BRACKETT v. SEARS. given for or without an immediate equivalent. If given in exchange for cash or other securities they would not of course be credited. But if lent, then they should be credited on account as advances. The mortgagees produce in turn a large amount of paper, which would apparently be chargeable against Scars, but which they do not claim to be due; and they say that these checks and the paper in their hands were exchange items, so far as they ever had them, and never went into account, because received and given for an immediate equivalent. Upon a careful consideration of the whole case we think the accounts kept by the Libbys are correct. Sears has not produced any satisfactory proofs to counterbalance the circumstances against him, and upon the documents alone, without the admissions of complainant and the Libbys, the balance against him would be much larger. We, therefore, reject these disputed items-regarding the finding in the Circuit Court as correct. The next set of items embrace the professional account of Sears. He claims payment for his services as counsel in several suits before and since the settlement of November, 1857. The previous services were not rendered to the firm of J. S. and W. P. Libby, but a part to J. S. Libby, and a part to Joshua F. Bridge and Samuel J. Bridge. We find no sufficient proof of any agreement by the firm to pay these claims, if they were not- as seems probableincluded in the settlement. Nothing but a distinct agreement, upon a valid consideration, could raise a legal liability to pay such debts. The same remarks will apply to the charges for services subsequently rendered, not to the firm, but to individual partners or to other persons. And as there is no sufficient and clear proof of any such liability while the mutual relations of the parties may have given some reason for expecting such allowance, we can not create a debt out of such premises. BRACKETT v. SEARS. From a computation it would appear that the commissioner allowed all of complainant's charges against the firm at the sums claimed, except in relation to seven foreclosure suits in favor of David Gould, and three suits in ejectment. It appears that in both of these instances the cases were dependent by agreement upon one hearing. This being so there was no propriety in allowing each to be charged for as a separate suit fully argued. If each suit argued was worth $300, as charged, we think the extra sum of $50 for completing the business in the other cases dependent on it was, so far as the testimony shows, a sufficient compensation. In the absence of proof that the business involved extra trouble, we are not disposed to change the allowance. We do not consider the testimony concerning the alleged mismanagement of the suits, as the counsel employed — who were better acquainted with them than the parties-have not shown any plain case of misconduct or unmistakable fault. The Libbys, who appeal from the decree allowing these items, insist not only on their being excessive, but also that they refer to services subsequent to the assignment of the mortgage. As the assignment was by way of security, and the allowance of these claims leaves enough to pay the complainant in full, we think the balance in his hands as trustee for the Libbys or their assigns was properly subject to these set-offs, which are within the rule of equitable set-offs, and should be governed by the principles applicable thereto. The Libbys were equitable owners of the surplus interest in the mortgage after, as well as before, the assignment, and it should be subject to these accounts which do not seem to have changed their character as mutual dealings. The only remaining question is concerning the allowance of a commission of one thousand dollars to the Libbys for their trouble. The charge of such a commission can not be maintained 15 MICH. -R. BRACKETT V. SEARS. unless upon some understanding between the parties, as it is very clear that this is not a case of ordinary brokerage. Each party was in the habit of freely endorsing for the other, and of exchanging paper. And in relation to a very large portion-if not all-of the charges for money, the Libbys appear to have been lenders and not brokers. Sears swears positively that there was no agreement or understanding of the kind. The only one set up was in relation to the specific sum of $1,000, which William P. Libby swears he proposed to Sears soon after the settlement in 1857, which he says Sears thought rather high but not unreasonable. It is somewhat difficult to understand how this can be possible. At that time there had been no considerable amount of business since the settlement. If it related to business done before, then it is very singular it was not mentioned during that settlement. But Libby swears that all previous services were settled by Sears giving up his accounts against the Bridges and Libbys for anterior professional services. It could not have related to the future, because the business could not be calculated, and indeed they claim full additional commissions at the rate of five per cent. This sum was never entered upon the books, which contain none of the charges for commissions, and no account was ever rendered to Scars containing any such items. Whether proper or improper, we can not but regard this charge as an afterthought. Nor do we think it admissible. The balance of advances between Sears and the Libbys never approached the amount of the bond and mortgage. Under the terms of their receipt they had bound themselves to pay for the mortgage unless they saw fit to return it, and could not charge for such moneys; and we can not believe that it could have been supposed by any of the parties occupying these very peculiar mutual relations that such a one-sided arrangement existed as is now relied on. We think the commissions charged and allowed in favor of the Libbys should be struck out. The PATTRIDGE v. LOTT. As the con decree in other respects should be affirmed. The decree of this court will be entered on these principles. The other Justices concurred. Adam W. Pattridge v. Chauncey Lott. Justice's Court: Judgment of nonsuit: Appeal: Statute of limitations. Where a cause was adjourned in a justice's court, by consent of parties, before any pleadings were made, and the justice on the adjourned day refused to proceed with the cause, it was held that such refusal might be treated as a judgment of nonsuit, and that an appeal would lie therefrom. And where such appeal was dismissed by the Circuit Court, it was further held that it must be regarded as an avoidance of the action for matter of form, and that the time for further suit ran from such dismissal. Decided January 14th. Heard January 10th. Case made from Clinton Circuit. This was an action on a promissory note. The defense was the statute of limitations. Judgment was rendered for plaintiff. R. Strickland, for plaintiff. S. Hoyt, for defendant. CAMPBELL J. Plaintiff sued upon a promissory note dated August 25th, 1857, and maturing on the 4th of March, 1864. Defendant set up in defense the statute of limitations. 15 251 124 333 PATTRIDGE v. LOTT. Plaintiff sets up in avoidance of this that he brought suit within the six years, which was avoided and defeated for matter of form, and that the present suit was begun within a year after such avoidance. Defendant, on the other hand, claims that he did not sue within a year after his former suit was rendered nugatory. The facts show that a suit was brought before a justice of the peace on the last day allowed by law, and, defendant being duly served, both parties appeared at the return day, when, on account of a death in plaintiff's family, the case was adjourned over for several days by consent. Upon the adjourned day, the justice refused to take any further steps whatever, or to call on the case, alleging, that, inasmuch as there was no pleading before the adjournment, and it was not granted by himself for cause shown, he ceased to have jurisdiction. Plaintiff then appealed the cause to the circuit, where, after about a year, it was dismissed for want of jurisdiction, on the ground that no judgment had been rendered by the justice, from which an appeal would lie. It is now claimed by the defendant that the appeal was void, and that the year of grace ran from the time when the suit before the justice became defective. We think there is no foundation for this pretense. The action of the justice in refusing to allow plaintiff to proceed with his case was equivalent to a judgment of nonsuit, and must be so regarded. It was entirely unjustifiable, as a continuance by consent under the circumstances meant a continuance of the cause in its then condition, and the parties consenting, could not afterwards revoke such consent. Such consent is clearly sufficient cause within the statute, and the justice could not disregard it. The fact that nothing was said expressly about postponing the time for pleading amounts to nothing, as the continuance must necessarily leave it in statu quo, without some agreement to the contrary. |