Abstracts of Decisions of the Supreme Court rendered at the

October Term, 1871.

THE MANSFIEld, Coldwater AND LAKE MICHIGAN RAILROAD COMPANY vs. CLARK.

1. In condemning lands for railroad purposes, questions of title are not to be considered by the jury.

2. The report of the jury or commissioners must distinctly set forth the necessity of the taking, and they cannot properly make one which will warrant the taking of the land unless satisfied not only that the particular land is needed for the construction of the work, but also that the work itself is one of public importance.

3. The proper course when a jury is required of persons of a particular qualification is for the order to direct the summoning of such persons.

Appeal from Branch Circuit.

Opinion by COOLEY, J.-This was an appeal from the finding of a jury in the matter of condemning land for railroad purposes.➖➖➖ The petition does not clearly show that Clark owned the premises in question. The jury appear not to have fully understood the matter, but inasmuch as Clark "claimed" to own this piece of land they assessed the damages they thought him entitled to; but whether they gave him the value of the land, or only the value of some doubtful claim, does not appear. It is not claims" which are to be appropriated under the statute, but lands. A party might be seriously wronged if his freehold might be taken on an award of the jury of a mere nominal compensation because of their want of faith in the validity of his title. Questions of title are not to be determined by this jury, but may come up in a procceding to settle the right of the money awarded.

Held, Also, that the verdict of the jury is defective in that it does not find the necessity for the taking of this property for the public use. What they say is that "it is necesssary that said real

NEW YORK CENTRAL INSURANCE COMPANY rs. WATSON.

estate and property should be taken for the purposes of said company." This is not the finding required by the constitution either in form or substance. The report of the jury or commissioners must distinctly set forth the necessity of the taking, and they can not properly make one which will warrant the taking of the land unless satisfied not only that the particular land is needed for the construction of the work, but also that the work itself is one of public importance.

Held further, That the objection that the jurors are not affirmatively sworn to be freeholders is not well taken. No challenge was interposed, nor was there any showing that any of the jurors were disqualified. On the contrary the claimant expressed himself satisfied with the jury when they were impaneled. Had there been no appearance of the claimant, or no facts operating as a waiver, the case would have been different. The proper course when a jury is required of persons of a particular qualification is for the order to direct the summoning of such persons. This is only an ordinary application of the general and very first rule, that in proceedings to take the property of the citizen against his will, all the conditions to the taking which have been prescribed by the law must affirmatively appear to have existed.

The proceedings in this case being void they are set aside with

costs.

NEW YORK CENTRAL INSURANCE COMPANY vs. WATSON.

A clause in a policy of insurance provided that the same should be void in case any other insurance should be made upon the property without the written consent of the company, Held, That subsequent insurauce without such written consent rendered the first policy void.

Error to Wayne Circuit.

Opinion by CAMPBELL, C. J.-Two policies of insurance were issued by plaintiffs in error to Martin & Longhead, by whom, after

RAMSAY US. KITTREDGE.

a loss, they were assigned to defendnt in error, who sued and recovered judgment upon them in the court below.

They contained, among other things, a clause rendering them void in case any other insurance had been made or should be made upon the property and not consented to in writing by the company. After they had been executed and become operative, another insurance was effected with the Republic Insurance Company, and never consented to in writing On the trial the Circuit Judge, under exception, left it to the jury to determine whether or not there had been any waiver of this condition or of the forfeiture under it.

Held, That there was nothing in the case to authorize this matter to be submitted to a jury. As already held in Western Insurance Company vs. Riker, 10 Mich., 279, and Security Insurance Company, vs. Fay, in our reports, the policies became absolutely void at once upon the obtaining of the last insurance without consent. Nothing could waive the defect except a new contract upon a valid consideration, or such conduct as by misleading the insured to their prejudice, would operate as an estoppel. The case shows no features of this kind.

The objection that the subsequent insurance was not proved has nothing to rest upon. The fact that more property was included in the Republic policy is immaterial. The deliberate statement of this policy in the proofs of loss dispensed with any other proof of it. and the rule that the proofs are no evidence in favor of the insured does not preclude them from operating as admissions.

Judgment reversed with costs, and a new trial granted.

RAMSAY US. KITTREDGE

The statute provides that, "If upon the trial of any cause the plaintiff's claim shall be reduced by set-off, or any other fact shall appear which will entitle either party to costs ot to double costs, the Judge holding the court shall, upon the application of either party, either before or after verdict rendered, cause an entry to be made in the minutes of the court specifying that such fact appeared; and no evidence shall be received by any taxing officer of such matter other than a certified copy of such minutes or the certificate

RAMSAY US. KITTREDGE.

of the Judge who tried the cause.'

Held, That the nature of this provision very clearly imported that in the order of proceedings the application for the entry, if not the entry itself, should be made before judgment and not after it in order to apply to the judgment.

Error to St. Clair Circuit.

Opinion by GRAVES, J.-Ramsay sued Kittredge in general assumpsit and the case was tried without a jury. The trial commenced at the May term of 1367, and was concluded at the January term of 1869. No special finding was made, but at the April term of 1869 judgment for the plaintiff was entered for damages, $96 35 and costs. At the ensuing September term the record was amended by an entry in the case in these terms: "It appearing to the Court that there is an error in the entry of the judgment in this cause on the 23d of April, 1869, in so far as the said record purports to give costs to said plaintiff, it is hereby ordered that said entry be corrected so that the said defendant shall recover his costs and charges by him about his suit in that behalf expended, to be taxed. That the damages to said plaintiff shall be deducted from the amount of costs to be taxed by said defendant as aforesaid, and that said defendant do recover the residue of his costs and charges. and that he have execution therefor."

The record having been so amended, the plaintiff, subsequently, and in January last, sued out this writ of error, and the error he alleges, is that costs were awarded to the defendant. But as the judgment upon its face is regular, and does not appear to be subject to the objection taken, the plaintiff in error relies upon another paper found in the return to support his assignment of error and impeach the judgment. That paper is omitted in the cause, and seems to have been made some time after the judgment. It is without date, and was evidently framed under section 5636 Compiled Laws. It reads as follows: "On the application of Messrs. Conger & Harris, plaintiff's attorneys in the above entitled cause, 1, James S. Dewey, Circuit Judge, who held the term of said court at which the above entitled cause was tried, and who rendered judgment in the same, hereby certify that upon the trial of said cause, the claim of the plaintiff as established exceeded the sum of $200; and the same was reduced by set-off to the sum for which judgment was rendered, and I hereby direct that an entry that such fact appeared be mile in the minutes of said court, of said trial." The

RAMSAY US. KITTREDGE.

section supposed to authorize this paper is a part of the statute regulating the taxation of costs, and is as follows:

"If upon the trial of any cause the plaintiff's claim shall be reduced by set off, or any other fact shall appear which will entitle either party to costs or to double costs, the Judge holding the court shall, upon the application of either party, either before or after ver dict rendered, cause an entry to be made in the minutes of the court specifying that such fact appeared; and no evidence shall be received by any taxing officer of such matter other than a certified copy of such minutes or the certificate of the Judge who tried the cause."

Held, That the nature of this provision very clearly imported that in the order of proceedings the application for the entry, if no t the entry itself, should be made before judgment and not after it in order to apply to the judgment. It is the judgment which determines which party is to recover costs, and not the certificate of the Judge; and the taxing officer, with or without the certificate, has no power to tax contrary to the judgment. In cases where the statute applies, the entry is needed to show which party is to recover costs, or double costs, in order that the judgment upon the facts contained in such entry may be put in proper form; and hence the entry which is to furnish the information for constructing the judgment ought to precede and not follow it. The judgment being one regularly made, and entry or certificate framed on this statute could have no influence on it

The terms of the statute also indicate that the application and entry consequent upon it should be made before judgment. The application is to be made before or after verdict to the Judge holding the Court, but not after judgment. It was intended to allow the application to be made at any time between the close of the evidence, when the Judge would be possessed of the facts, and the time for entering judgment, when the facts would be needed to fix the character of the judgment. As the application in this instance and the certificate founded upon it, were made after the judgment, the certificate is not legally adequate to impeach or affect the judgment or writ of error.

No opinion was given on the power or duty of the Circuit