tion of all judicial business until July, 1836.

There was no difficulty about this, because the Territory of Michigan was larger than the State, and included, in addition to what became the State, what is now Wisconsin and the country westward of it. The Territory of Wisconsin was not organized till July 4, 1836.

Judge Morell was re-appointed Territorial Judge in 1836. He was also appointed a Judge of the State Supreme Court in July, 1836, and thereafter acted, not as Territorial but as State Judge continuously. The last act of the Territorial Judges in Michigan was in the beginning of July, before the Territory of Wisconsin was set off. A board consisting of the Governor and Judges of the Territory of Michigan had immediately after the destruction of the old town of Detroit in 1805 been vested with authority to settle titles and dispose of lots in the city. A corporation known as the Detroit Young Men's Society, which filled for many years an important place in the literary advancement of the community, was incorporated by the State Legislature, and to this State corporation the Territorial Judges granted a lot of land in Detroit. This was the last occasion on which they met officially.

The State Supreme Court, appointed in July, 1836, was made up of William A. Fletcher as Chief Justice, and George Morell and Epaphroditus Ransom as Associate Justices. The Judges then performed circuit duties, and Judge Morell's circuit included the eastern counties. The amount of business was very great. The country was full of speculative undertakings, and corporations were created in great numbers. When the crash came, and until the Bankrupt Law, passed in 1841, took effect, the courts were crowded with litigation, involving all sorts of questions. The work of Judge Morell's circuit, which was much the largest, was done promptly and thoroughly. He was a completely trained and ready lawyer, prepared to deal correctly and at once with the

questions arising on trials, and the business of his court was disposed of to the general satisfaction.

Although not a native of New York, he received his legal training there, where his cotemporaries and immediate associates included William L. Marcy, Judge Nelson and Chancellor Walworth. The New York Revised Statutes were passed, and the practice under them became to a considerable degree settled during his professional career in that State. He had always a peculiar aptitude for methodical proceedings, and became thoroughly familiar with pleading and practice under the new system then perfected. The extent of his influence may be estimated somewhat from the fact that although a majority of the Territorial and early State Judges obtained their legal training in other States and under different systems, the practice here became very closely allied to that of New York, and borrowed a large share of the New York statutory and common law changes. It is the more remarkable because some of his colleagues had a decided preference for a different system, and our first Revised Statutes favored to some extent the Massachusetts rules.

On the resignation of Chief Justice Fletcher in 1842, Judge Morell succeeded him in his office, which he held. until he left the bench in 1843, after which he took no very active part in practice. He was justly regarded as an upright and eminent jurist of great acquirements and adequate knowledge of men, and a sincere lover of justice.

THE COURT directed the entry of the following order upon the journal of the Court:

WHEREAS, Gen. George W. Morell has presented to this Court a portrait of his father, Hon. George Morell, one of the Chief Justices of the Supreme Court of the State of Michigan; therefore it is

Ordered that such portrait be accepted and placed in a proper and conspicuous place in the Supreme Court

room.

And this court desires to express its thanks to the donor for his valuable gift, and its gratification in having

its court room adorned by the likeness of a gentleman whose character and eminence will always make his memory honored and venerated in this State.

JANUARY TERM 1880.

43

1

HIRAM ALLEN V. JOHN S. DUFFIE, LEVI MORRILL ET AL.,

TRUSTEES, ETC.

Works of necessity and charity-Subscriptions taken in church on
Sunday to pay church expenses.

The choice of trustees to hold property, at a meeting of the members of a religious society, is not enough to effect a statutory incorporation in Michigan.

An objection cannot be raised in the Supreme Court if it was not brought to the notice of the trial judge.

Where suit is brought in the name of certain persons as trustees of
a certain religious society, and there is no averment or recital
of incorporation, it must be assumed that none exists or is
relied on.

The trustees of any unincorporated society organized for a lawful
purpose, may receive gifts and promises on its behalf; and a
mutual subscription for its benefit may be supported even though
no payee is named, if the object is made definite and certain. The
mutual promise of the subscribers is a sufficient consideration.
A declaration upon a promise to pay presently is consistent with
the defendant's having been at liberty to take a year's time or
more on giving his note, if he did not do so.

Whether work done on Sunday is within the exception to the Sun-
day law as a work of necessity or charity is purely a question
of law and statutory construction, and depends in all cases upon
the intent of the statute.

Where a rule of law is in accord with the finding of a jury the verdict may be allowed to stand even though the question was improperly left to them.

Mere convenience of time and opportunity cannot be the test as to whether work done on Sunday is work of necessity.

All the necessary and usual work connected with religious worship *Continued from Vol. 42.

is work of charity. Religious societies are formed to do good to mankind, and charity is active goodness.

Raising subscriptions from a congregation on Sunday to pay off a

church debt, or purchase a house of worship is a work of charity within the exception to Comp. L. § 1984, which prohibits Sunday business.

The support of public worship is a work of charity that may properly be done on Sunday, and subscriptions taken for that purpose from a congregation assembled for religious exercises on the Sabbath may be sustained.

A point that is not contested and is assumed without consideration in deciding a case, is not itself decided.

Error to St. Clair. Submitted Jan. 21. Decided Feb. 11. ASSUMPSIT. Defendant brings error.

O'Brien J. Atkinson and Elliott G. Stevenson for plaintiff in error. The statute prohibiting business on Sunday applies to anything that can be done on week-days, State v. Conger 14 Ind. 396; Adams v. Himmel 2 Doug. (Mich.) 76; a Sunday contract cannot be ratified, Tucker v. Mowrey 12 Mich. 878.

Wm. T. Mitchell and Wm. Potter for defendant in error.

COOLEY, J. This is an action brought upon a subscription made for the purchase of a house of worship for a religious society. From the evidence it appears that Levi Morrill, who was one of the trustees of the society, had constructed the building on his own land and at his own expense, expecting, but having no assurance, that the society would take it off his hands and reimburse the cost. At one of the regular services of the society, held on a Sunday in August, 1876, the officiating clergyman stated the facts to the congregation, and a proposition was made that the amount needed to purchase the building from Mr. Morrill be then raised by subscription. Many persons then offered sums which they specified. There was a subscription paper with a heading, whereby the several persons promised to pay the sums set opposite their names respectively. This paper was lost or destroyed, and was not produced on the