text:
    STEERE v. TREBILCOCK.

    i. Non-negotiable Note — Sufficiency of Assignment.
    The indorsement of a non-negotiable note by the payee to a third party, accompanied by a delivery of the note, constitutes a sufficient assignment to pass title to the instrument.
    2. Sunday Contract — Validity.
    A contract made on Sunday is not void at the common law.
    8. Same — Delivery of Written Instrument.
    The mere fact that a promissory note was delivered to an indorsee thereof on Sunday will not operate to defeat his title to the note.
    4. Principal and Surety — Rights of Principal Creditor.
    Defendants gave their non-negotiable note to K., to indemnify him for any amount that he might be compelled to pay to obtain certain papers which were in the possession of the plaintiff. In order to secure the papers, K. obligated himself to pay plaintiff the full amount of the note, whereupon the papers were delivered to the defendants. Upon their refusal to pay the note, K. assigned it to the plaintiff. Held, that plaintiff could maintain an action on the note.
    Error to Gogebic; Haire, J.
    Submitted January 29, 1896.
    Decided February 26, 1896.

      Assumpsit by George S. Steere against William Trebilcock and John A. McLeod on a promissory note. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Ball & Ball, for appellant.

      Charles E. Miller, for appellees.

       Rehearing denied March 12, 1896.

   Long, C. J.

Prior to October 14, 1893, the city of Ironwood had voted certain bonds for public improvements, and was seeking to negotiate them. Mr. O. E. Karste had bargained with the city for the bonds, and had employed a firm of brokers in Chicago to negotiate them. The plaintiff had been employed by these brokers to procure and prepare a statement of the bonds, and the proceedings authorizing their issue, and to give his opinion, as an attorney, upon the question of their validity. These brokers failed to place the bonds, and the city of Ironwood negotiated with brokers in New York City to take them on the recommendation and favorable opinion of the plaintiff. The defendants were commissioned by the common council of the city — Mr. Trebilcock being the mayor — to obtain the bonds, and deliver them over to the New York brokers, and obtain a first payment of $25,000 upon them. For the purpose of completing such sale, the defendants were desirous of obtaining from the plaintiff the' papers and documents which had been prepared on the subject of the bonds, and also his opinion on the question of their validity, in accordance with the arrangement with the New York brokers. "When the bonds were first turned over to Karste, he had arranged with the plaintiff for this examination, and had agreed with him upon a settlement of his services at the sum of $1,130. When defendants called upon Karste for the bonds and plaintiff’s opinion, Karste informed them that plaintiff’s charge was $1,130, and that he could get the papers and the opinion upon the payment of such sum; but he undertook, at defendants’ request, to obtain the bonds and the opinion at a lesser figure. The defendants then agreed that, if Karste could procure the delivery of the papers and plaintiff’s opinion, they would pay whatever sum Karste had to pay therefor, as it was not known at the time whether any reduction could be had or not. Karste demanded that the defendants give him their note for $1,130, saying that he did not think he could get any reduction. The defendants gave the note in question, with the understanding that, if Karste did not have to pay the total amount, they were to pay only such amount as he had to pay. This note is as follows :

“$1,130. Ieonwood, Mich., Oct. 14, 1893.
“On demand, after date, for value received, we promise to pay to the order of the Bank of Ironwood eleven hundred thirty dollars, at the People’s Savings Bank of
Ironwood, with interest at-per cent, per annum after
-, until paid.
“ Due-.
“Wm. Teebilcock.
“John A. McLeod.
“This note is to be paid when Coffin & Stanton make first payment on bonds.”

Karste, upon obtaining the note, gave to the defendants a letter to present to the plaintiff, as follows:

“Ieonwood, October 14, 1893.
“Q-eoege S. Steeee, Esq.,
“Chicago, HI.
“Dear Sir: On the delivery to Mr. Trebilcock of the papers now in your possession pertaining to the $150,000 Ironwood public improvement bonds, and a favorable report on same to Coffin & Stanton of New York, and on the payment of $25,000 or less by them, we will remit you the amount of your bill due for services to the city, to wit, eleven hundred and thirty dollars ($1,130).
“ Yours truly,
“O. E. Karste, Cashier.”

Defendant Trebilcock went with this letter to Chicago, for the purpose of obtaining from the plaintiff the papers referred to. Karste at once communicated with the plaintiff by telegraph, seeking to get a reduction of the amount, but received an answer refusing to make any reduction.

The court found the foregoing facts substantially. We now quote from the court’s further finding, as follows :

“Said letter of Karste was taken by said defendant Trebilcock to Chicago, and on or about the 15th day of October, 1893, was delivered by him to the plaintiff, who, on the following day, delivered to said Trebilcock the papers demanded, together with his written opinion, as requested. The defendant Trebilcock took the papers from the plaintiff, went East, and succeeded in negotiating the bonds for the city, and obtaining thereon from Coffin & Stanton, for the city, a payment of $25,000, which payment was made before the commencement of this suit.” .

The further facts found by the court are, substantially, that the plaintiff thereafter called upon Karste to pay the amount of his bill, and Karste requested the defendants to pay their note, so that he could pay the same in accordance with his letter which Trebilcock had delivered to the plaintiff, and said to them that he either should sue them for it, or send it to Mr. Steere. Defendants refused to pay the note, whereupon Karste indorsed the note as follows:

“Pay George S. Steere, or order, without recourse.
“Bank oe Ironwood,
“ O. E. Karste, Cashier.”

The court found further that Mr. Karste handed this note to the plaintiff, with the indorsement upon it, in the city of Chicago, on Sunday, and that the note was never assigned to the plaintiff by Mr. Karste, otherwise than as “hereinbefore stated;” that plaintiff received it in satisfaction of his guaranty; and that Mr. Karste did not pay any money for the purpose of procuring the papers in question. The court then found further that — •

“ The plaintiff did not deliver the papers in question to defendant Trebilcock in reliance upon any guaranty or promise made by said Karste. But I find that Trebilcock told the plaintiff, at their first interview, that he and McLeod had left the note in suit with the Bank of Ironwood, to secure Mr. Karste, and that Mr. Karste must make an arrangement with the plaintiff to get the papers for them, which Mr. Karste had agreed to do, and that Trebilcock and McLeod had secured Mr. Karste for the money, and plaintiff delivered said papers and his opinion in reliance upon that statement; that there never was any personal negotiation between Steere, the plaintiff, and the defendants, Trebilcock and McLeod, jointly; that the plaintiff never did any work or performed any services for the defendants jointly; that defendant McLeod was no party to any arrangement or bargain between the plaintiff, Steere, and the defendant Trebilcock; that the defendants, Trebilcock and McLeod, were not copartners, nor jointly interested in any transaction with the plaintiff, Steere; that defendant Trebilcock had no permission or authority to make any contract in Chicago which should bind defendant McLeod in any manner; that after the talk between Trebilcock and Steere in Chicago, and after the papers were delivered to Trebilcock by Steere, that Steere, by request of Karste, presented a bill to the city of Ironwood, accompanied by a sworn affidavit that the city was indebted to him in that amount.”

The court found, as matter of law:

“First. That the instrument sued on in this cause is not a promissory note negotiable under the law merchant; that the title to said instrument cannot pass by indorsement, but only by assignment, — the bare indorsement being insufficient, indorsed on the back of a contract, to transfer title, or operate as an assignment of the contract. And, in case such an instrument was assigned or transferred to a third person, such third person would take it subject to all such equities and defenses as existed between the original parties.
“Second. There being no proof in this case of any assignment of the paper in question to the plaintiff, there can be no remedy by the plaintiff in this cause.
Third. The mere handing of the instrument in question by Karste to the plaintiff, in the city of Chicago, on Sunday, is not such an assignment and transfer of title to the plaintiff as will authorize him to bring suit upon it.
Fourth. Under the evidence in this case, there can be no recovery by the plaintiff, or judgment against the defendants, under the count in plaintiff’s declaration, for labor or services.
“Fifth. There can be no recovery against the defendants in this case on account of any contract or conversation had between the plaintiff and defendant Trebilcock, in Chicago, to which the defendant McLeod was not a party.
“ Sixth. I find, as matter of law, from the undisputed evidence in this case, that the plaintiff is not entitled to recover in this cause, and judgment must be for defendants.”

Judgment was rendered by the court below in favor of the defendants.

The contentions of defendants’ counsel are:

1. That the defendants are not in the position of principal debtors, who are indemnifying a surety for securing their indebtedness, nor can they be said to have agreed to pay Karste’s indebtedness to the plaintiff for services which had already been performed, but that the contract was special, and, in order for the defendants ever to be called upon to pay the amount of the contract, it was necessary that Karste should perform the conditions precedent, namely, to procure the surrender of the papers in question, and to pay what was necessary to pay for their surrender, and, the court having found that Karste has not executed his part of the contract, that there is a failure of consideration, which may be set up by the defense in any suit brought upon the so-called note.
2. That if it can be said that Karste was a surety for the defendants, and that their contract with him was to indemnify him for whatever he might be called upon to pay out as such surety, and that the note was given as Collateral to such contract for indemnity, then the plaintiff could not recover; for where a note given by a principal to the surety for his indemnity is in the nature of a collateral security only, the surety may recover on such note whatever sum he has actually paid out up to. the time of the trial, and no more.
3. That the contract in question is not a promissory note, negotiable under the law merchant; therefore, the indorsement upon the back thereof was insufficient to transfer title to the plaintiff. Counsel stated, however, that he does not contend but that an indorsement of the paper in question, accompanied by a valid delivery, would be a sufficient assignment, but that there must be both a valid indorsement and a valid delivery, in order to make an assignment, and that the burden was upon the plaintiff to show such indorsement and delivery; and that, under the findings of the court in this case, it cannot be said that the plaintiff has proved his case.
4. That the court having found that this was not a valid assignment of the instrument in question, and there being nothing before this court to show what the testimony was on which the court made such finding, this court will conclusively presume that there was sufficient evidence to justify the court below in finding as it did; that this court will not assume that there was any lack of testimony necessary to support the findings; and that, therefore, if there were no other questions in the case, the court below having found that the plaintiff was not an assignee of the instrument in question, and it appearing conclusively that the instrument could be transferred only by assignment, the court was right in rendering judgment for the defendants.

We are of the opinion that, under the findings of fact made by the court below, this judgment cannot stand; that the judgment should have been rendered in favor of the plaintiff. The suit is brought upon the note, and the declaration alleges the facts and cfficumstances under which the plaintiff became possessed of it. While the note is not negotiable, the indorsement upon the back of it by the payee, and its delivery over to the plaintiff, were a sufficient assignment of the instrument to pass the title. Merchants’ Natl. Bank v. Gregg, 107 Mich. 146.

The mere fact that the note was handed to the plaintiff, in Chicago, on Sunday, would not invalidate the delivery. It appears from the findings that the note was delivered to the plaintiff, and received by him, in satisfaction of the guaranty. When the indorsement was actually made upon the note, and when the agreement was made by which the plaintiff was to receive it in satisfaction of his warranty, does not appear. At least, it does not appear that such an arrangement was made on Sunday. The instrument sued upon was not a Sunday contract, but a promise to pay, lawfully made, and transferred to the plaintiff upon a valuable consideration; and the mere fact that it was handed to him on Sunday would not defeat its operation as a valid delivery. Even if this were not so, there is no showing upon this record but that such a delivery would be valid, in the State of Illinois, though made on Sunday. At the common law, this delivery would be good. Adams v. Hamell, 2 Doug. (Mich.) 74; O’Rourke v. O’Rourke, 43 Mich. 58.

The note was given to Mr. Karste by the defendants for the purpose of enabling him to obtain from the plaintiff the papers which he had in his possession, and also his opinion as to the validity of the bonds. Mr. Karste had procured these services to be rendered through his brokers in the city of Chicago. The defendants were desirous of obtaining the benefit of these services, and induced Mr. Karste to procure the documents so that they might he enabled to sell the bonds in New York, as the New York brokers agreed to take them upon the favorable opinion of the plaintiff as to their validity. Mr. Karste could not get these papers without the payment of the amount of $1,130. The defendants undertook and agreed to pay whatever Mr. Karste might be compelled to pay for the papers. The note was given for this purpose; and, to induce the plaintiff to surrender them, the letter set forth was written. "We think the contract cannot be construed as contended for by counsel for defendants. It was not an arrangement, as claimed by counsel, that the defendants would be liable only for such an amount as Karste would actually have to pay the plaintiff; for the court found that-the defendants executed the note and. left it with Karste to indemnify him, and that it was not known at the time whether any reduction could be had, and that defendants gave their note with the understanding, if any reduction could be had, and Karste did not have to pay the total amount, they were to pay only such amount as he would have to pay. In other words, the court seems to have construed the arrangement as one in which the note was given to Karste as an indemnity; and it appears by the findings, further, that, in order to get the papers, Karste had to obligate himself to pay the whole amount of $1,180. The note being in Karste’s hands as an indemnity, the plaintiff had a right to rely upon it; and, if Karste had refused to appropriate it for the purpose of paying plaintiff’s claim, there can be no doubt .the plaintiff could have compelled it. The mere fact that the court found that the plaintiff did not deliver the papers in question to the defendant Trebilcock upon any guaranty or promise made by Karste could not affect the plaintiff’s rights in the premises. The rule is stated in Curtis v. Tyler, 9 Paige, 432, as follows:

“ It is well settled that where a surety, or person standing in the situation of a surety, for the payment of a debt, receives a security for his indemnity, and to discharge such indebtedness, the principal creditor is, in equity, entitled to the full benefit of that security; and it makes no difference that such principal creditor did not act upon the credit of such security in the first instance, or even know of its existence.”

See, also, Colebrooke, Collat. Sec. § 218; New London Bank v. Lee, 11 Conn. 112 (27 Am. Dec. 713); Moses v. Murgatroyd, 1 Johns. Ch. 119 (7 Am. Dec. 478); Constant v. Matteson, 22 Ill. 546; Phillips v. Thompson, 2 Johns. Ch. 418 (7 Am. Dec. 535); Belcher v. Bank, 15 Conn. 381.

Mr. Karste having assigned the note to the plaintiff^ as he would have been compelled to do had proceedings been taken for that purpose, and there having been a valid assignment and delivery, the plaintiff had the right to insist upon the payment of the debt for which the note was given as collateral security to the undertaking of Karste. It could not be questioned that, if Karste had paid the full amount of the note in the first instance, he would have the right to recover from the defendants the amount so paid by him, and his right of action would have been upon the note.

The finding of the court below that this was not a joint undertaking of the defendants, we think, has no force, when we take into consideration what Trebilcock and McLeod did. They were jointly liable on the note to Karste, and that note was given as an indemnity to him upon his debt to the plaintiff; and, being properly assigned and delivered to the plaintiff, we think the plaintiff’s action can be maintained against them both.

The judgment of the court below must be reversed, and a judgment entered here, upon the finding, in favor of the plaintiff, for $1,130, with interest at 6 per cent, from the time of the commencement of this suit, — April 7, 1894. The plaintiff will recover costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CARMICHAEL v. LATHROP.

    1. Wills — Who are Legatees.
    One who is given by will a residuary interest in the testator’s personalty is none the less a legatee because the same clause of the will gives him a like interest in the realty.
    2. Same — Ademption oe Bequest by Conveyance oe Realty.
    A residuary bequest to a child of the testator will be held to have been adeemed pro tanto by a subsequent conveyance of real estate to the child, where it clearly appears that such was the intention of the testator.

      3. Same — Presumption as to Intention.
    Whether the presumption of an intention to adeem, ordinarily-arising from the fact of payment when made by a testator standing in loco parentis to the legatee, is applicable to the case stated, the gift and the bequest not being ejusdem generis, —quaere.

    4 Same — Revocation oe Will.
    The contention that the allowance of a conveyance of land as a satisfaction of a legacy is equivalent to a revocation of the will in part, which, under the statute, must be evidenced by the destruction of the will or the making of a new one, is without force, since the will is not overturned or revoked, but, rather, is to that extent satisfied.
    Appeal from Wayne; Donovan, J.
    Submitted January 16, 1896.
    Decided February 26, 1896.
    Bill by Marilla B. Carmichael against Ada M. Lathrop and Emily B. Lloyd to charge the defendants with the value of certain property alleged to have been conveyed to them in partial satisfaction of their legacies under the will of Henry P. Pulling, deceased. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Fraser & Gates, for complainant.

      O. Á. Kent, for defendants.

       Rehearing denied March 12, 1896.

   Hooker, J.

The will of Henry P. Pulling was executed in June, 1872. After giving his wife the use and enjoyment of all of his property during life, in lieu of dower, it provided that—

‘ ‘ Second. All the remainder of the estate of, in, and to my said property, both real and personal, subject to the said life estate of my said wife, I give, devise, and bequeath to my three daughters, Ada M. Lathrop, of Detroit, Michigan, Emily Lloyd, of Albany, New York, and Marilla B. Carmichael, of Amsterdam, New York, and to their heirs forever, share and share alike. * * *
“Third. I hereby authorize and empower my hereinafter named executors to sell and convey in fee simple absolute, in their discretion, any portion or all of my real estate, with a view of otherwise investing the proceeds thereof, or to change my present securities into real investments. But such change is to be done with the consent of my wife, and the approval of the probate court or a court of chancery. And this power and authority of so selling and conveying in fee simple absolute my real estate is hereby made notwithstanding the bequests which are given to my daughters, which bequests are hereby made subservient to said power. And I do hereby direct my executors to invest all my moneys and property, and the avails of all real estate so sold, in first-class, unincumbered real-estate mortgages, or in United States bonds or Michigan State bonds, said securities to be held and retained by them, and the income thereof paid quarter yearly, or, at the furthest, every half year, by them, to my said wife, until her decease, and on such death my estate is to be closed up and distributed as provided for in the second clause of this my will.
“And, lastly, I do hereby appoint my brother Abraham C. Pulling, of New York City» my brother-in-law William P. Bridgman, of Detroit, and my son-in-law Joseph Lathrop, of Detroit, to be the executors of this my last will and testament, hereby revoking all former wills by me made.”

Mr. Pulling died in July, 1890, and the will was probated August 19, 1890. Joseph Lathrop qualified as executor. The probate records show that at the time of the testator’s death he was seised in fee of real estate to the value of $65,000, that there was due to him upon land contracts $45,000, that he owned other personal property to the amount of $30,000, and that there were no debts or claims against the estate. Previous to the death of the testator, he conveyed to each of the defendants a parcel of real estate; that conveyed to Mrs. Lloyd being alleged to be worth $14,000, and that received by Mrs. Lathrop said to be worth $10,000. There is evidence tending to show that he intended to repair the house upon Mrs. Lathrop’s property, thereby making the gift to her equal to that of Mrs. Lloyd, and that he intended to do as well by his other daughter, the complainant; but her husband became embarrassed, and finally went to state’s prison, and she never received a home, as the others had. Her father, however, gave to her money from time to time, for her support, which aggregated $1,100. Soon after the probate of the will, litigation arose between the widow and children, which was finally adjusted, and the property was divided, the parties executing the necessary deeds and other instruments to carry it into effect. The accounts of Lathrop, the executor, were settled, and he was discharged. There is now some land held in common by the three sisters.

The' complainant files the bill in this cause, alleging that the lands conveyed by the testator to her two sisters should be treated as ademptions of their respective legacies, and that they should be required to account to her for her share thereof. She alleges that her father so intended, and that they recognized the justice thereof, and promised to see that she received the same, and, relying upon such promises, she consented to the settlement of the estate, expecting that her sisters would pay her an amount -equal to her share of said parcels so received by them. It seems tacitly agreed that this record involves only the question whether the property conveyed to Mrs. Loyd and Mrs. Lathrop before the testator’s death should be applied upon their respective interests under the will, or, in other words, as the counsel for the complainant state it, whether it can be treated as an ademption or a satisfaction pro tanto of their bequests. We are perhaps at liberty to assume from the pleadings and admitted facts that the defendants received sufficient personal property under the will to more than cover the claim of the complainant; .in other words, that they have received bequests to such amount in addition to any lands that they may have received. As to such personal property, the will made the sisters legatees, although they may have been also devisees as to the real estate, if the contention of the defendants’ counsel is correct. In other words, they are none the less legatees, taking bequests of personal property, because one and the same provision of the will gave them both personal and real property. Hence we need spend no time upon the question whether the terms of the will made them devisees, as there are legacies sufficient to support the ademption contended for. We can therefore eliminate some of the questions which arise where an attempt is made to apply the doctrine of satisfaction to a devise of real property by reason of the conveyance to the devisee of other property. The case is one where it is claimed that a gift of personal property by will may be satisfied by a conveyance of land, when such is the clear intention of the testator.

If a person should bequeath to another a sum of money, and, previous to his (the testator’s) death, should pay to such person the same amount, upon the express understanding that it was to discharge the bequest, the legacy would be thereby adeemed. But, in the absence of an apparent or expressed intention, that would not ordinarily be the effect of the payment of a sum of money to a legatee under an existing will. Generally, such payment would not affect the legacy. To this rule there is an exception, where the testator is a parent of or stands to the legatee in loco parentis J. In such case the payment would be presumed to be an ademption of the legacy. At first blush this impresses one as an unreasonable rule, as it puts the stranger legatee upon a better footing than the testator’s own son, and judges and law-writers have severely condemned the rule. See 2 Story, Eq. Jur. §§ 1110-1113. It has been said that “this rule has excited the regret and censure of more than one eminent modern judge, though it has met with approbation from other high authorities.” 2 Williams, Ex’rs (7th Am. Ed.), *1194. Story’s condemnation of it is strong, but he adds, “We must be content to declare, ‘ Ita lex scripta est.’ It is established, although it may not be entirely approved.” And Worden, J., in Weston v. Johnson, 48 Ind. 5, says, “What-, ever may be thought of the doctrine, it is thoroughly established in English and American jurisprudence.” Shudal v. Jekyll, 2 Atk. 518; Ex parte Pye, 18 Ves. 140, 2 White & T. Lead. Cas. Eq. (4th Ed.) 741; Van Houten v. Post, 33 N. J. Eq. 344. With a refinement of logic, characteristic, the early English judges held that the intention to adeem a legacy is to be presumed from the advancement of a part of the legacy, on the theory that it was the testator’s right to do so, and that he must be presumed to be the best judge of the propriety of a revocation (Ex parte Pye, 18 Ves. 140); but the rigor of this rule has been relaxed, and cannot now be said to be the law. Pym v. Lockyer, 5 Mylne & C. 29, 55; Montague v. Montague, 15 Beav. 565; 2 Williams, Ex’rs (7th Am. Ed.), *1195; Hopwood v. Hopwood, 7 H. L. Cas. 728; Wallace v. Du Bois, 65 Md. 153, 159. And see cases cited in 1 Pom. Eq. Jur. § 555, note 3. There are cogent’ reasons in support of the rule stated, — i. e., that payment to a son adeems the legacy, — which is based on the theory that such legacy is to be considered as a portion, and that the father’s natural inclination to treat his children alike renders it more probable that his payment was in the nature of an advancement than a discrimination in favor of one, oftentimes the least worthy. Double portions were considered inequitable, and upon this the doctrine rests. Suisse v. Lowther, 2 Hare, 424, 433.

While the authorities are a unit that a legacy by one in loco parentis will be adeemed by payment, in the absence of an apparent or expressed intent to the contrary, the doctrine was early restricted. Among other limitations was the rule that the presumption could not be applied to a residuary bequest, because the court would not presume that a legacy of a residue, or other indefinite amount, had been satisfied by an advancement, as the testator might be ignorant whether the benefit that he was conferring equaled that which he had already willed. Freemantle v. Bankes, 5 Ves. 85; Clendening v. Clymer, 17 Ind. 155; 2 Story, Eq. Jur. § 1115. This exception fell with the discarding of the rule that satisfaction must be in full. Pym v. Lockyer, 5 Mylne & C. 29; Montefiore v. Guedalla, 1 De Gex, F. & J. 93. Again, it was held that it conld not be applied unless the advancement was ejnsdem generis with the legacy. See 2 Story, Eq. Jur. § 1109.

Counsel for the defendants contends that “the conveyance of real estate after the making of a will is held not a satisfaction of any legacy, in whole or in part, even though that was the elear intent of the testator,” and he cites several authorities to sustain the proposition. In Arthur v. Arthur, 10 Barb. 9, it was held that “a conveyance made subsequent to a devise of land is not a revocation or satisfaction of a devise of other lands to' the grantee. But, if the conveyance be of a portion of the same land, that is a revocation pro tanto.” This was a case where the court found that the grantor intended and the grantee expected the land conveyed would be in lieu of the grantee’s share under the will. It was said that to hold that the conveyance was a satisfaction was to hold that the will might be revoked by implication, which could not be tolerated under the statute of frauds. This case contains an elaborate discussion of the subject, and cites many of the earlier authorities bearing upon it.

The court of appeals considered the subject in Burnham v. Comfort, 108 N. Y. 535 (2 Am. St. Rep. 462). In this case it was claimed that a devise of real property was satisfied by the payment of money, on the express understanding, evidenced by the receipt of the devisee, that it was received as a part of her father’s estate. The court said that, to sustain such claim, they must hold that it operated as a revocation of the will, which would contravene “the spirit, if not the letter,” of the statute of frauds, and that the proposition “lacked support in principle as well as authority.” The opinion then asserts that “the rule of ademption is predicable of legacies of personal estate, and is not applicable to devises of realty.” After discussing the question of intention, and intimating that, whilo a presumption of intention that the gift should be in satisfaction would exist if the case were one involving a legacy, it would not in case of a devise, it proceeds to show that the statute of frauds, which extends to wills, was an unsurmountable barrier to the application of the rule contended for, as to devises. Two members of the court dissented.

The supreme court of South Carolina, in the case of Allen v. Allen, 13 S. C. 513 (36 Am. Rep. 716), had occasion to consider a case where the legatees were also devisees, as in the present case. It was held that payments of money were to be considered as made in satisfaction of the legacies, but not the devises. The court said:

“It would seem that, upon the same principles, devises of real estate ought likewise to be adeemed (if such a term can, with any propriety, be applied to devises) by subsequent payments to the devisees with the intention of producing that result; but it is conceded that the doctrine of ademption has never been applied to devises of real estate, and, in the absence of any authority, we do not feel justified in disregarding the well-established line which has for ages been drawn between real and personal estate, oven though we may be thereby compelled to thwart the obvious intention of the testator, and disturb that distribution of his property which he thought was ■proper and just to his descendants. For, while the intention of the testator is the cardinal rule of construction of a will, yet such intention cannot be given effect where it is in conflict with the rules of law. A devise of real estate cannot, like a pecuniary legacy, be affected by any subsequent transactions between the testator and the devisee, but must stand until it is revoked or altered in the manner prescribed by law.”

Attention is also called to the case of Swails v. Swails, 98 Ind. 511. In this case land was devised as follows: 88 acres to J; 36 acres to N. Subsequently the testator conveyed portions of the same land as follows, viz.: 60 acres to J ., the son; and 40 acres to N., a grandson. It was held that the deeds did not revoke the devise of the 34 acres to N., and that the doctrine of ademption does not apply to specific devises of real estate, nor where the devisor does not stand in loco parentis. The case followed Weston v. Johnson, 48 Ind, 1, where it was held that the doctrine of ademption of legacies by advancement to the legatee by the testator in his lifetime has no application to devises of real estate. Again, in Campbell v. Martin, 87 Ind. 577, it is said, “But we know of no reason whatever for the extension of this doctrine, and making it applicable to devises of real estate.”

In Marshall v. Rench, 3 Del. Ch. 239, the court admits that in some cases a conveyance to a devisee after the making of the will would operate in like manner as the ademption of a legacy, — e. g., where the conveyance to the devisee is of the same land, — because “by such a conveyance the testator executes his devise, precisely as the settlement of a portion on a legatee is an ademption of the legacy.” The court adds that “the conveyance to a devisee of lands other than those devised, or of an interest in lands different from that devised, has never been held an implied revocation of the devise.” The authorities cited in support of this are all ancient, except Arthur v. Arthur, hereinbefore discussed.

We mention at this point the fact that all of these were cases where the attack was made upon a devise, merely, except the South Carolina case, and in that case the claim of ademption was sustained as to the legacies.

2 Woerner, Adm’n, p. 978, is cited in support of defendants’ contention. This author dismisses the subject with the statement that—

“Specific legacies are said not to be affected by the subsequent advancement of a portion, because the gift of specific articles of personal property by a father to his child is not presumed to he intended as a portion. And, for the same reason, real estate devised is held not to come within the rule; but this exception is repudiated in Virginia, and unfavorably commented on elsewhere.” See Hansbrough v. Hooe, 12 Leigh, 316 (37 Am. Dec. 659).

The authorities cited have been commented on at length for the purpose of showing that they differ from the case before us, inasmuch as they were cases where it was sought to treat conveyances as satisfactions of devises. This is not a case where an attempt is made to deprive a devisee of title to land willed to him, but it is claimed that the'presumption that a bequest to a son is satisfied pro tanto by a gift is not to be applied where the gift is of land instead of money, or other personal property ejusdem generis.

In Richards v. Humphreys, 15 Pick. 140, will be found the following dictum of Shaw, C. J.:

“We have seen that ademption depends solely upon the will of the testator, and not at all upon the ability of the party receiving to give a valid discharge. Had the money been paid to trustees or others for her benefit, without any act or consent of hers, if given expressly in lieu or in satisfaction of such legacy to her, it would have operated as an ademption. Had he purchased a house or other property in her name, and for her benefit, with the like intent and purpose expressed, it would have had the same effect.”

It is apparent that the law looks upon a legacy to a son as a setting off of his portion. Also, it is plain that a subsequent gift, unless it be of real estate, is presumed to be in satisfaction pro tanto of the legacy. It is also settled that whether the gift is to be considered an ademption of a legacy must depend upon the intent of the testator alone. A gift of personal property to a son may be shown not to have been so intended, but the burden is upon the legatee. Ford v. Tynte, 2 Hem. & M. 324. A gift to a stranger may be shown to have been intended as an ademption, but here the presumption is the other way, the burden being upon the administrator to show such intent.

There can be no doubt that a testator’s conveyance of real property may constitute an ademption, if he so intends it, e. g., where he expresses the intent in the conveyance, and possibly in other ways. If so, the only significance of the doctrine ejusdem generis is its effect upon the presumption. The doctrine that the property conveyed must be ejusdem, generis appears to be the only ground upon which it can be said that the conveyance in this case should not be treated as satisfaction pro tanto. It has been said in early cases that “when the gift by will and the portion aré not ejusdem generis, the presumption will be repelled. Thus, land will not be presumed to be intended as a satisfaction for money, nor money for land.” Bellasis v. Uthwatt, 1 Atk. 428; Goodfellow v. Burchett, 2 Vern. 298; Ray v. Stanhope, 2 Ch. R. 159; Saville v. Saville, 2 Atk. 458; Grave v. Earl of Salisbury, 1 Brown, Ch. 425. But see Bengough v. Walker, 15 Ves. 507. The courts have not accepted without protest the proposition that the application of the presumption arising from the relation of parent and child should depend upon the similarity of the property willed and donated, and it has been asked “why, if a gift of a thousand dollars will satisfy a legacy of that amount, it should not equally be satisfied by a donation of lands of equal value.” And see Pym v. Lockyer, 5 Mylne & C. 44. But all agree that ademption is a matter of intent. In Jones v. Mason, 5 Rand. (Va.) 577, the court said, “This whole class of cases depends upon the intention;” citing Hoskins v. Hoskins, Prec. Ch. 263, and Chapman v. Salt, 2 Vern. 646. Again, it was said: “It is laid down generally that a residuary legacy will not adeem a portion due under a settlement, because it is entirely uncertain what that legacy may be. But this rule, like the rest, yields to intention;” citing Rickman v. Morgan, 1 Brown, Ch. 63, 2 Brown, Ch. 394. In Bengough v. Walker, 15 Ves. 507, it was held that a bequest of a share in powder works, charged with an annuity, was a ^satisfaction of a portion of £2,000, when it was so intended. See, also, Gill’s Estate, Pars. Eq. Cas. 139. It is forcefully argued that these cases make obsolete the doctrine of ejusdem generis. Whether they do or not, they certainly show that it must yield to the testator’s intent. We cannot, therefore, accede to the proposition of counsel for the defendants “that conveyance of real estate will not be held a satisfaction of any legacy, in whole or in part, even though the intent of the testator is clear.”

We think the testimony shows the testator’s intent. There may be testimony in the record that was incompetent to prove it, but there is sufficient that was competent. The widow was conversant with the entire transaction, and the defendants’ statements are admissions of their knowledge of such intentions.

It is contended that “the allowance of a conveyance of property as a satisfaction of a devise or legacy would be equivalent to a revocation of the will in part, and it would have to be proven in the manner provided by our statute for the revocation of wills, that is, by the destruction of the will, or the making of a new will.” 2 How. Stat. § 5793; Lansing v. Haynes, 95 Mich. 16. We think it should not be called a revocation of the will.' The defendants’ bequests are permitted to stand unquestioned, and matter in discharge of the obligation (i. e., payment) is shown. The will is not overturned or revoked. It is satisfied.

We think the prayer of the bill should be granted, and the record should be remanded to the circuit court for the county of Wayne, in chancery, for further proceedings. Decreed accordingly.

The other Justices concurred.


author: Long, C. J.

text:
    BROWN v. NEIDHOLD.

    Novation — Evidence.
    A mortgagor of chattels,'having effected a sale of the mortgaged property for an amount exceeding his debt to the mortgagee, executed a bill of sale to the latter, upon an understanding that the purchaser should pay the mortgagee for the property in installments, and should become the absolute owner upon full payment of the purchase price. A creditor of the mortgagor brought an action against the mortgagee, contending that, by an arrangement made at the same time between plaintiff, defendant, and the mortgagor, the defendant assumed the mortgagor’s debt to the plaintiff, who thereupon released the mortgagor from further liability; and evidence was introduced in support of that contention. It appeared, however, that, by the terms of the arrangement, the defendant was to apply the first five payments made by the purchaser upon the indebtedness to himself, after which the amounts paid were to be applied upon the plaintiff’s claim. After making two payments, the purchaser surrendered the property to the defendant. Held, that the question whether the arrangement between the parties amounted to a novation was properly submitted to the jury.
    Error to Gogebic; Haire, J.
    Submitted January 29, 1896.
    Decided February 26, 1896.

      Assumpsit by Archibald Brown and Frederick Otto against Charles Neidhold and Edward Neidhold upon an indebtedness alleged to have been assumed by defendants. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      Charles E. Miller, for appellants.

      8. 8. Cooper, for appellees.

       Rehearing denied March 24, 1896.

   Long, C. J.

In the year 1893 one George Leanna was the owner of a livery outfit. There was a mortgage upon it to the defendants for $950. During that year one Thomas Desonia desired to purchase the livery stock from Leanna. He and Leanna and the defendants finally arranged that Desonia might purchase from Leanna, but that Leanna should give a bill of sale of the property to the defendants, and that Desonia should pay the defendants for it in'certain monthly payments; and, when he had paid the amount of Leanna’s indebtedness to the defendants, he was then to have absolute title. The bill of sale was made for the sum of $1,400. The plaintiffs claim that, according to the plan first proposed, Desonia was to pay $200 in cash, with which Leanna was to pay his outside bills, and Desonia was to give the defendants a mortgage or bill of sale for $1,200 to secure their claims against Leanna; that it was then arranged that the bill of sale should be given by Leanna to the defendants, and payment should be made to them, and that they should deduct from the $1,400 their own bill of $950, and that, instead of paying the balance to Leanna, they (the defendants) should assume the payment of the bills which Leanna was owing at the time, including the bills of Joseph Vogtlin and John Wilson. Before this suit was brought, Vogtlin and Wilson assigned their claims to the plaintiffs. The amount due the plaintiffs from Leanna was $92.65; and due to Vogtlin, $42.20. The matter of Wilson is unimportant, as the court below directed the jury that no verdict could be rendered on that in favor of the plaintiffs. On the trial it was contended that the arrangements between the parties amounted to a novation. The plaintiffs had judgment, and defendants bring error.

It is conceded by counsel in this court that the plaintiffs had a right to recover the $42.20 upon the claim assigned by Vogtlin, as there was a novation in reference to that; but defendants’ contention is that the evidence on the trial'does not support the claim of plaintiffs that there was an arrangement which amounted to a novation in reference to their claim. It appears that the arrangement was between the plaintiffs and defendants and Leanna that Desonia should first pay and reduce the defendants’ claim to $700, and that the payments thereafter made by Desonia should apply upon the plaintiffs’ claim until that was paid. It was understood that, as Desonia was paying only $50 per month, it might take five months before anything would be paid upon the plaintiffs’ claim; but Leanna testified that Edward Neidhold said they would take care of them (speaking of the claims of plaintiffs) and the Vogtlin claim; and plaintiff Otto testified: “Leanna asked me if I and him was square in that bill, and Mr. Neidhold accepted the bill and promised to pay it; and I understood it would release Mr. Leanna, and since that time I have not looked to Leanna for the bill. I have looked wholly to Neidhold Bros.” Desonia paid something over $100 on defendants’ claim, and then surrendered the whole property to them.

We think the court was right in submitting the question to the jury as to whether the arrangement between the parties amounted to a novation. While the defendants did not receive from Desonia the amount he was to pay in cash, yet they did receive all of the property to which all of the parties looked for the payment of their respective claims.

The judgment must be affirmed.

The other Justices concurred.


author: Hooker, J.'

text:
    STERNER v. HAAS.
    1. Mechanics’ Liens — Construction oe Statute.
    The mechanics’ lien law is in derogation of the common law, and all rights under it are statutory, and cannot be extended beyond the provisions of the statute.
    2. Same — Lien oe Contractor — Notice to Owner.
    By the express terms of section 4 of the law (Act No. 179, Pub. Acts 1891), a contractor must furnish a sworn statement to the owner, giving the names of all laborers and material men under his contract, with the amount due each, before he can maintain a suit to enforce a lien.
    3. Same — Waiver.
    A failure to comply with this requirement of the statute is not excused by the fact that all material and labor has been paid for, and that such statement has never been requested by the owner. If a waiver can ever aid the contractor, as against this express provision, — a point not determined, — it can only be under circumstances amounting to an estoppel.
    4. Same — Who is a Contractor.
    A plumber and gas-fitter, who furnishes the necessary materials and labor for plumbing, roofing, steam heating, and electric wiring a building, is a contractor, within the meaning of the statute, and not a material man, although an aggregate price for the work and material furnished was not agreed upon.
    Appeal from Genesee; Wisner, J.
    Submitted January 17, 1896.
    Decided February 26, 1896.
    Bill by Edwin Sterner against Catherine Haas and others to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Durand & Carton, for complainant.

      Ed. 8. Lee and Kohler & Bentley, for defehdants.
   Hooker, J.'

The complainant was engaged in the business of plumbing and gas-fitting, and did the work of steam heating, plumbing, roofing, electric wiring, etc., upon the residence of the defendants. Subsequently he filed his statement of lien, for a balance of several hundred dollars, and the bill in this cause was filed to enforce it. The trial court determined that he was a contractor, and as such obliged to give to the owner a statement under oath containing the names of all laborers who performed work upon the premises, and material men who furnished materials therefor, with the amounts due them, respectively, if anything, under section 4 of Act No. 179, Pub. Acts 1891.

The lien law is in derogation of the common law, and all rights under it are statutory, and cannot be extended beyond the provisions of the statute. Wagar v. Briscoe, 38 Mich. 587; Peninsular General Electric Co. v. Norris, 100 Mich. 502. Section 4 expressly provides that the contractor shall have no right of action until such statement is furnished. In the face of this express provision, we are unable to say that the proceeding can be sustained without compliance with it, when the lienor is a contractor. It is contended that the failure to furnish this statement should not be held fatal in this case, inasmuch as all material and labor is shown to have been paid for, and the defendants have never requested such statement; 'but if a waiver can ever aid a complainant, against the express condition upon which this section permits a suit to be brought to enforce the lien (which we do not determine), it can only be under circumstances amounting to an estoppel. It then becomes necessary to ascertain whether the complainant was a contractor, or merely a material man, and therefore not required to serve the statement mentioned in section 4. See Avery v. Ionia Co. Supervisors, 71 Mich. 538; Staffon v. Lyon, 104 Mich. 249.

Counsel for the complainant contend that their client was a material man, and not a contractor. They say that the testimony shows that he did not make a contract to do this work, but that the articles furnished were purchased by the defendants as wanted, and at the time of such purchases it was arranged with the complainant to place the same in the building. An examination of the record shows that the statement of the lien filed says that the lienor “furnished certain labor and materials in and for building, etc., a dwelling house, in pursuance of a certain contract.” The itemized statement accompanying the claim of hen contains innumerable items of material and labor, interspersed, at various dates, including tin, lead pipe, and the various fittings used therewith, and the labor of cartmen, tinners, plumbers, gas-fitters, steam-fitters, helpers, etc. The inference that there was an understanding that the complainant should do the necessary work, of the various kinds, seems unavoidable, and the fact that the parties did not agree upon an aggregate price does not preclude contract relations within the terms of this statute. It was not a case where the complainant merely sold a marketable commodity, which he kept on sale, or manufactured to order to be used by others; but it involved the furnishing of the necessary materials, and combining them in a structure like a roof, a steam-heating apparatus, a water system,— in short, a dwelling house,- — all requiring skilled workmen, which the complainant provided and furnished upon his own responsibility and credit. See People v. Powers, ante, 339. As this makes the complainant a contractor, within the statute, we have no alternative but to affirm the decree of the circuit judge, with costs.

Ordered accordingly.

The other Justices concurred.


author: Montgomery, J.

text:
    MACOMBER v. DETROIT, LANSING & NORTHERN RAILROAD CO.
    1. Sale — Standing Timber — Limitation of Time for Removal.
    Under a contract for the sale of all of the timber on a tract of land, to be removed by the vendee within a specified time from the date of the contract, the title to the timber remaining uncut at the expiration of the time limited reverts to the owner of the realty.
    2. Same — Removal of Timber — What Constitutes.
    The severance of the timber from the soil, and the cutting of the same into sawlogs, is a removal of the timber, within the terms of the contract.
    Error to Montcalm; Davis, J.
    Submitted January 15, 1896.
    Decided March 3, 1896.
    Replevin by Allen Macomber and another against the Detroit, Lansing & Northern Railroad Company. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      McGarry & Nichols (George A. Farr, of counsel), for appellant.

      Whittlesey & Kennedy (Vernon JET. Smith, of counsel), for appellees.
   Montgomery, J.

On the 22d day of July, 1892, the Cutler & Savage Lumber Company executed a writing to one John S. Wiedman, containing the following provisions :

“The Cutler & Savage Lumber Company has this day sold to J. S. Wiedman, of Lake View, Michigan, all of the timber on the entire section twenty-nine, in town thirteen north, of range seven west. The said J. S. Wiedman is to remove the timber in two years from this date; and, in case the said Cutler & Savage Lumber Company sell any of said land, the said J. S. Wiedman is to remove the timber from the land sold at once, on being notified of the said sale.”

On the 4th of November, 1892, Wiedman sold the same timber to plaintiffs, and the lumber company afterwards sold the land to one Fred Bissell. No notice of this sale or request for immediate removal was made. Plaintiffs, within the two years, cut the pine in question into logs, but had not removed the logs from the premises within the two years. Bissell removed them, and defendant represents his title. The question is whether failure to remove the logs after they were cut, and within the two years named in the contract, forfeited the title.

Contracts containing similar provisions have been construed in the courts in a number of the States, and the weight of authority supports the defendant’s contention that, as to timber remaining uncut at the expiration of the time limited under a contract such as this, the title reverts to the owner of the realty. See Pease v. Gibson, 6 Me. 84; Howard v. Lincoln, 13 Me. 123; Saltonstall v. Little, 90 Pa. St. 422 (35 Am. Rep. 683); Utley v. Lumber Co., 59 Mich. 263; Haskell v. Ayres, 32 Mich. 93, 35 Mich. 89; Gamble v. Gates, 92 Mich. 510. None of the Michigan cases directly determine the status of timber cut and manufactured into logs during the time limited by such a contract as that in question, but not removed until later. In Gamble v. Gates the contract covered all the timber standing, lying, or being on the land. It was provided expressly that whatever of said timber should remain on said lands, after the limit afforded, should revert back, and become the property of the first party. The case was determined by the terms of the contract. In Golden v. Glock, 57 Wis. 118 (46 Am. Rep. 32), a contract similar to that in question was held-to convey title to only such timber as was removed within the time limited, but considered all such timber as was manufactured into stave bolts as removed. In Hicks v. Smith, 77 Wis. 146, the same doctrine was reaffirmed bjr the same court. A contract not distinguishable from the one herein involved was considered, and it was held that, as to trees cut into logs, the severance from the realty-had become complete. The property had become personalty, and its character so essentially changed by such manufacture that it was, in effect, removed from the premises, within the meaning of the deed.

In Williams v. Flood, 63 Mich. 493, Mr. Justice Campbell, speaking of such a contract as the present, said:

“ It is not very important to discuss the exact nature of plaintiff’s rights under the written contract. Whatever they were, they included an absolute sale of all the timber described, subject only to such qualifications of the right of removal as the contract mentions. At most, this condition would only operate by way of forfeiture. The timber had all been paid for, and all belonged to tha plaintiff, unless lost by forfeiture for non-removal.”

The same can he said of the present case, and, if we apply the rule that forfeitures are not favored (Miller v. Havens, 51 Mich. 485), the rule of the Wisconsin court seems consistent with reason and justice. It is no stretch to treat the severance of the timber from the soil, and its manufacture into logs, as a removal, within the terms of the provision for forfeiture. The case of Boisaubin v. Reed, 1 Abb. Dec. 161, is opposed to the Wisconsin cases cited; but we think the doctrine of the Wisconsin cases more just, and aro disposed to adopt it.

Judgment affirmed.

The other Justices concurred.


text:
    CITY OF DETROIT v. BOARD OF WATER COMMISSIONERS.
    1. Detroit House of Correction— Character and Control of.
    While the legislature has required the city of Detroit to pay the expenses of the Detroit House of Correction to the extent that they shall be found to exceed its earnings, the management and appropriations of said institution are not within the control of the common council, but are confided to officers provided for by the law, except as the assent and concurrence of the council is necessary to extraordinary appropriations.
    2. Same — Water Supply — Duty of Commissioners.
    Whatever may be the duty of the board of water commissioners of the city of Detroit as to furnishing water for the general purposes of the city, it is under no obligation to furnish it gratuitously to the Detroit House of Correction.

      Certiorari to Wayne; Lillibridge, J.
    Submitted January 28, 1896.
    Decided March 3, 1896.

      Mandamus by the city of Detroit to compel the board of water commissioners of said city to furnish water, free of charge, to the Detroit House of Correction. From an order granting the writ, respondent brings certiorari.

    Reversed.

      John J. Speed, for relator.

      Henry M. Duffield, for respondent.
   Hooker, J.

The city of Detroit, through its corporation counsel, asks a mandamus to compel the board of water commissioners to furnish, free of charge, water to the Detroit House of Correction. The writ was granted by the circuit court, and the respondent has brought the proceeding to this court by certiorari.

The Detroit House of Correction 'appears to have been built by the city under a general power, given to the common council, “to establish and build jails, workhouses, and houses of correction for the confinement of offenders; to erect, and provide for erecting, the necessary buildings therefor, and control and regulate the same; to appoint all necessary officers for -taking charge of the same, and of persons confined therein; to prescribe their .powers and duties, and provide for their removal from office, and the filling of vacancies.” Sess. Laws 1857, p. 106, subd. 60. Other sections of the charter provide for the confinement of state offenders, at the expense of the State and the various counties, and subsequent statutes took away much of the control originally given to the council, and lodged it elsewhere. See 2 How. Stat. chap. 344.

The status of this institution has been before the courts, and in the case of City of Detroit v. Laughna, 34 Mich. 402, this court said:

“The city, indeed, built the prison, and has an interest in its finances, as it is responsible to a certain degree for its expenses; but, after the house was built;under provisions of the city charter, which may or may not have been legally sufficient to provide for its future management, the legislature, either discovering defects, or, more probably, recognizing the manifest impropriety of allowing a prison to be managed by a city council, passed a statute which removed any doubt concerning the legal position of that establishment. On the 15th of March, 1861, an act was passed, entitled ‘An act to establish the Detroit House of Correction and authorize the confinement of convicted persons therein.’ By this act, the government of the prison was put under the control of a board of inspectors, of whom three were to be appointed by the common council, on the nomination of the mayor, and, in addition to these, the mayor and the chairman of the board of state prison inspectors were made ex officio members. The regulation and discipline were to be under rules adopted by the board, leaving the council no voice except concerning the[ approval of rules relating to salaries and compensation of officers and employés. There is no very important power which the council can exercise without the concurrence of the inspectors, except in the selection of the superintendent, whose powers and duties are all governed by the act of 1861 and the general laws of the State. Any interference whatever by the common council, either in the selection of inferior officers or in the internal management of the prison, would be unlawful and nugatory. While it has, at various times, in legal experience, been customary to allow, and sometimes to compel, prisons to be built and maintained by larger or smaller municipal corporations, yet all criminal prisons are and must be public, and not private, places of detention, and no imprisonment can be lawful that is not authorized by public laws. In England, it is settled that all prisons, by whomsoever kept, are the king’s prisons (2 Inst. 100, 589; Ex parte Evans, 8 Term R. 172), and no new prison can be erected except by act of parliament.”

We find, therefore, that, while the legislature has required the city to pay the expenses of the house of correction to the- extent that they shall be found to exceed the earnings, its management and its appropriations are not within the control of the council, these being confided to officers provided for by the law, except as the assent and concurrence of the council is necessary to extraordinary appropriations, etc.

The board of water commissioners is a corporation, created in the year 1853, by act of the legislature, and given the charge of the waterworks, which it is authorized to manage and extend, and to regulate, and fix and collect, water rates from, the owner or occupant of each house or other building having or using water. Laws 1853, p. 180; 3 Laws 1873, p. 137. These water rates seem to be the only source of revenue provided for the running expenses of the waterworks. Jones v. Water Commissioners, 34 Mich. 273. Extensions, etc., are provided for from other sources, and fire hydrants may be ordered by the fire commissioners, in which case they must be paid for from the funds of the fire commission. If required by the council, it must pay the expense.

It is now contended that the house of correction belongs to the city, and is a public institution, and, as such, is entitled to be supplied with water free of charge. It is a .significant fact that those having in charge the management of the house of correction do not make this application, and that the city is the moving party. As already shown, the city must provide for the expenses of this institution, so far as they are not covered by the earnings. Such expense, then, should be a burden upon the whole body of taxpayers of the city. If the water must be paid for, it must come out of the general tax, unless it can be paid from the earnings. On the other hand, if the institution is entitled, to have the water furnished gratuitously by the commissioners, the burden is not borne by the city at large, but by those only who are private consumers of water. The fund derived from water rates is depleted to that extent, and it might easily be so seriously affected as to require a raising of the rates. If, as contended, the water commissioners cannot refuse to furnish water gratuitously to this institution, they have practically no alternative but to furnish what is required, nor have they any means of preventing wastefulness, or the extension of its use to many purposes to which steam or other power is now applied. The common council would be powerless to control it. The house of correction should be supported from its own fund, and if, as is reported, it produces a handsome balance over expenditures each year, it should not be permitted to increase such amount by compelling the water board to use a part of its income from water rates; and we can see no difference between requiring the water board to pay a sum of money directly to the management ■of the institution, and expending it for water to be furnished.

It is said that there is no merit in the defense, that it is merely a matter of bookkeeping, and that what is paid for water is taken from one city pocket and put into another ; but we have shown that this is not true, inasmuch as one fund must be furnished by the city at large, or, possibly, by the county of Wayne and other counties, or the State at large, while the other is made up by a comparatively small portion of the inhabitants of the city, i. e., those who pay water rates. Again, if this were a mere matter of bookkeeping in the sense contended for, its natural tendency would be towards an economical use of water by the institution. It is probable that the board of water commissioners was created for the frugal and economical management of the waterworks, and the conduct of the business connected therewith, and that it could not have been intended that it should be at the mercy of every institution that may be called public. Whatever may be its duty as to furnishing water for the general purposes of the city, we think that it is not under an obligation to furnish it to this institution without pay.

We think the order of the circuit court granting the writ should be reversed'.

The other Justices concurred.


author: Montgomeby, J.

text:
    REED v. REED.
    Assumpsit — When Lies.
    Where land is conveyed in consideration of a certain sum in cash and all of the notes which the grantor has given to the grantee, and the latter, without the knowledge of the grantor, fails to turn over one of such notes, he having transferred the same to a stranger, the grantor, upon being compelled to pay the note, can maintain an action of assumpsit against the grantee to recover the amount so paid.
    Error to Wayne; Frazer, J.
    Submitted January 14, 1896.
    Decided March 3, 1896.

      Assumpsit by Warren P. Reed against Alfred Reed for the breach of a special contract. From á judgment for plaintiff, defendant brings error.
    Affirmed.

      Edwin Henderson, for appellant.

      James H. Pound, for appellee.
   Montgomeby, J.

Plaintiff became indebted to the defendant in the amount of about $5,000, represented by notes which had been given by plaintiff to defendant. Plaintiff had no memorandum of these notes, and, as the jury found, did not know the exact amount. Plaintiff owned two store buildings in the city of Detroit, and he made an agreement with defendant to sell and convey to him these store buildings in consideration of $3,500 cash and all the notes which he (plaintiff) had given to defendant. All the notes were delivered by defendant except one, which had previously been transferred to a stranger, plaintiff not being aware of this, and defendant representing, and plaintiff believing, that the notes which were delivered were all the notes which he had executed to defendant. Plaintiff, having subsequently been charged upon this outstanding note, brought this action, and recovered damages for a breach of the contract.

Defendant brings error, and his contentions can be reduced to the single proposition that plaintiff cannot affirm the settlement, and yet recover for the fraud of defendant in failing to deliver the note in question. We think the defendant misunderstands, or at best fails to answer, the theory of plaintiff. This is not an attempt to repudiate a settlement. Plaintiff sold certain property to defendant, for which he agreed to pay a certain sum in cash and certain notes, which the jury found included the note in question. He paid the cash and part of the notes, but failed to deliver one of them, and plaintiff, so far from repudiating the agreement, relies upon it, and bases his action upon it. The case is like Lampson v. Cummings, 52 Mich. 491.

Judgment affirmed.

The other Justices concurred.


author: Grant, J.

text:
    LANDYSKOWSKI v. LARK.
    1. Contracts — Personal Liability of Agent.
    Agents may bind themselves by their contracts, notwithstanding it be known to both parties that the contract is not for their benefit directly, but is for the benefit of another; and, having done so, they cannot evade their clearly-expressed liability under the contract by showing that they were agents.
    2. Same.
    A contract for the construction of parochial buildings, describing the parties of the first part as the trustees and building committee of the church, and as acting by authority of the bishop of the diocese, whereby they agree, for themselves, their heirs, executors, and administrators, to pay the contract price, signed by them as individuals, except that one adds to his signature the title “president” and another the title “secretary,” is-binding upon them personally.
    3. Notice of Trial — Sufficiency.
    Service of notice of trial upon an attorney who has appeared for all of the defendants, and pleaded the general issue, is good as against all, in the absence of any order of substitution, although in the meantime two of the defendants have appeared by another attorney, and filed a like plea.
    Error to Wayne; Donovan, J.
    Submitted January 17, 1896.
    Decided March 3, 1896.

      Assumpsit by Martin Landyskowski against Frank Lark and others for the breach of a building contract. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    June 16, 1890, the plaintiff entered into a contract with the defendants for the construction of a new schoolhouse, chapel, and parochial residence for the new parish of St. Francis, in the city of Detroit. That part of the contract which determines the capacity in which the defendants executed it, namely, whether as agents merely or as principals, is as follows:
    “Agreement for building, made this 16th day of June, 1890, in the city of Detroit, Wayne county, State of Michigan, by and between the trustees and building committee of St. Francis’ R. C. Church, Joseph Malicki, president, Frank Lark, secretary, Joseph Bilski, Leon Zwiernikowski, Robert Stubbe, members, all of the city of Detroit, by authority of the Right Rev. John S. Foley, bishop of the diocese of Detroit, parties of the first part, and the mason, Martin Landyskowski, of the same place, party of the second part, as follows.”
    The contract further provides that—
    “The parties of the first part herewith promise and agree, for themselves, their heirs, executors, and administrators, to pay the said party of the second part, his heirs, executors, and administrators,” etc.
    The plaintiff erected the schoolhouse and chapel, for which he was paid. He had drawn some material for the erection of the parochial residence. A dispute arose among the church authorities, and the defendants appear to have been deposed from their authority as trustees. While the record is not very satisfactory, we think a fair conclusion is that a second committee had assumed to act. Plaintiff was prevented' from carrying out his contract, and instructed to draw his material away, which he did. He instituted this suit to recover damages for breach of contract, for which he recovered a verdict and judgment for $662.30. Upon the trial the court held that Bishop Foley was not a party to the contract, and could not be held liable, although the title to the land upon which the buildings were to be erected was in him. Plaintiff thereupon discontinued the suit against Bishop Foley, and proceeded against the other defendants.

      Peter E. Park, for appellants.
   Grant, J.

(after stating'the facts). 1. It is contended on behalf of the defendants that they were simply agents, acting for Bishop Foley, their principal, and therefore they cannot be held liable. We are not favored with any brief on the part of the appellee, but infer that his position is that the contract was a personal one with the defendants, and that there was no intention to bind others than themselves. We think it clear that the defendants made themselves personally liable upon this contract. We are not concerned with the reasons for not making the bishop a party to the contract. The contract describes the defendants as personally bound. It also makes it binding upon their heirs, executors, and administrators. They sign it as individuals, except that one adds to his signature the title “president” and another the title “secretary.” Agents may bind themselves by their contracts, notwithstanding it be known to both parties it is not for their benefit directly, but is for the benefit of another. Having done so, they cannot evade their clearly-expressed liability under the contract by showing that they were agents. The defendants assumed control of the church property and of the contracts for building. Plaintiff dealt with them as principals. It was their duty to see that he had the opportunity to perform. Plaintiff made every effort to perforin, and, after he was prevented, to obtain redress. They are not in position to assert that other church authorities interfered, and therefore they are not liable. It is a fair inference that the very purpose of making the contract with them as individuals rather than as a church corporation was to avoid just such disputes. We think the case was properly submitted to the jury.

2. It is insisted that, as to two of the defendants, a trial was had without any notice to them. This was brought to the attention of the court, after judgment, by affidavits, and a motion to set aside the judgment, which motion was denied. It appears from this record that Keena & Lightner, two prominent and reputable attorneys, appeared for all the defendants, and pleaded the general issue. Subsequently two of the defendants appeared by other attorneys, and pleaded the general issue. There was no order of substitution. Under these circumstances, service of notice of trial upon Keena & Lightner was sufficient.

The judgment is affirmed.

The other Justices concurred.


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    MOSHER v. BAY CIRCUIT JUDGE.
    1. Constitutional Law — -Obligation of Contracts — Attachment for Debt not Due.
    Act No. 149, Pub. Acts 1889 (8 How. Stat. § 8016a), authorizing the commencement of suit by attachment before the maturity of the debt, is not in conflict with section 48, art. 4, of the Constitution, which provides that the legislature shall pass no bill of attainder, ex post facto law, or law impairing the obligation of contracts.
    2. Attachment for Debt not Due — Sufficiency of Affidavit-
    The statute authorizes the issuance of the writ upon an affidavit complying with the requirements of the general statute, except that, instead of stating the indebtedness to be due, it shall set- up facts sufficient to satisfy the circuit judge of the propriety of allowing the writ to issue before the debt is due. Held, that, as under the general statute, the writ may issue where the requisite facts, except the fact of indebtedness, are stated on information and belief.
    3. Same.
    Evidence of circumstances indicating that the debtor’s property is being disposed of, or seized by others, and that there is danger that the creditor may lose his claim, is sufficient to justify the allowance of the writ before the maturity of the debt.
    4. Same — Parties—Negotiable Paper.
    An affidavit for attachment under the statute cited showed that the debt was evidenced by copartnership notes indorsed by the payee, that the notes were made and negotiated upon a joint venture, and that the indorser himself negotiated them fraudulently. Held, that the affidavit was sufficient to au- ■ thorize an attachment against the indorser as well as the makers, even though presentation and notice of nonpayment might be necessary to hold th'e indorser before judgment taken, — a point not decided.

      Mandamus by Alfred Mosher, Jr., to compel Andrew C. Maxwell, circuit judge of Bay county, to quash a writ of attachment issued against relator and others at the suit of the First National Exchange Bank of Port Huron.
    Submitted January 28, 1896.
    Writ denied March 3, 1896.

      jiheodore F. Shepard (McDonell & Hall, of counsel), for relator.

      T. A. E. & J. C. Weadoclc (Atkinson & Wolcott, of counsel), for respondent.
   Hooker, J.

An attachment was issued upon a claim, not due, under Act No. 149, Pub. Acts 1889 (3 How. Stat. § 8016a). The circuit judge declined to quash the proceedings, and a mandamus is asked to compel such action. The return shows that the only question presented in the circuit court was the constitutionality of the law, and therefore that is the only question for us to consider. We find nothing in the act which contravenes article 4, § 43, of the Constitution, which is the constitutional provision alleged to be violated by this law. Such laws have been held valid and are in force in many of the States.

It is further contended that the affidavits for the writ of attachment were insufficient to support such writ. If that question can be reviewed upon this proceeding, it must be because the writ of attachment is void for want of a sufficient foundation. The statute (Act No. 149, Pub. Acts 1889) does not forbid the issue of writs of attachment upon the same kinds of affidavits as were previously sufficient, viz., where the requisite facts, except the fact of indebtedness, are shown upon information and belief. It attempts to enlarge the remedy by applying it to debts not yet due, and requires the affidavit to state additional and other facts, sufficient to satisfy the circuit judge of the propriety of allowing the writ to issue before the debt is due. The statute is silent as to the nature of the reasons upon which he may act, but we are of the opinion that evidence of circumstances that should indicate that the defendant’s property was being disposed of or seized by others, and that there was danger that plaintiff might lose his claim, would be quite sufficient. In this case the affidavit alleges positively the existence of the debt, and when due. It states upon information and belief that the debt was fraudulently contracted, and it alleges circumstances — some positively, and some upon information and belief — which might well convince the judge that a writ should issue at once. We think there was sufficient to warrant the court in taking that view of the case, although some things are stated upon hearsay.

Several grounds set up in the motion are too broad to indicate in what the defects consist. Those which are not may be disposed of as follows: The affidavit of Hargrave may be dispensed with, and still leave the statutory cause shown for the issue of the writ. The affidavit of the plaintiff’s cashier states that the two Moshers (being partners) and Maltby were indebted upon certain claims, and, although it is shown that the latter was payee and indorser of paper made by the Moshers, all might be sued together, under the statute, after maturity; and the affidavit states positively that Maltby himself stated that the notes were made and negotiated upon a joint venture, and it also appears that Maltby himself negotiated them fraudulently. We think, therefore, there is no difficulty in holding that this was a proper case for the issue of an attachment against all, although presentation and notice of nonpayment should be held necessary to hold the indorser before judgment taken, — a question we do not intend to be understood as determining at this time. The circuit judge returns that these questions were not pressed upon the argument of the motion, and there is force in the contention that they were waived. We have thought best to pass upon them, however.

The writ is denied.

The other Justices concurred.


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    ROEDEL v. VILLAGE OF WHITE CLOUD.
    Taxes — Involuntary Payment.
    A payment of taxes is not made voluntary by the fact that the taxpayer, when a levy is threatened, points out his property upon which a levy can be made.
    Error to Newaygo; Palmer, J.
    Submitted February 18, 1896.
    Decided March 3, 1896.

      Assumpsit by Phil M. Roedel against the village of White Cloud to recover taxes paid under protest. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      M. Brown, for appellant.
    IN- D. Fuller, for appellee.
   Grant, J.

Plaintiff paid his taxes for the year 1893 under protest, specifying in his protest the reasons for the illegality of the tax. The case was tried before the court withotit a jury, and judgment rendered for the plaintiff.

The sole question raised upon the record is, was the payment' of the tax involuntary? Upon this point the court found as a fact that—

“The plaintiff refused to pay said taxes except under protest; and after the marshal had levied upon the personal property of the plaintiff to satisfy said taxes, but before he had removed the same from the premises of the plaintiff, the plaintiff paid said taxes, and at the same time delivered to said officer a written protest.”

We think the conclusion of the circuit judge is justified by the evidence. The marshal who made the levy testified as follows:

“I went to the bank, and demanded the tax, and Mr. Roedel said he would pay it only under protest. ‘ Well, then,’ says I, ‘I shall have to levy on something to get my pay.’ He says, ‘Very well; come on,’ and went right out of the back door of the bank, and went into the barn, opened the door, and says, ‘There are horses;’ opened the other part of the barn, ‘ There are harnesses and cows.’ I levied on those goods. He told me I could levy on them. I simply read my warrant to him, and told him I took the goods. I did not take them out of the barn. We walked right back into the bank, and he gave me a check for the taxes.”

We think this was an involuntary payment. The collector went to plaintiff with his warrant, and demanded payment, which was refused, and the collector then threatened to levy, whereupon plaintiff showed him property upon which he could levy. A payment is not made voluntary by the fact that the taxpayer, when a levy is threatened, shows or points out his property upon which a levy can be made. This statement made by the officer was an implication that payment would be enforced.- No actual levy was required. Babcock v. Township of Beaver Creek, 64 Mich. 601.

The judgment is affirmed.

The other Justices concurred.


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    BARNHARD v. VILLAGE OF WHITE CLOUD.
    Taxes — Payment under Protest — Suit to Recover — Immaterial Variance.
    In an action, brought by a married woman in her given name, to recover taxes paid under protest, it is immaterial that the property was assessed to, and the protest signed by, the woman under the initials of her husband, with the prefix “Mrs.,” when the defendant admits that it was not misled by the variance.
    Error to Newaygo; Palmer, J.
    Submitted February 18, 1896.
    Decided March 3, 1896.

      Assumpsit by Augusta Barnhard against the village of White Cloud to recover taxes paid under protest. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      M. Broten, for appellant.

      W. D. Fuller, for appellee.
   Grant, J.

The proceedings in this case are in all material points the same as in Roedel v. Village of White Cloud, ante, 506. The court below found the same facts and conclusions of law. One question is present which was not in that case. Plaintiff carried on a mercantile business under the name of Mrs. S. P. Barnhard. Her real name was Augusta Barnhard, under which name she brought this suit. The assessment, it seems, was in the name of Mrs. S. P. Barnhard, and the protest was so signed. Defendant insists that no recovery can be had without an amendment to the declai’ation. Defendant admits that it was not misled. The question is too technical to require comment.

Judgment affirmed.

The other Justices concurred.


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    PEOPLE v. BEVERLY
    1. Homicide — Instructions to Jury.
    Where the evidence in a homicide case shows that the crime committed, if any, was murder, it is unnecessary for the court to charge the jury upon the subject of manslaughter.
    2. Evidence — Dying Declarations.
    It is no objection to the admission in evidence of a dying declaration that the “exigencies of the case” do not require it.
    3. Same.
    The admissibility of a dying declaration is not dependent upon its having been taken immediately after the injury.

      4. Same.
    It is not essential to the admissibility of a dying declaration that notice of an intention to take the same should have been given to the accused.
    5. Same.
    A dying declaration is not within the provision of the statute requiring the names of witnesses to be indorsed upon the information.
    6. Same.
    The action of the trial court in admitting in evidence a dying declaration will not be reversed, on the ground that the deceased was under the influence of opiates at the time it was taken, and was not certain that she would die, where there was testimony fairly tending to show that the condition of the deceased was such as to render the statement admissible, and all of the circumstances were placed before the jury for their consideration.

      7. Same.
    Dying declarations may include statements as to the cause and circumstances of the homicide.

      S. Criminal Law — Insanity—Instructions.
    A request for an instruction that, if the respondent is insane, he is irresponsible, and should be acquitted, is properly refused, his responsibility for the act charged being a question for the jury.

      9. Same — Homicide—Evidence.
    Upon a trial for murder, evidence that the deceased was reputed to be a woman of loose character is* inadmissible in support of the theory that the respondent was rendered insane by reason of a venereal disease communicated to him by the deceased.
    10. Same — New Trial — Misconduct op Jury.
    A new trial will not be granted in a criminal case on the ground that the officer in charge of the jury was assisted by another officer, who was not sworn, where it does not appear that respondent was prejudiced, and where any presumption of injury is overcome by affidavits.
    11. Same.
    A conviction will not be reversed because the officer who attended the jury was a witness for the people, or because the jury were permitted to see one of ihe respondent’s witnesses confined in jail, in the absence of .a showing of prejudice.
    Error to Monroe; Kinne, J.
    Submitted January 31, 1896.
    Decided March 3, 1896.
    Clarence Beverly was convicted of murder in the second degree, and sentenced to imprisonment in the state prison at Jackson for 25' years.
    -Affirmed.

      John O. Zabel and Ira G. Humphrey, for appellant.

      H A. Lockwood, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant killed his wife by repeated shooting, under circumstances which clearly indicated murder, unless the defense of irresponsibility can be maintained. He was convicted of murder in the second degree.

His counsel allege error upon the charge of the court, in that it did not sufficiently explain the offense of manslaughter, and it is claimed that it was so carelessly worded that it may have led the jury to infer that he could not properly be convicted of that offense. From our examination of the evidence (which is all incorporated in the bill of exceptions), we think that the defendant was guilty of murder, if any crime, and that the court might properly have said so to the jury. It therefore becomes unnecessary to discuss the points raised upon the subject of manslaughter.

Upon the trial, a dying declaration, made by the deceased, was read in evidence. Several reasons are alleged why this should have been excluded, viz.:

1. Because the exigencies of the case did not require it,
&. Because it was taken some days after the shooting occurred, and defendant had no notice.
3. Because counsel for defendant were not permitted to1 examine such statement until it was offered in evidence,, and the intention to use it upon the trial was not indorsed upon the information, with the names of witnesses for the prosecution.
4. Because the deceased was under the influence of opiates at the time it was taken, and was not certain that she would die.
5. Because a large portion of her statement was about matters remote as to time and place, and not a part of the res gestos.

We do not find any authority supporting several of these claims, and see no' occasion for discussing them at length. We know of no rule that makes the admissibility of a dying declaration depend upon the “exigencies of the case,” or the fact that it was taken immediately after the injury; and we recall no case which holds that its admissibility depends upon notice of the intended faking of such statement to the defendant or his counsel; and we think it is not within the provision of the statute requiring the names of witnesses to be indorsed upon the information.

The condition of the witness at the time the statement was made was before the court and jury, both as to the influence of opiates and her belief in impending death. The judge was warranted in admitting the statement, and the jury were at liberty to give it such credence as it seemed worthy of. In the main it was in accord with undisputed facts, and as to those could not have injured the defendant.

This statement alleged that the defendant had repeatedly threatened to kill his wife and others if she should leave him, but the court struck out that portion applying to others. The brief does not point out the objectionable matters, or show how the defendant was injured by them. But we suppose it was these threats that counsel objected to. Dying declarations are admitted in homicide cases upon the theory that the belief in impending death is equivalent to the sanction of an oath. They extend to statements of the cause and circumstances of the homicide. 6 Am. & Eng. Enc. Law, 105; People v. Olmstead, 30 Mich. 435, and cases cited; 1 Rose. Cr. Ev. p. 33; 1 Greenl. Ev. § 159. In this case the statement showed that the defendant repeatedly threatened to shoot his wife if she should leave him, or refuse to cohabit with him. The testimony showed that she did leave him, and that, being unable to induce her to return, he shot her. There is an obvious and intimate connection between these threats and the act. They throw light upon the cause of the shooting, and, together with the circumstances, were properly included in the statement.

Error is assigned upon the charge and the refusal to give defendant’s requests upon the subject of insanity, which was the defense interposed. It seems necessary to reiterate what has been repeatedly said, — that a trial court is not required to take his charge from the pen of counsel. If the subject is fairly covered, it is sufficient. Insanity is not only a broad, but a very flexible, term, and men differ in their conception of it. A jury should never be told, in broad terms, that if a man is' insane he is irresponsible, and should be acquitted of crime. It is for the jury to determine whether he is non compos mentis, or has not control of his mind or will, by reason of disease, and with reference to the act charged. Roberts v. People, 19 Mich. 401; People v. Finley, 38 Mich. 482. We tbink that the defendant has no cause for objecting to the charge upon this subject.

Counsel allege error upon the refusal of the court to permit them to show that the deceased was reputed to be a woman of loose character. The excuse for this attempt was that they had offered some testimony that syphilis sometimes induced insanity, and that there was evidence that the defendant had that disease. Just how it would he more likely to render the defendant insane if communicated from his wife is not apparent; but, at all events, the testimony was hearsay, and was properly excluded. It is unfortunate that, after a defendant has taken the life of his wife, it should be thought necessary to blast her reputation, and hurt the feelings of her friends, and children, if she had any, when no possible legitimate benefit was to be gained thereby. The defense of insanity was very weak, and it is creditable to the jury that they disregarded it.

During the trial the jury was in charge of a sworn officer, as required by Act No. 176, Pub. Acts 1893. It is shown that when the jurors were upon the streets such officer attended them, and was assisted by another officer, not sworn; and it appears that such officer communicated with jurors to the extent of saying, “Good morning,” and to supply their wants. The better practice would have been to administer the oath to both officers, but it does not appear that the defendant was prejudiced, and we think any presumption of injury is overcome by the affidavits filed by the prosecution. The fact that one of the officers was a witness in the case does not necessarily affect the case (People v. Coughlin, 65 Mich. 704); nor does the fact that the 'jury saw one of defendant’s witnesses in the jail.

This record discloses a most atrocious murder, and we only wonder that the jury consented to reduce the offense to, second degree, as the proof of premeditation was ample.

The judgment will be affirmed.

The other Justices concurred.


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    CLEVELAND v. KOCH.
    1. Chattel Mortgage — Increase of Stock.
    A description of the property covered by a chattel mortgage as “all of the * * * cattle, calves, * * * now-on hand, or that may grow or be raised on our farm during the season,” is sufficiently broad to include calves which, at the time of the execution of the mortgage, were carried by cows owned by the mortgagors.
    2. Same — Agister’s Lien — Authority of Mortgagor.
    The fact that a mortgagee of stock, for his own protection, furnished feed for the stock while in the possession of the mortgagor, does not justify an inference that the latter was authorized to pledge the stock for its keeping.
    Error to Washtenaw; Kinne, J.
    Submitted January 14, 1896.
    Decided March 3, 1896.
    Replevin by Frederick W. Cleveland against John Gr. Koch. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Frank F. Jones, for appellant.

      Darwin G. Griffen, for appellee.
   Montgomery, J.

This is an action of replevin, brought for the recovery of six red Durham cows, four red bull calves, one red heifer calf, and one spotted steer calf. The plaintiff claimed title under a chattel mortgage duly recorded, and defendant set up a lien for pasturage. It appeared that the cattle were left with the defendant by the mortgagor. The court, at the conclusion of the testimony, directed a verdict for the plaintiff, and defendant brings error.

Two questions are presented, viz.: Whether the description of the mortgage was broad enough to cover the natural increase in the stock, and whether there was testimony from which the jury might have been justified in finding that the plaintiff assented to the mortgagor’s placing the cattle with the defendant for pasturage.

1. The description in the mortgage, so far as material to be stated, was as follows:

“The following goods, chattels, and personal property, to wit: All hay, grain of all kinds, straw, cornstalks, horses, colts, cattle, calves, sheep, * * * and crops of all kinds, now on hand, or that may grow or be raised on our farm during the seasons of 1894 and 1895; intending hereby to mortgage all personal property of every kind and description (except household goods and furniture ) now owned by us, or that we may acquire or raise, in any manner, during the time in which the above debt remains unpaid.”

At the time the mortgage in question was executed, the calves in question were carried by cows covered by the mortgage, and we think the description is broad enough to cover such increase, even though one of the calves was dropped after the cows were placed with defendant for pasturage.

2. It appears that in the spring of 1894 one Lyster, an agent of the plaintiff, had thought to foreclose the mortgage, but, finding the stock in poor condition, left it in the mortgagor’s possession, and bought and furnished the mortgagor feed to be fed to the stock. It is contended that from that time the mortgagor was a mere bailee of the plaintiff, or that the jury would have been justified in so finding, and that the jury might have been justified in finding that the mortgagor was the agent of the mortgagee to place the cattle with the defendant for keeping. The affirmative testimony was (and it was uncontradicted) that the mortgagor, Inman, agreed that, if the plaintiff would furnish the feed in question, he (Inman) would care for the stock thereafter; but, in the absence of such testimony, the jury would not have been justified in inferring that the mortgagor had been authorized by the mortgagee to pledge stock for its keeping simply because the mortgagee had, for his own protection, furnished feed for it.

There was no room for a different verdict than that' directed by the circuit judge. Judgment affirmed.

The other Justices concurred.