text:
    BOARD OF FIRE & WATER COMMISSIONERS OF MARQUETTE v. WILKINSON.
    1. Public Moneys — Deposit—Commingling with Private Funds.
    1 How. Stat. §§ 424, 427, prohibiting public* ^officials from commingling public moneys with their own, or with the money of any other person, firm, or corporation, and from receiving, directly or indirectly, any pecuniary or valuable consideration as an inducement for the deposit of the publio moneys with any particular bank, firm, or corporation, are • violated where the treasurer of a city fire and water commission deposits moneys received for water rates in a private bank conducted by him, and commingles them with the funds of the bank.
    :2. Trusts — Bank Deposit — Public Moneys.
    City funds deposited by the treasurer of a municipal board in his own bank, and commingled with the funds of the bank, in violation of 1 How. Stat. §§ 434, 437, relating to the safekeeping of public moneys, constitute a trugt fund, notwithstanding the treasurer had the legal title to the moneys, and notwithstanding such deposit was authorized by the board.
    3. Same — Insolvency — Pursuit of Trust Fund —Burden of
    Proof.
    The receiver of an insolvent bank cannot be required to repay the beneficiary in a trust deposit in preference to general creditors, unless the claimant can show, by a clear preponderance of the evidence, that there remains in the hands of the receiver either the specific deposit, or specific funds or property into which the deposit can be traced.
    4. Same — General Disbursement — Presumption.
    General disbursements by a trustee from a specific fund into which a trust fund is traced will be presumed, in the absence of evidence to the contrary, to have been made from other than the trust moneys.
    5. Same — Bank Accounts — Drafts.
    During the three months immediately preceding the failure of a bank, it received in cash §6,000 of public funds, which, though a trust deposit, it placed in the general cash fund. Within the time specified, the bank paid certain drafts upon the public moneys, in an aggregate sum, however, less -than the amount that stood to the credit of the fund when the §6,000 was deposited. The earlier balance could not be traced into the general cash fund, but an amount in excess of §6,000 remained in that fund when tlie bank passed into the hands of a receiver. Held, that the drafts should be charged against the earlier credit, and a trust declared in §6,000 of the sum remaining in the general cash fund.
    Appeal from Marquette; Stone, J.
    Submitted November 18, 1898.
    Decided April 18, 1899.
    Petition by the board of fire and water commissioners of the city of Marquette against Edwin C. Wilkinson and Albert E. Miller, assignees for creditors of James M. Wilkinson, to reach funds alleged to be held in trust. Prom a decree denying the petition, petitioner appeals.
    Reversed.

      George P. Brown ( Charles B. Brown, of counsel), for petitioner.

      A. E. Miller (A.' B. Eldredge, of counsel), for defendants.
   Hooker, J.

The board of fire and water commissioners of the city of Marquette is a corporation organized by Act No. 243, Laws 1869. This act provides for the selection of a secretary and a treasurer from among the members of the board. The board was organized soon after its creation, and from that time its funds were deposited in the First National Bank of Marquette'; the water consumers being in the habit of paying their rates at the bank. The money was credited to the board, and checked out by the secretary. James M. Wilkinson was a member of the board from a time previous to December 10, 1883, to his death, which occurred January 24, 1898. In 1883 he was engaged in the business of banking, with a Mr. Campbell, under the name of Campbell & Wilkinson. The following is a record of the proceedings of the board for December 10, 1883:

“The secretary informed the board that all the accommodation in the banking business received by the board was had at the bank of Campbell & Wilkinson, and that the banking business was done at the First National Bank, and asked the board if all the business could not be done at Campbell & Wilkinson’s bank; and on motion it was resolved that all business was to be done at Campbell & Wilkinson’s bank, commencing January 1, 1884.”

On January 1, 1884, the following proceedings were had:

“The president stated'that the banking was to be done at Campbell & Wilkinson’s bank; from this, it would be well for this board to elect a treasurer, out of its number, to receive all moneys, and give receipts for same, and take the bank’s receipts for deposits. J. M. Wilkinson was elected as treasurer of this board, and the following resolution was unanimously adopted: ‘Besolved, that the moneys of this board shall be paid over to the treasurer of this board, and he is hereby authorized to give his receipt, in the name of this board, for all money which he may receive for this board.’”

The money of the board was thereupon transferred to the bank of Campbell & Wilkinson, and the business of the board was carried on there until the death of Campbell, in 1889, in the same way that it had been done with the First National Bank. The water consumers paid their money to the bank, the bank credited it on a book kept for the purpose, and, by deposit slips, placed the amount to the credit of the board. The money was drawn, as wanted, upon ordinary bank checks signed by the secretary, who kept the accounts. In December, 1889, Mr. Campbell died, and Mr. Wilkinson continued in the banking business until the time of his death; and no change whatever was made in the business of the bank, or in the board’s dealings with the bank, until April 26, 1893, when, a change having been made in the city charter creating a controller, and requiring “all accounts and demands against the city and all boards thereof ” to be audited by the controller, and the orders drawn in payment -thereof to be countersigned and registered by the controller (Act No. 323, Local Acts 1893, chap. 9, § 3), this led to the use of orders being drawn upon the treasurer, which orders were paid by the bank, and returned to the secretary, exactly as the checks had been before. On January 22, 1898, Wilkinson made a general assignment to the defendants for the benefit of his creditors, but made no schedule of his property. He died, as stated, two days later. The assignees took possession of his property. The petition is filed for the purpose of recovering a balance of $11,376.42, the amount which is claimed to have been in Wilkinson’s hands, of the funds of the board. It proceeds upon the theory that this was a trust fund, and that the petitioner’s claim should have precedence over those of other creditors of Wilkinson.

The first contention of the appellees is that the board authorized the loan of the funds (i. e., that' it directed their deposit in banks, with the expectation that they would become the money of the banks holding them, and be used as the money of ordinary depositors is used by banks), and that, therefore, the relation of debtor and creditor arose between the bank and the board, as in other cases, and that the claim of the board is not a preferred claim, because the money was not held in trust. •

In 1875 the legislature passed “An act to provide for the safe-keeping of public moneys.” Act No. 131, Pub. Acts 1875 (1 How. Stat. §§ 423-430). Among its provisions are the following:

“Section 1. The People of the State of Michigan enact, that all moneys which shall come into the hands of any officer of the State, or of any officer of any county, or of any township, school district, highway district, city, or village, or of any other municipal or public corporation within this State, pursuant to any provision of law authorizing such officer to receive the same, shall be denominated public moneys, within the meaning of this act.
“ Sec. 2. It shall be the duty of every officer charged with the receiving, keeping, or disbursing of public moneys to keep the same separate and apart from his own money, and he shall not commingle the same with his own money, nor with the money of any other person, firm, or corporation.
“Sec. 3. No such officer shall, under any pretext, use, nor allow to be used, any such moneys for any purpose other than in accordance with the provisions of law; nor shall he use the same for his own private use, "nor loan the same to any person, firm, or corporation without legal authority so to do.
‘ ‘ Sec. 4. In all cases where public moneys are authorized to be deposited in any bank, or to be loaned to any individual, firm, or corporation, for interest, the interest accruing upon such public moneys shall belong to and constitute a general fund of the State, county, or other public or municipal corporation, as the case may be.
“ Sec. 5. In no case shall any such officer, directly or indirectly, receive any pecuniary or valuable consideration as an inducement for the deposit of any public moneys with any particular bank, firm, or corporation.
“Sec. 6. The provisions of this act shall apply to all deputies of such officer or officers, and to' all clerks, agents, and servants of such officer or officers.”

Section 429 makes violations of this act punishable by fine and imprisonment.

Wilkinson was elected treasurer in 1884, and a resolution was adopted that the moneys of the board should be paid over to the treasurer of the board. The funds were afterwards deposited with Campbell & Wilkinson. This was done by direction of the board, and after Campbell’s death the board seems to have been Gontent to have Wilkinson treat the same as a deposit in his bank. If the law of 1875 has application to this board, — and we think that it has,— the legal custodian of the funds of this board had no right to deposit these funds in a banking institution in which he was a stockholder or partner; for section 427 prohibited his receiving, directly or indirectly, any pecuniary or valuable consideration, and section 424 prohibited his commingling the money with that of himself or any other person, firm, or corporation. If we should construe this section liberally, and say that it was not designed tOi prohibit a treasurer from depositing his funds in a bank in the ordinary way, we should be required to except deposits in banks in which he has a pecuniary interest. The deposit with Campbell & Wilkinson was in violation of this law, and no order of .the board could make it lawful. Still more clearly improper was the practice adopted by Wilkinson of using this fund with his own money in his own banking business. This was a trust fund, as much as though Wilkinson had been a farmer or broker or contractor or merchant, and had used the fund in his business. It does not follow that the fund is not a trust fund because he had the legal title to the money, though that fact may protect one who receives the money innocently.

In the case of People v. Bringard, 39 Mich. 22 (33 Am. Rep. 344), it was said that:

“We have no hesitation in holding that whenever any township treasurer misappropriates his trust funds to his private purposes, and fraudulently refuses to account for them, he comes as plainly within the law as if he made a similar misuse of specific coins or bills, which he had no right to exchange for their equivalents.”

The case recognized the rule that such officers become responsible as debtors, and not bailees, and that they become owners of the money they receive. See Perley v. County of Muskegon, 32 Mich. 139 (20 Am. Rep. 637), and cases cited. But it does not follow that the fund is not a trust fund, which a court of equity may require the application of- to the discharge of the trust, as was held in the recent case of City of Marquette v. Wilkinson, ante, 413. The case of People v. Wadsworth, 63 Mich. 500, does not, in our opinion, militate against this, as the question there was whether one was necessarily guilty of embezzlement of public funds of which he was custodian, lost through insolvency, said funds having been on deposit in his bank by arrangement with the city treasurer. It was only held that a fraudulent intent was essential to that offense.

In the case before us, Wilkinson was a member of the board, and its treasurer. He received its funds, through his clerks, and he had no right to mingle and use them with his private funds. It should have been kept as a special fund, and, though it was not, it cannot be said that a court of equity may not apply it to its proper use, if it can find the fund. In City of Lansing v. Wood, 57 Mich. 211, Mr. Justice Campbell uses this language in referring to cases holding that the money which officers •deposit in banks is not a public bailment, but becomes a private debt from the banker to the officer depositing it: ‘ ‘ But it does not follow that such an officer becomes, as to the public, the absolute owner of the funds in his hands, so that no one can question the use made of them.” And he adds that in People v. McKinney, 10 Mich. 54, and People v. Bringard, supra, it was held that “a public trust fund does not lose its character by changing the specific moneys which make it up, and in the latter case the duty of the officer to keep such money entirely separate from his own was fully recognized.” The law by which the board was created requires the election of a treasurer, and, though it does not prescribe his duty, the 'custody of funds is so uniformly considered the principal duty of such officers in corporations that it may be fairly implied. Moreover, the resolution quoted placed the money in the hands of the treasurer, if the board had control of its custody. The treasurer took this fund, and placed it in the custody of his copartner and himself. The collections and disbursements were made by their clerks, by whom the treasurer’s account, so far as there appears to have been any, was kept. But, whatever may be said of the relation that the firm of Campbell '& Wilkinson sustained to these funds, when the former died the moneys on hand belonging -to the board, and those subsequently collected, passed into the hands of Wilkinson. If the act of 1875 applied, he was prohibited from mingling them with his own moneys; and, if it did not, he still held them by virtue of his office, and had no right to convert them to his own use. The fund was a trust fund in either case.

Having reached the conclusion that the funds of the board in the hands of its treasurer constituted a trust fund, it remains to ascertain whether it can be collected from the receivers. This involves questions of law as well as fact. The theory upon which property is taken from a receiver, and paid to a beneficiary, is that the court is able to find in the hands of the receiver property, or its proceeds, which was held by the insolvent, not in his own absolute right, but charged ’with a trust. In such a case a court of equity will hold that it is not subject to the claims of other creditors. But when the fund received in trust has been dissipated, so that it cannot be traced into some other specific property or fund, the only remedy of the beneficiary is to share equally with other creditors. In its origin, this right to follow a trust fund was limited. Early cases went only to the extent of holding that the beneficiary of property held by a trustee could follow it, and retake it from the possession of such trustee, or others in privity with him, and not bona fide purchasers for value, whether such property remained in its original form or in some other or substituted form, so long as it could be ascertained to be the same property, or the product or proceeds thereof, -but that such right ceased when the means of ascertainment failed, as when the subject of the trust was money, or had been converted into money, and then mixed and confounded in a general mass of money of the same description, so as to be no longer divisible or distinguishable. Taylor v. Plumer, 3 Maule & S. 575. The case of Cavin v. Gleason, 105 N. Y. 262, recognizes this rule and its limitations. It is there said:

“It is clear, we think, that, upon an accounting in bankruptcy or insolvency, a trust creditor is not entitled to a preference over general creditors of the insolvent merely on the ground of the nature of his claim; that is, that he is a trust creditor, as distinguished from a general creditor. We know of no authority for such a contention. The equitable doctrine that, as between creditors, equality is equity, admits, so far as we know, of no exception founded on the greater supposed sacredness of one debt, or that it arose out of a violation of duty, or that its loss involves greater apparent hardship in one case than another, unless it appears, in addition, that there is some specific, recognized equity, founded on some agreement, or the relation of the debt to the assigned property, which entitles the claimant, according to equitable principles, to preferential payment. If it appears that trust property specifically belonging to the trust is included in the assets, 'the court, doubtless, may order it to be restored to the trust. So, also, if it appears that trust property has been wrongfully converted by the trustee, and constitutes, although in a changed form, a part of the assets, it -would seem to be- equitable, and in accordance with equitable principles,- that the things into which the trust property has been- changed should, if required, be set apart for the trust, or, if separation is impossible, that priority of lien should -be adjudged in favor of the trust estate for the value of the trust property, or funds, or proceeds of the trust property, entering into, and constituting a part of, the assets. This rule simply asserts the right of the true owner to his own property. But it is the general rule, as well in a court of equity as in a court of law, that in order to follow trust funds, and subject them to the operation of the trust, they must be identified. A court of equity, in pursuing the inquiry and in administering relief, is less hampered by technical difficulties than a court of law; and it may be sufficient, to entitle a party to equitable preference in the distribution of a fund in insolvency, that it appears that the fund or property of the insolvent remaining for distribution includes the proceeds of the trust estate, although it may be impossible to point out the precise thing in which the trust fund has been invested, or the precise time when the conversion tooK; place. The authorities require at least this degree of distinctness in the proof before preference can be awarded. ”

In Atkinson v. Printing Co., 114 N. Y. 175, this language was approved.

In Holmes v. Gilman, 138 N. Y. 376 (30 L. R. A. 566, 34 Am. St. Rep. 463), the following language appears:

“The claim of the plaintiff to recover the moneys arising from the payments of these policies is based upon the principle which allows a cestui que trust to follow trust funds, and to appropriate to himself the property into which such funds have been changed, together with the increased value of such property, provided the trust fund can be clearly ascertained, traced, and identified, and provided the rights of bona fide purchasers for value, without notice, do not intervene. The right has its basis in the right of property, and the court proceeds on the principle that the title has not been affected by the change made of the trust funds, and the cestui que trust has his option to claim the property and its increased value as representing his original fund. The right to follow and anpropriate ceases only when the means of ascertainment fail. It is a question of title.”

In discussing this subject in the case of Frelinghuysen v. Nugent, 36 Fed. 339, Mr. Justice Bradley said:

“Another difficulty in the complainant’s case is the want of identity of the property claimed with the pro.ceeds of the money abstracted from the bank. Formerly the equitable right of following misapplied money or other property into the hands of the parties receiving it depended upon the ability of identifying it, the equity attaching only to the very property misapplied. This right was first extended to the proceeds of the property, namely, to that which was procured in place of it", by exchange, purchase, or sale. But if it became confused with other property of the same kind, so as not to be distinguishable, without any fault on the part of the possessor, the equity was lost. Finally, however, it has been held, as the better doctrine, that confusion does not destroy the equity entirely, but converts it into a charge upon the entire mass, giving to the party injured by the unlawful diversion a priority of right over the other creditors of the possessor. This is as far as the rule has been carried. The difficulty of sustaining the claim in the present case is that it does not appear that the goods claimed' — that is to say, the stock on hand, finished and unfinished — were, either in whole or in part, the proceeds of any money unlawfully abstracted from the bank. On the contrary, the goods and stock on hand were purchased of the other creditors of Nugent & Co. almost entirely, if not wholly, on credit,, and really stand in the place of, and represent the debts of, the firm due and owing to said creditors. This is true with regard to all the raw stock on hand, and with regard to all the stock and materials from which the manufactured or partially manufactured goods were produced. If any moneys derived from the bank entered into the latter, they were those moneys which were regularly drawn by checks of the firm weeldy for the payment of their hands. It seems impossible, therefore, to sustain any such general charge or trust upon the goods and property of Nugent & Co. as that which has been set up and claimed by the complainant.”

The supreme court of Massachusetts, in Little v. Chadwich, 151 Mass. 109 (7 L. R. A. 570), speaking through Mr. Justice Allen, said:

“When trust money becomes so mixed up with the trustee’s individual funds that it is impossible to trace and identify it as entering into some specific property, the trust ceases. The court will go as far as it can in thus tracing and following trust money; but when, as a matter of fact, it cannot be traced, the equitable right of the cestui que trust to follow it fails. Under such circumstances, if the trustee has become bankrupt, the court cannot say that the trust money is to be found somewhere in the general estate of the trustee that still remains. He may have lost it with property of his own, and in such case the cestui que trust can only come in and share with the general creditors.”

The case of Nonotuck Silk Co. v. Flanders, 87 Wis. 237, is an interesting case, — the more so as. it overrules some prior cases which took advanced ground upon the subject of trust funds. It is there said, quoting from Jessel, M. R., in Knatchbull v. Hallett, 13 Ch. Div. 696:

“The guiding principle is that a trustee cannot assert a title of his own to trust property. If he destroys a trust fund by dissipating it altogether, there remains nothing to be the subject of the trust. But so long as the trust property can be traced and followed into other property into which it has been converted, that remains subject to the trust.”

The court continued:

‘ ‘ That case is as favorable to the claim of the plaintiff as any in the English courts; and yet it nowhere sanctions the proposition that the owner of the property or money intrusted is entitled to a preference over other creditors of an insolvent estate out of property or assets to which no part of the trust fund, or the proceeds thereof, is traceable. All such cases turn upon the question of fact whether the trust property or fund, or the proceeds thereof, are traceable into any specific property or fund.”

The opinion is replete with authorities in support of the-rule laid down by it.

In Slater v. Oriental Mills, 18 R. I. 352, the supreme court of Rhode Island refuses to hold that:

“Where one’s property has been wrongfully applied and dissipated by another, a charge remains upon the estate of the latter for the amount thus wrongfully taken, upon the ground that his estate is thereby so much larger, and that the trust property is really and clearly there, in a substituted form, although it cannot be directly traced.”

Proceeding with the discussion, that court said:

‘ ‘ This view is pressed with much skill and 'some authority, but we are unable to adopt it. While one who has been wronged may follow and take his own property or its visible product, it is quite a different thing to say that he may take the property of somebody else. The general property of an insolvent debtor belongs to his creditors, as much as particular trust property belongs to a cestui que trust. Creditors have no right to share in that which is shown not to belong to the debtor, and, conversely, a claimant has no right to take from creditors that which he cannot show to be equitably his own. But right here comes the argument that it is equitably his own, because the debtor has taken the claimant’s money and mingled it with his estate, whereby it is swelled just so much. But, as applicable to all cases, the argument is not sound. Where the property, or its substantial equivalent, remains, we concede its force; but, where it is dissipated and gone, the appropriation of some other property in its stead simply takes from creditors that which clearly belongs to them. In the former case, as in Pennell v. Deffell, 4 De Gex, M. & G. 372, and in Re Hallett’s Estate (Knatchbull v. Hallett), 13 Ch. Div. 696, the illustration may be used of a debtor mingling trust funds with his own, in a chest or bag. Though the particular money cannot 'be identified, the amount is swelled just so much, and the amount added belongs to the cestui que trust. But in the latter case there is no swelling of the estate, for the money is spent and gone, or, as respondent’s counsel pertinently suggests, ‘Knight Bruce’s chest, Jessel’s bag, is empty.’ Shall we therefore order a like amount to be taken out of some other chest or bag, or out of the debtor’s general estate ? Suppose the general estate consists only of mills and machinery acquired long before the complainants’ money was appropriated; upon what principle could that property be taken to reimburse them ? But the complainants say: ‘Our money has been misappropriated by the debtor without our consent and without our fault. Why should we not be reimbursed out of his estate ? ’ ’ Undoubtedly, it is right that every one should have his own; but, when a claimant’s property cannot be found, this same principle prevents the taking of property which equitably belongs to the creditors of the trustee to make it up. The creditors have done no wrongful act, and should not be called upon, in any way, to atone for the misconduct of their debtor. It is an ordinary case of misfortune on the part of claimants whose confidence in a trustee or agent has been abused.
“In examining the question upon authority, we think it is equally clear that there can be no equitable relief except in cases where the fund claimed is in some way apparent in the debtor’s estate. Of the cases cited by the complainants, only four go to the extent of holding that a cestui que trust is entitled to a lien for reimbursement on the general estate of the trustee where the trust fund does not in some form so appear. These are Davenport Plow Co. v. Lamp, 80 Iowa, 722 (20 Am. St. Rep. 442); McLeod v. Evans, 66 Wis. 401 (57 Am. Rep. 287); Francis v. Evans, 69 Wis. 115; Bowers v. Evans, 71 Wis. 133. In the first of these cases the court lost sight of the distinction, which we desire to make clear, between funds remaining in the estate, which go to swell the assets, and funds which, having been dissipated or used in the payment of debts, do not remain in the estate, and so do not swell the estate. Upon the former fact, as we have stated above, we concede the right to relief. But the court, in the Iowa case, seems to ignore this very important distinction, and in so doing overthrows the foun-. dation on which its decision is based, for it says, ‘The creditors, if permitted to enforce their claims as against the trust, would secure the payment of their claims out of trust moneys.’ Now, how can. this be so if the trust moneys, or their substantial equivalent, are not there? The court assumes that the payment of debts is the same thing as an increase of assets, or, perhaps; that it works the same result to a creditor, by increasing his dividends. But this is not so. How the satisfaction of a debt by incurring another of equal amount either decreases one’s liabilities or increases his assets can only be comprehended by the philosophic mind of a Micawber. If a debtor is solvent, it is all right either way, because he will have enough to pay everything he owes; but, if he is insolvent, the injustice of the doctrine of the Iowa court is made almost painfully plain by the following illustration from the dissenting opinion of Taylor and Cassoday, JJ., in Francis v. Evans, supra: ‘Supposing that an insolvent debtor, D., has only $1,000 of property, but is indebted to the amount of $2,000, one-half of which is due to A. and the other half to B. In this condition of things, D.’s property can only pay 50 per cent, of his debts. By such distribution, A. and B. would each be equitably entitled to $500. Now, suppose D., while in that condition, collects $1,000 for F., but instead of remitting to him the money, as he should, he uses it in paying his debt in full to A. By so doing, D. has not increased his assets a penny, nor diminished hiis aggregate indebtedness a penny. The only difference is that he now owes $1,000 each to B. and F., whereas he previously owed $1,000 each to A. and B. Now, if F. is to have preference over B., then his claim will absorb the entire amount of D.’s property, leaving nothing whatever for B. In other words, the '$500 to which B. was equitably entitled from his insolvent debtor, upon a fair distribution of the estate, has, without any fault of his, been paid to another, merely in consequence of the wrongful act of the debtor.’ It is impossible to state the case more clearly. The illustration demonstrates that the mere fact that a trustee has used the money does not show that it has gone into his estate. If used to pay debts, he has simply turned it over to a creditor, thereby giving him a preference, while his own estate and indebtedness remain exactly as before, because he owes the same amount to his cestui que trust, from whom he has taken it. Suppose he had stolen the money, and turned it over to somebody from whom it could not be reclaimed; can any one say the owner should have an equitable lien upon the thief’s insolvent estate, in preference to his creditors? They and the owner are equally innocent.”

See, also, National Bank v. Insurance Co., 104 U. S. 54.

We think it unnecessary to quote at length from our own authorities, which point in the same direction. Sherwood v. Milford State Bank, 94 Mich. 78, recognizes "the principle that the trust property must be traceable. Sherwood v. Central Michigan Savings Bank, 103 Mich. 109, goes no further than to hold that, where money is traced to a fund, it will be presumed that the trust property is the last to be paid out. In Wallace v. Stone, 107 Mich. 196, it was said that, unless the fund can be identified as being or containing the actual fund, the trust can- • not be enforced against general creditors. Many authorities are cited. This language was in a dissenting opinion, but the dissent rested upon a difference of opinion relating to the facts, not law, and the rule the^e stated was approved by the full bench in the later case of Sunderlin v. Mecosta County Savings Bank, 116 Mich. 281.

The overruled Wisconsin cases are made the subject of the following comment in the case of Little v. Chadwick, supra:

“In Wisconsin a majority of the court has declared that it is not necessary to trace the trust fund into any specific property in order to enforce the trust, and that, if it can be traced into the estate of the defaulting agent or trustee, this is sufficient. McLeod v. Evans, 66 Wis. 401, 409 (57 Am. Rep. 287). But this seems to us to be stated too broadly.”

This review of cases might be extended indefinitely, as will be shown by the numerous citations contained in the cases discussed. They seem to effectually dispose of the claim that the entire estate of an insolvent trustee can be subjected to the claim of a cestui que trust, to the exclusion of general creditors, and firmly establish the proposition that one who seeks such relief must be able to trace the trust property to some specific fund or piece of property, and that, when this is done, there is a presumption that what remains of such fund or article is the trust fund, or its proceeds. The burden of proof is upon the complainant, and, in the opinion of Mr. Justice Bradley, “he should make it out, not only by preponderance of proof, but by a very clear preponderance.” Frelinghuysen v. Nugent, 36 Fed. 237.

In this case it is impossible to say that the estate contains the proceeds of any checks received in payment for water rates, because it is impossible to say what disposition was made of such checks or. their proceeds. The record shows $11,376.42 to be the balance due the board when the receivers took charge. This all accrued after April 14, 1891, because there was an overdraft at that time. It is difficult to tell how much of this was cash paid in. There is, however, some testimony on the subject. • Edwin C. Wilkinson, the son of James M. Wilkinson, testifies that from November 1, 1897, to the day on which the bank closed its doors, one-third of the amount paid in for the water board, or a little more, was paid by checks, and that, according to his best judgment, the amount was $3,176.14. That was a little more than one-third, for the amount deposited during that period was $9,208.18. It would follow that $6,032.04 was deposited in cash. During the same period there was drawn out $4,265.46, but this was $2,168.24 less than the amount standing to the credit of the board on November 1st. Unless we are to say that the amount drawn out should be applied against the cash paid in, viz., $6,032.04, this sum may be presumed to have been in the treasury when the bank was closed. There is no reason why we should say it, as it does not appear that these payments should not be charged against the older credit. We think it may be justly said that $6,032.04 of the cash received for the board found its way to the general cash fund of the bank within the last three months that business was done at the bank. We find an amount exceeding that sum in the fund when the assignees took it. We will presume, in the absence of proof to the contrary, that it was the trust fund that remained.

The decree will be reversed, and a decree entered here in favor of the complainant for the sum of $6,032.04, with costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    REASON v. JONES.
    1. Probate Courts — Appointment of Guardian — Service of
    Citation — Presumption of Jurisdiction.
    In the absence of evidence to the contrary, it will be presumed that the proof of service of the citation, in a proceeding for the appointment of a guardian, was sufficient to confer jurisdiction upon the probate court to make the appointment.
    2. Guardian and Ward — Suit to Cancel Deed.
    Under 2 How. Stat. § 6323, providing that the general guardian of an incompetent shall represent his ward in all legal proceedings, unless another is appointed for that purpose, such guardian may sue to recover property which his ward has
    - conveyed.
    3. Deeds — Delivery.
    A deed duly signed and acknowledged, but handed to a third person to be placed with the grantor’s papers, no delivery being intended, passes no title.
    4 Same — Cancellation—Incompetency of Grantor.
    A conveyance made by an incompetent person, detrimental to his interests, will be set aside, although active fraud or misrepresentation is not shown.
    Appeal from Clinton; Daboll, J.
    Submitted. November 22, 1898.
    Decided April 18, 1899.
    Bill by Samuel Reason, by John M. Culp, his guardian, and Laura A. Reason, against Lafayette Jones and Maria H. Jones, to set aside a deed. From a decree for complainants, defendants appeal.
    Affirmed.
    Complainants, Samuel and Laura Reason, are husband and wife, and owned a farm. Defendant Lafayette Jones owned certain lots in the village of St. Johns. About May 22, 1897, they exchanged properties. Soon afterwards Mr. Reason was declared incompetent by the probate court, and Mr. Culp appointed his guardian. Soon after this a bill was filed to set aside the transaction on the ground of the incompetency of Mr. Reason, and that the transaction was prejudicial to his interests financially. Issue was duly joined, proofs taken in open court, and decree entered for the complainants.

      Fedewa & Walbridge, for complainants.

      Edwin H. Lyon, for defendants.
   Grant, C. J.

(after stating the facts). 1. It is contended that the probate court did not acquire jurisdiction to appoint a guardian for Mr. Reason, because the citation was not served upon two of his children. Personal service was had upon Mr. Reason, and upon the citation was indorsed an admission of service on June 16, 1897, signed by his wife and four children. Three of them appeared. It is contended that there was no verification of the admission of service. The judge of probate was sworn upon this hearing, and testified that this return of the officer, with the admission of service, was the only proof of service that was filed in the case. Whether any other proofs of service were introduced upon that hearing does not appear. The petition gave the court jurisdiction to proceed with the case. Of necessity, the court had to pass upon the regularity of the service. Probate courts are courts of general jurisdiction, and the regularity of their orders and decrees will be presumed, in the absence of evidence to the contrary. Church v. Holcomb, 45 Mich. 39; Morford v. Dieffenbacker, 54 Mich. 593. See, also, Norman v. Olney, 64 Mich. 553; Allured v. Voller, 112 Mich. 357; Averill v. Jackson City Bank, 114 Mich. 20; Shroyer v. Richmond, 16 Ohio St. 455, 464.

2. It is next urged that the general guardian of an incompetent person cannot maintain this suit, but that it can only be prosecuted by a guardian ad litem. 2 How. Stat. •§ 6316, confers upon such guardian the management of all his estate. Section 6323 provides that he.may also bring suit for all debts, etc., and that “he shall appear for and represent his ward in all legal suits and proceedings, unless where another person is appointed for that. purpose as guardian or next friend.” We think the power thus conferred is broad enough to entitle a guardian to maintain a suit to recover property which his ward was incompetent to convey away. See Norton v. Ohrns, 67 Mich. 612; Carpenter v. Harris, 51 Mich. 223; 9 Enc. Pl. & Prac. 929.

3. It is also claimed that Mr. Reason had executed and delivered to his wife a deed of the premises. ■ He had signed and acknowledged such a deed, but it had never been recorded. The evidence was ample to show that he handed the deed to his daughter, after he had signed it, to be placed among his own papers, and that there was no actual delivery or intent to place the deed beyond his own control.

4. The court found that Mr. Reason was incompetent to make the agreement to execute the deed. The question was hotly disputed, and many witnesses were sworn on both sides. The judge appears to have decided the point mainly upon the testimony of the physician, apparently holding that the other testimony was inconclusive. We are not disposed to reverse this finding of the judge, who saw the witnesses. The testimony, also, as to the value of the two properties, is in direct conflict. The decree states that one reason for annulling the contract is that it was not in accordance with the best interests of Samuel Reason and his property rights. This necessarily involves the finding by the court that the property received by complainants was not equal in value to the property conveyed. There is no particular reason why this court should give credence to one set of witnesses any more than to another. Their appearance upon the stand, and the knowledge which the judge who saw them would thus obtain, would necessarily be of consider able, weight in reaching a conclu-. sion. We think it due to the defendants to say that the record fails to show any active fraud or misrepresentation by them. They did not know the complainants until just before the contract was made, which was brought about by a third party. Where, however, a grantor is incompetent to make a contract, and has suffered financially in consequence, courts will set the transaction aside. McWilliams v. Doran, 103 Mich. 588; Gates v. Cornett, 72 Mich. 420.

Decree is affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    POMASKI v. GRANT.
    1. Negligence — Paving Contractors — Barriers—Evidenoe.
    In an action against a paving contractor to recover damages for injuries sustained by one struck by a plank or barrier while he was riding on the running-board of a street car, testimony that the street was torn up between the track and curb is sufficient to take the case to the jury on the question whether the obstruction causing the injury was placed in position by the contractor, whose duty it was under the contract to erect barriers.
    2. Same — Street Cars — Riding on Running-Board.
    A passenger is not negligent in riding on the running-board of a street car, where the car is so crowded that he cannot get inside.
    3. Witnesses — Interest.
    A witness’ interest was sufficiently shown where it was made to appear that he attempted to obtain a settlement for plaintiff’s injuries, and the terms of the proposed settlement, offered for the same purpose, were properly excluded.
    Error to Wayne; Frazer, J.
    Submitted January 5, 1899.
    Decided April 18, 1899.

      Case by Stanislaus Pomaski against James Grant for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James D. May, for appellant.

      George X. M. Collier, for appellee.
   Montgomery, J.

This is an action for negligent injury. The defendant had a contract with the city of Detroit for the paving of Miami avenue. The contract provided that the defendant should erect and maintain a good and sufficient fence or railing around any and all excavations necessary for said work in such manner as to prevent accident. On the moi'ning of the 11th of September, 1.895, the plaintiff was riding on the side platform of a street car on Miami avenue, and while in this position was struck by a board projecting so near to the car as to come in contact with his leg, and cause the injuries complained of. The testimony on the part of the plaintiff tended to show that this occurred at a point between Wilcox street and Gratiot avenue, and that the board which struck the plaintiff -was apparently a barrier which had been erected to warn the public against danger of traveling the street, and that it had been placed so near to the track, as to make it dangerous to those riding on the street cars. The defendant offered testimony to show that he commenced work under his contract on the morning of the 10th of September, at the end of Miami avenue, by tearing up the old block pavement preparatory to repaving ; that this work was confined to that portion of Miami avenue between Witherell street and John R. street, which is a block west of Wilcox street, so that the operations of defendant were more than a block away from the place of the injury; that no barriers were erected at this point when the work was suspended on the night of the 10th of September. It is strenuously insisted that there was no testimony in the case which contradicted this evidence of the defense, and that there was nothing to connect the defendant with the cause of the plaintiff’s injury.

The circuit judge was of the opinion that, in view of the fact that the defendant was conceded to be the contractor for repaving the street, and that it was his duty to cause barriers to be erected wherever the street had been torn up by him, there was enough testimony to carry the case to the jury, and it was competent for the jury to determine whether the defendant.’s witnesses were mistaken in their testimony as to the state of the work at the time in question. We think this view is correct, if there be found any testimony tending to show that the defendant’s operations had extended to the place of the injury, for, if this appears, it follows that the defendant’s theory is dis-proven in its main feature. As before, stated, the defendant’s testimony was positive that no work had at this time been done by him east of John R. street. The defendant’s counsel also makes the claim that the evidence shows that the paving blocks had heen torn up on either side of the track for a distance from 16 to 18 inches by the street-railway company, and that the blocks thrown out, and the boards upon which they rested, were left alongside the track, and that the testimony of the plaintiff’s witnesses as to the condition of the street at this point is consistent with the theory that these blocks and boards were the only ones which could have caused the injury. The first witness for the plaintiff was Samuel Finkelstein, who testified on this subject:

“The street was torn up.
Q. What struck him ?
“A. A board that was blocking the street. The plank was standing that way, and there was a board right across it.”

And on cross-examination the witness testified:

“I could not say that the pavement was torn up on both sides of the track. I could only see on this side of the track where I was riding, or between the car and the side of the street. The pavement was torn up the whole way.”

Plaintiff testified:

“Two planks struck me. They were standing like a horse. They were standing right by the car. It hit me on the leg, and knocked me off.”

And on cross-examination:

“Q. What was it the thing looked like that struck you?
“A. There was a cross and a plank there like that (illustrating).
- “<3.. You didn’t see it before it struck you?
“A. No; if I had seen it before, I would have jumped off.
“ Q. When did you see it ?
“A. I saw it from far up. I saw a lot of them standing there.
“Q. When did you see the thing that struck you ?
“JL I didn’t see that one.
“Q. You didn’t see the one that struck you ?.
“A. I saw that, too.
“Q. When did you see the other end, down near the curb ?
“A. When I was a block away. I did not .know how close the other end was to the car. I don’t know whether it was a block. I could not say how far it was.
“Q. You said it was a block away. Do you mean that ?
“A. I think so. I think it was a block away now. I saw the board coming through. I saw the one end because there was a man standing in front of me, and I could not see this end, but I could see it a block away.
“Q. Did yo'u see any piece connecting the one on the curbstone with the end near the car track ?
“A. Yes, sir; it was a plank.
“Q. You saw the plank and this cross-piece near the curbstone a block away ?
“A. Yes, sir; a block away.”-

Emma Elwart testified:

“Q. What was the condition of the street, where you saw him lying ?
. “A. The boards were lying around on the street.
“Q. How was it about the pavement, — ’the blocks?
“A. The blocks were torn up.”

Helena Pomaski testified:

“Q. What was the condition of the street?
“A. The street was in bad condition. All the blocks were out.
“Q. Torn up?
“A. All the blocks were taken out, and they were in piles, and they were higher than the track.”

We think this testimony is open to the construction that the street was torn up between the curb and the track, and are therefore of the opinion that the court did not err in refusing to withdraw the case from the jury.

Error is assigned on an instruction to the jury that it was not negligence for the plaintiff to ride on the running-board of this car. We think, in view of the testimony in the case, there was no error in this. The plaintiff testified that the car was full, and that he could not get inside, and this testimony was not disputed.

On cross-examination of the witness Pinkelstein he tes- ■ titled that he went to the railway company to see them about a settlement for the plaintiff’s injuries. He was then asked, “Did you tell them how much you would settle for?” and the question was, on objection, ruled out. The purpose was stated to show the interest of the witness. The court, in ruling on the subject, stated: “The fact that he went there shows his interest. The details of that would not.be of any consequence in this case.” We think this ruling was right.

The other questions raised are necessarily ruled by what has already been stated.

The judgment is affirmed.

The other Justices concurred.


text:
    DOAK v. TOWNSHIP OF SAGINAW.

    Highways — Bridges—Absence of Railings — Fright of Horse-
    Injury to Driver — Proximate Cause.
    Plaintiff’s horse, while being'driven, on a country highway, took fright from some unknown cause, at a point 14 feet from a bridge, and backed the carriage down the embankment, injuring the plaintiff. No railings were maintained along the sides of the highway at this point. Held, that the fright of the horse, and not the absence of railings, was the proximate cause of the accident, and that there could, therefore, be no recovery against the township.
    Error to Saginaw; Snow, J.
    Submitted January 25, 1899.
    Decided April 18, 1899.
    Case by Margaret H. Doak against the township of Saginaw for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    On July 30, 1897, plaintiff, with a young child, and her eldest son as driver, drove out of the city of Saginaw into the country. On approaching Merrill bridge across the Tittabawassee river, a team was coming across on the bridge. Plaintiff’s son drove to one side, and stopped about 14 feet from the bridge for this team to pass. He preferred to do this, rather than meet the team upon the bridge. The approach to the bridge was across low ground. Ditches existed upon each side of the highway about 2-l¡ feet below the natural surface. The grade of the roadbed was about o feet above the natural surface. The level surface of the roadbed was from 11 to 14 feet wide, being 11 feet at the place where the horse backed up. The distance from ditch to ditch was 64 feet. The slope was 6 feet 8 inches in 16 feet. After the team had passed, the boy started up his horse, which for some reason refused to go forward, but backed up, cramped 'the buggy down the slope, and finally tipped it over in the ditch, and injured the plaintiff. The negligence alleged is the failure to maintain a railing along the sides of the highway at this point. Plaintiff recovered verdict and judgment.

      Trask & Smith and F. E. Emerick, for appellant.

      Crane & Crane, for appellee.

       Rehearing denied March 27, 1900.

   Grant, C. J.

(after stating the facts). The proximate cause of the accident was the fright of the horse. The testimony on this point is as follows: The driver testified :

I know he got frightened at something, but cannot tell what. There was the rattling of the leaves on the trees; the rubbing against the bridge; the bridge rattled; and the noise of the water, — some kind of bubbling noise; the wind blowing. I don’t know which.”

The roadbed was wide enough for the teams, to pass without difficulty. The defendant was not responsible for the fright of the horse. Plaintiff relies on Ross v. Township of Ionia, 104 Mich. 320, and Simons v. Township of Casco, 105 Mich. 588. In those cases the cause of the fright was directly attributable to the negligence of the township, and the decisions are based upon no other theory. There are but few miles of country road in Michigan where the same result might not follow, if a horse became frightened and backed to the roadside. All country roads usually have ditches on each side of them. The law does not require townships to furnish protection against frightened and unmanageable horses. Only when their own misconduct causes the fright do they become liable, and then because their negligent act caused the fright, and not because of negligence in not maintaining rails or barriers. That is the settled doctrine of this State. Agnew v. City of Corunna, 55 Mich. 428 (54 Am. Rep. 383); Smith v. Township of Sherwood, 62 Mich. 159; Beall v. Township of Athens, 81 Mich. 536; St. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463; Bleil v. Railway Co., 98 Mich. 228; Lambeck v. Railroad Co., 106 Mich. 512; Kingsley v. Township of Bloomingdale, 109 Mich. 340.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


text:
    AUDITOR GENERAL v. FLINT & PERE MARQUETTE RAILROAD CO.
    t. Railroads — Taxation—Exemptions.
    Only such lands of a railroad company as are held and presently used for railroad purposes are exempt from taxation on the general roll; the exemption not applying to lands acquired by the company with a view to future use.

      2. Same — Depot Grounds.
    Where a railroad company purchased a high bluff for depot grounds, and, after suitable grading and terracing, constructed a freight track along the bank of the river, and a proposed passenger track at a higher level, and provided the necessary roads and docks to facilitate the receipt and discharge of freight, the land was exempt from taxation on the general roll, although the construction of the depot was delayed, and the upper track was used mainly for storing cars.
    Appeal from Manistee; McMahon, J.
    Submitted January 6, 1899.
    Decided April 18, 1899.
    Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for the taxes of 1895. From a decree setting aside certain taxes upon objections filed by the Flint & Pere Marquette Railroad Company, petitioner appeals.
    Affirmed.

      Frank L. Fowler, Prosecuting Attorney, for petitioner.

      Dovel & Smith, for contestant.
   Montgomery, J.

Certain lands belonging to the defendant were listed on the general assessment roll for taxation in the year 1895. On the hearing of the auditor general’s petition for the sale of delinquent lands, the railroad company filed objections to a decree against its lands. The circuit judge held that certain of the lands were, and certain were not, assessable under the general tax law. From this determination the auditor general appeals.

The rule as to what property of a railroad company is exempt from taxation on the general roll is correctly stated by counsel for the auditor general, viz., that such lands, and only such lands, as are held and presently used for railroad purposes, are exempt, and the exemption does not apply to lands which have been acquired with a view to a future use of them by the company. City of St. Paul v. Railway Co., 39 Minn. 112; Milwaukee, etc., R. Co. v. City of Milwaukee, 34 Wis. 271; Republican Valley, etc., R. Co. v. County of Chase, 33 Neb. 759. Our own decision in Auditor General v. Railroad Co., 114 Mich. 682, in no way conflicts with the rule stated above, but recognizes and applies that rule; nor do we understand the counsel for the appellee to contend for any other rule.

The question, therefore, is a question of fact: Were the lands in question actually used by the company for railroad purposes ? The property consists of a piece of land extending along the margin of the Manistee river, in the city of Manistee, for a considerable distance. The lands were purchased in 1890, or about that date, and consisted of a high bluff rising some 50 feet above the river. In 1892 the company formed the plan of extending its tracks across the lands parallel with the river, and constructing a freight track on the river bank, and a passenger depot on a higher level; thus making necessary a terrace at a point between the two tracks, and also making necessary a cut beyond the track, and sufficient lands to give support to adjoining property. A witness for the company testified that it was necessary to get the full width of the land in question, in order to level off the sand bluff and get slope without trespassing on the adjoining propertj. This testimony is not contradicted. After the grading was mainly done, the two tracks were laid, and, while no freight house or passenger depot had been constructed when this tax was laid, the testimony is that the track nearest the river was used to receive the freight on; that a dock had been constructed at a cost of $15,000; and that freight was taken from freight boats over this dock, and directly to the cars, and loaded from the cars to the boats in some instances. As to the track on the higher level, the testimony is that it was in daily use for storing cars, and the testimony also shows that the company had constructed a cobblestone roadway to admit of teams driving upon the ground adjoining this upper track, and receiving freight there. We think that the circuit judge was right in holding that the company was holding these lands for railroad purposes.

The decree will be affirmed, with costs.

The other Justices concurred.


text:
    LA DOW v. E. BEMENT & SONS.
    1. Contracts — Time of Performance.
    A contract to repurchase stock “at the end of two years,” if the holder so desires, does not require him to give notice, on the first day after the expiration of the two years, that he requires the promissor to repurchase it, but he has a reasonable time to give such notice.

    2. Same — Reasonable Time.
    “Reasonable time ” is a question for the court, where there is no dispute upon the facts.
    Error to Ingham; Person, J.
    Submitted January 6, 1899.
    Decided April 18, 1899.

      Assumpsit by Charles La Dow against E. Bement & Sons for the breach of a contract to repurchase certain shares of stock in defendant corporation. Prom a judgment for defendant on demurrer to the declaration, plaintiff brings error.
    Reversed.
    On April 27, 1895, the defendant, a corporation, entered into an agreement with the plaintiff, by which it gave to him four promissory notes for $5,000 each, and also agreed to forward to him certificates for 500 shares of the 6 per cent, preferred stock of said corporation, of the par value of $10 per share, and agreed “to repurchase from you, if you so desire, at the end of two years from May 1, 1895, at the par value thereof, and interest or dividends thereon at 6 per cent, per annum.” The declaration sets forth the above agreement, its fulfillment, and that on May 26, 1897, plaintiff offered said shares of stock to defendant, requesting it to repurchase the same, in accordance with the terms of the agreement; that defendant refused to repurchase; that said stock was, on May 26th, worthless; and claims damage by reason of such failure to repurchase. To this declaration the defendant demurred, for the reason that it does not appear “by the declaration that the plaintiff notified the defendant on the 1st day of May, 189?, or at any time prior thereto, that he desired the defendant to repurchase the stock.” The demurrer was sustained, and plaintiff appeals.

      Barbour & Rexford, for appellant.

      Cahill & Wood, for appellee.

       The rights conferred by a refusal or option is the subject of an extensive note to Litz v. Goosling, (Ky.) 21 L. R. A. 127.

   Grant, C. J.

(after stating the facts). Plaintiff insists that he had a reasonable time after the expiration of the two years within which to notify defendant that he desired it to repurchase the stock. Defendant insists that the contract fixed a day certain, viz., the first business day after the expiration of the two years, within which such notification must be given. The contract does not, in express terms, fix a day, and make it of the essence of the contract. The preposition “at” is an elastic word. One lexicographer defines it as follows:

“A preposition of extremely various use, primarily meaning to, without implication, in itself, of motion. It expresses position attained by motion to, and hence contact, contiguity, or coincidence, actual or approximate, in space or time. Being less restricted as to relative position than other prepositions, it may in different constructions assume their office, and so become equivalent, according to the context, to in, on, near, by, about, under, over, through, from, to, toward,” etc. Cent. Diet.

See, also, Davidson v. Manufacturing Co., 99 Mich. 501.

Clearly, plaintiff could not exercise the option until the complete expiration of the two years. He might possibly have given notice before the expiration of the two years that he should demand the repurchase after the time had expired. That question, however, is not before us. The contract did not require him to take any action until the expiration of the time. How much time, then, after the expiration ? Shall the court say that it was limited to the first business day after the expiration of the time? But the contract does not say this. This would establish an arbitrary rule, for which no authority is cited. It would result in holding that no excuse whatever can be given for not exercising the option during that day. That is not the rule applicable to giving notice of dishonor in negotiable paper. We are cited to one authority directly in point. Rogers v. Burr, 97 Ga. 10. It is true, the-declaration does not allege any excuse for delay, as appears to have been done in that case. This might have been better pleading, but we do not think the rule is so technical as to require it in this case. If, when the testimony is concluded, there be no dispute as to the facts, the question as to whether notice was given within a reasonable time will become a question of law for the court. If there be a dispute as to the facts, it may become a question of fact for the jury. This is not one of those commercial transactions the custom in regard, to which is so well settled that a reasonable time has been rendered certain by numerous decisions of the courts. This question of reasonable time is very ably and fully discussed in Hamilton v. Insurance Co., 9 C. C. A. 530, 61 Fed. 379, and it is there clearly shown when it is a question of law for the court and of fact for the jury. In Campbell v. Railway Co., 5 Hare, 519, cited by defendant’s counsel, the agreement gave the bondholders of defendant “an option to convert the bonds, at the expiration of not more than three years, into quarter shares of the company at £10 per quarter share.” The three years expired February 15, 1845, but no notice was given until the end of June following. The time for the conversion was held to be limited to the three years. That case was heard on pleadings and proofs. It will be observed that the language is stronger than that in this. case. Excuses for the delay were alleged and considered, but found to be insufficient. The only question now before us is the sufficiency of the declaration. We are of the opinion that it is sufficient.

Judgment reversed, and case remanded for further proceedings under the rules and practice of the court.

The other Justices concurred.


author: Long, J.

text:
    VILLAGE OF ALLEGAN v. CHADDOCK.
    Villases —Clerk of Cemetery Board — Official Bond —Liability of Sureties.
    Prior to the general act for the incorporation of villages (Act No. 3, Pub. Acts 1895), which provides for a board of cemetery trustees, which is invested with the management and control of cemeteries, and whose duty it is under the act to fix the price of lots and make sales thereof, the clerk of plain- ' tiff village, who became ex officio clerk of the new board, had made sales of lots by authority of the council. After the act of 1895, the council xiassed an ordinance requiring the board to fix the price of lots and make necessary rules relating to sales, and providing that the clerk of the board, upon payment, should execute’the proper deed, signed by the chairman and himself. Chapter 14, § 10, of the general act, provides that existing regulations not inconsistent with the act should remain in force. Held,, that the sureties on the clerk’s bond, conditioned for the payment of all moneys received by him by virtue of his office, were liable for his misappropriation of moneys paid for lots after the passage of the act.
    Error to Allegan; Padgham, J.
    Submitted January 26, 1899.
    Decided April 18, 1899.

      Assumpsit by tbe village of Allegan against Joseph W. Chaddock and Hiram A. De Laño, as sureties on the official bond of Edward J. Wagner, village clerk. Erom a judgment for plaintiff, defendants bring error.
    Affirmed.

      Charles R. Wilkes and Hannibal Hart, for appellants.

      Augustus S. Butler and Fidus E. Fish, for appellee.
   Long, J.

The facts in this case are not in dispute. It appears that one Edward J. Wagner was elected"clerk of the village of Allegan for the years 1895 and 1896, and gave a bond for each of these years, with defendants as sureties. Under the old charter of the village, in 1885 a rule had been adopted, and the common council had passed a resolution, both of which proyided that cemetery lots should be sold by the clerk, and the moneys received therefor paid into the village treasury. In 1895, the legislature passed an act providing that the common council of villages should appoint .three electors, who should constitute a board of cemetery trustees. Act No. 3, Pub. Acts 1895, chap. 7, § 57. Section 58 of that chapter provides that the village clerk shall be clerk of the board; that the common council may by ordinance invest the board with such powers and authority as may be necessary for the care, etc., of the cemetery grounds; and, in addition to these duties, said board shall perform such other duties as the common council shall prescribe. Section 59 gives the board, subject to the directions and ordinances of the council, the management and control of the cemeteries; and further provides that the board shall fix the price of lots, and make the sales thereof. After the passage of this act, the village clerk continued to make sales of cemetery lots, and receive the pay therefor. During the years 1895 and 1896, he received $219 on sales of lots, and failed to pay the same over to the village treasurer. This action was brought against the sureties on the bond, to recover the money so paid to the clerk. The court below found in favor of the village, and entered judgment against the sureties. ' Defendants bring error.

It appeared in the case that on the 15th of April, 1895, which was before the money sued for came into the hands of the clerk, the common council adopted Ordinance No. 33, “relative to the appointment of cemetery trustees and their duties.” By section 3 of this ordinance, it was provided, among other things, that:

' “The board shall fix the price of lots, and make such rules relative to the sale thereof as is necessary, and, when a lot is paid for, the clerk shall execute a deed therefor, signed by himself as clerk of the village, and by the chairman of the board of cemetery trustees: * * * Provided.i that the board of cemetery trustees shall sell no lot or lots except for cash or upon contract. ”

The condition in each of the bonds is that:

“ If the above-bounden Edward J. Wagner shall well and faithfully in all things execute the duties of his said office, an'd honestly and faithfully account for and pay over, according to law and the ordinances and by-laws of said village, all the moneys received by him by virtue of Ms said office, then the above obligation to be void,” etc.

The court found, in his seventh finding of fact, that the rule adopted by the common council, and the resolution passed by it, requiring the clerk to collect the moneys on sales of cemetery lots, had never been repealed. Section 10, chap. 14, of the act of 1895, provides that:

“ The rules and regulations of the council and of any hoard of such village, heretofore in force, and not inconsistent with this act, shall remain in force after the passage of this act, and are hereby declared to be re-enacted. ”

It is contended by counsel for defendants that, under the provisions of the above act, and under Ordinance No. 33, it was not the official duty of the clerk to sell cemetery lots, or to receive money on such sales; that, if the money was received by the clerk, it was not by virtue of his office, and therefore the sureties on his bond would not be liable; that, by the rule adopted in 1885, and the resolution adopted that year, the clerk was to make sales of lots and receive the moneys thereon, but that, by section 59 of chapter 7 of the act of 1895, the sales were to be made by the board itself; that, therefore, the resolution and rule of the council had been repealed. We think not. The clerk of the village continued to be the clerk of the board. He continued, under the direction of the board, to make sales of lots, and 'collected the $219 from such sales. It was the evident design of the act that the clerk should act under the direction of the board. It cannot be said, therefore, that he did not receive the money by virtue of his office. The case falls within the principles laid down in County of Cheboygan v. Erratt, 110 Mich. 156, and cases there cited.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    DOANE v. FEATHER’S ESTATE.
    Married Women — Liability on Note — Tenancy by Entireties.
    The separate estate of a married woman is not liable for the payment of a note executed by her and her husband for the purchase price of lands deeded to them jointly; the wife having no such interest in an estate by entirety as would afford a valid consideration for the note.
    Error to Washtenaw; Kinne, J.
    Submitted January 26, 1899.
    Decided April 18, 1899.
    Edwin ft. Doane presented a claim against the estate of Caroline Feather, deceased, upon a promissory note. The claim was disallowed in the probate court, and claimant appealed to the circuit. From a judgment for claimant, contestant brings error.
    Reversed.

      Randall & Jones, for appellant.

      M. J. Lehman and Arthur Brown, for appellee.
   Moore, J.

In 1883 a farm of 80 acres of land was deeded to Joseph Feather and Caroline Feather, his wife. In payment therefor a mortgage and four notes were given. One of the notes is the claim involved in this proceeding. It was a joint and several note, signed by Joseph Feather and Caroline Feather. The only question involved is whether or not the separate property of a married woman can be reached to pay a note which she signed with her husband, given in payment for lands which were deeded to herself and husband.

It is urged upon the part of claimant that the deed of real estate to the husband and wife jointly is a proper consideration for the giving of the note; that it is a contract for her benefit, and is legal, — citing West v. Laraway, 28 Mich. 464; Johnson v. Sutherland, 39 Mich. 580; Post v. Shafer, 63 Mich. 88; Wineman v. Phillips, 93 Mich. 231; Gillespie v. Beecher, 94 Mich. 374. Isolated sentences in these cases tend to sustain the position of counsel; but, when the cases themselves are read, they do not sustain the claim of counsel.

On the part of the contestant, it is said the note was not given in relation to the separate estate of the wife, and that she received no consideration therefor in her own separate right; that the land deeded was not owned by the husband and wife jointly, but as an entirety, and that her estate is not liable, — citing Russel v. People’s Savings Bank, 39 Mich. 671 (33 Am. Rep. 444); Speier v. Opfer, 73 Mich. 35 (2 L. R. A. 345)16 Am. St. Rep. 556). The law is well settled in this State that, where real estate is conveyed to a husband and wife, an estate in entirety is created, and, upon the death of either, the title in fee is in the survivor. Fisher v. Provin, 25 Mich. 347; Manwaring v. Powell, 40 Mich. 371; Ætna Ins. Co. v. Resh, Id. 241; Vinton v. Beamer, 55 Mich. 559; Lewis’ Appeal, 85 Mich. 340 (24 Am. St. Rep. 94). Mrs. Feather did not acquire any interest in the land which was separate and apart from her husband’s interest therein. She could not sell, convey, or devise any interest in the land, .without her husband joining in the conveyance. Naylor v. Minock, 96 Mich. 182 (35 Am. St. Rep. 595). In Russel v. People’s Savings Bank, supra, it is held that a married woman’s power to make contracts depends upon whether the contract deals with her individual estate. See 2 How. Stat. §§ 6295, 6297. In Speier v. Opfer, supra, it is held that a contract made by husband and wife for the erection of a building upon real property. owned by them jointly cannot be enforced against the wife. The discussion in that case, and the authorities there cited, are directly applicable to this case. The case of Speier v. Opfer was referred to in Curtis v. Crowe, 74 Mich. 99, and the doctrine there stated was reaffirmed. In Caldwell v. Jones, 115 Mich. 129, it is held that a wife is not liable on a note given by her jointly with 'her husband for the price of a horse purchased by both.

The wife did not obtain such an interest in the land conveyed as to make it a valid consideration for the note.

The judgment is reversed, and no new trial ordered.

The other Justices concurred.


author: Grant, C. J. Moore, J.

text:
    BRISTOL v. SUTTON.
    1. Contracts — Statute of Frauds — Estates of Decedents.
    There can be no recovery against an estate upon an implied promise of decedent to pay for certain services, which, it appears, were rendered, not directly to decedent, but to his lessee, where the only evidence to show the lessor’s liability relates to a contract void under the statute of frauds, and therefore inadmissible.
    2. Same — Implied Promise — Evidenoe. .
    Evidence that claimant, under an agreement with his uncle, left other employment, and went to work on his uncle’s farm, which was leased to claimant’s father, and remained there for four years, rendering services which, substantially increased the value of the farm, is insufficient, in the absence < of any showing that the services did not inure to the lessee’s benefit, to raise an implied promise on the lessor’s part to pay for such services.
    Moore, J., dissenting.
    Error to Calhoun; Smith, J.
    Submitted January 26, 1899.
    Decided April 18, 1899.
    Henry Bristol presented a claim against the estate of Smith H. Bristol, deceased, for services rendered in decedent’s lifetime. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. Prom a judgment for claimant, Edward Sutton, administrator of the estate, brings error.
    Reversed.
    Upon the first trial of this cause, claimant recovered. The case was appealed to this court, and reversed. 115 Mich. 365. There is no essential difference between the present record and the former, except that upon the second trial the claimant amended his bill of particulars. On the first trial his claim was for “an amount agreed by décedent, for a good and valuable consideration, to be paid to claimant * * * when claimant became of age.” In addition to this, the amended bill claims for services “ in remaining at home with his father, * * •* and aiding and assisting him, and working upon and about the farm occupied by him and owned by decedent, * * * at the special instance and request of decedent in his lifetime, four years, which services were reasonably worth $250 a year.” The decedent leased his farm to claimant’s father, who occupied it as his home under the lease during the entire term for which claimant seeks to recover. Claimant again recovered verdict for $1,216.

      Thomas E. Barkworth, for appellant.

      Edwin H. Lyon, for appellee.
   Grant, C. J.

(after stating the facts). The court was requested to direct a verdict for the estate. The refusal to do so is the only allegation of error which we need to discuss. If the contract, which by the former decision was held to be void under the statute of frauds, be eliminated from the record, there is no testimony whatever upon which to base the verdict. This testimony is defended upon the ground that it tended to show that “the services were not gratuitous, that there was a hiring, and the value of the services as agreed upon by the parties, so far as the contract would tend to show itin support of which counsel cites Rhea v. Meyers’ Estate, 111 Mich. 140; In re Williams’ Estate, 106 Mich. 490; Moore v. Horse-Nail Co., 76 Mich. 606. Those cases have no application here. ’ The defendants in them were to receive the direct benefits of the services rendered. This is a contract to pay for services in fact rendered for another. One of claimant’s witnesses states the contract as follows : “He [the deceased] said to me that he had made arrangements with Henry Bristol to give him a thousand dollars, if he would stay with his father until he was 21.” Claimant lived with his father, worked under him, and, to all appearances, stood in the same relation as any son living at home. There is nothing to show that the deceased expected any personal benefit from the arrangement. Testimony was introduced tending to show that the farm was worth more when claimant reached the age of 21 than it was when he commenced his work, and that this was due to the better condition of the farm, to which claimant, by his labor, contributed; but there is no testimony to show that this was a consideration for the contract, or that the father was not correspondingly benefited by his increase in the crops.

"We think that the contract was inadmissible, and that there was not sufficient evidence upon which to base a verdict against the estate.

Judgment reversed, and new trial ordered.

Hooker and Long, JJ., concurred with Grant, O. J. Montgomery, J., did not sit.

Moore, J.

(dissenting). I cannot agree with the conclusion reached by the Chief Justice. The record discloses that, when claimant was 15 years old, he was given his time by his father. He then went to work in a shingle' mill at Lowell; making the bargain himself, and collecting his wages. He then made arrangements to work in a meat market at Lowell, but, before going to work, he made his father • a visit. His father, who was in poor health, was living upon a farm owned by Smith H. Bristol. Mrs. Bristol, the wife of claimant’s father, was the stepmother of the claimant. The record is not very clear as to the arrangement which existed, about working the farm, between Smith H. Bristol and his brother. The farm at this time was badly run down. Much of it was grownup to weeds, the fences were out of repair, and the fence rows filled with brush. Nine acres of the land was fallow, and had never been broken. There was a swamp or swale which was uncleared. The owner of the farm agreed with the claimant, if he would remain on the farm until he was 21 years of age, that he would pay him $1,000. The claimant did not go to work in the meat shop at Lowell, as he had agreed to do when he came to his father’s upon a visit, but went to work up'on the farm, and remained, there until he was 21 years old. He cleared four acres of the swale of willows and logs, plowed it, and put it into crops; logged, stumped, and plowed the fallow; cleaned out the fence rows; and rebuilt the fences. As the result of his work upon the farm, he increased its value, according to the testimony, $1,000. The title in fee to the farm was shown to be in Smith H. Bristol. The increased value .of the farm inured to his benefit. Under the rule laid down when the case was here before (115 Mich. 365), I think the claimant was entitled to recover, and the judgment should be affirmed.


text:
    VOSBURG v. BROWN.
    1. Married Women — Liability for Loan — Application of Proceeds — Representations by Husband in Wife’s Presence.
    A statement made by a husband, in the presence of his wife and of a third person, from whom a loan was procured upon the wife’s note, that, if the wife took the money, she could pay off a mortgage on her property, is equivalent to a declaration that the wife desired the money for that purpose, and if relied on by the lender, and knowingly acquiesced in by the wife, her separate estate is answerable for its repayment, whether the money was actually used by the wife or not.
    2. Same — Presumptions.
    It may be presumed, in the absence of evidence to the contrary, that a wife heard representations shown to have been made by her husband to a third person at a time when the three alone were dining together at her table.
    3. Same — Instructions.
    An instruction which permits the jury to find that a wife made certain representations as to the purpose of a loan procured on her note, when the evidence is all to the effect that the representations were made by her husband in her presence, and were heard and acquiesced in by the wife, is not prejudicial error, the wife’s responsibility being in either event the same.
    4. Witnesses — Cross - Examination — Depositions—Refreshing Recollection.
    The court’s refusal to permit the defendant to refresh her recollection by reading her deposition given on a former trial before she was examined concerning it is not reversible error, when nothing prejudicial to her case was elicited.
    Error to Oakland; Smith, J.
    Submitted February 7, 1899.
    Decided April 18, 1899.

      Assumpsit by Hiram Vosburg against Caroline Brown upon a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

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

      Elmer R. Webster and George O. Kinsman (James H. Lynch, of counsel), for appellee.
   Long, J.

Plaintiff recovered judgment against defendant upon a promissory note, made and executed by her, for $160. The defense interposed was that the note was given to secure moneys loaned to her husband, and that they were not had for her separate estate. Defendant is a married woman, living with her husband in the village of Oxford. They occupied apartments over a store, the whole building being the separate property of the wife. Plaintiff testified on the trial that he saw defendant’s husband at his (plaintiff’s) house, April 16,1895, and had some talk with him in regard to the money; that on April 18th he went to defendant’s rooms, and' saw defendant and her husband, and that the defendant then said that he (plaintiff) was expected to be there on that date to bring up some money; that he stayed to dinner, and that at table the following occurred:

“Mr. Brown said, ‘Carl [meaning his wife] will be fixed all right if she takes that money from you; ’ that she could use it for the purpose he had made known to me.
“ Q. What did he say that was ?
“A. To finish paying her mortgage coming due soon.
“Q. Did he say what mortgage?
“A. He didn’t name who held the mortgage, but the mortgage on her place.
“The Court: Was Mrs. Brown present when that was said?
“A. Yes, sir.
“Q. This conversation occurred at the dinner table?
“A. At the dinner table. I know Mrs. Brown owned that place from whát Mr. Brown told me when he was at my house. * * * After dinner, Mrs. Brown and I were sitting in the dining room, speaking about making payments on this note. She asked me if I would receive as small as $25 at a payment, and I said, ‘Yes; after 18 months’ time elapses.’ * * * Mr. Brown said that, if I would bring up the money with me, she would sign it [the note]. * * * I drew the note myself. I handed it to them to put their signatures on. They took it, Mr. and Mrs. Brown, and passed into the other room to put their signatures on it, and brought it back to me. When they brought it back, both signatures were on it. Mrs. Brown gave me the note. I counted out $160. * * •* I went back again in about an hour. Mr. and Mrs. Brown were there. I said I had done wrong, and I was dissatisfied with the note that she gave me. I said I had done wrong in allowing Brown to put his signature on it. * * * I said, ‘ It hurts the note, because I don’t look to Brown for my pay.’”

Thé plaintiff then testified that he drew up another note (the one in suit), and Mrs. Brown alone signed it, and then destroyed the first one; that Mr. Brown was there during all that time. Plaintiff also testified, under objection, that when Mr. Brown was at his place, on April 16th, he stated that he wanted to borrow the money for his wife.

On the defense, Mr. Brown was called as a witness for his wife, and testified that on April 16th, when he went to see the plaintiff, he told him he wanted to let him have a note of $160 he held against his (witness’) son, Frank Brown, and plaintiff said he did not want that, but that he would take his (witness’) note if his wife would sign it; that he told him he would see his wife, and see if she would sign it; that he did not tell plaintiff he wanted to borrow the money for his wife; that, while there was a past-due mortgage on his wife’s property, the parties were in no hurry for the money. As to what took place when the. plaintiff came to his house, Mr. Brown stated substantially :

‘ ‘ He said he had got the money, and he could let me have it if I would get my wife to sign it, and I told him I had talked with her, and she said she would. He drew the note, and I signed, and my wife was in the kitchen, and I stepped to the door and spoke to her, and she came in and signed the note, and stepped right out again. * * * My wife was not present when I took the money. She had no conversation with Mr. Vosburg on that occasion. * * * There was no conversation at the dinner table about the note at all. He went out a few minutes after dinner. I saw him again at our house in about two hours. * * * ‘Well,’ he said to me, ‘I don’t really like this note. Can’t you get her to give her note alone ? ’ And I said: ‘I don’t know; I presume so.’ I talked with her a little about it, and she said she would, and he drew up another note, and she signed it, and, after she signed it, I picked up that note there and put it in the stove. Mrs. Brown did not have any of the proceeds of that deal. * * * Every dollar of that money I used myself. There was never any talk between me and my wife about borrowing it or having it for her use. She never authorized me to make any assui’ances or statements of that character.”

This testimony is corroborated by the defendant.

The first assignment of error relates to the ruling of the court in permitting an answer to be given to the following question addressed to the plaintiff, and in refusing to strike out such answer:

‘ ‘ Q. State whether or not, at the time you loaned this money to Caroline Brown, you relied upon the representations that had been made by Henry Brown in the presence of Caroline Brown, his wife ? ”

It is the contention of counsel for defendant that the words spoken cannot be held to be such representations on the part of the wife as to support a verdict; that is, that even if Mr. Brown said to the plaintiff, “Now, if my wife, Carl, takes that money from you, she can pay up her mortgage, and be fixed all right,” this would not support the verdict.

It will be remembered that the plaintiff testified that this statement was made while the parties were at the dinner table, and that Mrs. Brown was present. It is true that the defendant and her husband both deny this statement, and the plaintiff’s case must hinge upon his own testimony. It was a question for the jury to determine whether this statement was made. Under the circumstances, it must be presumed that, if such statement was made, the defendant heard it and acquiesced in it, thereby assenting to the proposition that the money was borrowed for and on account of her separate estate. The court below must have so understood it, as he charged the jury:

“If you find from the evidence in this case that Mr. Yosburg loaned the money to Mrs. Brown on the representations made by her husband, in her presence, that she desired the money for the purpose of making a payment on a mortgage against her own property, and that Mr. Yosburg relied on those representations, — and I add these words, ‘in good faith, supposing them to be true,’ — then it is immaterial as to what became afterwards of the money. Whether it was applied for the benefit of her separate estate or not, you must find for the plaintiff.”

The testimony was competent, and the court was not in error in the above portion of his charge. Taking the circumstances and conversations together as they occurred between the parties, according to the testimony of the plaintiff, théy were equivalent to the defendant’s declaration that she wanted to borrow the money to pay off a mortgage on her own property; and, under well-settled rules, it did not matter whether she afterwards did so or not; she would be bound to answer for it out of her separate estate. McVey v. Cantrell, 70 N. Y. 295 (26 Am. Rep. 605).

It is also contended by counsel for defendant that the court was in error in certain other portions of the general charge, in which the court said:

“It is the contention of the plaintiff * * * that either she, or her husband in her presence,— I will leave it that way; you will remember which way it is, — stated again that she wanted this money to make a payment upon a mortgage upon her property, and Yosburg, supposing that to be true, and relying upon it, accepted her note and made the loan to her,” etc.

Again:

“ If the statement of Mr. Yosburg is true, that he made the loan to Mrs. Brown on the representations made by her, or by her husband in her presence, that the loan was for her benefit,” etc.

And again:

“If you should find from all the evidence.that she either made such statements as he claims at Oxford, or her husband made them in her presence, and she understood them, * * * she is estopped now from setting up a defense on the ground that the money was used for something else.”

The contention is that there was no testimony given in the case showing, or tending to show, that the plaintiff claimed on the trial that Mrs. Brown, the defendant, made any such statement herself, but that all the plaintiff claimed was that Mr. Brown made the statements in the presence of his wife. In the charge the court seems to have been uncertain which made the statement, and he left it to the jury to say. They could not have been misled by this. They had the testimony before them. In fact, it could not matter which made the statement. If the husband made it in the wife’s presence, and she heard it, it was, as we have said, equivalent to a statement from her of the fact; and it further appears from the plaintiff’s testimony that she entered into a talk with him as to how the money could be paid back, — whether in sums of $25 or not. The case is very different from the cases of Chamberlain v. Murrin, 92 Mich. 366, Fechheimer v. Peirce, 70 Mich. 440, and Fisk v. Mills, 104 Mich. 436, cited by counsel for defendant.

It is contended, however, that the charge entirely left out of consideration the defendant’s understanding and belief. We think not. Each time the subject of borrowing the money was referred to in the charge, the court stated particularly if Mr. Brown made such statements in his wife’s presence, and she understood them, and Mr. Vosburg relied upon them, etc., the defendant would be liable. The parties were in close proximity to each other; and if she understood what her husband said, and did not then and there repudiate the statements, the plaintiff had a right to rely upon the statements as true, and to suppose that the money was being borrowed to pay off this mortgage.

Some contention arises over the use made on the trial of the deposition of the defendant, taken in justice’s court when the present case was on trial there. While-the defendant was being cross-examined as a witness, she was asked several questions as to what she testified to in the deposition. This was objected to unless the deposition should be first submitted to her to refresh her recollection. This was overruled, and certain questions asked and answered; whereupon the deposition was shown witness, who admitted that it was her deposition, and contained her signature. The witness-was thereafter fully examined by counsel for both parties. While within the rule of Lightfoot v. People, 16 Mich. 513, and the cases following that in this court, the witness was entitled to have the deposition read to her before being examined upon it, if she had so asked, we are of the opinion that there was nothing drawn out on such examination which had any tendency to prejudice the defendant’s case. The deposition was put in evidence, and counsel had an opportunity to comment upon it.

We think no other question need be discussed.

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

The other Justices concurred.


author: The Court

text:
    Joseph Gard v. James E. Stevens.

      Settlement of case, made. — A case made after judgment for review by this Court,, must show on its face that it is settled and signed by the Circuit Judge for that purpose.

      Heard and decided, October 24th.

    Motion to dismiss for want of jurisdiction.
    The county clerk of Berrien transmitted to this Court a paper, with his certificate attached, that it was “a full, true and complete copy of the case made and signed by N. Bacon, Circuit Judge, as the same appears to me from the files in my office.” The paper was entitled in this cause, and was a narrative of the proceedings therein, to and including the rendition of judgment.. It was signed by the Circuit Judge, but it was no where stated in the paper itself to be a case made, nor was there any recital therein that the parties had appeared before the J udge for the purpose of settling a case, or that he had settled the same.

      G. I. Walker, for the motion,
    argued, that there was nothing in this paper to indicate that it was designed as a case for review in this Court. It might have been prepared for any other purpose; and this Court could not presume that it had been deliberately settled by the Judge, on a hearing of the parties, where nothing appeared in the paper to show that fact.

      ¿r. V. N Lothrop, contra.
   The Court

held the ease to be- defective, because not showing that it was settled and signed by tbe Circuit Judge for review by this Court; hut allowed it to be remitted to the Court below for correction.


text:
    The Niagara Fire Insurance Company v. Henry DeGraff.

      "Amending exceptions.^-This Court will not, by consent of parties, treat that as a part of a bill of exceptions which is not actually incorporated therein by the Judge who settled the same.

      Decided October 24th.
    Error to Lenawee Circuit. A bill of exceptions had been settled in the cause, but afterwards it was stipulated by the parties that a portion of tbe charge of the Court, not embraced in tbe bill as settled, should be considered as constituting a part of the bill for the purposes of the argument in this Court.

      C. A. Stacey and C. I. Walker, for plaintiff in error.

      A. L. Millerd and T. M. Cooley, for defendant in error.
   But the Court held, that the bill of exceptions could not he thus altered by consent of the parties, without the knowledge and consent of the Judge who tried the cause. Nothing can be considered as a part of the bill of exceptions except what is actually incorporated therein, and settled by the Judge himself.