Johnson v. Provincial Insurance

Campbell J.: The judgment below was rendered on a scire facias to recover upon further breaches of a bond which had passed into judgment against Roderick M. Chittendon, as [223] principal, and Hiram R. Johnson and Hiram R. Andrews, as sureties. The bond was given for the purpose of securing the insurance company, against the misconduct of their agent. Judgment was given on demurrer. It was alleged as error, that the breach set forth in the scire facias is the same or a part of the same set forth in the original declaration. The scire’facias avers that the money now claimed was received by Chittendon before the original suit, but that he concealed that fact from the company, and that they knew nothing of it when the judgment was rendered. The bond was given to secure an accounting, as well as payment; and this was necessary, for the obvious reason, that generally an insurance company has no means of discovering the receipt of money until the agent informs his principal of the fact. An agent can not be permitted to set up his own wrong to avoid a liability; and if he kept the company in ignorance of his receipts, he can not, on that ground, object that they have not acted as if they knew what they did not know. Our statute makes a fraudulent concealment of a cause of action a ground for excepting it from the Statute of Limitations (Comp. L. § 5372); — and if it avails for such a purpose, it must equally avail in a case like the present. The scire facias avers that it is a new breach, and gives the fraudulent concealment as a sufficient reason for not including it in the original pleadings and judgment. It is also objected, that the scire facias is not tested in the name of the People of the State of Michigan. It does run in the name of the People of the State of Michigan, and conforms in this regard to the English practice, and that of the United States Courts, and probably most of the State Courts. A writ is properly said to run in the name of the person or government from whom the command on the face of the writ appears to emanate. Had not the words “ in the name of the People ■ of [224] the State of Michigan” been inserted in the Constitution between inverted commas, so ’as to favor the idea that the phrase must be used verbatim,, no difficulty could arise in this case about it. Whether the Constitution can be satisfied by a substantial compliance has been left unnecessary for decision in the case before us, as the objection, which is purely technical, is itself insufficiently taken. The Constitution does not require writs to be tested in the name of the People. The statute requires them to be tested in the name of the Circuit Judge. It is the style of the writ which must be in the name of the People. Comp. L. § 4107. As the statute is express upon this subject, the defendant in error was justified in assuming that the objection, being pointed at the test of the writ, was not well taken. We are reluctant to allow a party to lose a ground of error which we can see he probably designed to take, merely because of a slip in missapplying a technical phrase, but the objection itself is so technical that we should not feel justified in allowing such to amendment as would rectify the slip to the overthrow of substantial justice. The other grounds of error were not pressed. Judgment must be affirmed, with costs. The other Justices concurred.