text:
    FARR v. KILGOUR.
    1. Justices or the Peace — Attachment—Substituted Service.
    Substituted service of a justice’s attachment is void if the return of the officer fails to show that diligent search was made for the defendant during the whole time within which personal service might lawfully be made. Brown v. Williams, 89 Mich. 755, followed.
    2. Replevin — Right or Possession — Pledge.
    A creditor of a pledgor, who, with the consent and subject to the rights of the pledgee, attaches the property pledged, holds as the representative of the pledgee, and can maintain his possession, regardless of the invalidity of the attachment, as against one whose lien is subordinate to that of the pledgee. So held, where the property was sought to be replevied by one who claimed it as security under an unrecorded instrument of which the pledgee had no notice.
    Error to St. Clair; Vance, J.
    Submitted April 21, 1898.
    Decided May 24, 1898.
    Replevin by Charles E. Farr against John Kilgour. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Stevens & Graham, for appellant.

      Frank Whipple, for appellee.
   Hooker, J.

Benny purchased two horses from the plaintiff, and gave him a writing of which the following is a copy:

“Fargo, Michigan, April 13, 1894.
“On or before the 1st day of October, 1894,1 promise to pay Charles E. Farr, or order, one hundred and eighty dollars, with exchange, at Fargo, Michigan, with interest at 7 per cent, if paid at maturity. If not paid within 30 days after maturity, then I agree to pay interest at the rate of 8 per cent, from this date until paid.
“I have this day received from Charles E. Farr one span of mares, six years old, black, and I also add to above one black mare, three years old past, as additional security for the payment of this note, which I agree to safely keep, and return to said Charles E. Farr or assigns, upon demand. The title of said property shall remain in said Charles E. Farr until this note is paid. The said Charles E. Farr or assigns are hereby authorized, if they deem themselves insecure, to declare said sum and interest due immediately, and to proceed to the collection thereof; or, if the said Charles E. Farr or assigns elect to do .so, then they may take possession of said property, wherever the same may be, without process of law. If said Charles E. Farr or assigns shall take possession of said property hereunder, then all moneys paid hereon shall belong to them as an agreed price for the rent of said property, and damage thereto growing out of the use thereof.
[ Signed ] ‘ ‘ Reuben Benny. ”

This writing was not filed with the township clerk. Subsequently, Benny left the black mare with Rabideau, in pledge for a debt of |10. The defendant sued out an attachment, and seized the three-year-old mare for a debt due to him from Benny, and the plaintiff replevied her, after demand and refusal of possession. The writ of attachment issued May 16th, and was returnable May 26th. The return was as follows:

“By virtue of the within attachment, I, R. E. Lawrence, on the 16th day of May, at 8:30 o’clock a., m., seized the goods and chattels of the defendant mentioned in the inventory of which the annexed is a copy; and on the following day, because the defendant could not be found by me in the county of St. Clair, I left a certified copy of said attachment and said inventory, duly certified by me, at the last place of residence of the said defendant, in the county of St. Clair, and State of Michigan.
“R. E. Lawrence, Constable.”

The writ of replevin issued May 24th. At the time the mare was taken from Rabideau, he made known his claim to the defendant, who suggested that he share the expense of the attachment proceedings and in the proceeds. This he declined, and the defendant told him to come over at the time of the sale, and put in his claim.

The circuit judge held that the attachment proceedings were void for want of a proper -service, and in this we think that he did not err. The question is ruled by the case of Brown v. Williams, 39 Mich. 755. As in that case, the return before us fails to show that the officer made any effort to find the defendant named in his writ after the time when he made the substituted service, although he had two or three days thereafter within which a personal service would have been valid.

But a verdict was directed for the defendant, upon the ground that the plaintiff was not entitled to the possession of the mare as against Rabideau, and that the defendant’s possession was that of Rabideau, inasmuch as Rabideau consented that he might take the mare under his attachment. It is contended by the plaintiff that the evidence shows that Rabideau waived his lien, in favor of the attachment. We think the evidence does not show this, but rather that he was willing to permit the attachment subject to his lien. At that time the attachment proceedings were apparently valid; and, if they were not perfected, it became the duty of the officer, or of the defendant, who held the property under his authority, to return it to Rabideau.

Even if Rabideau had consented to waive his lien in favor of the defendant, he did not waive it in favor of the plaintiff. It is obvious that the plaintiff’s interest was in the nature of security, and as the instrument was not filed, and Rabideau had no notice of it, Rabideau’s rights were superior.. It wras competent for the defendant to attach subject to Rabideau’s rights without payment of his claim, by his consent; and, after the attachment proceeding failed, he was accountable to Rabideau for the possession.

The judgment of the circuit court is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    GOING v. OAKLAND COUNTY AGRICULTURAL SOCIETY.
    1. Land Contracts — Rescission—Curative Statutes.
    The right of the vendee in a land contract to rescind the same upon its appearing that the vendor is unable to give title as represented is not affected by a curative statute to perfect the vendor’s title, passed subsequent to the announcement of rescission and the institution of suit to recover moneys paid upon the contract.
    2. Same — Quieting Title — Res Judicata.
    Where a vendor of lands sold under contract, in a suit to ■ which the vendee is made a party, obtains a decree quieting his title to the lands, subject to the contract, and declaring the contract legal and valid, the vendee, while such decree remains undisturbed, is precluded from rescinding the contract on the ground that the title is imperfect.
    Error to Oakland; Smith, J.
    Submitted April 26, 1898.
    Decided May 24, 1898.

      Assumpsit by Charles H. Going against the Oakland County Agricultural Society to recover moneys paid upon certain land contracts. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed in part.

      A. & S. H. Perry, for appellant.

      James H. Lynch, for appellee.
   Long, J.

This action is based upon 10 land contracts made by Joseph S. Stockwell, as trustee of the defendant society, to the plaintiff. It was tried before a jury, and the court directed a verdict in favor of plaintiff for $1,100.75.

The defendant society was organized November 20, 1872, under the statute providing for the incoi-poration of agricultural societies. After its organization, it entered into possession of certain real estate situate in 'the city of Pontiac, and continued to occupy the same, and to hold one or more fairs thereon each year, until 1895. At that time it became financially involved. At a regular meeting in January, 1895, the members passed unanimously a resolution purporting to authorize its board of directors to sell all its fair grounds, and purchase others. The lands held were valuable for residence purposes, and the board caused them to be platted into 102 city lots, and arranged for an auction sale thereof; and, in order to facilitate a sale and conveyance thereof, the board executed a deed of conveyance of all the lots to Mr. Stockwell, as trustee, for the use and benefit of the corporation, and, on June 20th following, all said lots were sold at public auction to numerous purchasers. At that sale, plaintiff bid off 10 lots, and entered into contracts with the trustee for the purchase; payments to be made on or before three years from date. Plaintiff at once took- possession of the lots, and made improvements thereon. It appears that the defendant, in making the sale, neglected to comply with section 2308, 1 How. Stat., which provides, among other things:

“The said society may, in case the uses and convenience thereof so require, upon application to the circuit court of the county where such society is organized and located, obtain and have authority to sell, from time to time, the whole or any part of its real estate, the granting of such authority to be in the discretion of the court; and such application to be made only when authorized by said society, at an annual meeting thereof, by a vote of not less than two-thirds of the members of such society present at such meeting, and notice of the intention to vote for such application' having been published in some newspaper published in said county,” etc.

No application was made to the circuit court for that county for authority to make the sale.

Defendant claims that, soon after such sale, it purchased, at great expense, other lands, in another part of the city, for fair-ground purposes, entered into possession thereof, and made improvements thereon.

In the meantime a question was raised as to the society’s title to outlot 15; being about six acres of the land so sold by defendant, and which had been formerly owned by Moses Wisner and others. It was also questioned whether the heirs of Mr. Wisner did not have some interest in the said six acres. Six of the lots .purchased by plaintiff were situate in this six acres. Thereupon the defendant and the trustee, on December 18, 1895, filed a bill in the circuit court in chancery for Oakland county, setting forth all the facts in the premises, making the plaintiff and the heirs of Mr. Wisner, and numerous other parties, defendants, and praying for a decree quieting the title to said lands, subject to all land contracts made by Stockwell as such trustée, and also praying—

“That said Oakland County Agricultural Society may be decreed to have had the right to sell and convey all said lands and premises at the time said auction sale was held as aforesaid, and at the time said deed in trust was made to said Stockwell.”

The plaintiff did not appear in that case, and the bill was taken as confessed as to him. The Wisner heirs appeared, and some of them answered the bill; and on March 17, 1896, a decree was made and entered in said cause quieting the title to said six-acre parcel, subject to deeds and contracts made by said trustee, and further decreeing—

“That at the time the said complainants caused said lands on said outlot 15 [being the six acres in question] to be sold at auction, on June 20, 1895, the said Oakland County Agricultural Society and the said Joseph S. Stock-well, as its trustee, had legal right and authority to sell and convey all the lots and lands situated on said outlot 15 in fee simple, and that the several contracts to convey the same to the several defendants in this cause, made by said trustee, are legal and valid contracts; and the absolute and unconditional title in fee simple of all the lands and premises contained in said outlot 15, excepting said lots 23, 24, 28, and 31, is hereby decreed to be in, and quieted in, Joseph S. Stockwell, the complainant, for the use and benefit of said Oakland County Agricultural Society, subject to all contracts made by him as such trustee to convey the same to any and all the defendants in this cause, in accordance with the terms and conditions of said contracts,” etc.

So far as appears by this record, this decree stands unaltered and unrevoked.

In January, 1897, in order to cure the informality in not following the statute as to the preliminary proceedings required in order to authorize the sale by the society, the legislature passed an act, which was approved January 30, 1897, which, after reciting the facts hereinbefore stated, and also reciting that no legal proceedings of any kind had been commenced by any person for the purpose of avoiding or invalidating any such proceedings, and that there was no litigation pending with reference to any of said matters, provides—

‘ ‘ That all the said proceedings be and the same are hereby ratified, confirmed, and made valid, to the same extent as though said section of said annotated statutes had been fully' complied with in making said sales; and the said plat, and the said deed in trust to the said Stockwell, and the said auction sale, and all deeds and contracts made by the said Stockwell as such trustee in pursuance thereof, are hereby ratified, confirmed, and made valid.” Act No. 391, Local Acts 1897.

It is the claim of the defendant that this curative act reverted to the time of the sale, and made the acts done then as valid as though the formalities in question had been followed.

It appeared on the trial that the plaintiff knew nothing of the necessity of obtaining the permission of the circuit court to make a valid sale, or of any mistake on the part of the society in making it before an order of the court was obtained, until the bill was filed to perfect such sale. After that time, and about the 1st of June, 1896, he made a tender of the amounts due upon his contracts. No deeds were made at that time; but on the trial it appeared that on June 18, 1896, a deed was duly made and executed by Mr. Stockwell to the plaintiff, conveying all the lands described in all the contracts, and tendered to the plaintiff. The plaintiff thereafter refused to accept the deed, and made a demand for repayment of the amount paid by him on the contracts, and for the value of the improvements made by him on the said lots.

The court, having substantially recited these facts in his charge to the jury, said:

“Now, upon these facts, I deem it my duty to take the case from the jury, and direct a verdict for the plaintiff or the defendant; and with me it all turns upon the question of whether a curative statute would bind Mr. Going, or whether it will not. * * * The witnesses are substantially agreed that the sale on June 30, 1895, was preceded by the opening statement of Mr. Davis, as president of this society, that the title of the society to these lots was perfect; that it had submitted the matter to learned and eminent attorneys, who advised that the society could give a good and valid title to purchasers, and that the title was .all right. Mr. Davis himself was an attorney, as well as president, and it is probable that this fact gave added weight to his statement. A fair interpretation of these statements made on behalf of the defendant is that intending purchasers understood that they could safely bid off these lots, relying upon no serious loss or injury from defects in title, or omissions by the society to procure the requisite authority to sell. Mr. Going had a right to rely upon these statements in making his bid. Mr. Davis need not have made such statements, but they were made to> induce buyers to purchase; and, while he did not so intend, they were untrue, in law. Having made them, he was bound to know that they were true. While he did not intend to make false statements, yet, having made them, he was bound to know that they were true, ^before asking bidders to act on them. Mr. Going’s attorney has omitted to ask the question, but it is plainly evident, from his conduct, and from all the circumstances surrounding the case, that Mr. Going would not have bid the prices he did at the sale, had he not relied upon Mr. Davis’ statement; and it is quite probable that had he known that he must wait until January, 1897, for a curative statute to perfect the title, he would not have purchased the lots at all, nor any of them.
“ There is no claim by counsel for plaintiff, nor is there by the court, that Mr. Davis or the society intended to defraud Mr. Going when the statement of Mr. Davis was made, because they were all ignorant of 1 How. Stat. § 2308, requiring an order from the circuit court; but, while not so intended, the legal effect of the statement was to perpetrate á fraud upon him, by inducing and persuading him to purchase lots, and pay prices for them, which he would not otherwise have purchased, or paid, but for his reliance upon the representations; or, to speak more accurately, the wrong consisted in compelling him to keep lots purchased on the faith of such statements, after it was found they were not true in fact. The contracts were therefore such as originally were inequitable and unjust, and such as Mr. Going had originally a right to rescind. For that reason it follows that the legislature could not force him to abide by them,-without his assent, unless he is estopped by his statements, acts, and conduct.
“To constitute one’s acts and statements an estoppel, they must have been done and made with a full knowledge of the facts. There is no claim that Mr. Going knew of this cloud against the title until after March 17, 1896. His contracts contained these provisions: ‘ Payments can be made on or before they become due; and it is further covenanted by and between the parties hereto that on the performance of all the conditions to be done and performed, at the time and manner above mentioned and specified, on behalf of said party of the second part, that the said party of the first part shall execute a good and sufficient warranty deed to such party of the second part.’ He tendered the money under the first of these clauses. * * * There was a failure to deliver the deed for a short time, but the society was entitled to a reasonable length of time. The tender was a valid one, under the circumstances, when Stockwell expressed his satisfaction with the amount; and Mr. Going was, within a reasonable time, entitled to such a deed as Mr. Davis’ statements and his contracts fairly imply. At that date the society could not give such a conveyance. No one could then know positively that a curative or healing act would ever be passed, or, if so, when. It is quite probable that, if local sentiment had been such as to influence the members from Oakland county to oppose it, no such act could ever have been passed. Mr. Going was not bound to accept the title with a cloud of this character upon it; and I discover nothing in his conduct between March 17, 1896, the date when he became possessed of this information as to this cloud, and the date of this refusal, that would estop him from refusing it. * * * ”

The court thereupon directed the verdict in favor of plaintiff for the amount paid by him on the contracts, with 6 per cent, interest from the date of the tender, and also for the value of the improvements made by' him on the premises.

For the purpose of the discussion of the case, we shall treat of the four lots not included in this six-acre tract. The proceedings in the circuit court, in chancery, to quiet title, had no reference to these four lots; so that the defendant’s claim that it could convey a good title must rest on the curative act of 1897. It must be conceded that the defendant corporation could not sell and dispose of this real estate without pursuing the method pointed out by the statute, and that the contracts, and consequently the deeds tendered to plaintiff in June, 1896, were invalid. Does the curative act aid the defendant, as to these four lots, in its claim now presented? We think not. On December 3, 1896, the plaintiff demanded the money paid by him on these contracts, as well as the money paid for improvements. The demand was refused. This was before the curative act was passed. We think that at that time the plaintiff had the right to have his demand complied with, as to these four lots. He purchased the property for speculative purposes, and, under his contracts, had the right to pay the whole contract price at any time, at his option. He had tendered before that the whole amount remaining unpaid on the contracts. He was not compelled to await the action of the legislature for the defendant to perfect the title sought to be conveyed by the defendant to him. Plaintiff was making improvements on the property, and when he found that the corporation had not conveyed the title, by reason of the defect in not complying with the statute, he was not bound to wait longer for a title to be perfected. He could not capriciously refuse to accept a deed; and if, when the deed was first tendered to him, the defendant had had a good title, undoubtedly the tender would have been in time. But, before the act was signed by the governor, this action was commenced. At the time of the commencement of the action, therefore, the curative act was not in force. We think it did not aid the defendant’s case that a tender of the deed was made after the act was approved. The status of the parties, if not fixed by the demand of the return of the money on December 3, 1896, certainly was fixed by the commencement of suit. The case falls, very clearly, within Potter v. Ranlett, 116 Mich. 454. The court was therefore not in error in directing the verdict for plaintiff, so far as these lots are concerned.

The other lots — those on outlot 15, being the six acres in which the Wisner heirs claimed some interest, and in reference to which the bill in chancery was filed — stand in a different position, so far as the rights of the parties are concerned. The plaintiff was made a party to that suit. The prayer of the bill has been heretofore set out, and it is unnecessary to repeat it; but it shows just what relief the defendant corporation was asking, and the decree grants the relief prayed. The plaintiff himself has made no motion to disturb that decree. It must be treated as res adjudicata as to .him, and conclusive upon all the parties and their privies. Kent County Agricultural Society v. Houseman, 81 Mich. 609. Therefore, so far as the parties to this action are concerned, the question was settled in that suit that the defendant had conveyed a good title by these contracts. The decree was made and entered March 17, 1896, which was before the time plaintiff made his tender of the money on the contracts. That tender was made the fore part of June, 1896, and the deeds under the contracts tendered to plaintiff on the 23d of that month.

Some question was raised on the trial that the decree entered in the chancery cause was not the decree which the court intended to make. But that decree is set out in the record, and, so far as appears by this record, stands unreversed and undisturbed, and is binding upon the parties.

The court was in error in directing the verdict in favor of plaintiff for the lots covered by the decree. The judgment must be reversed as to those lots, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    CORNELL v. MANISTEE & NORTHEASTERN RAILROAD CO.
    1. Railroads — Rights or Way — Fences—Statutes. .
    Statutes requiring railroad companies to fence tlieir rights of way are not applicable to places properly devoted to the receiving or unloading of freight.
    2. Same — Forest Products — Loading Ground.
    A railroad company, whose line runs through a new and heavily timbered country, may properly leave unfenced a portion of its right of way a mile and a half from the nearest station, as a storing and loading place for forest products.
    3. Same — Instructions.
    An instruction in an action against a railroad company for' the value of an animal killed on its track, cautioning the jury against a popular prejudice against railroads, is not improper when coupled with an injunction to be impartial and to decide justly.
    Error to Manistee; McMahon, J.
    Submitted April 22, 1898.
    Decided May 24, 1898.
    Case by David A. Cornell against the Manistee & Northeastern Railroad Company to recover the value of stock killed on defendant’s track. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Smurthwaite & Fowler, for appellant.,

      T. J. Ramsdell, for appellee.
   Hooker, J.

The plaintiff’s action was brought to Tecover damages for the alleged negligent killing of three colts, which were run over by the defendant’s train. These colts were pastured upon premises of the plaintiff which were not fenced, and they strayed from these premises into the adjoining woods, and found their way, across lands of other proprietors, to the defendant’s railway, which was not fenced at the place where the colts approached it. They went upon the track, and were run down and killed. It was the claim of the defendant that it was not required to fence its track at this place, for the reason that it was used as a storing and loading place for ties, logs, and other forest products, which constituted the principal traffic of the road, the country being comparatively new. It is conceded that this was not a stopping place for passenger trains. The testimony of the civil engineer shows that, f’-om the station grounds at Copemish, the track is fenced for about a mile and a half south, and nearly to the point where the colts were killed. From that point there is a stretch of about eight miles, to a place called “Manistee Crossing,” or beyond, that there is no fence. At a distance of the length of 54= rails south of the place where the colts were killed, there is a switch for a side track, which runs north 27 rails or more. This switch, and the main track north from the switch towards the place where the colts were killed, and including the place at which they entered upon the right of way, were used as a piling and loading ground for forest products, and skids were constructed there to facilitate such loading; There are other such places, and the engineer testified that the company was in the habit of making them for persons who have timbered lands along the line of road, which the company' wishes to reach, and that it would not be feasible to do this if a fence were to be placed along the way at such points. It appears that the land adjoining the road, at the point in question, was owned by the Buckley & Douglas Lumber Company, but that the railroad company bought ties there from one Woolover, and that the State Lumber Company shipped some forest products from that point. Woolover obtained the ties from the Buckley & Douglas Lumber Company. It does not appear where the State Lumber Company obtained the products shipped by it.

We think that the evidence fairly shows that the skid-ways and switch were placed there for the mutual convenience of the defendant and the Buckley & Douglas Lumber Company, which owned a large tract of timbered lands at that point, and that they had no other use, except, possibly, when one or more persons may have been permitted to draw products across the Buckley & Douglas lands for shipment from this switch. We find nothipg to indicate that the general public had access to this place, though it does not appear that they were forbidden. The learned circuit judge permitted the jury to find that this was a bona fide shipping point upon defendant’s road, necessary to its convenience and that of the public.

The courts generally hold that statutes requiring railroad companies to fence their railways are not applicable to such portions of the roads as are devoted to the shipment or unloading of freight, or the taking on or discharging of passengers; and this exemption is not' limited to regular stations. It includes flag stations, and it extends to yards and switches, and so much of the main track contiguous thereto as is necessary to the safe, expeditious, and convenient handling of cars to be switched or handled at such point. A discussion of this subject, with numerous authorities, will be found in Elliott on Railways, at section 1194. Several cases in our own State recognize the doctrine. Thus, in Schneekloth v. Railway Co., 108 Mich. 1, a triangular piece of ground at the intersection of two country highways was exempted from fences and cattle-guards, although there was no building there, nor any agent, and trains stopped there merely when they had passengers or freight to deliver, or when some one displayed a signal erected for the purpose. The traffic at that place was probably much less than in the present case, and it' does not even appear that there was a switch. In the case of McDonald v. Railway Co., 113 Mich. 484, a spur track was built at a point remote from a station. This spur extended two miles, to the plant of a concern engaged in the manufacture of lime, and a part of this switch was used for switching passenger trains at times, and was not fenced. The court held that, although there was no public station there, the keeping open of this switch was necessary for het convenience of the public, and there was no obligation to fence it. See, also, Rabidon v. Railway Co., 115 Mich. 390 (39 L. R. A. 405).

The evidence indicates that this railroad runs through a new and heavily timbered country, in which the principal industries relate to the removal of the timber. Upon these the railroad is largely dependent for its business. We may take judicial notice- that landed proprietors will seek the shortest possible route to the railroad with their products, and it is probable that it will be mutually beneficial for the railroad company to accept such freight upon the premises of large operators where this is feasible, as is done by all roads where manufacturing industries justify it. We do not find it necessary to say that a railroad company may safely omit to fence wherever it can find a little freight to be shipped.

In this case the jury were permitted to find, and we think that the evidence clearly showed, that this loading place was one fully justified by the conditions, and the court might properly have so instructed the jury. He did not, however, and even left the question of good faith to the jury, which we think was unnecessary under the proof, but not injurious to the plaintiff.

Inasmuch as the court might have charged the jury that this shipping point was not required to be fenced, the question of contributory negligence is entitled to consideration, in connection with the claim that the train was negligently managed. The court left this question to the jury, because, as he told the jury, there was testimony tending to show that the habit of horses was such that they would not be likely to attempt to pass from a cleared lot into or through, the woods. We think the course taken was as favorable to the plaintiff as he had a right to ask. The same may be said of the instructions in relation to the claim that the killing of the colts was wanton.

The judge cautioned the jury against a popular prejudice against railroads. We are not prepared to say that such caution was improper. • It was coupled with an injunction to be impartial and to decide justly. We think the matter was within the discretion of the circuit judge, and that there was no just cause to complain of what was said in this connection.

The judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    ROACH v. WAYNE CIRCUIT JUDGE.
    Appeal — Bill of Exceptions — Extension of Time.
    Circuit Court Rule No. 47 provides that a party shall have not less than 20 days after entry of judgment for the settlement of a bill of exceptions, and that further time may be granted by the court, but not to exceed 60 days, except for good cause shown by affidavit, on special motion, after notice. Held’ that the court has authority-to grant an extension on cause shown, although 80 days have elapsed since entry of judgment, and there has been no prior extension.

      Mandamus by James Roach to compel Willard M. Lillibridge, circuit judge of Wayne county,"to vacate an order extending the time in which to settle a bill of exceptions.
    Submitted May 3, 1898.
    Writ denied May 24, 1898.

      John W. McGrath, for relator.

      Moore & Moore, for respondent.
   Per Curiam.

The question presented in this case is whether an application for extension of time after 80 days from entry of judgment have elapsed may be granted on cause shown in a case where there has been no previous extension. Under the old circuit court rule No. 85, no extension could be granted after the expiration of the term in cases where no extension had been given during the term. Cleveland v. Stein, 14 Mich. 334; Adrian Furniture Manfg. Co. v. Lenawee Circuit Judge, 92 Mich. 295. But when an extension beyond the term had once been had, the circuit judge had power to grant a further extension. White v. Campbell, 25 Mich. 465. The new rule No. 47 provides that a party shall have not less than 20 days after entry of judgment for the settlement of a bill of exceptions, and that, subject to limitations prescribed by statute, and on such terms as shall be deemed just, the court may grant such further reasonable time as shall be deemed proper, and may extend such time when proper. It is further provided that no more than 60 days’ further time shall be granted except for good cause shown by affidavit on special motion after notice to the adverse party. There is no express limitation as to the time when this order may be made, and we think no such limitation need be interpolated by construction. The rights of parties are sufficiently protected by the requirement that they shall have notice of, and an opportunity to contest, such application.

The writ will be denied.


text:
    WRIGHT v. GENESEE CIRCUIT JUDGE.
    Residence — Divorce.
    A wife who leaves her husband on account of his cruelty, and takes up her abode in another county, with the intention of remaining there permanently, becomes at once a resident of such county, within the meaning of the divorce laws.

      Mandamus by Dolina L. Wright to compel Charles H. Wisner, circuit judge of Genesee county, to set aside an order dismissing a petition for temporary alimony.
    Submitted May 3, 1898.
    Writ granted May 24, 1898.

      Williams & Wilson, for relator.
   Long, J.

It appears that the petitioner, on April 4, 1898, filed a bill for divorce in the Genesee circuit court, in chancery, against her husband, Henry W. Wright. Defendant lived in Tuscola county, this State, and on April 11th caused his appearance to be entered in said cause, and demanded a copy of the bill. This copy was duly served on the same day, and an application was made for temporary alimony. This application for alimony was set for hearing on April 25th. It appeared on that application that the parties lived together as husband and wife in said Tuscola county until April 3, 1898, when the complainant left her husband on account of his cruel treatment of her, taking with her her two children, and removed into Genesee county adjoining, and on the nest day filed her bill for divorce. The circuit court refused to pass upon the merits of the motion, and denied the application for alimony solely on the ground that the complainant had not acquired a residence in Genesee county, and therefore the court had no jurisdiction. This petition is for a writ of mandamus to set aside the order so made, and to compel the circuit court to pass upon the merits of the case.

There is no showing in the case but that the complainant, the petitioner here, moved into Genesee county with the bona fide intention to make that county her home. She had two older daughters residing in Genesee county at the time she came there, and she at once took up her residence with them, and still continues to reside there. Section 6228, 2 How. Stat., provides that “a divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties, or one of them, reside, or by the court of chancery, on the application by petition or bill of the aggrieved party,” etc. Residence means the place where one resides; an abode; a dwelling or habitation; especially, a settled or permanent home or domicile. Residence is made up- of fact and intention. There must be the fact of abode, and the intention of remaining. Estate of Heron, 6 Phila. 90. It must be conceded, under the showing made, that the complainant had abandoned her home in Tuscola county. She had the undoubted right to do this by reason of the claim made of her husband’s cruel treatment towards her. Having abandoned her residence in Tuscola county, she was at liberty to select another residence. She has selected her residence in Genesee county, and the showing is that she intends to fix that place as her permanent home or abode for the time being. The statute fixes no time that one must occupy a place or home in order to become a resident of a certain .locality, when not coming from without the State, except in certain cases; such as acquiring a residence for the purpose of exercising the. privileges of an elector, for the purposes of taxation, for gaining a settlement as a pauper, etc. In the present case the complainant was a resident of this State, and had been for many years. She changed her residence from Tuscola to Genesee county. She lost or abandoned her residence in Tuscola county; and the fact that she intends to reside in Genesee county, coupled with the fact that she has established a permanent home there, we think, constitutes her a resident of Genesee county, within the meaning of the statute.

The court had jurisdiction of the subject-matter and the parties. The writ must issue as prayed, directing the circuit court to consider the cause upon the merits.

The other Justices concurred.


author: Moore, J. Hooker, J. Grant, O. J.

text:
    MORLEY v. SAGINAW CIRCUIT JUDGE.
    1. Receivers — Discretion—Supervision op Court.
    A receiver engaged in the active management of a great enterprise, like a street railway, must be clothed with considerable discretion, and his judgment in matters of detail should not be disturbed by the court unless an abuse of such discretion is shown.
    3. Same — Street-Railway Regulations — Colleotion op Fares.
    The adoption by a receiver of a street-railway company of a system for collecting car fares, whereby the fare is placed by the passenger in a metal safe carried by the con. ductor, who registers the same by pressing a button, is a proper regulation with respect to a detail in the management of the road, and the court is not justified in directing its discontinuance on the ground that it is an imputation upon the honesty of the conductor.
    3. Same — Employes—Right to Intervene.
    A conductor of a street-railway company in the hands of a receiver does not stand in such relation to the receivership proceedings that he may intervene, and have an order of the receiver, requiring him to use a specified device in the collection of fares, reviewed by the court.

      Mandamus by George B. Morley and Homer Loring, receivers of the Union Street-Railway Company of Saginaw, to compel Byron A. Snow, circuit judge of Saginaw county, to vacate an order requiring relators to discontinue the use of the Mehling system for the collection of car fares.
    Submitted May 17, 1898.
    Writ granted May 24, 1898.

      Humphrey & Grant (Benton Hanchett, of counsel), for relators.

      E. L. Beach, for respondent.
   Moore, J.

This is a petition for a mandamus to require the respondent to vacate an order made by him. The petitioners were appointed by the circuit court for the county of Saginaw, in chancery, receivers of the Union Street-Railway Company of Saginaw, Mich., upon the application of the Boston Safe-Deposit & Trust Company, complainant in a cross-bill in Union Street-Ry. Co. v. City of Saginaw, 115 Mich. 300. The receivers were directed to take control of the road, and operate the same. At this time there was in the employ of the road, as a street-car conductor, John C. Smith, and he continued to act in that capacity after the appointment of the receivers. About April 1st the receivers adopted the Mehling box system of collecting car fares from passengers. This box is a metal'safe, of convenient size, carried by the conductor, into which the passenger is required to deposit his fare, at which time the conductor presses a button which rings a bell and registers the fare. At the end of the day the box, with the transfer tickets, is handed by the conductor into the office, and becomes his settlement with the company. The use of this box was distasteful to the conductor John C. Smith, who filed a petition in which he represented his long employment upon the road; the fact that he was required to carry one of these boxes; that he had no means of knowing that they were accurate; that their use made him responsible to the company for plugged or counterfeit coins; that passengers objected to their use, and when the conductors, following the rules adopted by the company, required the passengers to deposit their fares in the boxes or leave the car, it gave rise to controversies which resulted in injury to the conductors; and that he had been injured by a passenger who objected to paying his fare. He also represented that when attempting to use the boxes of the company in good faith, according to the rules, he had been laid off from work for a number of days; and he asked for an order that the receivers might be required to pay him for the time so lost, and that the use of the boxes be discontinued. The receivers answered the petition, and claimed that the use of the boxes was a reasonable and proper regulation, and that Mr. Smith persistently and purposely refused to properly .use them, and did so after being warned that, if he did not properly use the boxes as directed, he would be laid off. Proof was offered before the court from which it pretty clearly appears that there would be no difficulty in operating the boxes if the conductors were so inclined, and that there was no practical difficulty in the way of their use, either on the part of the passengers or the conductors. The court made an order granting the prayer of the petition, not for the reasons set up therein, but, to state it in his own language, used at the time he granted the order:

“ It seems to me, in this matter, that the fact of the' receivers publishing notices in the car that no conductor shall handle money, connecting that with the fact that he shall be liable and responsible for any plugged money or counterfeit money that is placed in these boxes, compelling the public to place the fares in these boxes, and for the further reason that it is objectionable to the public to be compelled to put the money in the boxes— For these reasons it seems to me that, coupling the advertisement with the request to the public, it means that the conductors are not to be trusted; that they are not to handle the money; that there is some honest person somewhere who can handle the money, and count it correctly, but that these men are liable not to do so. It is an insinuation of dishonesty. In my opinion, it is saying to the public, ‘We have men in our employ whom we cannot trust, whom we are unable to trust, and I warn you that here is a man who is liable to appropriate to his own use money that he may collect that belongs to this railroad.’ It tends to ostracise from society people who are so engaged, — so employed. Children talk of it on the street. People discuss it, — that they are not proper persons to associate with; they cannot be trusted in handling five-cent pieces. I think this box is not a proper regulation; that it is not a thing to be used in the manner in which it is used; and an order may be made discontinuing the use of it.”

We think the conclusion reached by the learned judge is wholly unwarranted by the facts. Conductors of street cars deal with a great number of- persons, some of whom are entering and leaving the cars frequently. It often happens that change must he made, and there are opportunities for mistakes. It is not unreasonable to assume that, like persons in all callings, some of the employés of street-car companies will yield to temptation, when presented. Every one at all familiar with business upon a large scale knows that it is desirable to have it so systematized that mistakes or fraud in its conduct shall not occur. Officials, both of the State and Nation, and officers charged with the. management of banks, railroads, and other corporations,. are surrounded by checks and safeguards calculated to do away with the possibilities of frauds or mistakes. . The cash register is to be found in most places of business. Upon the elevated roads in the large cities, the passenger pays his fare before he enters upon the platform, over which he must pass to get admission to his train. Every one recognizes these checks and safeguards as proper to be used, and no one has a right to regard them as an imputation upon the honesty of any individual using them. Their use is simply a recognition of what we all know to be a fact, with humanity constituted as it is, — that, in the conduct of a large business by many persons, there is a liability to make mistakes, and a possibility of the commission of frauds. The Great Teacher, in that prayer which is the model of all prayers-, prayed, “Lead us not into temptation, but deliver us from evil.” It can readily be seen how the unintelligent or dishonest might object to these checks and safeguards, but it is difficult to understand how the honest and intelligent should object to any practical method which would reduce the probability of mistakes, or the opportunities for the commission of fraud, to the minimum.

It is urged on the part of the respondent that, as the receiver is an officer of the court, the control of the court over him is plenary, that whatever he does is done under the direction of the court, and that he is bound to observe the order of the court; citing 5 Thomp. Corp. § 6941. It is true that receivers are officers of the court. It is also true that less discretion is given to passive receivers, whose duty consists simply of taking possession of property, and converting it into money, and distributing it, than is allowed to an active receiver, who is required to manage a going concern like a system of street railways or a railroad. Such an officer, to be successful, must possess large executive ability, and must be clothed with considerable discretion. High, Rec. § 392. He may do such things, in the ordinary course of business, as to him, in good faith, seem necessary to render the business of the road profitable and successful. He is not only the arm of the court, but he represents, in a sense, the creditors and the stockholders of the road. If they, had the time to do so, very few courts possess the necessary knowledge to enable them to successfully manage a system of street railways. It is said in Continental Trust Co. v. Toledo, etc.. R. Co., 59 Fed. 514:

“The receiver is chosen, on account of his experience and sound ‘judgment, to operate the road for the benefit of the creditors and all concerned. While he is the officer of the court, and subject to the orders and directions of the latter, yet his instructions are always general in their character. He is expected to look after the details of the business, and to apply to the court, from time to time, when special instructions seem necessary. The very nature of his relations to the court, and his duties to the creditors, entitle him to the largest degree of discretion possible in the discharge of his duties. The court is constituted of several judges, and the railroad being operated extends through several judicial districts, so that it is difficult to secure uniformity in the administration of the property when an attempt is made to retain control of the details of the management in the court. It is therefore the settled practice, both as a matter of comity between the judges and as a matter of necessity to the proper and safe administration ■of the trust, to impose, as far as possible, the management of the property upon the receiver, and to remit the supervision of his management to the court in which he was appointed, and in which the primary jurisdiction attached. In view of this well-defined policy, it must be apparent that in the operation of a railroad extending from Toledo to St. Louis the court must necessarily rely upon the receiver, and hold him responsible for details. His discretion in such management will not be interfered with, except where some abuse and wrong is manifest.
“In Taylor v. Sweet, 40 Mich. 736, Judge Cooley, speaking for the Supreme Court of Michigan, in reference to the employment of help in the management of business confided to a receiver in that case, said: ‘The receiver, however, has ample power to employ them, or any other persons whose services he may need; and we think a court, which can know much less about the needs of the business than the receiver, ought not to interfere with his discretion unless some abuse is alleged and shown.’
“In Kerr on Receivers the following principle is given, in paragraph 175: ‘If he is empowered by the court to continue the management of the business over which he is appointed, he may employ such persons as may be necessary for the purpose; and the court will not interfere with his discretion as regards such employment, unless some abuse is shown.’
“These principles of law were declared in a case where a receiver was managing the business of a partnership. With how much greater force and pertinence do they apply to a receiver charged with looking after the intricate business of a great railroad, 450 miles in length, requiring familiarity with detail and expert knowledge which can only be acquired through long training and experience! A controversy recently arose between the engineers, firemen, and trainmen on the East Tennessee, Virginia & Georgia Railroad, and the receivers in charge of that extended system, running through several States, as to an order of the latter concerning the wages of employes. The receivers were appointed in the circuit court of the United States for the Eastern district of Tennessee. During the controversy, and while the chiefs of the organization of engineers and firemen were in Knoxville, negotiating with Receiver Eink on the subject, the former made representations as to the nature of the contention between them to Circuit Judge Lurton, then in Knoxville. The latter declined to entertain jurisdiction of the controversy, and remitted the question to the receivers; saying their decision would be final unless palpable wrong and 'injustice were done.
“ This is the only proper practice to pursue in these controversies. Courts are not constituted to manage and operate railroads. The judges, learned in the law though they may be, are not experienced in large business undertakings. They are not trained in those departments of railroad management which relate to the wages of employes, to the numbers necessary for the maintenance of the roadbed and for the safe operation of trains, to the tariffs for freight, and the purchases of supplies. Even if capable of mastering such details, their time will not permit. They are occupied in determining the legal rights of parties in litigated cases, and though, in these days of large ventures and improvident railroad enterprises, the courts are called upon, through receivers, to temporarily manage them pending litigation necessary to a foreclosure sale, yet, as before stated, they assume this burden because it cannot be evaded; -but they manage them through receivers selected for their experience and demonstrated ability, and they rely upon their experience and judgment to wisely and economically administer the trust.”

See, also, 20 Am. & Eng. Enc. Law, 370; Cowdrey v. Railroad Co., 1 Woods, 336; Sloan v. Railway Co., 62 Iowa, 733.

Applying these principles to the case in hand, what is the situation, and what should be the result ? The receivers are in the management of a great property. They adopted a device which, in their judgment, is calculated to help make the management of the road successful and profitable. Their judgment is challenged by one of their employes. He appeals to the court. The receivers are supposedly appointed because of their responsibility and ability. The act of the receivers is a detail in the management of the road. The act done is not shown to be an abuse of discretion on the part of the receivers. If the court is to substitute its-judgment for the judgment of the receivers in a detail of management like this, where will its duty end? Shall the court enter into the consideration of the entire organization of the road, and determine whether one man shall be discharged and another employed ? Will it enter into the inquiry as to the quality of the coal used in the power-house, or the brand of oil used as a lubricator ? Will it entertain a complaint of an employe that he should be furnished with a pointed shovel in his work, instead of the one he is now required to use ? We think the learned judge entered upon an inquiry that properly belongs with the receivers, and not with the court. If they are not competent to deal with such a detail of the management of the road, they should be removed, and some one appointed who is competent.

The writ should issue as prayed.

The other Justices concurred in the opinion of Moore, J.

Hooker, J.

I concur in the result reached by my Brother Moore in this case, for the reasons stated in his opinion, and for the further reason that the relation of the petitioner to this proceeding is not such as to give him a right to intervene for the purpose mentioned in his petition. He is an employe, merely; and if he was not satisfied to perform such labor as the receivers had to do, in such a manner as the receivers wanted it done, he was under no obligation to continue in their employ. The proceeding is one brought to enable the creditors of the street-railway company to realize from its assets, which may be supposed to be inadequate to pay its debts. If every man in the employ of the receivers who chances to differ with them about the method of .conducting the business may ask the intervention of the court to compel such changes as he may think advisable, the delay and expense to the receivers would be likely to exhaust the patience of creditors, and the property would be absorbed, to their exclusion. This petitioner is not a party to the record, nor is he a party in interest in any sense which should permit him to intervene. The only ground upon which his intervention might be justified is the claim to compensation during the time he was laid off. As to that, we find nothing in the case which would justify the court in ordering the receivers to pay him for time that he was not at work, especially as his own conduct was just cause for liis discharge, if any cause was necessary.

Grant, C. J., and Long, J., concurred in the opinion of Hooker, -J.

Grant, O. J.

I fully concur in the opinions of my Brothers Moore and. Hooker. I desire to say, in addition, that I do not think Judge Snow had any authority to pass upon the question, for the reason that the identical question had before been passed upon by Judge Wilber, in the case of Kitchen v. Saginaw Circuit Judge. Mr. Kitchen was a passenger, refused to put his fare in the box, was removed from the car, and applied to Judge Wilber for leave to sue the receivers. Judge Wilber refused, and his order thereon was affirmed by this court. By Act No. 75, Pub. Acts 1889, an additional circuit judge was provided for the Saginaw circuit. Section 8 of that act (3 How. Stat. § 6480p) provides;

“No order shall be stayed, nor shall any stay of proceedings or injunction be had or set aside or modified or dissolved, except by the judge trying the case or making the order or granting the injunction, except that, in case of the absence from the county, sickness, or other cause disabling such judge to act, the other circuit judge shall have power to stay, modify, set aside, or dissolve such order or injunction. Neither judge shall grant any application which shall have been denied by the other.”

The sole question in that case, as in this, was the reasonableness of the regulation. I think that the order of Judge Wilber under this statute was conclusive upon Judge Snow, and that he should for this reason have denied the order.

Long, J., concurred in the opinion of Grant, C. J.

       April 19, 1898; no opinion.


text:
    VLEIT v. HOFFMAN.
    Tax Sales — Validity.
    Case ruled by Featherly v. Hoffman, ante, 42.
    Appeal from Bay; Maxwell, J.
    Submitted January 6, 1898.
    Decided June 7, 1898
    Petition by Charles Yleit against John M. Hoffman and the auditor general to set aside a tax sale. From a decree for petitioner, defendants appeal.
    Affirmed.

      Fatio Colt (E. A. Cooley, of counsel), for petitioner.

      Avery Bros. & Walsh (Fred A. Maynard, Attorney General, of counsel), for defendants.
   Per Curiam.

This case was argued with the case of Featherly v. Hoffman, ante, 42, in which case an opinion was handed down at the April term of court, and is controlled by it. For that reason, it is not necessary to write an opinion in this cáse.

Decree is affirmed.


text:
    WEBBER v. HAYES.
    1. Garnishment —Fraudulent Conveyances — Equity Jurisdiction — Constitutional Law.
    8 How. Stat. § 8059, permitting garnishment for lands held by-conveyance void as to creditors of the principal defendant, is not unconstitutional as conferring upon a court of law a power which belongs to equity to determine as to the validity of such conveyances.
    3. Common-Law Assignment — What Constitutes.
    The provision of 3 How. Stat. § 8789, invalidating common-law assignments which create preferences between creditors, or omit some of the debtor’s property not exempt from execution, does not apply to a transaction where a large number of instruments of different kinds, running to different persons, and executed at different times, and which do not cover all of the debtor’s property, are given to secure his debts.
    8. Same.
    Not every attempt to dispose of property fraudulently will be construed to be a common-law assignment, void under the statute. Before there is opportunity for application of the statute, there must be some instrument in the nature of a common-law assignment, the terms of which, but for the statute, would vest the debtor’s title in another in trust for one or more creditors, whereby other creditors would be precluded from any remedy against the title or equity of the debtor.

      4. Evidence — Letters—Hearsay.
    A letter, written by a son of the parties to an alleged fraudulent conveyance, which is not so connected with the transaction as to be a part of the res gestae, is hearsay and inadmissible.
    5. Trial — Conduct of Counsel — Relations with Jury.
    The practice of card-playing in the jury-room between counsel and members of the jury is open to criticism.
    6. Appeal — Briefs of Counsel — Citation of Decisions.
    While the citation in briefs of counsel of foreign publications of Michigan decisions is not objectionable, the citation in the State Reports must, whenever practicable, be given also.

      Error to Ionia; Davis, J.
    Submitted April 7, 1898.
    Decided June 7, 1898.
    Garnishment proceedings by George W. Webber and Andrew J. Webber against Mary A. Hayes, as garnishee of Nathan B. Hayes. From a judgment for plaintiffs, the garnishee defendant brings error.
    Reversed.

      Lemuel & William K. Clute (F. C. Miller and A. B. Morse, of counsel), for appellant.

      McGarry & Nichols (V. H. Smith and A. A. Ellis, of counsel), for appellees.
   Hooker, J.

The plaintiffs commenced proceedings in garnishment against the wife of their judgment debtor; and, after disclosure and answer to special interrogatories were filed, the cause came to trial before a jury upon the statutory issue, and a verdict was rendered for the plaintiffs, from which the garnishee defendant has appealed.

In support of the plaintiffs’ claim, it is urged that there was evidence tending to show that the principal defendant disposed of his property, by deed, assignment, and mortgage, to his wife (the garnishee defendant) and other persons, for the purpose of defrauding his creditors. It was contended upon the trial, by plaintiffs’ counsel:

“1. That these instruments, taken collectively,-amounted to a ‘constructive assignment;’ that it was intended that they should amount to an assignment with preference to certain creditors; that there was a resulting benefit to Mr. Hayes from the entire transaction; and that certain creditors were left out.
“ 2. That the papers transferring the personal property to the wife amounted to a mortgage, and that they were fraudulent as a mortgage, because not filed before the proceedings in this case were instituted.
“3. That, if it was a bill of sale, it w;as presumed fraudulent, because no such possession as the law requires was given and sustained by Mrs. Hayes after it was claimed by her that she took the property into her possession. -
“4. That the general purpose of giving the papers to Mrs. Hayes was to defraud creditors, and that she participated in the fraud, and that, although she might have been a creditor in good faith, Mr. Hayes could not prefer her, by acts of fraud in which she participated, to the exclusion, detriment, delay, and hindrance of other creditors.”

Among the more important questions raised by the defendant are the following:

1. That there was no evidence tending to connect Mrs. Hayes with any attempt upon the part of her husband to hinder, delay, or defraud his creditors.

2. That, if there was, the statute which permits the validity of conveyances of property (especially real property)to be questioned, .and tried by jury, and to form the basis of a garnishee’s liability, is unconstitutional and void.

3. That the undisputed evidence negatives the theory of a constructive assignment for the benefit of creditors, and the question should not have been left to the jury.

At the threshold of the case lies the question raised upon the garnishment statute (2 How. Stat. § 8059, as amended in 3 How. Stat. § 8059). It provides that — •

“From the time of the service of the writ, the garnishee shall be liable to the plaintiff to the amount of property * * * under his control belonging to the principal defendant, * * * and for all property, personal and real, * * * of the principal defendant, which such garnishee defendant holds by conveyance, transfer, or title that is void as to creditors of the principal defendant, and for the value of all property, personal and real, * * * of the principal defendant, which such garnishee defendant received or held by a conveyance, transfer, or title that was void as to creditors of the principal defendant.”

The conveyances to Mrs. Hayes of some of this propT erty, both real and personal, were absolute in form. ■ We understand it to be contended that conveyances of this character, especially of real estate, cannot be overturned in garnishment proceedings. As to real estate, this may be the general rule, where the statute does not provide ,that it may be- done. Rood, Garnish. § 177; 2 Shinn, Attachm. § 468, and note. The rale seems to be different as to personal property. 2 Shinn, Attachm. §§ 587, 588. We have, therefore, no hesitancy in holding that onr statute is valid, so far as it relates to personal property.

The statute was before the court in the case of Fearey v. Cummings, 41 Mich. 383. At that time the statute was not as broad as it is now, and the court held that, where the garnishee had parted with the possession of the property before being served with process, he could not be held liable; but there is no hint that the act was invalid, and the opinion distinctly states that the fraudulent character of the transaction was a question for the jury. That was a proceeding involving personal property; but we are aware of no impediment to the application of the same practice to real estate, where authorized by the legislature. As said in the case last cited, garnishment is a proceeding against the property, and therefore the bona fides of the transaction is open to question. Kansas has a similar statute, and, while it has been before the courts of that State, its validity seems not to have been questioned. Boston Loan & Trust Co. v. Organ, 53 Kan. 386. Apparently few States have applied this remedy to real estate, and we are cited to no case which holds such legislation unconstitutional. The ground upon which counsel place the proposition is that the setting aside of a conveyance of real estate, for fraud, has always been confined to courts of equity. But, whatever we may think of its expediency, we know of no obstacle to the exercise of a similar .jurisdiction by courts of law, if the legislature authorizes it in furtherance of a legal remedy theretofore existing, or created at the time the jurisdiction is conferred. It is not a case where equity is deprived of jurisdiction, or where the nature of a court of chancery is sought to be changed, as in the case of Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (5 L. R. A. 226, 13 Am. St. Rep. 438). Nor is it, in our opinion, a departure so radical as to deprive a party of a constitutional right to an equitable remedy. The case of Meigs v. Weller, 90 Mich. 629, involved real estate; and, while the constitutional question was not raised, the finding of fraud in the conveyance was sustained by this court.

It is obvious that an important question was whether this transfer of property to the wife was void because made with the intent to hinder, delay, or defraud creditors. Involved in it were questions relating to the consideration, the motive and intent of Hayes, and Mrs. Hayes’ knowledge of such motive and intent, and design to aid her husband. These were questions of fact, and there was evidence in the case which required their submission to the jury. But counsel seem to have contended that if the jury should find that the claim of Mrs. Hayes was valid, and that she was not a participant in an attempt by her husband to hinder, delay, or defraud his creditors, the property conveyed to her might still be reached, although conveyed to her in payment of debts, or mortgaged to secure valid claims, both of which may be done, as we have repeatedly held. We say, “seem to have contended,” because, unless they did so contend, there was nothing to be gained by the presentation of the constructive assignment theory, inasmuch as the conveyances, if otherwise fraudulent, would have been set aside upon the ground of common fraud, regardless of the nature of such fraud, or the means by which it was perpetrated. To do this (i. e., to reach the property, though no actual fraud were shown), it was only necessary that the instrument be attacked; for, while the wife might be paid or secured by deeds and mortgages, an attempt to provide for her by an instrument known in the law as a “common-law assignment for the benefit of creditors” would fail, unless such instrument should conform to the statute regulating such instruments.

' It was first necessary to build up a common-law assignment, and then proceed to demolish it by the application of the statute; and this has been attempted, as in the case of Austin v. First National Bank, 100 Mich. 613. This statute does not purport to provide a remedy against all sorts of fraudulent conveyances, but does attempt to regulate common-law assignments, which had previously well-settled characteristics. By referring to the statute (2 How. Stat. § 8739), we shall find that it invalidates such assignments where they create preferences between creditors, or where some of the debtor’s property not exempt from execution is omitted from the instrument. In the present case there is no instrument which bears the semblance of a common-law assignment for the benefit of creditors, but a large number of instruments, of different kinds, running to different persons, executed at different times, in addition to which it appears that not all of the property was covered by instruments made before the suit was begun, and that some property was omitted from all of the instruments. The decisions upon this statute are numerous, and they clearly show that, before there is an opportunity for its application, it must appear that there is something in the nature of a common-law assignment to be attacked; some instrument the terms of which, but for the statute, would vest the debtor’s title in another in trust for one or more creditors, whereby other creditors would be precluded from any remedy against the title or equity of the debtor. In short, attempts to provide for a portion of one’s creditors by assignment to a trustee, or when confined to a portion of the debtor’s property, are forbidden; but it does not follow that every attempt to dispose of property fraudulently will be construed to be a void common-law assignment for the benefit of creditors. Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Mich. 329; Armstrong v. Cook, 95 Mich. 257; National Bank of Oshkosh v. First National Bank, 100 Mich. 485; Austin v. First National Bank, Id. 620. There was, therefore, no occasion to submit this subject to the jury.

A letter from George Hayes, the son of Mr. and Mrs. Hayes, written to a friend, was admitted, upon the theory that he was a. co-conspirator with his parents. It was not inti’oduced by way of impeachment, nor was it a letter so connected with the transaction as to be a part of the res gestee. It was hearsay, and no more admissible than the statements of an agent made after or during the pendency of a transaction, but not in connection with or furtherance of it.

The court very properly criticised the practice of card-playing in the jury-room between counsel and members of the jury; but, as the case must be reversed on other grounds, we need not discuss the subject.

As the cause went to the jury upon an erroneous theory, we are constrained to reverse it. The record contains many assignments of error that we do not pass upon, as we are of the opinion that the trial of the actual merits of the case should be attended with little difficulty or danger of error.

We notice a growing practice of citing Michigan cases in foreign publications. There is no objection to this, but we must insist upon the citation, also, of our own edition of the Reports, where cases have been reported.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. SEELEY.
    1. Township Treasurers — Unlawful Appropriation of Public Moneys — Evidence—Admissions.
    An admission by respondent, charged with unlawfully appropriating township moneys collected by him as township treasurer, to his successor in office, in the course of a conversation had after respondent had ceased to be treasurer, that there was a shortage in his accounts, may be given in evidence against him.
    2. Same — Taxes—Collection.
    A township treasurer is not authorized to accept anything except money in payment of taxes.
    3. Same — Prima Facie Case — Rebuttal.
    In a prosecution under 3 How. Stat. § 9263a, for unlawfully appropriating public funds received as township treasurer, respondent may rebut a prima faaie case, made, under the statute, by an apxiarent shortage on the books, by showing that the shortage arose from his having accepted logs in payment of taxes, and receipted the taxes as though they had been paid in cash.
    4. Same.
    But the unlawful appropriation to his own use of moneys received for the logs would constitute the offense charged.
    Exceptions before judgment from Gladwin; Sharpe, J.
    Submitted April 19, 1898.
    Decided June 7, 1898.
    Howard Seeley was convicted of knowingly and unlawfully appropriating public funds to his own use.
    Reversed.

      D. G. F. Warner, for appellant.

      Fred A. Maynard, Attorney General, and Guy E. Smith, Prosecuting Attorney, for the people.
   Moore, J.

An information was filed against the respondent, the material part of which reads as follows:

“That heretofore, to wit, on the 3d day of April, A. D. 1893, and on divers other days and times between said 3d day of April, A. D. 1893, and the 1st day of April, A. D. 1894, at the township of Beaverton, in the said county of Gladwin and State of Michigan, one Howard Seeley, late of said Beaverton township, in said county of Glad-win, and he, the said Howard Seeley, being then and there, during all of said time, treasurer of said township of Beavei'ton, and the collector of taxes of said township, and a public officer in the said State of Michigan, did then and there knowingly and unlawfully appropriate to his own use nine hundred dollars, and of the value of nine hundred dollars, of the money of the said township of Beaverton, which said money had been collected by said Howard Seeley, and came into the possession of the said Howard Seeley, by reason of the said Howard Seeley’s official capacity, contrary to the form of the statute in such case made and provided,” etc.

The respondent declined to plead to this information, and a plea of not guilty was entered by the court. The respondent was convicted, and brings the case here on exceptions before sentence.

The record shows that from April, 1893, until April, 1894, Mr. Seeley was treasurer of the township of Beaver-ton. The records of the township show that [he received money as treasurer, and that he failed to turn over to his successor about $700. In December, 1894, Mr. Seeley proposed to the township board to settle with them by turning out the notes of several individuals, indorsed by him, which proposition was accepted. January 1, 1895, the notes were delivered, and a receipt given for them, signed by the supervisor.

On the trial the people gave in evidence a conversation had between Mr. Seeley’s successor and himself, which conversation was had after Mr. Seeley had ceased to be treasurer. This was objected to because Mr. Seeley was not then in office. We think it was competent, as an admission on the part of the respondent of a shortage in ■his accounts.

The respondent offered to show in his defense that, while the records show the respondent had collected a large amount of taxes, he did not in fact receive money for the taxes, but received saw-logs for them, and, upon receipt of the saw-logs, receipted the taxes as though they had been paid in cash. He also proposed to show that these logs were put into the river, and that the boom which held them in place went out, and the logs were lost, and the respondent became financially embarrassed, and for that reason could not reimburse the township. The court declined to allow this proof to be made. This is said to be error.

Section 1 of the statute under which this information is filed reads as follows:

“ That if any person holding any public office in this State, or if the agent or servant of such person, knowingly and unlawfully appropriates to his own use, or to the use of any other person, the money or property received by him in his official capacity or employment, of the value of fifty dollars or upwards, the person so offending shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the state prison, at hard labor, not to exceed ten years, or by fine not exceeding five thousand dollars, or both said fine and imprisonment.” 3 How. Stat. § 9263a.

Section 9263c of the act provides that a failure or refusal of any person holding public office to pay over and deliver to his successor all moneys and property which should be in his hands as such officer shall be prima facie evidence of an offense against the provisions of section 1 of this act.

It will be noticed that the offense charged is that the respondent knowingly and unlawfully appropriated to his own use $900 of the money of said township. If he never collected the money, is he guilty of its appropriation ? It is urged by the people that, when it is shown by the records that the respondent received money which he failed to pay over, the people have made their case; citing People v. Bringard, 39 Mich. 22 (33 Am. Rep. 344). This would doubtless make a prima facie case, under the statute; but a prima facie case may be rebutted. May not the respondent. show that the taxes were never in fact paid to him in money ? The township treasurer was not authorized by law to receive anything for. taxes except money. The taxpayer is bound to take notice of the law in that respect. The turning out of commodities to the treasurer will not pay the taxes, or discharge the taxpayer from the obligation to pay them. It is not competent for a township treasurer to receive saw-logs in payment of taxes, and bind the township by so doing. In the case of Turnbull v. Township of Alpena, 74 Mich. 621, the taxpayer paid his taxes, in part, by giving his note. The court said:

“ The note cannot be treated as a payment of this tax. The treasurer had no right or authority to take the note.of the plaintiff in payment of his taxes, and the defendant township could not be bound by such action. Taxes are due to the public, and not to the tax collector individually. Parties, in paying their taxes, are bound to know that the tax collector, though the agent of his township, has no authority, as such agent, to accept anything in payment of taxes to the public except money, such orders as are drawn upon him by the proper authorities, or orders that are properly receivable as taxes. His warrant directs him to collect from the persons named in the tax roll the amount of taxes chargeable to each person thereon, and directs how the moneys are to be applied and accounted for'by him. The rights and interests of the public are to be guarded and protected. The very existence of the government might be endangered if its public revenues could thus be bartered away by its tax gatherers. The giving of a note is not the payment of a tax.”

However culpable the acts of the respondent are, we do not think that by receiving logs for taxes he bound the township, and received money officially, so as to render him, by a failure to turn over the value of the logs to his successor, liable to conviction under the charge contained in the information. We think the court erred in not receiving this testimony. If, on the new trial, it is shown that he received money for the logs, he might be convicted of the offense charged.

The other errors assigned are either not well taken, or are not likely to occur again, and for that reason will not be discussed.

The case is reversed, and a new trial ordered

The other Justices concurred.


author: Grant, C. J.

text:
    HARVEY v. LINDSAY.
    1. Real-Estate Brokers — Relations with Principal — Good Faith — Evidence.
    Evidence that a prospective purchaser of land on which he held an option from the broker, pending the purchase, offered it to third parties at a price less than that which the owner was then asking, does not show conclusively that the option given was for less than the price asked, or that the broker disclosed his knowledge that the owner could be induced to take a smaller sum.
    2. Same — Commissions—Dispute as to Amount.
    Plaintiff, the assignee of a real-estate broker, sought to recover, as commissions upon the sale of defendant’s lands, a given per cent, of the purchase price, according to an alleged verbal agreement that the broker should receive such compensation. Defendant contended that the rate claimed was to be paid only in case the lands should realize a specified sum, which they did not, and, to support this contention, placed in evidence a telegram sent by him to plaintiff’s assignor, so stating the terms. Plaintiff then introduced, under objection, a letter sent to defendant on receipt of the telegram, in which the broker’s understanding of the agreement was stated in accordance with plaintiff’s contention at the trial, to which letter no reply was made. Held, that the letter was admissible to aid the jury in determining what the contract really was.
    Error to Wayne; Hosmer, J.
    Submitted April 20, 1898.
    Decided June 7, 1898.

      Assumpsit by Joseph J. Harvey, as assignee of Henry Gamble, against Archibald G. Lindsay, Frederick Marvin,. and De Forest Paine, for a commission on the sale of land. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Hoyt Post (Edwin E. Conely, of counsel), for appellants.

      T. E. Tarsney and W. G. Fitzpatrick, for appellee.
   Grant, C. J.

The defendants were the owners of a large tract of pine land in "Wisconsin, which they sold to one Don J. Leathers in March, 1892. One Henry Gamble claimed to have a contract with the defendants for the sale of these lands for 2-J- per cent, commission, and that he procured the purchaser. He assigned his claim to the plaintiff. Upon the merits of the controversy, plaintiff stands in the same position as though Mr. Gamble were the plaintiff. Mr. Gamble had advanced $12,932 towards the purchase of this land, and by written agreement dated November 3, 1888, was to receive from the sale that amount, with interest, and one-third of all the net profits. No profits were made. The first conversation in regard to a commission was had in May or June, 1891, between Mr. Gamble and Mr. Lindsay. This conversation is unimportant, as Mr. Lindsay informed Mr. Gamble that the entire matter was in the hands of Mr. Paine. Mr. Gamble thereupon went to Mr. Paine’s office. Mr. Gamble testified that Mr. Paine agreed to allow him a commission of 2-¿- per cent, on whatever amount was received, and promised to give him a memorandum in writing to that effect, but could not give it to him then on account of negotiations with another party, from whom he had not heard. Mr. Paine testified that the contract was a commission of 2{- per cent, upon a sale for $210,000. Mr. Gamble states the conversation as follows:

“I asked Mr. Paine what price he asked for the timber. ‘Well,’ he says, ‘the asking price is $210,000, but, if you find a purchaser, we will make the price all right;5 but the asking price must be $210,000, because, if he offered it lower, they would try to beat him down; they would try to get it for less.55

Mr. Paine testified that Mr. Gamble asked for an option, which he refused; that the price at which Gamble was authorized to make a sale was fixed at $210,000, with a commission of 2£ per cent.

The result, aside from the written evidence, depended entirely upon the testimony of three witnesses, — Gamble and Leathers for the plaintiff, and Mr. Paine for the defendants. As to their verbal conversations in regard to the contract, their testimony is in direct conflict, and, so far as the result depended upon them, the question was for the determination of the jury.

Certain written evidence is important. The first communication, after the above conversation, shown by the record, is a letter from Paine to Gamble, June 20, 1891, as follows:

“Dear Sir: I find I cannot give option just now; may be next week. If and when the men are ready to go in and estimate, let me know, and I will try and arrange for you.55

To this Gamble replied as follows:

“Dear Sir: Your letter received. You say you are not able to give an option until parties are ready to go on. The men are here now, and ready to go on, if they can get a 30-day refusal. If you will send me a refusal immediately, we will go at once, and look the land. Of course, I gave them to understand that I could get the refusal any time they were ready to go and look the same. They are parties who intend looking with a view to lumbering same next winter. If anything is done in the matter, it must be done at once.55

June 23d, Paine replied by telegraph as follows:

“Three applications for the pine. Name your parties. Price, $210,000. Will give 15 days, and extend then if trade on. If sold by you, 2£ per cent, commission to you.55

June 24th, Gamble replied by letter:

“Dear Sir: The party waiting to examine Ashland timber went, the day I received your telegram, to Toledo, and will return Sunday. If he is still desirous of examining timber, I will wire you Monday. I will try to sell it to him at $210,000, with the understanding you are to pay 2£ per cent, commission on whatever price it is sold for. This party’s land-looker is more liberal in estimating than any other man in the valley, and, if he should decide to examine the timber, the chances of a sale are good. ”

To this letter Paine made no reply. Gamble did not make the sale referred to in that letter, and did not disclose to defendants the name of the party. Nothing further appears to have been done until in September following, when negotiations were opened with Mr. Leathers by Gamble, resulting in a sale to him. Mr. Gamble and Mr. Leathers went to Detroit in October to see Mr. Paine. Meanwhile Mr. Leathers and the West Michigan Lumber Company each had put a man on the lands, and had them examined. Leathers at the same time gave the West Michigan Lumber Company a price of $200,000. In the interview at Detroit, Mr. Leathers offered Mr. Paine $173,000. Mr. Leathers put this offer in writing, Mr. Paine informing him that he could not accept that offer without authority from Mr. Lindsay, who was then away from home. Mr. Leathers went to Kentucky immediately. Mr. Paine communicated the offer to Lindsay, who authorized the sale, and acceptance was wired to Leathers. At that interview, Mr. Paine testified that he asked Mr. Gamble about his commission if they made a sale for less than $210,000, and that Gamble agreed to take $2,000. Gamble testified that his commission of $2,000 was conditional upon the sale being made for $173,000, but, if the sale was for more than that sum, then he was to receive 2-J- per cent, on the total amount.

Subsequently, when the parties met to carry out the agreement and convey the lands, it became known for the first time to Mr. Paine that the West Michigan Lumber Company was to pay Leathers $200,000 for the land. In this connection Gamble testified that he knew that the West Michigan Lumber Company was interested; that its estimator went upon the land with the one of Leathers; that he supposed Leathers was a part of the lumber company; and that he did not communicate to the defendants what knowledge he had in this matter. When Paine ascertained that the lands were to be sold for $200,000, he charged Leathers -with misrepresentation at the time his offer was made. Negotiations were thereupon temporarily suspended. Defendants, however, were anxious to dispose of the land, upon the sale of which, in any event, they were to be losers, and tendered to Leathers the deed of Mr. Lindsay, as the surviving partner of Lindsay & Gamble, a partnership formerly owning the lands. The West Michigan Lumber Company was in doubt as to the validity of this title. It was thereupon agreed that Mr. Paine should perfect the title by securing deeds from the heirs of the deceased Mr. Gamble, and, failing in that, he should perfect the title by proceedings in chancery, and, in consideration of this, the price was increased to $185,000. Mr. Paine carried out this agreement, and the money was finally paid in March, 1892. Plaintiff recovered verdict and judgment for 2-j- per cent, commission for the total amount of the sale.

The principal assignment of error is the refusal of the court to direct a verdict for the defendants, for the reason that Gamble was guilty of bad faith towards defendants in his dealings with Leathers. Upon this point the court instructed the jury as follows:

“If Mr. Gamble gave Mr. Leathers such information, or made to him such statements, as to cause Mr. Leathers to become satisfied that the defendants would not insist upon the price asked, and that he could press them into accepting a substantially less price for the pine, Mr. Gamble was guilty of bad faith towards the defendants, and his assignee, the plaintiff, Mr. Harvey, would not be entitled to recover any compensation for what he may have done in connection with the deal with Mr. Leathers.”

We are not satisfied that bad faith was conclusively proven. Defendants’ counsel base the above request principally upon the testimony of Leathers that Gamble gave him an option, and that about the same time Leathers gave the West Michigan Lumber Company the price of $200,000. This option was not produced, and there is no evidence of the price stated therein, except as it may be inferred from the contemporaneous offer of Leathers to the lumber company for $200,000. It does not conclusively follow that because Leathers named a less price to the lumber company, or it offered a less price, the option to Leathers was for less than the price named by Paine to Gamble. Leathers might have hoped to get it for less than the amount named.. Without going fully into the testimony, which would be profitless, we think that the question was properly submitted to the jury. No fault was found with the charge as given if the question of bad faith was for the jury to determine.

Error is assigned upon the admission of the letter of June 24th from Gamble to Paine. It is urged that the telegram of June 23d from Paine to Gamble was the latter’s sole chart to guide him in his negotiations; that the letter made no change in the terms of the telegram unless approved by Paine; that it never was approved; and that Paine’s silence did not authorize Gamble to proceed under his letter. All this may be conceded, and yet the letter be admissible as throwing light upon the parol contract. All the conversations, letters, and telegrams were admissible to aid the jury in determining what the contract was.

Pour errors are assigned upon the ruling of the court excluding certain questions put to Gamble upon cross-examination. The cross-examination was long and searching. We think the rulings of the court in rejecting the testimony were proper. They are not of interest or importance to the profession, and therefore we do not discuss them.

Judgment affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    STAHL v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.

    1. Railroads — Crossings—Duty of Traveler.
    Listening for signals of approaching trains is not the whole duty of one who approaches a railroad crossing, hut he should be alert, and pay attention to the track.
    2. Same — Warning Signals.
    Recovery for an omission to give proper signals cannot be had in any case where the traveler approaching the crossing had, by any means, timely notice of the approach of the train.
    S. Same — Runaway Team — Proximate Cause op Injury.
    The running of a railroad train at a rate of speed slightly in excess of that allowed by a city ordinance is not the proximate cause of an injury to one whose horses took fright at the train, and became unmanageable, when 55 feet from the track.
    Error to Monroe; Kinne, J.
    Submitted April 21, 1898.
    Decided June 7, 1898.
    Case by Frank Stabl against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      C. E. Weaver (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Charles A. Golden and Edward R. Gilday (Ira G. Humphrey and Willis Baldwin, of counsel, on application for rehearing), for appellee.

       Rehearing denied December 28, 1898.

   Montgomery, J.

Plaintiff recovered a verdict in an action for damages sustained in a collision. The collision occurred at the crossing of the defendant’s road at Third street, in the city of Monroe. Plaintiff was engaged in hauling gravel; had drawn one load, and unloaded it, and was going back after another. He had a team that weighed about 2,700 pounds, and a new, heavy wagon. The train with which the collision occurred was a passenger train, and was substantially on time. The plaintiff testified that, when he looked at his watch, he thought the train must have gone west. Hubble street is one block from the railroad crossing, and plaintiff testified that, before reaching Hubble street, he brought his team down to a walk; that he looked out for a train, but did not see any. There were some obstructions in the way of a clear view, but at a point 81 feet from the crossing he could have seen a distance of 275 feet, and at a point 46 feet from the crossing he had an unobstructed view for 672 feet. The plaintiff testified that, when he was 55 feet from the track, the team became frightened, and that at this point he saw the engine and train coming; that, as soon as he saw it, he' pulled back on the horses, and hallooed, “Whoa;” that he braced his feet against the end boards, but did not get a new hold of his reins; that both horses jumped on the track at the same time, and were running away before they had got over the track. He testified, further, that, in approaching the track, the team just went as they were a mind to, — took their own gait; that the way that he had the lines did not affect their speed one way or the other; just held a common line on them; that, if he wanted to stop them, he would have had a stronger hold than he did have; that he did not have a chance to do this; that he was leaning back, and pulling. He further testified on cross-examination that there would have been nothing to prevent his turning around when he got up as far as the sign, “Railroad Crossing.” There was some testimony tending to show that the train was coming at a rate of speed somewhat in excess of that provided by an ordinance of the city, and also some testimony to show that the signals were not given.

Assuming the defendant to have been negligent in the particulars named, this negligence did not relieve the plaintiff from the exercise of due care in approaching the crossing. He was still bound to use his senses to avoid a collision with the train. The plaintiff’s own testimony shows that, at a point 55 feet from the crossing, he discovered the train approaching, and that he had a gentle team. It is not shown, nor is it to be assumed, that the plaintiff would have stopped short of this point if he had known of the approaching train earlier. On the contrary, it is common experience that a driver of a safe team approaches much closer to an approaching train in safety. Where, then, is the causal connection between the speed of the train and the injury ? It cannot be said that the unusual speed of the train caused the fright of the horses, or that, if running within the prescribed rate of speed, the fright would not have occurred. It was the fact of the train at this point which occasioned the fright, and not the rate of speed at which the train had been running to reach the point. The plaintiff discovered the train in ample time to protect himself, whatever may have been its speed. An unlooked-for accident, viz., the fright of the horses, resulted in injury. A liability does not attach to every act of negligence; a liability attaches only when the injury results from the negligence. Houston, etc., R. Co. v. Wilson, 60 Tex. 142. And recovery for an omission to give proper signals cannot be had in any case where the traveler approaching the crossing has, by any means, timely notice of the approach of the train. State v. Railroad Co., 69 Md. 339; Chicago, etc., R. Co. v. Houston, 95 U. S. 697; Pakalinsky v. Railroad Co., 82 N. Y. 424; 3 Elliott, R. R. § 1158.

The collision cannot justly be said to have resulted from the speed of the train. If plaintiff had attempted to cross after discovering the train, there would have been some plausibility in claiming that the extraordinary speed caused the injury, although the rule is pretty well settled that one cannot balance the probabilities in such a sitúation, and, taking the chance of collision, drive in front of an approaching train. Haas v. Railroad Co., 47 Mich. 401. But in this case the plaintiff’s contention is that he made no attempt to cross. When he was 55 feet from the track, his horses took fright at the train, and “kept jumping ahead faster and faster, until they reached the track.” Would the horses have been less likely to take fright if the bell had been sounding? Would they have been less likely to take fright if the train had been going at less than six miles an hour, instead of running at a rate slightly in excess of that? Very clearly not. The alleged negligence of the company in failing to ring the bell and in excessive speed, if shown, did not cause the injury, but the injury was caused by the fright of the horses at an approaching train of cars, which it was plaintiff’s duty to consider as at least a possibility; for the authorities are substantially agreed that one approaching a crossing may not neglect attention to the track, relying upon hearing signals of approaching trains, but must be alert.

Whether the plaintiff had proper control of the team is at least a doubtful question on this record, but, assuming he was not in fault in this respect, the negligence imputed to defendant was not the cause of the collision. It follows that the request of defendant to instruct a verdict should-have been given.

Judgment reversed, and no new trial ordered.

The other Justices concurred.