Hickey v. Hinsdale

Decision Date05 December 1863
Citation12 Mich. 99
CourtMichigan Supreme Court
PartiesMaurice Hickey and another v. David M. Hinsdale

Heard October 14, 1863 [Syllabus Material]

Error to Wayne Circuit.

The action was replevin, by Hinsdale against Hickey and Bigelow who justified under an execution against Hinsdale, by virtue of which Hickey, acting as constable, and by direction of Bigelow, levied on the property replevied, which consisted mainly of household furniture. The execution was issued upon a judgment in favor of McBride, Robinson and Hoover, against Hinsdale as garnishee of Samuel Chamberlain, rendered March 1, 1858, for $ 249.58. On the trial, the defendants, as a part of their case, offered in evidence a paper in the words and figures following, to wit:

"I hereby agree to settle the claim of McBride, Robinson and Hoover, against me, as garnishee of Samuel Chamberlain within three days from this date, by paying to J. E. Bigelow attorney for said parties, the sum of twenty-five dollars, and giving him two promissory notes, one for $ 100 payable in ninety days, secured satisfactorily to said Bigelow, and the other for $ 125, secured satisfactorily to said Bigelow, payable in nine months, and that in case of a failure to perfect said settlement, that I will turn out the property levied upon by said Hickey, by virtue of an execution in said cause, to be applied in payment of said debt, except the $ 250 worth, and three stoves put up, selected by me as exempt by law.

"D. M. Hinsdale.

"Detroit, March 1, 1859."

The evidence being closed, the defendants submitted to the court, in writing, several propositions of law, deemed by them to be material to the case, and required decision upon the same; among which were the following:

"1. That the above writing signed by Hinsdale (which was admitted subject to objection) is competent evidence in the case. Defendants insist that it is competent as an admission of a levy by Hickey, and a selection by Hinsdale of the two hundred and fifty dollars' exemption; also, that it operates as an estoppel upon Hinsdale from replevying during the three days expressed in said writing, and also estops him from denying that all proceedings taken under the execution prior to said writing had been regular. Said writing is not void under the statute--it is not a bill of sale, mortgage or lien."

As to this proposition, the court found that the alleged contract of the plaintiff was competent evidence for some purposes; that it was not a valid and binding contract for the reason that no consideration appears upon its face, nor was proved, and also because the evidence showed that the attorney for the plaintiffs in that case, the said defendant Bigelow, had no authority to enter into such a contract on their part to compromise the judgment, and that it was an attempted compromise of the debt, and that an objection being taken to the admission of the alleged agreement, no attempt whatever was made to offer any evidence of a consideration, or of authority to Bigelow to make the compromise. The court found, further, that it was not an admission of the legality and regularity of the proceedings of the defendants; that it was not an admission of facts not appearing to have been known to the plaintiff at the time; that, as the evidence appeared, said paper could not operate as an estoppel, but that it would still have been void under the statute without the wife's signature, as a contract for the creation of a lien upon household furniture, and also upon certain articles in said inventory, which are exempt from execution by name.

"2. That the plaintiff can not recover, because the property was in his own possession at the time the writ of replevin issued."

As to this the court found, that the property having been levied upon on said execution, the levy not having been released the property remained in the legal custody of...

To continue reading

Request your trial
29 cases
  • Cann v. Cann
    • United States
    • Supreme Court of West Virginia
    • December 19, 1894
    ...... creating [40 W.Va. 160] no obligation; it is nevertheless. competent and admissible as evidence. Hickey v. Hinsdale, 12 Mich. 99; Ayres v. Bane, 39 Iowa. 518; Atkins v. Plympton, 44 Vt. 21; Reis v. Hellman, 25 Ohio St. 180; Huffman v. ......
  • Cann v. Cann
    • United States
    • Supreme Court of West Virginia
    • December 19, 1894
    ...may be implied, or for any reason creating no obligation; it is nevertheless competent and admissible as evidence. Hickey v. Hinsdale, 12 Mich. 99; Ayres v. Bane, 39 Iowa, 518; Atkins v. Plympton, 44 Vt 21; Reis v. Hell-man, 25 Ohio St. 180; Huffman v. Cart-wright, 44 Tex. 296. It is certai......
  • Vogel v. Shaw, 1659
    • United States
    • United States State Supreme Court of Wyoming
    • December 30, 1930
    ......Estoppel. cannot be relied upon to give effect to avoid contract. Scott v. Bush, 26 Mich. 418; Rodgers v. Lamb. Estate, 100 N.W. 440; Hickey v. Hinsdale, 12. Mich. 99; Lbr. Co. v. Wilson, 78 N.W. 338;. Percifield v. Black, 31 N.E. 955; Long v. Cross,. (Ind.) 21 N.E. 450; ......
  • Cann v. Cann
    • United States
    • Supreme Court of West Virginia
    • December 19, 1894
    ...promise may be implied, or so as for any reason to create no obligation; it is nevertheless competent and admissible as evidence. Hikey v. Hinsdale, 12 Mich. 99; Ayres v. Bane, 39 Iowa, 518; Atkins v. Plympton, 11 Vt. 21; Reis v. Hellman, 25 Ohio St. 180; Huffman v. Carticright, 44 Tex. 296......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT