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MILTON H. KNAPP vs. SETH LEE.

Filed October 28, 1879.

A foreign executor may maintain an action in his own name upon a note, part of the assets of the estate, but payable to bearer, and in such action any offset defendant might have against such estate can be interposed. -[ED.

Case made from Muskegon.

James G. Campbell, for plaintiff.
Keating & Allen, for defendant.

MARSTON, J. Assumpsit was brought upon a promissory note executed by defendant, Lee, and payable to Mary A. Washburn or bearer. Mary A. Washburn, who resided in Ohio, died, and Knapp was duly appointed her executor by the probate court of Erie county under her last will and testament.

The action was commenced in this state by Knapp, as plaintiff, but not describing himself in any way as executor.

After plaintiff had introduced the note and given evidence as to the amount due thereon, and rested, counsel for defendant stated that as a defence they would show that the plaintiff was then a citizen of the state of Ohio, and executor under the laws of said state of the estate of said Washburn deceased; that plaintiff was not the owner of said note; that it was a part of the assets of the estate, and that plaintiff held such note as executor, but not otherwise. Evidence to this effect was introduced, and the court found such to be the facts. Counsel for defendant also stated that in defence they would show that defendant had a large claim against the estate, which they were prepared to prove as a set-off. The court held that the plaintiff could not maintain the suit thus brought in his individual name, and judgment was rendered accordingly.

We are of opinion that, under the showing made and facts. found, the plaintiff was entitled to recover. The note was payable to bearer, and was rightfully in the custody and possession of the plaintiff. Hovey v. Selring, 24 Mich. 232; Boyd v. Corbitt, 37 Mich. 252.

Admitting this note to be a part of the assets of the estate, the plaintiff would be accountable therefor officially in the court having jurisdiction over the estate of the deceased. The action brought in this state would be a bar to any future proceeding brought against the defendant on this note, and so long as it was the property of the estate any proper claim which the defendant had against the estate could be pre

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sented as a set-off in this action, equally as though the action had been brought by the plaintiff as executor. The defendant, therefore, is not and cannot be injured or prejudicially affected in any way, because of the manner in which this action was brought. If the note had not been negotiable, or if made payable to the order of the payee, and it had not been indorsed by her, then the action should have been brought by the executor as such.

The judgment must be reversed, with costs, and a new trial ordered.

(The other justices concurred.)

FREDERICK BUHL and others vs. JEROME TROWBRIDGE
and others.

Filed October 28, 1879.

The fact that the note offered in evidence contains indorsement of payments and protest not on the copies served, and on which the sheriff's certificate of service was made, is not a fatal variance. Such indorsements are not part of the note. Misspelling a defendant's name, not altering the sound, is immaterial. The technical error of swearing a jury to try the issue between plaintiff and all the defendants, where there is no issue for trial except with one, the other defendants not objecting, is a mere harmless blunder, not ground for reversal.-[ED.

Case made from Kent.

Simonds & Fletcher, for plaintiff.

J. Mason Reynolds for defendant.

GRAVES, J. This is a case made in the circuit court for Kent county, after judgment.

The plantiff recovered under the general counts in assumpsit, on a promissory note, and the defendant Holcomb suggests error. He pleaded the general issue, but the other defendants did not defend.

The note was made by "Jerome Trowbridge," and was indorsed by Leonard & Holcomb. On the trial of the issue against Holcomb the note was offered in evidence, and it then bore a receipt for $118 paid on it, and a memorandum stating that it had been protested for non-payment. These items did not appear on the copy served on Holcomb, or on that in which the sheriff made his certificate of service. For these variances Holcomb objected to the introduction of the note.

The exception is void of merit. These items were no part of the note. Harvey v. Eppinger 34 Mich. 29; 2 Bishop on Crim. P. 407.

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The accidental misspelling of the name of Trowbridge was wholly unimportant. The omission of the letter "w" produced no change in the sound.

A stipulation was made between plaintiffs and Trowbridge stating that, as he had been declared a bankrupt, the cause might be dismissed as to him. But he did not avail himself of it, and no order was ever entered.

An objection was made against any verdict by Holcomb's counsel, because the jury had been sworn to try the issue between plaintiffs and all the defendants, when, in fact, no issue had been joined with the other defendants, and also on the ground that the action had been discontinued as against Trowbridge, by virtue of the stipulation. As already stated Trowbridge had not elected to base any order on the stipulation, and he consequently remained a defendant in point of form.

The other defendants have not complained on any ground, and if the clerk, in swearing the jury, committed the technical irregularity of speaking of the issue as one between the plaintiffs and the other defendants, as well as Holcomb, it was a harmless blunder, and no one has been injured. There is nothing further worthy of notice. The judgment is affirmed, with costs. (The other justices concurred.)

GEORGE P. BLANCHARD vs. JAMES H. BROWN.

Filed October, 1879.

If a party has good grounds to believe the existence of facts authorizing an attachment, his writ, properly issued, is good, and the fact such attachment may be dissolved is not inconsistent with the existence of good grounds for his belief. Where, in an action for damages resulting from attachment, there is no legal evidence of want of good reason for the belief on which an affidavit of attachment is based, the court cannot assume that there was wrong done in suing out the writ. After seizure the property is in the hands of the officers, and where so in possession plaintiff is not liable for their acts after order for its restoration.-[ED.

Error to superior court of Grand Rapids.

D. E. Corbitt, for plaintiff.

O. C. Ransom, for defendant.

CAMPBELL, C. J. Plaintiff sued defendant for damages claimed to have resulted from a wrongful suit in attachment, under which plaintiff's property was levied on by the under sheriff of Kent county. The attachment was dissolved, and

the action of the circuit court commissioner was affirmed by this court on certiorari in November, 1878. Some facts were relied on to show a wrongful detention, which plaintiff claims to have been equivalent to a conversion, after the affirmance of the action of the commissioner.

The plaintiff on the trial proved a taking by the under sheriff under claim of an attachment, and of Brown's co-operation therein, and showed the value of the property. He introduced no other testimony.

The defendant then offered the affidavit and other attachment proceedings, which were admitted under objection. There is some difficulty in determining which party showed the subsequent proceedings, which included, in addition to the certiorari and affirmance of the commissioner's order, an order by the circuit judge staying proceedings under the dissolving order pending the certiorari. There was also evidence of what occurred after the affirmance of that order on which the claim of conversion is founded.

We cannot understand the reason for objecting to proof of the attachment proceedings, when plaintiff expressly declared on them as the chief ground of action. They were clearly admissible.

There was no allegation in the declaration of malice, and there was no proof whatever that Brown had not good reason to suppose Blanchard guilty of such conduct as justified him in suing out the writ. The record does not show on what allegations it was sued out. Under our statutes, if a party has good reason to believe a proper cause exists, his writ is good. It is not denied this showing was made. Counsel for plaintiff seem to have supposed that a commissioner, in acting on a petition to dissolve an attachment, must necessarily pass upon the question whether plaintiff had good reason for his belief. This is a mistake. The commissioner inquires whether the defendant has actually done what plaintiff believes him to have done. His exoneration of the defendant is perfectly consistant with the existence of good reasons for the plaintiff's belief in such guilt. The existence of reasons for plaintiff's belief is not necessarily in issue at all. Folsom v. Teichener, 27 Mich. 107.

Assuming, therefore, what we are not prepared to hold, without further consideration, that want of good reason to believe defendant's misconduct, where there is no malice alleged, is a ground of action, there was, in the present case, no legal evidence of that fact, and in the absence of such testimony it

must be assumed there was no wrong in suing out the writ.

The property, after levy, was under control of the officers, and not of the plaintiff in attachment, to see to the enforcement of the order of restoration which he had procured.

There was no evidence that Brown was responsible for anything but suing out the attachment, and no evidence that this was wrongful. We do not, therefore, deem it necessary to discuss the other law points which, in our opinion, are foreign to the record.

The judgment must be affirmed, with costs. (The other justices concurred.)

WILLIS H. COE vs. AUSTIN J. WAGER.

Filed October 28, 1879.

Services rendered on a farm by one while a member of the family, cannot be recovered for unless rendered under such circumstances as indicated that payment would be expected. Action by one of two lessees of a farm on shares against the landlord, to recover such lessee's share of the crops. Held, that the record did not show anything upon which a verdict in favor of plaintiff's right to the share claimed could be based. Where one lived. in common with and rendered services to another, upon an agreement and in expectation that he would succeed to the property of such person upon his death, which agreement was subsequently rescinded, held, that neither party could afterwards recover for anything rendered or furnished under such agreement while they were so living in common.

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CAMPBELL, C. J. This suit was originally brought before a justice upon the common counts, and on a special contract, whereby Coe, the defendant below, leased a farm which he owned to Wager and one William Otto, on the terms that Wager should have one-third of all the products and stock, with some named exceptions, the breach being a refusal to allow Wager to have his share and an appropriation of it.

The case set up on the trial was for services of Wager in person and with his team during the winter and spring of 1877, from February 10th to April 1st. In February, as he testifies, he made a contract with Coe for working his farm, whereby Coe was to furnish seed, and Wager and Otto to do the work, and each to have one-third of the yield. During the occupancy Coe and Wager, who had just become his sonin-law, with Wager's wife and Otto, lived as one family on the

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