Craig v. Grant

• Decision Date: 07 June 1859
• Citation: Craig v. Grant, 6 Mich. 447 (Mich. 1859)
• Court: Michigan Supreme Court
• Parties: William H. Craig and another v. Charles W. Grant and another

6 Mich. 447

William H. Craig and another v. Charles W. Grant and another

Supreme Court of Michigan

June 7, 1859

Heard June 1, 1859 [Syllabus Material]

Error to Saginaw Circuit.

The case is sufficiently stated in the opinion.

Judgment reversed, and a new trial granted.

E. C Hinsdale and C. I. Walker, for plaintiffs in error:

1. The admission of testimony contradicting the testimony of Henry M. Bradley, in his answer to a question asked by defendants, was erroneous.

The defendants, by calling him as their own witness, to show the value of their replevied property, and the management of it by plaintiffs, had represented him as worthy of belief, and could not, therefore, impeach the general reputation of their own witness: 1 Phil. Ev., 308; 1 Green. Ev., 442; Bul. N. P., 297.

Nor does this case come within any of the exceptions to the general rule. The witness Bradley was called voluntarily by defendants. He was not one the law obliged them to call, as a witness to a deed, or the like.

Nor did his answer relate to a particular fact pertinent to the issue, so that it was proper for the party introducing him to show that the fact was otherwise than testified to by him. Even on cross-examination, a party can not contradict a witness in matters not material to the issue: 1 Greenl. Ev., §§ 462, 449; Shields v. Cunningham, 1 Blackf. 85; Harrington v. Inhabitants of Lincoln, 2 Gray 133; Hathaway v. Crocker, 7 Metc. 266; Harris v. Tippet, 3 Campb. 637; Seavy v. Dearborn, 19 N. H., 351. Still more must the fact about which the witness testified, whom it is proposed to contradict, be material to the issue, to allow a party to contradict his own witness: Commonwealth v. Buzzell, 16 Pick. 158; Commonwealth v. Starkweather, 10 Cush. 59; People v. Safford, 5 Denio 112; Chamberlain v. Sands, 27 Me. 458; Stockton v. Demuth, 7 Watts 39; Smith v. Price, 8 Ibid. 447; Commonwealth v. Welsh, 4 Gray 535; U. S. v. Dickinson, 2 McLean 330; Rixey v. Bayse, 4 Leigh 330.

2. Plaintiff should have been permitted to show that the taking of the property under the attachments was in the county of Bay. Process from a Circuit Court can not lawfully be served out of the limits of the county in which the court sits: Turrill v. Walker, 4 Mich. 177.

The return of the sheriff to the writs of attachments that the goods were seized in "Hampton," in Saginaw county, was only prima facie evidence of the fact; and strangers to that suit were fully at liberty to refute its statements: Messer v. Bailey, 11 Fos. 9; Watson v. Watson, 6 Conn. 334; Dutton v. Tracy, 4 Ibid. 79; Augier v. Ash, 6 Fos. 99; Brown v. Davis, 9 N. H., 76.

J. M. Howard and John Moore, for defendants in error:

1. Defendants had not made Bradley their own witness. He was recalled for the purpose of cross-examination, and the evidence given by him is only a continuation of his former examination. It was competent for the court to permit him to be recalled for that purpose, either to lay the foundation for an impeachment, or to further explain and bring out the circumstances to which he had already testified: 1 Greenl. Ev., §§ 431, 433, 446.

What was said by Bradley while acting as agent for plaintiffs in consummating the thing which he was employed to do, was res gestoe, and the proof of it was, therefore, material.

2. Plaintiffs could not, under the issue, be permitted to show that the levy of the attachments was made in Bay county. They allege in their affidavit for the writ of replevin, that defendants detained the property in Saginaw, the return of the officer who served it shows that he took the property from defendants in Saginaw, and plaintiffs, in their declaration, alleged that defendants then detained the property in Saginaw. But independent of this, plaintiffs could not give this evidence without replying to defendants' notice. We deny that the levy was made in Bay county, and if the plaintiffs had put in a replication setting up that the levy was made beyond the jurisdiction of Saginaw county, we should have been prepared to meet the question.

3. But we deny that there is any such county as Bay. The case of The People v. Burns, 5 Mich. 114, was decided entirely upon the showing made in that case, and which formed the basis of the decision.

There is no law organizing such a county. In this case there is no evidence of any organization. The court will take judicial notice of the boundaries of counties, because they are fixed by statute; but in this case, from the peculiar wording and frame of the act authorizing the question of the organization of Bay county to be submitted to the people, its effect is made dependent upon matters of fact which the court can not notice except as they are brought before the court in the way of evidence. And we deny that any vote was ever cast in favor of the act--much more, a majority.

OPINION

Christiancy J.:

The plaintiffs in error brought an action of replevin in the court below, against defendants Grant and Ellis, the former of whom was sheriff of Saginaw county, and the latter his deputy.

The affidavit described the property in question as being in the town of Hampton, in Saginaw county, and the declaration was for the detention of the property at the same place.

The defendants pleaded the general issue, and gave notice with their plea, alleging the taking and justifying the detention at the place mentioned in the declaration, by virtue of two writs of attachment issued out of the Circuit Court for the county of Saginaw, against Lot Frost and Charles Bradley, one dated the 19th and the other the 21st day of September, 1857, and both returnable on the 6th of October, 1857; under which they claim to have seized and to detain the property; and alleging also that judgments were recovered under the respective attachments, one on the 19th and the other on the 21st of November, 1857; and stating the amount of the respective judgments against Frost and Bradley.

On the trial, the plaintiffs claimed the property under a conveyance or bill of sale from Frost and Bradley to them, dated September 19th, 1857; and after proving the due execution of the instrument, and before introducing it in evidence, called Henry M. Bradley as a witness, who, after certain preliminary questions, testified that previous to the 19th of September, 1857, he had charge of the property at Saginaw belonging to Frost and Bradley, as their agent, and that on that day he was employed by the plaintiffs to take charge of the property transferred to them by Frost and Bradley by said conveyance; and that plaintiffs gave him, as evidence of such employment, a written power of attorney; that he left Detroit on the 19th of September, and reached Saginaw September 21st, 1857, and immediately took possession of said property for the plaintiffs, except such as had been attached, and continued in possession and management thereof from that time; that the property described in the writ of replevin in this case is a part of the property described in the conveyance of September 19th, 1857; that on 21st of September, 1857, it was in the possession of the defendant Ellis at Hampton, in what was then called Saginaw and now called Bay county, and that he claimed it under an attachment made by him as deputy sheriff. That most of the lumber was in cribs in the river.

The plaintiffs then introduced the conveyance, or bill of sale mentioned, and evidence showing its filing with the city clerk of the city of Detroit on the day of its date. They then rested their case.

The counsel for the defendants, to maintain the issue on their part, introduced evidence showing the issue and service of the writs of attachment on 21st of September, 1857, and the recovery of the judgments as set up in the defendants' notice. And it was admitted that Grant was sheriff and Ellis was deputy sheriff of Saginaw county at the time of said seizure.

The defendants further introduced the deposition of Lot Frost, and also called Henry M. Bradley, who testified to the value of the replevied property, and generally to the manner in which the property described in said conveyance of September 19th, 1857, was disposed of and managed; tending to show that the said conveyance was executed for the purpose of hindering, delaying, and defrauding creditors.

The defendants also inquired of said Henry M. Bradley, whether he did not, on or about 21st of September, 1857, say to George W. Bullock, at his store, in Saginaw City, that the conveyance of September 19th, 1857, was made to gain time; and he denied that he so said. The defendants also introduced several other witnesses, whose testimony tended to prove the fraudulent character of said conveyance of September 19th, 1857.

The defendants also called George W. Bullock, who was duly sworn and the defendants offered to prove by him that the said Henry M. Bradley did, on or about the 21st day of September, 1857, in the store of the witness, at Saginaw City, say to witness that the said conveyance of September 19th, 1857, was made to gain time. It appeared on the cross-examination that said witness...