text:
    DOWLING v. LIVINGSTONE.
    1. Libel — Book Review — Right op Criticism.
    When an author places his book before the public, he invites criticism; and, however hostile that criticism, may be, and however much damage it may cause him by preventing the sale of the book, the critic is not liable in an action for libel, provided he makes no misstatement of any material facts contained in the book, and does not attack the character of the author.
    2. Same.
    The author of a book entitled, “The Wage-Worker’s Remedy,” left a copy at the editorial rooms of a newspaper, with the request that it be reviewed, which was done; and, in a suit by the author against the proprietors of the paper for libel, the court, in reversing a judgment in favor of the plaintiff, held:

    (1) That it was error to instruct the j'ury that “ the defendants had the right to ridicule the book if, in the candid judgment of any fair man, the book or any part of it deserved ridicule;” the correct rule being that, when the author is correctly stated, the critic is the sole judge of the language of his criticism.
    (2) That the statement that the plaintiff had quoted from another author without giving him credit did not amount to a charge of plagiarism, it appearing that the quotation referred to was inclosed in quotation marks, but was not credited to said author by name.
    (3) That a reference to the argument in the book that a minimum rate of wages should be fixed at $2 per day, to whioh was added the statement that, “ of course, like all quack remedies, the one suggested would intensify the trouble, if it had any effect at all,” was not equivalent to charging that the plaintiff was a quack.
    (4) That a reference to the recommendation in the book of legislation prohibiting the acquirement of more land by any man than he actually needs for business or homestead purposes, coupled with the statement that it had not the merit of originality, as Horace Greeley had advocated the same thing 50 years ago, was not libelous, even though it should appear that Mr. Greeley never advocated such a doctrine.

      (5) That plaintiff's complaint of the statement that “he denounces the single-tax scheme as robbery ” was unfounded, as, in that part of the book to which such statement had reference, plaintiff, in discussing the single-tax theory of Mr. George, denounced his preposition to take the land from the present owner without compensation, characterizing it as “a • gigantic piece of robbery;” and, furthermore, the critic thereupon proceeded to state plaintiff’s position upon that subject fully and correctly.
    Error to Wayne; Carpenter, J.
    Submitted January 8, 1896.
    Decided February 18, 1896.
    Case by Morgan E. Dowling against William Livingstone, Jr., and others, for libel. From a judgment for plaintiff, defendants bring error.
    Reversed.
    Plaintiff published a book entitled “The Wage-Worker’s remedy,” which was offered for sale to the public generally. The defendants are the publishers and owners of the Detroit Journal, a newspaper printed and published in the city of Detroit. Plaintiff took this book to the editorial room of the Journal, and requested that it be reviewed. The book was handed by the managing editor to an employe for that purpose. A review was written and published May 15, 1894, and is as follows;
    “MR. DOWLING’S BOOK.
    “The Wage-Worker’s Remedy.
    “Morgan E. Dowling’s little book, the Wage-Worker’s Remedy, is a well-meant, but rather hysterical, attempt to solve the labor question. Although utterly lacking scientific value, it is interesting to most Journal readers, because the author is a Detroit man, and because it reveals how the average mind is groping and floundering in the midst of a forest of contradictions and in swamps of bad logic to the discovery of the truth. We do not claim to know beyond question the right path, but feel sure that Mr. Dowling has hopelessly lost his way.
    “ In the first place, Mr. Dowling’s view is entirely confined to this country. His wage worker is the American wage worker. This is mainly why his effort has no value as a contribution to economic science. What would be thought of a writer who tried to explain the law of the correlation of forces wholly from the American or the French standpoint? The truths.of political economy are, of course, world-wide, like all truth. Rent and interest and wages must rise and fall in the United States in obedience to the same eternal laws that govern them elsewhere. To think otherwise is to doubt the harmony and simplicity of God’s rule.
    ■ ‘ ‘ Bearing this in mind, one of the author’s nine remedies for low wages and lack of employment is seen to be inadequate. For instance, he would suspend immigration to this country; yet Italy, Germany, and Poland, all having emigration instead of immigration, and enjoying to a small degree some of his other remedies, are suffering from low wages. Ireland still seems to be too crowded, although, from famine and emigration, her population has been reduced one-half in less than a century. Surely, France’s low wages have not been caused in any way by immigration, and war and starvation and a low birth rate have kept her population within reasonable limits, almost at a standstill.
    “Another of Mr. Dowling’s remedies for low wages is government ownership of railroads, street railways, telegraph lines and telephones. This is funny. He doesn’t stop to think, but disposes of the whole subject almost with one flourish. If he had stopped for even a moment, it might have occurred to him that wages were low before the telegraph and locomotive were known. In his hasty opinion, governmental operation of street cars would realize Mayor Pingree’s dream of a three-cent fare, and that would lead to more travel, and hence to the employment of more men. There you are. The whole question of labor is solved! But electricity has displaced horses (outside Detroit); travel on street cars has doubled; and yet wages have fallen. We, of course, are using the word ‘wages’ in its strict economic sense, whereas Mr. Dowling for the moment has in mind only the wages of one set of men. The reduction of street-car fares, he says, would be equivalent to raising the wages of those wage workers who used the cars. Has he never thought of the influence of street-car improvements on rent? May it not be possible that the landowner, not the wage earner, would absorb the benefits of such improvements? We are not arguing against the restriction of immigration, and governmental ownership and management of these natural monopolies. They may be desirable in themselves, but as a solution of the labor problem they are ridiculous.
    “Mr. Dowling disclaims being a paternalist; yet he advocates the most astounding piece of socialistic policy. He inveighs against class legislation, and then proposes some legislation of that kind. He would have the government forbid a higher rate of interest than 4 per cent, and a lower rate of wages than $2 a day. Such childish suggestions were bad enough in the Middle Ages, when the laws of political economy' were unknown. An old king commanded the tide to recede, and an English parliament undertook to fix a maximum wage. Both were excusable, for they were ignorant. We know better today. Like the tide, wages follow certain unchangeable laws. The old king might have erected a stone wall against the tide, but the tide would have gone on working just the same, until it overflowed the obstruction or undermined it or pushed it over. So the law of wages does not cease to operate when artificial obstructions are put in the way of its sweep. Something may fall and smash, but it will not be the fault of the economic law. The law itself is all right, being the will of the Creator, and any patchwork by the finite mind cannot but lead to bad results.
    ‘ ‘ Mr. Dowling simply does not understand what ‘ wages ’ are, in the meaning given to the word by political economy. He has constantly in mind the popular meaning of the word as applied to ‘wage earners.’ In political economy, however, the meaning of the word ‘wages’ is broader. It is the return for any service or for any productive labor. Thus, many are their own employers, and receive as wages what they themselves produce. How could the legislature compel an express-wagon driver or a small market gardener or a small shopkeeper to pay himself at least $2 a day? The merchant is both a capitalist and a wage earner, as political economy regards him. His profits are made up of interest on his capital, and of wages of superintendence. He may have, let us say, 50 clerks employed, at an average rate of $1.50 a day. The law suddenly compels him, according to Mr. Dowling’s scheme, to pay them not less than $2 a day, increasing his expenses $25 a day. He is himself a laborer, a wage worker, as truly as are his clerks, and nine times out of ten a Larder and more anxious worker, for upon him rests responsibility, and the shame should failure come. His own wages may already be cut down fearfully by high rent and competition; yet Mr. Dowling would arbitrarily make him pay higher wages to his clerks than the labor market required. Of course, like all quack remedies, it would intensify the trouble if it had any effect at all. Besides trickery and lying, it would cause business failures and the employment relatively of less clerks. The tide might be dammed up for a moment, but its strength would be felt.
    ‘ ‘ About one-third of Mr. Dowling’s book is devoted to praising Henry George, and to refuting his ideas. In the opening chapter he quotes from George without giving him credit, and outdoes him in raising alarm over present social conditions, even saying that revolution is at hand unless something is quickly done to appease the wrathful and wronged masses. In the last chapter he has apparently cooled off, forgotten his alarm, and believes that material progress • tends to benefit all. One wonders what he made a fuss for first, especially when it is found that he believes that some poverty is sure to exist anyway. He says Henry George’s scheme is socialistic, and then he proposes an extension of governmental powers which would make Sam Goldwater happy. Pie denounces the single-tax scheme as robbery, and then advocates it, at least so far as it is applied in New Zealand. He would exempt improvements largely, and tax land values so high as to prevent speculation in land, which is all any single taxer dares to hope will be accomplished in a generation or two to come. After giving his programme of nine remedies, Mr. Dowling thinks of many more. He would prohibit the acquirement of more land by any man than is actually needed by him for business or homestead purposes. This is pretty strong for one who has just been defending the institution of private property in land as all right, and it hasn’t the merit of originality, for Horace Greeley advocated the same thing 50 years ago.
    “ It is altogether an amusing book, as full of contradictions and absurdities as a schoolboy of tricks. Mr. Dow-ling gravely assures the reader that the remedy for poverty is ‘ steady work, shorter hours, and fair wages.’ He might have added that food is an excellent remedy for hunger.

      “ ‘ The Wage-Worker’s Remedy ’ is on sale at Hunt & Eaton’s, 189 Woodward Ave.”
    The defendants, with their plea, gave notice that they would insist in their defense that they had the right, and that it was their duty, to justly and fairly criticise said book, and that the criticism complained of is a just and fair one, and was published without malice or intention to injure said plaintiff. Two questions are presented: (1) Is the article libelous ? (2) If so, what is the measure of damages ?

      Gutcheon, Stellwagen & Fleming, for appellants.

      Morgan E. Dowling, in pro. per.

   Grant, J.

(after stating the facts). The propositions advocated by the plaintiff are thus stated in the third chapter of his book:

“1. The suspension of all immigration to this country.
‘ ‘ 2. The making of eight hours a legal day’s work.
“3. The prohibition of marriage under the age of 21 years.
“ 4. The prohibition of the employment of children under 15 years of age in workshops, factories, and mines.
“5. The fixing of the minimum rate of wages at $2 per day for all laborers, except domestic and farm laborers.
“6. The reduction of the legal rate of interest to 4 per cent, per annum.
“ 7. The purchase of all street railways, and the placing of them under the control and management of the municipal authorities.
“8. The purchase of all telegraph, telephone, and railroad lines in the United States, and the placing of them under the control and management of the national government.
“9. The prohibition of the purchase of lands in this country by nonresident aliens, and the compelling of all nonresident aliens who now own lands to sell them within a specified time, or forfeit their titles.”

The book is mainly devoted to a discussion and elucidation of these propositions. No malice was shown on the part of the defendants, unless it is fairly deducible from the article itself. On the contrary, it appears to be conclusively established that the defendants did not entertain any malice towards him, and that the book was placed by them in the hands of their critic, who wrote the article, without any comment or instruction.

When an author places his book before the public, he invites criticism; and, however hostile that criticism may be, and however much damage it may cause him by preventing its sale, the critic is not liable in an action for libel, provided he makes no misstatement of any material facts contained in the writing, and does not attack the character of the author. The book and the criticism are both before the public. The language we used in Belknap v. Ball, 83 Mich. 589, applies to this case:

“When language is truthfully stated, the criticism thereon, if unjust, will fall harmless, for the former furnishes a ready antidote for the intended poison. Readers can then determine whether the writer has, by the publication, libeled himself or the candidate. When the language is falsely and maliciously stated, privilege ceases to constitute a defense.”

We think that case and the authorities there cited establish the principle governing this.

Townshend (Sland. and L. § 258) states the rule as follows: •

“As criticism is opinion, it can never he primarily material to inquire into its justness. The right to criticise implies the right to judge for one’s self of the justness of the criticism. It would seem to be but a delusion to say one has the right to criticise, provided the criticism be just. The justness or unjustness can never be more than matter of opinion. The test always is, was the criticism bona fide? It is like the case of one writing concerning the sanity of another. The test of the justification is not, was the statement such as a man of sound sense would have made? but, was it the honest conviction of the publisher? ”

The case of Bacon v. Railroad Co., 66 Mich. 166, has no application to this case. No question of criticism of an author’s writing was there involved. The defendant had reported the plaintiff as having been discharged from its employ for stealing. The report was a direct attack upon his personal character. There is in both reason and authority a wide distinction between language uttered concerning a person and criticism of his writings. Townsh. Sland. & L. § 255.

It was said in Campbell v. Spottiswoode, 3 Fost. & F. 428:

“The article, no doubt, is pungent, bitter, and caustic. At the same time, public men, and, above all, public writers, must not complain if they are sometimes rather roughly treated. Public writers, who expose themselves to criticism, must not complain that such criticism is sometimes hostile. * * * It was perfectly lawful for a public writer to say that it was an idle scheme, and that it was a delusion to suppose that, by forcing these papers [meaning the plaintiff’s newspapers] into circulation by free distribution, the great cause of missions would be promoted, and, in short, to denounce the whole scheme as pernicious and delusive.”

In a note to the above case will be found cited several English cases sustaining the rule. See, also, Townsh. Sland. & L. § 254.

It is not libelous to ridicule literary composition. Carr v. Hood, 1 Camp. 355, note. Lord Ellenborough in that case said:

“One writer, in exposing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the reputation or pecuniary interests of the person ridiculed suffer, it is damnum absque injuria. Where is the liberty of the press if an action can be maintained on such principles ? * * * Every man who publishes a book commits himself to the judgment of the public, and anyone may comment on his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of. condemnation, he exercises a fair and legitimate right.”

It is unnecessary to cite or quote further from the authorities. The rule of law in such cases is clear. In applying it to the present case, we find that the personal character and reputation of the author are not attacked. His theories are. In no material matter is there any misstatement of fact or of the propositions set forth in the book. The critic was at liberty to attack or denounce them with sarcasm and ridicule.

The learned circuit judge instructed the jury that “the defendants had the right to ridicule this book if, in the candid judgment of any fair man, the book or any part of it deserved ridicule.” This is not the law. • As already shown, when the critic correctly states the author, he (the critic) is the sole judge of the language of his criticism. Many fair men might disagree with him, and very likely would in this case. This is for the public, and not for a jury, to determine. If the plaintiff’s contention be the correct rule of law, then the protectionist might maintain an action for libel against the free trader who attacks his protection theories and arguments with sarcasm, ridicule, and contempt.

Plaintiff insists that the defendants charged him 'with plagiarism because he did not give Henry George credit for a quotation from his works. The quotation was inclosed in quotation marks, but not credited to Mr. George, and the court very properly charged the jury that this did not charge him with plagiarism.

The court also correctly instructed the jury that it was not libelous to call his remedy a “quack remedy.”

It was not libelous to say that “ Horace Greeley advocated the prohibition of the acquirement of more land by a man than is actually needed by him for his business or homestead purposes,” even though it should appear that Mr. Greeley had not advocated such a doctrine.

Complaint is also made of the statement that “he [plaintiff] denounces the single-tax scheme as robbery.” In that part of the book to which this statement has reference, plaintiff is discussing the single-tax theory of Mr. George, and is denouncing his proposition to take the land from the present owners without compensation, which he denounces as “a gigantic piece of robbery.” As stated in the book, this was a part of the single-tax theory of Mr. George. The article complained of, however, correctly states the position of the plaintiff upon this subject.

The declaration contains no innuendoes, and, álthough the criticism is undoubtedly severe and caustic, it does not exceed the bounds of legitimate criticism. The court should have directed a verdict for the defendants.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    REILLY v. OTTO.
    Deed — Building Restrictions — Maintenance oe Saloon — In junction.
    Equity will enjoin the violation of a condition in a deed that no saloon should be erected on the premises conveyed, where the grantor purchased such property with a view to protecting other property in the neighborhood from depreciation in value by the proximity of a saloon, although, before the execution of the deed, he had conveyed adjoining property without such restriction, and had also leased other premises in that locality for the purposes of a saloon.
    Appéal from Wayne; Carpenter, J.
    Submitted January 10, 1896.
    Decided February 18, 1896.
    Bill by Cornelius J. Reilly against George Otto and wife to enjoin the breach of a condition in a deed against the maintenance of a saloon or general store on the premises conveyed. From a decree for complainant, defendants appeal.
    Affirmed.

      John W. A. 8. Cullen, for complainant.

      James V. D. Willcox (Elbridge F. Bacon, of counsel), for defendants.
   Moore, J.

In 1891, complainant and his wife conveyed, by deed, a lot in Detroit, with the following restrictions :

“ This conveyance is made with the express restriction that there shall not be placed or erected, at any time, on said premises now conveyed, any store, but only dwelling houses. * * * To have and to hold the said premises above bargained and described, * * * with the express reservation and restriction that no store or saloons shall be erected or placed on said premises now here conveyed, and that said real estate shall be kept for dwelling-house purposes only.”

In 1894 the complainant filed a bill in chancery, alleging that for several years he was the owner of said property; that defendants came to him to buy said property; and that he told them that he had purchased the premises with a view of erecting dwelling houses thereon, and that he would not sell to them for any other purpose than to be used solely for dwelling-house purposes, and that no store,. saloon, or business place should be erected on said vacant lot; that thereupon the complainant entered into a contract of sale to the defendants of said premises, with the reservation as stated in his deed to them; that the defendants have moved a large frame building, which was used where it formerly stood for saloon purposes, and are now fixing it up to use as a saloon and for the sale of intoxicating liquors; and asking that the defendants be enjoined from so putting the saloon on said premises.

Defendants answered, and averred that in July, 1888, the complainant sold to Komminsky the property adjoining the defendants’ on the south, without any restrictions as to buildings or business; that in December, 1892, he sold to Fass and Fass the south 26 feet of lots 113, 114, and 115, without restriction as to buildings or business; that complainant is not interested in any property in the block south of Leland street; that he is the owner of a store directly opposite and north of the property owned by the defendants; that in May, 1889, he leased said store for five years to one Faber, authorizing him to carry on a store and saloon in said building; that all the property owned by complainant,at present lies on the west side of Russell street, north of and adjoining said last-mentioned store and saloon; that there are other business properties, including saloons, in that immediate neighborhood; that the city of Detroit has a population of 235,000, and that there are a large number of saloons in said city, and a large number in the immediate neighborhood of the property in question; that said complainant lives upward of a mile and a half from the property owned by the defendants, and is not interested by the business carried on by the defendants, except as it may affect the property owned by him there; that it is not true that the building of a store • or saloon on said premises would cause any great damage to complainant’s business, or depreciate the value of his property; that the condition contained in said deed is not sufficient to authorize the granting of an injunction.

The trial judge granted the relief prayed for in complainant’s bill. His action is sought to be reversed here.

It is urged by the defendants that, if the condition in the deed was ever valid, it has been waived by the complainant, and that he cannot enforce it, because he has conveyed the balance of lots 113, 114, and 115 without restrictions, and has authorized the carrying on of a saloon on his own property; and they cite a large number of cases, relying especially upon the cases of Duke of Bedford v. Trustees of British Museum, 2 Mylne & K. 552; Barrie v. Smith, 47 Mich. 130; Smith v. Barrie, 56 Mich. 314; Jenks v. Pawlowski, 98 Mich. 110. The record discloses that the lease from Reilly to Faber was made before Reilly’s contract and deed with the Ottos, and that in 1891 Faber ceased to do a saloon business. While the deed to Fass and Fass was made in 1892, it was made in pursuance of a contract made in 1888. The contract with Komminsky was also made in 1888. So that it cannot be said that, after the Ottos made their contract with Reilly, the latter made any new conveyances authorizing the erection of stores or saloons.

The record does not disclose any waiver on the part of the complainant. On the contrary, it shows that his purpose in buying the land sold to the defendants was to prevent the erection of a saloon there, and to protect his store on the next corner and his residence property in the next block from being depreciated in value by the proximity ■of a saloon. In Watrous v. Allen, 57 Mich. 368, it was held that—

“Every owner of real property has the right so to deal with it as to restrain its use by his grantees within such limits as to prevent its appropriation to purposes which will impair the value or diminish the pleasure of the enjoyment of the land which he retains. The only restriction on this right is that it shall be exercised reasonably, with a due regard to public policy, and without creating ■any unlawful restraint of trade.”

To the same effect are Smith v. Barrie, 56 Mich. 314; Abraham v. Stewart, 83 Mich. 7; Whitney v. Railway Co., 11 Gray, 359. The same doctrine is held in the Michigan cases cited by counsel for appellants.

The decree of the court below is amrmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    LOCKWOOD v. MICHIGAN MUTUAL LIFE INSURANCE CO.
    1. Life Insurance — Surrender of Policy — Cash Value — Suf ficienoy of Declaration.
    A declaration in a suit to recover the cash value of a life-insurance policy, under a provision guaranteeing the payment of such value upon the surrender of the policy within a specified time, is not fatally defective in failing to allege the surrender of the policy, but the omission may be supplied by amendment.
    2. Same — Interest of Beneficiaries.
    Upon the execution of a life-insurance policy, the beneficiaries therein named acquire an interest which the law recognizes, and which the insured cannot dispose of at his own will.
    3. Same — Endowment Policy.
    A life-insurance policy was made payable to the insured at the expiration of 20 years from its date, in case he should then be living. If he should die in the meantime, it was payable to his mother, if living, otherwise to his brothers and sisters. It was further provided that upon the surrender of the policy, duly receipted by the insured and the beneficiaries, within three months after the expiration of the third or any subsequent year for which premium had been paid, the company would pay a specified cash value. Held, that the insured could not maintain an action to recover such cash value without first obtaining receipts from all of the beneficiaries.
    Error to Ingham; Wisner, J., presiding.
    Submitted January 10, 1896.
    Decided February 18, 1896.

      Assumpsit by Stanley L. Lockwood against the Michigan Mutual Life Insurance Company to recover the cash-surrender value of certain policies of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.
    The plaintiff secured three policies of insurance, for $1,000 each, which were termed accumulative bonds. The annual premium on each was $49.95. They were payable to him in 20 years; but, if he should die before that time, the company agreed—
    “To pay the said sum of $1,000, and, in addition thereto, an amount equal to all annual premiums paid to the company on this bond prior to such death, the sum so to be paid being indicated and guaranteed upon the margin hereof (all indebtedness on account of this bond being first deducted therefrom), to his mother, Hilah A. Lockwood, if living; if not living, then to Amy L., Harriet L., Joseph B., Floyd A., Alta L, and Ruth Lockwood [the brothers and sisters of the insured], or the survivors of them, equally.”
    The guaranteed cash value is printed upon the policy, as follows:
    “On the surrender of this bond, duly receipted by the insured and beneficiaries, within three months after the expiration of the third or any subsequent year for which premium has been paid, the company will pay the cash value specified in the following table.”
    The cash value of each policy at the end of the third year was $92.98.
    After paying the premiums for three years, plaintiff decided to surrender the bonds and take the casíi-surrender value stipulated. He notified the company, and sent receipts, signed by himself and Hilah A. Lockwood, but not signed by any of the other beneficiaries named. The defendant requested receipts signed by the other beneficiaries, and declined payment unless they were furnished. Thereupon plaintiff instituted this suit to recover the stipulated amounts. The defendant requested the court to direct a verdict for the defendant, which was refused, and a verdict directed for the plaintiff.

      Cahill & Ostrander, for appellant.

      TP. S. Porter, for. appellee.
   Grant, J.

(after stating the facts). 1. The declaration failed to aver the surrender of the bond within the time limited, duly receipted by the insured and beneficiaries. It is insisted that this was a fatal defect in the declaration. The defendant was not taken by surprise or prejudiced upon the trial by this technical defect in the declaration. Upon request, the court below would have permitted an amendment, and, under 2 How. Stat. § 7636, this court may treat the amendment as made.

2. Was it necessary that the receipt should be signed by all the beneficiaries ? The record does not show the reason given by the learned circuit judge for his direction. The brief of the plaintiff is based upon the theory that the interests of the- beneficiaries were contingent, that the insured could deal with these policies as he chose, and that no receipt signed by any of the beneficiaries was necessary. Upon no other theory can the plaintiff’s contention be sustained; for, if the policy required the receipt of any beneficiary, it required the receipt of all. Such, however, is not the rule of law governing contracts for life insurance. The beneficiaries, upon the execution of the policy, acquire thereby an interest which the law recognizes, and which the insured cannot dispose of at his own will. This interest is recognized by the authorities, and it is of little consequence whether it be called vested or contingent. Bliss lays down the rule as follows:

“We apprehend the general rule to be that a policy, and the money to become due under it, belong, the moment it is issued, to the person or persons named in it as the beneficiary or beneficiaries, and that there is no power in the person procuring the insurance, by any act of his or hers, by deed or by will, to transfer to any other person the interest of the person named. An irrevocable trust is created.” Bliss, Ins. § 317.

In Hubbard v. Stapp, 32 Ill. App. 541, the policies were payable to the insured at the end of 15 and 20 years, respectively ; but, if he died before those dates, then to his wife and son, if they should survive him. It was held that the beneficiaries held a vested interest, which could not be affected by any subsequent act of the insured.

In Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 156 (58 Am. Rep. 806), the policy was issued on the life of the husband, payable to the wife. The husband retained the policy, and paid the premiums, and received the dividends. He and his wife separated, whereupon he notified the company that he no longer wished to continue the .policy. It was held that he had no power to surrender the policy merely because he was the insured party and had paid premiums; and that, after the company was informed of the separation, it was its duty to notify her of the premiums due; and that the policy did not lapse in consequence of the failure to pay them.

In Fowler v. Butterly, 78 N. Y. 68 (34 Am. Rep. 507), the husband obtained the policy in terms very similar to the present ones, payable, in the event of his death before a certain time, to his wife, if living; otherwise to his daughter. She joined with her husband in an assignment of the policy to secure a debt of the husband. The court found that the assignment was procured through undue influence and control, amounting to compulsion, which rendered it void. The court said:

“It will be seen that the policy was not alone for the benefit of the husband, but contained two separate and independent provisions. One of these was for his benefit, and conferred upon him absolute authority to receive the amount insured, if he remained alive until the time named and the policy was then in force, and the other for the benefit of the wife, if she survived him, or, otherwise, of the daughter. In case of the death of the assured, the wife or daughter became thereby vested with the sole right to collect and receive the money mentioned in the policy. The payment of the premium was made, and the policy was obtained, having these objects in view. The husband alone could collect the policy, if alive at the time of its expiration; otherwise it inured to the benefit of the wife, in case she survived her husband, or of the daughter, as provided. The fact that the covenant in the policy was with Butterly, as the assured, and the legal title and interest was in him, if he lived until the time named, does not establish an intention to keep control of the policy otherwise than as specified, or deprive the wife of the right which she had by virtue of the same.”

To the same effect are Union Central Life Ins. Co. v. Woods, 11 Ind. App. 335; Continental Life Ins. Co. v. Palmer, 42 Conn. 60 (19 Am. Rep. 530); Landrum v. Knowles, 22 N. J. Eq. 594; Brown’s Appeal, 125 Pa. St. 303; 2 May, Ins. § 390.

The interests of all the beneficiaries in the present case depend upon contingencies. The contingency of the death of the insured within 20 years applies to both beneficiaries. The interest of the brothers and sisters depends upon one other contingency, viz., the death of the mother before the insured. The contract is specific and clear in requiring the receipt of all the beneficiaries before the obligation of payment is fastened upon the defendant. It might have provided for its surrender upon his receipt alone, or upon those of himself and mother, in which event the beneficiaries could not complain; but it did not. Both the plaintiff and the defendant agreed that the beneficiaries should be consulted about the termination of the contract, and that their receipt should be produced in order to terminate it. If plaintiff should refuse or neglect to pay the annual premiums, it would be doubtful if the policy would be forfeited, without notice to the beneficiaries and the opportunity afforded them to keep the policy alive by payment. It follows that plaintiff had not complied with the plain terms of his contract, and was therefore not in position to maintain this suit.

Judgment reversed, with the costs of both courts, and no new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE, for use of HIRTH, v. POWERS
    l. Public Improvements — Bond op Contractor — Material Men.
    The fact that curbstone are furnished to a paving contractor for a “lump sum,” rather than for an agreed price per foot or yard, does not render the Iperson furnishing them a subcontractor, instead of a material man, thereby excluding him from the protection of the bond given by the contractor under 2 How. Stat. § 8411b, for the payment of all labor and material claims.
    2. Same — Release op Sureties.
    The liability of the sureties on such a bond is not affected, as against the claim of a material man, by the fact that the latter has received payment for an antecedent indebtedness against the contractor out of funds realized by him under his contract.
    Error to Kent; Adsit, J.
    Submitted January 10, 1896.
    Decided February 18, 1896.

      Assumpsit by the People of the State of Michigan, for the use and benefit of Anton Hirth and Fred H. Hirth, against John Powers, Abram B. Knowlson, and James McDermott, upon a statutory bond. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      Taylor & Eddy (.Kingsley & Kleinhans, of counsel), for appellants;
    The payment of the antecedent debt to the plaintiffs constituted such a diversion of moneys earned under the improvement contract as to release the sureties, so far as plaintiffs’ claim is concerned, or, at least, to reduce their liability to the extent of such payment. 2 Brandt, Sur. § 345; Calvert v. London Dock Co., 2 Keen, 638; Bragg v. Shain, 49 Cal. 131; Steam Navigation Co. v. Bolt, 6 C. B. N. S. 550; Tull v. Serrill, 1 Wkly. Notes Cas. 373; Taylor v. Jeter, 23 Mo. 244; Warre v. Calvert, 7 Adol. &E. 1-1-3; Barclay v. Deckerhoof, 151 Pa. St. 374; Fitzpatrick v. Me Andrews, 2 Pa. Dist. Hep. 713.

      Smiley, Smith & Stevens, for appellees.
   Hooker, J.

The defendant Powers was a paving contractor, and the other defendants are his sureties upon a bond given in compliance with the statute (2 How. Stat. §§ 84115, 8411c, and 3 How. Stat. § 8411a) to secure payment by the contractor and subcontractors for all labor, performed and materials furnished upon a contract let to him by the city of Grand Rapids for the improvement of Valley avenue. Hirth & Son were dealers in stone, and furnished the curbstone, and perhaps some stone for crossings, for this job, upon an agreement made by them with Powers soon after the contract was let by the city. Previous to the time such agreement was made, Powers was indebted to Hirth in the sum of $300, for which Hirth had signed a note with Powers at bank, thereby receiving pay from the proceeds of the note. This note had been renewed from time to time, and a renewal note was then outstanding. It was paid by Powers giving Hirth an order for $300 upon his second estimate of work done under the Valley avenue contract, which Hirth presented to, the city treasurer, whereby he obtained the money, and paid the note at bank.

Three questions are presented by counsel for the de-. fendants, who have appealed from an adverse judgment:

1. That Hirth & Son were subcontractors, and therefore not within the protection of the bond.
2. That, if found to be within the provisions of the statute, the sureties were released from liability upon the Hirth claim by the application of $300 to an existing debt by the procurement of Hirth & Son.
3. That, if not released, the $300 should be applied in reduction of their claim.

The jury determined that Hirth & Son were material men, and not subcontractors, and the first question arises on the rulings of the court relating to the introduction of testimony upon the subject. The defendants’ counsel claim that they should have been permitted to show that the bargain for the stone was for a given quantity, and for a “lump sum;” and the case of Avery v. Supervisors of Ionia Co., 71 Mich. 538, is relied upon in support of the proposition that Hirth & Son were subcontractors, and not within the statute. Staffon v. Lyon, 104 Mich. 249, is also cited in support of defendants’ claim. In the first of these cases, Avery made a written contract with the contractor of the Ionia county courthouse, whereby he agreed to deliver for a given price, fixed at $8,425, all the stone necessary for the building, to be cut and fitted in accordance with plans and specifications of the architect of the building, .as fast as needed,, and not to hinder or delay the workmen. He was to be paid on monthly estimates of stone furnished, to the extent of 90 per cent, of the contract price, and 10 per cent; on completion of the building. The plans and specifications were to be followed in cutting the stone, and they were made a part of the contract between the county and the original contractor, and were also made a part of the contract with Avery. The court held that Avery was a subcontractor, and not a material man merely, because he took his contract under the original contract, to be performed in accordance with the original contract, and presumably with knowledge of its terms and conditions, by which he was bound. Nothing was said in that case about the fact that he was to be paid a “lump sum,” and its prominence in the case at bar cannot be justified by it. The defendants’ contention must rest, therefore, upon the other case, where it was held that the plaintiff was a material man, and not a subcontractor. In the opinion Mr. Justice Long points out the difference between the contracts in the two cases, among which he mentions the fact that the brick were furnished, “not for a lump sum, as under a contract, but at so much per thousand.” The price was agreed upon in advance, and the plaintiff was to furnish all brick needed for the building; so that, if the defendants are right in their contention, it would seem that an agreement to furnish materials for a given sum would make the vendor a subcontractor, while, if he agreed to furnish them for an agreed price per thousand, if they were brick, by load, if sand, or by barrel, if some other commodity, he would be a material man. We are unable to reach this conclusion. We think, in this case, as in Staffon v. Lyon, the vendor merely sold marketable material, used in the work of paving, and was in no sense a subcontractor. It therefore becomes unnecessary to discuss questions pertaining to evidence bearing upon the question of whether the stone was furnished for a lump sum.

The defendants’ counsel cite a number of cases in support of the contention that the receipt by Hirth of $300 upon an antecedent debt was inequitable, and contend that the sum so received should be applied in reduction of the liability of the sureties, if it be not held to release them altogether as to the Hirth claim. These cases, for the most part, involve bonds given to the landowner as a protection against liens, and the sureties are held to be dischai’ged by reason of payments advanced before they became due according to the terms of the respective contracts, upon the ground that such payments tended to remove inducements to perform the contract, which the withholding of such payments was calculated to offer. Counsel insist that there is an analogy between such cases and the present, because this bond is given for the benefit of the laborers and material men, as in those cases the bonds were given for the benefit of the landowners, and in this case the acceptance of the sum of $300, on an earlier debt, lessened the inducement to perform the condition of the bond, as in those cases the receipt and use of the money was likely to do. There seems to be, however, one difference. In the cases cited there was privity of contract between the sureties and the obligee, and the bond upon its face undertook that the contract should be performed. By accepting it, the obligee was in duty bound not to vary the contract in such way as to increase the liability of the sureties, whether by making new contracts, extending time of performance, or otherwise. In this case there is no actual privity of contract between the Hirths and the sureties, unless the statute can be said to create one by requiring a bond, which is evidently intended for their benefit. They have undertaken nothing, and, unless we are to say that they could not extend the time of payment without releasing the sureties, we shall' find difficulty in applying the rule of the cases cited. Again, to do so is to say that one who furnishes labor and material cannot receive payment for former labor or material furnished elsewhere, although the contract under which that sought to be recovered for was furnished, expressly provided for such payment. It assumes that the sureties have a right that the earnings of the contractor under his contract shall be applied upon the labor and material going into the building, when no such agreement is stated in the bond or provided by statute. If it were the law, it would seem to follow that a contract to build a house, or to render services as a subcontractor, in consideration of an existing indebtedness, could not be enforced against sureties who had signed a bond that the contractor or subcontractor should fulfill his contract. This bond did not, in terms, provide that the contractor should apply his earnings to pay the laborers or material men, and the statute does not provide for such a bond. It undertook that the contractor should perform his personal obligations in his own way. It contemplated that he would receive and disburse his money as should suit his convenience. This contention depends upon an alleged equity that the money earned shall be applied only upon the account for materials furnished for the particular job. It is not supported by the letter of the bond or statute, and we think it is not supported by authority.

The judgment is affirmed.

The other Justices concurred.


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    SHELDEN v. SHATTUCK.
    1. Husband and Wipe — Right op Husband's Creditors to His Earnings.
    Where an insolvent debtor, as a means of supporting his family, devotes his time to carrying on a business owned by his wife, the accumulations, as against his creditors, belong .to the wife, especially when she puts her private fortune and her own labor into the business'; and she has the right to turn her interest over to her children, "should she choose to do so.

    3. Same — Creditor’s Bill — Evidence.
    In a suit by a judgment creditor to reach property alleged to be equitably subject to his claim, it was contended by the complainant that the defendant’s wife was the owner of a certain mortgage at the time of her death, and that defendant and his two children should share equally therein. It did not appear that the estate of the wife had been administered, and testimony that, during her lifetime, she had turned the mortgage over to her son, was not contradicted. Held, that it could not be said that the husband was entitled to a distributive share of the mortgage.
    Appeal from Shiawassee; Montague, J.
    Submitted January 14, 1896.
    Decided February 18, 1896.
    Judgment creditor’s bill.by Allan Shelden against Charles E. Shattuck and others. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      James M. Goodell and Or. R. Lyon (Hugh McCurdy, of counsel), for complainant.

      Kilpatrick & Pond, for defendants.
   Hooker, J.

The complainant has been a judgment creditor of Charles E. Shattuck since 1873, the original judgment for $1,094.81 having been sued with sufficient frequency to perpetuate the claim. At the time this suit was commenced, it amounted to upwards of $3,150. An execution was issued June 28, 1893, and returned unsatisfied, whereupon this bill was filed to reach property alleged to be equitably subject to complainant’s claim.

The testimony shows that, in 1876, Charles E. Shattuck was the owner of a house and lot, constituting his homestead, and very little else. He was selling sewing machines for a salary of $40 or $45 per month. He testified that at this time his wife had some money, and purchased a number of machines, and the business was continued in her name. Mr. Shattuck managed the business, and she assisted, and Shattuck testified that he was to conduct the business for her, and was to have his living from it. After a time the name was changed, and the parties professed to form a corporation, some sort of articles being filed, or, at least, stock issued, and annual reports were filed. Mrs. Shattuck claimed to own most of the stock, a few shares being .placed with a sufficient number of friends to make the requisite number of stockholders. Subsequently Mrs. Shattuck transferred her interest to her son, Jesse C. Shat-tuck, who thereupon gave up his business of teaching at St. Clair, and returned home, and engaged in the business, in accordance with an agreement made with his mother when she transferred her interest to him. In 1889 Mrs. Shattuck died. A large amount of property has been accumulated in the business, which the complainant seeks to reach.

We are satisfied from the evidence that the defendant Charles E. Shattuck had no means except his homestead at the time the business was started, and that what he has had since has been drawn from that business; that his wife, on the contrary, has had considerable property from her father, who was in easy circumstances. We may justly conclude from this record that Charles E. Shattuck has put no money or property into this business, but that its growth and the accumulation of property are due largely to his efforts and business sagacity. If the complainant is entitled to have this property applied upon his claim, it must be by reason of a right to have the products of Shattuck’s labor thus applied.

Our attention is not called to any authority that holds that, where a debtor refuses to labor for the benefit of his creditor, the latter has a remedy, or that, if the debtor chooses to labor for another, any more than his wages can be reached. On the contrary, it has been held by this court that an insolvent may devote his time to carrying on a business owned by his wife, as a means of supporting his family. Where this is done, the accumulations may belong to the wife, especially when, as in this case, the wife puts her private fortune and her own labor into the business; and, when she chooses to turn her interest over to her child or children, it is her right to do so. We understand that this is not disputed, but that it is claimed that in this case this was in furtherance of the original design to conceal the husband’s property, and keep it from his creditors.

It is contended that the husband has, at least, an interest in the homestead, which is subject to the complainant’s claim. The evidence shows that the husband owned this up to 1890, when he gave a warranty deed of it to his son, warranting against all incumbrances except a mortgage of $1,500, and two other mortgages which the grantor agreed to settle. The amount of these is not shown definitely, but there is reason to believe that they aggregated some $600 or upwards, and that they were paid from the business. The $1,500 mortgage was given to Mrs. Shattuck’s father in 1868, payable within four years, with interest payable annually. This mortgage was bequeathed to Mrs. Shattuck by her father’s will, which was probated in Saginaw county in 1870. It is claimed that upon Mrs. Shattuck’s death, in 1889, this mortgage belonged to her estate, and that her husband and her two children should share it equally. There is nothing to show that her estate was ever administered upon. Complainant’s brief asserts that it was not. Charles E. Shattuck testified that this mortgage was also turned over to Jesse C. Shattuck at the time the stock was transferred. There is no evidence to contradict this, and no question of Mrs. Shattuck’s right to do so if she chose. Hence we cannot say that the husband was entitled to a distributive share of this mortgage.

We think the decree of the circuit court in chancery should be affirmed, with costs. Ordered accordingly.

The other Justices concurred.


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    MURPHY v. MULVENA.
    1. Costs — Notice oe Taxation — 'Validity.
    A taxation of costs is not void merely because notice thereof was served before entry of judgment.
    2. Exemptions — Principal Business oe Debtor.
    To establish a right of exemption under 2 How. Stat. § 7686, subd. 8, the business in which the debtor is wholly or principally engaged must be shown.
    3. Same — Appraisal.
    The appraisal provided for by 2 How. Stat. § 7687, is expressly limited to cases where a levy is made upon property of a class or species which is exempt from execution “to a specified amount or value.”
    4. Same — Selection by Oeeicer.
    The officer levying an execution on property subject to an exemption under 2 How. Stat. § 7686, subd. 6, may, under section 7690, select the exemption for the debtor, if the latter is absent at the time of the levy.
    5. Same — Oeeioer’s Return — Conolusiveness.
    Where it appears that a selection was regularly made by the officer under such circumstances, the question as to the conclusiveness of his return, to the effect that the debtor “refused” to select his exemption, does not call for a determination.

      Error to Alpena; Kelley, J.
    Submitted January 14, 1896.
    Decided February 18, 1896.
    Replevin by John J. Murphy against William Mulvena and Henry Denst. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      John E. Mills, for appellant.

      George B. Greening (J. D. Turnbull, of counsel), for appellees.
   Hooker, J.

The defendant Denst recovered a judgment against the plaintiff in an action of assumpsit in the circuit court. After verdict, and before judgment, notice of taxation of costs was served, and, a few days after the entry of judgment, the costs were taxed in accordance with the notice, in the absence of the judgment debtor. Execution issued, and was duly returned, the return showing, that the officer had collected the amount of damages, but no costs; whereupon an alias execution was issued, and delivered to the defendant Mulvena, as sheriff, who levied upon a number of cattle upon a farm in the township of Wilson, owned by the plaintiff. The plaintiff was not present, and the defendant asked plaintiff’s hired man, «who was at work on the farm, to select plaintiff’s exemptions, but he declined to do so; whereupon the officer set aside, and left as such exemptions, two cows and ahull, and drove the other cattle away, and afterwards advertised them; whereupon plaintiff replevied them. The return states that the execution debtor refused to select his exemptions. Upon the trial, the plaintiff claimed that he was given no opportunity to select his exemptions, and made an offer to show that, but the court held that the return could not be contradicted. It also appeared that the property was not appraised within the township of Wilson. The court directed a verdict for the defendants, and the plaintiff, having removed the 'cause to this court, assigns the following errors:

1. That the execution was void, for the reason that the taxation of costs was irregular and unauthorized under the notice of taxation that was given.
2. That testimony should have been admitted to show that the plaintiff was never offered a chance to ‘ ‘ make any exemptions. ”
3. That the levy was invalid for the reason that the officer did not have the property appraised within the township of Wilson.

It is not claimed that the costs were taxed less than two days after judgment, and plaintiff’s point seems to be that a notice served before the judgment was entered upon the verdict was invalid. We agree with the circuit court that there is no force in this contention.- He should have appeared and contested the taxation, if he desired to. No question is raised over the defendant’s right to tax the amount, and the early notice was, at most-, an irregularity.

The statute (2 How. Stat. § 7687) providing that the officer “may cause the property levied upon to be appraised ” is, by the terms of the section, limited to cases where “property of any class or species which is exempt by law from execution to a specified amount or value ” is levied upon. To bring this case within it, counsel appears to claim a right to exemption under subdivision 8 of section 7686; but, as the record fails to show the business in which the owner was wholly or principally, engaged, that subdivision is not applicable.

The plaintiff’s counsel did show that his client was a householder, and he was therefore entitled to two cows, as exemptions, under subdivision 6; and, under section 7690, he had a right to select these, if present when they were levied upon. The section permitted the officer to make the selection, if the execution debtor was absent or neglected to select his exemptions. Hence, it becomes immaterial whether or not the court erred in holding that the return was conclusive of the question of plaintiff’s refusal to select his exemptions, inasmuch as there appears to be no question of his absence at the time of the levy.

The judgment is affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    HOWELL v. SMITH.
    1. Attorneys — Action eor Services — Evidence.
    A witness who is not an attorney is incompetent to testify to the value of professional services rendered by an attor- - ney.
    2. Same.
    The defendant in a suit brought by attorneys to recover for professional services testified that he had had some experience in employing counsel, and had employed as good attorneys as the plaintiffs, and those who were in as good standing in the profession, and had had occasion to settle with them. Held, that this testimony did not render the defendant competent to state what plaintiffs’ services were worth.
    8. Same — Execution oe Receipt.
    The defendant contended that he had paid the plaintiffs, and taken a receipt in full. Plaintiffs denied the execution of the receipt, the body of which was in defendant’s handwriting. Upon cross-examination, defendant testified that he had frequently drawn receipts for lawyers to sign, but was unable to give an instance where he had done so, other than the one in question. The following day, upon being asked on redirect examination if he could produce any other receipts so drawn and signed, the witness produced several such receipts, and was permitted to testify what attorneys signed them; whereupon his counsel offered the receipts in evidence. Held, that they were properly excluded.

      4. Same.
    The receipt purported to be signed by the plaintiffs in their firm name. The defendant testified that he wrote the receipt, and that one of the plaintiffs signed it in his presence; that, after the receipt had been written, the plaintiff stated that it was not dated, and thereupon dated it and signed it; but that witness thought it was given in July, instead of February, its purported date. Plaintiff testified that he never executed the paper, either on the date it purported to bear or upon any date; that he could not state positively whether or not the signature was his; that the paper bore evidences of having had writing upon it before, which had been erased by a rubber; that it was his impression that he wrote the date and signature; that, it being in pencil, it was difficult for him to say; and that, if it had been done in ink, he could tell a great deal better. Held, that it could not be said that the genuineness of the signature was admitted.
    Error to St. Joseph; Yaple, J.
    Submitted January 17, 1896.
    Decided February 18, 1896.

      Assumpsit by Marshall L. Howell and others, composing the law firm of Howell, Carr & Barnard, against Frank B. Smith and another, for professional services. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      JR. R. Pealer and George E. Miller, for appellants.

      David Knox, B. E. Andrews, and H. P. Stewart, for appellees.
   Long, C. J.

This action was brought to recover for professional services rendered by the plaintiffs, as attorneys at law, for the defendants. Plaintiffs, had verdict and judgment. Defendants bring error.

The principal contention arises upon the ruling of the court in refusing to permit the defendant Frank B. Smith, while upon the stand as a witness in his own behalf, to testify to the value of plaintiffs’ services. Mr. Smith testified that he had had some experience in employing counsel, and had employed as good attorneys as the plaintiffs, and those who were in as good standing in the profession, and had had occasion to settle with them. He was then asked: “From yonr experience and knowledge of the going or customary price of attorneys’ fees, or what they charge for their services, and from your knowledge of what was done and the. time that was spent in the Thurston case, what do you say the services rendered that day were worth?” This was objected to, and the objection sustained. It is contended by counsel for defendants that the witness was competent to testify to the value of these services, for the reason that he knew what services had been rendered, and what other attorneys charged for like services.

Counsel cite no case which sustains this contention. The general rule is stated by Lawson in his work on Expert and Opinion Evidence, holding that an ordinary witness cannot testify as to the value of services performed by an attorney; that an attorney, on the other hand, is an expert on these questions; and therefore, when one lawyer brings an action on a bill for legal services, it is the proper and usual mode to call another lawyer as a witness to ask him, considering the amount in controversy, the legal questions involved, and the importance of the case, what, in his opinion, is the value of the plaintiff’s services. The reason for this rule is stated by the same author to be that—

“The question is one upon which, from the nature of the case, it is not practicable to furnish more definite evidence than the opinion of witnesses who show themselves qualified to form well-grounded estimates of such value by their familiarity with the department of business in which such services have been rendered. * * * There is no fixed standard by which their- value can be determined. Their value and reasonable price vary with the magnitude and importance of the particular case, the degree of responsibility attaching to its management, the difficulty of the questions involved, the ability and reputation of counsel engaged, the labor bestowed, and other matters which will readily occur to the profession.” Lawson, Exp. Ev. Rule 21.

In Allis v. Day, 14 Minn. 516, the court stated, as the reason why expert testimony in this class of cases was proper, that the experience and knowledge of the ordinary juryman do not qualify him to form an opinion as to the value of services of this kind. In Hart v. Vidal, 6 Cal. 56, it was held that a witness who is not an attorney is incompetent to prove the value of an attorney’s services. It was said that the witness was not' a lawyer, and therefore not such an expert as the rules of evidence admit.

It is contended by counsel for defendants, however, that inasmuch as the witness had settled with other attorneys, •and knew what their charges were in other cases, his testimony was competent, as his opinion was based upon knowledge thus obtained. In Babbitt v. Bumpus, 73 Mich. 331, it appeared that an offer was made by the defendant to show that less was charged by the attorneys for the other side in the same case than was charged by the plaintiff, and that the services of the former were quite as important and of as much or even greater value than those rendered by the plaintiff. The testimony was rejected, and it was held by this court that the court below was not in error in refusing to receive the testimony.

It is further claimed that the court was in error in refusing to permit the defendants to put in evidence receipts taken from other attorneys upon settlements with them. Upon the trial, the defendants contended that they had paid the plaintiffs in full, and taken a receipt therefor. Plaintiffs denied the execution of the receipt. While defendant Frank B. Smith was upon the witness stand, he was asked by counsel upon cross-examination if he ever wrote a receipt for a lawyer in his life, and asked him to sign it; and the witness answered that he had. He was then asked to give an instance where he did, except in this one case. On redirect examination by his own counsel on the following morning, he was asked if he could produce other receipts so signed. He produced several, was permitted to testify what attorneys signed them, and his counsel then offered them in evidence. The court refused to receive them. We think the court was not in error in this ruling. The receipts were not offered for the purpose of showing payments upon any claim made by the plaintiffs.

Counsel for defendants requested the court to charge the jury in the first request:

“ The burden rests upon the plaintiffs to establish their right to recover by a fair preponderance of the evidence; and they cannot recover unless they have produced a preponderance of the evidence showing their right to your verdict.”

The court charged the jury:

“ The plaintiffs are required to prove their case by a fair preponderance of the evidence before they are entitled to recover, notwithstanding the plea of set-off; and, unless you find a greater weight of evidence in favor of the plaintiffs’ claim, you will find for the defendants.”

It is difficult to discover why counsel make the claim that their first request was not given substantially, when we read this portion of the charge.

In the second request, counsel asked the court to charge:

“The signature of the receipt produced by defendants being admitted to be that of the plaintiffs, the burden rests upon them [the plaintiffs] to establish a change since its execution, unless you find evidence of a change from an inspection of the paper itself.”

The court charged the jury upon that question as follows:

“A paper has been introduced in evidence which defendants claim is a receipt in full of all demands against them by the plaintiffs upon a final settlement of their claims. The plaintiffs deny the execution of the receipt in question. The burden of proof is upon the defendants to show by a fair preponderance of the evidence the execution of the receipt in question by the plaintiffs. Whether or not the plaintiffs did execute it is for you to determine from the evidence in the case. If you find the plaintiffs did not execute the alleged receipt, then you are to reject it. If you find that the plaintiffs did execute the receipt in question, then I instruct you that the receipt is prima facie evidence of payment, but not conclusive evidence of payment. It may be contradicted by parol testimony; and if you are satisfied from a fair preponderance of the evidence that plaintiffs rendered any services or incurred any expense or expended any money for defendants, as claimed by the plaintiffs, for which they have not been fully paid, and that the receipt in question is not intended to cover the same, and that the same were overlooked, and by mistake of parties not included in this settlement when the receipt was given, then plaintiffs are not bound by the alleged settlement, nor by the receipt as a receipt in full.”

On the trial, defendants contended that they had paid the plaintiffs’ claim in full, and produced a receipt which they claim was taken upon the settlement, as follows:

“Received of Smith Bros. & Co., F. B. Smith & H. B. Smith, and M. M. Smith, in full for all demands to date.
“February 7, 1887.”

This was purported to be signed by Howell, Carr & Barnard.

Defendant Smith testified that he wrote the receipt, and Barnard signed it in his presence. He says that, after writing the receipt, Barnard said that it was not dated, and that he (Barnard) sat down, and dated it, and signed it; but'the witness thinks that the receipt was given in July, instead of February. Upon this question, Mr. Barnard, upon his cross-examination, was asked: “You may state whether that paper was executed by you.” He answered: “No, sir; I never executed that paper.” And further on he states: “I never executed that paper upon the date it purports to bear date, or upon any date.” He also said:

“I would not be able to state positively whether it is my signature or not. The paper bears evidences of having had writing upon it before this, and that writing having been erased by a rubber. The paper has dark lines across it, such as would be made by erasing what had been written with a pencil; and the glossing seems to have been disturbed and rubbed off, and the paper seems to have been trimmed down with a pair of shears.”

He was further asked:

“ Q. I understood you to testify that the signature attached to that paper appears to be your signature, or resembles your signature ?
“A. Yes, sir; I couldn’t say positively it was not mine.”

Further on he stated:

“It is my impression that I wrote that date and the signature, but the absence of those marks makes me think that I did not. It being in pencil, it would be difficult for me to say. If it had been done with pen and ink, I could tell a great deal better.”

It is from this testimony that defendants contend that Mr. Barnard admitted signing the paper. We think this cannot be construed as such admission. The question was fairly submitted to the jury.

The third request, we think, was substantially given.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.


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    VOIGT BREWERY CO. v. WAYNE CIRCUIT JUDGE.
    1. Costs — Appeal prom Circuit Court Commissioner — Discretion op Court.
    Under 3 How. Stat. §§ 7036, 8307, 9004, the allowance of costs upon the trial of an appeal from a circuit court commissioner in summary proceedings to recover the possession of land is within the discretion of the circuit court.
    3. Same — Court Rules.
    The judges of a particular circuit cannot, by adopting a general rule that no term fees shall be allowed in appeal cases, deprive the trial judge of the right to allow such fees in his discretion.

      Mandamus by the Voigt Brewery Company, Limited, to compel George S. Hosmer, circuit judge of Wayne county, to award term fees to relator, as a part of its taxable costs.
    Submitted January 28, 1896.
    Granted February 18, 1896.

      James A. Randall, for relator.

      Edwin Henderson, for respondent.
   Long, C. J.

On August 4, 1894, William McCarthy instituted proceedings before a circuit court commissioner of Wayne county to obtain possession of certain premises. The commissioner rendered judgment in favor of the relator, from which McCarthy took a statutory appeal to the circuit court. On the trial in the circuit the court directed verdict in favor of the relator, which thereafter caused its costs to be taxed at the sum of $41.20 by the clerk of that court; but it appears that at that time no final judgment had been entered in the cause. Final judgment was thereafter entered in favor of the relator for full costs. Counsel for McCarthy thereupon moved to set aside the taxation of costs, and that order was granted, with $10 costs against the relator. The costs were afterwards taxed by the clerk at $30.95. Those costs were again set aside by the court, and the parties then agreed that the taxation of costs should be submitted to the court; and the court thereupon allowed the relator full costs, except $10 term fees, and less $10, which had been theretofore awarded McCarthy as costs of said motion. Application is made to this court for a mandamus to compel the respondent, as circuit judge, to set aside the order of taxation of costs, and to grant to the relator the $10 term fees, as the case had been regularly noticed and placed upon the docket for two terms of court prior to the term at which the cause was tried.

The petition for the writ sets up that, at the time the court taxed the costs, he stated orally as follows:

“I will say in this case that, when the original judgment was rendered, I had no intention of violating the rule of the court which my brethren and myself had agreed upon; that is, in all appeal cases to disallow term fees. If, in the case at bar, there had been no such rule in existence, I should concede you would be entitled to full costs, and the discretion in this case should have been exercised to give you full costs; but I had no intention of departing from the rule which had been established, and therefore I conceive that the judgment was entered wholly without any consideration of the question by the court, and, having been so entered, it must be amended, and you may recover all the costs which have been taxed, except the term fees.”

The circuit judge, in his return to the order to show cause, states that—

“Costs are awarded in the same manner in cases of this nature as in cases of appeals to the circuit court from judgments rendered before justices of the peace. 2 How. Stat. § 8307. By section 7026, 2 How. Stat., it is provided that ‘in all cases heard and determined on appeal [from justices of the peace] the costs, or such part thereof as to the court shall seem just, may be awarded to either party,’ etc. Inasmuch as the question of the awarding of costs in all appeal cases is left to the discretion of the trial judge, the judges of this court have adopted a rule that in all cases similar to this case, viz., appeals from justices’ courts, term fees would not be allowed the prevailing party, because of the inability of concluding the docket at any term; and, complying with this rule, and in the exercise of the discretion vested in me as circuit judge, I ordered a final judgment to be entered in the cause mentioned, allowing relator costs in the sum of $24.95. The only item of costs disallowed in the exercise of my discretion aforesaid was the sum of $10, claimed by relator for term fees for the April and June terms of this court, 1895.”

The circuit judge nowhere denies in his return that he delivered the oral opinion herein stated, or that, but for the rule adopted by the judges there, he would have allowed the term fees in the present case. It appears, then, that the circuit judge was of the opinion that the relator was entitled to its costs, including these term fees, and that costs would have been allowed but for the above rule.

Section 7026, 2 How. Stat., provides that—

‘ ‘ In all cases heard and determined oh appeal, the costs, or such part thereof as to the court shall seem just, may be awarded to either party, as the court may deem just and right between the parties in view of the particular circumstances of each case.”

Section 8307, in reference to appeals from circuit court commissioners, provides that appeals may be taken ‘ ‘ within the same time, in the same manner, and return may be compelled, and the same proceedings shall be thereon had, as near as may be, and with the like effect, as in cases of appeals from judgments rendered before justices of the peace, and costs shall be awarded and collected in the circuit court in the same manner.”

Under section 7026 the court is given discretion to award costs as it may deem just and right between the parties. This section has reference to appeals from justices of the peace; and it is evident, from section 8307, that the court shall, on appeals from circuit court commissioners, have the same discretion as to awarding costs. The respondent in the present case, in the exercise of his discretion, thought that costs, including term fees, should be awarded to relator, but felt bound by the general rule made by all the judges of that circuit, which provided that in appeal cases no term fees should be allowed.

Section 9004, 2 How. Stat., provides that—

“For every circuit or term at which a cause is regularly on the calendar, and not reached, or is postponed, excluding that at which it is tried or heard, five dollars: Provided, that in all cases heard and determined on appeal, the costs, or such part thereof as to the court shall seem just, in view of the particular circumstances of each case, may be awarded to either party.”

So that, by the various provisions of the statute, the term fees, as well as other costs in appeal cases from justices of the peace and circuit court commissioners, are in the discretion of the trial court. No general rule which the judges of the Wayne circuit may adopt in relation to costs in appeal cases can set aside or override these statutes, nor can such general rule deprive the trial court of the right, in view of the particular circumstances of each case, to award costs to either party. The trial court should be left untrammeled by any set rule to do justice in each particular case as the circumstances may appear to him at the time of the trial, and at liberty to exercise that discretion in awarding costs which these provisions of the statute contemplate. It appearing that the trial judge would have awarded these term fees to the relator but for the above rule, the writ will issue directing the respondent to include the term fees in the taxable costs of the relator.

Some suggestion is made that these statutes have reference only to money judgments which are obtained before justices of the peace, and appeals therefrom, and have no reference to other judgments, or to judgments rendered by circuit court commissioners. We think these statutes cannot be so construed.

The writ will issue as prayed.

The other Justices concurred.


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    PEOPLE v. POPE.
    1. Criminal Law — Homicide—Remarks oe Counsel.
    A statement by the prosecuting attorney in his opening to the jury upon the trial of a woman for the murder of her husband, that the respondent had procured an assignment to herself of certain policies of insurance on her husband’s life, is not prejudicial, although it afterwards appears that, instead of the policies having been assigned to her, she was the beneficiary named therein.
    2. Same.
    A remark by the prosecutor in such case that the relations between the respondent and the man who did the killing were filthy and improper is cured by an instruction that there is no testimony to show improper relations .between the parties, and that the argument of the prosecutor upon that point must be rejected.
    3. Same.
    The expression of an opinion by the prosecuting attorney as to the guilt of the respondent is not ground for a reversal, where the jury were expressly instructed to disregard such opinion.
    4. Same — Lost Instrument — Parol Evidence.
    Where, on the trial of a criminal case, the attorney for the respondent states that he will not insist upon a written notice to produce a paper claimed to have been left with the respondent, and which the people desire to introduce in evi. dence, and, on the following morning, says that he is unable to find any such paper, parol evidence of its contents is admissible.
    5. Secondary Evidence — Harmless Error.
    Error in the admission of secondary evidence of the contents of an instrument is cured by the subsequent introduction of the paper by the opposite party.
    6. Trial — Objections to Testimony — Appeal.
    An assignment of error based upon an objection to evidence which does not state the grounds of the objection will not be considered.

      7. Same — Admission of Incompetent Testimony — Practice.
    Where the answer to a question admissible as a preliminary inquiry contains incompetent or immaterial matter, the proper practice is by motion to strike it out.
    8. Criminal Law — Witnesses—Duty of Prosecutor.
    The prosecution upon a trial for murder having rested without calling certain witnesses whose names were indorsed on the information, respondent’s counsel demanded that they be called and examined, so that he could cross-examine them. Held, that by producing said witnesses, and tendering them to the defense for cross-examination, the prosecuting attorney performed his full duty, it appearing that none of them were eye-witnesses to the transaction.
    9. Trial — Illness of Witness — Practice.
    Where a witness becomes ill before her cross-examination is finished, so that it cannot be completed, the remedy is by motion to strike out her testimony, and an exception to the refusal of the court to compel the production of the witness for further cross-examination will not be sustained.
    10. Criminal Law — Instructions to Jury.
    It is not error in a criminal case to refuse instructions based upon the testimony of certain witnesses, unless such testimony forms the sole basis upon which a conviction can be had. Where, however, the result depends upon the testimony of a single witness, it is proper for the court to instruct the jury that, if they disbelieve his testimony, or if it does not convince them of the guilt of the respondent beyond a reasonable doubt, they should acquit.
    11. Same — Homicide—Intent.
    Upon a prosecution for murder, the motive for which was alleged to be the obtaining of insurance on the life of the deceased, an instruction that, as bearing upon the intent of the respondent, the jury should consider the fact that four years before, when the deceased was sick, and carrying a large amount of insurance payable to the respondent, the latter properly administered medicine to him, although an overdose would have caused his death, is properly refused.
    Error to recorder’s court of Detroit; Chapin J.
    Submitted January 30, 1896.
    Decided February 18, 1896.
    Nellie W. Pope was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.
    Judgment affirmed.

      Henry M. Cheever, John Atkinson, and G. X. M. Collier, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.
   Grant, J.

The respondent was convicted of murder in the first degree. The victim was her husband. One Brusseau, who was at the time a servant and nurse in the house, killed Mr. Pope with a hatchet. The theory of the prosecution was that the murder was committed under an arrangement agreed to between the respondent and Brusseau. Brusseau confessed the crime, told how it was done, and testified to the arrangement between respondent and himself. The motive was claimed to be to obtain a large insurance on Mr. Pope’s life in favor of respondent.

1. Complaint is made that the assistant prosecuting attorney, in his statement to the jury, said that Mrs. Pope had all the policies of insurance, with the exception of $3,000, assigned to herself, and that, on a certain occasion, when the officers went to her house, “she pretended she was sick, and could not understand the officers’ questions;” also, that the prosecuting attorney was permitted to express his opinion as to the guilt of the prisoner, and, also, to argue to the jury that “the relations between the prisoner and Brusseau were filthy and improper.”

The opening statement to the jury was made in good faith. It was shown that certain policies were assigned to Mrs. Pope, and the deed of assignment introduced in evidence. Even if it were true that she was the beneficiary in all the policies, the statement that they were assigned to her could not have prejudiced the jury.

The argument of tbe prosecuting attorney is not given in the record. The court, at the request of the respondent’s attorneys, instructed the jury that “the prosecuting attorney has no right to express his personal opinion as to the guilt of the prisoner. The jury should disregard his opinion, except so far as it is supported by the testimony.” After giving this request, the court further explicitly charged them that they must disregard the opinions of the attorneys, and be guided solely by the evidence, and also instructed them that there was no testimony to show improper relations between Brusseau and Mrs. Pope, and that the argument of the assistant prosecutor upon this point must be rejected. Under this charge, it is unnecessary to determine whether there was any testimony to justify the comments. It is doubtful if the court was correct in so stating. We find nothing upon this branch of the case to justify further comment or a reversal.

2. One Crawford, an attorney, was introduced on the part of the defense, and produced an affidavit, made by Brusseau, which contradicted his confession, and his testimony in court. The prosecutor subjected this witness to a rigid cross-examination, which is now claimed to have exceeded proper bounds. No objection was made to the admission of the testimony, and it is now too late to object. We think, also, that the examination was proper.

3. One Wurzer testified'that he was called by Brusseau, at the request of Mrs. Pope, to go to Mr. Pope’s house on the Saturday night prior to the murder; that Mrs. Pope wanted him, as a notary public, to acknowledge a paper made out by her attorney; that he saw and read the paper, and left it in the hands of Mrs. Pope. Some discussion arose between counsel, in the court, about the paper, in which counsel for the respondent said they did not insist upon a written notice to produce the paper, whereupon the court stated they might produce it the next morning. On the following morning, one of the attorneys for the respondent stated that he was nnable to find any such paper, whereupon the court allowed parol evidence of its contents. We think it was admissible; but the point becomes immaterial, because the paper was afterwards produced and admitted in evidence.

4. Mr. Frank P. Guise testified that he was. an attorney, and acted for an insurance company which had a $10,000 policy on Mr. Pope’s life; that a note for $253 was given for the first payment, signed by Mrs. Pope; that in 1891 he went to Mrs. Pope, and demanded this policy of her, and also one for another company. He was then asked, “What reason did you give why you demanded the policies back ? ” Respondent’s counsel objected to the question, but stated no grounds therefor. An assignment of error based upon such an objection will not be considered by this court. People v. Moore, 86 Mich. 134. As a preliminary question it was proper. If the answer contained incompetent or immaterial matter, the proper practice would have been a motion to strike it out, which was not done.

5. When the prosecution rested, respondent’s counsel called the attention of the court and of the prosecutor to the fact that certain witnesses, whose names were indorsed upon the information, had not been called, and demanded that they be called and examined in behalf of the people, so that the defense could cross-examine them. The prosecuting attorney stated that the evidence of these witnesses was cumulative. They were, however, produced, and tendered to the defense for cross-examination. None of these were eye-witnesses to the transaction. The prosecution had done all that the law required. People v. Henshaw, 52 Mich. 564; Wellar v. People, 30 Mich. 23.

6. One Mrs. Montgomery, a witness for the prosecution, became ill before the close of the cross-examination, fainted, and was carried from the court room. The defense reserved^’the right to further cross-examine her if they desired. Shortly after the prosecution rested, one of the respondent’s counsel stated [that he desired to ask Mrs. Montgomery three or four questions. She was then too ill to appear in court. The prosecutor then offered to go with prisoner’s counsel to her home, and take her deposition, which, however, was declined. No motion was made to strike out the testimony of the witness, nor was any reason shown why a further cross-examination was desired. People v. Kindra, 102 Mich. 147. The proper course for the respondent would have been a motion to strike out the testimony. Having failed to do so, she cannot now be heard to object because a further cross-examination was desired.

7. Several errors are assigned upon the oral charge of the court, and upon the refusal to give certain requests. Forty requests were preferred on behalf of the respondent, 29 of which were given, and covered fully the entire theory of her case. No possible room, under the instructions of the court, was left for the jury to determine the case upon any other theory than that she and Brusseau had entered into a conspiracy for the murder of her husband, and that it was successfully carried out. Some of the requests refused called the attention of the court to the testimony of certain witnesses, and asked specific instructions based upon it. This is not the duty of the court, unless the testimony forms the sole basis upon which conviction can be had. If the result depends upon the testimony of one witness, it would be entirely proper for the court to instruct the jury that, if they disbelieve his testimony, or if it does not convince them beyond a reasonable doubt, they should acquit.

Testimony was offered on the part of the people to show threats and propositions made by Mrs. Pope in 1891 to kill her husband. Testimony on the part of the 'respondent showed that Mr. Pope met' with an accident in 1891, in consequence of which he was confined to his bed for some time; that his physician prescribed morphine, which, if administered in larger doses than prescribed, might have produced death; that Mrs. Pope then had the care of her husband, and administered the morphine; that she did not administer any larger doses than were prescribed; and that he then held insurance upon his life to the amount of $40,000. Two requests were preferred upon this testimony, to the effect that the jury should take this into consideration as bearing upon the question of any intent on her part to take the life of her husband. This took place four years before the murder. The request, if given, would substantially have said to the jury that the fact that one had an opportunity to murder, and the motive for it, four years before, but did not improve it, would be evidence of no intent to murder at the time the deed was committed. We think the requests were properly refused. The question for the jury was her intent in 1895, and not in 1891. The testimony as to her statements and conduct in 1891, and the testimony in explanation thereof, were competent; and it was the province and duty of counsel to argue the facts, and their effect, to the jury; and it was also proper for the jury to consider them. It was neither essential nor proper for'the court to select this piece of testimony from all the rest in the case, and specifically charge the jury upon it.

All the other assignments of error involve principles which are familiar to the profession. They relate chiefly to the presumption of innocence, the credibility to be given to witnesses, including an accomplice, the duty of each juror to be convinced beyond a reasonable doubt, and the rule that, in order to convict, the facts proved must be all consistent with the theory of guilt and inconsistent with the theory of innocence. We do not deem it important to discuss the alleged errors. The instructions were correct and explicit, and fully guarded all the rights of the respondent.

The conviction is affirmed.

The other Justices concurred.