or hearing of such cause be put off by any of the parties, or if a default shall have been obtained against part of the defendants, the plaintiff may proceed to the hearing or trial against the other parties, in the same manner as if the suit had been commenced against the other parties only, and the action shall thereby be severed. ' ' *^ § 11. Motion for judgment by one defendant. ''One or more of the defendants in any suit may move for judgment as in case of nonsuit, although the other 39 See Discontinuance. *1 Jud. Act, ch. 22, § 13 ; Comp. 40Jud. Act, ch. 22, §12; Comp. Laws 1915, §12803. Laws 1915, § 12802. § 13 Judgment 989 defendants shall not unite in the motion; but one of sev- eral defendants jointly liable shall not make such mo- tion, unless the other joint contractors with him shall unite in the motion. ' ' *^ § 12. Judgment in actions on joint obligations where only part of defendants served. The statute provides that in actions against two or more persons upon any joint obligation, contract, or lia- bilitj^, if the process issued against all the defendants was served upon either of them, the judgment, if ren- dered in favor of the plaintiff, must be against all the defendants in the same manner as if all had been served with process; but that such judgment shall be evidence, as against defendants not served who have not appeared, only of the extent of the plaintiff's demand after their liability has been established by other evidence." And special provision is made as to taking out execution in such a case against a defendant not served.** § 13. Conformity to pleadings, evidence, verdict, etc. The judgment must conform to the jjleadings and 42 Jud. Act, ch. 22, §14; Comp. fondants in the same manner as if Laws 1915, § 12804. he had been served with process. 43 Jud. Act, ch, 22, §§ 8, 9; Comp. This practice supersedes the former Laws 1915, §§ 12798, 12799. proceeding by scire facias. If the Statute is constitutional. Brooks return to the order to show cause V. Mclntyre, 4 Mich. 316. raises merely questions of law or Inability to serve codefendant is of fact not going to the merits of not necessary. Sheldon Axle Co. v. the main action, they will be dis- Landman, 186 Mich. 61. posed of by the court. If, however, 44 Jud, Act, ch. 22, §§10, 11; defenses are disclosed which might Comp. Laws 1915, §§12800, 12801, have been pleaded in the main ac- which provide that an order may be tion, the proper practice would bo issued to show cause why the plain- to permit a plea to be entered to tiff ought not to have execution the declaration on file and to pro- against the debtors not served, and coed to trial thereon in the usual upon failure to appear or to show manner. Cummins & Beccher, Mich, sufficient cause to the contrary, exe- Jud. Act, § 51. cution may issue against such dc- 990 Judgment § 13 proofs,*^ the verdict,*^ or, where the trial is by the court without a jury, to the findings of the court.*' § 14. Judgment notwithstanding- the verdict. A judgment may be entered for one party notwith- standing the verdict was for the opposing party where the special findings of the jury are inconsistent with the general verdict.*' Where there are no such inconsistent findings, a judgment contrary to the verdict, for a dif- ferent party, cannot be entered,** without a new trial," even though the verdict is against the weight of evi- dence, where the evidence is contradictory,*^ except where decision on a motion for a directed verdict has been reserved." But such a judgment should be rendered where plaintiff's pleadings are not sufficient to support a judgment in his favor, and it appears on the record that the verdict cannot be supported as a matter of law." It is provided by statute that when a verdict shall have been rendered in any action, the plaintiff shall not 45Burchy v. Carpenter, 181 Mich. 187 Mich. 586; Brown v. Kalamazoo 78; Shaw v. Hoffman, 25 Mich. 162 Circuit Judge, 75 Mich. 274; Guer- (declaration for statutory treble old v. Holtz, 103 Mich. 118; Hinch- damages not support judgment on man v. Doak, 48 Mich. 168. verdict of single damages for tres- 47 Wiley v. Lovely, 46 Mich. 83; pass at common law); Hinehman Swcetzer v. Mead, 5 Mich. 107; V. Doak, 48 Mich. 168; Benthien v. Brown v. MeHugh, 36 Mich. 433. Alberts, 154 Mich. 142; E. S. 48 See Trial. Knowles & Son v. Cavanaugh, 144 49 Central Sav. Bank v. O 'Connor, Mich. 260; Bullock v. Ueberroth, 132 Mich. 578. See also County of 121 Mich. 293 (recovery for breach Montmorency v. Putnam, 144 Mich, of contract for sale of goods not 135; Graves v. Dorr Tp., 208 Mich. \\arranted where common counts are 558. declared on, and specially for goods 60 Prowell v. Neuendorf, 141 Mich, sold and delivered) ; Williamson v. 272. Haskell, 50 Mich. 364; Thomas v. 61 County of Montmorency v. Put- Chicago & G. T. Ry. Co., 72 Mich, nam, 144 Mich. 135; Plunkett v. 355. Detroit Electric Ey. Co., 140 Mich. Amount of recovery is limited by 299. bill of particulars. Bennett v. 52 See Trial. Smith, 40 Mich. 211. 53 Plunkett v. Detroit Electric Ey. 46 Rathbone v. Detroit United Ry., Co., 140 Mich. 299. § 15 Judgment 991 thereafter be nonsuited, but that judgment shall be ren- dered upon the matter found by such verdict.** § 14a. Summary judgment in action on contract in ab- sence of affidavit of merits. The Judicature Act introduces two new provisions as follows: "At any time after any cause arising upon con- tract or judgment, or statute shall be at issue, upon mo- tion of the plaintiff, after the usual notice to the defend- ant, supported by the affidavit of the plaintiff, or any one in his behalf having knowledge of the facts, verify- ing the plaintiff's cause of action, and stating the amount claimed, and his belief that there is no defense to the action, the court shall enter a judgment in favor of the plaintiff, unless the defendant shall prior to, or at the time of hearing said motion, make and file an affidavit of merits. Said affidavit of merits shall state whether or not the defense claimed therein applies to the whole of the plaintiff's claim, and if not, it shall state definitely what item or items of the plaintiff's claim and the amount thereof, is admitted."" "If in any case it appear upon the trial thereof to the satisfaction of the court, than [that] any affidavit of merits made therein, for the purpose of preventing a summary judgment, or for the purpose of procuring a continuance, was not made in good faith, but was made solely for the purpose of delay, the court shall award to the plaintiff in the judgment rendered therein, double the amount of the costs taxable in 'the cause. ' ' *^ § 15. Interest. Interest is collectible on executions on all judgments at the rate of five per centum per annum, provided that 64Jud. Act, ch. 22, §1; Conip. 60 Jud. Act, ch. 18, §10; Coinp. Laws 1915, § 12791. Laws 191"), 8 12582. 66Jud. Act, ch. 18, §9; Conip. Laws 1915, § 12581. 992 Judgment § 15 on a judgment rendered on any written instrument, hav- ing a different rate legal at the time the instrument was executed, the interest shall be computed at the rate speci- fied in such instrument.^'' The judgment properly includes interest on the amount of the verdict from the time of its rendition to the time of entry of judgment, but cannot include interest prior to the verdict where not included in the verdict, especial- ly where there is no data on which to figure the interest.*^ § 16. Amendment. A judgment may in proper cases be amended, when the entry of it is in some respects erroneous, either in form or in substance. ^^ If the amendment be in a matter of substance, it is essential that the party whose interests will be thereby injuriously affected have notice and be given an opportunity to be heard.^" Clerical errors may be amended at any time, even after the term at which the judgment is rendered,^^ and, when apparent from the record, will be treated as amended, even though no amendment be actually made. If the amendment of a judgment in respect of a clerical error is sought to be made from what appears in the other parts of the record, no notice is required to be given to the adverse party; but if the amendment be based upon something outside the record in the case, the party adversely interested should be given notice. Formal inaccuracies in the judg- ment entry are cured by the statute of amendments.®'^ 67 Jud. Act, ch. 23, § 20 ; Comp. ever, amendment held properly re- Laws 1915, § 12835; City of Owosso fused; Ford v. Bailey, 207 Mich. 77, V. Barber Asphalt Co., 192 Mich. amendment of judgment in eject- 122. meiit as to description of land. 68 Wright v. Seeley, 96 Mich. 491 ; 60 People v. MeCutcheon, 40 Mich. Parker v. Lake Shore & M. S. Ey. 244 ; Whitwell v. Emory, 3 Mich. 84. Co., 93 Mich. 607; Bell v. Ardis, 61 Whitwell v. Emory, 3 Mich. 38 Mich. 609. 84. See Killackcy v. Killackey, 156 69 Ostrowoski v. Wayne Circuit Mich. 127. Judge, 170 Mich. 563, where, how- 62 Emery v. Whitwell, 6 Mich. § 16 Judgment 993 The power to amend is a liiglily valuable one, and should be limited only within what is necessary to keep it within safe bounds. Where the record itself furnishes the data for required amendments, great liberality should be allowed, because the danger of injustice in permitting amendments in such cases is very slight. But where an amendment is to be made upon an extrinsic showing, all practicable precautions should be taken that no one be wronged by action of the court; and, as most alleged facts are susceptible of contradiction, there ought al- ways, when practicable, to be notice to the party adverse- ly interested, in order that he may have the opportunity to make a counter- showing; and the more ancient are the proceedings the greater is the importance of giving no- tice.^^ The application for leave to amend should not be -delayed too long, or the court may, in the exercise of its discretion, refuse to permit the amendment.®* The application should, indeed, be made with the utmost promptness.®^ Where there has been obvious error of the clerk in the entry of the amount recovered by judgment, the entry should be amended.®® So the name of a party against whom judgment is rendered may be amended where there is no question of identity.®' Where the judgment is for an amount in excess of the ad damnum in the declara- tion, the error cannot be cured by an amendment of the judgment.®^ To authorize an amendment from the record, 474; Hall v. Grovier, 25 Mich. 428; 49 Mich. 628; Montgomery v. Mer- Whittemore v. Stephens, 48 Mich. rill, 36 Mich. 97; Salter v. Suther- 573; Lyman v. Becannon, 29 Mich. land, 125 Mich. 662. 466; Souvais v. Leavitt, 53 Mich. 66 Montgomery v, Merrill, 36 Mich, 577; Merrick v. Mayhue, 40 Mich. 97. 196; Ferton V. Feller, 33 Mich. 199, 66 Emery v. Whitwell, 6 Mich. judgment in form assumpsit instead 474. of trespass. 67 Merrick v. Mayhue, 40 Mich. 63 Montgomery v. Merrill, 36 196. Mich. 97. 68 Kenyon v. Woodward, 16 Mich. 64 Gray v. Saginaw Circuit Judge, 326, holding that the court slioulii 1 Abbott— 63 994 Judgment § 16 there must be something in the record to amend from.^® On the motion, a question of retaxation of costs cannot be raised.'" ]\Iistakes in the record may be corrected, and omis- sions supplied, nunc pro tunc, where neither party has been misled.'^ Where, by mistake, the clerk enters a judgment as if taken by default, where issue had been duly joined, and no defense interposed but defendant consented to judgment, an amendment nunc pro tunc should be allowed.'^ In the allowance of these amendments, courts are gov- erned by the general principles of promoting substantial justice between the parties, and payment of the costs incident to the amendment is annexed as a condition to granting it. So the order may impose other conditions in a proper case.'^ § 17. Opening or vacating. A judgment may be set aside by the trial court even after the term at which it was rendered.'* The granting of the application is addressed to the sound discretion of the court,'* but an order setting aside a judgment pur- suant to a stipulation cannot be sustained as an exer- cise of discretion where there was no compliance with the conditions in the stipulation.'® And a party is en- titled as of right to an order opening the judgment where either allow plaintiff to remit the 74 Campau v. Coates, 17 Mich. 235. excess or make the amendment on 75 City of Detroit v. Jackson, 1 condition of assenting to a new Doug. 106. trial if defendant so elected. Judgment will not be vacated be- 69 Salter v. Sutherland, 25 Mich. cause entered prematurely unless in- 662. jury is shown from the premature 70 Kraft V. Raths, 45 Mich. 20. entry. Wisconsin Chair Co. v. Char- 71 Souvais V. Leavitt, 53 Mich. 577. levoix Circuit Judge, 189 Mich. 548. 72 Grand Rapids Sav. Bank v. 76 People v. Branch Circuit Judge, Widdiconib, 114 Mich. 639. 26 Mich. 370. 73 Salter v. Sutherland, 125 Mich. 662. ^ 17 Judgment 995 it was rendered in his absence, without proof of notice to him appearing on the files of the court, where he moves promptly, unless it is then made to appear that legal no- tice was in fact given.''"'^ The court has power to relieve a party to an action from a judgment obtained against him through the negligence, fraud, or ignorance of his attorney; and when an attorney neglected his client's case, and suffered judgment to pass against him, the client himself being guilty of no laches, it was held that he was not confined to his remedy against the attorney, but that the court, in the exercise of its discretion, might set aside the judgment, and allow him to defend^® Where a written request is made for a finding of facts but no such finding is made, it is proper to set aside the judg- ment and enter a new one after the finding is filed. '^ Where it is claimed that a judgment has been obtained by fraud, a motion to set it aside is not proper after the lapse of several years.^® In its discretion, the court may vacate a judgment of its own motion.'^ A judgment may be vacated by a court of equity in a proper case, where injustice is clearly made to appear, but such jurisdiction is rarely exercised. ^'^ When a judg- ment may be vacated by a court of equity will not be considered herein because relating to equitable relief which is not within the scope of this work. A stranger to the record cannot move.*' The motion must be made promptly or the delay explained, as it may be denied because of laches in moving.** And it is 77 People V. Bacon, 18 Mich. 247. 82 Finn v. Adams, 138 Mich. 258. 78 Loree v. Eeeves, 2 Mich. 133. 83 People v. Calhoun Circuit 79 Hunt V. Patterson, 38 Mich. 95. .Tudges, 1 Doug. 417. 80 Jennison v. Haire, 29 Mich. 207, 84 People v. Calhoun Circuit 219, holding remedy to be by suit Judges, 1 Doug. 417, where two in equity. years unexplained delay held fatal. 81 Alspaugh V. Ionia Circuit Judge, 126 Mich. 67. 996 Judgment § 17 provided by statute that a judgment shall not be set aside for irregularity, on motion, unless the motion is made Avithin one year after the judgment is rendered.'^ Generally, notice of tlie motion should be served.'® An order vacating a judgment destroys its effect as a bar or estoppel, and if execution has been issued, the ex- ecution falls with the judgment. Vacating a judgment as to one of two joint debtors vacates it as to both.'''' § 18. Arrest of judgment. A motion for arrest of judgment must always be founded upon some cause appearing upon the face of the record.'' But only errors in substance will be con- sidered, and only such can prevail as are not cured by verdict.'^ It is an invariable rule with regard to arrests of judgment upon matters of law that whatever is al- leged in arrest of judgment must be such matter as would have been sufficient to overturn the action.^" But the converse of this, that everything which would have been sufficient to overturn the action Avill be good in ar- rest of judgment, is not always true, many such matters being cured by verdict at common law or by the statutes. Motions in arrest of judgment, with the reasons on w^hich they are founded, must be filed, and a copy there- of served on the opposite party, within five days after 85.Ju(l. Aft, ch. 22, §2; Comp. Barnes v. Hunl, 11 Mass. 59; Hascl- Laws 1915, § 12792. ton v. Wearo, 8 Vt. 480; Joy v. Hill, 86 Sec Vincent v. Benzie Circuit ;56 Vt. 838; Culver v. Third Nat. Judge, i;{9 Mich. 90. Bank, 64 111. 528; Sims v. Dame, 87 Van Renselaer v. Whiting, 12 118 Ind. 127; Benson v. Swift, 2 Mich. 449. See McArthur v. Oliver, Mass. 52; Payne v. Smith, 12 N. 53 Mich. 299. H. 34; Powell v. Bennett, 131 Ind. 88 State v. Carver, 49 Me. 588; 127; Hutchins v. Adams, 3 Me. 176; Lee v. Brown, 5 Wend. (N. Y.) Burdsall v. Davies, 58 Mo. 138. 221; Campbell v. Stakes, 2 Wend. 90 Phelps v. Baldwin, 17 Conn. (N. Y.) 137; Williamson v. Branch 212; Smith v. Curry, 16 111. 147; Bank, 3 Ala. 504. Kingsley v. Bill, 9 Mass. 197; 80 Dayton v. Williams, 2 Doug. Sewall's Falls Bridge v. Fisk, 23 81; Wilson v. Myrick, 26 111. 34; N. H. 171. 5 22 Judgment 997 the rendition of the verdict in the case of a trial by jury, and within a like time after the decision of the court when the cause has been tried by the court, or within such further time as shall be allowed therefor by the court or judge. Such motions may be brought on for hearing by either party, and the decision on such mo- tion may be made by the judge and entered in vacation or in term.^^ The motion may be made after entry of judgment,®'^ and proceedings may be stayed on complying with the statutes and rule of court.®' § 19. Lien. No lien is acquired on real estate in this state by a judgment until actual levy of an execution.®* § 20. Satisfaction by arrest. Arrest on a body execution and subsequent discharge because the writ was void is not a satisfaction of the judgment.®^ §21. Void or voidable judgments. A void judgment may be collaterally attacked but it is otherwise as to a merely voidable judgment. Judg- ments and orders, where the judge is disqualified, are not merely voidable but are void.®^ A judgment cannot be collaterally attacked because an attorney who appeared for a defendant served with process had no authority to act.®' § 22. Effect of judgment. The judgment of a court of competent jurisdiction directly upon a point or matter in litigation is conclu- 91 Cir. Ct. Eule 48. 95 In re Lauer's Estate, 184 Mich. 92 Harvey v. McAdams, 32 Mich. 497. 472. 96 Sandusky Grain Co. v. Sanilac 93 See Stay of Proceedings. Circuit .Tudjjo, 184 Mich. 126. 94 Schclowski v. Pawloski, 168 97 Rohrbachcr v. Walsh, 170 Mich. Mich. 664, 667. 59. 998 Judgment § 22 sive upon the parties and their privies, so that they are estopped from ever afterwards contesting the same point or matter with the same parties or their privies, either in the same court or in another, and either in the same form of action or in a different one. The point or matter so decided is *'res adjudicata." Although the objects and subject-matter of the two suits or proceedings be different, yet the judgment of a court of competent juris- diction upon a particular matter, fact or point once liti- gated and determined is conclusive between the parties and their privies.®^ It is conclusive, not only in a col- lateral suit in which the same question arises, but also in any new suit in which either party by his pleadings en- deavors to put in issue, and thus re-tiy, the subject- matter of the former adjudication or any portion there- of.»» It is of no importance whether the suit was contested or was suffered to go by default, nor whether, if it was contested, all the questions were raised by the pleadings or upon the trial which might have been raised, nor whether the court was right or wrong in its conclusions upon the facts or the law. It is sufficient that the case proceeded to judgment according to the forms of law and that the court rendered a judgment which by its terms or legal effect covered the controversy.^ The estopi^el does not depend at all upon the question whether justice was done in the first suit, but upon the merits having been once considered and passed upon.'' It is also immaterial whether the point was actually raised 9» Wales v. Lyon, 2 Mich. 276; Mich. 90; Hudson v. Judge of Su- Hazen v. Reed, 30 Mich. 331; Axford i>erior Court, 42 Mich. 239. V. Graham, 57 Mich. 422; La Vassar 99 Jacobson v. Miller, 41 Mich. 90. V. Chesbrough Lumber Co., 190 1 Jacobson v. Miller, 41 Mich. 90; Mich. 403 ; Burgess v. Stribling, 134 Town v. Smith, 14 Mich. 348 ; Mich. 33 ; Clark v. Wiles, 54 Mich. Ringelberg v. Peterson, 76 Mich. 323; Van Kleek v. Eggleston, 7 107. Mich, 511; Jacobson v. Miller, 41 2 Fifield v. Edwards, 39 Mich. 264. § 22 Judgment 999 or litigated in the first suit or not, if its determination was necessarily included in the judgment.' But a judgment, to constitute a bar in a subsequent action, must be rendered upon the merits, upon the same matter in issue and between the same parties or their privies.* Therefore a judgment of non-suit does not bar a subsequent suit for the same cause of action, as would a judgment for the defendant on the merits.^ So, also, a judgment sustaining an objection to the declaration on the ground that it fails to state a cause of action does not bar a second suit founded on the same transaction the declaration in which states a cause of action, because the merits of the plaintiff's case cannot be said to have been adjudicated when his declaration failed to state any cause of action.^ In order to constitute a bar, therefore, it must appear that the judgment was rendered upon the merits and that the matter claimed to be res adjudicata was involved in the litigation.' If this does not appear from the face of the judgment and the record preceding it, as often it does not, resort may be had to parol evi- 3 Barker v. Cleveland, 19 Mich. 177; Fifield v. Edwards, 39 Mich. 230; Jaeobson v. Miller, 41 Mich. 264; Jacobson v. Miller, 41 Mich. 90; Adams v. Cameron, 40 Mich. 90; Greenlee v. Lowing, 35 Mich. 506; Harrington v. Huff & Mitchell 63; Murphy Chair Co. v. American Co., 155 Mich. 139; Pierson v. Con- Radiator Co., 172 Mich. 14; LeRoy ley, 95 Mich. 619; Kellogg v. v. Collins, 165 Mich. 380; Cocker- Thompson's Estate, 115 Mich. 618; line v. Fisher, 140 Mich. 95; Hoff- People V. Grand Haven, etc., R. Co., man v. Silverthorn, 137 Mich. 60; 157 Mich. 144; Burgess v. Stribling, Allen v. Duffie, 43 Mich. 1. 134 Mich. 33 ; Wales v. Lyon, 6 Bowne v. Johnson, 1 Doug. 185 ; 2 Mich. 276; Detroit, etc., R. Co. Deneen v. Houghton County Street V. McCammon, 108 Mich. 368 ; Jung- R. Co., 150 Mich. 235 ; National nitsch V. Michigan Malleable Iron Bank of Oshkosh v. First Nat. Bank, Co., 121 Mich. 460; La Vassar v. 100 Mich. 485. Chesbrough Lumber Co., 190 Mich. 6 Rodman v. Michigan Cent. R. 403; Carr v. Brick, 113 Mich. 664; Co., 59 Mich. 395. Hazen V. Reed, 30 Mich. 331 ; Gould 7 Wood v. Faut, 55 Mich. 185; v. Vaughan, 30 Midi. 376. Bond v. Markstrum, 102 Mich. 11; 4 Tucker v. Rohrback, 13 Mich. Fifield v. Edwards, 39 Mich. 264. 73 ; Franks v. Fechoimer, 44 Mich. 1000 Judgment § 22 dence to show whether the particular point was, or was not, litigated and decided by the judgment.' § 23. Persons affected. The judgment in an action is conclusive only upon the parties and their privies.® A party, in the sense in which the word is here used, is one who is directly interested in the subject-matter, having the right to make defense or control the proceedings and appeal from the judgment. Persons who have not these rights are regarded as strangers to the cause. Judgments, however, in proceed- ings in rem, are binding and conclusive not only upon the parties actually litigating, but also upon all others.*® § 24. Pleading a judgment. By rule of court, in pleading a judgment, it is suffi- cient to allege generally that judgment was duly given or made." Independent of statute or rule of court, it has been held that a declaration on a judgment which fails to give the name of the plaintiff and the date of the judg- ment or to state that it is in force is insufficient,** and that the judgment must be described with accuracy." Form of Declaration on a Judgment The plaintiff says: 1. That the said plaintiff, heretofore, on the day of , A. D. , at the term of the circuit court for the county of appointed 8 Lyman v. Beeannon, 29 Mich. 624; Kyerson v. Eldred, 18 Mich. 466; Bond v. Markstrum, 102 Mich. 12; Bachelder v. Brown, 47 Mich. 11; Hoffman v. Silverthom, 137 366; Wray-Austin Machinery Co. v. Mich. 60. Flower, 140 Mich. 452; Vincent v. 9 Hale v. Chandler, 3 Mich. 531; Hansen, 113 Mich. 173; Fisher v. Huntoon v. Russell, 41 Mich. 316; Wineman, 125 Mich. 642; Willsie v. Hale V. Board of Baldwin Tp., 49 City of Ionia, 137 Mich. 445; Ax- Mich. 270; Wales v. Lyon, 2 Mich. ford v. Graham, 57 Mich. 422. 276; West Park Ass'n v. Pere Mar- 10 Hale v. Chandler, 3 Mich. 531. quette R. Co., 172 Mich. 179; Waldo H Cir. Ct. Rule 21, §4. V. Waldo, 52 Mich. 91; Yeomans v. 12 Smith v. Cowles, 123 Mich. 4. Ionia Supervisors, 174 Mich. 451; 18 Gooding v. Hingston, 20 Mich. Besancon v. Brownson, 39 Mich. 439. 388; Dickinson v. Seaver, 44 Mich. Judicature Act 1001 to be held on the day of , A. D , by the considera- tion and judgment of the said court, recovered against the said defendant the sum of dollars, which, in and by the said court, was then and there adjudged to the said plaintiff for his damages which he had sustained as well by reason of the non-performance by the said defendant of certain undertakings and promises, then lately made by the said defendant to the said plaintiff, as for his costs and charges by the said plaintiff about his suit in that behalf expended. 2. That said judgment now remains and continues in full force and effect, not reversed, satisfied or otherwise annulled. 3. That the said defendant, although requested so to do, has not paid the said sum of money, or any part thereof, to the said plaintiff. Form of Notice of Former Judgment Under Plea of General Issue To the said Plaintiff: You will please to take notice that, on the trial of this cause, the said defendant will give in evidence and insist, in his defense: 1. That on the day of , A. D , the said plaintiff recovered a judg- ment in the circuit court for the county of , against the said defendant, for the sum of dollars, damages, and dollars, costs of suit, for the same cause of action as that set forth in the said plaiiltiff 's declaration in this cause. K. L., Attorney for Defendant. JUDICATURE ACT The statutes governing practice in this state are to be found in the Judicature Act known and cited as "The Judicature Act of nineteen hundred fifteen," enacted as a revision and compilation of the various practice statutes. Quite a number of the earlier statutes relat- ing to practice are expressly repealed by the Judicature Act,^ while many other practice statutes are modified in a greater or less extent. It is therefore necessary to care- fully consider decisions of the supreme court of this state decided before the Judicature Act to ascertain whether a repeal or modification of the statutes, or the enact- 1 In the title of the act it re- act, ' ' and in chap. 81 are collected peals "all acts and parts of acts a list of statutes repealed except in inconsistent therewith or eontraven- so far as re-enacted by the Judi- ing any of the provisions of this cature Act. 1002 Judicature Act ment of new statutes, by the Judicature Act have affected them as controlling authority in this state. The principal purpose of the Judicature Act is to sim- plify practice, and the effect thereof is to put this state in the front ranks of the states which have reformed their procedure and in several respects to go beyond many of the so-called Code states in this respect. The principal changes are the abolition of forms of action in effect, except replevin and ejectment;^ the simplifica- tion of pleadings and the doing away with demurrers and pleas in abatement;^ the extension of the power to join causes of action in one suit;* and the adoption of the real party in interest rule, so far as parties to actions are concerned, and liberal provisions relating to the right to intervene in actions.^ In addition, many other more or less important changes are noticed in connection with particular proceedings, and in many instances a num- ber of statutes are grouped together and codified in one provision. In line with such changes new rules of court have been adopted,^ making further material changes in the law relating to pleadings,'' etc. It is expressly provided that the Judicature Act is '^remedial in character, and as such shall be liberally construed to effectuate the intents and purposes there- of."* JUDICIAL ACTION See Courts. JUDICIAL NOTICE See Pleading; Evidence. 2 See Actions. 6 See Rules of Court. 3 See Pleading, 7 See Pleading. 4 See Joinder and Splitting of 8Jud. Act, §2; Comp. Laws 1915, Causes op Action. § 12005. 6 See Parties. See Courts. See Affidavits. Jury 1003 JUDICIAL POWER JURAT JURISDICTION See Courts; Supreme Court; Circuit Courts; Probate Courts; Jus- tices OF THE Peace; Appearance; Costs; Mandamus. JURY § 1. Demand for. § 2. ■ Filing demand to avoid reference. § 3. Court may order jury on its own motion. § 4. Origin and development of trial by jury. § 5. Right to jury as preserved by constitution. § 6. Qualifications of jurors. § 7. Exemptions from service as juror and excusing jurors. § 8. Exemption not disqualification. I 9. Drawing and summoning of jurors, § 10. Additional jurors. § 11. Drawing and calling jurors for trial of an issue. § 12. When talesmen may be summoned. § 13. Number of jurors. § 14. Administering oath to jury. § 15. Challenges of jury or jurors. § 16. Challenges to the array. § 17. Challenges to the polls — Peremptory challenges. § 18. Challenges for cause. § 19. Scope of examination of jurors. § 20. Eejection of juror by court of its own motion. § 21. Special or struck juries. § 22. Inability of juror to attend or serve after jury has been impaneled. § 23. Fine for neglect to attend as juror. Cross-references: Trial; Instructions; Verdict; New Trial. Right to jury in particular actions or proceedings, see Attorneys (disbarment proceedings)'; Mandamus; Quo Warranto; and other particular titles. § 1. Demand for. When a cause is at an issue of fact, it is incumbent upon each of tlie parties to determine, in seasonable time, whether, considering all the circumstances of the case, it 1004 Jury § 1 will be advantageous to have the issue of fact tried by a jury or by the court without a jury. The constitution of the state contains a provision that the right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law.^ And in accordance with this, it has been provided by statute that all issues and questions of fact shall be tried by the court, unless a jury be demanded by one of the parties in a manner prescribed by the rules of the court, but that, in all actions of tort, and in all other actions the subject-matters whereof are, in the opinion of the court, peculiarly proper for the consideration of a jury, it shall be competent for the court to order the cause to be tried by a jury.^ A demand for a jury is therefore necessary to entitle a party, as a matter of strict right, to a jury trial. This demand is required to be in writing and to be filed with the clerk within ten days after the issue is joined in the cause.' But the court may, in its discretion, transfer any case to the jury calendar although no de- mand for a jury has been so made and filed.* 1 Const. Art. II, sec. 12; Odell Court may, of its own motion, V. Reynolds, 40 Mich. 21; People v. order a ease tried by jury. People Hoffman, 3 Mich. 248; Boatz v. v. Detroit Superior Judge, 41 Mich. Berg, 51 Mich. 8; Lymburner v. 31. Jenkinson, 50 Mich. 488; Hopkins 3 Cir. Ct. Rule 39. See In re V. Sanford, 41 Mich. 243; Pontiae McNamara's Estate, 166 Mich. 451. & L. Plank Road Co. v. Hopkinson, Under former rule, time was eight 69 Mich. 10. days before the first day of the In criminal cases, no demand is term, necessary and the legislature cannot Stipulation for a reference is not divest any substantial incident of operative after judgment and re- the right of trial by jury. Swart v. versal on ai)peal, but a jury trial Kimball, 43 Mich. 443; Ward v. may then be demanded. Hopkins v. People, 30 Mich. 116; Hill v. People, Stanford, 41 Mich. 243, 16 Mich. 351; People v. Smith, 9 4 Cir. Ct. Rule 39. Mich. 193. 2Jud. Act, ch. 18, §12; Comp. Laws 1915, § 12584. § 3 Jury 1005 The party demanding a jury is required to pay the sum of three dollars to the clerk before the impaneling of the jury is begun. It is good practice to pay the jury fee to the clerk at the time of filing the demand for the jury, but it need not be paid at that time.® § 2. Filing demand to avoid reference. In cases where the trial of an issue of fact requires the examination of mutual accounts or of a long account on one side only, or where the taking of an account is necessary for the information of the court before judg- ment, a party is liable to be deprived of a jury trial by the cause being referred under the statute, unless he is duly prompt in demanding a trial by jury. To avoid a reference in such cases and secure the right to have the issue tried by a jury, the party should, within ten days after joining issue, file with the clerk a written demand for 'a trial by jury.^ If the case be an appeal case in which the issue was joined in justice's court, so that it is im- possible for a party to demand a jury for the trial in the circuit court within ten days from the joining of the issue, of course, the party cannot, by reason of having failed to perform an impossibility, be deprived of a jury trial by the court directing a reference of the cause.''' In such case, the party should demand a jury as soon as practicable after the return to the appeal has been filed in the circuit court and within ten days thereafter. § 3. Court may order jury on its own motion. In cases where neither party has demanded a jury, the court may nevertheless in all actions of tort, and in all BOdell V. Reynolds, 40 Mich. 21; 6 Jud. Act, ch. 18, §68; Comp. Pontiac & L. Plank Eoad Co. v. Laws 1915, S 12640; Hollands v. Hoi)kinson, 69 Mich. 10; McGraw Wayne Circuit Judge, 117 Mich. V. Sturgeon, 29 Mich. 426. As to .326. fees of jurors, see Pub. Acts 1917, 7 Odell v. Eeynolds, 40 Mich. 21. No. 238. 1006 Jury § 3 other actions the subject-matters whereof are, in the opinion of the court, peculiarly proper for the considera- tion of a jury, order the cause to be tried by a jury.* This the judge may do for his own satisfaction, and it is not a matter which concerns the parties who have not de- manded a jury.® § 4. Origin and development of trial by jury. The origin of the institution of trial by jury is involved in great obscurity and doubt. It belongs, however, to very early times and has been variously ascribed by some writers to Woden, the great legislator of the ancient Britons, by others to Regner, king of Sweden and Den- mark, and by others to Alfred the Great. This method of trial was in use at a remote period, not only in England, where it is said by Blackstone to have been used time out of mind and to have been co-eval with the first civil government thereof, but likewise among all the northern nations of Europe. In England, the jury anciently consisted of persons W' ho were witnesses to the facts, or at least in some meas- ure personally cognizant of them, and who, consequently, in their verdict, gave not (as now) the conclusion of their judgment upon facts proved before them in the cause, but their testimony as to facts which they had anteced- ently known. The venire facias, or writ by which the sheriff was commanded to summon the jury for the trial of a cause, in those days directed the jurors to be sum- moned, not from the body of the county, but from the immediate neighborhood where the facts occurred, and from among those persons who best knew the truth of the matter. Such neighborhood was called the ''venue" or "visne," and was required to be stated in the pleadings, so that, the substance of the issue being set forth in the 8 Jnd. Act, ch. 18, § 12 ; Comp. 9 People v. Judge of Superior Laws 1915, § 12584. Court, 41 Mich. 31. § 5 Jury 1007 venire facias, it might be known from what place to summon the jury.^° But in time the practice relative to the summoning of juries underwent very radical changes, as the result of which it came about that the jury, instead of being sum- moned as witnesses or on account of l)eing personally cognizant of the facts pertaining to the issue, were thenceforth summoned as judges of the issue, receiving the facts from the testimony of others judicially exam- ined before them, and, instead of being summoned from the place where the facts of the issue occurred, w^ere summoned from the body of the county where the action was laid.^^ At common law, the jury consisted of twelve good and lawful men.^^ Neither a larger nor a smaller number was competent," and they must be liege subjects of the king, and neither aliens nor persons outlawed, attained of any treason or felony or convicted of any species of crimen falsi, as conspiracy or perjury, which would render them infamous.^* The jury was intended to be composed of twelve intelligent and impartial men, ''by whom, ' ' in the quaint language of the venire facias, ' ' the truth of the matter might be better known."" § 5. Right to jury as preserved by constitution. By the constitution of Michigan, it is provided that the right of trial by jury shall remain." The right thus pre- lOSteph. PI. 268; Coiivcrs v. 14 People v. Harding, 53 Mich. 48. Grand Eapids, etc., E. Co., 18 Mich. 15 .3 Cooley 's Bl. Comm. 352. 459; Swart v. Kimball, 43 Mich. 16 Const. Art. II, sec. 13; In re 443; People v. Hall, 48 Mich. 482; Shepard, 109 Mich. 631.; Young v. People V. Harding, 53 Mich. 48. Peters, 118 Mich. 45; Wixom v. llSteph. PI. 271-273. Bixby, 127 Mich. 479; Rhoades v. 12 Steph. PI. 273. McNamara, 135 Mich. 644; People 13 Thomp. Trials, sec. 3 ; People v. Doesburg, 16 Mich. 133 ; Ball v. V. Luby, 56 Mich. 551; People v. Eidge Copper Co., 118 Mich. 7; In Lane, 124 Mich. 271; Eobinson v. re Cox, 129 Mich. 635. Wayne Circuit Judges, 151 Mich. If only question of law involved, 315, it seems that the judge may dismiss 1008 Jury § 5 served and guaranteed is the right as it existed before, — the right to a trial by jury as it had become known to the previous jurisprudence of the state; ^"^ and while it was not intended to limit the power of the legislature there- after to change the law relative to the qualifications of jurors or to the manner of selecting jurors or to the per- sons or officers who should make the selections or the lists from which the selections should be made," yet the essentials of the right cannot be taken away. § 6. Qualifications of jurors. It is provided by statute in this state that persons selected to serve as jurors shall be suitable persons, being citizens having the qualifications of electors. They must be persons who are in the possession of their natural faculties, and not infirm or decrepit, of good character, of approved integrity, of sound judgment, well inforaied and conversant with the English language, free from all legal exceptions, and who have not made and in whose behalf there has not been made any application to be selected and returned as jurors." the jury. Fleming v. James S. Court Judge, ,88 Mieh. 438; People Holden Co., 200 Mich. 519. v. Eeilly, 53 Mieh. 260; People v. 17 Underwood v. People, 32 Mich. Cummins, 47 Mieh. 334. 1 ; Swart v. Kimball, 43 Mich. 443 ; 19 Jud. Act, ch. 2, § 121 ; Comp. State V. Iron Cliffs Co., 54 Mich. Laws 1915, §12190; People v. Con- 350; Auditor General v. Sloman, 84 sidine, 105 Mich. 149; People v. Mich. 118; Campau v. City of De- Scott, 56 Mich. 154. troit, 14 Mich. 276; Johnson v. Electors are competent jurors in Maxon, 23 Mich. 129; McEae v. actions in which their county, city Grand Eapids, etc., E. Co., 93 Mich. or village is interested. Jud. Act, 399. ch. 18, §27; Comp. Laws 1915, The right to jury trial need not § 12599. be extended to new cases. State Jurors must be electors. People Tax Law Cases, 54 Mich. 350. v. Harding, 53 Mich. 48. 18 People V. Harding, 53 Mich. They must be on the assessment 48; City of Saginaw v. Campau, 102 roll. Schlacker v. Ashland Iron Min. Mich. 594; People v. Bichards, 38 Co., 89 Mieh. 253; People v. Mich. 214; Bisser v. Hoyt, 53 Mich. Thacker, 108 Mich. 652. But see 185; People v. Anderson, 53 Mich. Eeed v. Peacock, 123 Mich. 444. 60; Hall v. Grand Eapids Superior They must reside in the county. § 7 Jury 1009 Under the general law relative to the selection of persons to serve as jurors, the lists are required to be made up of the names of persons assessed on the assess- ment rolls of the various townships, wards and assess- ment districts for the same year.*^® The selection of jurors in the Upper Peninsula is governed by a special law, under which the lists are to be made up of selections from the various poll lists of each township and ward last filed in the clerk's office.^^ The burden of showing disqualification of a juror is upon the party alleging it." § 7. Exemptions from service as juror and excusing jurors. The following persons are by statute exempt from serv- ing as jurors: All officers and employes of the United States, all offi- cers and employes of this state, all county officers and their deputies, all judges of courts of record, all attomej^s and counselors, all officers and teachers of colleges and incorporated academies, all settled ministers of the gos- pel, all superintendents, engineers and conductors of any Hewitt V. Saginaw Circuit Judge, majority of the persons summoned 71 Mich. 287; People v. Wright, 89 were eligible. Niles v. Steere, 102 Mich. 70. Mich. 328. An alien is not eligible (People v. It is no ground for challenge to Barker, 60 Mich. 277), unless he has the array that the jury lists were taken the necessary steps to entitle not returned until after the time him to vote. Neal v. Neal, 181 fixed by the statute. People v. Coff- Mich. 114, 129; People v. Considine, man, 59 Mich. 1; Thomas v. People, 105 Mich. 149; People v. Barker, 60 39 Mich. 309. Mich. 277; People v. Collins, 166 21 How. Stat. (2nd ed.) 12917; Mich. 4. Comp. Laws 1915, § 14598. 20Jud. Act, ch. 2, §§120, 121; One of the main objects of any Comp. Laws 1915, §§12189, 12190; system for selecting jurors is that Schlacker v. Ashland Iron Min. Co., the panel shall come from the body 89 Mich. 253; People v. Thacker, of the county, and this intends 108 Mich. 652. every townsliip in the county. A challenge to the array on the Hewitt v. Saginaw Circuit Judge, ground that the assessment rolls for 71 Mich. 287. the wrong year were used cannot 22 People v. Collins, 166 Mich. 49. be sustained, it appearing that a 1 Abbott— 64 1010 Jury § 7 railroad, all constant ferrymen, all members of any legally organized fire department, all members of the Michigan national guard, all registered pharmacists, all practicing physicians, surgeons and dentists, and all per- sons more than sixty-five years of age.'^' Keepers of poor houses also are exempt from serving on juries.^* The court to which any person is returned as a juror is required to excuse him from serving at such court whenever it appears (1) that he is exempt from serving on juries by the provisions of law, (2) that he is a justice of the peace or executes any other civil office the duties of which are at the time inconsistent with his attend- ance as a juror, (3) that he is a teacher of any school, actually employed and serving as such, or (4) when, for any other reason, the interests of the public or of the in- dividual juror will be materially injured by such attend- ance, or his own health or that of any member of his family requires his absence from such court.^* While the judge is vested with no right of peremptory challenge,^^ he may, on his own motion, before a juror has been sworn in a case, excuse him for any reason per- sonal to the juror which seems to the judge sufficient,*''^ even in the absence of counsel for one of the parties,*' especially where the regular panel has not been ex- hausted and the objecting party has not exhausted his peremptorj^ challenges.*^ But a judge has no right to reject a qualified juror with whom the parties are satis- fied, unless for sufficient cause, and such cause should 28Jud. Act, ch. 2, §138; Conip. Mich. 36; People v. Carrier, 46 Laws 1915, § 12207. Mich. 442 ; Torrent v. Yager, 52 24 How. Stat. (2nd ed.) 3511; Mich. 506; People v. Barker, 60 Comp. Laws 1915, § 5224. Mich. 277; O'Neill v. Lake Superior 25Jud. Act, ch. 2, §139; Comp. Iron Co., 67 Mich. 560. Laws 1915, § 12208. 28 People v. Thacker, 108 Mich. 26 Welch V. Tribune Pub. Co., §3 652. Mich. 661. 29Brennan v. O'Brien, 121 Mich. 27 Atlas Min. Co. v. Johnston, 23 491 ; Luebe v. Thorpe, 94 Mich. 268. § 9 Jury 1011 appear upon the record.*'' Even after the jury has been sworn, the trial judge may exercise his discretion to ex- cuse a juror for cause before the introduction of evi- dence.*^ § 8. Exemption not disqualification. A person who is exempt from serving as a juror is not thereby disqualified for such service. The right to claim the exemption is personal to the juror and is not a ground for a challenge for cause. Thus, a man over sixty-five years of age is exempt from jury service, but he is not, for that reason, subject to challenge for cause.*'^ § 9. Drawing" and summoning' of jurors. After giving notice to the sheritf and two justices of the peace, at least three days before the drawing, of the day and hour when the drawing will take place, and at least fourteen days before the holding of any circuit court at which a juiy is required, the clerk of the county where the court is to be held is required to draw from the petit jurors in the manner prescribed by the statute, the names of twenty-four persons and any additional number that may have been ordered by the court to serve as petit jurors, and, when the drawing is completed, to make and deliver to the sheriff a list of the persons so drawn, with their places of residence, specifying for what term of court they were drawn, certified by the clerk and the officers attending the drawing.** Thereupon the 80 Welch V. Tribune Pub. Co., 83 there is no good reason for excusing Mich. 661. him. Brennan v. O'Brien, 121 Mich. Except where it will prejudice the 491 ; Welch v. Tribune Pub. Co., rights of a party, as where the reg- 8o Mich. 661. ular panel has been exhausted, or 31 Quay v. Duluth, etc., E. Co., the peremptory challenges have been 153 Mich. 567, exhausted, it is not reversible error 32 People v. Rawn, 90 Mich. 377 ; for the court to excuse a juror on Luebe v. Thorpe, 94 Mich. 268; his voir dire at his own request People v. Lange, 90 Mich. 454. although he is qualified to sit and 33 Jud. Act, ch. 2, §§130-135, 143, 1012 Jury § 9 sheriff is required to serve a personal notice upon each of the persons summoned to serve as petit jurors by mak- ing out a written notice to each person summoned and enckising it in a sealed envelope addressed to the person so summoned at his last known place of residence and sending it to him by registered mail at least ten days before the first day of the next term of the court, with a demand on the envelope for a return registry receipt. The sheriff must make a proper return to the court speci- fying who have been summoned and the manner in which such service was made, attaching to the return the reg- istry receipts received from the persons so summoned.^* The body of persons so summoned to serve as jurors is called the ''panel," a word which was formerly used to designate the little pane or oblong piece of parchment upon which, annexed to the venire facias, the sheriff used anciently to return the names of the jurors.^' § 10. Additional jurors. Whenever, for any cause, jurors have not been drawn and summoned, or a sufficient number of qualified jurors fail to appear, the court may, in its discretion and on its own motion,^® in such manner as it may direct, order a sufficient number to be drawn and summoned to attend the court, and may, for the purpose of obtaining a jury or talesmen near the county seat, direct from which townships or supervisor districts or voting precincts such jurors shall be drawn." And the sheriff, upon receiving 144; Comp. Laws 1915, §§12199- 34Jud. Ad, ch. 2, §136; Comp. 12204, 12212, 12213. See also Jud. Laws 1915, § 12205. Act, ch. 2, §§150-159; Comp. Laws 35 3 Cooley's Bl. Comm. 353; And. 1915, §§ 12219-12228, as to the adop- Law Diet. tit. "Panel"; Cyc. Law tion by vote of the electors of the Diet. tit. ' ' Panel. ' ' method of drawing jurors by 36 Smaltz v. Boyce, 109 Mich. Boards of Jury Commissioners. A 382; People v. Considine, 105 Mich. jury may be drawn by a deputy 149. sheriff. Sturgis v. Mt. Clemens 37 Jud. Act, ch. 2, §145; Comp. Sugar Co., 184 Mich. 456. Laws 1915, § 12214; Niles v. Steere, § 11 Jury 1013 the list of jurors drawn according to such order, is re- quired to summon them in tlie manner already specified forthwith to attend such court.'* § 11. Drawing and calling jurors for trial of an issue. On the return of every list of petit jurors summoned by the sheriff to attend any circuit court, the clerk of the court is required by the statute to cause the names of the several persons so returned, and who are not discharged or excused by the court, to be written on several and dis- tinct pieces of paper and to roll or fold such pieces of paper each in the same manner, as near as may be, so as to resemble each other as much as possible and so that the name written thereon will be concealed.'® These pieces of paper must then be deposited in a sufficient box, from which they may be drawn when a jury is to be im- paneled for the trial of a cause.*" When an issue is brought on for trial, the clerk of the court, under its direction, openly draws out of the box as many of these ballots, one after another, as is sufficient to form a jury.*^ Before any jury is drawn, the box containing the ballots must be closed and be well shaken, so as to intermingle the ballots. The clerk then draws the ballots, without seeing the names written on them, through a hole in the top or lid of the box, which should be so large only as conveniently to admit his hand.**^ The first twelve per- sons who appear as their names are drawn and called, and who are approved as impartial between the parties, 102 Mich. 328; People v. Gage, 188 39 Jud. Act, eh. 18, §28 Mich. 635, holding order cannot Laws 1915, § 12600. designate portion of county from 40 Jud. Act, ch. 18, §29 which the jurors shall be drawn; Laws 1915, §12601. People V. Wheeler, 142 Mich. 212. 41Jud, Act, eh. 18, §30 See Green v. Muskegon T. & L. Co., Laws 1915, § 12602. 171 Mich. 18, construing Pub. Acts 42 Jud. Act, ch. 18, §36 1911, No. 194. " Laws 1915, §12608. 38 Jud. Act, ch. 2, §136; Comp. Laws 1915, §12205. Comp. Comp. Comp. Comp. 1014 Jury § 11 are thereupon sworn and constitute the jury to try the cause." § 12. When talesmen may be summoned. If, by reason of there being one or more juries im- paneled or for any other reason, there remain no ballots undrawn from the box, or if, in consequence of jurors being set aside, no jury can be obtained from the list of those returned by the sheriff for the trial of an issue, the court may, as in other cases, order the sheriff or, if he be a party or interested in the cause, some other person, to be appointed by the court, to summon jurors from the by- standers or other persons, who, having been returned and sworn, will be a competent jury for the trial of the issue, notwithstanding there may be none of the panel of jurors returned by the sheriff upon such jury.** Persons thus summoned are called ''talesmen," from the Latin word, "talis," meaning "such," for under the old common law practice, when, by reason of challenges or other cause, a sufficient number of unexceptionable jurors did not ap- pear, either party might pray a "tales," that is, a supply of "such" men as were summoned upon the first panel, in order to make up the deficiency. § 13. Number of jurors. As at common law, the jury consists of twelve. But the legislature may authorize a trial by a jury of a less number than twelve men." 43 Jud. Act, eh. 18, § 31 ; Comp. county, where there is no objec- Laws 1915, § 12603, tion. People v. Wheeler, 142 Mich. 44 Jud. Act, eh. 18, §35; Comp. 212. Laws 1915, § 12607. It is error to In the absence of the sheriff, the excuse a talisman on the ground underslieriff is the proper officer for that he was not a taxpayer. Reed the court to call upon to summon V. Peacock, 123 Mich. 244; Stewart talismen. People v. Ponsford, 181 V. People, 23 Mich. 63. Mich. 659, 665. This statute is not mandatory. Interest of sheriff as incapaeitat- and instead the sheriff may be di- ing him to act, see People v. La- rected to summon persons as jurors Londe, 171 Mich. 286. from designated townships of the 45 Const. Art. V, sec. 27. But § 16 Jury 1015 § 14. Administering oath to jury. The jury must be sworn.**^ The sufficiency of the oath administered is waived by going to trial.*' § 15. Challenges of jury or jurors. The principal means whereby a jury ''approved as impartial between the parties" is secured for the trial of an issue of fact is the exercise of the right to chal- lenge. Challenges are classified as either (1) "to the array" or (2) "to the polls." § 16. Challenges to the array. A challenge to the array is an exception to the whole panel in which the jurors are arrayed or set in order by the sheriff on his return, and is founded upon some ob- jection whicli, if valid, vitiates the whole panel and neces- sitates its discharge.*^ At the common law, a challenge to the array might be made upon account of some par- tiality or default in the sheriff or under sheriff who arrayed the panel, and now such a challenge will prob- ably lie to the action of a board of jury commissioners where it would at common law to the action of the sher- iff or his subordinate officers.*® But it is not a cause of challenge to any panel or array of jurors in any cause that the clerk of the county who drew them was a party legislature cannot provide for con- It is not a ground that the dep- tingencies in which a jury may con- uty sheriff instead of the sheriff sist of less than twelve, in the dis- acted in drawing the jury. Sturgis cretion of the trial court. McRae v. Mt. Clemens Sugar Co., 184 Mich. V. Grand Rapids, L. & D, R. Co., 456. 93 Mich. 399. Grounds in general, see People v. 46 See Peninsular Stove Co. v. Os- Tonnelier, 167 Mich. 638, and cases mun, 73 Mich. 570. cited. 47 The Milwaukee, 1 Doug. 306. 49 People v. Harding, 53 Mich. 49 ; 48 3 Cooley's Bl. Comm. 359. 3 Cooley's Bl. Comm. 359; Gott v. Grounds in particular cases, see Brigham, 45 Mich. 424; Free! v. Eberts v. Mount Clemens Sugar Co., State, 21 Ark. 212; Gardner v. Tur- 182 Mich. 449; People v. Mac- ncr, 9 Johns. (N. Y.) 260, Gregor, 178 Mich. 436, 464. 1016 Jury § 16 or interested in the case or was counsel for or related to either partj' therein.^" It also is not a good ground for such challenge, where the jurors have been drawn as provided by law, that they were summoned by a sheriff who was a party or interested in the cause or is related to either party, unless it be alleged in the challenge and be satisfactorily shown that some of the jurors drawn by the clerk were not summoned and that such omission was intentional.^^ Nor can a challenge to the array be sustained on the ground that, in making uj) the list of jurors, the board used the assessment rolls for the wrong year, where a majority of the persons selected were eligible, since the statute points out the procedure when, from any cause, a sufficient number of qualified jurors do not attend.*^ Challenges to the array should be in writing,^' made before the jury is sworn," and must be supported by proof of the irregularity charged.®^ (Title of court and cause.) Come now as well the said plaintiff as the said defendant, by their respective attorneys, and the jurors of the jury impaneled in this cause also come; and hereupon the said plaintiff challenges the array of said panel, because, he says (here specify the grounds of challenge), and this the said plaintiff is ready to verify, and prays judgment, and that the said panel may be quashed. Dated, etc. J. K., Attorney for Plaintiff. SOJud. Act, ch. 18, §24; Comp. 53 People v. Doe, 1 Mich. 451; Laws 1915, §12596; People v. Pel- Eyder v. People, 38 Mich. 269; ker, 61 Mich. 114; Fornia v. Wayne People v. Tubbs, 147 Mich. 1. Circuit Judge, 140 Mich. 631. 54 People v. McArron, 121 Mich. 1, 51Jud. Act, ch. 18, §2.1; Comp. 56 People v. Coughlin, 67 Mich. Laws 191.5, § 12.597; People V. Sum- 466; Smaltz v. Boyce, 109 Mich, mers, 115 Mich. 537. 382; Barrelli v. People, 164 111. 549; 62Niles v. Steere, 102 Mich. 328; State v. Rigg, 10 Nev. 284. Eberts v. Mt. Clemens Sugar Co., 182 Mich. 449. § 17 Jury 1017 § 17. Challenges to the polls Peremptory challenges. Challenges to the polls are exceptions to particular jurors, and are either (1) * ' peremptoiy " or (2) "for cause." A peremptory challenge is one for which no reason need be given.*^ By the terms of the statute in Michigan, in civil cases, each party may challenge per- emptorily four jurors.^' Peremptory challenges are given in civil cases by the statute ex gratia. A party is not entitled to them independently of the statute as a matter of right. They are not aimed at disqualifications, but are permitted to be exercised upon jurors, whether qualified or not, as a matter of favor to the challenger.*^* It is the general rule that, where several persons are joined as plaintiffs or defendants, the number of per- emptory challenges is restricted to each aggregate party considered as a unit, that is to say, all the parties, plain- tiff or defendant, must join in their peremptory chal- lenges.^^ But, in Michigan, where several defendants each plead separately by different counsel or their in- terests are several, the right of separate challenge is al- lowed to each defendant.^" Where, however, parties im- pleaded together appear by the same counsel, and, after their right of peremptory challenge is exhausted, other counsel take charge of the case for a part of them, the latter have no further right of challenge.^^ The right to 66 'Neil v. Lake Superior Iron 60 Stroh v. Hinchman, 37 Mich. Co., 67 Mich. 560; People v. Eggle- 490; People v. Welnier, 110 Mich, ston, 186 Mich. 510; Donovan v. 248; Levyn v. Koppin, 183 Mich. People, 139 111. 412; Hayes v. Mis- 232; Yonkus v. McKay, 186 Mich, souri, 120 U. S. 71. 203. 67Jud. Act, eh, 18, §40; Conip. Rule applied where action for Laws 1915, § 12612, damages is brought against saloon- 68 'Neil v. Lake Superior Iron keeper and his surety. Yonkus v. Co., 67 Mich. 560; People v. Eggle- McKay, 186 Mich, 203. ston, 186 Mich, 510, 61 Fraser v. Jennison, 42 Mich. 59 1 Thonip. Trials, see. 46; Stone 206. To same effect, in will case, V. Segur, 11 Allen (Mass.) 568; see In re Walsh's Estate, 196 Mich. Snodgrass v. Hunt, 15 Ind, 274, 42, 66. 1018 Jury § 17 challenge peremptorily may be exercised at any time be- fore the juror is sworn,^^ but not afterwards.®* § 18. Challenges for cause. Challenges for cause are, as the name implies, such as require a reason to be assigned for them. The cause must be immediately assigned, and the truth thereof must be determined by the court.®* It is not necessary that there should be any statutory provision that challenges for cause may be allowed. The right exists in all cases where the jury impaneled is a common law jury. Indeed, a party cannot be deprived of it by statute.®^ Sir Edward Coke reduced challenges to the polls for cause to four heads, namely: (1) I^ropter honoris respec- tum, as, if a lord of parliament be impaneled on a jury, he might be challenged by either party; (2) Propter defectum, as, if a juryman be an alien born, this was de- fect of birth ; if he be a slave or bondman, this was defect of liberty, and he could not be liber et legalis homo; (3) Propter affectum, for suspicion of bias or partiality. The challenge propter affectum may be either a principal chal- lenge or to the favor. A principal challenge is one the cause assigned for which carries with it prima facie evi- dent marks of suspicion either of malice or favor, as that a juror is of kin to either party within the ninth degree or 62 Hunter v. Parsons, 22 Mieh. People v. MeArron, 121 Mich. 1. 96; People v. Carrier, 46 Mieh. 442; Fact not discovered until after Hamper's Appeal, 51 Mich. 71; judgment cannot be relied on. Neal Palmer v. Highway Com'r, 49 Mich. v. Neal, 181 Mich. 114. 45; Scripps v. Eeilly, 38 Mich. 10; Challenges for c£>use may be made Jhons V. People, 25 Mich. 499; Johr at any time before the jury is sworn V. People, 26 Mich. 427. (Scripps v. Eeilly, 38 Mieh. 10), 63 People v. Dolan, 51 Mich. 610; but not afterwards. Clark v. Drain Thorp V. Deming, 78 Mich. 124; Com'rs, 50 Mich. 618; The Mil- Ayres v. Hubbard, 88 Mich. 155. waukie, 1 Doug. 306; Johr v. People, 64Jud. Act, ch. 18, §40; Comp. 26 Mich. 427; Walker v. City of Laws 191.5, §12612; Holt v. People, Ann Arbor, 111 Mich. 1. 13 Mich. 224; The Milwaukie, 1 65 Kundinger v. City of Saginaw, Doug. 306; People v. Doe, 1 Mieh. 59 Midi. 355. 451; Johr v. People, 26 Mich. 427; § 18 Jury 1019 that he has an interest in the cause. Challenges to the favor are where the party has no principal challenge, but objects only on some probable circumstance of suspicion, as acquaintance and the like,^^ (4) Propter delictum, for some crime or misdemeanor that affected the juror's credit and rendered him infamous.®''^ In modern practice, challenges for cause may well be classified as (1) those wherein the cause assigned af- fects the general qualification of the person to serve as a juror in the trial of any issue at the term of court for which he was summoned, as, that he is not in the posses- sion of his natural faculties or is not conversant with the English language ;^^ (2) those where the cause assigned affects not necessarily his general qualification as a juror, but only his qualification to sit as a juror in the particu- lar case, as, that he is interested in the outcome of the trial or is of kin to one of the parties within the degree limited by law ®^ or has a fixed and positive belief upon the truth or propriety of the issue.''" It is a ground for challenge for cause that the person 66 The provision of the statute v. German Ins. Co., 107 Mieh. 270 ; that, in all cases of challenges for City of Detroit v. Detroit Ey., 134 cause, the cause shall be immediately Mich. 11; People v. Waller, 70 Mich, assigned and the truth thereof shall 2.37; Goodrich v. Burdick, 26 Mich, be determined by the court, practi- 39; Pearce v. Quincy Min. Co., 149 cally abolishes the distinction be- Mich. 112. tween challenges for principal cause 70 Blake v. Millspaugh, 1 Johns, and challenges to the favor. Holt (N. Y.) 316; Pringle v. Hu.se, 1 V. People, 13 Mich. 224; Stephens Cow. (N. Y.) 432; People v. Shu- v. People, 38 Mich. 739; Bliss v. felt, 61 Mich. 237; People v. Bar- Caille Bros. Co., 149 Mich. 601. ker, 60 Mich. 277; Rice v. Rice, 104 67 3 Cooley's Bl. Comm. 361-363. Mich. 371; People v. O'Neill, 107 68 State V. Gay, 25 La. Ann. 472; Mich. 556; Pearson v. Schocnburg, Garcia v. State, 12 Tex. App. 335. 167 Mich. 255. 69 Stevenson v. Stiles, 3 N. J. L. A juror may, it seems, be asked 310; Peklenk v. Isle Royalo Copper which party he would favor if the Co., 187 Mich. 644; Michigan Air testimony were evenly balanced. Line R. Co. v. Barnes, 40 Mieh. 383; Otsego Lake Tp. v. Kirsten, 72 Mich. Kundinger v. City of Saginaw, 59 1; People v. O'Neill, 107 Mich. Mich. 355; Martin v. Farmers' Mut. 566; Monaghan v. Agricultural Fire Fire Ins. Co., 139 Mich. 148; Smith Ins. Co., 53 Mich. 238; People v. 1020 Jury § 18 about to serve as a juror is not an elector, that he has served as a juror upon the regular panel or as talesman in the court within one year previous to the challenge,'^ that he is infirm or decrepit,'^ that he is not of sound judgment,'^ that he has applied to be selected as a juror or has caused such application to be made in his behalf,'* and that, except in the Upper Peninsula, the name of a juror chosen from the regular panel does not appear upon the assessment roll of the township, ward or assessment district in which he resides,"'^* although the fact that one of the jurors who was summoned as a talesman was not named on any of the assessment rolls for the county would not disqualify him.'''^ And, in general, the lack of any qualification which the law requires of jurors will con- stitute a valid ground for challenge, whether it affects the competency of the person to serve at all at the term at which he was summoned or only his competency to try the issue in the particular instance. A juror is presumed to be competent in the absence of proof to the contrary." Wheeler, 185 Mich. 164; People v. 72 Jud. Act, ch. 2, §121; Comp. Peck, 139 Mich. 680 ; Peoplo v. Laws 1915, § 12190. Caldwell, 107 Mich. 374; People v. 73 Jud. Act, ch. 2, §121; Comp. Keefer, 97 Mich. 15. But the ques- Laws 1915, § 12190. tion is properly ruled out where the 74 Jud. Act, eh. 2, § 121 ; Comp. counsel declines to add the words Laws 1915, § 12190. "if either way." People v. Cald- 75 Jud. Act, ch. 2, §121; Comp. well, 107 Mich. 374, followed in Laws 1915, §12190; Schlacker v. People V. Wheeler, 185 Mich. 164. Ashland Iron Min. Co., 89 Mich. Disqualification because of fixed 253 ; Smaltz v. Boyce, 109 Mich, opinion, as stated by the juror him- 382; People v. Thacker, 108 Mich, self pending the trial, warrants, it 652; Smith v. German Ins. Co., 107 seems, a discharge of the jury. Mich. 270. In the Upper Peninsula, People V. Sharp, 163 Mich. 79. jurors are drawn from the various 71 Jud. Act, ch. 18, §42; Comp. poll lists of the several townships Laws 1915, § 12614; Courvoisier v. and wards. How. Stat. (2nd ed.) Eaymond, 23 Colo. 113; Burden v. 12917; Comp. Laws 1915, §14598. People, 26 Mich. 162 ; Williams v. 76 Stewart v. People, 23 Mich. 63 ; City of Grand Rapids, 53 Mich. Reed v. Peacock, 123 Mich. 244. 271; People v. Thacker, 108 Mich. 77 Ncal v. Neal, 181 Mich. 114. 652. § 19 Jury 1021 In civil cases, the mere formation of an opinion does not, of itself, disqualify.'^ The formation of an opinion does not disqualify if the juror states he nevertheless be- lieves he can render a fair and impartial verdict.'''* Jurors who state they would allow less weight and credit to defendant's testimony because he was a saloon keeper are subject to challenge.^" So a challenge should be sustained where a juror does not believe in the en- forcement of the law under which the action is brought.'^ A juror must be a disinterested person,"'' and hence an employee of a party should be rejected when chal- lenged."' But it is not ground of challenge that a juror and a party were both Odd Fellows,"* nor is membership in a mutual insurance company which is a party ,"^ nor is friendship for a party where the juror states he can and would try the case impartially."^ Independent of statute, a taxpayer in a municipality is'not subject to challenge for cause in a case where the municipality is a party."''' § 19. Scope of examination of jurors. Much latitude is allowed in the examination of a juror on his voir dire,"" but the trial judge may reasonably 78 Sullings V. Shakespeare, 46 ing rule to employees of another Mich. 408. corporation controlled by defendant 79 Rice v. Rice, 104 Mich. 371. corporation. See Goodrich v. Bur- 80 Brockway v, Patterson, 72 Mich. dick, 26 Mich. 39. 122. 84 Reed v. Peacock, 123 Mich. 81 Theisen v. Johns, 72 Mich. 28.5. 244. So where saloonkeeper was op- 85 Martin v. Farmers' Mut. Fire posed to some provisions of the Ins. Co., 139 Mich. 148. liquor laws, in action for damages 86 White v. Cowing, 205 Mich, from sale of liquor. Pearson v. 318. See also Brennan v. O'Brien, Schoenberg, 167 Mich. 255. 121 Mich. 491. 82 Michigan Air Line Ry. Co. /. 87 City of Detroit v. Detroit Ry., Barnes, 40 Mich. 383; Kundinger v. 134 Mich. 11. City of Saginaw, 59 Mich. 355. Same rule enacted by statute, in 83 Pearce v. Quincy Min. Co., 149 penal actions, see Jud. Act, ch. 18, Mich. 112; Poklcnk v. Isle Royale S26; Comp. Laws 1915, §12598. Copper Co., 187 Mich. 644, extend- «8 Suyder v. Mathison, 196 Mich. 1022 Jury § 19 limit the extent of the examination.®' A juror may be asked wliich party he would favor if the evidence was equally balanced.®" It has been held proper to ask jurors as to their prejudices against certain defenses set up, such as limitations,®^ and to ask jurors if they would consider a certain act negligent.®'^ If the witness denies prejudice, it has been held that witnesses may be called to show it.®' If the attorney for defendant is not present when the case is called and plaintiff's evidence intro- duced, he cannot tliereafter be permitted to examine the jury.®* If a juror is passed for cause after counsel for the op- posing party has asked him an improper question on his voir dire, the error is waived, especially where no request to charge on the subject is made.®^ So if the objecting party does not exhaust his peremptory challenges, or the juror is excused for cause, error in allowing or rejecting questions on the voir dire are harmless.®® § 20. Rejection of juror by court of its own motion. In some instances, the court may properly excuse jurors upon his own motion and without any challenge being interposed by either of the parties, and even against their protest. To secure an impartial jury, the court may very properly reject a juror on a ground which would not be strictly sufficient to sustain a challenge for cause, and so long as an impartial jury is obtained, neith- er party has a right to complain of the action of the 378; Monaghan v. Agricultural Fire 92 Stowell v. Standard Oil Co., 139 Ins. Co., 53 Mich. 246; People v. Mich. 18. Wright, 170 Mich. 154. 93 People v. Evans, 72 Mich. 367. 89 Ford V. Cheever, 113 Mich. 440 ; 94 Kincade v. Peck, 193 Mich. 207. Gornetzky v. Gornetzky, 174 Mich. 95 Link v. Fahey, 200 Mich. 308; 492. Snyder v. Mathison, 196 Mich. 378. 90 See § 18, note, ante. 96 Wm. B. Eoach & Co. v. Blair, 91 Towl V. Bradley, 108 Mich. 409. 190 Mich. 11. § 21 Jury 1023 court.^''' The court may, in its discretion, reject a juror for cause at any time before the introduction of evi- dence.^* But a judge has no right to reject a qualified juror with whom the parties are satisfied, unless for suffi- cient cause, and such cause should appear upon the rec- ord. A circuit judge is not invested with any right of peremptory challenge. He can excuse for cause, but the cause must be stated so that it may appear of record. He cannot discharge jurors at his mere will or caprice.*^ § 21. Special or struck juries. When it appears to the circuit court that a fair and im- partial trial will be more likely to be obtained in a case pending therein by having a struck jury, the court will order a special jury to be struck for the trial of the cause.^ The party obtaining an order for a special jury is re- quired to give a notice of eight days of the time when he will attend before the clerk of the county in which the venue in the action is laid for the purpose of having such jury struck.*^ At the time appointed, the clerk is re- quired to attend at his office with the original lists of grand and petit jurors returned to him who are then liable to serve and, in the presence of the parties or their counsel, is required to strike a jury as follows : 1. The clerk selects from such lists the names of forty- eight persons whom he deems most indifferent between the parties and best qualified to try the cause. 97 Atlas Min. Co. v. Johnston, 23 153 Mich. 567, and see Cooper v. Mich. 36; Michigan Condensed Milk Carr, 161 Mich. 405. Co. V. Wilcox, 78 Mich. 431; Luebe 99 Welch v. Tribune Pub. Co., 83 V. Thorpe, 94 Mich. 268 ; Torrent v. Mich. 661. See also § 7, ante. Yager, 52 Mich. 506 ; People v. 1 .Tud. Act, ch. 18, § 43 ; Comp. Baker, 60 Mich. 277; People v. Car- Laws 1915, S 12615. rier, 46 Mich. 442; People v. 2Jud. Act, ch. 18, §44; Comp. Thacker, 108 Mi(>'h. 652. Laws 1915, § 12616. 98 Quay v. Duluth, etc., E. Co., 1024 Jury § 21 2. The party on whose application the jury was ordered or his attorney then strikes ont one of such names, and the opposite party, or his agent or attorney, strikes out another of such names, and so alternately un- til each party has stricken out twelve names. 3. If either party fails to attend at the time and place of striking such persons or neglects to strike out any names, the clerk will strike out such names for him. 4. The clerk is required thereupon to make out a list of the names of the twenty-four persons not stricken out and certify those persons to be the persons drawn to serve as jurors pursuant to the order of the court, and deliver such list, so certified, to the sheriff of the county.' It is thereupon the duty of the sheriff to summon the persons whose names are contained on the list so de- livered to him by the clerk, in the same manner as other jurors are required to be summoned, and return the names of those summoned to the court at whicli they are re- quired to appear as jurors.* A jury will be formed, in the manner directed by law in respect to other juries, from the persons so summoned and appearing, who will try the cause in which such jury has been ordered; and the court has the same power to excuse or discharge jurors as in other cases.* If it should appear that the clerk is interested in the cause or is related to either of the parties or not in- different between them, the court will, upon that fact being made to appear, appoint two proper persons to strike a special jnry, who will have the same powers as the clerk for that purpose in relation to the striking and to the certifying and delivering to the sheriff the names of the persons struck as jurors.® 3Jud. Act, ch. 18, §45; Coiup. 5 Jud. Act, ch. 18, 8 47; Conip. Laws 1915, § 12617. Laws 1915, § 12619. 4 Jud. Act, ch. 18, §46; Conip. 6 Jud. Act, ch. 18, §48; Comp. Laws 1915, § 12618. Laws 1915, § 12020. § 21 Jury 1025 Form of Affidavit for a Struck Jury (Title of court and cause.) County of , ss : A. B., the said plaintiff, being duly sworn, deposes and says that this action is brought against the said defendant for (state briefly and clearly the cause of action), and that a fair and impartial trial will be more likely to be obtained in this cause by having a struck jury, for the reason that (set forth the facts constituting the reason). Subscribed, etc. A. B. Form of Notice of Striking a Special Jury (Title of court and cause.) Sir: Please take notice that the said plaintiff will attend before J. W., clerk of said court, at his office in the of upon the day of , A. D , at o'clock in the noon, for the purpose of having a special jury struck for the trial of this cause in accordance with an order of said court heretofore made, a copy of which is hereto annexed. Dated, etc. Yours, etc., J. K., To K. L., Attorney for Plaintiff, Attorney for Defendant. Form of Order for a Struck Jury (Title of cause.) On reading and filing the affidavit of A. B., the above-named plaintiff, and it appearing to the court therefrom that a fair and impartial trial in said cause will be more likely to be obtained by having a struck jury for the trial thereof, on motion of J. K., attorney for plaintiff, it is ordered that a special jury be struck for the trial of said cause. Form of Clerk's Certificate of Persons Drawn for Special Jury (Title of court and cause.) I hereby certify that the following are the names of the persons drawn to serve as jurors in the above entitled cause pursuant to the order of said court heretofore made herein: (List of the twenty-four persons drawn.) In testimony whereof, I have hereunto set my hand and affixed tlie seal of .said court, at the of , this day of , A. D J. W^ Clerk. 1 Abbott— 05 102G Jury §22 § 22. Inability of juror to attend or serve after jury has been impaneled. After a jury lias been impaneled in a case, if any juror dies or is unable to attend or perform his duties in a proper manner by reason of the serious illness of himself or the death or serious illness of a member of his family or any other fact incapacitating' him for further service or attendance, the court must dischar } §5. When title is ''in question.' The title to land is not ''in question," within the stat- ute, unless it is in issue in the case, and it is not in issue unless the title is essential to the plaintiff's recovery or the defendant's defense." But it is not necessary that there be a claim of title in the declaration or other plead- ing for the title to be in question. It is enough if proof of title is required either to sustain or to defeat the plain- tiff's recovery.^^ Whether the right is a mere right of possession, or, on tlie other baud, is tlie complete owiioi-sliip, it is title of 12.Tud. Aft, ch. ()G, §1; Comji. Laws 191.^, S141G9; Gorham v. Laws 1915, § 14166. Witlioy, .12 Mich. .10; LeBlanc v. 13.Tiul. Act, ch. 66, §9; Coin].. Kriioor, 7;") Mich. .161. Laws 1915, §14174; Savicis v. 15 Ostroin v. Potter, 71 Midi. 44. Chipman, 1 Mich. 116. 10 Ostroni v. Potter, 71 Mich. 44; HJu.l. A<-t, ch. 66, §4; Coinp. Walters v. Tcfft, .17 Mi.-h. :U1U. 1032 Justices of the Peace § 5 some sort, and it has been held that it is immaterial for the purposes of the statute of what sort.^' But an issue as to the peaceable possession merely does not involve any question of title.^' The title is not in question when it is alleged by one party and admitted by the other, as where the plaintiff sets up title in his declaration and the defendant con- cedes it." The failure, however, of the defendant to give notice with his plea of the general issue that the title will come into question cannot operate as an admission of title, unless the plaintitf in his declaration claims the title." If the plaintiff does claim the title in his declara- tion, the statute declares that the failure of the defend- ant to give such notice (and deliver the bond required and pay the costs and fees, as will be presently ex- plained,) will be construed as an admission of such title by the defendant.'^^ Thus, in an action for injury to plaintiff's land, the ownership in fee of which he avers in his declaration, to which the defendant merely pleads the general issue, the title to the land is not thereby put in issue.** But the mere averment in a declaration that the land is the "close of the plaintiff" is not a claim of any title in the plaintiff, because such averment may be supported by proof that the plaintiff was in peaceable possession, even though he had no title. *^ The mere introduction by a party of evidence of title "Gay V. Hults, 55 Mich. 327; 21Jud. Act, ch. 69, §22; Comp. Vandoozer v. Dayton, 45 Mich. 247; Laws 1915, § 14236. Riggs V. Sterling, 51 Mich. 157; 82 Fisher v. Dowling, 66 Mich. Fowler V. Hyland, 48 Mich. 179. 370; Druse v. Wheeler, 22 Mich. liNewcomb v. Irwin, 55 Mich. 439; Walters v. Tefft, 57 Mich. 390. 620; Vandoozer v. Dayton, 45 Mich. See Rawson v. Finlay, 27 Mich. 268; 247; Fisher v. Dowling, 66 Mich. Grand Rapids Nat. Bank v. Kritzer, 370. 116 Mich. 688. 1> Stout V. Keye8, 2 Doug. 184; 23 Vandoozer v. Dayton, 45 Mich. Ostrom V. Potter, 71 Mich. 44. 247. SO Rawson V. Finlay, 27 Mich. 268; Vandoozer v. Dayton, 45 Mich. 247. § 7 Justices of the Peace 1033 to land for the purpose of identifying timber cut from the land does not bring the title to the land into ques- tion; ** and, as deeds of conveyance of land may properly be used for many purposes besides proving title, tlic mere introduction of such deeds does not bring the title in question.^^ § 6. Plea and notice. The statute provides that, in eveiy action where the title to land in any wise comes in question, the defendant may give notice thereof under the general issue, upon the return day or any adjourned day of the action, and may also give notice, as in other cases, of any other matter of defense.^® The plea and notice must be in writing, signed by the defendant or his attorney and delivered to the justice." A mere oral notice is a nullity.^' § 7. Bond and costs. At the time of tendering the plea and notice, the de- fendant, with at least one sufficient surety to be approved by the justice, must enter into a bond to the plaintiff in a penalty of at least two hundred dollars, conditioned that the defendant will pay any judgment that may be rendered against him in the action in the circuit court; and he must also pay the plaintiff's costs legally incurred at that time, not exceeding the amount allowed by law in justice's courts, and also the sum of one dollar to the justice for certifying the cause to the circuit court, to- gether with the sum of three dollars to be paid to the clerk of the county by tlie justice at the time he certifies the cause to tlie circuit court.'^* The bond must be delivered and the fees and costs paid 24 Hart v. Hart, 48 Mich. 17.'). 27 Jud. Act, ch. 69, §19; Comp. 26 Schlatterer v. Nickodemus, 50 Laws 1915, § 142.'?.'}. Mich. 315. 28 0strom v. Potter, 71 Mich. 44. 26 Jud. Act, ch. G9, §18; Comp. 29 .Jud. Act, ch. 69, §20; Comp. Laws 1915, § U2?,2. Laws 1915, g 14234. 1034 Justices of the Peace § 7 to the justice at the time of tendering the plea and no- tice. ^° It thereupon becomes the duty of the justice, with- out further proceedings, to certify the cause and papers to the circuit court where the same may be tried.^^ The costs so paid ])y the defendant will be allowed to him if he recover costs in the action in that court.^^ § 8. Effect of want of or failure to pay. If the bond be not delivered and the fees and costs paid as specified, the justice will have jurisdiction of the cause and must proceed therein,^^ and the defendant will be precluded in his defense from all evidence drawing in question the title to lands; and any claim of title to lands made by the plaintiff in his declaration and therein de- scribed will be deemed to be admitted by the defendant.'* This applies even in suits to recover a penalty for ob- structing a highway.^® § 9. Proceeding's when title comes in question on trial. It is also provided that if it appear on the trial before the justice, from the plaintiff's own showing, tliat the title to lands is in question, which title is not admitted by tlie defendant, the justice shall, without further pro- ceeding, certify the cause and papers to the circuit court, where the same shall be tried. ^® This should be done even though the plaintilf' s declaration does not allege 30Ostroni v. Potter, 71 Mich. 44. 33 Hinchman v. Spaulding, i;57 The failure of the defendant to com- Mich. 655; Jacklin v. Soulier, 82 ply with these requirements renders Mich. 648. the notice a nullity. 34 Jud. Act, ch. 69, §22; Comp. 31 The fact that, upon the trial in Laws 191.1, §142:^6; Maynard v. the circuit court, the title does not Reynolds, I'M Mich. 42; Parkinson come in question does not justify v. Woulds, 125 Mich. 325. the dismissal of the ease. Taylor v. 35 Ranisby %•. Bigler, 129 Mich, Montcalm Circuit Judge, 122 Mich. 570. 692. 36 Jud. Act, ch. 69, §2.3; Comp. 32 Jud. Act, ch. 69, §21; Comp. Laws 1915, §14237. Laws 1915, § 14235. § 11 Justices of the Peace 1035 that he is the owner of the hmd in fee or otherwise and the defendant pleads merely the general issue. If the plaintiff, in order to recover, has to prove title in him- self and the defendant does not admit it, the justice should certify the case to the circuit court. ^'^ But if the plaintiff' in his declaration claims title and not merely the possession of the land, and the defendant does not give notice and deliver the bond and pay the costs and fees as before mentioned, the defendant thereby admits the title to be in the plaintiff' as alleged and the case should not be certified.^^ § 10. Issue on removal to circuit court. When a suit is removed from a justice's court by the delivery of a plea and notice and a bond as above de- scribed, the plaintiff will be permitted to declare or to give evidence only for the same cause of action wiiereon he relied before the justice, and the plea and notice of the defendant must be the same which he tendered be- fore the justice.^^ The circuit court has no power to allow the plaintiff to amend his declaration in any way which would have the effect of cutting off the defendant from a defense which w^ould have been available and comi^lete on tlie pleadings as they stood before the jus- tice.*° But the allowance of an amendment eitiier to the declaration or to the notice is proper, if no new issue is made and no substantial rights affected." §11. Costs. Where the defendant delivers no notice that the title to land will come in question, but tlie cause is certified 37 Orris v. Koinpton, 10") ^ficli. 40 McFarl.niip v. Ray, 14 Mich. 229; Ostrom v. Potter, 71 Midi. 44. 4fi.'). 38 Maynard V. Reynolds, 1. ".7 Midi. 41 Alton v. Meeuweiilterjr, 108 42, Midi. 629. 39Jud. Act, eh. 69, §24; Conii). Laws 191.'), S 142.^8. 1036 Justices of the Peace § 11 by the justice to the circuit court because it appears on the trial, from the plaintiff's own showing:, that the title is in question, the party in whose favor judgment is ren- dered in the circuit court will recover costs, including his costs before the justice,** even though the circuit court finds that the title was not in question;" but where the case is certified because of the defendant's giving notice and delivering a bond as mentioned, if the presiding judge of the court before which the suit is tried certifies that the title to lands did not come in question, if the plaintiff recovers, he will recover double costs, and if the defendant recovers judgment other than that of non-suit, he is not entitled to recover costs, but must pay costs to the plaintiff." Where the plaintiff is entitled to recover double costs, such right is vested in him by the judgment itself, and no special order or finding of the court is necessary as a preliminary to the taxation of them in his favor.** The term, "double costs," as used in this connection, is con- strued according to the old rule as meaning single costs and an addition of one half.*^ Whether the presiding judge shall certify that the title to lands did not come in question where judgment is rendered for the defendant on the merits does not de- pend upon the formal issue made by the pleadings, but upon whether the title actually did come in question on the trial. So, where the plaintiff' claimed title in his declaration in an action for trespass for cutting trees upon the lands of the plaintiff and the defendant pleaded title, but the real point in controversy was whether the 42 Jud. Act, ch. 69, § 23 ; Comp. « People v. Wayne Circuit Judge, Laws 1915, § 14237. 14 Mich. 33. 48Kinne v. Clever, 184 Mich. 61. 46 Gilbert v. Kennedy, 22 Mich. 44 Jud. Act, ch. 69, §25; Comp. 5; Cyc. Law Diet. tit. "Double Law8 1915, §14239; Kinne v. Costs." Clever, 184 Mich. 61; Gay v. Hults, 55 Mich. 327. § 13 Justices of the Peace 1037 plaintiff gave the defendant permission to cut the trees, the court properly certified that the title to lands did not come in question ; *'^ but where the title is not only put in issue by the pleadings, but is involved as a necessary element in the proofs, a certificate that the title did not come in question will be vacated ])y tlie supreme court on writ of error.*^ § 12. Proceedings where only part of cause affects title. If the plaintiff's declaration in a suit before a justice contains several counts or causes of action, to one or more of which a defense bringing in question the title of lands is interposed by the defendant, it is the duty of the justice to discontinue the proceedings for such cause of action, and, for the other causes of action, to continue his proceedings.*^ III. Filing- Transcript of Justice's Judgment in Circuit Court § 13. Proceedings to obtain a transcript. Whenever an execution may by law ])e issued upon any judgment rendered by a justice of the peaoe for twenty dollars or over, exclusive of costs, the party in whose fiivor the judgment has been rendered, his executor, ad- ministrator or assignee, or the attorney of either of the parties, may make and deliver to the justice of the peace liaving control of the judgment an affidavit setting forth in substjince that tlie deponent knows, or lias good reason to believe and does believe, that lliere are not sufficient goods and chattels liable to execution to satisfy the judg- ment within the county in which it was rendered, belong- ing to the person or persons against whom such execution 47Dolahanty v. I.iifey, ini Mk-h. Tiay v. Hiilts, f);! Mich. :;'27. li:!; Nowcoinho v. Irwin, Hf) Mi<'li. 49, hid. Act, cli. (iH, S2fi; Clomp. (i2n. Laws Ifllf), ij 14240. 48 LahoMii V. Lahpaii, HI Midi. 81 ; 1038 Justices of the Peace § 13 may issue; and thereupon it becomes the duty of the justice of the peace having- the control of the judgment, rendered by himself or any other justice, on the demand of any person in whose favor it has been rendered, his assignee or the attorney of either of the parties, to give a certified transcript of the judgment and of tlie proceed- ings in the case, so far as they appear upon the docket, and the original affidavit mentioned.*" The removal of a justice's judgment by transcript to the circuit court is a statutory ex parte proceeding, and a strict compliance with the statutory requisites is es- sential to its validity.*^ Thus, if the transcript be filed before execution miglit by law have been issued by the justice, it will be invalid,*^ § 14. Affidavit to be delivered to justice. Tlie affidavit is a jurisdictional requirement." It may lie made by any duly authorized attorney of the party, whether he appeared for the party before the justice or not." It is not necessary that this affidavit should state the amount for which the judgment was originally ren- dered," or the amount due upon it,*^ but it must identify the judgment by means of the title of the court and of the cause and by such other specifications as will be ade- quate for the purpose. An affidavit which refers to the judgment by the title of the coui't and the cause, but gives as the date upon which it was rendered a different date from that upon which the judgment transcribed was SO.Tiul. Act, ch. 71, SIO; Comp. 53 Doty v. Doxtor, 61 Mieli. 348. I.aws lOl.'), §14281. Siiffieieney as to venue, names of 51 .Towctt V. Bennett, '^ Mieh. 198; j.aities, etc., see Hawkins v. Casten- Pec-k V. Cavell, 16 Mich. 9; Mon- holz, 171 Mirh. 8.5. aphan v. McKinimie, .32 Mich. 40; 54 Beikery v. Wayne Circuit O'Brien v. O'Brien, 42 Mich. M; .Tud. .Tudgp, 46 Mich. .'{38. § 14 Justices of the Peace 103'J rendered, cannot be said to identity the latter, as there is no conclusive presumption that only one judgment was rendered in that court between the same i)arties; ^^ but merely clerical errors whicli are not misleading will bo disregarded.®^ It is not necessary that an execution should be issued by the justice and returned unsatisfied before a tran- script can be tiled, and the affidavit, therefore, need not show it.®' The affidavit should be signed by the affiant, but, where it is unsigned, it will nevertheless be valid if it has been properly sworn to.^° Form of Affidavit to Obtain Transcript of Judgment of Justice of the Peace to File in Circuit Ctourt State of Michigan, 1 County of I A. B. ] vs. I C. D. J In Justice Court, before J. P., a Justice of the Peace for the Township (or, City) of , in said County. A. B., the above-named plaintiff, being duly sworn, deposes and says that he knows (or, has good reason to believe, and does believe) that there are not sufficient goods and chattels, liable to execution, to satisfy the judgment rendered in favor of the said plaintiff in this cause, within the said county of (the county in which the judgment was rendered), belonging to the said C. D. or to any other person or persons against whom execution upon said judgment may issue. A. B. Subscribed, etc. 57 Denver v. Connolly, 92 Mich. Shepard v. Schrutt, 163 Mich. 485. 549. 60 Merrick v. Mayhue, 40 Mich. 58 Hawkins v. Castenholz, 171 196. Mich. 85; Berkery v. Wayne Circuit The same was held as to an aflS- Judge, 82 Mich. 160; Frohlieh v, davit for an appeal from justice's Mitchell, 132 Mich. 432. court, in People v. Simondson, 23 59 Udell V. Kahn, 31 Mich. 195; Mich. 113. 1040 Justices of the Peace § 15 § 15. Requisites of transcript. The transcript, if properly certified, will be sutHcieiit if it corresponds with the docket of the justice;®^ but a certificate to the transcript in compliance with the statu- tory requirements is a jurisdictional essential, and, if the transcript be not officially certified, it will be fatally defective. The mere appearance of the name of the jus- tice in the body of the certificate is not sufficient.^^ The statute makes it the duty of the justice to certify both the judgment and the proceedings in the case. Not only must the certificate conform to the requirements of the law in this respect, but it should affirmatively show what judgment and proceedings it certifies, as well as where such judgment remains or is to be found, so that it may appear from such certificate that such judgment and pro- ceedings were transcribed from his docket and the judg- ment was rendered by him, or, in case it is a transcript of a judgment rendered by another justice of whose docket the certifying justice has the custody, that it is a transcript of the judgment and proceedings from the docket of such other justice then in his custody.^' § 16. Affidavit of amount due, filing of transcript and entry of judgment. If the plaintiff, his assignee or the agent or attorney of either of the parties, make an affidavit stating the amount due upon the judgment, it is the duty of the clerk of the circuit court for the county in w'hich the judgment was rendered to file the transcrij^t in his office when re(iuestcd, and to enter and docket the judgment in a book to be kept by him for that purpose, noting therein 61 Udell V. Kahn, .31 Mich. 195; Transcript must show jurisdiction Pock V. Cavcll, 16 Mich. 11. of justice. Wedel v. Green, 70 Mich. 62 Bigclow V. Booth, 39 Mich. 642. 622. 63,Jcwctt V. Bennett, 3 Mich. 198; Peck V. Cavell, 16 Mich. 9. § 16 Justices of the Peace 1041 the time ol" receiving it and the amount sworn to be due.^* The act of the clerk is a mere ministerial one.®'' The statute contemplates that the affidavit stating the amount due upon the judgment shall be a distinct affi- davit from that required to be delivered to the justice preliminary^ to his giving a certified transcript, but, where the latter states the amount due, and the transcript is filed with no material delay after such affidavit is made, no other affidavit is necessary.^® A showing of the amount due is a jurisdictional prerequisite to the filing of the transcript, but it may as well be shown in the first affidavit as in a separate one.®''' There must not, however, be such an interval between the making of the affidavit setting forth the amount due and the filing of the tran- script as to permit the presumption that since tlie affi- davit was made, and before the filing, any payments have been made. Where, therefore, a period of eleven days elapsed from the making of the affidavit before the filing of the transcript, it was held that the transcript could not be filed without another affidavit showing the amount due.®^ And, when the period which had so elapsed was eight days, it was said that there was ample time in which the judgment might have been paid in whole or in part, and that a separate affidavit was necessary,®' but, where the transcript was filed within three days, the court did not characterize the delay as substantial,'* and likewise, of course, where it was filed wdthin tw^o days.'^ 64Jud. Act, eh. 71, §11; Conip. 39 Mich. 622, for dictum that the Laws 1915, § 14282. separate affidavit is jurisdictional, Sufficiency of affidavit as to venue irrespective of the time when the and names of parties, see Hawkins transcript is filed. V. Castenholz, 171 Mich. 85. 68 Berkery v. Wayne Circuit 65 Rliepard v. Schrutt, lfi:5 Mich. .Tiid, §2; Comj). cause this does not require any ac- Laws 1915, §12817; Wilcox v. tion on the ]iart of the justice. Al- Lantz, 107 Mich. 1. drich v. Clinton Circuit Judge, 49 76 Davison v. Elliott, 9 Mich. 2r)2. Mich. 609. But where an appeal has been im- 77 Arnold v. Thompson, 19 Mich, properly dismissed, the filin; Cole v. Potter, !.'}.'> Mich. ,120. transcript and issuing of an oxecu 78 Wilcox v. Lantz, 107 Mich. 1. 1044 Justices of the Peace § 17 the justice of jurisdiction of the case as to preclude the judgment debtor from thereafter entering a stay of exe- cution with the justice;'^ but it was held that a judg- ment so docketed in the circuit court was not a judgment ''rendered" in such court, within the meaning of the statute authorizing process in garnishment to be issued after judgment "in all personal actions arising upon contract, express or implied, brought in the several cir- cuit courts or municipal courts of civil jurisdiction," and on "any judgment or decree rendered in any of the sev- eral courts hereinbefore mentioned." ®® Now, however, the statute expressly provides that a writ of garnish- ment may issue at any time after the filing of a transcript of judgment.*^ § 18. Nature of proceeding. A transcript of judgment properly certified, filed and docketed renders the judgment a judgment of a court of record from the time of such filing and docketing, thus changing in some degree its nature, and very materially the rights, powers and liabilities of the parties to it; and the peculiarity of this fact is that such a result is not brought about by the action of one court upon the other, but by the direct act of the judgment creditor without notice to, or the consent of, the party to be affected by it, and without his participation in the proceedings at all. Under such ex parte proceedings, to be followed by such unusual consequences, justice and the protection of par- ties, as well as law, require a strict compliance with the provisions of the statute before they can be made avail- able to remove the judgment, convert it into a judgment of the circuit court and throw about it the sanctions, and 70 Hitchcock v. Wayne Circuit 81 .Tud. Act, ch. 28, § 1 ; Comp. Judge, 96 Mich. 297. T.aws 191;'), §1:^.122. 80 Weimeister v. Singer, 44 Mich. 4nfi. § 20 Justices of the Peace 1045 attach to it the remedies, of a court of general jurisdic- tion.'^ § 19. How proceedings may be reviewed. The proceedings may be attacked by motion to dismiss made in the circuit court and the order of the court on such motion may be reviewed by the supreme court by certiorari.'^ The proceedings cannot be reviewed on writ of error.'* They cannot be attacked collaterally." IV. Certiorari to Justices of the Peace § 20. When writ lies. It is provided by statute that, in all cases of judg- ments rendered by a justice of the peace, whether issue was joined before the justice or not, either party may remove the judgment by a writ of certiorari into the cir- cuit court for the county in which the judgment was rendered.'^ This statutory writ of certiorari is special, and the proceedings to obtain a review by this process must be strictly complied with.''' The purpose of the statute is to compel a party who wishes to adopt the remedy by certiorari to proceed sea- sonably and to avoid the long delay which was often in- 82 Jewett V. Bennett, 3 Mich. 198; A writ of certiorari is a writ by Wedel V. Green, 70 Mich, 642; which the record of a proceeding O'Brien v. O'Brien, 42 Mich. 15; in a lower court is removed into a Berkery v. Wayne Circuit Judge, higher court for review, and is so 82 Mich. 160; Peck v. Cavell, 16 called from the emphatic word in the Mich. 9; Doty v. Dexter, 61 Mich. Latin writ which reads, "quia certis 348; Vroman v. Thompson, 42 Mich. de causis certiorari volumus," that 145; Monaghan v. McKimmie, 32 is, for as much as concerning cer- Mich. 40. tain causes we (i. e., the higher 88 Wedel V. Green, 70 Mich. 642. court,) wish to be certified (certi- 84 Townsend v. Tudor, 41 Mich. orari). And. Law Diet. tit. "Cer- 263; West v. Parkinson, 130 Mich. tiorari"; Cyc. Law Diet. tit. "Certi- 401. orari." See also Certiorari. 86 Cole V. Potter, 135 Mich. 326. 87 Sherwood v. Arnold, 80 Mich. 86Jud. Act, ch. 78, §22; Comp. 270. Laws 1915, §14422, 1046 Justices of the Peace § 20 cident to the use of the writ of certiorari under the com- mon htw practice. Consequently the common hwv writ cannot be used in any case where the statutory writ is capable of application and the aggrieved partj'^ has an opportunity of proceeding under the statute." But where he had no knowledge of the suit until it was too late for him to proceed under the statute and thus liad no opportunity to proceed under it, the common law writ may issue to prevent a miscarriage of justice.*^ § 21. Notice and affidavit. A party intending to apply for a writ of certiorari must, within five days after the rendition of the judg- ment, give the justice notice in writing of liis intention of removing the cause to the circuit court by certiorari, and, within ten days, must make or cause to be made an affidavit setting forth the substance of the testimony and proceedings before the justice and the grounds upon which an allegation of error is founded.®" Where the affidavit is not made by the party himself, but by an attorney of the court who has had charge of the proceedings throughout, the omission of a statement in the affidavit that the affiant makes it as the agent or attorney of the party does not render the affidavit in- sufficient.®^ An affidavit for a writ of certiorari should be prepared with groat care. It is incumbent on the moving party in certiorari to make out a clear case, and see that, in seeking to avail himself of a remedy which may have the 88 Jacobs v. Wayne Circuit .Tn(l<>e, son v. Crockery Scliool District, 25 i;i2 Mich. r)5. Mich. 48:!. 89 Jacobs V. Wayne Circuit Juclorp, 90Jnd. Act, ch. 78, §2;i; Conip. l.!2 Mich. 55; Kroop v. Fonnan, 31 Laws 1915, §14423. Mich. 144; Withington v. South- Before Judicature Act, time for worth, 26 M)ieh. 381 ; Adams v. affidavit was thirty days. Abram, 38 Mich. 302; White v. 91 Sciiofield v. Cahooii, 31 Mich. Boyce, 88 Mich. 349; Wilson v. 206; Forbes Lithograph Mfg. Co. v. Bartholomew, 45 Mich. 41; Tlioin].- Winter, 107 Midi. 116. § 21 Justices of the Peace 1047 effect of ciiitiug' off his adversary's entire claim, he stands ui)on a clear and unquestionable foundation.®'^ While undoubtedly a party has a right to resort to cer- tiorari if he chooses, yet, if he does, he must do so at the risk of failing to "hit the bird in the eye," and at the risk of losing a trial on the merits in case of such fail- ure.'^ Nothing will be taken by intendment in favor of the errors assigned.®* It is, therefore, essential that he point out in his affidavit wherein the justice erred in matter of law\®^ The allegations of error must be so specific as to inform the court and the opposite party of the precise questions intended to be raised. Errors not so alleged will not be considered.®^ Accordingly, an al- legation that the justice erred in rendering judgment against a party and in favor of his adversary will raise no question except whether there was any evidence to support the judgment of the justice.®''' An allegation "that the justice erred in rendering judgment in said cause on the evidence introduced therein" does not speci- fy the alleged error with sufficient clearness and par- ticularity, and raises no question for the circuit court to review.®^ 92 Marquette, etc., Mill Co. V. Mor- Mich. 416; Westbrook v. Blood, 50 gan, 41 Mich. 296; Kitter v. Dan- Mich. 443; Grand Trunk R. Co. v. iels, 47 Mich. 617. Russ, 47 Mich. 500; Witherspoon v. 93Stoll V. Padley, 98 Mich. 13; Clegg, 42 Mich. 484; Welch v. Bagg, Eldridge v. Hubbcll, 119 Mich. 61. 12 Mich. 41; Gilmore v. Lichten- 94 0'Hara v. Mernan, 79 Mich. berg, 129 Mich. 275. 222 ; Howell v. Shepard, 48 Mich. 97 Parsons v. Dickinson, 23 Mich. 474. 56; Fowler v. Detroit, etc., R. Co., 95 Parsons v. Dickinson, 23 Mich. 7 Mich. 79. 56; Rodman V. Clark, 81 Mich. 466; 98 Lake Superior Bldg. Co. v. McGraw v. Schwab, 23 Mich. 13; Thompson, 32 Mich. 293. See also Fowler v. Detroit, etc., R. Co., 7 Welch v. Bagg, 12 Mich. 41, where Mich. 79; Witherspoon v. Clegg, 42 it was held that an allegation that Mich. 484; Higley v. Lant, 3 Mich. "there was no evidence to sustain" 612; Drake v. International Har- the verdict and .judgment is too gen- vester Co., 150 Mich. 561; Hatch v. eral and uncertain to challenge the Christmas, 68 Mich. 84. attention of the court. 9d Matthews v. Forslund, 11.3 1048 Justices of the Peace § 21 Form of Notice of Intent to Remove Cause by Certiorari State of Michigan, ) County of ( ss. In Justice's Court, before J. P., a Justice of the Peace for the Township of , in said County. Sir:— You will please to take notice that C. D., the above-named defendant, intends to remove this cause to the circuit court for the county of by writ of certiorari. Dated, etc. Yours, etc., To J. P., Justice of the Peace. C. D. Form of Affidavit to Remove a Judgment from a Justice of the Peace to Circuit Court by Certiorari State of Michigan, 1 County of ( C. D., being duly sworn, deposes and says (if the affidavit is made by the agent or attorney of the party, there should be inserted after the words, "deposes and says," the following: "That he is the agent [or, attorney] for C. D., the defendant hereinafter mentioned, and makes this affidavit in his behalf ; ") that on the day of , A. D , a suit was commenced against the said C. D., as defendant, by A. B., as plaintiff, before J. P., a justice of the peace for the township (or, city) of , in said county, by summons (or as the case may be), issued by said justice of the peace on the day and year aforesaid, and made returnable at the office of the said justice in said township (or, city) on the day of , A. D , at 'clock in the noon ; that, at the time and place last mentioned, the said defendant, C. D., appeared (or, as the case may be, and follow with a statement of the substance of the testimony, if any, and the proceedings before the justice, including the judgment). And this deponent further says that the foregoing is the substance of all the testimony given upon the trial of said suit and of all the proceedings before the said justice therein. Deponent further says that in the proceedings and judgment aforesaid there is manifest error, for which the said judgment ought to be reversed, in this, to wit: (Allege specifically the error or errors relied upon thus: The said justice erred in permitting the said A. B. to, etc.) C. D. Subscribed, etc. § 23 Justices of the Peace 1049 § 22. Allowance of writ. AVitliin ten days after the rendition of judgment by the justice, the affidavit must be presented to one of the circuit judges or to a circuit court commissioner, and, if he be satisfied that an error has been committed by the justice or jury in the proceedings, verdict or judg- ment, it is his duty to allow the certiorari by indorsing his allowance on the affidavit.®* The writ is never a mat- ter of right, and can issue only upon satisfying the cir- cuit judge or circuit court commissioner to whom the affidavit has been presented that such an error as is reviewable on certiorari has been committed.^ Form of Allowance of Certiorari to Be Indorsed on Affidavit by Officer Allowing Same Let a writ of certiorari issue out of the circuit court for the county of , to the within-named justice, according to law. Dated, etc. J. a., Circuit Judge (or, Circuit Court Commissioner). § 23. Issuing- of writ. The affidavit, after the allowance of the certiorari has been indorsed thereon, and within five days after the allowance, must be filed in the office of the clerk of the circuit court, and thereupon a writ of certiorari will be issued forthwith by the clerk. ^ If the writ should be issued before the affidavit, with the allowance indorsed 99 Jud. Act, ch. 78, §24; Comp. tice by a loss of remedies, and Laws 1915, § 14424; Zook v. Blough, should not be encouraged (Morrison 42 Mich. 487. v. Emsley, 53 Mich. 564), nor where A circuit court commissioner of a the defects relied on are not such as county other than that of the justice reach the substance of the eontro- has authority under this statute to versy (Morrison v. Emsley, 5.*^ Mich, allow the writ. Monroe v. Reynells, 564). 131 Mich. 259. 1 Young v. Kelsey, 46 Mich. 414. The writ should not be issued 2 Jud. Act, ch. 78, §28; Comp. where a reversal might destroy jus- Laws 1915, § 14428. 1050 Justices of the Peace § 23 tlioreon, is so filed, the cause will be dismissed by the circuit court for want of jurisdiction.^ Form of Writ of Certiorari from Circuit Court to Justice of the Peace The Circ-uit Couit for the County of In the Name of the People of the State of Michigan. To J. P., a Justice of the Peace for the Township of , in said County, Greeting: We, being willing, for certain reasons, that the circuit court for the county of should be certified of certain proceedings and judgment rendered lately by you in favor of A. B., as plaintiff, and against C. D., as defendant, do therefore command you that you distinctly certify to the circuit court for the county of , on the day of next, all and singular the proceedings and judgment aforesaid, together with all things concerning the same, and that you fully and truly answer to all the facts set forth in the affidavit upon which this writ is allowed, a copy of which said affidavit is hereto annexed, that the said court may cause to be done therein what of right ought to be done. Hereof fail not, but have you then and there this writ, with your return thereon. Witness, etc. §24. Bond. The party obtaining a certiorari is required to ex- ecute to the opposite party a bond, witli one or more sufficient sureties, to be approved by the .iudge or com- missioner who allowed the certiorari or by the justice who rendered the judgment, in a penalty of at least fifty dollars where the whole amount of the judgment for debt or damages and costs does not exceed twenty- five dollars, and, where the judgment for the debt or damages and costs exceeds the sum of twenty-five dol- lars, tlien the penalty of the bond is required to be in double the amount of the judgment, if the judgment was rendered against the party applying for the cer- tiorari, conditioned to prosecute the certiorari to effect and abide the judgment of the circuit court therein and pay the de])t or damages and costs that shall be awarded against him.* Tf the judgment was in favor of the per- 3 PeojiJe v. Cass Circuit Judges, 4Jud. Act, ch. 78, §25; Comp. 2 Doug. 116. Laws 1915, § 14425. § 24 Justices of the Peace 1051 soil {ipplyiiig for the certiorari, the bond must be in a penalty of at least fifty dollars, conditioned to pay such costs as shall Ix; awarded against him if the judgment is'aflirmed.^ But the party procuring the certiorari need not execute the bond, if it is executed by two or more sureties.^ The sulhciency of the surety or sureties upon the bond may be ai)proved either by the person allowing the cer- tiorari or by the justice on whose judgment the cer- tiorari is brought. But no such bond can be approved unless the surety or sureties thereto justify their pecuni- ary responsibility in writing and under oath, which justification must be, by the justice or the person allow- ing the certiorari, indorsed on the bond, or the respon- sibility of the surety or sureties is admitted in writing by the opposite party or his attorney indorsed on the bond.''' Form of Bond on Certiorari to Justice of the Peace Know all men by these presents, that we, C. D., as principal, and E. F. and G. H., as sureties, are held and firmly bound unto A. B. in the sum of dollars (penalty at least fifty dollars, when the whole amount of the judgment for debt or damages and costs does not exceed twenty-five dollars; otherwise, double the amount of the judgment, if judgment was against the jjarty procuring the certiorari), to be paid to the said A. B., or to his certain attorney, executors, administrators or assigns, for which payment, well and truly to be made, we bind ourselves, our, and each of our, heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed witli our seals, and dated the day of , in the year one thousand nine hundred Whereas, judgment was rendered on the day of , A. D. > by J. P., a justice of the peace for the township (or, city) of , in the county of , in favor of the said A. B., as plaintiff, and against Liability of surety on bond can- 5 Jud. Act, ch. 78, §27; Comp. not be extended by construction. Laws 1915, § 14427. Stoll V. Padley, 100 Mich. 404. CJnd. Act, ch. 78, §26; Comp. Bond as dissolving attachment. Laws lOl.l, § 14426. see Vanderhoof v. Prendorgast, 04 V.Tud. Act, ch. 78, §26; Comp. Mich. 18; Treat v. Dunham, 74 Mich. Laws 1915, § 14426. 114. 1052 Justices of the Peace § 24 the said C D., as defendant, for the sum of dollars, damages, and dollars, costs of suit ; And whereas the said C. D. has obtained the allowance of a certiorari to remove the said jud<^mcnt into the circuit court for the county of aforesaid : Now, the condition of tliis obligation is such that if the said C. D. shall prosecute said certiorari to effect, and shall abide the judgment of the said circuit court therein, and shall pay the damages and costs that shall be awarded against him, the said C D., then this obligation is to be void; otherwise of full force and effect. C. D. [L. S.] E. F. [L. S.] G. H. [L. S.] (The above bond may be executed by the appellant with one or more sufficient sureties, or by two or more sufficient sureties without the appellant.) State of Micliigan, | County of ( E. F. and G. H., the sureties in the foregoing bond, being duly sworn, each for himself deposes and says that he is worth in unincumbered property, not exempt from execution under the laws of this state, the sum of dollars, after payment of all just debts, claims, and liabilities. E. F. G. H. Subscribed, etc. I hereby approve of E. F. and G. H. as sureties in the foregoing bond. Dated, etc. J. P., Justice of the Peace (or, Circuit Judge, or. Circuit Court Commissioner.) § 25. Service of writ, bond and affidavit upon the justice. The writ of certiorari must, within five days after it has been issued, or within such other time as the officer allowing it directs at the time of allowing it, be served upon the justice by whom the judgment was rendered, together with the ])ond given and a copy of the affidavit on which the certiorari was allowed; and the sum of two dollars must be paid to the justice for his fees for makiui'- a return to the certiorari. The statute declares § 27 Justices of the Peace 1053 that no certiorari shall be of any effect until all of the preceding' requisites have been complied with.' The payment of the fee for making a return, however, is a matter wdiich concerns the justice only, and he may waive it.' The writ, bond and affidavit must be served within the time limited therefor,^" and it cannot be served on Sunday." If not served within the time limited, or if served on Sunday, the writ will be dismissed by the cir- cuit court upon motion. § 26. Effect of service as stay. If the certiorari, bond and copy of the tlffidavit be served on the justice before an execution has been is- sued, it will stay the issuing of the execution. If execu- tion has been issued, but not collected, it is the duty of the justice to grant the party requiring it a certificate of the issuing of the certiorari, which, on being served on the officer in whose hands the execution may be, will suspend the execution. ^^ Likewise, if property has been seized on a writ of attachment, a certiorari issued at the instance of the defendant entitles him to a release of the property.^* § 27. Return to writ. It is the duty of the justice, before the return day of the certiorari, or within five days after the return day 8 Jud. Act, ell. 78, §29; Coiiip. If bond not served in time, tlio Laws 1915, § 14429. justice properly refuses to make a Where a writ was prepared in du- return. Sherwood v. Allegan Circuit plicate and both instruments signed Judge, 80 Mich. 270. and sealed, the proceeding was not 11 Anderson v. Birce, 3 Mich, 280; invalidated because the writ first Morrison v. Emsley, 53 Mich. 564. prepared was filed with the clerk 12 Jud. Act, ch. 78, §30; Comp. and the copy served on the justice. Laws 1915, § 14430. Monroe v. Reynells, 131 Mich. 259. W Vanderhoof v. Prendergast, 94 9 Anderson v. Birce, 3 Mich. 280. Mich. 18. 10 Morrison v. Emsley, 53 Mich. 564. 1054 Justices of the Peace §27 of the certiorari, or within five days alter the service of tlic certiorari, to make return thereto in writing, attach to his return the certiorari, the bond and the copy of tlie affidavit upon which the certiorari was allowed and file them in the office of the clerk of tlie court from which the writ of certiorari issued." In liis return, it is the duty of the justice duly and fully to answer to all the facts set forth in the copy of the affidavit on which the certiorari w^as allowed," but he is required to make return only to the matters speci- fied in the affidavit.*^ As to such matters, the return is conclusive, even against the allegations of the affida- vit," Where, however, the return conflicts with the en- tries on the docket of the justice, the return will pre- vail only as to those matters which the statute does not require the justice to enter upon his docket, while, as to such matters as the statute requires him to enter, the docket will control." Also, a justice's return cannot aid his docket or remove the presumption of the lan- guage of the entries which fail to sliow that the justice had jurisdiction to render judgment in the case.^' 14Ju(l. Act, ch. 78, §:!!; Comp. Laws 1915, §14431; Monroe v. Beynells, 131 Mich. 259. Before Judicature Act time was ten days. The justice may return the fact that security for costs was filed and send up the undertaking. McLean V. IsVjell, 44 Mich. 129; Monroe v. Heintzman, 46 Mich. 12. The return must show jurisdiction of the justice (Wight v. Warner, 1 Doug. 384), and plaintiff must see to it that it is complete since he cannot prevail on a doubtful rec- ord (Beam v. Reynolds, 144 Mich. 383). A return that an adjournment on motion by plaintiff was against oij- jection implies the presence of de- fendant at the time of the adjourn- ment. Beam v. Reynolds, 144 Mich. o83. 15 Jud. Act, ch. 78, § 31 ; Comp. Laws 1915, § 14431. 16 Lake Superior Bldg. Co. v. Thompson, 32 Mich. 293. 17 Rawson v. McElvaine, 49 Mich. 194; Galloway v. Corbitt, 52 Mich. 460 ; Wilder v. Chicago, etc., R. Co., 70 Mich. 382; People v. Hux, 68 Mich. 477; Ringelberg v. Peterson, 76 Mich. 107; Mann v. Tyler, 56 Mich 564. 18 Weaver v. Lammon, 62 Mich. 366; Oakley v. Dunn, 63 Mich. 494; Noyes v. Hillier, 65 Mich. 636. 19 Moore v. Frederick, 197 Mich. §27 Justices of the Peace 1055 A writ of certiorari is heard exclusively on the jus- tice's return. The affidavit on which the writ was al- lowed cannot be used to establish eiTor.^" The justice's return cannot be added to by testimony or by affidavits or by attached papers not purporting to be a part of tlie return; ^^ but where the return was accompanied by minutes, signed by the justice, jiurporting to be min- utes of testimony, giving the history of the proceeding and being not inconsistent with the return, but only a more detailed statement in some respects, the minutes, having been removed to the supreme court with the re- turn, were considered as a part of the return.'^^ If the return is defective in any respect, the party interested in supplying the defect should call the at- ilTS; Noyes v. Hillier, 65 Mich. 636; King V. Bates, 80 Mich. 367; Toliver V ^Brownell, 94 Mich. 577 ; Holmes V. Cole, 95 Mich. 272; Mudge v. Yaples, 58 Mich. 307; Waldron v. Palmer, 104 Mich. 556; Mitts v. Harvey, 125 Mich. 354; Weaver v. Lammon, 62 Mich. 366. A justice's failure to keep any record of jurisdictional facts is fatal to his jurisdiction. Davison v. Da- vison, 99 Mich. 625; Kiiowles & Son V. Cavanaugh, 144 Mich. 260; Wells V. United States Fidelity & Guar- anty Co., 160 Mich. 213; Tacoma v. Nyenhuis, 194 Mich. 420; Moore v. Frederick, 197 Mich. 573. 20 Knap v. Gamsby, 47 Mich. 375; Rawson v. McElvaine, 49 Mich. 194; Traverse City, etc., R. Co. v. Sey- mour, 81 Mich. 378; People v. Leav- itt, 41 Mich. 470; Computing Scale Co. v. Tripp, 138 Mich. 602; Forbes Lithographing Co. v. Winter, 107 Mich. 116; Young v. Kelsey, 46 Mich. 414; Alt v. Lalone, 54 Miih. 302; Nicolls v. Lawrence, 30 Mich. 395; Dooley v. Eilbert, 47 Mich. 615; People v. Hobson, 48 Mich. 27; MauH V. Tyler, 56 Mich. 564 ; People V. Etter, 72 Mich. 177; Hinehman V. Spaulding, 137 Mich. 655; Lewis V. Detroit Board of Education, 139 Mich. 307; Wetmore v. Dean, 139 Mich. 627; Appleman v. Hahn, 149 Mich. 245; Henika v. Brown, 155 Mich. 559; People v. Grimm, 182 Mich. 643. It has been held that allegations in the affidavit upon which a com- mon law writ is issued, where not denied in the return must be taken as true (Wilson v. Township Board, 87 Mich. 240), but this rule should not be extended to cases where the return, although not in so many words contradicting the affidavit, does so in effect (Computing Scale Co. V. Tripp, 138 Mich. 602). 21 Alt V. Lalone, .54 Mich. 302; Powers V. Russell, 26 Mich. 179; Nortli V. Joslin, 59 Mich. 624. See also Bernstein v. Thayer, 157 Mich. 625. 22 McDougall v. Lamb, 113 Mich. (19. 1056 Justices of the Peace § 27 tcntion of the justice to it by an order for a further re- turn, which the court will usually grant on motion of the party,^' and the court may on its own motion order the justice to make a further return.^* But an amended return tiled after submissi(m of the cause to the court, and without an order of court, will not be considered.^* The statute provides that the court may compel the justice to make or amend his return by rule, attach- ment or mandamus, as the case may require. ^^ The action of the court in compelling or refusing to compel the amendment of a return is within the scope of its discretionary authority, and will not be reviewed by the supreme court except in case of manifest abuse.''' § 28. Argnment of cause. When the return of the justice has been filed with the clerk, the cause may be brought on for argument on like notice as is required for the hearing of motions, with- out any assignment or joinder in error, and without furnishing any other copy or copies of the affidavit, cer- tiorari and return to the court or the opposite party than those filed with the clerk. ^* The allegations of the errors complained of in the affidavit operate as the as- signments of error.^* § 29. What will be reviewed. The statute provides that the court shall proceed to give judgment in the cause as the right of the matter 23 Marquette, etc., Mill Co. v. 27 Mann v. Tyler, ;j6 Mich. 564. Morgan, 41 Mich. 296. 28 .Tud. Act, ch. 78, §33; Comp. Subsequent return cures defects in Law.s 1915, § 144.3.3; Moore v. Fred- first return. Monroe v. Beynells, erick, 197 Mich. 573 ; Plefka v. De- 131 Mich. 259. troit United Ry., 147 Mich. 641. 24 Gordon V. Sibley, 59 Mich. 250 ; 29 Welch v. Bagg, 12 Mich. 41; Wight V. Warner, 1 Doug. 384. Berry v. Lowe, 10 Mich. 9. 25 Nelson v. Hillen, 164 Mich. 507. 26Jud. Act, ch. 78, S32; Comp. Laws 1915, § 14432. § 29 Justices of the Peace 1057 may appear without regarding technical omissions, im- perfections or defects in the proceedings before the jus- tice which did not affect the merits.^" Where the alleged errors of the justice go to the foun- dation of the action, it is proper to review them on cer- tiorari, but where they occur in tlie course of the trial and are of such a nature that they can be obviated on a new trial, an appeal is o])vi()usly tlie pi'oper remedy. The writ of certiorari is not given to enable parties to have a technical review of all the justice's rulings, ])ut to afford a sjieedy and inexpensive remedy for substan- tial faults.^^ Tlie court will take no notice of any error of the jus- tice which is not alleged in the affidavit for the writ. Any error not so specilied cannot be considered.^^ It has already been observed that the moving party in this proceeding nmst ])ase his position upon a clear and unquestionable foundation, and point out wherein the justice has erred in matter of law. It has also been observed to what extent the return of the justice is con- clusive upon what occurred in the proceedings before him, and that such return cannot be supplemented by testimony, the affidavits of third persons or the like. It is, therefore, obvious that the error which the moving- party alleges in his affidavit must be made to appear to the court by means of the return of the justice. Error cannot be presumed, and cannot be shown by any in- strumentality other than the return, which, for the pur- pose of ascertaining whether any alleged erroi* has been 30Jud. Act, ch. 78, §:t4; Comi). 50 Mich. 44.1; Weloh v. Bagg, 12 Laws 1915, § 14434. Mich. 41 ; Matthews v. Forsluiul, \U 31 Erie Preserving Co. v. Wither- Mich. 416; Parsons v. Dickinson, 2;! spoon, 49 Mich. .'}77; Galloway v. Mich. 56; Fowler v. Detroit, etc., Corbitt, r)2 Mich. 460; Gray V. Will- R. Co., 7 Mich. 79; McGraw v. cox, .56 Mich. ."j8. Schwab, 23 Mich. 1.3; Rodman v. 32 Witherspoon v. Clegg, 42 Mich. Clark, 81 Mich. 466; Stoll v. Padley, 484; Grand Trunk R. Co. v. Russ, 9S Midi. 1.!. 47 Mich. .100; Westbrook v. Blood, 1 Abbott— 67 1058 Justices of the Peace § 29 actually committed, must be regarded as the exclusive repository of information.^^ A judgment will not be reversed on a doubtful record.^* On certiorari, the circuit court will consider errors in law only. It will not weigh the evidence or inquire into its sufficiency, except to ascertain whether there is a total want of evidence to prove some fact necessary to sustain the judgment. ^^ If there is such a total want of evidence, the court will reverse the judgment as a matter of law;^* but if, on the other hand, there is any evidence which, if believed, would sustain the judg- ment, it matters not how slight it is or how convincing the evidence is on the other side, the court cannot re- verse the judgment." When the return does not show that the whole of the testimony in a cause has been re- turned, it will be presumed that there was evidence to sustain the finding of the justice, though none appears.^' The court cannot presume that the justice did not have evidence upon all essential points, unless it knows that all the evidence is before it, or unless the justice's re- 33 Dooloy V. Eilbert, 47 Mioh. 61 f); 36 Massachusetts Bonding & Insiir- Forbes Lithograph Mfg. Co. v. Win- anee Co. v. Park, 197 Mieh. 142; ter, 107 Mieh. 116; Henika v. Chicago, etc., R. Co. v. Peters, 45 Brown, 155 Mich. 559. Mich. 6.'!6; Bery v. Lowe, 10 Mich 84 Beam v. Reynolds, 144 Mich. 9; Bullock v. Ueberroth, 121 Mich. 38.'}. 29:',; Cicotte v. Morse, 8 Mich. 424; 36 Berry v. Lowe, 10 Mich. 9; Jackson v. People, 9 Mich. Ill ; Gar- Boyden v. Moore, o5 Mich. 411 ; Ov- vin v. Gorman, 63 Mich. 221 ; Hink- erpaek v. Ruggles, 27 Mich. 65; Par- ley v. Wcatherwax, 35 Mieh. 510. sons V. Dickinson, 23 Mich. 56; Mc- 37 Welch v. Bagg, 12 Mich. 41; Graw V. Schwab, 23 Mich. 13; Crawford v. Byrnes, 112 Mich. 599; Higley v. Lant, 3 Mich. 612; Craw- Mem v. Button, 116 Mich. 680; ford V. Byrnes, 112 Mich. 599; Hyde Locke v. Farley, 41 Mich. 405. V. Nelson, 11 Mich. 353; Welch v 38 Snow v. Perkins, 2 Mich. 238; Bagg, 12 Mich. 41; Linn v. Roberts Gaines v. Betts, 2 Doug. 98; Gray 15 Mich. 443; Overpack v. Ruggles, v. Willcox, 56 Mich. 58; Rawson v. 27 Mich. 65; Brown v. Blanehard, McElvaine, 49 Mich. 194. 39 Mieh. 790; Schall v. Bly, 43 Mich. 401 ; Smoke v. .Tones, 35 Mich 409. I 29 Justices of the Peace 1059 turn affirmatively shows that on some essential point evidence was wanting.^' On this statutory certiorari, there can be no reversal of the judgment of the justice, unless for some error which affects the merits as the case finally stands.*" Merely technical objections will not be given any weight unless there is reason to believe they tended to a wrong result.*^ While the erroneous admission of evidence will not be ground for reversal on certiorari,*'^ and a jus- tice's judgment on the merits will not be reversed for the rejection of evidence not of a conclusive character,*^ yet where the justice has erroneously rejected evidence of such a conclusive character that it would, if admitted, have changed tlie result, the judgment will for that rea- son be reversed.** Certiorari is the proper proceeding to get rid of a void judgment,** or where the plaintiff has brought the wrong form of action,*^ or where the justice has (juashed the plaintiff's Avrit of replevin,*' or has allowed a per- emptory challenge to a jurp",*' but not for merely tech- 39 Marquette, etc., Mill Co. v. Mor- on the ground of the admission of gan, 41 Midi. 296; Sullivan v. Hall, improper evidence to establish a fact 86 Mich. 7; Rawson v. McElvaine, which is clearly proved by other tes- 49 Mich. 194. timony of a competent character. 40Hinman v. Eakins, 26 Midi. 80; Aldrich v. Maitland, 4 Mich. 205. Hart v. Port Huron Tp., 46 Mich. 44 Foster v. Watson, 153 Mich. 428; Burt v. Addison, 74 Mich. 7.30; 400; Morrison v. Emsley, 53 Midi. Kees V. Maxim, 99 Mich. 493. 564. 41 Cheney v. Russell, 44 Mich. 620; 45 Lake Shore, etc., R. Co. v. Hunt, Gray v. Willcox, 56 Mich. 58; Burn- 39 Mich. 469; Hoben v. Citizens Tel. ham V. Van Gilder, 34 Mich. 246. Co., 176 Mich. 596; Harbour v. El- 42 Howell v. Shepard, 48 Mich. dred, 107 Mich. 95 ; Farrah v. Burs- 472 ; Grand Trunk R. Co. v. Russ, 47 ley, 100 Mich. 547 ; Scott v. Brown, Mich, 500; Forbes Lithograph Mfg 175 Mich. 447. Co. V. Winter, 107 Mich. 116; Mar- 46 Plefka v. Detroit United Ry., tin V. Smith, 108 Mich. 278. 147 Mich. 641. 43 Erie Preserving Co. v. Wither 47 Proper v. Conkling, 67 Mich, spoon, 49 Mich. 377; Whaley v. 244. Gale, 48 Mich. 193. 48 Eldridgc v. Hubbdi. 119 Mich. A judgment will not be reversed 61. 1060 Justices of the Peace § 29 iiieal iriT^ulnritic'S which might bo oln'ialed on a new trial," and no judgment of a justice can be reversed merely for tlie omission or misrecital of an oath, or on account of any fees having l)een imi)ioperly allowed by the justice, or on account of the infonnality or insuffi- ciency of any bond that has been given by the party bringing the certiorari, ]n*ovided another bond, to be approved by the court, be given within such time as the court directs. ^° But the failui'e of the i^laintiff's attor- ney to prove liis authority to ai)])ear for the plaintiff, where there is no appearance by the defendant, is not merely the omission of an oath, but the omission of a very important requirement of the statute, designed for the ]jrotection of the parties against unauthorized pro- ceedings, and is, therefore, ground for the reversal of the judgment. ^^ Unless, however, the affidavit for the writ and the return show such failure, it will be presumed that the plaintiiT's attorney duly proved his authority.*^ A defendant waives notliing of a jurisdictional nature by failing to appear before the justice." Hence, the mere fact that the points raised in the affidavit for the writ were not made before the justice does not render them unavailable." But objections which do not go to the jurisdiction of the justice, if not made before the justice, or which the justice was never given an oppor- 49 Erie Preserving Co. v. Wither- Lafliii & Raud Powder Co., 44 Mich, spoon, 49 Mich. 377; Galloway v. 35; Lagoo v. Seaman, 136 Mich. 418. Corbitt, 52 Mich. 460. 51 Scofiekl v. Cahoon, 31 Mich. 60 Jud. Act, ch. 78, ii 36 ; Conip. 206. See also Wilcox v. Lafliu & Laws 1915, S 14436; Backus v. Bar- Rand Powder Co., 44 Mich. 35, and ber, 107 Mich. 468. Whelpley v. Nash, 46 Mich. 25, as to This statute, however, does not matter of costs. See also StoU v. prevent reversal for improper allow- Padley, 100 Mich. 404. ance of fees by the justice in cases 52 Brown v. Knap, 137 Mich. 234. where the matter of costs is ex- 53 Campau v. Fairbanks, 1 Mich, pressly governed by some other stat- 152; Harbour v. Eldred, 107 Mich, ute and the question does not con- 95. cern allowances which the justice 54 Harbour v. Eldred, 107 Mich, had power to consider. Wilcox v. 95. § 30 Justices of the Peace 1061 tmiity to examine and pass upon, or which were so blindly stated that the point made in error failed to at- tract his attention, will not avail to effect a reversal." §30. Judgment. The statute provides that the court may affirm or re- verse the judgment in whole or in part.^^ There can be no new trial on the merits either in the circuit court or in the justice's court. A reversal by the circuit court of the judgment which the plaintiff obtained in justice's court cuts oft" his entire claim." The statute in terms limits the power of the circuit court to the affirmance or reversal, in whole or in part, of the judgment which the justice of the peace rendered, and does not purport to give it power to enter any other judgment. Consequently, the circuit court should not enter a judgment for the costs of the appellant in jus- tice's court upon reversing the judgment of the jus- tice,*' because that would be a new and independent judgment, and, for the same reason, it has been held that, upon an affirmance, a new judgment for the plaintiff's damages and costs should not be entered in the circuit court,** though such a judgment would be merely a formal error for which the judgment would not be re- versed in the supreme court.^° It has, however, been 65 Wilcox V. Toledo, etc., R. Co., ment as upon other judgments ren- 45 Mich. 280 ; Hinniau v. Eakins, 26 dered in the circuit court. Jud. Act, Mich. 80; Lake Superior Bldg. Co. ch. 78, §34; Comp. Laws 1915, V. Thompson, 32 Mich. 293; Brad- §14434. shaw V. McLaughlin, 39 Mich. 480; 67 Eitter v. Daniels, 47 Mich. 617; Thompson v. Ellsworth, 39 Mich. Westbrook v. Blood, 50 Mich. 443; 719; Zimmer v. Davis, 35 Mich. 39; Appleman v. Hahn, 149 Mich. 245. Hopkins v. Green, 93 Mich. 394; See also Knack v. Wayne Circuit Forbes Lithographing Co. v. Winter, Judge, 147 Mich. 585. 107 Mich. 116. 68 Berry v. Lowe, 10 Mich. 9. 66 Jud. Act, ch. 78, §34; Comp. 59 Dooley v, Eilbert, 47 Mich. 615. Laws 1915, §14434; Burnham v, 60 Rodman v. Clark, 81 Mich. 466; Van Gilder, 34 Mich. 246. Dooley v. Eilbert, 47 Mich. 615. Execution may issue on such judg- 1062 Justices of the Peace § 30 recently liekl that, on such an affirmance, the phiintiff is entitled to liave a new judgment entered for him in the circuit court to include all that was awarded to him by the justice's court, in the form of a judgment for the aggregate of the damages, costs and interest,^^ and that such judgment may include the sureties on the appel- lant's bond.^*^ And where the plaintiff has given secu- rity for costs in the justice's court, the circuit court, on reversing a judgment which he has recovered, may give judgment for the costs of the latter court, not only against the plaintiff, but also against his sureties for costs.^^ In case a new judgment is entered in the circuit court, that judgment is the only one to be enforced, the judgment of the justice being considered as simply af- lirmed and merged therein.^* §31. Costs. If the judgment be affirmed, costs will be awarded to the appellee; if it be reversed, costs will be awarded to the appellant; if the judgment be affirmed in part, the costs, or such part as to the court seems just, may be awarded to either party .^* § 32. Restitution of money collected. If a judgment rendered before the justice has been collected, and is aftenvards reversed, the court will award restitution of the amount so collected, with in- terest from the time of collection.®^ 61 Knack v. Wayne Circuit Judge, «* Eingclberg v. Peterson, 76 147 Mich. 485. Mich. 107. eZMcDermid v. Ridpath, .39 Mich. 65 Jud. Act, ch. 78, §35; Comp. .372; Knack v. Wayne Circuit Judge, Laws 1915, § 14435; Wilcox v. Laf- 147 Mich. 485. lin & Rand Powder Co., 44 Mich. 35. 63 McLean V. Isbell, 44 Mich. 129; 66 Jud. Act, ch. 22, §7; Comp. Boatz V. Berg, 51 Mich. 8; Baum- Laws 1915, §12797. garth V. Firemen 's Fund Ins. Co., 159 Mich. 207. § 34 Justices of the Peace 1063 §33. Execution. Execution may be issued upon the judgment of the circuit court in a cause which it has reviewed upon cer- tiorari the same as upon other judgments rendered in the circuit court.^"'' V. Appeals from Justices of the Peace A. General Appeals §34. In what cases an appeal lies. The statute ^^ provides that any party to a judgment rendered by a justice of the peace, conceiving himself aggrieved thereby, may appeal therefrom to the circuit court for the county where the judgment was rendered, in the following cases: 1. Where final judgment was rendered on an issue of law joined between the parties. ' 2. Where final judgment ^^ was rendered on an issue of fact joined between the parties. 3. Where the defendant did not appear and plead and final judgment was rendered for the plaintiff on the merits of his claim. 4. Where a judgment of non-suit has been rendered.''^*' There is no provision for an appeal from part of a judgment,'^ or from any but a final judgment;"^ and a general appeal does not lie from a void judgment.''* Appeals from justice's courts in some cities are gov- erned by particular statutes or charter provisions.'* 67Ju(J. Act, ch. 78, § :54 ; Coinp. 72 Duhig v. Lipseomb, 2 Mich. N. Laws 1915, § 144.34. P. 1.31. 68 .Jud. Act, ch. 78, § 1 ; Comp. 73 Harrison v. Sager, 27 Mich. 476. Laws 191.5, §14401. 74 In Detroit, see Anderson v. 69 Verdict as jndoTnent, see Gaines Wartenberg, 196 Mich. 529; Hud- V. Betts, 2 Doug. 98; Overall v. dleston v. Cliarles Amos & Co., 180 Pero, 7 Mich. 315. Mich. 253. 70 See § 35, post. In Port Huron, see American Boat 71 Wineman v. W.ayiie Circuit Co. v. St. Clair Circuit .Tudge, 194 .Tudge, 121 Mich. 601. Mich. 14G. 1064 Justices of the Peace § 35 §35. After judgment of non-suit. Where the justice before whom a case was pending refused to proceed with the case, on the supposition that he had no jurisdiction, his action was equivalent to a judgment of non-suit and entitled the plaintiff to appeal the case to the circuit court." So, also, where the jus- tice dismissed the suit on motion for want of jurisdic- tion on account of an alleged defect in process.''^ So, also, where the justice dismissed a suit in replevin for defects in the affidavit for the writ." But, where the plaintiff voluntarily submits to a non-suit, or the justice dismisses the case because of the failure of the plaintiff to give security for costs or otherwise to prosecute his suit, the plaintiff cannot appeal.'* §36. Who may appeal. Tlie right to appeal is not confined to those who are named as parties to the suit, but extends to one for whose benefit an action has been brought or defended in the justice's court, although he be not a nominal party."'® When there are several plaintiffs or several defendants in an action before a justice of the peace, it is not neces- sary for all of the plaintiffs or all of the defendants to join in taking an appeal to the circuit court, but it is competent for any one of them "conceiving himself ag- grieved" to take such appeal in his own behalf, irre- spectively of the refusal of his co-parties to join with him." An oral admission by the defendant in justice's court that judgment should be rendered against him for a specified amount, while very strong, if not conclusive, evidence for the purpose of the trial before the justice, 76Pattridge v. Lott, 15 Mich. 2;')1. 553; Bowne v. Johnson, 1 Doug. 185. 76 People V. Wayne Circiut Judge, 19 Wilson v. Davis, 1 Mieli. 156. 30 Mich. 98. 80 Keal v. Wayne Circuit Judge, 77 Stall V. Diamond, 37 Mieh. 429. 36 Mifh. 331; Shaw v. Moser, 3 78 Sohulte V. Kelly, 124 Mich. 330; Mifh. 71. Walmsley v. Bowman, 151 Mifh. § 37 Justices of the Peace 1065 would not preclude such defendant from appealing from the judgment of the justice to the circuit court.'^ Such an admission is to be distinguished from those by which a party is conclusively bound and which he is not at liberty aftei^wards to dispute, such as admissions made by pleadings, by cognovit in courts of record and by the confession of judgment in writing before justices of the peace in the manner provided by the statute, which, for the purposes for which they are made, work estoppels, and whose correctness, so far as these purposes are con- cenied, is not to be drawn in question.'^ But one who has stayed execution on a judgment against him in a justice's court cannot afterwards appeal.'^ And, after a transcript of a justice's judgment has been legally filed in the circuit court under the statute, an appeal cannot be taken by either party, nor is it in the power of the circuit court to allow an appeal, for the transcript, when filed, becomes of the same force as a judgment of the circuit court, and the justice has no further control over the proceedings;'* but, where an appeal had been taken to the circuit court, and that court dis- missed the appeal because the entry fee was not paid, it was held that the filing of a transcript of the justice's judgment in the circuit court after such dismissal would not preclude the circuit court from re-instating the ap- peal upon satisfactory excuse for the default in payment of the entry fee, since in re-instating the appeal there was no act required to be performed by the justice."* § 37. Time for. The appeal must be taken within five days from the rendition of the judgment.'^ And if the justice take time 81 Morrison v. Eiker, 26 Mich. 385. Mich. 56, practice in city of Detroit. 82 Morrison v. Riker, 26 Mich. 385. 86 Aldrich v. Clinton Circuit 83 People v. Macomb Circuit Judge, 49 Mich. 609. Judges, 1 Mich. 134. 86 Jud. Act, ch. 78, §2; Comp. 84 Davison v. Elliott, 9 Mich. 252. Laws 1915, § 14402. But sec Pattinson v. Flayer, 158 1066 Justices of the Peace § 37 to consider the case and render his decision, the parties must take notice of the time when it is actually rendered, and the appeal must be taken within the five days thereafter.^' But the time fixed by the statute for taking an appeal may be enlarged by stipulation of the parties in certain cases.*' If the appeal is not taken within the time prescribed by statute, the circuit court generally acquires no jurisdiction;®' but the entry of a general appearance and notice of trial by appellee waives the failure to file the statutory bond and affidavit within the required time.*" §38. Appeals by special leave after five day limitation has expired. Appeals may be authorized by the circuit court or by the circuit .judge at chambers after the expiration of five days, when the party desiring appeal has been pre- vented from taking an appeal by circumstances not un- der his control. And, in all sucli cases, where the party in whose favor the judgment was rendered appears by an attorney or agent, it is sufficient to serve such attor- ney or agent with the notices of all subsequent proceed- imrs in the cause, and all orders made bv the court or judge may be served on such attorney or agent, and such service will have the same effect as though it was made on the party in whose favor the judgment was rendered.'^ The application for leave to appeal after the statutory lime has expired should be by petition, supported, when necessary, by affidavit, setting forth specifically the cir- cumstances which excuse the failure to appeal within 87 Draper v. Tooker, 16 Mich. 74. Special statute (Local Acts 1903, 88 See § 42, post. No. 475, §22) relating to appeals 89 Franks v. Smith, 45 Mich. 326. from justice's courts in Detroit, see 90 See §§44, 49, post. Anderson v. Wartenberg, 196 Mich. 91Jua. Act, ch. 78, §8; Comp. 529. Laws 1915, § 14408. § 38 Justices of the Peace 1067 the statutory time, and which constitute the reason why leave to appeal thereafter should be granted.'^ Applications for leave to appeal will be heard only on the usual notice required fpr special motions, and the notice must be accompanied with a copy of the petition or affidavit on which the application is based.®^ The notice may be served upon the attorney or agent who appeared for the opposite party in justice's court, but, if not so served, must be served upon the opposite party personally. The notice is analogous to process and equivalent to it, being the means whereby the circuit court obtains jurisdiction of the party. A service out- side of the state, therefore, is insufficient, even though accepted and acknowledged by the party in writing.^* The application, although not a regular suit or action, is nevertheless a special proceeding materially affecting tlie legal rights of the adverse party, and the court can- not, therefore, obtain authority to assume any control over him, except in the same way in which it can get control over other defendants.^* The rule of practice which allows these notices to be the same as on special motions refers to the time of service. There is no rule authorizing service by mail of any papers in cases or upon persons not already before the court and subject to its complete jurisdiction.^^ After service of the notice of the application has been made, proof of such service should be prepared, in order that tlie court or judge may know whether or not juris- diction has been obtained to proceed with the hearing of the application. Such notice can be properly proved only by a sworn or officially certified copy. It is anal- ogous to process and equivalent to it. Proof of service 92 Stanton v. Wayne Cirrnit Kont Circuit Jiulge, 88 Mich. 244. Judge, 126 Mich. 715. 95 McCaslin v. Camp, 26 Mich. 390, 93 Cir. Ct. Rule 47. 96 McCaslin v. Camp, 26 Mich. 94 Danville Stove & Mfg. Co. v. 390. 1068 Justices of the Peace § 38 is, therefore, not sufficient, which, instead of embodying a copy of the notice, contains merely an allegation of its substance. The court or judge cannot properly act without knowing precisely what notice was served.''^ §39. Under what circumstances dilatory appeal will be allowed. It has been held that the serious illness of a party or that of a member of his family, whereby he has been prevented from taking an appeal within the statutory time, is a sufficient circumstance to authorize the court to allow an appeal thereafter.^^ And this rule would apply where the illness was that of an agent of a cor- poration, who was charged with the duty of perfecting an appeal in behalf of the corporation, or that of a mem- ber of his family.^* So, where a party relied upon his attorneys to take an appeal, and, by reason of an lionest mistake about the date of an adjournment, a judgment was rendered against such party by default, of which the attorneys did not hear until after the expiration of the statutory time, it was held that the court might very properly relieve the party by allowing an appeal.^ Like- wise reliance on the statement of a co-party that he would perform the acts necessary to perfect the ap- peal;^ or the fact that defendant, who was a non-resi- dent did not know of the proceedings until more than a month after judgment, and that there had been no un- excusable lapses from that time up to the time of the application,^ is good ground. So, also, a party should 97MeCasliTi v. Camp, 26 Mich. 390. Mandamus C'as. 186; Tully v. Lena- 98 Braastatl v. Alexander H. Dey wee Circuit Judge, McGrath, Man- Iron Min. Co., .'54 Mich. 258. damus Cas. 185; Merriman v. Peck, 9»Braastad v. Alexander H. Dey 96 Mich. 603; .Tackson v. Jackson, Iron Min. Co., 54 Mich. 258. 135 Mich. 549. 1 Capwell V. Baxter, 58 Mich. 571. 2 Potter v. Lapeer Circuit Judge, See also Jerome v. Wayne Circuit 119 Mich. 522. Judge, 117 Mich. 19; Lawrence v. 3 Jackson v. Jackson, 135 Mich. Wayne Circuit Judge, McGrath, 549. § no Justices of the Peace 1069 be relieved who has been misled by the fraudulent ante- dating of a judgment;* but where, at the close of the trial, the justice stated to the parties that he should take some time for considering the case, but did not state how much time, and a party, supposing that the justice could not render judgment until the fourth day, took no steps to ascertain the decision and to take an appeal until the fifth day after tliat day, while the jus- tice in the meantime rendered judgment the next day after the trial, the court had no authority to allow an appeal, for the failure of the party to take his appeal within the statutory time was not due to any circum- stance beyond his control, but to his misapprehension of the legal effect of the action of the justice.^ So, where the only obstacle shown to perfecting an appeal by the service of the affidavit and bond is the absence of the justice, and it does not appear that the appellant could not have sei'ved tlu^ affidavit and bond on some member of his family of suitable age, as allowed by the statute in case of the absence of the justice from his dwelling liouse, it was held tliat the coui't should not allow an appeal, and where it did allow an appeal in such a case, a writ of mandamus was granted to compel the dismis- sal of it.^ And especially where there has been consid- erable delay in applying for leave to appeal and no rea- sonable excuse is given for the delay, leave will not bo gi-anted.''' And, in general, leave will not be granted when the party applying for it has not been prevented from appealing l)y circumstances beyond his conti'oi.^ 4 Hall V. Howard, Hf) Mich. 219. Clinrlos Amos & Co., 180 Mich. 2o:>. 5 nrapor v. Tookor, 10 Mich. 74. 8 Stanton v. Wayne Circuit Judse, 6 Combs V. Wilber, 99 Mich. 2:;4. 120 Mich. 715? Calvert v. McNaugh- 7 Pickell V. Coats, 147 Mich. ;';',; ton, 2 Mich. N. P. 8; McC.onegal v. Crahani v. Wayne Circuit .Tndgc, Smitli, 1 Mich. N. P. 80. ]4;i Mich. 3G0; Hndflleston v. 1070 Justices of the Peace § 40 § 40. Nature and extent of power to allow dilatory appeals. The statute did not intend to give a general discre- tion to the circuit court to allow appeals in every case after the five days where, in their judgment, it would be equitable, or where a party has made a mistake or drawn an erroneous inference. On the contrary, it is clear, from the restrictive language used, that the inten- tion was to confine that discretion to the class of cases in which the appellant has been prevented from appeal- ing within tlie five days by circumstances beyond his control,® but, within this class, the court is vested with a discretion the exercise of Avhich will not be interfered with, except where the supreme court is fully satisfied that such discretion has been abused.^'' To justify an order allowing a dilatory appeal, the party must bring himself witliin the terms of the statute.^^ § 41. How decision on application will be reviewed. The action of a court in refusing to allow an appeal after tlie statutory time will be reviewed l)y the supreme court only upon mandamus. It cannot be reviewed upon a writ of error.^^ Where, however, an appeal has been allowed and the court has taken jurisdiction and 9 Draper v. Tookor, 16 Mich. 74; tion whetlior writ of error was th(» Combs V. Wilher, 90 Mifh. 234; proper nietliod of review does not Goldhamer v. Wayne Circuit Judge, apijear to have been raised. Like- 107 Mich. 259. wise, in Huddleston v. Charles Amos 10 Vincent v. Bowes, 78 Mich. 315. & Co., 180 Mich. 253, the denial of But see Capwell v. Baxter, 58 Mich. leave was reviewed and affirmed on 571. writ of error, but the objection that H Combs V. Wilber, 99 Mich. 234. this was not the proper method of 12 Vincent v. Bowes, 78 Mich. :il;'i. review was not raised. And in Pick- In Capwell v. Baxter, .kS Mich. 571, ell v. Coates, 147 Mich. 53, a denial the denial by the circuit court of of leave was aflirmed on writ of er- leave to appeal was reviewed by ror, but the use of this method of the supreme court upon a writ of review was not objected to by the error and reversed, but the ques- adverse party. § 43 Justices of the Peace 1071 proceeded with the case, the aggrieved party may, by proper objection, save the question, which can and shonkl be raised by writ of error and not by mandamus to vacate the order allowing the appeal. ^^ § 42. When time for appealing may be extended by stip- ulation. The general rule is that the circuit court obtains no jurisdiction of a case appealed from a justice of the peace, if taken after the expiration of the five days al- lowed by statute, even though the fifth day falls on Sun- day, and that jurisdiction in such case cannot be con- ferred by stipnlation between the parties.^* In that class of cases, however, in which the statute gives tlie circuit court power to allow an appeal after five days, the parties may, by stipulation, agree to extend the time beyond the statutory period, and, by so doing, may con- fer upon the circuit court jurisdiction of the case.^* §43. Affidavit. The party appealing from a justice of the peace to the circuit court must, within five days after the rendi- tion of tlie judgment, present to the justice an affidavit made by himself, his agent or attorney before any per- son authorized to administer oaths, stating that such judgment is not in accordance with the just rights of such party, as the person making the affidavit verily believes; and, in case there be any objection to the 13 Huddk'ston v. Charles Amos & Judge, 140 Mich. 636; Sharp v. Co., 180 Mich. 253; Mikkola v. Montcahii Circuit Judge, 144 Mich. Houghton Circuit Judge, 165 Mich. 328; Steel v. Clinton Circuit Judge, 583; Michigan Mut. Fire Ins. Co. 133 Mich. 695; Cosgrove v. Wayne V, Wayne Circuit Judge, 112 Mich, Circuit Judge, 144 Mich. 682. 272; Cattermoie v. Ionia Circuit 14 Dale v. Lavigne, 31 Mich. 149; Judge, 136 Mich. 274; Eoberts v. Franks v. Smith, 45 Mich. 326. Lenawee Circuit Judge, 140 Mich. 15 Climie v. Odcll, 20 Mich. 12. 115; Chatlield v. Lonanee Circuit 1072 Justices of tiik Peace §4;j l)ruccss, })lcadiiigs or other proceedings and to the de- cision of the justice thereon which would not be allowed to be made on the trial of the appeal, such objection may be set forth specifically in the affidavit.^® The affidavit is recpiired by the statute upon gi-ounds of public policy and cannot be dispensed with.^' An affidavit for an appeal from a justice of the peace, sworn to before any other officer than the justice, is of no avail unless the jurat be signed by such officer; but, where a ])ers()n desiring to api)eal has sworn to a proper affida- vit before the justice himself, he has done all that can be required of him in that regard, and the neglect of the justice to sign the jurat will not be allowed to prejudice the rights of the appellant. The ])roper practice in such case would be for the circuit court to allow the justice to attach his jurat nunc pro tunc, if he appears and wishes to do so, and, if not, to make an order for a further return, re(iuiring the justice to certify whether the affidavit has been duly sworn to before him.^® And an affidavit for appeal, if properly sworn to, is valid even if not subscribed by the afiiant.^^ An attorney for a party desiring to appeal should not administer the oath to the affiant, but, if he does so, the appeal will not for this reason be peremptorily dismissed. The entry of a rule nisi would be the proper course instead.'^" lejud. Act, eh. 78, S2; Coiiip. Laws 1910, S 14102. The affidavit must Vie presented to the justice within the five days even though the fifth day falls on Sun- day. Dale V. Lavigne, 31 Mich. 149 ; Vohlers v. E. H. Stafford Mfg. Co., 171 Mich. 8, 16. The time may be extended by stip- ulation of the parties. Climie v. Odell, 20 Mich. 12. 17 Smart v. Howe, '6 Mich. 590; Hamilton v. Wayne Circuit Judge, :)2 Mich. 409. 18 People v. Simondsou, 2.5 Mich. li:j. 19 People V. Simondson, 2.5 Mich. 113. See also Merrick v. Mayhue, 40 Mich. 196; In re Teachout, 15 Mich. ,346. Waiver, see Hamilton v. Wayne Circuit Judge, 52 Mich. 409. 20 Bradley v. Andrews, 51 Mich. 100. § 44 Justices of the Peace 1073 Form of Affidavit on Appeal from Justice of the Peace to Circuit Court State of Michigan, 1 County of ( C. D., being duly sworn, deposes and says that on the day of , A. D , a suit was commenced against the said C. D., as defendant, by A. B., as plaintiff, before J. P., a justice of the peace for the township (or, city) of , in said county, by summons (or, as the <:ase may be) issued by said justice of the peace on the day and year aforesaid, and made returnable at the ofliee of the said justice of the peace in the said township (or, city) on the day of , A. D , at o 'clock in the noon, and that an issue of fact was joined between the said parties therein, and was tried with a jury (or, by the said justice of the peace mthout a jury, as the case may be), and a final judgment was rendered thereon by the said justice of the peace on the day of , A. D , in favor of the said A. B., as plaintiff, and against tlie said C. D., as defendant, for the sum of dollars, damages, and dollars, costs of suit. And this deponent further says that said judgment is not in accordance with the just rights of this deponent, as he verily believes. (The fore- going is adequate for a general appeal. If a special appeal is desired, set forth the proceedings substantially as above, but with sufficient full- ness to exhibit the jurisdictional defects upon which the special appeal is based, and then add a specific statement of the objection or objections to the process, pleading or other proceedings and the decision of the jus- tice thereon.) C. D. Subscribed, etc. § 44. Effect of absence of proper affidavit. If the affidavit is omitted or is defective, the opposite party may make a motion in the circuit court that the appeal be dismissed. If the affidavit has been omitted, tlie court will thereupon enter an order dismissing the appeal peremptorily; but, if it be merely defective or docs not conform to the provisions of the statute, the appeal will not be dismissed, provided the appellant makes a new affidavit whicli conforms to such provi- sions.^^ The pr()i)er practice in case of a motion to dis- miss an appeal for defects in the affidavit is to make an 21Jud. Act, ch. 16, 8 9; Comp. Laws 191.5, I* 12486; Hyman v. Kad- rovach, 180 Mich. ;^70. 1 Abbott— 68 ■^'- 1074 Justices of the Peace § 44 order nisi that the appeal be dismissed unless, within a time specified, a new aiid correct affidavit be filed. ''^ A general appearance by the appellee operates as a waiver of any defect in the affidavit.'^^ If the affidavit is filed and then mislaid or lost, a new one may be per- mitted to be filcd.^* §45. Bond. The party appealing, besides filing the affidavit re- quired, must also, within five days after the rendition of the judgment, deliver to the justice a bond or recog- nizance to the adverse party in conformity with the fol- lowing requisites : ^* 1. It must be in a penalty not less than fifty dollars and not less than double the amount of tlie judgment, excluding costs. 2. It must recite the judgment so far as to exhibit the names of all the parties, the character in which they prosecuted or defended before the justice, the amount recovered and the name of the justice. 3. It must contain a condition that the appellant will prosecute his appeal Avitli all due diligence to a decision in the circuit court and that, if a judgment be rendered against him in that court, he will pay the amount of such judgment, including all costs, Avitli interest there- 22 People V. Wayne Circuit Judge, the fiftli day falls on Sunday. Dale 27 Mich. 303; Bradley v. Andrews, v. Lavigne, 31 Mich. 149; Vohlers 51 Mich. 100; Cole v. Wayne Cir- v. E. H. Stafford Mfg. Co., 171 cuit Judge, 106 Mich. 692. Mich. 8, 16. 23 Hamilton v. Wayne Circuit The time may be extended liy stip- Judge, 52 Mich. 409; Goodin v. Van ulation of the parties. Climie v. Haaften, 130 Mich. 386. Odell, 20 Mich. 12. 24Hyman V. Kadrovach, 180 Mich. Bond must substantially comply 370. with statute. Wineman v. Wayne 26Jud. Act, ch. 78, §3; Comp. Circuit .Judge, 121 Mifh. 601. Laws 1915, § 14403. Appellant may amend bond or file The bond must be delivered to the a new one. Haseall v. Brooks, 105 justice within five days after the Mich. 383. rendition of judgment even though I 45 Justices of the Peace 10'^^ on, and that, if his appeal be discontinued or dismissed, he will pay the amount of the judgment rendered against him, if any, in the justice's court, including all costs, with interest thereon.''^ 4. It must be executed by the appellant, with one or more sufficient sureties, or by two or more sufficient sureties without the appellant. Each party desiring to appeal must execute the bond, for the ap])eal will not be effective as to any party not joining in the execution of the bond, and, as to him, the judgment in the justice's court will remain unaffected." Form of Bond on Appeal from a Justice of the Peace to Circuit Court Know all men by these presents, that we, C. D., as principal, and E, F. and G. H., as sureties, are held and firmly bound unto A. B. in the sum of dollars (penalty not less than fifty dollars, and not less than dou- ble the amount of the judgment, exeluding costs), to be paid to the said A. B., or to his certain attorney, executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves, our, and each of our, heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , in the year one thousand nine himdred Whereas judgment was rendered on the day of , A. D. J by J. P., a justice of the peace for the township (or city) of in the county of , in favor of the said A. B., as plaintift', and against the above-bounden C. D., as defendant, for the sum of dollars, damages, and dollars, costs of suit; And whereas the above-bounden C. D, has appealed therefrom to the circuit court for the county of : Now the condition of this obligation is such that if the above-bounden C. D. shall proseiute his said appeal with all due diligence to a decision in the circuit court aforesaid, and, if a judgment be rendered against him in the said circuit court, shall i»ay the amount of such judgment, including all costs, with interest thereon, and if the said appeal shall be discontinued or dismissed, if the said C. D. shall pay the amount of said judgment rendered against him in said justice's court, including all costs, with inter- est thereon then this obligation is to be void; otherwise to remain in full force and effect. C. D, fL. S.l E. F. [L. a.] G. H. [L. S.l 26Wineman v. Wayne Circuit 27 .Tojtp v. Kegel, 83 Mich, 50. Judge, 121 Mich. 601. 1076 Justices of the Peace § 45 (The bond may be executed by the appellant with one or more sureties, or by two or more sureties with the appellant.) State of Michigan, 1 County of ( E, F. and G. H., the sureties named in the foregoing bond, being duly sworn, each for himself deposes and says that he is worth in unincumbered property, not exempt from execution under the laws of this state, the sum of dollars, after tlie payment of all just debts, claims, and lia- bilities. E. F. G. H. Subscribed, etc. I approve E. F. and G. H. as sureties in the foregoing ))ond. Dated, etc. J. P., Justice of the Peace (or. County Clerk.) § 46. By whom to be approved. Tlio })ond or recognizance may be taken by the justice by wliom the jiulginent was rendered or by any other justice of the peace of the same county or by the county clerk of the same county; but no other justice of the peace or the county clerk has power to approve any such bond or recoo-nizance when approval has ])een de- nied by the trial justice for or on account of its insufli- ciency. When a justice of the peace refuses to approve any such ])ond or recognizance because of its insuffi- ciency, it is his duty to indorse that fact in writing upon llie instrument.^* § 47. Justification by sureties. No justice of tlie peace or county clerk is allowed to take any bond or recognizance on appeal unless the pei'- son or persons entering into it as surety justifies his or their responsibility in writing and under oath, which 28 Jud. Act, ch. 78, S."?; Comp. Deputy county clerk may approve Laws IQl.'j, §1440.3; Sherwood v. bond. Cole v. Wayne Circuit Ionia Circuit .Tudge, 107 Mich. I.K). .Tiidge, 106 Midi. 092. § 48 Justices of the Peace lO''"' justification must be indorsed on the bond;^' but no justification is necessary when the opposite party or his attorney admits the pecuniary responsibility of the surety or sureties to be sufficient. It is the duty of the justice, at the time of taking a bond or recognizance, to certify whether the surety justified or his respon- sibility was admitted.^" §48. Purpose of bonds. AVhile the affidavit on appeal is required upon grounds of public policy and therefore cannot be dispensed with, tlie bond is intended for the benefit and protection of the appellee, and there is therefore nothing to prevent him from dispensing with it if he so desires. ^^ When an appeal is taken of a case commenced by writ of attachment under which property of the defendant has been seized and is held by tlie officer, the property so lield is thereby released and the appeal bond stands in the place of such property to insure satisfaction of the judgment which the appellee may recover; ^^ but, where a suit commenced by writ of replevin is appealed ])y the plaintiff to the circuit court, the appeal bond does not supersede or take the place of the replevin ])ond, ]jut is rather a cumulative security in favoi- of the defendant.'^ The appeal l)ond operates as a stay of the proceed- ings.^* If an execution has l^een issued before the ap- peal is taken, on a cei'tificate being presented to the of- ficer holding the execution, showing tlie aj^peal, he must forthwitii release the property or the body of the party 29.Tud. Aft, fh. 78, §4; Coinp. 31 Smart v. Howe, :i Mich. 590; Laws 1915, § 14404. Weiss v. Chambers, 50 Mich. 158. Bond may be amended on the trial 32 Bushey v. Raths, 45 Mich. 181. 1)y permittino^ sureties to justify. 33 Brabon v. Pierce, ."14 Mich. 39. Hyman V. Kadrovach, 180 Mich. .'',70. 84 Hascall v. Brooks, 105 Mich. SO.Tud. Act, ch. 78, §5; Comp. .185. Laws 1915, § 14405. 1078 Justices of the Peace § 48 against whom it was issued, if either have been taken, or if the party has been committed to prison, tlie jailor must release him from imprisonment upon the service upon the jailor of such a certificate.^^ § 49. Effect of absence of proper bond. If the bond be omitted or be defective, the appellee may move in the circuit court to liave the appeal dis- missed. Where the bond has been omitted, a ])eremp- tory order will be entered dismissing' the appeal; but, where the bond is informal or imperfect, the appeal will not be dismissed if the appellant furnishes a new bond to supply the defect.^*^ In case of such informality or imperfection, when a motion to dismiss is made, the proper practice for tlie court is to enter an order nisi dismissing- the appeal unless within a specified time a new and sufficient bond be filed. ^''' An appellee, in mov- ing to dismiss an appeal because of a defective bond, does not release his rights under that bond until the appellant has filed a new bond in pni'suance of tlie order of the court. ^' A motion to dismiss an appeal for want of a proper bond should be seasonably made. The objection is one that may be waived by the appellee, and his general appearance in the cause in the circuit court does waive it. The motion to dismiss the appeal should, therefore, be made before a general apj^earance in tlie circuit court, and comes too late afterwards.^® 35Jud. Act, Ph. 78, §10; Comp. Wayne Cirfiiit Juil^o, 121 Midi. Laws 191.5, § 14410. fiOl. 36Jud. Aet, eh. 16, §9; Conip. 38 Hasoall v. Brooks, ^05 Mir-h. Laws 1915, § 12486. .^S,"]. Amendment of bond should 1)fi al- 39 Shaw v. Moser, ?, Mich. 71 ; lowed. Hyman v. Kadrovach, ISO Tower v. Lamb, 6 Mich. .'562; Mc- Mich. 370. Combs v. Johnson, 47 Mich. 592; 37 People V. Wayne Circuit Judge, Sherwood v. Ionia Cirfiuit .Indfje, 107 27 Mich. .HO.".; Cole v. Wayne Circuit Mich. 1^,6; Goodin v. Van Haaften, Judge, 106 Mich. 692; Winemaii v. UO Mich. .'!86. § 50 Justices o^ the Peace 1079 § 50. Payment of costs to the justice. The statute provides that the apyjellant shall, within five days after the rendition of the judgment, in addi- tion to the making and filing of an affidavit and bond, pay to tlie justice the taxabki costs of the prevaiUng party, together with the sum of one dollar for making his return to the appeal, and the further sum of three dollars as clerk and entry fee, to be paid by the justice to the clerk of the court to which the appeal is taken at the time of delivering to him the papers pertaining to the appeal. No appeal will be allowed until these conditions are complied with; and all species of appeals ordered or directed by any court or judge are subject to tlie same provisions of payment.*'' But although a party is not entitled, as a legal right, to have the jus- tice make return to his appeal, unless within the five days he pays to the justice the costs of the judgment, the fee for making his return to the appeal and the clerk and entry fee, a distinction is made between the jus- tice's fee for making the return and the other costs and fees. The distinction is that the justice may waive the payment of the former, in which he alone is concerned,*^ but cannot waive the latter, in which not he, but other parties, are interested.*^ The justice may indeed insist upon the payment of his fee for making the return as well as of tlie other costs and fees, and cannot be com- pelled to make return to the appeal in the absence of such payment; but, if he waives his fee, he may be com- pelled to make return in the same manner as if it had been paid, and, if he makes the return without payment of his fee, the a])peal will not be dismissed for such non- payment." In other words, the payment of the justice's 40Jiul. Act, ch. 78, S6; Coinp. 42 Swarthout v. McKnight, 99 Laws 1915, § 14406. Mich. 347. 41 People V. Allegan Circuit Judge, 43 People v. Allegan Circuit Judge, 29 Midi. 487; Marr v. Cook, 147 29 Mich. 487; Stevenson v. Kent Mich. 425. Circuit Judge, 44 Mich. 162. 1080 Justices of the Peace § 50 Tee lor inakiiig the rc'luni is not a jurisdictional require- ment." Upon this point, the statute provides that no appeal shall be dismissed on the ground that the costs of the justice have not been paid, but, in all cases, the fact of a return having been made by a justice shall be conclusive evidence of such fees having been paid." On the other hand, if the other costs and fees be not paid, not only can the justice not be compelled to make re- turn to the appeal, but he has no authority to do so, and, if he should, the appeal would be dismissed.*^ Pajanent of such costs and fees is a jurisdictional re(iuirenient. In case of the absence of the justice from his dwelling house, such costs and fees may be paid to any member of his family of suitable age.'*'' Of course the provision as to making payment to a member of the family of the justice need not be acted on where payment has already been made to the justice." § 51. Service of affidavit and bond where justice is absent. Tlie statute provides that the affidavit and bond or recognizance, in case of the absence from his dwelling house of the justice by whom the judgment was rendered, may be served on any meml)er of his family of suitable age." § 52. Proceedings if office of justice has terminated. The statute provides tliat, when the term of office of a justice shall expire, or the office otherwise becomes vacant, between the rendition of a judgment by him and the time limited for appealing, such justice may take ** People V. Allegau Circuit Judge, 47 Jud. Act, ch. 78, S 9 ; Comp. 29 Mich. 487. Laws 1915, § 14409. 45 Jud. Act, ch. 78, §18; Conip. 48 Combs v. Saginaw Circuit Laws 1915, § 14418. Judge, 99 Mich. 234. 46 Swarthout v. McKnight, 99 49 Jud. Act, eh. 78, § 9 ; Comp. Mich. .347; Aldrich v. Clinton Cir- Laws 1915, §14409. cuit Judge, 49 Mich. G09. § 53 Justices of the Peace 1081 and approve the bond or recognizance, and it shall be his duty to make return to the appeal in like manner as if he were in office at the time of taking the bond or recognizance and of making tlie return; ^° or either party, conceiving himself aggrieved ])y the judgment, may, within five days after the books and papers of the justice have been transferred to another justice pursuant to law, deliver a notice of a])peal and bond or recognizance to tlie justice having control of the judgment and pay ]iim the fees provided, and such justice must tliereupon witliin ten days thereafter make return to the appeal in the same manner and with like effect as if the judg- ment appealed from had been rendered by him.^^ Whenever an appeal has been duly made from a judg- ment rendered by a justice of the peace while in office, either before or after the justice has gone out of office, and before or after the books and papers have been de- livered to tlie clerk of the township or city or to his successor in office, it is his duty to make return to the appeal in like manner as if he were in office at the time of making the return. ^^ § 53. Return of justice. Within ten days after an appeal has been made, it is the duty of the justice to make a return of the proceed- ings had before him to the circuit court. In this return, must be stated the following: ^^ 1. The title of the cause and tlie character in which the parties prosecuted or defended before him. 60Jud. Act, eh. 78, §7; Conij). This section makes provision for Laws 1915, § 14407. tlie return of all matters required 61 ,Jud. Act, ch. 78, §.'^.9; Comp. to be returned where the appeal is Laws 1915, § 14439. upon the merits and the affidavit is 62 Jud. Aft, ch. 78, §37; Comp. not special. Chapi)ee v. Thomas, '} Laws 1915, § 14437. Mich. 53. 53 Jud. Act, eh. 78, §11; Comp. Return where affidavit is special, Laws 1915, §14411. see §712, post. 1082 Justices of the Peace § 53 2. The demand of the plaintift*; and, if his declaration was in writing, a copy thereof must be set forth." 3. The plea of the defendant and any notice of set-off or matter of defense given by him, and all other proceed- ings of the parties npon which a trial was had or an issue was framed; and, if in writing, copies thereof must be set forth. 4. Tf tlic trial was by jnry, the names of tlie jurors and their verdict. 5. The .judgment rendered, and the time of rendering it. 6. The time when the affidavit and bond or recogni- zance were delivered to the justice and the fees of the justice were paid. Facts coming to the knowledge of the justice after trial should not be included." The return need not be signed if it purports in its caption to be by the justice.*^ Where the return fails to show jurisdiction of the jus- tice, defendant is not bound to plead in the circuit court, and the return should not be allowed to be amended without a proper application and showing after notice to defendant.^''' The justice cannot excuse himself from making a return by the fact that the amount paid him did not include costs of the return where he gave a re- ceipt foi- "fees and costs of appeal."^* The return can- not be amended after verdict by stipulaticm of the par- ties, although such a stipulation brought upon the record might in some cases be treated as an admission.^® § 54. Filing- return in appellate court. AVithin ten days after an appeal has been duly made, it is the duty of the justice to file his return with the 64 Tf the return does not state 66 Smart v. Howe, ?, Mich. 590. whether the pleadings were written 67 Moore v. Hansen, T.^ Mieh. 564. or oral, it will be presumed that 58 Stevenson v. Kent Cirfuit they were oral. Kerr v. Bennett, -Tudge, 44 Mioh. 162. 109 Mieh. 546. 69 Applebaum v. CJoldman, 155 66Savier v. Chipman, 1 Midi. 116. Mich. 369. § 55 Justices ok the Peace 1083 clerk of tliu circiiit court, together with all papers filed with him by either party relating to the cause and the affidavit and bond or recognizance delivered to him by the appellant.^" § 55. Compelling justice to make return. Until the return of the justice is filed with the clerk of the circuit court, it cannot be said that the cause is in that court. Without such return, the circuit court gets no jurisdiction over the cause itself and cannot try it, but it has jurisdiction to inquire into the facts for the purpose of ascertaining wliether the appellant has paid the necessary fees and costs and whether the affi- davit and bond or recognizance have been duly made and filed with the justice, and, if so, to compel a re- turn.^^ But, in ascertaining these facts, the appellate court must get them from the justice himself by calling upon him, upon cause shown by affidavit, to state the facts bearing upon the question, and the court and the parties must, upon this question, and in this proceed- ing, be governed by his return of such facts.*"^ To this end, the statute provides that the court to which the appeal has been taken, upon evidence that an appeal has been duly made, may, by rule and attacliment, com- pel a return by the justice of his proceedings, and of all papers and matters required to be returned by him, dur- ing the same term or at a subsequent tenii; and, if a rule has been entered requiring sucli return and has been served ten days previously, the court may and should issue an attachment against the delinquent justice, un- less good cause to the contrary be shown by him.^' eOJud. Act, ch. 78, §13; Comp. 61 People v. Allegan Circuit Judge, Laws 1915, § 14413. 29 Mich. 487. The failure of the justice to file 62 People v. Allegan Circuit .Judge, his return within the time limited 29 Mich. 487. does not preclude a remedy on the 68 Jud. Act, ch. 78, §14; Conip. appeal bond. Nowlin v. Tibbita, 44 Laws 1915, § 14414, Mich. 77. 1084 Justices of the Peace § 55 If a justice to whom a notice of appeal and bond or recognizance have been duly delivered dies, becomes in- sane, removes out of the state or absconds, so that a return by him camiot be compelled, it is the duty of the justice to whom his books and papers have been transferred to make and file with the clerk of the cir- cuit court a transcript of the docket of the cause, to- gether with all the papers relating thereto, and the cir- cuit court may proceed thereon in the same maimer as if the return had been made by the justice who rendered the judgment.^* And if, for any cause, a return to an appeal cannot be compelled, the court to which the ap- peal has been made may receive the affidavits of the wit- nesses and the parties to the facts and circumstances of the proceedings and judgment appealed from and may proceed thereon in the same manner as if tliose facts had been returned by the justice whose duty it was to make return to the appeal.^* If a justice whose duty it is to make retuni to an ap- ])eal removes into an}' other county in this state before making a return according to law, tlie court to which the appeal is made may compel a return in the same man- ner as if the justice had not removed.^^ § 56. Compelling amendment of return. Upon satisfactory evidence that the return of a justice is substantially erroneous or defective, the court may compel him to amend it in the same manner as it may compel a return in the first instance.^''^ A general ap- pearance in the case in the circuit court does not operate 64Jutl. Act, ch. 78, §38; Conip. 67 Jud. Act, ch. 78, §15; Comp. Laws 1915, § 144.38. Laws 1915, §14415; Maxwell v. 66 Jud. Act, ch. 78, § 40 ; Comp. Deens, 46 Mich. 35. Laws 1915, § 14440. 66 Jud. Act, ch. 78, §41; Comp. Laws 1915, § 14441. § 58 Justices of the Peace 1085 as a waiver of the right of Ji party to move for an amended or a further return.^' § 57. Imprisonment of justice to compel obedience. Upon an attachment being issued against a justice, either to compel liim to make a return to an appeal or to amend an erroneous or defective return, tlie court may punish his disobedience by imprisonment until he submit, and may adjudge that he pay the costs of the proceedings against him, and may enforce such order as other orders of the court. ^^ § 58. Status of appealed case in circuit court. On the filing of the return of the justice, the circuit court becomes possessed of the cause the same as if it had been originally commenced in the appellate court, subject to the same rules and regulations; "''^ and, for all fees and costs in the action in the appellate court, the bond of the appellant will be holden as if made and filed in an action originally commenced in the appellate court, and the appellate court will have power to order new bonds or require security for costs and make other or- ders in its discretion as in actions originally therein commenced.'^ The api)eal takes up to the appellate court tlie same cause which, prior to the appeal, was in the justice's court, and effects a rehearing of the cause upon the merits. It is in the nature of a new trial. '^ The action 68Marr v. Cook, 147 Mkli. 425. Evers v. Sager, 28 Mi.'i. 47; Stroli- 69Ju(l. Act, cli. 7H, S 16; Comi.. schcin v. Kraiiidi, 157 Mich. ;{:{5. Laws 1915, § 14416. An appeal by a defendant releases 70Jud. Act, ch. 78, §17; Comp. a garnishee, but an appeal by a Laws 1915, §14417; Dattner v. plaintiff does not. In the latter Weiaz, 198 Mich. 367. case, the ju.stice is required to re- VI Jud. Act, ch. 78, §17; Conip. turn all garnishment proceedings Laws 1915, §14417; Swantek v. auxiliary to the suit together with Jarnioszki, 162 Mich. 617. the main action, and thereafter pro- 72 Dunn v. Sutliff, 1 Midi. 24 ; ccedings against the garnishee may 1086 Justices of the Peace § 58 after appeal is still the same action that was in the jus- tice's court.'' Tlic circuit court can render no other or different form of judgment than the justice could have done,'* tliougli this limitation may be waived by tlie party entitled to insist upon it,'* and, if the case is of a class of which the justice could not exercise jurisdic- tion, neither can the circuit court.'® The jurisdiction of the circuit court in a case taken to it on appeal from a justice of the peace is strictly appellate and is no broader than that of the justice. The issue must be substantial- ly the same in both courts. The claim, either of the plaintiff or of the defendant, cannot be enlarged in the circuit court, for to do so would be pro tanto original, and not appellate, jurisdiction." But tlie plaintiff may discontinue as to part of several defendants and pursue the remaining defendants precisely as he could do if the case had been commenced in the circuit court." So, also, he may discontinue as to all of the defendants, and, in either case, the discontinuance does not operate to revive the judgment rendered in the justice's court." be coiiduetctl in tlic same inaiiiier 75 I'^vcrs v. Sager, 28 Mich, 47. in all respects as if originally com- And see Wells v. Scott, 4 Mich. 347; meuced in the circuit court, the an- Tower v. Lamb, 6 Mich. 362. swer of the garnishee being treated 76 Sheldon v. Sullivan, 45 Mich, as if made in the circuit court on 324. the day on which the return is made 77 Cross v. Eaton, 48 Mich. 184; by the justice. Jud. Act, ch. 70, Wells v. Scott, 4 Mich. 347; Fowler §36; Comp. Laws 1915, §14396. v. Hylaud, 48 Mich. 179; Stanley v. Sec Erickson v. Duluth, etc., R. Co., Anderson, 107 Mich. 384; Loranger 105 Mich. 415, as to the former v. Davidson, 110 Mich. 605; West statute. Michigan Furniture Co. v. Diamond 73Brabon v. Pierce, 34 Mich. 39; Glue Co., 127 Mich. 651; Button v. Evers V. Sager, 28 Mich. 47; French Russell, 55 Mich. 478; Hatzenbuh- V. Weise, 112 Mich. 586; McCabe v. ler v. Lewis, 51 Mich. 585. Loonsfoot, 119 Mich. 323; Soper v. 78 Hillman v. Hulett, 149 Mich. Hawkins, 56 Mich. 527. 289; Wilson v. Medler, 140 Mich. 74 Cross V. Eaton, 48 Mich. 184. 209. See Discontinuance. And see Brown v. People, 39 Mich. 79 French v. Weise, 112 Mich. 586. 57; Nelson v. People, 38 Mich. 618; In re Irvin, 29 Mich. 43. § 61 Justices of the Peace 1087 But an appellant, whether plaintiff or defendant, can- not dismiss his appeal without the consent of the ap- pellee "° or the permission of the court.*^ § 59. Trial by court or jury. In all cases of appeal brought into the circuit court, as well as in eases commenced therein, all issues of fact ai'e tried by the court unless a jury be demanded by one of the parties, but, without such a demand, the court may order the cause to be tried by a jury whenever, in its opinion, the subject-matter is peculiarly proper for the consideration of a jury.^^ § 60. How appeal case put on calendar. When a return to an appeal has been filed in the cir- cuit court on or before the fourteenth day before the first day of any term, it is the duty of the clerk to place the case upon the calendar for that term without notice of trial or note of issue.*^ When the return is filed after the fourteenth day, the case may be placed on the cal- endar at any time either during or before the term at the request of the attorney for either party; but he must forthwith give notice in writing to all the other parties or their attorneys of the fact that the case has been so placed upon the calendar, whereupon, after the lapse of foui'teen days, the case will stand for trial the same as other cases.'* This notice may be served in the same manner as other papers in appeal cases. § 61. Service of papers in appeal cases. If a party lias appeared by attorney, papers should be served upon the attorney, but where the party upon 80 Peterson v. Frey, 109 Mich. L.nws 1915, § 12584. See also Jury. 089. 83 Jud. Act, ch. 18, §1 ; Comp. SlSwantok v. .Taimnszki, 162 Laws 1915, §12573. Mich. 617. 84 Jud. Act, ch. 18, §5; Comp. 82 Jud. Act, ch. 18, §12; Comp. Laws 1915, §12577. 1088 Justices of the Peace § 61 whom a paper is to be served has not appeared by at- torney and is a resident of this state, service may be made upon him personally or by mail in the manner provided for service on attorneys by mail; and, if there be two or more such parties who are partners, service upon one of them will be sufficient. Tf the party is not a resident of tliis state, or if his place of residence can- not be ascertained, the ])apei* may be served by posting*' it in a conspicuous place in the office of the county clerk and, if the post office address of the party be known or can be ascertained, a copy must be mailed to him.*^ Proof of such service, mailing' or posting, and the facts authorizing such posting, must then be filed be- fore the court will take any action on the strength there- of.*® If the service has been by posting in the clerk's office, the proof should show that it was i)ut in a con- spicuous place, and the place should be mentioned." Indeed, every clause and condition of the rule is to be regarded as having some significance, and no presump- tion can be made to aid a statement which omits any essential particular." §62. Pleadings. New pleadings may be filed by leave of court. For in- stance, where the declaration before the justice was ver- bal, it is proper to permit the filing of a written declar- ation by way of amendment on appeal.*^ So where the want of a declaration is objected to in the circuit court, it is proper to allow the filing of an affidavit of the justice, with a declaration attached, stating that the declaration is lost, and that the one attached is the same as that filed before the justice, to the best of his 85 Cir. Ct. Rules J), 11. See also See also Peojile v. Nankin Com'rs, Service of Papers. 14 Mich. 528. 86 Cir. Ct. Rule 11. 88 [Vople v. Bacon, IS Mich. 247. 87 People v. Bacon, 18 Mich. 247. 89 Zeigler v. Heuiy, 77 Mich. 480. § 62 Justices of the Peace 1089 knowledge and belief.^" And if the complaint has been lost, it is proper to allow plaintiff to file a copy to com- plete the record.^^ Defects in the declaration which might have been remedied by amendment before the jus- tice cannot be first urged in the circuit court.*^ Where the justice is not shown to have had any jurisdiction over the defendant, by the return, defendant need not plead or make any defense in the circuit court.^^ Where the return does not show, and the record does not state, whether the pleadings before the justice were written or oral, it will be presumed that they were oral.®* Pleadings in justice's court, whether oral or written, are treated with great liberality, and, when a case is appealed to the circuit court, it is the general rule that a pleading good in justice's court is good in the circuit court,®* especially where the adverse party made no ob- jection to the pleading on the trial in justice's court.®^ But if a defendant does not plead to the plaintiff's declaration until the case has reached the circuit court, the rules of pleading in that court are controlling as to the sufficiency and necessity of notice of any affirma- tive or other special defense rather than the standards 90 Carver V. Smth, 113 Mich. 207. 349; Whittle v. Bailes, 65 Mich. 91 Bauer v. Wasson, 60 Mich. 194. 642 ; Whelpley v. Nash, 46 Mich. 92 Taylor v. Belton, 188 Mich. 25 ; Chaneey v. Skcels, 43 Mich, 302; Carmer v. Hubbard, 123 Mich. 347; Hartford v. Holmes, 3 Mich. 333. 460; Carmer v. Hubbard, 123 93 Moore v. Hansen, 75 Mich. 564. Mich. 333; Page v. Mitchell, 13 94 Kerr V. Bennett, 109 Mich. 546. Mich. 63; Comstock v. Howd, 15 95 Anderson Forge & Machine Co. Mich. 237; Josselyn v. McAllister, V. Sterling Motor Co., 201 Mich. 22 Mich. 300; Thompson v. Ells- 429; Carver v. Bieleke, 177 Mich. worth, 39 Mich. 719; Watkins v. 406; Bradshaw v. McLoughlin, 39 Ford, 69 Mich. 357; Smith v. Dodge, Mich. 480; Daniels v. Clegg, 28 37 Mich. 354; Eddy v. Maushaun, Mich. 32; Lynch v. Craney, 95 Mich. 42 Mich. 532; Kinyon v. Fowler, 10 199; Jenks v. Brown, 38 Mich. 653; Mich. 16; Smoke v. Jones, 35 Mich. Soper v. Mills, 50 Mich. 75; Apple- 409. baum v. Goldman, 155 Mich, 369: 96 Chicago Bldg. & Mfg. Co. v. Hubbard v. Freiberger, 133 Mich. Yell, 129 Mich. 517; Taylor v. Bel- 139; Fletcher v. Bradford, 45 Mich ton, 188 Mich. 302; Millspaugh v. 1 Abbott— 69 1090 Justices of the Peace § 62 applied to pleadings in justice's court.*''' When the pleadings are oral, the return of the justice is the means by which their nature is determined in the circuit court.** It is proper to permit a bill of particulars to be filed for a larger amount than the one filed in the justice's court, where the amount claimed in the suit was no greater; and in such case, it is not proper to give de- fendant time to file a set-off except on payment of costs.** § 63. Amendments. Appeals are often taken in cases where no issue was joined before the justice, and in such cases, before a trial can be had upon the merits, a plea to the declara- tion must be filed, and for this purpose an order must be first obtained on special motion to the court. An order for that purpose is usually entered by consent, the neces- sity therefor appearing upon the face of the justice's return, and no ground generally existing for opposing it. But it also often occurs that, where an issue was joined before the justice, the pleadings are so informal on one side, or on both sides, that new pleadings are necessary to clearly embrace the cause of action, or the precise nature of the defense. In such cases amend- ments are freely allowed by the court, such terms as ap- pear reasonable being imposed, and the parties being- confined to the matters in controversy in the court be- low. The declaration cannot be amended in the circuit court so as to change the issues joined before the jus- tice,^ but formal amendments not changing the issues Sehultz, 180 Mich. ^lO; Carmer v. 99 McDonald v. Weir, 76 Mich. Hubbard, 12.3 Mich. .'JSB. 24'A. See also Holser v. Skae, 169 97 Ward v. Reed, 134 Mich. 392. Mich. 484. See Dattner v. Weisz, 198 Mich. 367. 1 Graham v. Langston, 65 Mich, as to allowing notice of special de- 45; Loranger v. Davidson, 110 Mich, fense to be set up for first time in 605. Compare Connell v. McNett, circuit court. 109 Mich. 329. 98 Aj)plebaum v. Goldman, 155 Mich. 369. § 63 Justices of the Peace 1091 are proper.^ The power of the circuit court to allow amendments to the pleadings and the filing of new plead- ings must always be considered in view of the peculiar jurisdiction which the court has in appeal cases, which, as has been observed, is no more extensive than that possessed by the justice of the peace, and in view also of the principle, already alluded to, that the case in the appellate court is the same case which, prior to tlio appeal, was in the justice's court. Such power of the appellate court, therefore, is not an unlimited power to allow amendments and the filing of new pleadings, but is always subject to the limitation that the cause of action or the ground of defense as set forth in the plead- ings in the justice's court cannot be enlarged in the appellate court,^ and that the issue made before the jus- tice cannot be substantially changed.* Thus, no amend- ment of the plaintitf's declaration is warranted which has the effect of introducing a new cause of action or of so modifying the plaintiff's claim as would have ousted the justice of jurisdiction if made in the justice's court; ^ but amendments which merely effect a fuller statement of the plaintiff's cause of action than was contained in the declaration in justice's court are properly allowed.® 2 Ovid Tp. V. Haire, 133 Mich. 585; Fowler v. Hyland, 48 Mich. 353; Farnam v. Doyle, 128 Mich. 179; Graham v. Langston, 65 Mich. 696; Canal St. Gravel Eoad Co. v. 45; Bureau v. Marshall, 55 Mich. Paas, 95 Mich. 372; Vreeland v. 234; Loranger v. Davidson, 110 Locckner, 99 Mich. 93. Mich. 605 ; Frohlich v. Graulich, 113 SEverhard v. Dodge Bros., 202 Mich. 65; Cross v. Eaton, 48 Mich. Mifh. 48; Cross v. Eaton, 48 Mich. 184. 184; Canal St. Gravel Road Co. v. 6 Evers v. Sager, 28 Mich. 47; Paas, 95 Mich. 372; Connell v. Mc- Everhard v. Dodge Bros., 202 Mich. Nett, 109 Mich. 329. 48. Amendment to show that action 6 Canal St. Gravel Road Co. v. was in plaintiff's name as trustee Paas, 95 Mich. 372; Zeigler v. for the insurer which had paid the Henry, 77 Mich. 480; Vreeland v. loss was held imj)roper in Everhard Loeckner, 99 Mich. 93; Hoyt v. v. Dodge Bros., 202 Mich. 48. Wayne Circuit Judge, 117 Mich. 4 Hatzenbuhler v. Lewis, 51 Mich. 172; Snyder v. Winsor, 44 Midi. 1092 Justices of the Peace § 63 Also an amendment of the declaration by the addition of a new count, which, however, tenders no new issue and merely states matter already covered in the original declaration, would work no prejudice ; ''' and a declara- tion on the common counts in assumpsit may be amended so as to show that the plaintiff claims as assignee,* but not by adding a special count for the refusal of the de- fendant to accept and pay for property or for the serv- ices of the plaintiff,® because this would introduce a new and different cause of action. So, also, where a suit was commenced in the name of two plaintiffs as co- partners, one of whom was dead when the suit was com- menced, the other plaintiff may be permitted to amend his declaration in the appellate court so to declare as surviving partner.^'' So, also, a bill of particulars may be amended even by adding new items, where the items added are within the declaration or notice of set-off or recoupment." The defendant cannot be allowed in the appellate court to amend his plea so as to introduce a new ground of defense.^^ Thus, in an action for trespass to land, the defendant cannot be allowed to amend his plea of 140; Webster v. Williams, 69 Mich. On third trial of case, refusal to 135; Thompson v. W. W. Kimball permit amendment of bill of par- Co., 190 Mich. 579. tieulars was upheld in Bamlet Ke- 7 Kennedy v. Brown, 50 Mich. alty Co. v. Doff, 183 Mich. 694. 336; Holser v. Skae, 169 Mich. 484. 12 Naf tzker v. Lantz, 137 Mich. 8 Donovan v. Halsey Fire Engine 441. Co., 58 Mich. 38; Worden Grocer As to discretion, on appeal from Co. V. Blanding, 161 Mich. 254; default judgment, in allowing plea Webster v. Williams, 69 Mich. 135; of general issue to be filed but de- Farnum v. Doyle, 128 Mich. 696. nying leave to file notice of special 9 Frohlich v. Graulieh, 113 Mich. defenses, see Daltner v. Weiss, 198 65; Loranger v. Davidson, 110 Mich. Mich. 367. 605. But affidavit denying execution of 10 O 'Connell v. Schwanabeck, 76 written contract may be permitted Mich. 517; Cragin v. Gardner, 64 to be filed in the circuit court. In- Mich. 399. ternational Text Book Co. v. Rob- 11 Connell v. McNett, 109 Mich. erts, 168 Mich. 501. 329; Holser v. Skae, 169 Mich. 484 § 65 Justices of the Peace 1093 the general issue so as to introduce as a new ground of defense that the title to the locus in quo was in himself. The issue in the circuit court must be substantially the same as that tried before the justice." The matter of allowing amendments within the lim- itations indicated rests in the sound discretion of the court. ^* § 64. Admissibility of evidence. Any evidence can ordinarily be introduced which would have been proper on the trial before the justice. The appeal papers cannot be considered by the jury,^^ and the return is not evidence. ^^ Where defendant did not appear generally before the justice, but did so appear in the circuit court and file a plea of the general issue, the question as to what issues are raised by such plea is governed by the rules pre- vailing in circuit courts rather than those governing in justices' courts.^''' The rule of the circuit court relating to the proof admissible under the general issue applies to a suit tried in the circuit court on appeal from a jus- tice." But it seems that proof is permissible without a plea to support it where there was no opportunity in the justice court or the circuit court to raise the ques- tion by a plea." § 65. General appeals as confined to trial de novo. If the affidavit for appeal is merely general and does not set forth any specific objection to the process, plead- 13 Bureau v. Marshall, 55 Mich. 16 Oekcnfclls v. Mocller, 79 Mich. 234. 314. 14Boatz V. Berg, 51 Mieh. 8; 17 Ward v. Reed, 134 Mich. 392. Krohn v. Wayne Circuit Judge, 157 18 R. K. Carter & Co. v. Weber, Mich. 185; Hoyt v, Wayne Circuit 138 Mich. 576. Judge, 117 Mich. 172; Farnam v. 19 Newton v. Principaal, 82 Mich. Doyle, 128 Mich. 696; Naftzker v. 271. Lantz, 137 Mieh. 441. 15 Richardson v. McGoldrick, 43 Mich. 476. 1094 Justices of the Peace § 65 ings or other proceedings and the decision of the justice thereon which would not be allowed to be made on the trial of the appeal, the case will stand for trial in the appellate court simply on the merits of the issue, with- out regard to such objections.^" If the affidavit for appeal be special, setting forth some objection or objections to the process, pleadings or other proceedings and the decision of the justice thereon which would not be allowed to be made on the trial of the appeal, a preliminary question is presented to the appellate court whether, on account of such ob- jections, there can be any trial on the merits of the issue at all. If it appears that the objections are well founded, the appellate court can only reverse the judgment of the justice. If not, the case may then be tried on the merits in the same manner as if the affidavit had been merely general. In other words, a special appeal brings up the case for trial on the merits in case the objections are not sustained.^^ § 66. Judgment and execution. On a trial de novo the judgment of the justice is not reversed or affirmed, but a new and independent judg- ment is rendered; but the circuit court cannot render any judgment which the justice's court could not have rendered.^^ Where defendant makes no defense in the circuit court, on being refused leave to file a set-off ex- cept on the pajTuent of costs, it is proper to enter judg- ment against him.^' The statute provides that if an appeal be dismissed or discontinued, the court shall en- ter judgment for the appellee for costs. ^* And on the 20 Chappee v. Thomas, 5 Mich. 53. 24 See § 68, post. On dismissal 21 See §§ 69, 70, post. of appeal, judgment of justice of 22 Cross V. Eaton, 48 Mich. 184. the peace is enforceable. American Costs on special appeal from a jus- Boat Co. v. St. Clair Circuit Judge, tice 's judgment are discretionary. 194 Mich. 146. 23 McDonald v. Weir, 76 Mich. 243. § 67 Justices of the Peace 1095 trial of the appeal, if costs be awarded to either party, such costs are included in the judgment. Where plain- tiff appeals but fails to appear in the circuit court, the judgment should be one of nonsuit or discontinuance, notwithstanding the pendency of a claim of set-off'.^^ Where plaintiff appeals from a judgment in favor of the principal defendant, it will not bring up with it pend- ing garnishment proceedings so as to enable the cir- cuit court to render judgment against the garnishee de- fendant in connection with a judgment for plaintiff'.^® Where judgment in replevin is rendered for defendant for a return of the property in justice 's court, the circuit court on appeal, if it finds for defendant, may give him judgment for the value of the property at the com- mencement of the suit if he waives a return.^''' § 67. Against sureties on appeal bonds. It is provided by statute that, in all cases where judg- ment is rendered against the appellant, judgment may, on motion of the appellee made before judgment, be en- tered against both the appellant and surety and be col- lected on execution against them as in ordinary cases of judgment against two or more.'^^ And where all of sev- eral defendants, or any two or more of them, have ap- pealed a cause in which they are joint defendants and have filed a bond on appeal, and, on the trial in the cir- cuit court, a verdict is rendered for one or more of the defendants so appealing, the surety or sureties on the appeal bond will not be released from liability on the 25 People V. Judge of Wayne Cir- valid. Chappee v. Thomas, 5 Mich, cuit Court, 22 Mich. 408. 53. See also Mitchell v. Shuert, 17 26 Erickson v. Duluth, S. S. & A. Mich. 65, and Roberts v. Lyon, 79 Ey. Co., 105 Mich. 415. . Mich. 25. 27 McCabe v. Loonsfoot, 119 Mich. .Judgment cannot be rendered 323. against surety for more than pen- 28Jud. Act, ch. 22, §5; Comp. alty of bond. Vreeland v. Loeck- Laws 1915, § 12795. ner, 99 Mich. 93. This statute has been held to be 10f)6 Justices of the Peace § 67 bond by reason of such verdict, but judgment will enter against liim or them as well as against the defendant or defendants against whom the verdict is rendered.''^ The appellee, however, in whose favor a judgment has been rendered cannot prosecute the bond or recognizance given on an appeal which has been dismissed or discon- tinued until an execution on the judgment ai)pealed from has been returned that sufficient goods and chat- tels of the appellant cannot be found to satisfy it.^" A circuit judge has no power to extend the liability of a surety in a bond executed on an appeal from jus- tice's court by a stay of execution made for that express purpose and upon his own motion.^^ The fact that the appeal is dismissed on motion of the appellee because the bond was insufficient in amount does not estop him from suing on the bond.^^ The sureties on the appeal bond are discharged by a stipulation permitting an amendment of the pleadings in the circuit court so as to set up a new cause of action, where acted upon.^^ The neglect of the justice to make return to the circuit within the statutory period does not prevent recovery on the bond.^* An action of debt lies upon the bond where the appeal released an attachment levy or delayed the levy of execution, and the judgment in the main suit cannot be collaterally attacked therein.^* Where a joint judg- ment is rendered against two, and they execute a joint appeal bond, and judgment is rendered in the circuit court against one and in favor of the otlier, the sureties are not liable. ^^ A circuit judge has no power to extend 29 Jud. Act, ch. 22, §6; Comp. requisite to an action on tlie bond. Laws 1915, § 12796. Nowlin v. Tibbits, 44 Mich. 77. 30 Jud. Act, ch. 78, §21; Comp. 31 Gildersleeve v. Adsit, 97 Mich. Laws 1915, § 14421. 606. But an effort to collect the judg- 32 Haseall v. Brooks, 105 Mich. 383. ment from real estate by causing a 83 Evers v. Sager, 28 Mich. 47. transcript to be filed in the circuit 34 Nowlin v. Tibbits, 44 Mich. 77. court and an execution to issue from 36 Bushey v. Raths, 45 Mich. 181. there, is not, in such a case, a pre- 86 Post v. Shafer, 63 Mich. 85. § 68 Justices of the Peace 1097 the liability of a surety on a bond by a stay of execution made for that express purpose on his own motion. ^'^ Form of Ck)unt on Bond on Appeal from Justice of tlie Peace to Circuit Court The plaintiff says: 1. That the said defendants heretofore, to wit, on at , by their certain writing obligatory, sealed with their respective seals, and shown to the court now here, the date whereof is the day and year aforesaid, a copy of which is hereto annexed, acknowledged themselves to be held and firmly bound unto the said plaintiff in the sum of dollars, to be paid to the said plaintiff, or to his certain attorney, executors, adminis- trators or assigns. 2. That said writing obligatory was and is subject to a certain condition thereunder written, whereby, after reciting that judgment was rendered on the day of , A. D , by J. P., a justice of the peace for the township of , in the county of , in favor of the said A. B., as plaintiff, and against the said C. D., as defendant, for the sum of dollars, damages, and dollars, costs of suit, and that the said C. D. had appealed therefrom to the cir- cuit court for the county of , it is provided that, if the said C D. should prosecute his said appeal with all due diligence to a decision in the circuit court last aforesaid, and, if a judgment should be rendered against him in the said circuit court, if he should pay the amount of such judgment, including all costs, with interest thereon, and, if the said appeal should be discontinued or dismissed, if the said C. D. should pay the amount of said judgment rendered against him in justice's court, in- cluding all costs, with interest thereon, then said writing obligatory was to be void, otherwise to remain in full force and effect. 3. That, in the term of said circuit court appointed to be held on , to wit, on , the said plaintiff recovered a judgment in said court in said appealed suit against the said C. D. for the sum of dollars, damages, and dollars, costs of suit. 4. That the said C D. has not, although requested so to do, paid the amount of said judgment, so recovered in the said appealed suit in said last-mentioned court by the said plaintiff, or any part thereof. 5. That the said defendants, although often requested so to do, "have not as yet paid the said sum of money in said writing obligatory mentioned, or any part thereof, to the said plaintiff. (The assignment of the breach will be varied according to the fact.) §68. Costs. In all cases ''heard and determined" on apjieal, the •costs, or such part thereof as to the court shall seem just, 37 Gilderslreve v. Kent Circuit Judge, 97 Mich. 606. 1098 Justices of the Peace §68 may be awarded to either party, as the court may deem just and right between the parties, in view of the par- ticuUn' circumstances of each case.^* This statute does not apply, however, where phiintiff has discontinued after the case has been sent back to the circuit for a new trial upon a reversal in defendant's favor, but in such case defendant is entitled to costs as a matter of right.** The discretion as to allowing costs is to be exercised in view of all the facts, and only by the judge trying the appeal in tlie circuit court;" and his discretion will not be reviewed by the supreme court.*^ If an appeal is dis- missed or discontinued, the court will enter judgment in favor of the appellee for costs.** B. Special Appeals § 69. Nature of. A special appeal is in the nature of a certiorari,** and obtains a review of jurisdictional questions only,** with- 38Ju(l. Act, eh. 47, §4; Comp. Laws 1915, § 13685. Statute providing that in certain actions no more costs than damages shall be recovered, where less than fifty dollars is recovered, does not apply to appeal cases in the circuit court. Evers v. Sager, 28 Mich. 52. Costs on special appeal from a justice's judgment are discretion- ary. Sager v. Shiitts, 53 Mich. 116. The statutory discretion as to awarding costs given to circuit courts on appeals, cannot be af- fected by a local rule of court not to allow them in certain cases. Voigt Brewing Co. v. Wayne Circuit Judge, 108 Mich. 356. On appeal in the circuit court, the fee for the trial of an issue of fact in assumpsit is ten dollars. Beem V. Newaygo Circuit Judge, 97 Mich. 491. 39 Sherman v. Washtenaw Circuit Judge, 52 Mich. 474. 40 Steinhauser v. Wayne Circuit Judge, 42 Mich. 463. 41 Hewitt V. Ingham Circuit Judge, 44 Mich. 153. 42Jud. Act, ch. 78, §19; Comp. Laws 1915, §14419; Swegles v. Wayne Circuit Judge, 110 Mich. 631. On an appeal being dismissed or discontinued and a certified copy of the order of dismissal or discontinu- ance being served on the justice, he may proceed in the cause as if no appeal had been made. Jud. Act, ch. 78, §20; Comp. Laws 1915, § 14420. 43 Chappee v. Thomas, 5 Mich. 53, 56. 44 See § 70, post. § 70 Justices op the Peace 1099 out a trial de novo, unless there is also a general appeal. The latter obtains a trial on the merits de novo and noth- ing else. Questions of jurisdiction, including any mat- ters connected with the process or any questions arising upon it before the justice, cannot be reviewed on a gen- eral appeal." If a special and a general appeal are com- bined, the circuit court first considers the special appeal and if it is sustained of course there is no necessity for a trial of the general appeal; but if the special appeal is not sustained, the appellant may then fall back on his general appeal if he so desires and have a retrial on the merits.*^ § 70. When proper. By statute, in case there is any objection "to the proc- ess, pleadings or other proceedings, and to the decision of the justice thereon, which would not be allowed to be 'made on the trial of the appeal, the same may be set forth specifically in the affidavit."*' This is called a special appeal. In such case the justice, in addition to the par- ticulars required in a return on general appeal, must make "a full and complete return as to all matters stated and set forth in such affidavit" and is required to return "copies of all processes, returns, pleadings and affidavits upon which any process issued or motion was made and so much of the evidence and proceedings as may be neces- sary fully to exhibit the questions, motions and decisions made and presented in such cause. "*^ Where the juris- diction of the justice is attacked, a special appeal is 45 Chappce v. Thomas, 5 Mich. 53, iiient and lience cannot be reviewed 56. on writ of error. Dodge v. Nichols, 46 Lyniburner v. Jenkinson, 50 i;')6 Mich. 28. Mich. 488; Fowler y. Hyland, 48 47 Jud. Act, ch. 78, §2; Comp. Mich. 179. Laws 1915, § 14402. The overruling of the objections 48 Jud. Act, ch. 78, § 12 ; Comji. and requiring the case to be tried Laws 1915, § 14412. on the merits is not a final judg- 1100 Justices of the Peace 70 proper.*^ So the objection that plaintiff's attorney did not prove his authority is properly taken by special ap- peal.^" But questions not relating to jurisdiction cannot be reviewed by special appeal." For instance, errors of fact,^^ mere irregularities in the proceedings,^^ alleged error in admitting or rejecting evidence,^* rulings as to the sufficiency of pleadings,^^ the allowance of an amend- ment to pleadings,^^ or the action of the justice in refus- ing to summon a second jury on the disagreement of the first one and in proceeding to hear and determine the case without a juiy,^' and the like are not reviewable on a special appeal. Where a defect of jurisdiction appears of record, it is reviewable on special appeal although the point was not distinctly made before the justice of tlie peace; ^^ but the statute plainly limits the questions to 49 Wright v. Russell, 19 Mich. 346; Dcitz v. Groesbeek, 32 Mich. 303; Fowler v. Hyland, 48 Mich. 179; Eosevelt v. Hanold, 65 Mich. 414. 50 Woodbridge v. Robinson, 49 Mich. 228. 51 McGraw v. Sturgeon, 29 Mich. 426; Dalton v. Laudahn, 30 Mich. 349; Dcitz v. Groesbeek, 32 Mich. 303 ; Benjamin v. Dodge, 50 Mich. 41; Stevens v. Harris, 99 Mich. 230; Maxwell v. Deens, 46 Mich. 35; Rock Island Plow Co. v. Smith, 162 Mich. 180. 52 Lymburner v. Jenkinson, 50 Mich. 488, holding, however, that it was proper to overrule the special appeal and allow the case to stand for hearing on the merits. 63 Deitz v. Groesbeek, 32 Mich. 303. 54All>ert V. Sutton, 28 Mich. 2; Webster v. Williams, 69 Mich. 135; Manhard v. Schott. 37 Mich. 234. A special appeal does not lie to review errors of a justice in admit- ting evidence not competent under the declaration, because such objec- tion would be available on the trial in the circuit court. Albert v. Sut- ton, 28 Mich. 2; Dalton v. Laudahn, 30 Mich. 349. 55 Stevens v. Harris, 99 Mich. 230. And see Olson v. Muskegon Circuit Judge, 49 Mich. 85. 56 Webster v. W^illiams, 69 Mich. 135. 57 McGraw v. Sturgeon, 29 Mich. 426. 58 E. S. Knowles & Son v. Cava naugh, 144 Mich. 260; Wright v. Russell, 19 Mich. 346. On a special appeal the appellant is not confined to the objections made before the justice, but it is sufficient if his objections are set forth in the affidavit for appeal ; and if the objection is one which goes to the jurisdiction, the party is not obliged to appear before the justice to make it, but may bring it before § 72 Justices of the Peace 1101 be reviewed to those actually decided by the justice or reasonably involved in his action.^^ Furthermore ques- tions relating to the jurisdiction cannot be considered where the objections have in any manner been waived.^" A special appeal for want of due service of summons will not be favored, where the summons was actually brought to respondent's attention in due season." § 71. Affidavit. The affidavit for a special appeal must be specific in its statements of grounds of error; ®^ and allegations of error of want of jurisdiction over the persons of defendants and that the justice had no jurisdiction to render judg- ment are too general.^^ The affidavit is not evidence for any other purpose than to secure a return.®* §72. Return. If the affidavit for the appeal specially set forth any objection to the process, pleadings, or other proceedings, and the decision of the justice thereon, as authorized by the statute, the justice is required, in addition to the other particulars required to be returned by him, to make a full and complete return as to all matters so specially set forth in such affidavit, and also copies of all processes, returns, pleadings, and affidavits upon which any process was issued or motion was made, and so much of the evi- dence and proceedings as may be necessary fully to ex- hibit the questions, motions, and decisions made and presented in such cause.®® The return to a special appeal the cin.'uit court, either by special 61 Lymburnor v. Jenkinson, 50 appeal or by certiorari. Wright v. Mich. 488. Eussell, 19 Mich. 346. 62 Osborne v. Osborne, 156 Mich. 59 Courtis V. Garrison, 148 Mich. 413. 226; Lymburner v. Jenkinson, 50 63 Osborne v. Osborne, 156 Mich. Mich. 488; Maxwell v. Deens, 46 413. Mich. 35. See also Peterson V. Fow- 64 Lymburner v. Jenkinson, 50 ler, 76 Mich. 258. Mich. 488. 60 Peterson v. Fowler, 76 Mich. 66 Jud. Act, eh. 78, §§2, 12; 258; Maxwell v. Deens, 46 Mich. 35. Conip. Laws 1915, §§ 14402, 14412. 1102 Justices of the Peace § 72 is assumed to contain all that took place before the jus- tice,®® and must be taken as tiiie as to all questions prop- erly raised by the appeal,^"'' except that it is not conclu- sive as against the necessary docket entries.^' It will not be presumed that the justice exceeded his jurisdiction unless the return so shows.^' If the return to a special appeal is defective, a further return should be required^" A motion to require an additional return in order to show that an objection was made to the sufficiency of the declaration, is properly re- fused, where the objection fails to specify the defect re- lied on in the circuit court.'^^ § 73. Hearing and what will be reviewed. In case of a special appeal it brings up the whole case, embracing a general as well as a special appeal, so that, if the objections brought before the court by the latter are overruled, the appellant may have a trial upon the merits of the case. But as the decision of the questions raised upon such objections may, if the objections are held to be valid, dispose of the whole case, they should be brought on for hearing before the trial of the issue of fact. These objections are in the nature of a motion to dismiss or quash the proceedings in the suit, on account of some defect or irregularity in the process, pleadings or other proceedings before the justice, which were in- sisted upon in the court below, and decided against the appellant, and which would not be allowed to be made on the trial upon a general appeal only. Where defendant did not object before the justice to the failure to file a This applies only where the ap- 67 Kidd v. Dougherty, 59 Micli. peal is not only upon the merits, 240; Hinkle v. Collins, 113 Mich, but also upon matters pertaining to 105, further return, the process, pleadings or other jjro- 68 Hodges v. Bagg, 81 Mich. 243. ceedings occurring during the pro- 69 Barker v. Wheeler, 44 Mich. 176. gress of the case before the justice. 70 Maxwell v. Deens, 46 Mich. 35. Chappee v. Thomas, 5 Mich. 53. VI Carmer v. Hubbard, 123 Mich. 66 Maxwell v. Deens, 46 Mich. 35. 333. § 73 Justices of the Peace 1103 declaration, he waives such filing, and the circuit court should permit a declaration to be filed. '^ But an amend- ment of process, necessary to validate the judgment in the circuit court, will not be allowed therein, on special appeal, where no request was made for an amendment in the justice's court.''^^ The only objections which will be considered upon a special appeal are such as involve a question of the jus- tice's jurisdiction to hear, try and determine the cause. Any other objection to the action of the justice, however irregular such action may be, cannot be reviewed on spe- cial appeal ; '* but the appellant is not confined to such objections as were actually made by him before the jus- tice. Any objection which goes to the jurisdiction of the justice, whether made before him or not, is available to the appellant on a special appeal. It is not necessary for a defendant to appear before the justice for the purpose of making such objections;'''^ but if the defendant, whether his objections to the jurisdiction were actually made before the justice or not, pleads to the merits in- stead of resting upon his objections, he thereby w^aives them and cannot thereafter take advantage of them upon special appeal.'''^ The rulings of the justice on the trial upon questions 72 Simon v. Spiro, 124 Mich. 48-1. 50 Mich. 41; Maxwell v. Deens, 46 73 E. S. Knowles & Son v. Cava- Mich. 35; Webster v. Williams, 69 naugh, 144 Mich. 260, holding that Mich. 135; Deitz v. Groeshack, 32 statutes relating to amendments do Mich. 303. not apply to orders relating to ques- 75 Wright v. KussoU, 19 Mich, tions properly raised by special 346; Eosevelt v. Hanold, 65 Mich, appeal, but to general appeals only, 414; E. S. Knowles & Son v. Cava- where the case is to be tried on the naugh, 144 Mich. 260. merits de novo. 76 Manhard v. Sehott, 37 Mich. 74 McGravv v. Sturgeon, 29 Mich. 234 ; Maxwell v. Deens, 46 Mich. 35 ; 426; Dalton v. Laudahn, 30 Mich. Knapp v. Duclo, 1 Mich. N. P. 189; 349; Stevens v. Harris, 99 Mich. Peterson v. Fowler, 76 Mich. 258; 230; Rock Island Plow Co. v. Smith, Stever v. Brown, 119 Mich. 196; Si- 162 Mich. 180; Rosevelt v. Hanold, mon v. Spiro, 124 Mich. 484. 65 Mich. 414; Benjamin v. Dodge, 1104 Justices of the Peace § 73 of evidence or the sufficiency of the pleadings or the amendment thereof cannot be reviewed upon special ap- peal." The rulings of the justice during a trial or con- cerning the summoning or swearing of witnesses cannot be reviewed upon special appeal.'* Questions not either actually decided by the justice or reasonably involved in his action cannot be reviewed on special appeal,™ though it is not essential that the point involved should have been distinctly made before him.*° The hearing in the circuit court upon the question of the jurisdiction of the justice is upon the case as it was in justice's court." § 74. Judgment. On a special appeal it seems improper to render dis- tinct judgments for damages and costs on the merits, and for costs on the special appeal.*'^ On a special appeal, where it appears that the judgment was void, a perpetual stay of proceedings is properly granted; *' and a reversal referring to reasons appearing in the affidavit for appeal is not substantially different from reversal for errors in the action of the justice, since the errors must be averred in the affidavit.'* TJ Manhard v. Schott, 37 Mich. at any stage of the cause, and yet it 234; Albert v. Sutton, 28 Mich. 2; cannot possibly bear that eonstruc- Dalton V. Laudahn, 30 Mich. 349; tion." Webster v. Williams, 69 Mich. 135; 79 Lymburner v. Jenkinson, 50 Stevens v. Harris, 99 Mich. 230. Mich. 488; Courtis v. Garrison, 148 78McGraw v. Sturgeon, 29 Mich. Mich. 226; Maxwell v. Deens, 36 426. In this ease, the supreme court Mich. 35. said: "It is not to be denied that SOWrig'ht v. Eussell, 19 Mich, the statute concerning special ap- 346; E. S. Knowles & Son v. Cava- peals is very loose, and that the naugh, 144 Mich. 260. phrase 'any objections to the pro- 81 Wells v. United States Fidelity cess, pleadings or other proceedings, & Guaranty Co., 160 Mich. 213. and the decision of the justice 82 Lymburner v. Jenkinson, 50 thereon, which would not be allowed Mich. 488. to be made on the trial of the ap- 83 Hall v. Howard, 39 Mich. 219. peal' is broad enough to cover al- 84 Sager v. Shutts, 53 Mich. 116. most anything done by the justice f^v. j^gl5l95a 000 315 383