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liability, he might be entitled to recover.

Such, however, is

not the legal construction of his agreement, in the light of the facts and circumstances under which it was entered into. Nor can the fact that the city has assessed, collected and still retains this 16 cents per yard, while under no obligation to pay any royalty, entitle these parties to it. Their contract gives them no such rights, and there is no equitable consideration which would give it them. Although the city may have no legal or equitable claim to retain this money, something further is required to entitle these plaintiffs to it. The right of the parties from whom it was collected would be far superior, and we may well assume that the city still holds this money for them, and that, upon settlement of all questions concerning the same. it will be paid back.

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

(The other justices concurred.)

FRANCES S. FISH, Impleaded, etc., vs. FIRST NATIONAL BANK OF DETROIT.

Filed November 29, 1879.

An indorsement of negotiable paper is a warranty of the title and genaineness of the paper transferred, and the indorsee, on being sued thereon, will not be permitted to defeat his own liability by denying the existence, validity or legality of the contract his indorsement has put in circulation. One taking negotiable paper in good faith need not examine into the genuineness of any of the indorsements except the last. An indorser of a promissory note, wishing to deny the receipt of notice of non-payment, sheld annex the statutory affidavit to his plea.-[En.

Error to St. Clair.

Whipple & Voorheis, for plaintiff in error.
Brown & Farrand, for defendant in error.

MARSTON, J. This action was brought by the bank to recover upon certain promissory notes, made payable to the order of I. N. Jenness & Co. and Frances S. Fish, and indorsed by them. The indorsement of Mrs. Fish was under and made after that of I. N. Jenness & Co. The defence set up is that at the time these notes were given and indorsed the firm of I. N. Jenness & Co. was not in existence, because of the death of Henry Fish, one of the members thereof; that if Mrs. Fish is liable upon these notes she is jointly liable with Isaac N. Jenness, and that if he is released, because there was no such firm, then she is released also. These v3-54 (no. vii)

(849)

notes were given to the bank to take up other notes upon which the firm name of I. N. Jenness & Co. appeared, that firm having done business with the bank previous to the date of the paper in question.

An indorsement admits all prior indorsements to have been duly made. It is said the indorsee warrants the title and genuineness of the paper he transfers, and that when sued he cannot deny the existence, legality or validity of the contract which his indorsement put in circulation, for the purpose of defeating his own liability. Edwards on Bills and Notes, 289, 291. This is strictly right. Parties dealing in such paper are not expected to be familiar with the signatures of the several indorsers. If satisfied that the last indorsement is genuine they are not required to look beyond, in the absence of a knowledge of such facts as would inpute to them bad faith in case they did not.

A person has no right to indorse paper, thereby making it negotiable, and offer it or permit it to be offered in the usual course of business, unless satisfied that the signatures previously appearing thereon are genuine. Mrs. Fish is not in a position in this case to escape liability upon the ground that the prior indorsement was invalid.

Mrs. Fish, in her evidence, denied having received notice of the non-payment of some of these notes. She did not annex to her plea an affidavit denying the fact of having received such notice, as required by the statute. 1 Comp. Laws, § 603. There was direct and positive evidence given on the trial, by the notary, of demand made, protest and notice thereof regularly mailed to the defendant, and the usual notarial certificate was attached to each of the notes.

The other facts are undisputed, and we discover no error. The judgment must be affirmed, with costs. (The other justices concurred.)

PEOPLE ex rel. JOSEPH L. HUDSON vs. JUDGE OF SUPERIOR COURT OF DETROIT.

Filed November 29, 1879.

Prohibition is a preventive remedy provided by the common law to restrain the action of courts in excess of their jurisdiction, or as to matters outside of their jurisdiction, may be applied for by either party, is granted not as matter of strict right but in sound judicial discretion, goes only to the excess of jurisdiction, can be resorted to only when other remedies are

ineffectual, and to authorize its issuance it must appear that the party applying has appealed in vain for relief to the court against which the writ is asked. On the facts in this case, and as the relator appears to have made no application for relief to the court sought to be restrained, writ of prohibition is denied.——| ED.

Application for writ of prohibition.

Don. M. Dickinson and Alfred Russell, for relator.

II. C. Wisner and G. V. N. Lothrop, for respondent.

MARSTON, J. On return to the order heretofore granted requiring the respondent to show cause why a writ of prohibition should not issue.

From a careful examination and consideration of all the facts set forth in the original and supplemental bills filed in the U. S. court it is apparent that the principal aim and object sought, if not indeed the only one, was, in the first instance, to prevent the prosecution of the case of Schwab v. Mathews et al., pending in the superior court, and, since judgment was rendered therein, the collection thereof.

The question of quieting and determining the title of Hudson, as assignee, to the goods seized, or the avails thereof, is but secondary, and even to that extent of doubtful good faith, If the latter were the real object there would be no necessity, or even propriety, in joining as parties complainants the defendants in the superior court case, some of whom were not even creditors of the bankrupts, or interested in the proceedings taken against them.

Be this as it may, however, and without adverting at length to the propriety or legality of seeking to set aside, and having declared null and void in this way a valid judgment of the superior court, we cannot, from the showing made, see how the assignee in bankruptcy can be at all delayed or obstructed in the performance of his duties by the judgment rendered in the superior court, or the efforts of the plaintiff therein to collect the same from the defendants in that case. The assignee is not a party defendant in that case, and is neither personally nor as assignee bound by the judgment. The payment of that judgment by the defendants therein, or its enforced collection against them, cannot take away or affect injuriously the assets of the bankrupts in the hands of the assignee.

There is no pretense made, in either the original or supplemental bill, that any person other than Schwab, as against the bankrupts or their assignee, claims the goods in dispute, or any part thereof, or interest therein, and payment or satisfaction of the superior court judgment effectually settles all

further claim by Schwab to the goods or avails thereof, thus leaving the proceeds thereof unquestioned in the hands of the assignee, to be distributed amongst the creditors of the bankrupts. How, therefore, the assignee or those he represents can be injuriously affected by the collection of that judgment is not apparent. True, those who indemnified the marshal, and those against whom the judgment was rendered, may be affected, but we do not understand it to be the duty of the the assignee to protect them. Certainly the bills filed do not proceed upon the theory of affording protection to those creditors who indemnified the marshal. The indemnifying creditors are not made parties in the equity cases, nor is relief asked in their behalf as such.

The marshal, and those who were joined with him as defendants in the case in the superior court, had an opportunity to be there heard. If they submitted themselves to the jurisdiction of that court, and permitted a judgment to be rendered against them, we do not consider or understand it to be one of the duties of the assignee in bankruptcy to relieve them from the consequences thereof. Should the assignee proceed, and the court determine and decree, that the title to the goods claimed by Schwab was in the assignee, and that they were a part of the assets of the bankrupts, how would the judgment rendered in the superior court in such a case affect the assignee? Would he thereupon have the right to apply for relief to prevent its collection against the defendants therein, and upon what grounds? The decree would be direction and protection to the assignee in the distribution of the proceeds of the goods, but would still leave the judgment of the superior court valid and binding as against the parties defendants therein.

We do not consider worthy of any very extended examination the right of the defendants in the superior court case to proceed in this way, either as sole complainants or joined with the assignee, to have set aside and declared void the judgment of a court of record, rendered against them in a cause of which the subject-matter was clearly within the jurisdiction of the court, and they were properly brought in, appeared, and given an opportunity to defend. The complainants, who were defendants in that case, have not sought either the proper forum or remedy for that purpose, nor have they made any case entitling them to any such relief. The judgment rendered against them must be held conclusive, and they cannot be allowed to revive the controversy in another

court and cause, for the purpose of raising the same questions there in issue and passed upon. Cooley's Const. Lim. 46, 47. Certainly this court should not lend its assistance, in the exercise of a discretionary power, to the aid of those defendants to proceed in another tribunal, to have declared null and void a judgment which this court has already declared valid and affirmed. Nor should we aid in this way a stranger to that case to prevent its collection, where his rights cannot be prejudicially affected thereby.

It

The writ of prohibition is a remedy provided by the common law to prevent the encroachment of jurisdiction. It is a proper remedy in cases where the court exceeds the bounds of its jurisdiction, or takes cognizance of matters not arising within its jurisdiction. It can only be interposed in a clear case of excess of jurisdiction, and may lie to a part and not to the whole. It simply goes to the excess of jurisdiction, and the application for the writ may be made by either the plaintiff or the defendant in the case, or, if more than one, by either, where the excess of jurisdiction affects him. can only be resorted to where other remedies are ineffectual to meet the exigencies of the case. It is a preventive, rather than a remedial process, and cannot, therefore, take the place of a writ of error, or other mode of review. It must also appear that the person applying for the writ has made application in vain for relief to the court against which the writ is asked. The writ is not granted as a matter of strict right, but rests in a sound judicial discretion, to be granted or not according to the peculiar circumstances of each particular case when presented. 8 Bacon's Ab. Title "Publication;" 3 Blackstone, 111; Appo v. People, 20 N. Y. 531; People v. Lenard, 7 Wend. 518; Arnold v. Shields, 5 Dana, 21; Washburn v. Phillips, 2 Met. 299; Ex parte Hamilton, 51 Ala. 62; Blackburn ex parte, 5 Pike, 22; High. on Inj. §§ 773, 765.

In the bill of complaint filed in the superior court Schwab, the complainant therein, prays that the defendants be restrained and enjoined, "B-From prosecuting or maintaining any suit at law or equity in any court save the superior court of Detroit, or a court appellate thereto, involving the controversy aforesaid." In so far as this asks, and the injunction issued thereon enjoins, the relator from proceeding in the United States court to quiet or determine the title to the goods turned over to him by the marshal, if it does, we are of opinion the relator would be entitled to

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