52 528 87 464 The so-called note being no more than a simple contract, not a note, and without negotiability, could only be transferred by assignment; and the endorsement "pay to Thomas Story" on the contract, does no more than transfer the right to recover the money payabie on the instrument, and the right to sue therefor, to Story. It is not an unusual way of transferring such claims, but such endorsement imports no legal liability on the part of the endorser to pay the amount of the claim in case of failure by the debtor. This would be giving the endorsement the character, and subjecting the maker of it to the liability, of the endorser of commercial paper. The amended declaration counts upon such liability, and it cannot be sustained by the facts. The circuit judge submitted the case to the jury upon the theory that the defendant might be held under the contract of endorsement, but the ruling was erroneous. The error is radical. There is no count in the declaration against the defendant as guarantor of the paper, and if there was it is difficult. to see how it could be supported under the circumstances as they appear upon the record. We can see no ground upon which the judgment can be sustained. It must be reversed and a new trial granted. The other Justices concurred. 52 528 90 324 52 528 116 498 116 595 TOWNSHIP BOARD OF BEAVER CREEK V. THADDEUS E. Town board meeting. Meetings of a township board, unless duly called and notified, are not legal if not attended by all the members. Mandamus. Submitted and denied January 29. Main J. Conine for relator. PER OURIAM. Motion for mandamus to compel the respondent, who is township clerk of Beaver Creek, to enter upon the records of the township the proceedings of a meeting of the township board. Held, that no meeting of the township board could be legal which was not attended by all the members, unless it appeared that the meeting was duly called and notified. The mere attendance of a quorum does not make a legal meeting, but every member has a right to be present and participate in its action. Mandamus denied. ELI FREDERICK V. CIRCUIT JUDGE FOR MECOSTA COUNTY. Replevin from sheriff—Mandamus to correct judgment entry. 1. Where goods held by the sheriff under an attachment or execution are taken from him on writ of replevin a judgment in his favor, before the attachment proceedings are decided, must be for the return of the property and not for the special value of his lien; and if the judgment has been erroneously entered mandamus will lie upon a seasonable application to change the journal entry thereof accordingly, unless such change will prejudice the rights of strangers. 2. A judgment, the entry of which was corrected by mandamus, was ordered to take effect from the date of the correction, so that full opportunity to ask for a review thereof might be saved. 3. Costs were not allowed on mandamus where the occasion for its issue was the error of relator's counsel. Mandamus. Submitted January 18. Granted February 6. Glidden & Marsh, Geo. W. Mead and Corbin & Cobb for relator. J. H. Palmer and M. Brown for respondent. Mandamus will not lie to change a verdict or alter the note of it to correspond with facts, nor to compel a court to alter its 52 MICH.-34 record to correspond with facts shown by affidavit: High Ext. Leg Rem. §§ 153-4; a court may set aside a verdict but cannot alter it: Wells on Replevin § 741. CHAMPLIN, J. We are all of opinion that a peremptory mandamus should issue in this case. The action out of which these proceedings arose was replevin brought by one Nathan Wolf against Frederick, who, as sheriff of Mecosta county, had served attachments against the goods of one Abram Markson. These attachments were three in number, issued on behalf of different plaintiffs, two of them bearing teste January 20, and one January 22, 1883. The sheriff seized the goods on the 23d of January, and afterwards, on the same day, Wolf replevied the goods from the sheriff. Issue was joined in this cause, and the sheriff gave notice, under his plea, of his special interest in the goods as sheriff by virtue of the attachments, and other special matter of defense. The replevin suit came on to be tried May 15, 1883, before judgments had been obtained in the attachment suits, and resulted in a verdict for defendant, and also that he had a lien or special property in the goods by reason of the several writs of attachment, specifying them; and they also found that the plaintiff was the general owner of the goods subject to the attachment liens of defendant, and that the defendant did not unlawfully detain them. It appears that before the cause was submitted to the jury, the attorneys for the defendant expressly waived a return of the property mentioned in the writ, and elected instead thereof to take a judgment for the special interest of the defendant. This was erroneous. Section 6754, Comp. L. 1871, (How. St. § 8342,) provides: "When either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property or part ownership in, the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damnages, in all cases arising under this chapter; and the finding of the jury, or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judg ment as shall be just between the parties." This section must be construed in connection with § 6763, (How. St. § 8351) namely: "If any goods or chattels which are replevied had been attached, they shall, in case of judgment for a return, be held liable to the attachment, until final judgment in the suit in which they were attached, and for thirty days thereafter, in order to their being taken in execution; and if such final judgment be rendered before the return of the property, or if the property when replevied was seized and held on execution, it shall be held subject to the same attachment or seizure for thirty days after the return, in order that the execution may be served thereon, or the service thereof completed, in like manner as it might have been if such property had not been replevied." was. It is apparent from the foregoing sections that in the plight in which this case was at the time of trial, no judgment for the value of the special interest of the defendant in the goods could be taken. There was no way of determining at that time what the value of his special interest No judgment had been obtained fixing the amount, and it was legally possible that no judgment would be obtained at all, in which case his special interest would at once cease. It is evident that the section of the statute first above cited refers to liens other than those of attachment or execution, while the latter section controls in all cases where goods are held by attachment or execution, and in the latter case the only judgment that can be taken is for a return of the property. The design of the law is to protect the rights of parties by restoring the goods to the hands of the officer in order to enable him to complete the execution of his process which had been obstructed by the proceedings in replevin. Parties are thus enabled to try the title and ownership of the property seized and the liability of the same to be taken in execution or attachment, and while these proceedings are in progress the goods may be considered as in custodia legis. If the officer's lien is established by showing that the goods were liable to be seized as the property of the debtor, they are to be returned to him; otherwise not. The statute in this respect is mandatory, and it is the duty of the court in such cases to render a judgment for a return of the property. When, therefore, in this case the defendant's attorneys discovered their error, and moved the court for leave to withdraw the waiver of judgment for a return of the property, and that judgment be entered for a return of the property taken under the writ of replevin, he should have granted the motion. Instead of this he denied the motion with costs, including an attorney fee of ten dollars, and seeks to justify his action "upon the ground that the said circuit court had not the power to change the said verdict of said jury and the judgment that had been duly rendered and entered thereon, and to substitute in its stead a new and different verdict, and to render and cause to be entered another and different judgment thereon." The verdict and judgment referred to as entered in the journal of the court [and as given in the court's return to the order to show cause in this case] read as follows: NATHAN WOLF V. The jury heretofore impaneled and sworn in this cause sat together again and heard ELI FREDERICK. the arguments of counsel and the charge of the court, retired from the bar under the charge of Thomas Shaw, Sr., an officer of court duly sworn for that purpose, to consider of their verdict to be given, and after being absent for a time, return into court and say upon their oath that the said defendant did not unlawfully detain the goods and chattels mentioned, in manner and form as the said plaintiff hath in his declaration in this cause alleged, and the jury by whom the issue joined in this cause was tried having found, by their verdict, that the said defendant did not unlawfully detain the goods and chattels in the said plaintiff's declaration specified as is therein alleged, and the said jurors having further found that the said defendant has a lien upon or special property in said goods and chattels by reason of a certain writ of attachment issued out of this court, wherein Sydney A. Cushing, Moses W. Thompson, Charles A. Olmstead and Lovell S. Snow are plaintiffs, and Abram Markson is defendant, and a further lien or special property in said goods and chattels |