author: Steere, J.

text:
    LAPHAM v. OAKLAND CIRCUIT JUDGE.
    1. Mandamus — Conditions Precedent — Savins Questions for Review — Motions .
    Mandamus to set aside an order of the court, refusing the relief asked, will lie without a second application to vacate the order made: it is only in cases wherein the court has not passed oh the relief asked or questions presented, as where the opposing party has obtained some order, that an application to vacate must precede the filing of a petition for mandamus.

      2. Execution — Supersedeas — Capias ad Satisfaciendum — Statutes — Body Execution — Recall — Cause for Delayed Issuance.
    Good cause for four months’ delay in issuing a body execution after return of a property execution unsatisfied was shown, within the judicial discretion of the lower court, by plaintiff, who alleged that defendant’s attorneys frequently assured him their client would settle, and negotiations for a compromise were pending. 3 Comp. Laws, §§ 10412, 10413.
    Mandamus by Floyd Lapham against George W. Smith, Oakland circuit judge, to compel respondent to grant an application for the discharge of relator from custody under a body execution.
    Submitted April 16, 1912.
    (Calendar No. 25,043.)
    Writ denied May 31, 1912.

      William T. Hosner, for relator.

      Felton & McGree, for respondent.
   Steere, J.

On April 14, 1911, one Avery C. Garfield recovered from relator, Floyd Lapham, a judgment of $1,000 in an action for injuries received in the operation of a corn husker owned by said relator. On August 18th thereafter said Garfield caused to be issued an execution upon said judgment against the goods, chattels, and real estate of petitioner, which was returned unsatisfied September 19th following, the return day being September 18th. More than three months after such return, on January 15, 1912, a body execution was issued in said cause against relator, at the instance of said Garfield, by virtue of which process he was apprehended and confined in the county jail of Oakland county, where he still remains in custody. Claiming that his arrest was illegal for the reason that more than three months had elapsed between the return day of the property execution and the issuance of a capias ad satisfaciendum, relator made application in the circuit court of Oakland county for his discharge. Said application was heard and denied on February 19,1912, the circuit judge holdingthat good cause for such denial was shown by proof of certain overtures and negotiations between attorneys for the parties touching the filing of a bond or a compromise and settlement of said suit, which, in the opinion of the court, excused and justified the delay now urged against the relator’s imprisonment. In response to the order to show cause why a writ of mandamus should not issue, the circuit judge returns and certifies the proceedings had before him, consisting of a petition filed by relator asking for his discharge, certain affidavits, letters, and oral testimony taken at the hearing bearing upon what is claimed to be “good cause shown,” and the order denying relator’s petition for a supersedeas.

The record shows that between the return day of the property execution, September 18, 1911, and the expiration of three months, which would be on December 18, 1911, negotiations were pending between the parties for a settlement, conducted by their attorneys, and numerous conversations were had touching such settlement or filing a bond and settling a bill of exception. Numerous letters were exchanged. Portions of those written by relator’s counsel are as follows:

“ August 80, 1911. I will get Lapham over to Pontiac some day next week and do all I can to bring about a compromise upon terms satisfactory to all parties.”
“October 9, 1911. I am.now getting ready to try a will case which will take about two weeks of my time, and will then be able to take up with you the matter of adjustment of the Lapham matter. I am satisfied we can come to some amicable adjustment of this matter if both parties are willing to do what is reasonable and right, and I will certainly insist that my man take this position.”

At the hearing of this matter before the circuit judge, it was the contention of Garfield’s attorneys, based on the testimony introduced, that body execution would have issued against relator forthwith on return of the property execution but for these assurances and negotiations, which were pending until about January 5, 1912, at which time relator’s counsel informed them nothing further could be done looking to a settlement, after which the capias in question was promptly issued. That such negotiations were pending during this time is practically undisputed, but there is some conflict of testimony as to their extent and nature. The record fails to disclose that application was subsequently made by relator to the circuit judge to vacate the order complained of, and it is urged that mandamus will not lie until this is done.

It is further contended that under section 10413, 3 Comp. Laws, the question of whether or not petitioner was entitled to a supersedeas became, under the showing made, a matter within the discretion of the circuit judge depending upon whether or not he found that good cause had been shown for not taking out body execution within three months after return day of the property execution. Said section in part is as follows:

“ If any plaintiff shall neglect so to charge any defendant in execution, as required by the last two preceding sections, such defendant may be discharged from custody by a supersedeas, to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the contrary he shown.”

Relator relies upon preceding section 10412 which provides :

“ When any defendant shall be in custody upon a surrender in discharge of his bail, made after a judgment against him, and such bail shall be thereupon exonerated, the plaintiff in such judgment shall charge such defendant in execution thereon, within three months after such surrender, or if an execution against the property 'of such defendant shall have been issued, within three months after the return day of such execution.”

It being undisputed that more than three months intervened between the return of the property execution and issuance of the body execution, it is manifest that relator was entitled to be discharged out of custody by supersedeas unless “ good cause to the contrary” was shown, or unless counsel are right in their contention that relator is not entitled to mandamus because no application was made to the circuit judge to vacate the order which it is now sought to compel him to vacate.

In support of the latter contention, counsel cite and rely on Hitchcock v. Wayne Circuit Judge, 97 Mich. 614 (57 N. W. 189); Freud v. Wayne Circuit Judge, 131 Mich. 606 (92 N. W. 109); Aitken v. Chippewa Circuit Judge, 146 Mich. 129 (109 N. W. 223).

In Hitchcock v. Wayne Circuit Judge an order setting aside a judgment previously rendered in relator’s favor had been granted on motion of defendant. In Freud v. Wayne Circuit Judge relator sought to have vacated an order for a change of venue granted on application of the opposite party. In Aitken v. Chippewa Circuit Judge a motion to set aside an order pro confesso in a chancery suit in which relator was complainant had been granted on application of defendant.

In each of those cases affirmative relief was granted to, and on initiative of, the opposite party. It was therefore held that before mandamus would lie, proper practice required that an application to vacate should be made directly to, and refused by, the court which made the order complained of. This rule is based on the underlying principle that a prerequisite to mandamus is a showing that there was a proper request or demand by relator for the performance of a duty sought to to be enforced and a direct refusal thereof. In those cases that condition of affairs did not yet exist. In the case at bar it does. Relator was the moving party and made direct application to the court for the performance of an alleged duty which it is now sought to enforce, and on a full hearing the same was refused; Repeated applications to that court could not present the question more pointedly or squarely. The only order made by the court was a denial or refusal to grant the relief asked. Repeated applications and repeated denials would be idle and in the end leave the case as it now is except in event the judge might finally grant relator’s request lest with continual coming he weary him. The rule invoked does not require a second application to be made where the point has been once squarely presented to the court and the request directly made and refused.

Was good cause shown to the contrary for not granting relator’s application for a supersedeas ? In Douglass v. Manistee Circuit Judge, 42 Mich. 495 (4 N. W. 225), where an application similar to this was made, the good cause urged as an excuse for delay was the removal of the case to the Supreme Court by writ of error. It was there said:

“We think no sufficient cause was shown in this case to prevent his discharge. Notwithstanding the removal of the case to this court on writ of error, no bond having been filed by the plaintiff in error to stay the proceedings, the plaintiffs were at liberty to proceed in the usual manner and collect their judgment. No reason is alleged why this was not done.”

In Metcalf v. Moore, 128 Mich. 138 (87 N. W. 129), this court sustained the circuit judge in granting a supersedeas and in holding that pendency of chancery proceedings was not an excuse for delay.

Both of those cases turned on questions of law; it being held that other legal proceedings, which in no way precluded issuing a body warrant, are not good cause for delay. The pendency of legal proceedings urged in those cases is the antithesis of overtures and negotiations for settlement. In those cases the plaintiffs were, as a matter of law, at liberty to proceed in the usual manner and collect their judgments, and no other reasons were alleged, and no other showing was made why this was not done. Here we have a showing of pending negotiations and assurances from which a settlement might be anticipated involving questions of fact.

The provisions of our statute touching body executions follow to some extent and preserve the essence of old Eng- , lish rules of practice, prescribing methods of procedure, and prohibiting unreasonable delay, in attempting to collect a judgment by imprisonment for debt. An early rule in the exchequer providing in detail the course of procedure in certain cases says, among other things:

“ In case of a surrender in discharge of bail, after final judgment obtained, unless the plaintiff shall proceed to cause the defendant to be charged in execution upon the said judgment within two terms next after such surrender, and due notice thereof, * * * the prisoner shall be discharged out of custody by supersedeas, unless, upon notice given to the plaintiff’s attorney or clerk in court, good cause shall be shown * * * to the contrary.” 1 Tidd’s Practice, p. 363.

In Walter v. Stewart, 3 Wilson K. B. 455, where there was a treaty for an accommodation resulting in an agreement between the parties for a settlement and compromise of the matters, in difference, which caused delay beyond the legal time for declaring against defendant in custody of the warden of the fleet, it was said:

Per Curiam: “It is for the benefit of prisoners that plaintiffs will listen to proposals of accommodation, but no plaintiff would listen to such proposals, if prisoners should thereby become supérsedable; the defendant himself hath been the occasion of the plaintiff’s not declaring within the time limited by the rules and practice of the court, and therefore the rule to show cause why a supersedeas should not issue must be discharged.”

In the case at bar the court found, as a matter of fact, that defendant was the occasion of plaintiff not proceeding with the harsher remedy at his command within the time set by statute. The expression “good cause,” found in the statute, is so general and elastic in its import that we cannot presume any legislative intent beyond opening the door for the court to exercise its best judgment and discretion in determining if conditions exist which excuse the delay when special circumstances are proven to that end.

Where it was provided by code that no action should be brought upon a judgment except in certain cases, without leave of the judge of the court “for good cause shown,” it was held that what is good cause is a question exclusively within the discretion of the judge to whom the application is made. Kendall v. Briley, 86 N. C. 56. Under similar statutory provisions it has also been held that the powers of the court, touching application for a supersedeas, are discretionary and the same may be denied when it appears that the adverse party has shown sufficient reason for delaying beyond the time fixed by statute for issuing execution. De Silva v. Holden, 11 N. Y. Civ. Proc. 404; Longuemare v. Nichols, 7 N. Y. Supp. 157.

The affidavits and testimony presented disclosed to the court facts and circumstances in controversy moving it to act and exercise its discretion. After considering the affidavits and oral testimony offered and arguments of counsel, the court said:

“ Nevertheless, I am clearly satisfied that the talk of filing a bond, and the talk of getting the parties together for a settlement, did actually mislead the attorneys for plaintiff ” — and denied the petition.

Under the circumstances of this case, the question was within the discretion of the circuit judge, and we are not prepared to hold that there was an abuse of such discretion.

The writ is therefore denied.

Moore, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    PRYBESKI v. PIECHOVIAK.
    Mortgages — Foreclosure—1Taxes—Decree—Redemption.
    Provision for reimbursement being made by a contract supplemental to the mortgage instrument for all expenditures of a mortgagee for repairs, taxes, and insurance, the decree properly allowed to him amounts so expended.
    Appeal from Bay; Collins, J.
    Submitted April 8,1912.
    (Docket No. 67.)
    Decided May 31, 1912.
    Bill by Mary Prybeski and another against Anton Piechoviak for an accounting and to redeem from a land contract as from a mortgage. Prom a decree for complainants granting less than the relief claimed, they appeal.
    Affirmed.

      James Van Kleeck, for complainants.

      Joslyn & Houghton, for defendant.
    On August 23, 1905, complainants were the owners in fee simple of the land in question in this suit. On that day the complainants deeded the land to defendant, and on the same day a contract was entered into between the parties, as follows:
    “ This indenture, made and entered into the 23d day of August, A. D. 1905, by and between Anton Piechoviak, of the city of Bay City, Bay county, Michigan, party of the first part, and William Y. Prybeski, of the same place, party of the second part, witnesseth as follows: Whereas, said second party has this day made, executed, and delivered to said first party, a deed conveying the following described property, to wit: ‘ The east 28x5? ft. of lot No. 8 and fractional lot nine (9) in block two hundred twenty-one (221) of the village of Portsmouth, now Bay City,’ as per plat thereof duly recorded in the office of the register of deeds, Bay county, Michigan, and which said deed is made for the purpose of securing the said Anton Piecboviak for certain moneys to be advanced to the said William V. Prybeski, as herein provided: Now, therefore, said first party agrees that on the signing and delivery of this contract he will pay to the said second party five hundred ($500) dollars, to be used by said second party in paying all taxes in arrears on said property and in paying for certain work heretofore done and to be done in and about the erection of a building on said property. Said second party agrees to commence at once and erect on said premises a good substantial building in accordance with certain plans and details heretofore agreed upon and understood by and between the parties hereto, and which said building is to be completed on or about the first day of November, A. D. 1905, and earlier if possible, or as soon thereafter as may be. Said first party agrees from time to time and as often as the same shall become due and payable, to pay for any and all material purchased for use in erecting said building and for any and all labor employed in and about the erection and completion of said building; a correct and accurate account shall be kept of the cost of the erection of said building, together with the past due and accrued taxes paid therefor, and if the total sum shall not equal two thousand ($2,000) dollars, then said first party when said building is fully completed and ready for occupancy agrees to pay to said second party such additional sum as shall equal two thousand ($2,000) dollars; and, if the said taxes and cost of said building shall exceed two thousand ($2,000) dollars, then said second party agrees upon the completion of said building to repay said excess to said first party. Said first party is to have possession of said building and of said premises as soon as said building is completed and is to continue in possession under the terms and conditions of this agreement for a period of five years from and after the completion of said building, with the privilege of renewing the right to remain in possession of said building until the first day of May following the expiration of said five years on the same terms as herein provided and for such longer period or periods as the parties may then agree to. Said first party, for the use of said building and premises, agrees to pay said second party the sum of four hundred ($400) dollars per annum, payable quarterly in advance, commencing with the date when said building is completed and ready for use and continuing for said period of five years. Said second party in consideration of the premises and in payment of the moneys herein provided to be advanced by said first party, agrees to pay to said first party the just and full sum of two thousand ($2,000) dollars, payable as follows, to wit: One hundred ($100) dollars when said building is fully completed and ready for occupancy, and one hundred ($100) dollars every three months thereafter until the said sum of two thousand dollars has been fully paid, together with interest on all sums remaining unpaid, which interest is to be payable annually. Said second party agrees to pay promptly and in due season all taxes that may be levied or assessed on said premises, ordinary as well as extraordinary, and in default-of such payments by said second party, said first party may pay such taxes, and the amount so paid by the said, first party shall be added to the amount due under this agreement and shall become due and payable at once, anything herein to the contrary notwithstanding. Said second party also agrees to keep the building or buildings to be erected on said premises insured against loss by fire in responsible insurance companies in amounts satisfactory' to said first party and to pay the premiums therefor, and. in default thereof said first party may effect said insurance and the premium or premiums paid by said first party shall be added to the amount due under this contract and become due and payable at once, anything herein to the-contrary notwithstanding. All insurance shall be payable to said first party as his interest may appear. On the payment of the within and foregoing sums herein provided to be paid by said second party to said first party, together with the interest thereon, as herein provided, said first party agrees to make, execute and deliver to said second party a good and sufficient deed of conveyance of said premises free and clear of any and all liens or encumbrances placed or to be placed thereon, or permitted to be placed thereon by said first party Said second party agrees that upon the payment of the several sums herein provided to be paid by said first party said first party may and shall have and hold the quiet and peaceable possession of said premises during the continuance of this lease and agreement. It is.further mutually agreed between the parties that during the continuance of this agreement said second party shall keep said premises and each and every part thereof in as good repair as when received by said first party, reasonable use and wear thereof and damages by the elements excepted. It is further mutually agreed that said second party, during the continuance of this agreement is to at all times have free access to the south ten (10) feet of the property herein described, for use as a driveway or road, to reach the other parts or portions of the lots herein described. In case of default in the performance of any of the terms or conditions contained in this contract, if such default shall continue for a period of 90 days, the other party may, after giving 30 days’ notice in writing, take proceedings to annul and rescind this contract, and if such default is on the part of said first party then said second party may take proceedings to regain possession of said premises in accordance with the statutes in such case made and provided. It is further agreed that said first party shall not sell, assign or transfer the possession of said premises or the leased portions of this agreement without the consent of the second party in writing. It is mutually agreed that several quarterly payments of rent provided for herein to be paid by said first party are to be so paid by said first party by the offset by said first party to said second party of one of the quarterly payments herein provided to be made by said second party to said first party. This agreement is to be binding upon the heirs, executors, administrators and assigns of the respective parties hereto, except as herein otherwise provided.
    “In witness whereof, said parties have hereunto set their hands and seals at the city of Bay City, Bay County, Michigan, this twenty-third day of August, A. I). 1905.
    “ Made in Duplicate.
    “Anton Piechoviak. [L. S.]
    “ William Y. Prybeski. [L. S.] ”
    This contract was later modified by the following:
    “Whereas Anton Piechoviak has heretofore begun suit in the circuit court for the county of Bay, against William Y. Prybeski, for the purpose of foreclosing a certain land contract made and dated August 23d, 1905; and, whereas said parties have compromised and settled their differences, now, therefore: It is agreed that the said William V. Prybeski is now owing the said Anton Piechoviak on said contract and for other matters the sum of twenty-eight hundred and seventy-two dollars ($2,872.00), and in consideration of the delivery by said Piechoviak of a note for seventy-five dollars ($75.00), made June 26th, A. D. 1905, the said William V. Prybeski herewith delivers and releases to the said Anton Piechoviak the said land contract in question, together with all of his rights therein, except as follows: That said William V. Prybeski may at any time on or before the first day of May, A. D. 1910, pay the said sum above named as being due to the said Anton Piechoviak, together with the cost of all ordinary and necessary repairs to keep said building in as good a condition as at the present time, except wear and tear and reasonable use thereof, together with the actual cost of a new shed in the rear of said premises, if one shall be erected, which cost shall not exceed one hundred dollars ($100), including the material in the old shed, together with the interest thereon at six per cent, per annum, and any and all taxes and insurance hereafter paid on said property or the buildings thereon, with interest as aforesaid, less the amounts which would become due from time to time for the rent of said premises as provided in said contract, then the said Piechoviak agrees to redeliver said contract to said Prybeski and to make and execute a deed as in said contract provided. If said Prybeski shall pay the sum above named the settlement shall be had upon the crediting to him of the same interest on the rents falling due, as is provided in said contract. Rents are herein included and credited for $300 to October 8th, 1906. The said Prybeski and his tenants are to have the right of ingress and egress across the south ten feet of said premises described in said contract, during the time herein provided for and so long thereafter as the said Piechoviak shall own and control said property. The said Piechoviak agrees to keep the buildings on said premises insured in a reasonable sum and in good and responsible fire insurance companies.
    “ In witness whereof, said parties to this agreement have hereunto set their hands and seals, at the city of Bay City, Bay county, Michigan, this twenty-fifth day of September, A. D. 1906.
    “Anton Piechoviak.
    “William V. Prybeski.”
    Complainants pray for an accounting and for leave to redeem. Defendant by way of cross-bill asks for an accounting, and, in default of payment of the amount found to be due him, for a sale of the premises. Both parties treated the deed and contract together as a mortgage, and the trial judge held them to be such. The record shows no dispute as to the sums paid out by defendant, but there is a dispute as to his right to have credit for certain expenditures. The circuit judge stated the account, and on December 22, 1911, made a decree of foreclosure, finding the sum due defendant as of January 8, 1912 (that being the day on which one of the quarterly payments was due), to be $2,274.25. From this decree complainants appeal.
   Brooke, J.

(after stating the facts). It is the claim of complainants, as we understand it, that they are not dissatisfied with the decree of foreclosure, but complain only that the amount found to be due is too large. Counsel for complainants furnishes us a computation in his brief which shows a balance against his clients of $1,096.59, instead of $2,274.25, as found by the circuit judge. To reach this result counsel fails to give defendant credit for all sums paid out by him for taxes, repairs, or insurance from 1906 to 1911. In this we think he is in error. The supplemental contract provides that (in case of redemption) complainants shall pay the sum therein agreed upon as being due, together with the cost of repairs, taxes, and insurance, with interest, less the rent to be credited from time to time. We are of opinion that the learned circuit judge reached a proper conclusion in the accounting.

Complainants urge that they should not be compelled to pay costs in any event, inasmuch as defendant was denying all rights of complainants to any equity in the property. We have examined the record with care, and do not find this claim to be borne out by the evidence, though William Y. Prybeski swore that defendant claimed to own the property now. Upon the consideration of the whole record we are disposed to agree with the conclusion of the trial judge as to costs.

The judgment is affirmed, with costs.

Moore, C. J., and Steere, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
      In re CAMERON’S ESTATE. GOODELL v. YEZERSKI.
    1. Descent and Distribution — Illegitimate Child — Bastards— Statutes.
    Children of an illegitimate take by right of representation from the estate of the illegitimate’s mother, under 3 Comp. Laws, § 9065, after the death of their parent. Curtis v. Hewins, 11 Meto. (Mass.) 294, criticized.

    2. Same — Statutory Construction — Decisions of Sister State.
    After the adoption of a statute from a sister State, decisions of the courts thereof, not made prior to the enactment of such law, are not controlling in the interpretation of the act, and are considered as advisory only.
    Error to Alpena; Emerick, J.
    Submitted April 10, 1912.
    (Docket No. 95.)
    Decided May 31, 1912.
    Appeal by Anastasia Goodell from an order of the probate court of Alpena county assigning to Casimir Yezerski and Elizabeth Blavet the estate of Anna Cameron, deceased. Judgment for appellees, and said Anastasia Goodell brings error.
    Reversed.

      Ignatius J. Salliotte, for appellant.

      Joseph Gavanagh, for appellees.

       As to inheritance from illegitimate, see note in 23 L. R. A. 753. Right of lineal descendants to inherit through illegitimate, see note in 27 L. R. A. (N. S.) 220.

   Brooke, J.

Anna Cameron died intestate April 16, 1910. She was never married, but had an illegitimate son, Antoine Dennoyer, who died November 13, 1900. The appellant, Anastasia Goodell, is the legitimate and only child of Antoine Dennoyer. The estate of Anna Cameron was duly administered in probate court and an order there made assigning the residue thereof to Casimir Yezerski and Elizabeth Blavet, the brother and sister of Anna Cameron. An appeal was taken to the circuit court, where the order of distribution was affirmed. Anastasia Goodell has now removed the case to this court for review by writ of error. The sole question raised upon the record is the proper construction to be given to 3 Comp. Laws, § 9065:

“ Every illegitimate child shall be considered as an heir of his mother, and shall inherit her estate, in like manner as if born in lawful wedlock; but shall not be allowed to claim, as representing his mother, any part of the estate of any of her kindred, either lineal or collateral.”

Michigan adopted this statute from Massachusetts, and it will be found in the Revised Statutes of 1838, at page 268. Some eight years after it became a part of the statute law of Michigan, it received judicial construction by the Massachusetts court. Curtis v. Hewins, 11 Metc. (Mass.) 294. In that case the precise situation had arisen which is here presented, and the court held, without discussion, that “the statute provision did not apply to grandchildren of the mother of an illegitimate child.”

It is contended by the appellees that this construction is controlling upon this court, under the authority of Besser v. Alpena Circuit Judge, 155 Mich. 631 (119 N. W. 902); Preston Nat. Bank v. Wayne Circuit Judge, 142 Mich. 272 (105 N. W. 757). In the latter case it is said that:

“ It is an established rule of construction that the adoption of a statute of a sister State is presumed to have been had with reference to the previous construction given to such statute by the courts of such State ” — citing cases.

This rule is not absolutely imperative. Stellwagen v. Wayne Probate Judge, 130 Mich. 166 (89 N. W. 728). The rule, however, can have no application in the instant case, because the statute under consideration did not receive judicial construction in Massachusetts until long after its adoption by this State. The decision in that State should receive just that consideration as authority to which it would be entitled under ordinary circumstances. Examined in this light, it is not convincing. The statute is not analyzed, and no reason or authority is advanced in support of the conclusion. It is a bald determination of the point at issue without more.

We are therefore free to adopt such a construction of the law in Michigan as commends itself to our judgment. 5 Cyc. p. 642, note 95, states the rule as follows:

“The death of the illegitimate before descent cast will not preclude his issue from receiving the estate which would have vested in him and be thereby transmitted to his issue were he alive.”

Cases from various jurisdictions are cited by the author in support of the rule. In addition to those cited, the following cases also lend strength in some measure to the proposition: Turnmire v. Mayes, 121 Tenn. 45 (114 S. W. 478); Houston v. Davidson, 45 Ga. 574; Bales v. Elder, 118 Ill. 436 (11 N. E. 421); Jenkins v. Drane, 121 Ill. 217 (12 N. E. 684); McGuire v. Brown, 41 Iowa, 650; Brewer v. Hamor, 83 Me. 251 (22 Atl. 161); Coor v. Starling, 54 N. C. 243; McBryde v. Patterson, 78 N. C. 412; Powers v. Kite, 83 N. C. 156; Grundy v. Hadfield, 16 R. I. 579 (18 Atl. 186). It is stated in 27 Am. 6 Eng. Enc. Law (2d Ed.), at page 333:

“According to the construction placed upon some of the statutes which confer inheritable qualities upon illegitimate children, the lawful issue of a deceased illegitimate parent does not inherit the estate of a parental or maternal ancestor of the parent to which the bastard would have been entitled if living.”

Four cases are cited in support of the text, only one of which is direct authority upon the point. That one is Curtis v. Hewins, supra. The text continues:

“ But the statutes of some of the United States are given a different construction, and the children of a deceased illegitimate child succeed to any estate which the illegitimate would have inherited if alive” — citing many of the cases noted above.

An examination of all the decisions will disclose that the statutes under which they were pronounced were not exactly like our own, nor are the facts the same in any case except Curtis v. Hewins, supra. The facts in the case of Grundy v. Hadfield, supra, are not similar to those in the case at bar, and the Rhode Island statute differs from our own. It provides:

“ Bastards shall be capable of inheriting or transmitting inheritance, on the part of their mother, in like manner as if they had been lawfully begotten of such mother.”

In an earlier case (Briggs v. Greene, 10 R. I. 495), the court in construing the statute said:

“They shall inherit as the same mother’s legitimate children might. The illegitimate are put on the same footing as the legitimate for the purpose of inheritance, and for this purpose are legitimate. They have then all the same kindred as her legitimate children have, and when those born in lawful wedlock take by descent according to degrees prescribed by the statute, the others take also.”

It will be noted that the foregoing excerpt deals only with the rights of the bastard to inherit under the statute. His right to transmit such inheritance collaterally is granted by the statute. He could always at common law transmit his inheritance lineally to his own descendants. This case dealt with the right of one illegitimate daughter to inherit under the statute from another illegitimate daughter of the same mother; the' mother having predeceased her. The Iowa statute provides that:

“ Illegitimate children inherit from the mother and the mother from the children.”

In the case of McGuire v. Brown, supra, this statute was construed. There, the deceased left surviving birr» two brothers and one Martha L. Gibbins, an illegitimate daughter of his deceased sister, Sarah McGuire. The facts therefore are, upon principle, the same as those in the case at bar. The court said:

“This section constitutes an illegitimate child a lawful heir of the mother, for the capacity to inherit being conferred, it follows that the child is in effect an heir to the mother and the mother an heir to the child.”

The North Carolina cases, are not of value, because they do not deal with the precise question here at issue. The Illinois statute is so much broader than our own that the decisions in that State lose value as direct precedents. The case of Ash v. Way's Adm'rs, 43 Va. 203, is instructive. See, also, Turnmire v. Mayes, supra.

While many of the cases cited have no direct or controlling effect upon the question now before us, they do serve to illustrate the fact that the progress of civilization and the spread of correct ideas upon the subject have tended largely to the amelioration of the condition of illegitimates and to the obliteration of the old common-law doctrine that they were to be regarded as outcasts. The statute in question is remedial in character, and it is to be presumed that the legislature intended the most beneficial construction of the act consistent with a proper regard for the ordinary canons of construction. Notwithstanding the rule that a statute in derogation of the common law must be construed strictly, it is well settled that it must be construed sensibly and in harmony with the legislative purpose. What was that purpose as indicated by the statute ? If it was the legislative intent to take care of the interest of the illegitimate alone, the statute would have been complete when it said:

“Every illegitimate child shall be considered as heir of his mother.”

Those words alone were sufficient to clothe the illegitimate himself with heritable qualities so far as his mother’s estate was concerned. But other words were added:

“And shall inherit her estate in like manner as if born in lawful wedlock.”

This language is used to qualify or define the character of his heirship provided for earlier in the section. He is an heir of his mother. What kind of an heir? An heir the same as if born in lawful wedlock. What are the incidents of heirship of one born in lawful wedlock? Obviously the first and most important is the right to transmit his inheritance to the heirs of his body. But we are of opinion that, even without the definitive words, the situation would be the same, for at common law the illegitimate could transmit his inheritance to the heirs of his body.

The judgment assigning the residue of the estate to the brother and sister of Anna Cameron is reversed, and the case remanded for further proceedings in accordance with this opinion.

Moore, C. J., and Steere, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    HACKETT v. KENNING.
    Fraudulent Conveyances — Creditor’s Suits — Execution — Equitable Title — Estates by Entireties
    Execution may be levied in attachment proceedings upon lands of the judgment debtor, which he held in his own name at the time he incurred the indebtedness sued upon, but which he fraudulently and without consideration conveyed to a third person thereafter, who conveyed it to the debtor and wife jointly: the deed being void as to creditors, left the legal title in the grantor as if no conveyance had been made, and a bill in aid of execution was properly brought to set aside the fraudulent conveyance.

      Appeal from Kent; Perkins, J.
    Submitted April 12, 1912.
    (Docket No. 80.)
    Decided May 31, 1912.
    Bill by Richard H. Hackett against Martha A. Kenning and others in aid of an ezecution at law. From an order overruling a demurrer to complainant’s bill, defendant Martha Kenning appeals.
    Affirmed.

      Cleland & Heald, for complainant.

      Ellis & Ellis, for defendant.
    On January 21, 1910, defendant John E. Kenning was the owner in fee simple of a certain piece of real estate. On that day he and his wife, Martha A. Kenning (defendant), joined in a mortgage to defendant Kent State Bank upon which it is claimed $5,000 is due. On October 17, 1910, the land was conveyed to defendant John G. Lee, who on the same day reconveyed it to the defendants Kenning or the survivor, thus creating an estate by the entireties. On May 16, 1911, complainant caused a writ of attachment to issue out of the circuit court for Kent county, against the lands, goods, etc., of defendant John E. Kenning. On the same day the sheriff of said county levied said writ upon the lands held by the defendants by the entireties, but never personally served the writ upon the defendant John E. Kenning. On September 12,1911, complainant took judgment in the attachment suit against defendant John Kenning in the sum of $1,083.67, and on the 25th of September, 1911, caused a writ of fieri facias to issue. The sheriff made a levy under this writ the following day upon the lands covered by the attachment levy.
    Complainant alleges in his bill of complaint that the several conveyances made by and to the defendants Kenning were not real, but were a mere sham máde with the intention of defrauding complainant and other creditors of John E. Kenning, and, further, that said Kenning has no other personal or real estate subject to levy and sale. Complainant further alleges that the indebtedness for which the judgment was rendered, accrued before the making of the deeds of October 17, 1910. He prays:
    “ (a) That the defendant Kent State Bank may answer the following interrogatories: (1) What is the amount of the indebtedness of the said defendant John E. Kenning to said defendant Kent State Bank claimed by the said Kent State Bank to be secured by the terms of said mortgage? (2) When was said indebtedness incurred? (3) What is the form of said indebtedness ? (4) What is the form of each item of said indebtedness, and when incurred? (5) What was the consideration for each item of said indebtedness ?
    “(b) And that upon the hearing thereof the said conveyance from John E. Kenning and wife to John Lee, and from John G. Lee to John E. Kenning and Martha Kenning, his wife, or the survivor, including the deed thereof as to the complainant be set aside, vacated and declared null and void.
    “(c) That upon the hearing thereof the amount of the indebtedness of said John Kenning to the said Kent State Bank, which is a valid lien on said premises under said mortgage, prior to the lien of your orator, be determined, and that .as to the excess thereof as to the complainant, said mortgage be set aside, vacated, and declared null and void.

      “(d) That the complainant maybe authorized to proceed upon his said writ of fieri facias, issued as aforesaid, or issue another writ thereon as it may deem necessary.
    “(e) That the sheriff of said county be thereupon directed to proceed to levy upon, advertise, and sell said premises for the payment and satisfaction of your orator’s said judgment, interest, and costs.
    “ (/) That your orator may have such other and further relief in the premises as equity may require and to this honorable court shall seem meet.”
    To the bill of complaint defendant Martha Kenning interposed a demurrer for the following reasons:
    “ (1) That the court had no jurisdiction to render the judgment at law.

      “ (2) That the bill cannot be maintained as a creditor’s bill, because no execution was returned unsatisfied in whole or in part.

      “ (3) That the bill cannot be maintained as one in aid of execution, because the title of John E. Kenning to the land was equitable, and not legal.
    “(4) That it does not appear from the said bill of complaint that there was any personal service of the writ of attachment, issued against said John E. Kenning in said cause wherein judgment specified in said bill of complaint was taken, was ever served upon the defendant John E. Kenning, or that the circuit court for the county of Kent ever acquired jurisdiction to render the said judgment mentioned in said bill of complaint against the said defendant John E. Kenning.
    “(5) Because it does not appear from said bill of complaint that any property belonging to said John E. Kenning and situated in the county of Kent, where said suit was instituted, was attached in said cause.
    “(6) Because under the facts set forth in said bill of complaint any title to or interest which said defendant John E. Kenning might have in said lot 21, block 4, of Mills’ addition to the city of Grand Rapids, Mich., could only be reached by a creditor’s bill, and it doss not appear from the bill of complaint herein that any execution against said John E. Kenning has been issued on said judgment and returned unsatisfied prior to the filing of this bill of complaint.”
    Defendant’s demurrer having been overruled, she appeals. .
   Brooke, J.

(after stating the facts). Under the facts set out in the bill of complaint, which, under the demurrer, must be taken as true, for the purpose of this determination, it appears:

(1) That defendant John Kenning, while the holder of the legal and equitable title to the lands in question, became indebted to the complainant in the sum now represented by the judgment.

(2) That he caused the conveyances in question to be made with the intention of defrauding complainant and his other creditors.

(3) That said conveyances were made without consideration.

(4) That the estate by the entireties, thus apparently created by the fraudulent deeds, never in fact existed; but the legal title remained, as it was before their execution, in John E. Kenning.

This case is clearly within the decision of this court in Archer v. Laidlaw, 129 Mich. 198 (88 N. W. 465). The arguments and citations supporting that decision need not be here repeated. The late case of Bliss v. Tyler, 159 Mich. 502 (124 N. W. 560), is to be distinguished from the case at bar, in that the legal title to the lands attached in that case never was held by defendant Tyler. In the case of Trash v. Green, 9 Mich. 358, the legal title to the property in question never was in the judgment debtor, and the bill was dismissed, but the court said:

“Where the title before the conveyance has been vested in the debtor himself, and he has conveyed for the purpose of defrauding his creditors, the right of .creditors to levy and sell rests upon the ground that, the deed being void as to creditors, the legal title, as to them, still remains in the debtor, as if no conveyance had been made.”

The order overruling the demurrer is affirmed, with leave to defendant to answer within 15 days.

Moore, C. J., and Steere, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    CRAWFORD v. CALKINS.
    1. Contracts — Interpretation—Profit Sharing Agreement — Partnership.
    Under the provisions of a contract to manage the business of defendants for one-third of the net profits and for actual expenses in addition thereto, said manager not to be a partner nor to be liable for losses sustained in the business, which con • sisted of buying and selling horses, payment therefor being received in notes-that ran from one to three years and were negotiated generally before maturity, an action would not lie on the contract for the manager’s commissions until all outstanding notes were paid and the net profits became certain.
    2. Same — Words and Phrases — Net Profits.
    Net profits are what remain as a clear gain in any business venture after deducting the capital invested in the business and the losses and expenses incurred in its conduct.
    3. Same-Losses.
    The term losses includes such accounts as are to be treated as bad and uncollectible, and.the clause exempting him from liability for losses or any portion thereof did not authorize him or his assignee in claiming only profits undiminished by , failure to collect accounts or by other losses.
    Error to Shiawassee; Miner, J.
    Submitted April 11, 1912.
    (Docket No. 5.)
    Decided May 31, 1912.
    Assumpsit by Mamie E. Crawford, assignee of John Crawford, against Beattie W. Calkins and another for commissions due for services performed by plaintiff’s assignor. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Bernard B. Selling and John T. McCurdy, for appellant.

      Odell Chapman, William M. Kilpatrick, and F. J. Northway, for appellees.
   Brooke, J.

This action is brought by plaintiff as assignee of her husband for an alleged breach of the following contract:

“Byron, Mich., Oct. 26, 1907.
“ Whereas B. W. Calkins, of Yenice township, and E. F. Augsbury, of the same place, have agreed to enter into the business of importing and selling high-class stallions, but said parties not being familiar with said business, therefore, they have this day hired John Crawford, of Byron, Michigan, to act as general manager in buying and selling said horses (the financial end of said business to be looked after and controlled by said Calkins and Augsbury). It is mutually agreed that said Calkins and Augsbury are to furnish all money necessary to properly conduct said business, and at proper times and seasons, and to render such aid and help in buying and selling said horses as said Crawford may request; and the said Crawford is to devote such personal time and attention to the purchase and sale of said horses as good business requires, and in consideration of said Crawford’s services, and expense to be rendered to said Calkins & Augsbury, it is mutually agreed that said Crawford shall receive as pay for his time, service and expense in buying and selling horses for them: First. All of his actual expenses in and about carrying this agreement into effect and about his work hereinunder. Second. He is to receive the sum óf 33£ per cent, of all net profits derived from the sale of such horses, and jacks or other animals herein-under. It is mutually agreed that this contract shall be and remain in full force and effect as long as all parties are satisfied; but, in case dissatisfaction arises, then all questions shall be settled by arbitration; but said Crawford shall not be deprived of the amount of his commission that he might be entitled to under this contract on all unsold horses, jacks or other animals on hand; and when his commissions are paid and adjusted then all of said horses, jacks and personal property to be and belong to said Calkins & Augsbury, released of and from all claims of said Crawford for commissions. If there are any losses sustained in carrying on this business, the said Crawford shall not be liable for any part or portion thereof, as said Crawford is not a partner nor interested in said business except as herein provided. The said Crawford is to furnish to Calkins & Augsbury each and every 30 days statements in writing of his expenses under this contract; and it is mutually agreed that all books, accounts and statements of and concerning the business to be carried on under this contract shall be properly kept and open at all times to inspection by each of the parties hereto; and it is mutually agreed that said books and accounts shall all be kept at Byron, Michigan, and in case of dispute' or dissatisfaction said books and accounts shall be delivered to the arbitrators. All expenses incurred in and about carrying into effect this contract and agreement by any and all persons shall be delivered to the bookkeeper at Byron, Michigan, once in each and every thirty days. All settlements and balances to be paid to Crawford or his assigns, each and every quarter after date thereof.
“Witness our hands and seals this 26th day of October, A. D. 1907.
[Signed] “B. W. Calkins. [L. S.]
“E. F. Augsbury. ‘L. S.]
“ John Crawford.” [L. S.]

Under this contract, plaintiff’s assignor immediately entered upon his employment and continued thereunder for approximately three years. The ordinary method of doing business was to sell a horse to a number of individuals or stock companies for a stated sum, taking therefor from the purchasers three promissory notes, payable one, two, and three years after date, with interest. These notes were sometimes, perhaps usually, sold or discounted in the vicinityNwhere their makers resided. The notes were all made payable to the order of Calkins & Augsbury, and such of them as were sold were indorsed by them or by John Crawford, acting for them under a power of attorney. From $50,000 to $70,000 of this paper was discounted by Crawford personally, under instructions from Calkins & Augsbury to secure the best terms possible.

■It is conceded that, at the time of the trial, notes amounting to $79,284.66 were still outstanding, and that if plaintiff was not entitled to one-third of that amount until the notes were paid, she would have.no claim which could be reduced to a judgment at the present time. Plaintiff’s claim is stated by her counsel as follows:

“ Our contention is that the moment Calkins & Augsbury took a note bearing the legal rate of interest, 6 or 7 per cent, as the case may be, on a horse, that that closed the transaction as far as Mr. Crawford or Mrs. Crawford are concerned, and that from that moment he was entitled to his one-third, the same to be paid to him at the end of the quarter in which that transaction occurred, which your honor, I understand, holds is not the ¡aw and gives us an exception. I have stated it fairly, have I not ?
The Court: That is correct.
“We therefore offer proof on our theory to this effect: That we will show what each horse cost up to the moment of the sale and up to the time that that horse was sold and a note or notes were received for it, and we will show the difference between the face of those notes and the cost of that horse, and we will contend that that is the net profit of the horse at present due to John Crawford or due at the end of the quarter in which that transaction occurred, and that, I understand your honor holds, is not the law, and gives us an exception to it.”

The court below held that plaintiff was not entitled to recover at this time, being of the opinion that “net profits” could be ascertained only after the notes were paid and capital, expenses, and losses deducted. We are of opinion that this conclusion is correct.

The term “ net profits ” has been defined to be—

“What shall remain, as the clear gain of any business venture, after deducting the capital invested in the business, the expenses incurred in its conduct, and the losses sustained in its prosecution.” Park v. Locomotive Works, 40 N. J. Eq. 114 (3 Atl. 162).

See, also, 29 Cyc. p. 672, and cases cited. Morrow v. Murphy, 120 Mich. 204 (79 N. W. 193, 80 N. W. 255).

In order to ascertain the net profits, losses must be deducted. Losses include necessarily such accounts as are to be treated as bad and uncollectible. McCulsky v. Klosterman, 20 Or. 108 (25 Pac. 366, 10 L. R. A. 785). It is contended by plaintiff that the clause in the contract, “If there are any losses sustained in carrying on this business the said Crawford shall not be liable for any part or portion thereof” — relieves plaintiff from any losses which may arise through the failure to collect any of the outstanding notes. We cannot agree with this construction of the contract. The agreement must be construed as a whole.

The second clause provides that Crawford shall receive 33£ per cent, of all net profits derived from the sale of horses, etc. This clause is entirely inconsistent with the construction proposed by plaintiff. A perusal of the whole contract convinces us that, if, in the conduct of the business as an entirety, a loss instead of a profit were shown, plaintiff’s assignor should not be called upon to bear any portion thereof, but so long as losses may be taken care of by profits, they must be borne by the parties jointly interested in the venture in order that the net profits may be ascertained.

This conclusion disposes of all that was determined in the court below. Plaintiff claims that, inasmuch as defendants agreed to furnish all money necessary to conduct the business, they should not be permitted to charge against the account, either as an expense or a loss, the sums represented by the discount allowed upon the sale of the notes. As this question was not passed upon by the court below, we decline at this time to consider it.

The judgment is affirmed.

Moore, C. J., and Steers, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Blair, J.

text:
    GRAND HAVEN MILITARY CLUB v. MULHOLLAND.
    Justices of the Peace — Attachment—Process.
    Substituted service of a writ of attachment, under which goods have been seized, must be made by delivering a copy to the person in whose possession the chattels levied upon are found, not less than six daysbefore the return day of the writ, under 1 Comp. Laws, §§ 730, 731, if personal service cannot be made on defendant; service made five days before return day is insufficient to sustain a judgment. Tunningly v. Butcher, 106 Mich. 35 (63 N. W. 994).
    Error to Ottawa; Padgham, J.
    Submitted April 12, 1912.
    (Docket No. 92.)
    Decided May 31, 1912.

      Attachment by the Grand Haven Military Club in justice’s court against Arthur Mulholland. Defendant removed said cause to the circuit court by certiorari. Judgment for plaintiff and defendant brings error.
    Eeversed.

      G. G. Coburn (R. J. Macdonald and James E. Sullivan, of counsel), for appellant.

      Lillie & Osterhous, for appellee.
   Blair, J.

On June 28, 1911, the plaintiff filed an affidavit for writ of attachment against the goods and chattels of the defendant, with Daniel C. Wachs, a justice of the peace at Grand Haven, Mich., at the same time filing the bond required by the statute, which bond was approved by the justice, who thereupon issued a writ of attachment returnable July 8, 1911. This writ was executed on June 28, 1911, by the officer having the same seizing certain goods of the defendant, which he duly inventoried. He was unable to find the defendant to make service of the writ upon him, and therefore, on July 3, 1911, served a copy of the writ, together with a certified copy of his inventory of the goods seized, upon one Arthur Killean, in whose possession he found them; and on July 8, 1911, returned and filed with the justice the writ, with his return thereon, showing the foregoing and the further fact that the defendant had no last place of residence within the county. Plaintiff recovered judgment in justice’s court, which was affirmed on certiorari in the circuit court. To reverse this judgment, defendant prosecutes his writ of error in this court.

The statute regulating service of the attachment provides (section 730, 1 Comp. Laws) for personal service if such can be made, and, if not (section 731), for substituted service. The principal question presented for our consideration in this case is whether substituted service made five days before the return day is sufficient to confer jurisdiction upon the justice to proceed with the case. It was expressly held by this court in Tunningly v. Butcher, 106 Mich. 35 (63 N. W. 994), that substituted service, as well as personal service, must be made at least six days before the return day thereof. Of this case counsel for plaintiff say in their brief:

“ If this is the law, then the service in the case at bar is not good, but we respectfully insist that this is not the law, and that the holding in the case cited is contrary to the rule established and adhered to by this court for many years before that case was decided, and since it was decided. * * * Counsel for defendant say, on page 6 of their brief, that, the Tunningly and Matthews Cases being the last expression of the court on these statutes, their doctrine must prevail over the doctrine of the earlier cases. But in this we do not agree with them. In the first place, these cases are not the last expression of the court, and in the second, we submit that the court held wrongly in those two cases, and rightly in the earlier cases, and should, therefore, overrule the cases upon which counsel rely, and adhere to the better doctrine laid down years before, and for years adhered to and followed.”

In support of their contention, counsel cite Withington v. Southworth, 26 Mich. 381; Nicolls v. Lawrence, 30 Mich. 395; Town v. Tabor, 34 Mich. 262; Brown v. Williams, 39 Mich. 755; Bargh v. Ermeling & Co., 110 Mich. 164 (67 N. W. 1083); Farr v. Kilgour, 117 Mich. 227 (75 N. W. 457). The doctrine of Tunningly v. Butcher was approved in Matthews v. Forslund, 113 Mich. 416 (71 N. W. 854), and Davidson v. Fox, 120 Mich. 385 (79 N. W. 1106), and is not out of harmony with the doctrine of the cases relied upon by plaintiff. In Davidson v. Fox it was held, citing Matthews v. Forslund, that substituted service may be made more t.ba.n six days before the return day, provided the officer retains, the writ and makes diligent search for the defendant, in order to make personal service, for all the time required by law. Bearing this distinction in mind, there is no conflict in the cases relied upon by the respective parties. The service, not having been made at least six days before the return day, was invalid, and, the defect not having been waived, the attachment proceedings were void.

The judgment is reversed, with costs of both courts to defendant.

Moore, 0. J., and Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not eit.


text:
    PEOPLE v. OPPENHEIMER.
    1. Venue — Bastardy Proceedings — Residencie—Criminal Law —Jurisdiction.
    In bastardy proceedings under 2 Comp. Laws, § 5901 et seq., whether complaining witness, whose child was born in Cincinnati, resided in the county where proceedings were instituted, raised an issue for the jury upon a record showing that she went away with the intention of returning there, and that her parents resided in said county, that she made her home with them, and that she had been living at home for six or seven months. The fact that the child was born in another State does not deprive the court of jurisdiction.
    2. Same — Trial—Instructions to Jury — Saving Questions for Review — Charge.
    The case, not being purely criminal in its character, will not be ■ reversed for failure of the court to instruct the jury concerning the elements constituting residence under the statute, in the absence of requested instructions on that point.
    Certiorari to Wayne; Mandell, J.
    Submitted April 18, 1912.
    (Docket No. 130.)
    Decided May 31, 1912.

      Moses Oppenheimer was found guilty under the bastardy law, and brings certiorari.
    Affirmed.

      Hugh Shepherd, Prosecuting Attorney, and P. W. Voorhies, Assistant Prosecuting Attorney (Franz C. Kuhn, Attorney General, of counsel), for the people.

      Oscar M. Springer, for respondent.
   Blair, J.

Certiorari to review proceedings under the provisions of sections 5901-5911, 2 Comp. Laws, relative to the maintenance of illegitimate children. *

The complaining witness, Fannie Greenberg, an unmarried woman, 31 years old, testified: That defendant got her with child in May, 1907, at Detroit, where she had lived with her parents all of her life; that when she was four months advanced in pregnancy she went to Cincinnati, Ohio, for the purpose of concealing her shame from her parents and friends; that defendant refused to marry her unless she would tell her parents that he was not the father of her child, and advised her to leave town and gave her money to go with; that the child was born January 20, 1908, at a free hospital in Cincinnati; that she remained in Cincinnati for two years, supporting herself and child by her own labor.

I came to Detroit instead of staying in Ohio because I could not make a living. I lived there two years and am home exactly a year. I worked for charity to take care of my boy. I did beautiful embroidery work and sold it to buy clothes and live on. I was away the second time seven months ago, after the child was born. I took the child, went to Dayton, and stayed there four days. When I went away the second time, my father wrote me to come home. * * * I went away twice to Cincinnati. The second time I went, defendant told me if I would take the boy away and put him in a home and come back here he would marry me. I went away with that intention. I got away, and the baby would not leave me. I could not place him where I wanted to place him, and I brought him back.”

Defendant denied the paternity of the child and denied any improper relations whatever with complainant. The jury found against defendant, and judgment was entered thereon. Defendant asks a reversal of the judgment upon the following assignments of error:

“Your petitioner avers and charges that the court erred manifestly in this, to wit:
“ (1) In submitting said cause to the consideration of a jury for the reason that said child was born in the State of Ohio and in the city of Cincinnati and could not lawfully become a county charge in the county of Wayne under the statutes in Michigan providing for the maintenance of bastard children; said statute being limited to such children as are born in the State of Michigan.
“(2) That the court erred in submitting to the jury the question of the residence of said child as a resident of Wayne county, without explaining to the jury the facts that they should first find to constitute such residence and the law in relation thereto.
“(3) The court erred in allowing the jury to find said child a resident of Wayne county under the evidence submitted in said cause, for the reason that it does not appear that said child or its mother returned to the city of Detroit with the intention of making Wayne county their home or the home of either of them.”

The complaint of Fannie Greenberg was made on the 18th day of June, 1910, at which time she had been living six or seven months in Detroit, which she speaks of as “home,” and testifies that when she went away the second time it was with the intention of returning to Detroit, the only home she had ever really had. We think there was sufficient evidence of her intention to return to Detroit as her permanent residence and to abandon her residence in Ohio, if she had gained one, to warrant submitting the question of her residence to the jury.

If the mother and child were actual residents of Detroit at the time the complaint was made, the fact that the child was born outside the State would be unimportant.

In view of the fact that defendant presented no request to the court to instruct the jury as to the essential elements of residence, and that this is not a strictly criminal proceeding, we are not inclined to reverse the judgment upon the second assignment of error.

The judgment is affirmed.

Moore, C. J.s and Steers, MoAlvay, Brooks, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    PEOPLE v. DURHAM.
    1. Criminal Law — Information—Duplicity—Assault.
    An information charging an assault upon two persons, by shooting and wounding them, is not bad for duplicity, and may be sustained by proof of assault upon one of them.
    2. Same — Self-Defense—Prior Quarrels. '
    No question of self-defense being involved in a proseoution for assault with intent to do great bodily harm, affirmative testimony tending to show threats or offensive conduct of the assailed person on occasions prior to the one in question were inadmissible on behalf of the defense.
    3. Same.
    However, testimony as to the previous relations of the parties was properly elicited, on cross-examination of the complaining witness, whose fairness and credibility was a proper subject of inquiry; it was error to instruct the jury not to consider it.
    4. Same — Assault With Intent to Do Great Bodily Harm — Lesser Offenses.
    The court erred in refusing respondent’s request to instruct the jury that the offense included the lesser degrees of assault, of which the jury might find respondent guilty, i. e., assault and battery and simple assault.
    5. Same — Intent—Conduct of Court.
    The question of respondent’s felonious intent being for the jury, it was error to submit to the jury respondent’s claim that his mind was so confused by the controversy with complaining witness and weakened by a previous sunstroke and by ill health that he was unable at the time to form a oriminal intent, in the following language: “I believe he claims on this particular occasion he was suffering from that malady and that condition and was not conscious of what he did. It is for you to say and that is an important thing for you to determine in this case. There is not much but this condition and intention in dispute. It is for you to say whether or not a man who is laboring so under a diseased condition of mind and body, or both, that he would not be intelligently conscious of what he did and its probable results, and whether a man in that frame of mind would say to his wife who had the gun, ‘Don’t shoot,’or ‘Don’t fire,’ and then go to her and take the gun and fire. It is for you to say whether a man who was in the exercise of his natural functions would say to those men who were driving away from him, ‘ Halt! halt!’ and then, when they did not halt, immediately fire upon them. It is for you to say whether the gun went off unconsciously the first time, and, if so, whether it went off unconsciously the second time. It is for you to say, if it went off unconsciously, whether it unconsciously hit the mark both times,” etc.
    6. Same — Conduct of Court.
    The trial judge is precluded from intimating to the jury his views as to the merits of the case.
    Exceptions before sentence from Mason; Withey, J.
    Submitted April 18, 1912.
    (Docket No. 127.)
    Decided May 31, 1912.
    Harvey Durham was convicted of assault with intent to do great bodily harm.
    Reversed.

      Henry Reek, Prosecuting Attorney, for the people.

      Frank F. Wetmore, for respondent.
   Steere, J.

The actions of certain predatory pigs and a double-barreled shotgun marked the beginning and end of the events out of which this prosecution developed;

Respondent was convicted in the circuit court of Mason county of having, on the 26th of April, 1911, committed an assault upon Carl Jensen with intent to do him great bodily harm, less than the crime of murder. The information under which respondent was convicted charged him with having committed the assault on said Carl Jensen and Herbert Sweeris, jointly, with intent to do them great bodily harm. The essential facts as to the assault itself are practically undisputed.

It is uncontradicted that Carl Jensen, the complaining witness, and respondent owned farms less than a mile apart. Jensen’s farm was rented to a tenant, named Herbert Sweeris. On April 26,1911, Jensen took Sweeris in his buggy to the farm of respondent, for the purpose of interviewing the latter in regard to certain pigs belonging to Sweeris which respondent had, a short time previously, impounded or distrained, because they were trespassing upon and damaging his property. Upon reaching respondent’s residence, Jensen inquired for him, and learned that he was at a distance of some 80 or 100 rods back in a field; and, the gate being open, they drove back to where he was. The purpose of their visit was made known to him, and was the subject of their conversation until they parted. The testimony as to what was said is conflicting, and there is some dispute as to what was done. Jensen and Sweeris testified that Jensen, after broaching the subject, inquired of respondent the amount of his claim for damages, offering, if not too much, to pay the same and take the pigs away; that respondent refused to name any amount, though several times asked to do so, but claimed they had destroyed the nests of two setting hens, a couple of pails of stock food, and “ were chewing up wheat,” etc.; that, being unable to get any definite answer from- defendant, or to accomplish anything in the line of a settlement, Jensen started to turn his horse and buggy around, preparatory to leaving the premises by the way they came, when respondent still talking about the pigs, attempted to take hold of the lines at the horse’s head, apparently to detain them; that, though admonished to keep away, he persisted, and made repeated attempts to catch hold of the lines; and, to prevent him from doing so, Jensen struck him on the hand with his whip. It appears, undisputed, that in the meantime defendant’s wife and daughter, approaching from the house, the former carrying a shotgun and the latter a rifle, met Jensen and Sweeris just as they were driving away, and joined defendant. Jensen and Sweeris testify that they were endeavoring to remove themselves out of the danger zone as rapidly as their horse could be induced to proceed, and had retreated some five rods from defendant when he seized the shotgun from his wife and twice commanded them to halt, which they did not do, and he immediately fired two shots in rapid succession, the first one striking Jensen with a large number of shot in the back of the head and neck, the second load scattering sufficiently to inflict a shot pattern upon both occupants of the buggy; that respondent followed this by firing twice toward the disappearing rig with a 22-caliber rifle, which the daughter had brought — they hearing the bullets whistle by, but neither taking effect. The doctor extracted some 20 or 25 shot from the back of Jensen’s head, and counted from 64 to 68 in his shoulders and back.

Respondent’s version of the affray is that, when Jensen and Sweeris reached the point of meeting, Jensen, after broaching the subject of the pigs, began to use quarrelsome and abusive language, asked him what damage he claimed, and accused him of stealing the pigs, calling him vile names, to which respondent replied, in explanation, stating what damage had been done to him and why he had distrained the offending animals. That he finally told them, as they were driving away, to hold on, that they could have the pigs, and approached the buggy for the purpose of riding with them to the house, when Jensen struck him over the head several times with his whip, threatening to kill him. The strokes staggered and dazed him, and just then, as they were driving away, he heard some one call out, “Don’t shoot that horse,” which partially revived him, and he told his wife not to shoot, but took the gun from her and “halted” the men. That then—

“They had got quite a distance, 12 or 15 rods. I halted them, and Mr. Jensen said: £ Shoot, you [using epithet]. I can shoot too.’ The gun was discharged, as I supposed, in the air, and at a distance I thought he was going upgrade; and it hit him in the back of the head.”

That he had no intention of hitting the parties; had not spoken a cross word to them that morning; had no clear recollection of shooting whatever; did not remember of shooting the second time, and did not intend to do so, or to do them any bodily harm.

It is undisputed that Jensen and Sweeris visited respondent on a lawful mission, for the purpose of settling a matter in difference in regard to some pigs; that neither of them left the buggy while on defendant’s place; that at the time the shots were fired they were rapidly driving away from where respondent was.. All the witnesses so testify. Respondent’s daughter testified that previous to the shooting Jensen started to run the horse; that the men were driving away from her father when he fired the shots, with their backs turned towards him. The wife testified that Mr. Jensen had turned the horse around, headed the other way, and was driving away.

On the trial, objection was made to the introduction of any testimony by the prosecution, on the ground that the information was bad for duplicity in charging assaults on two different persons and two separate offenses in one count. This objection was overruled. In his charge, the court instructed the jury that they could convict the respondent, if they should find he intended to do one or both of the parties named great bodily harm. This is alleged as error; it being urged that the information and charge of the court should present a single issue, so that when a verdict is rendered it can be known that the minds of all the jurors met on that issue. An information may properly charge a felonious assault on two persons at the same time, and is supported by proof of assault on one only. People v. Ellsworth, 90 Mich. 442 (51 N. W. 531); Commonwealth v. O’Brien, 107 Mass. 208; 3 Cyc. p. 1037.

Error is assigned on refusal of the court to allow respondent, against objection of the prosecution, to introduce testimony as to previous trouble between respondent and Jensen, of acts and threats of Jensen, and the reason for respondent’s wife and daughter carrying the guns to him. Under the undisputed facts, such testimony was immaterial and incompetent as affirmative proof in justification of the assault. No element of self-protection enters into this controversy. Whatever conditions might have existed at some other time, it is undisputed that when these shots were fired Jensen and Sweeris were in full retreat by the way they came, not even willing to halt on demand. Where no question of self-defense is involved, independent, affirmative evidence by the defense as to the acts and conduct of the party assaulted, prior to the commission of the offense, is inadmissible. People v. Kelly, 94 N. Y. 526; 3 Cyc. p. 1055.

There was no error in the court so instructing the jury after counsel for defendant had stated in their presence what he proposed to show in that particular, and for what purpose, and it was his duty to do so; but, in that connection, the court struck out, and instructed the jury to disregard, all testimony adduced on cross-examination of the complaining witness as to previous trouble between the parties and conduct indicating ill will towards respondent. This was error. On cross-examination of a witness, he may be interrogated as to the relations between himself and the accused, and any circumstances tending to show whether they were friendly or unfriendly, as bearing upon the degree of credit his evidence should receive. The particulars and causes of the hostile feeling, when shown, may be inquired into as bearing on the fairness and truthfulness of the witness (State v. Dee, 14 Minn. 35 [Gil. 27]); and the jury should be properly cautioned and instructed as to the only purpose for which such testimony can be considered by them.

Error is assigned on the refusal of the court to give defendant’s request to charge that the information included lesser degrees of assault, and, if not satisfied that defendant was guilty of assault with intent to do great bodily harm, the jury could find him guilty of assault, or assault and battery. It was early held in Hanna v. People, 19 Mich. 816, that, where an assault of a higher degree was charged, including a battery, simple assault and battery are included; and defendant may be convicted of the included offense. This rule has been applied to the specific kind of offense charged in this case. People v. Prague, 72 Mich. 178 (40 N. W. 243).

In the case at bar, both assault and assault and battery are specifically charged; it being alleged in the information—

“That defendant, * * * with force and arms, in and upon Carl Jensen and Herbert Sweeris, * * * did make an assault, and the said Carl Jensen and Herbert Sweeris did then and there shoot, beat, wound, and illtreat by then and there,” etc.

This is recognized as a rule of general application in cases of felonious assault. People v. Courier, 79 Mich. 366 (44 N. W. 571); People v. Ellsworth, supra; People v. Webb, 127 Mich. 29 (86 N. W. 406); People v. Abbott, 97 Mich. 484 (56 N. W. 862, 37 Am. St. Rep. 360). In the latter case, which was an information for rape, it was said:

“ The court also erred in instructing the jury that they must convict respondent of rape, if at all. The information for rape necessarily embraced the offense of an assault with intent to commit the crime of rape, and an assault and battery; and the jury should have been instructed that they might convict him of either of the lesser offenses.”

While it can well be argued that, if able to form a criminal intent, respondent, if guilty at all, was guilty of the offense as charged, nevertheless the question of intent was a question of fact for the jury, which could not be decided by the court. In charging the jury in this case, the court said: “And his action in firing the gun as he did was wholly unlawful and criminal in its aspects. It remains for you to say in what degree it was criminal—following which, the court instructed the jury that it could only be criminal in the highest degree charged, if at all. Under the authorities cited, this was error. The court should have instructed the jury along the lines requested.

It was claimed, in behalf of respondent, that he was not in mental condition to form at the time such a criminal intent as is required to hold him accountable for more than he actually did, if evento that extent; that, where assault is charged with a specific felonious intent, which raises the offense from a misdemeanor to a felony, such intent must be affirmatively proven, as a distinct, substantive fact, and must be found, by the jury, established, beyond a reasonable doubt, to the same degree of certainty that the physical act itself must be so proven and found; that respondent was not strong mentally, had suffered sunstroke some years before, and his mind had since been more or less affected and weak; that Jensen had struck him over the head with the butt of his whip, leaving a welt which he carried at the time of the trial; that the blows dazed him and paralyzed his mind, so that he was confused and bewildered, and had very little idea of what he did, or why he did it. The. merits of this issue were entirely for the jury. The court in his charge recognized this, but submitted the question argumentatively, saying, among other things:

“ I believe he claims that on this particular occasion he was suffering from that malady and that condition, and was not conscious of what he did. It is for you to say, and that is an important thing for you to determine in this case. There is not much but this condition and intention in dispute. It is for you to say whether or not a man who is laboring so under a diseased condition of mind and body, or both, that he would not be intelligently conscious of what he did, and its probable results, and whether a man in that frame of mind would say to his wife, who had the gun, 5 Don’t shoot,’ or 4 Don’t fire,’ and then go to her and take the gun and fire. It is for you to say whether a man who was in the exercise of his natural functions would say to those men, who were driving away from him, 4 Halt! Halt!’ and then, when they did not halt, immediately fire upon them. It is for you to say whether the gun went off unconsciously the first time, and, if so, whether it went off unconsciously the second time. It is for you to say, if it went off unconsciously, whether it unconsciously hit the mark both times. * * * It is your duty to take into consideration any contrary statements that he has made, if any, out of court and other times. I refer particularly to what he said to the witness Pratt, or what he failed to say.”

We have no criticism to offer to this as an argument of the facts; but it more properly belonged to the prosecuting attorney than to the court. This portion of the charge comes very close to being subject to the same objections pointed out in People v. Clarke, 105 Mich. 169 (62 N. W. 1117), and People v. McCord, 76 Mich. 200 (42 N. W. 1106). In the latter case, the court said:

“Having told the jury that respondent had admitted all that was necessary to convict him, if not so insane or intoxicated as to be able to form no intent, and having pointed out to them that his conduct did not indicate any lack of reasoning power, this charge was neither more nor less than an instruction to convict.”

Under the system of jurisprudence which has so far obtained in this State, whether rightfully or wrongfully, the trial judge is precluded from intimating to the jury his views as to how they should decide the issues of fact within their province; and it would be an exceedingly dull jury that failed to grasp the drift of the charge in the particulars pointed out.

By reason of the errors mentioned, we are constrained to reverse the judgment, and order a new trial.

Moore, C. J., andMcALVAY, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Blair, J. Bird, J.

text:
    BLOSS v. BOARD OF SUPERVISORS OF JACKSON COUNTY.
    1. Counties — Municipal Corporations — Wills — Supervisors, Board op — Constitutional Law.
    A devise of real estate to a county is valid. 1 Comp. Laws, § 2441; Const., art. viii, sec. 7.
    2. Same.
    Municipal corporations hold their property as trustees for the common benefit.
    S. Same — Wills—Estates op Decedents.
    That the will specifies no particular use to which the property is to be applied, does not avoid the conveyance.
    Bird, J., dissenting.
    Case-made from Jackson; Parkinson, J.
    Submitted April 10,1911.
    (Docket No. 56.)
    Decided May 31, 1912.
    Assumpsit by Jennie BIosb and others against the board of supervisors of the county of Jackson for a sum of money paid to said county out of the estate of William Wooley, deceased. A judgment for defendant sustaining a demurrer to plaintiffs’ declaration is reviewed by plaintiffs on writ of error.
    Affirmed.

      Grove H. Wolcott, for appellants.

      Nathan E. Bailey, for appellee.
   Blair, J.

The plaintiffs in this case are all of the heirs at law of William Wooley, deceased, who was a resident of Jackson county at the time of his death, January 24, 1908. William Wooley left a last will and testament in which he made the county of Jackson sole legatee of all his real and personal estate, without condition or qualification or the designation of any use or purpose to be made by the county of the property so devised. The testator’s property consisted of a farm of the value of $2,000 and personal property valued at $300.

On account of debts proved against said estate and the provision in said will for a monument and the expenses of administration, the executor applied to the probate court for, and was granted, license to sell the land for the payment of debts, expenses of administration, and erection of monument, and, after the payment of such items, there remained in the hands of the executor the sum of $1,525.02, which, by the order of the probate court aforesaid, the executor paid to the treasurer of the county of Jackson, which sum has been specially deposited in bank by order of the board of supervisors.

This suit is brought to recover the said sum of $1,525.02 and interest by the plaintiffs, heirs of said William Wooley, on the theory that the devise to the county was void for uncertainty in not specifying the purpose of the gift or the use to be made of the same in keeping with the authority of the county as to the receipt, use, and appropriation of money or property.

A demurrer was filed to the plaintiffs’ declaration which was sustained, and judgment on demurrer entered, to review which, plaintiffs prosecute this writ of error.

By the State Constitution the board of supervisors possesses “such powers as shall be prescribed by law.” Section 2441,1 Comp. Laws, authorizes each organized county “to purchase and hold real and personal estate for the use of the county,” etc. There is no statute in this State which prohibits a board of supervisors acquiring land by deed of gift or devise, and the language of the statute is broad enough to justify the interpretation that the legislature intended to grant power to hold property for the use of the county, however acquired. Raley v. Umatilla County, 15 Or. 172 (13 Pac. 890, 3 Am. St. Rep. 142); Chambers v. City of St. Louis, 29 Mo. 543; Bell County v. Alexander, 22 Tex. 350 (73 Am. Dec. 268); Carder v. Board of Commissioners, 16 Ohio St. 353.

As remarked by Mr. Justice Campbell, in Penny v. Croul, 76 Mich. 471 (43 N. W. 649, 5 L. R. A. 858), “All municipal corporations hold their property as trustees for the general benefit,” and, although lands can only be acquired for the use of the county and such uses are specified in other sections of the statutes, the fact that the devise does not specify the particular use to which the property is to be applied does not, in our opinion, invalidate the devise. Rood on Wills, § 200; Fulbright v. Perry County, 145 Mo. 482 (46 S. W. 955); Gilmore v. Hayworth, 26 Tex. 89; Carder v. Board of Commissioners, supra; Rood v. Winslow, 2 Doug. (Mich.) 68.

The judgment is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred with Blair, J.

Bird, J.

(dissenting). I am unable to concur in the conclusion of Mr. Justice Blair in this case that the county of Jackson has the capacity to take and hold the farm devised to it. The county of Jackson is a creature of the Michigan legislature, and, as such, has only such powers as have been conferred upon it by that body. The legislature has authorized counties “to purchase and hold real and personal estate for the use of the county.” 1 Comp. Laws, § 2441. It is said that this language is broad enough to be construed into an express grant to counties to purchase and hold real estate unrestricted as to its use.

Dillon on Municipal Corporations lays down the rule of construction for such language as follows:

“General authority to purchase and hold property should, doubtless, be construed to mean for purposes authorized by the charter, and not for speculation or profit. * * * It can only take and hold such property as a means of carrying out or accomplishing the declared and specified purposes and objects of the corporation.” 3 Dillon on Municipal Corporations, § 977.

See, also, Markley v. Village of Mineral City, 58 Ohio St. 430 (51 N. E. 28, 65 Am. St. Rep. 776); Duncan v. City of Lynchburg (Va.), 34 S. E. 964 (48 L. R. A. 331); Hayward v. Town of Red Cliff, 20 Colo. 33 (36 Pac. 795); Sherlock v. Village of Winnetka, 59 Ill. 389; Bloomsburg Land Improvement Co. v. Bloomsburg, 215 Pa. 452 (64 Atl. 602); Hunnicutt v. City of Atlanta, 104 Ga. 1 (30 S. E. 500); 20 Am. & Eng. Enc. Law (2d Ed.), p. 1184; 28 Cyc. p. 605.

This rule of construction appears to be generally accepted as the true rule save in a few jurisdictions where the statute in plain terms authorizes the taking and holding without regard to use. . Nearly all of the authorities cited by Mr. Justice Blair in support of his construction are cases where either the statute unqualifiedly authorized the acceptance or where the municipality was made a trustee for some particular purpose which was within the scope of its municipal authority. The Michigan case cited was one where the county accepted a mortgage to secure the payment of a fine. The cases are unlike the one under consideration where it is said the county has authority to purchase a farm without any limitation as to its use.

If the legislative authority of counties to purchase and hold real estate is to be construed as sufficiently broad and unrestricted to accept this devise, is there anything to hinder the county of Jackson from purchasing another farm, a manufacturing plant, or a gristmill? If it can purchase a farm, would it not follow that it could operate it, and, if it did so at a loss, could it tax the people of that county to meet the deficiency ? Could it use the county funds to restore farm buildings destroyed by fire or cyclone? If it can buy one farm without having its use defined, may it not purchase twenty ? These queries suggest some of the dangers attendant upon such a power.

In my opinion, the rule of construction which will best conserve the public good is one that will prevent the purchase of real estate by municipalities without a designation of the use that is to be made of it.

The judgment of the trial court should be reversed, and a new trial ordered.