Truesdale ex rel. Owen v. Hazzard , 2 Mich. 344 ( 1852 )

By the Court, Pratt, J.

The County Court had jurisdiction of the subject matter of this suit, and form in pleadings was not required in that Court. The statute provides (R. S. of 1846, p. 379, Sec. 11,) “that declarations in actions ■arising upon contract, may be oral or in writing, and made without regard to any. form heretofore-.used, hut shall be a brief statement of the form of action, and the plaintiff’s claim or demand, setting forth the nature thereof; and if for money due upon contract, the amount so due after allowing all credits.” In suits upon this class of bonds, the plaintiff is especially required in declaring, to state his demand, and to aver that it was a subsisting lien on the vessel or boat seized, &c.; and to assign as a breach of such bond, the non-payment of the demand. (R. S., Chap. 122, Sec. 11.) The declaration in this cause fully complies with these general and special requirements of the statute. At common law it is only necessary in pleading, to state the facts with certainty to a common intent, so that they may be understood by the opposite party, the jury,.and the Court; and yet, says M!r. Chitty, “it must be confessed that it is difficult in practice to apply this rule to cases which often occur.” The declaration in this cause, when tested by this common law rule alone, must be adjudged sufficient, as it does set out the plaintiff’s cause of action with certainty to a common intent, .and otherwise contains all the substantive averments necessary to a valid declaration on such a bond at common law, and upon which the merits of the cause could have been fully tried.

The averments suggested by the demurrer, were not necessary, either ■at common law or under the provisions of the statute. The plaintiff had a right to rely on the bond, and to confine his declaration strictly to it.' The officer who issued the warrant for the seizure of the boat had jurisdiction of the subject matter, by statute, and upon application and complaint in writing, was authorized to issue the warrant. The recital in the bond of the proceedings before the officer, and which fully appears in the declaration, imports prima facie at least, a legal consideration for the execution and delivery of the bond by the defendants; and the plaintiff in declaring upon it, was not bound by any rule of pleading, -to aver any fact or matter not necessary for him to prove on the trial; ■and by no rule or principle known to the law could he be required, in •order to maintain his action on the bond, to prove the preliminary proceedings before the officer, or any other matter accruing anterior to the execution and delivery of the bond, and which, if proved, would constitute a defense to the action. If not required to make the proof, most - certainly he ought not to be required to aver it in his declaration. In •this class of cases it is only necessary under the statute, for the plaintiff to prove the execution of the bond and his claim or demand as set out in his declaration, to entitle him prima fade, to a recovery.

It is undoubtedly the correct legal doctrine, 'as established by this Court, in the ease referred to, (1 Doug. R., 384,) that inferior jurisdictions, not proceeding according to the course of the common law, are confined to the authority conferred, and can take nothing hy implication. Yet, it is difficult to perceive how that principle has any application to the cause under consideration. The County Court in which this action was brought, had jurisdiction of the subject matter of the suit, and pursued the authority conferred hy statute, in obtaining jurisdiction of the case and the persons of the defendants, as far forth as necessary' in this class of actions. And if the bond upon which the plaintiff instituted the suit is illegal and void, on the ground that the officer who issued, the warrant for the seizure of the boat, bad no jurisdiction, for the reason that the complaint was not in writing, or for the reason that the boat, at the time of the application, was not in the county of Wayne, how should the defendants have taken the advantage of it ? Not by demurrer "to tbe declaration. It was matter in defense, and must necessarily be made to appear aliunde tbe bond, and tlie defendants could only avail themselves of it by plea or special notice; this being the only legal way in which such defense could he interposed or made to appear. It is therefore the opinion of this Court that the demurrer to the plaintiff’s declaration is not well taken, and should be overruled by tbe Court below.

Let tbe case be certified accordingly.