This proceeding is a statutory one, and the court cannot go beyond the power conferred by the statute. The New York statute does not contain the provision in section 6615, reading, "Provided, this act shall not apply to property exempt from execution." The legislature has provided that certain property belonging to debtors shall be exempt from levy and sale upon execution. This right of exemption is recognized in the statute, and must be respected by the courts. When an order was made requiring the debtor to assign his exempt property, the court exceeded its authority. The order is reversed, with costs of this court to the defendant. The other Justices concurred. FRENCH v. CARDONI. EQUITY PLEADING-BILL-JURISDICTION-Waiver of OBJECTIONS. Defendant who files an answer to a bill in chancery, and allows the cause to go to decree, without suggesting that the bill was not properly filed and verified, cannot thereafter question the jurisdiction upon that ground. Appeal from Wayne; Lillibridge, J. Submitted January 25, 1899. Decided February 21, 1899. Bill by James R. French against Frank A. Cardoni to enforce a mechanic's lien. From a decree for complainant, defendant appeals. Affirmed. Franklin L. Lord, for complainant. John H. Powell, for defendant. MOORE, J. The complainant obtained a decree under the provisions of the mechanic's lien law against defendant for work done by him upon a building constructed upon lots owned by defendant. In December, 1893, complainant served a statement of his account and his claim of a lien upon defendant. In June, 1894, he filed upon the chancery side of the court a bill of complaint for the purpose of enforcing his lien. Defendant filed a sworn answer to said bill, in which its various averments are denied. A replication was filed to the answer, and notice was given of a hearing in open court. The record does not disclose that any objections were made to the pleadings. After a hearing, Judge Lillibridge rendered a decree in favor of .complainant. In this decree there was a defective description of the property to which the lien should attach. The solicitor for the defendant consented that the description of the property in the decree might be amended so as to follow the description in the bill of complaint. The bill of complaint purported to be filed by James R. French, and, after the stating part and a prayer for relief and a prayer for process, it ended as follows: "And your orator will ever pray. Albert E. French." It was verified by Albert E. French, who swore "that deponent is the agent of James R. French for the purpose of filing the said bill." It is now said that the bill was not properly filed and verified, and for that reason the court did not get jurisdiction of the case, and the bill should be dismissed. The case having been tried, after all the pleadings were in, without any suggestion of a want of jurisdiction, we think it too late now to question the jurisdiction of the court. Salisbury v. Miller, 14 Mich. 160; Cleland v. Casgrain, 92 Mich. 139. The decree is affirmed, with costs. The other Justices concurred. 119 404 125 343 PEOPLE v. MENDENHALL. BIGAMY-COMMON-LAW MARRIAGE. A married person who contracts a common-law marriage is guilty of bigamy equally as if the second marriage were attended with the statutory formalities. Error to Jackson; Peck, J. Submitted February 10, 1899. Decided February 21, 1899. Augustus C. Mendenhall was convicted of bigamy, and sentenced to three years' imprisonment in the state prison at Jackson. Judgment affirmed. John F. Henigan, for appellant. Horace M. Oren, Attorney General, and Charles H. Smith, Prosecuting Attorney, for the people. MONTGOMERY, J. The respondent was convicted of the crime of bigamy. The only substantial question raised is whether the offense is committed by one who, being married, contracts a common-law marriage lacking the formalities which the statute prescribes for the solemnization of marriages. The testimony on the part of the people tended to show that the respondent and the complaining witness, Bertha A. Poyle, entered into an agreement in writing as follows: "I, Augustus C. Mendenhall, do hereby solemnly agree to take Bertha A. Poyle as my wedded wife, to live together in the holy estate of matrimony, to love her, comfort her, honor and keep her, in sickness and in health, and, forsaking all others, keep her only, so long as we both do live. "I, Bertha A. Poyle, do hereby solemnly promise to take Augustus C. Mendenhall as my wedded husband, to live together in the holy estate of matrimony, to love, honor, comfort, and keep him, in sickness and in health, and, forsaking all others, keep him only, so long as we both do live. "AUGUSTUS C. MENDENHALL. "BERTHA A. POYLE." It was shown that this agreement was signed in the presence of witnesses; and that, acting on this agreement, the parties immediately commenced to cohabit as husband and wife, and continued to so cohabit for some weeks, when the complaining witness learned of the former marriage of the respondent. The circuit judge charged the jury: "If you find from the evidence, and beyond a reasonable doubt, that Bertha Poyle entered into the contract in question in good faith, for the purpose of creating the marriage relation between her and Mendenhall, and not for the purpose of establishing or covering up unlawful sexual intercourse between them, and that she did this without knowledge or information that Mendenhall had a prior wife living, from whom he was not divorced, and that the marriage contract so entered into was followed by marital cohabitation, submitted to by her in good faith, supposing she was his lawful wife by virtue of such contract, then you should regard the second marriage charged in the information as sufficiently proven; otherwise, you should not." The respondent's counsel stated his claim as follows. "The presumption of a valid marriage from the circumstances of cohabitation and the declaration of the parties, while it may be conclusive where there is no impediment in the way, yet we apprehend that where, as in this case, there is an impediment, to wit, a first marriage, and that impediment is proven, what is at most lewd and meretricious cohabitation cannot, by a humane presumption of the law, be converted into a predicate for the second marriage required under the statute of bigamy." It is a settled rule in this State that a marriage in fact may be shown by proof of an agreement between two persons of opposite sex to take each other presently as husband and wife, consummated by cohabitation. Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164); Clancy v. Clancy, 66 Mich. 202; People v. Loomis, 106 Mich. 250. It follows that such informal agreement constitutes a marrying, within the meaning of section 9280, 2 How. Stat. It is none the less a marrying because one spouse is already married. It is true of every case of a bigamous marriage that the second marriage is void; and, as was said in People v. Brown, 34 Mich. 339 (22 Am. Rep. 531), it is the entering into a void marriage while a valid marriage exists which the statute punishes. In Bish. Stat. Crimes, § 592, it is said, "In a State where mutual consent alone constitutes matrimony, as with the first marriage, so with the second,-no added formalities need be shown." See, also, Hayes v. People, 25 N. Y. 390 (82 Am. Dec. 364). 119 119 406 NOWLIN LUMBER CO. v. WILSON. 1. LICENSE-PRIVILEGE CONFERRED BY LETTER. Permission granted by letter to a lumber company to build a logging road across the writer's land is a mere license, and not a lease, where exclusive possession is not purported to be given to any part of the premises, no rent is reserved, and no consideration paid or promised for the right conferred, which the letter calls a "privilege." 2. EASEMENT-How ACQUIRED. In order to establish an easement, where there is no claim to a prescriptive right, a valid grant must be shown. 3. ESTOPPEL-LAND TITLES--STATUTE OF FRAUDS. Title to land cannot, in view of the statute of frauds, be acquired through estoppel. 4. SAME-REVOCATION OF LICENSE. A gratuitous license to a lumber company to construct a log |
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