RAYMOND v. HINKSON.

Uri Raymond v. Samuel Hinkson and another.

Circuit Courts: Jurisdiction in actions ex contractu. In a suit commenced by attachment, the declaration set forth a justice's judgment amounting with interest to less than $100, and contained no other counts and no ad damnum clause. Held, inasmuch as the Constitution gives to Justices of the Peace exclusive jurisdiction in suits arising ex contractu, where the amount claimed is less than $100, that the Circuit Court had no jurisdiction of the cause, and the judgment was void.

Heard November 8th. Decided November 10th.

Appeal from Sanilac Circuit in Chancery.

The bill in this cause was filed by an execution creditor, who had purchased lands at sheriff's 'sale, to avoid a deed alleged to have been executed to defraud creditors. A decree was rendered in favor of complainant. The facts are stated in the opinion.

Mitchell & Chadwick, for complainant and appellee.

The want of the ad damnum clause, in the declaration, did not affect the validity of the judgment, as, if it was a defect, it is cured by judgment under the statute of Jeofails. The declaration could have been amended by supplying the defect at any time before judgment, and if so, the judgment would not have been set aside, even on error, for that reason.

But we insist that the ad damnum clause is immaterial, and may be omitted, and the declaration would not be demurrable for want of it, except as a matter of mere technical form.

But it is insisted that the ad damnum clause was necessary to give the court jurisdiction; we say the court obtained jurisdiction by the writ and affidavit, and if they showed an amount claimed, within the jurisdiction of the court, then the failure to state the same in the declaration is mere irregularity, and good by intendment. — 3 Mich. 466.

RAYMOND . HINKSON.

J. C. Wyllis, for defendants and appellants.

The judgment in the attachment proceeding is void, for the reason that the plaintiffs' declaration claims but $72.67, and of this claim Justice Courts have exclusive jurisdiction under the Constitution. Article 6, section 18. See, also, 2 Comp. Laws, §§ 3418, 3463.

The bill in this cause was filed by an execution creditor, who had purchased lands at sheriff's sale, to avoid a deed alleged to have been executed to defraud creditors.

The suit on which execution issued was commenced by attachment. The declaration set forth no cause of action but a justice's judgment, and did not contain any common counts nor any ad damnum clause. The defendant, Samuel Hinkson, was personally served with the writ, but did not appear. The judgment sued on, with interest, was less than one hundred dollars, as set forth in the declaration, at the time of commencing suit.

The Constitution gives to Justices of the Peace exclusive jurisdiction in suits ex contractu up to one hundred dollars. As the cause of action, and the amount claimed must be set up in the declaration, it follows, as a matter of course, that when that shows less than one hundred dollars to be claimed, it shows that the Circuit Court has no jurisdiction. No presumption can be raised in favor of a plaintiff against his own express allegations.

It follows that the judgment rendered upon this declaration was void, as the court had no jurisdiction over the cause. The other questions become of no importance. The decree below must be reversed, and the bill must be dismissed, with the costs of both courts.

The other Justices concurred.

МСКЕЕ г. OWEN.

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Rebecca A. McKee v. John Owen and others.

Common carriers of passengers: Liability for money stolen from passenger in room. Plaintiff took passage on the steamer of the defendants, and paid her fare, which included her board on the passage, a stateroom and lodging. She was assigned to the room by the proper officer of the boat; and another lady, a stranger to the plaintiff, was afterwards also assigned to the same room. Plaintiff, when she retired to bed, left her dress, in the pocket of which was her portemonnaie, with some personal jewelry and money for her traveling expenses, on an upper unoccupied berth. During the night, while the plaintiff was asleep, the money and jewelry were claimed to have been stolen, but whether by some one from without, or by the other lady within, did not conclusively appear, though the evidence tended to show that it was stolen from without, through a window, which the steward of the boat knew to be broken.

Whether the defendants were liable for the property if stolen, Quaere? The court being equally divided in opinion.

CHRISTIANCY J., COOLEY J. concurring, holding the defendants liable as carriers to the same extent as an innkeeper would have been for a similar loss by a guest occupying a room at his inn.

CAMPBELL J., the Ch. J. concurring, denying the liability.

The respective liabilities of carriers and innkeepers fully discussed.

Error to Wayne Circuit.

This was an action brought by plaintiff to recover of the proprietors of the steamboat "City of Cleveland" the value of certain personal property, alleged to have been stolen from her stateroom during a trip from Cleveland to Detroit. It appeared from the evidence that plaintiff took a cabin passage on defendants' boat from Cleveland to Detroit, and paid her fare.

She was assigned to a stateroom about 8 o'clock in the evening; whereupon she went into it, left some of her apparel there, and came out and locked the door.

Soon after, a lady passenger, unknown to the plaintiff, was also assigned to the same stateroom.

The plaintiff, before retiring, called the attention of the stewardess to a broken window, which looked out on the deck. The stewardess then placed a pillow in the broken part.

There were two berths in the stateroom. The foot of

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MCKEE v. OWEN.

the upper one could be reached through the window from the outside.

The plaintiff undressed, rolled up her dress in the pocket of which was her portemonnaie, containing $31.76, and a gold chain, worth $20-and placed it on the upper berth, near the foot; the stranger sleeping on the inner side of the bed.

Plaintiff, on being awakened during the night, by the wind blowing through the window, arose, found the pillow out of the window, and her dress unrolled and upon the floor. On moving the curtain, her portemonnaie fell from the edge of the upper berth, and was empty; money and chain being gone.

Plaintiff testified that the stranger could not have taken it without disturbing her.

On the part of the defendants, there was evidence given, tending to show that the boat had a full and competent crew, and that a proper watch was kept during the night; and that the freight was so piled against the window that no person could have committed the theft through the window without detection.

At the close of the trial, the counsel for the plaintiff requested the court to charge the jury as follows:

"1st. The defendants are common carriers, and are liable without any proof of negligence, and if the jury find that plaintiff took passage and paid her fare, and that fare included a stateroom, and plaintiff's money was stolen from the stateroom, where she had deposited it by placing it off from her person, in her own dress pocket (her dress being off during the passage), while off her person it is immaterial whether stolen by a person without or within the stateroom, and plaintiff may recover.

2d. Common carriers are liable for the loss of all money carried by the traveler for necessary or reasonable expenses of the journey, and if they find this amount was

MCKEE v. OWEN.

reasonable or necessary, and that it was stolen from the stateroom, she can recover.

3d. The purchase of a ticket for the passage, and the assignment of a stateroom to the plaintiff, was a notification to the person in charge of the boat of the intention of plaintiff to take passage, and this was a constructive delivery to and acceptance by defendants of the property of plaintiff, and plaintiff can recover."

The court refused to charge either of these points, and to such refusal the plaintiff's counsel then and there excepted.

The court then charged the jury, as follows:

"1st. That the defendants are common carriers, and are liable without proof of negligence, but that if the money and chain were retained in the personal possession of plaintiff, in the pocket of her dress, on or off, as in this case, the defendants had no such possession as would make them liable as common carriers.

2d. Common carriers are liable for a loss of a sum of money necessary for the expense of the journey, when carried with, and as a part of baggage; but when carried, as the evidence in this case shows it was carried, if stolen, the carrier is not liable.

3d. The purchasing of a ticket for the passage, and the assignment of a stateroom to plaintiff, was a notification to the person in charge of the boat, of the intention of plaintiff to take passage; but it was not such a constructive delivery to, and acceptance by, the defendants, of the money and chain of the plaintiff, under the facts in this case, as would entitle the plaintiff to recover for it, if stolen from her."

To each of which three charges, the plaintiff's counsel then and there excepted.

The counsel for the plaintiff then requested the court to charge that if the jury find defendants contracted to carry plaintiff from Cleveland to Detroit, the contract