author: Long, O. J.

text:
    HAMILTON v. HALL’S ESTATE.
    Trusts—Evidence.
    Evidence that one to whom her deceased husband had left all his property, with a request that she give his sister $1,000 therefrom, paid such sister from time to time certain moneys as interest, and that she also expressed an intention of paying the principal amount when it should be convenient to do so, is insufficient to establish a declaration of trust as to such sum.
    Error to Wayne; Hosmer, J.
    Submitted October 9, 1896.
    Decided December 24, 1896.
    Sarah M. Hamilton presented a claim against the estate of Selina J. Hall, deceased, for a sum of money alleged to have been held by deceased in trust for claimant. The claim was disallowed by the commissioners, and claimant appealed to the circuit court.' From a judgment.for defendant on verdict directed by the court, claimant brings error.
    Affirmed.

      Bowen, Douglas & Whiting, for appellant.

      Gonely & Taylor, for appellee.
   Long, O. J.

The claimant presented to the commissioners on claims in the Wayne probate court a claim against the estate of the deceased for the sum of $1,000, and interest thereon at the rate of 7 per cent, per annum from May 13, 1890, less certain credits. This claim was disallowed by the commissioners, and an appeal was taken to the circuit court for Wayne county, where the court directed verdict in favor of the estate.

It appears that Reuben H. Hall died testate in the city of Detroit, May 13, 1890, leaving all his property to his wife, Selina J. Hall, against whose estate the claim in controversy is presented. He had no children. Before his death he told his wife to give to his sister, the claimant here, the sum of $1,000. It is contended by the claimant that, after the death of Reuben H. Hall, his widow said she would follow her husband’s wishes, and give the claimant $1,000 out of the estate; that thereafter Selina J. Hall treated the $1,000 as belonging to the claimant; and that thereby a trust was created in favor of claimant, which can now be enforced against said estate. In order to determine that question, it is necessary that some of the testimony given upon the trial be set forth. Mr. Houston testified that Selina J. Hall, in her lifetime, said to him that her husband told her, before his death, to give his sister, Mrs. Hamilton, $1,000 out of his estate. Witness stated that he had loaned money for Mrs. Hall, and collected interest on it when due; that deceased had considerable property, acquiring the greater portion of it from her husband; that at certain times she told him to pay claimant money as interest on $1,000; that she said she would pay interest on the money while she kept it, and that, at different times, she directed him to pay claimant money for her; that in August, 1890, he paid claimant, for deceased, $50; in February, 1891, $25; September, 1891, $50; June, 1892, $25; August, 1892, $20; May, 1893, $50; July 21, 1893, $25; July, 1894, $10; July, 1894, $40; and December, 1894, $25; that he made these payments out of interest moneys that he had collected upon loans made for the deceased, and that the payments were made with the knowledge of the deceased and by her instructions. The witness was asked to state whether Mrs. Hall ever said anything in regard to why she did not give the whole $1,000 to claimant immediately, and stated:

“She said she wanted Mrs. Hamilton to have this money for her own benefit. She thought her husband owed on his farm, and, if she gave her the $1,000, he would turn the money in in payment of his farm.”

Counsel then put in evidence a letter addressed to Mrs. Hamilton from Mrs. Hall, under date of December 16, 1894, as follows:

“Dear Sister: Please explain so I can send my dues 1st January, whatever they are. I send you check for $25, and I hope it will reach you in good season and all right. Would have sent it before, but was so busy for several days before auntie went away I didn’t do anything only what I had to. Wish you would send me a statement of what you have had, so I can see if it tallies with mine.”

Mary Brining was called as a witness, and stated that deceased told her she was to pay Mrs. Hamilton $1,000; that she didn’t have the money then, but would pay her just as soon as she could make arrangements and get it. Witness said:

“ I think she was paying interest, and that she said she would pay her that money just as soon as she could get around to it.”

Mabel Loomis also testified as follows:

“She said Mr. Hall told her to give Mrs. Hamilton $1,000, and that she would give it to her as soon as she could, and would give her the interest on it until she did give it to her. She said that was Mr. Hall’s wish.”

John W. O’Keefe testified:

“Well, she said there was no particular time that she was obliged to give it to her, only she was going to give it to her just as she saw fit,—saw that she could; that Mrs. Hamilton wanted her to give it to her all at once, but she would not do that, but she wanted to give it to her in small payments along, so that Mrs. Hamilton would use it for her own personal use. * * * She said she was going to pay her interest on it.”

Mary R. West testified about a talk she had with Mrs. Hall, in which she stated:

“ He wanted her to give Mrs. Hamilton a certain sum of.money. She did not say to me how much. She says: ‘I am going,to give Sade $1,000, but I am not going to give it to her right away, because Mr., Hall didn’t want me to cramp myself; but I shall pay her interest until I get around to pay it to her.’ ”

The witness further testified to certain goods that were bought by Mrs. Hall and sent to Mrs. Hamilton, and said that Mrs. Hall said to her;

“This is to be applied on interest.”

The witness, speaking of another occasion when1 she had a conversation with the deceased, said that Mrs. Hall told her that she had $1,000 coming to her, and she believed, when she got it, she would give Sade $500 of it for her next birthday. The witness, continuing, says:

“And she says: ‘What do you think about it?’ I says: ‘Well, if you have got it to pay, I would get it off my hands, and be done with it. You are paying the interest on it how. Why not have it through with?’ She says: ‘I believe I will, and, when he pays me the 1st of May, I will give her $500' of it.’ But she died before then. That was in January before she died.”

This is substantially all of the testimony relating to the subject of the fund.

The only question relating to this branch of the case is whether the claim can be sustained as a declaration of trust. It is claimed by defendant that there was no consideration for the alleged declaration of trust; that, if made, it was purely voluntary; and that, under the facts shown, if a trust exists, it is merely executory. It is contended upon the part of the claimant that the evidence in the case is clear and explicit that Selina J. Hall, in her lifetime, declared herself voluntarily, by parol, to be trustee for the sum of $1,000 received by her from her husband for the use and benefit of claimant, and that she treated this sum as belonging to the claimant, and paid interest upon it as claimairt’s money, and that by so doing she passed the title to it to claimant, retaining in herself only the legal title and the right to control the fund as trustee during her lifetime for the use and benefit of claimant; that is, that the trust was an executed one, and is not purely executory.

The distinction between executed and executory trusts is clearly pointed out in Gaylord v. City of Lafayette, 115 Ind. 423, 429, where it is said:

“A trust may be said to be executed when it has been perfectly and explicitly declared in a writing, duly signed, in which the terms and conditions upon which the legal title to the trust estate has been conveyed or is held, and the final intention of the creator of the trust in respect thereto, appear with such certainty that nothing remains to be done except that the trustee, without any further act or appointment from the settlor, carry into effect the intention of the donor as declared. In such a case, even though there was no valuable consideration upon which the trust was originally declared, a court of chancery will enforce it in favor of one whose relation to- the donor was such as to show a good or meritorious consideration. Where, however, property has been conveyed upon a trust the precise nature of which is imperfectly declared, or where the donor reserves the right to define or appoint the trust estate more particularly, although it may be apparent that the creator of the trust has, in a general way, manifested his purpose ultimately, at a time and in a manner thereafter to be determined, either by himself or by the trustee, to bestow the property upon a person named, the trust is incomplete and executory, and not within the jurisdiction of a court of chancery; the rule being that courts of equity will not aid a volunteer to carry into effect an imperfect gift or an executory trust.”

It is not contended by counsel for the estate that in this case a written declaration of the trust was necessary, the fund being personal property. Such a trust may be created by parol. Crissman v. Crissman, 23 Mich. 217; Bostwick v. Mahaffy, 48 Mich. 342. But it is contended that, in order to establish a parol trust, the evidence must be very clear and satisfactory, and find some support in the surrounding circumstances and in the subsequent conduct of the parties. This rule is sustained in Crissman v. Crissman, supra, as well as in Allen v. Withrow, 110 U. S. 119; Bailey v. Irwin, 72 Ala. 505; 1 Perry, Trusts, §§ 77, 86. To create a trust, where the donor retains the property, the acts or words relied upon must be unequivocal. Young v. Young, 80 N. Y. 422 (36 Am. Rep. 634); 27 Am. & Eng. Enc. Law, p. 56, and cases there cited. And this rule applies with peculiar force where it is claimed that the donor constituted himself trustee. Williamson v. Yager, 91 Ky. 282. In Beaver v. Beaver, 117 N. Y. 421, 428 (15 Am. St. Rep. 531), which was cited with approval by this court in O’Neil v. Greenwood, 106 Mich. 572, it was held that, “to constitute a trust, there must be either an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created.” The mere declaration of an intention or purpose to create a trust, which is not carried out, is of no value, and a mere agreement or statement of an intent to make a gift in the future is not sufficient. It must be such that, from the time it'is made, the beneficiary has an enforceable equitable interest in the property, contingent upon nothing except the terms imposed by the declaration of the trust itself.

The rule in relation to the creation of trusts is well stated in Ray v. Simmons, 11 R. I. 266 (23 Am. Rep. 447), as follows:

“A person need use no particular form of words to create a trust or to make himself a trustee. It is enough if, having the property, he conveys it to another in trust, or (the property being personal) if he unequivocally declares, either orally or in writing, that he holds it in prcesenti in trust or as a trustee for another.”

Many cases are cited in support of this proposition.

The general rule is laid down in 1 Perry, Trusts, § 86, as follows:

“When a person sui juris, orally or in writing, explicitly or impliedly declares that he holds personal property in prcesenti for another, he thereby constitutes. himself an express trustee.”

Prom an examination of the testimony in this case, it is evident that no trust was ever created, and the most that can be said of it is that it was the intent of Mrs. Hall, at some future time, to give to Mrs. Hamilton the sum of $1,000. But counsel contend that the payment of interest, .and the promise to pay interest in the future, evidence the setting apart of the fund as the money of Mrs. Hamilton. We think not. Mr. O’Keefe testified, upon that point, that Mrs. Hall said that there was no particular time she was obliged to give it to Mrs. Hamilton, only she was going to give it to her as she saw fit,— saw that she could; that Mrs. Hamilton wanted her to give it to her all at once, but she would not do that; that she wanted to give it to her in small amounts along, so that Mrs. Hamilton would use it for her own personal use. It appears, therefore, very plain that there was no fund set apart, and the payments made, whether of principal or interest, were only to help Mrs. Hamilton as her needs demanded. It is evident that there was an-intent on the part of Mrs. Hall to make a gift at some indefinite time in the future, but she set apart, no fund for that purpose. It is very different from the case of O’Neil v. Greenwood, 106 Mich. 572. There Mf Willey intended to set apart, and did set apart, the -notesiand certificates as the property of Lavalette O’Neil arid Calixta Warner, though he retained possession of them and appropriated the income. At his death he left the fund intact as evidence of the execution of the trust. The testimony here falls, far short of establishing an executed trust, one which can be enforced. Under this evidence we think it could hardly be contended that Mrs. Hamilton could have enforced the agreement against Mrs. Hall'during her lifetime, and the court was not in error in holding that no trust was ever created, and very properly directed verdict and judgment in favor of defendant.

That judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    CHURCH v. PRESIDENT AND TRUSTEES OF VILLAGE OF HOWARD CITY.
    Municipal Corporations—Personal Injuries—Contributory Negligence.
    A pedestrian, perfectly familiar with the existing conditions, is, as a matter of law, guilty of contributory negligence, precluding a recovery for injuries sustained by falling from the side of a walk unguarded by a rail into an excavation, during the night-time, where, instead of guiding himself by the rail on the other side, he directed his course by a light, which proved not to be the one he supposed it to be.
    Error to Montcalm; Davis, J.
    Submitted November 12, 1896.
    Decided December 24, 1896.
    Case by Frank B. Cburcli against tbe president and trustees of the village of Howard City for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The defendant constructed a plank sidewalk along the north side of Edgerton street, one of the principal streets of the village, in front of a block where the buildings had been destroyed by fire. It is 105 feet long, 10 feet wide, and from 22 to 53 inches high. A railing was erected on the side adjoining the vacant lots, but none on the side adjoining the carriage way. It was constructed six months prior to the accident to the plaintiff. He owned a meat market, situated on the same side of the street, and one block west of it, while his residence was several blocks to the east of the sidewalk. He had passed over it several times every day in going to and from his residence to his business. Plaintiff left his shop for his home about 10 o’clock on the night of April 6, 1894. The night was very dark. When returning home on dark nights he had been atícustomed to guide his course over the sidewalk by a light which was jisually burning in the house of one Denton, some distance up the street. On the night in question, as he reached the sidewalk, he directed his course by what he supposed to be the light in Denton’s house. The light was not in that house, but in another house farther to the south. Relying upon this light as the Denton light, and taking no other precautions, he walked towards it, and in so doing stepped off the sidewalk, fell, and was injured. The negligence charged is the failure to construct a railing along the south side of the sidewalk. The declaration then alleges that the darkness was so intense that neither the sidewalk nor adjoining objects could be seen, and that plaintiff, being without any light, walked along, “confidently relying upon guiding himself and keeping himself upon the walk, as he had been wont to do, by accustomed lights in the houses on the other side of said street, to the east of the angle in said street.” His statement of the accident is as follows: “I followed the light on the walk, thought I was all right, felt as though I was all right, went on there perhaps 30 feet, when all at once I stepped off, following this light, and went over on my head and shoulders.”

      Fitz Gerald & Barry (Otto J. Wolfe and Francis A. Btace, of counsel), for appellant.

      Ellsworth & Barden and O. W. Perry, for appellee.
   Grant, J.

(after stating the facts). The court should, as requested, have directed a verdict for the defendant. Plaintiff was not in the exercise of ordinary care. He was perfectly familiar with the situation, and knew the danger. He chose to direct his course by a light which was not the one he supposed it to be. It is doubtful whether, at the point where he selected this light as his guide, he could have seen the light in Denton’s house if it had been there, on account of an angle in the

street. His counsel in their brief say: “It is absolutely certain that, had there been a railing there, he would not have fallen off. ” It is equally certain that, if he had guided himself by the railing upon the north side, he would have passed over in safety. It may be said that three things contributed to the accident,—the darkness of the night, the mistake of the plaintiff in taking one light for another, and the absence of a rail on the south side. His own mistake caused the accident, and for this the defendant cannot be held liable, however negligent it may have been in leaving one side of the walk unguarded. Had there been no light, it would clearly have been his duty to guide himself by the rail on the north side. He cannot avoid this duty by showing that he followed a false light, instead of the one he was accustomed to follow. The village was in no wise responsible for his own mistake, without which he would not have been injured*, Further discussion is unnecessary. The case is ruled by Black v. City of Manistee, 107 Mich. 60. In that case plaintiff neglected to guide herself by the hand-rail when passing over an icy sidewalk. See, also, Smith v. City of Jackson, 106 Mich. 136; Kuhn v. Walker Tp., 97 Mich. 306; Beach, Contrib. Neg. § 248.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    JOHN A. TOLMAN CO. v. GRIFFIN.
    1. Guaranty—Continuing Contract.
    A guaranty of payment of all moneys collected by one V. for account of the guarantees, and of all moneys which they might from time to time advance to V., and of any and all indebtedness due or to become due the guarantees in excess of the amount due said Y., “as per the present or any future agreement between them,” is a continuing contract, covering changes and modifications in the agreement as originally made between the principal and the guarantees.
    2. Same—Construction.
    The liability of such guarantor cannot, however, be extended to include an indebtedness growing out of transactions which, as manifested by the situation of the parties and the subject-matter with reference to which the guaranty was given, were entirely foreign to those originally contemplated.
    3. Same.
    A provision in the contract of guaranty that a verified statement of the account between the guarantees and the principal, kept by the guarantees, should be conclusive on the guarantor, does not preclude him from attacking the account on the ground that items were included therein relating to other business than that covered by the guaranty.
    Error to Kent; Grove, J.
    Submitted October 21,1896.
    Decided December 24, 1896.

      Assumpsit by Jobn A. Tolman Company against M. Francis Griffin and another on a contract of guaranty. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Fletcher & Wanty, for appellant.

      Hatch & Wilson, for appellees.
   Montgomery, J.

This is an action on a contract of guaranty which reads as follows:

“In consideration of the sum of one dollar and other valuable considerations received from John A. Tolman Co., the receipt of which is hereby acknowledged, I hereby guarantee the payment to John A. Tolman Co. of any and all moneys collected by J. P. Yisner for account of John A. Tolman Co., and for all moneys which they may from time to time advance to said J. P. Yisner, and any and all indebtedness now due, or which may hereafter become due, John A. Tolman Co., in excess of the amount due said J. P. Yisner, as per the present or any future agreement between said John A. Tolman Co. and said J. P. Yisner; and I hereby waive notice of acceptance of this guaranty by John A. Tolman Co., and to accept a verified statement of the account, as kept in the regular books of said John A. Tolman Co., as correct and final between the said company and the said J. P. Yisner, and without requiring any demand or notice of default; and I agree that any extension may be granted him, or any security taken or security taken surrendered, and any surety hereto released, at any time, without notice, or affecting my liability. My liability, however, is limited hereby to one thousand dollars ($1,000), together with interest at 7 per cent, per annum until paid, and all costs, attorney’s fees, and expenses that shall arise from enforcing collection; and for such amounts this is intended as a continuing guaranty until revoked by notice in writing by me. Any amount which shall become due from me upon this contract of guaranty I agree to pay at the office of John A. Tolman Co., in Chicago, Ills.

“Witness my hand and seal this 11th day of September, 1893, in the village of Hopkins and State of Michigan.

“ Ransom Reed.

“M. Francis Griffin.”

It appears that plaintiff company is a wholesale grocer, and that, in the summer of 1893, one Joseph P. Yisner, then a resident of Grand Rapids, sought employment with the plaintiff, and negotiations for his employment by the plaintiff were pending at the time of the execution of this guaranty. Subsequently, on the 12th day of January, 1894, the plaintiff employed Yisner as salesman to solicit orders for goods, he agreeing to expend his entire time and energy in plaintiff’s services for one year from date, or longer, as agreed. He was to receive 40 per cent, of the profits he made in selling goods, and was to pay his own expenses and furnish his own sample case. On the trial the plaintiff offered testimony to show a balance of $494.26, and defendants thereupon offered testimony tending to show that a portion of the account which plaintiff introduced did not relate to the dealings of the parties as employer and employé, but grew out of an indebtedness incurred by Visner while carrying on the business of a candy dealer on his own account at the city of Grand Rapids. The circuit judge charged the jury that, if they found that any of the charges contained in the account related to the candy business, then they did not relate to the employment, and ought not to be included in the account, and further instructed the jury that the provision in the contract that defendants should accept a verified statement of Visner’s account was a valid provision, but that it was binding upon the defendants only so far aé they obligated themselves to guarantee any matter contained in that account relating to the employment, and that, if the account contained matters not relating to the employment, but relating to the candy business, they were not within the scope of the defendants’ obligation. It appeared further in the case that, at the time of Visner’s engaging in the candy business, a further agreement was made between plaintiff and Visner that he should continue in the employ of the plaintiff, devoting only a portion of his time to its business. The defendants asked an instruction to the effect that any alteration made of the original contract of employment, and any substantial deviation made from the express terms of the contract in its performance, without the consent of the sureties, would have the effect to annul the contract of guaranty.' The circuit judge, while refusing to give this instruction, charged the jury' that if the change that was made, permitting Mr. Visner to enter into a private business of liis own, did increase the defendants’ risk or hazard of liability on the bond, then it would release the sureties.

The case turns upon a construction of the contract of guaranty. Two questions arise in this connection: First, is the contract to be construed as applying only to a single contract' entered into between the parties, which should thereafter be put in form, and, when put in form, read into the contract of guaranty, and be no longer subject to change or modification in any respect ? And, second, is the contract of guaranty to be construed as a guaranty of performance by Yisner of a contract of employment only? We think the first of these questions should be answered in the negative, and the latter in the affirmative. The language of the agreement appears to be free from ambiguity. Defendants undertake to guarantee the payment to plaintiff of any and all moneys collected by Yisner for account of Tolman Company, and for all moneys which Tolman Company shall from time to time advance to Yisner, and any and all indebtedness now due, or which may hereafter become due, Tolman Company, in excess of the amount due said Yisner, as per the present or any future agreement between Tolman Company and Yisner. Here is a continuing contract of guaranty, into which the parties have seen fit to enter without demanding that the contract between their principal and his employer shall be made a part of the agreement, and in which they have further expressed their willingness to be bound by any future agreement between Tolman Company and Yisner. It is contended by defendants that, when once a contract is agreed upon between the parties, this exhausts the power to enter into future agreements. We think this is too narrow a construction of the language employed, and is clearly not what was meant. The court was therefore in error in the instruction upon this branch of the case, to the effect that any change in the contract once made, which worked to the prejudice of the sureties, would annul the guaranty.

Plaintiff further makes the broad contention that this contract should be construed as applying to any future contract, and any indebtedness from Visner to the plaintiff, and insists that there is nothing in the wording of the contract which justified the court in limiting the indebtedness of Visner to plaintiff to such indebtedness as might grow out of a contract of employment as salesman. We think the court was entirely right in its construction in this respect. The declaration sets forth, what we assume to be the fact, that this agreement was given in view of the contemplated employment of Visner by plaintiff as a traveling salesman. Not only this, but the language of the agreement implies that the relation of employer and employe is the one contemplated. This guaranty is one of payment of any and all moneys collected for and on account of Tolman Company, for all moneys which they may from time to time advance to Visner, and any and all indebtedness now due, or which may hereafter become due, in excess of the amount due said Visner; implying that, under the agreement contemplated, Visner would have counter-charges against the claim of plaintiff. We think the broader language should be construed in connection with this, and that .the agreement is to be interpreted in the light of the situation of the parties and the subject-matter with reference to which it was evidently given. It would be a great stretch to say that these guarantors would become liable upon a sale of a steamboat by plaintiff to Visner; and, so far as the record shows, an obligation for merchandise to be used in an independent business was as foreign to anything in contemplation of the parties to this guaranty as would have been a transportation business.

We think the court was also right in the instruction as to the right of defendants to show that this verified statement of account related to other business than that covered by the guaranty.

For the error pointed out, the judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Long, C. J.

text:
    MICHIGAN TRUST CO. v. STATE BANK OF MICHIGAN.
    Banks and Banking—Transfer of Stock—Liens.
    Under section 7 of the general statute relating to corporations (1 How. Stat. § 4866), providing that a transfer of stock shall not be valid, except as between the iiarties thereto, until the same shall have been entered on the books of the corporation, and section 9 of the general banking law (3 How. Stat. § 3208a8), providing that no transfer of stock shall be valid against a bank so long as the registered holder shall be liable to the bank for any debt which shall be due and unpaid, and that no stock shall be transferred on the books of the bank, without the consent of the directors, where the registered holder is in debt to the bank for any matured and unpaid obligation, the lien of a bank extends to a debt of the registered holder which has matured subsequent to an assignment of his stock, but prior to a demand by the assignee for a transfer upon the books of the bank.
    Error to Kent; Grove, J.
    Submitted November 13, 1896.
    Decided December 24, 1896.
    Case by tbe Michigan Trust Company against the State Bank of Michigan to recover damages for defendant’s failure to transfer upon its books a certificate of stock which had been assigned to plaintiff by the registered holder. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Fletcher & Wanty, for appellant.

      William J. Stuart and Butterfield & Keeney, for appellee.
   Long, C. J.

The defendant began business in Grand Bapids in the summer of 1892, and on August 22d of that year issued to William T. Lamoreaux 10 shares of its capital stock1, of the par value of $1,000. In October following he opened an account with, and became indebted to, the defendant, continuing indebted to it up to the time of his death, November 10, 1895. That indebtedness at all times exceeded the sum of $2,000, and 'was evidenced by his promissory notes. At the time of his death he was indebted in large sums, both as maker and indorser of notes, "and of this sum $5,000 was past due and unpaid. He was also indebted to the bank to the amount of $6,000, which had not yet matured. On January 29, 1895, he borrowed from the Michigan Trust Company $1,000, making an assignment to it of his certificate of stock in the defendant bank, and delivering it, and also making a collateral agreement, containing a power to sell said stock if the note given to secure the loan of $1,000, or any renewal, was not paid within 10 days after it became due. The note of that date was renewed August 1st, payable 6 months after date, with 7 per cent, interest. This last note, when it matured, was not paid, and, after waiting the time speci-. fied in the agreement, the plaintiff advertised the stock for sale according to the terms of the pledge, and sold the same to Henry D. Walbridge for $900. The defendant, it appears, had no knowledge or notice that the Michigan Trust Company had or claimed any interest in the shares of stock, as pledgee or otherwise, until December 10,1895. This was a month after Lamoreaux’s death. In January and July of that year dividends upon these shares were paid to Mr, Lamoreaux by the defendant. On December 9,1895, the Michigan Trust Company gave notice to the bank that it was the owner of the shares of stock. It was stated in that notice that the plaintiff held the stock as collateral to the note of Lamoreaux for $1,000, dated August 1, 1895, due six months after date, with interest at 7 per cent, per annum, and it was further stated: “It becomes apparent to us that we shall have to look to this stock for the payment of the note.” On the next day the defendant bank wrote the plaintiff that its letter was received, and recited: “At the date on which said notice was received by this bank, the said W. T. Lamoreaux was a debtor to this bank, both as principal and as an indorser, on paper overdue.” The defendant thereafter refused to recognize the rights of any person in this stock certificate by reason of such transfer, because Lamoreaux, at the time demand for'transfer was made, was indebted to the defendant on an obligation that was due and unpaid, although it appears that such indebtedness was not due and unpaid at the time of the transfer of the stock to the Michigan Trust Company. This action was brought to recover the value of the stock certificate. On the trial the court directed verdict and judgment for the defendant.

The plaintiff contends that the transfer and delivery of the stock to it by Lamoreaux on January 29,1895, created a lien prior to any lien which the defendant afterwards obtained under the statute, and relies upon the following provisions of 1 Howell’s Annotated Statutes: Section 4866:

_ “Whenever the capital stock of any such corporation is divided into shares, and certificates thereof are issued, such shares may be transferred by indorsement and delivery of the certificates thereof, such indorsement being by the signature of the proprietor, or his attorney or legal representative; but such transfer shall not be valid, except between the parties thereto, until the same shall have been so entered on the books of the corporation as to show the names of the parties by and to whom transferred, the number and designation of the shares, and the date of the transfer.”

Section 4901 provides:

“Any person holding stock in any such corporation may have the same transferred upon the books of such agency within this State, upon the same terms, conditions, and restrictions as is provided by law, or the rules of such corporation, for such transfer at the principal office of such corporation, wherever it may be situated.”

It is contended that, under these provisions of the statute, the property in the shares of stock passed to the plaintiff, by the delivery of the certificate and proper indorsement thereon, without the formality of a transfer on the books of the defendant bank, and that the defendant had no right in this stock, because, at the time of the transfer to plaintiff, it had no lien upon the stock, there being no indebtedness to the bank by Lamoreaux which was matured and unpaid. On the other hand, it is contended by counsel for defendant that the transfer to the plaintiff was not effectual, except as between the parties thereto, and could not be made effectual, under the provisions of the statute, to transfer title, until such transfer was entered upon the books of the corporation,' and that, at the time the defendant bank had notice of the transfer to the plaintiff, the indebtedness of Lamoreaux to the bank had matured and was unpaid, and it was not then bound to make the transfer upon the books of the bank, as its lien had then attached. Counsel cite 3 How. Stat. § 3208aS, as follows:

“The shares of stock of such bank shall be deemed personal property, and shall be transferred on the books of the bank in such manner as the by-laws thereof may direct; but no transfer of stock shall be valid against a bank so long as the registered holder thereof shall be liable as principal debtor, surety, or otherwise to the bank for any debt which shall be due and unpaid, nor in such case shall any dividend, interest, or profits be paid on such stock so long as such liabilities continue, but all such dividends, interest, or profits shall be retained by the bank, and applied to the discharge of such liabilities; and no stock shall be transferred on the books of any bank without the consent of the board of directors, where the registered holder thereof is in debt to the bank for any matured and unpaid obligations.”

It is unnecessary, in the present case, to determine what were the rights of the Michigan Trust Company at the time the certificate of stock was transferred to it in January, 1895. It is claimed that, had the plaintiff at that time demanded a transfer to it from the bank upon its books, the bank would have been obliged to make such transfer; but that question we do not determine. Instead of the demand being made by the plaintiff to have the transfer made upon the books of the bank before the indebtedness from Lamoreaux to the latter had matured, the plaintiff waited from January to the 9th of December following before making such demand. In the meantime the bank had from time to time given Lamoreaux credit, taking and renewing his promissory notes, when, on the 9th of December, a part at least, and enough to cover the amount of this certificate, had matured and remained unpaid. It is evident that, under these statutes, at that time, the bank was not compelled to make the transfer of this certificate upon its books. The bank was in a position at least to assert a lien upon the certificate whenever the indebtedness matured and remained unpaid. We think this statute can have no other interpretation. The statute in relation to the transfer (section,4866) contains the express provision that “the transfer shall not be valid, except between the parties thereto, until the same shall have been so entered on the books of the corporation.” It is evident that this provision is intended exclusively for the benefit of the bank.

In Reese v. Bank, 14 Md. 271 (74 Am. Dec. 536), one of the debts owing to the pledgee arose September 27, 1854, which was prior to the time when the indebtedness to the bank arose and for which it claimed a lien accrued; but no notice thereof seems to have been given to the bank until demand for transfer on the books was made. The assignee of the shares demanded the transfer of the bank, but refused to pay the debt owed the bank by the stockholder. The assignee afterwards made a second demand. It appeared that other notes of the stockholder had by that time become due and payable, and the bank refused to make the transfer until all the notes then due and payable were first paid and discharged. The statute provided:

“The shares of the capital stock of the corporation shall be transferable on the books of the corporation only, according to such rules as shall be established by the president and directors; but all debts actually due and payable to the corporation by a stockholder requesting a transfer must be satisfied before such á transfer shall be made, unless the president and directors shall direct to the contrary.”

It was held that, under this statute, the assignee of the stock had no right to demand a transfer upon the books of the corporation until he had paid and discharged all the debts of the stockholder which had become due and payable at the time of the second demand.

In Union Bank v. Laird, 2 Wheat. 390, the same principle was stated. There the act of incorporation provided :

“The shares of the capital stock at anytime owned by any individual stockholder shall be transferable only on the books of the bank, according to such rules as may, conformably to law, be established in that behalf by the president and directors; but all debts actually due and payable to the bank (days of grace for payment being passed) by a stockholder requesting a transfer must be. satisfied before such transfer shall be made, unless the president and directors shall direct to the contrary.”

The certificate was issued to one Patton on March 26,, 1811. It was for 50 shares of stock; and on that day he delivered it to the defendant, Laird, to secure him against his indorsement, and on the 10th of July he executed to Laird a power of attorney authorizing him to make a transfer of his stock, and on August 22d he executed a deed of assignment to Laird of his stock. It appears that he became indebted to the bank on July 17, 1811, and the bank, when requested by Laird to make the transfer, declined to do so. The court said:

“No person, therefore, can acquire a legal title to any shares, except under a regular transfer, according to the rules of the bank; and if any person takes an equitable assignment, it must be subject to the rights of the bank under the act of incorporation, of which he is bound to take notice. The president and directors of the bank expressly deny that they have waived, or ever intended to waive, the right of the bank to the lien, for debts due to the bank, by the form of the certificate, and that they ever directed any transfer to be made to Patton which should stipulate to the contrary. Under such circumstances, it must be held that the shares are responsible for the debts due to the bank.”

This rule is supported in National Bank v. Watsontown Bank, 105 U. S. 217. We think this is the general rule, and is upheld by the great weight of authority, and that it is in conformity, also, with the English doctrine. All that we need to decide in the present case is that, the demand not having been made upon the defendant bank until the debt of Lamoreaux to the bank had matured and was unpaid, the defendant bank was in a position to refuse to transfer upon its books the certificate of stock which had theretofore been pledged to the plaintiff, as we think it was the intent of the statute under such circumstances to give the bank issuing the stock priority of lien.

The judgment of the court below must be affirmed.

Grant, Hooker, and Moore, JJ., concurred. Montgomery, J., did not sit.


text:
    CITIZENS’ STATE BANK OF MONROEVILLE v. KALAMAZOO COUNTY BANK.
    1. Banks and Banking—Transfer, of Stock—Liens.
    The lien of a bank on a stock certificate issued by it, for a debt of the registered holder which is due and unpaid at the time of a demand by a purchaser of such certificate for a transfer thereof on the books of the bank, is superior to. the right of the purchaser, under 3 How. Stat. § 3208a8, providing that no transfer of stock shall be valid against a bank, nor shall any transfer be made upon its boobs, so long as the registered holder shall be liable to the bank for a debt which is due and unpaid. Michigan Trust Co. v. State Banle of Michigan, ante, 306, followed.
    2. Same—Foreclosure of Lien—Equity.
    The court has jurisdiction to award foreclosure of the lien, upon the defendant’s cross-bill, in a suit by the purchaser to compel the transfer of the stock upon the books of the bank, although the registered holder is not a party to the suit, where no personal decree is sought.
    3. Same—Copartnership Debt—Construction of Statute.
    Such lien extends to the holder’s liability to the bank on a debt of a copartnership of which he is or has been a member, since the statute expressly covers a liability as principal debtor, surety, “or otherwise.”
    4. Same—By-Laws—Waiver of Lien.
    A by-law providing that any stockholder desiring to sell his stock shall give the bank 10 days to purchase or find a purchaser, and at the expiration of such time may “sell at pleasure,” does not operate as a waiver of the right of the bank to claim a lien, as against [a purchaser of the stock, for a debt of the registered holder.
    Appeal from Kalamazoo; Buck, J.
    Submitted October 22, 1896.
    Decided December 24, 1896.
    Bill by the Citizens’ State Bank of Monroeville, Indiana, against the Kalamazoo County Bank and Elias W. Bowman, president and general manager, to compel the transfer to complainant of certain certificates of stock. The defendant bank, in its answer, claimed a lien upon the stock, and asked to have the lien foreclosed. From a decree dismissing the bill and denying the order of foreclosure, all parties appeal.
    Modified by an award of foreclosure, and affirmed.
    Osborn, Mills & Master, for complainant.

      Boudeman & Adams, for defendants.
   Long, C. J.

The bill of complaint was filed to compel the defendant bank to transfer upon its books certain certificates of its capital stock held by the complainant by an assignment from the original owners of the stock.

Prior to March 1, 1893, a copartnership, consisting of Zimri Dwiggins, J. M. Starbuck, and others, was carrying on a banking business at Schoolcraft under the name of the Kalamazoo ■ County Bank of Dwiggins, Starbuck & Co. At the same time, a copartnership, consisting of Zimri Dwiggins, J. M. Starbuck, and others, was carrying on a banking business at Richland under the name of the Union Bank of Richland, Mich., Dwiggins, Star-buck & Co.; and a copartnership, consisting of Zimri Dwiggins, J. M. Starbuck, and others, was carrying on a banking business at Edwardsburg under the name of the Citizens’ Bank of Dwiggins, Starbuck & Go. About March 1, 1893, the Schoolcraft bank went out of business, and a corporation was formed under the name of the Kalamazoo County Bank, the defendant in this case, óf which the president and manager is E. W. Bowman, who was a member of the three banking firms above mentioned. The capital stock of the defendant bank is $30,000.

Prior to the organization of the defendant bank, it is claimed that Mr. Bowman, acting for the copartnership bank at Schoolcraft, made an arrangement by which the new corporation agreed to take the assets of the Kalamazoo County Bank of Dwiggins, Starbuck & Go. It is also claimed on the part of the defendants that, at the time this arrangement was entered into, the Kalamazoo County Bank of Dwiggins, Starbuck & Co. agreed to guarantee the collection of all accounts, and the payment of all commercial paper; that, upon the formation of the defendant bank, its capital stock was made up of said assets and a bonus paid by certain of the citizens of Schoolcraft and its vicinity, and stock was issued to the gentlemen whose names are mentioned in the articles of association. Ten shares thereof were issued to Zimri Dwiggins, and ten shares to J. M. Starbuck. They each continued to own their stock until May 26, 1893, when each assigned his stock to the complainant as collateral security to an indebtedness due from them to complainant. This assignment has not been attacked in any manner, nor has it been contended or shown that the complainant had any notice or knowledge of any equities existing as between the defendant bank and Zimri Dwiggins or J. M. Starbuck. The complainant claims to be a good-faith holder of the stock. At the date set forth in the bill of complaint, the complainant demanded of the defendant bank a transfer of the stock upon the books of that bank, but this was refused upon the ground that the defendant bank claimed a lien upon the stock as against Zimri Dwiggins and J. M. Starbuck, to whom it was issued.

The answer alleges that on May 26, 1893, being the date when complainant claims it took its assignment of the stock, and for some time prior thereto, J. M. Star-buck and Zimri Dwiggins were registered holders of the stock, and were indebted to the said Kalamazoo County Bank upon an indebtedness which was due and unpaid. The answer also asserts a lien upon the stock on account of this alleged indebtedness, and prays as relief, by way of cross-bill, that the stock be surrendered to a receiver, the alleged lien foreclosed, and the stock sold, and the avails turned over to the defendant bank. The proofs were taken in open court. On April 18, 1896, an opinion was filed directing the dismissal of complainant’s bill, with costs. A decree was entered which not only dismissed complainant’s bill of complaint, but established a lien in favor of the defendant bank as against the stock, the language of the decree being as follows:

‘ ‘ And it now appearing to the court that, at the time of the transfer and assignment by Zimri Dwiggins and J. M. Star buck, respectively, to complainant, of the bank stock, as set forth in said bill of complaint, they were each indebted, as copartners, to the defendant, the Kalamazoo County Bank, upon the matters mentioned by defendants in their answer, and that the said Kalamazoo County Bank was then entitled to the benefit of a lien upon said stock to the extent of said copartnership indebtedness, and that complainant took said-stock subject to said lien, it was not and is not, therefore, entitled to the relief prayed in and by the bill of complaint. Therefore, it is ordered, adjudged, and decreed, and the court doth order, adjudge, and decree, that the prayer of said bill of complaint be, and the same is, denied, and that said bill of complaint be, and the same is, dismissed.”

The decree denies defendants’ prayer for a foreclosure of the lien for the reason that the parties interested in the indebtedness upon which it is predicated are necessary parties, and are not all before the court, and cannot properly be brought in and made parties.

Both parties appeal.

It was insisted in behalf of the complainant in the court below, and is still insisted:

1. That the defendant bank could not be entitled to a lien upon this stock on account of an unliquidated copartnership indebtedness which might be due from Zimri Dwiggins and*J. M. Starbuck, the original holders of it, as copartners with others.

2. That if, upon the proofs, the court found that the defendant bank had prima facie a lien against the stock, it could not litigate or establish such lien in this suit, and that no decree establishing a lien upon the stock could be entered, for the following reasons: (a) The debt upon which the lien is claimed was not the sole or separate indebtedness of Zimri Dwiggins or J. M. Star-buck, but a copartnership indebtedness arising out of co-partnership dealings between several persons who are not parties to this suit, and which was unadjudicated and unsettled. (b) The parties are entitled to be heard as to that indebtedness and their liability in a court of law, where the issue can be tried before a jury, (c) The complainant was not and could not be in a position to litigate such alleged indebtedness, or to assert the defenses which would be available in a suit at law.

The defendant, as a banking corporation organized under the general banking laws of this State, asserted its lien under that law, which provides:

“The shares of stock of such bank shall be deemed personal property, and shall be transferred on the books of the bank in such manner as the by-laws thereof may direct; but no transfer of stock shall be valid against a bank so long as the registered holder thereof shall be liable as principal debtor, surety, or otherwise to the bank for any debt which shall be due and unpaid, nor in such case shall any dividend, interest, or profits be paid on such stock so long as such liabilities continue, but all such dividends, interest, or profits shall be retained by the bank, and applied to the discharge of such liabilities; and no stock shall be transferred on the books of any bank without the consent of the board of directors, where the registered holder thereof is in debt to the bank for any matured and unpaid obligations.” 3 How. Stat. § 3208a8.

It was and is insisted that this statute was not intended to give a lien upon the stock of the banking corporation to secure the payment of any such indebtedness as is involved in the contention of the defendant bank, but that the statute refers to debts created with the banking corporation after its organization as such.

The certificates of stock provide that they shall be transferable “only on the books of. the company, personally, or by attorney, on the surrender of the certificate.” By-law 12 of the defendant bank is as follows:

“Any stockholder desiring to sell his or her shares of stock in this corporation shall notify the president or cashier of such fact, and give him and the board of directors 10 days to purchase or find a purchaser for said stock; at the expiration of said 10 days’ time, the stockholder may then sell at pleasure.”

It is insisted that this by-law is a waiver of the statutory lien in defendant’s behalf. It is also insisted that, if it shall be found that the defendant bank had a prima facie lien upon this stock to secure the payment of a copartnership indebtedness for which Dwiggins and Starbuck as copartners might be liable, nevertheless complainant, as the assignee of that stock, is entitled to have the stock transferred upon the books of the company, subject to such lien, and until a foreclosure thereof, in order that it may vote the stock and have a voice in the management of the affairs of the bank.

At the hearing the defendants claimed, and offered proofs, which were objected to, tending to show, that, at the time of the sale of the assets of the Kalamazoo County Bank of Dwiggins, Starbuck & Co., that copartnership guaranteed the payment of the commercial paper and accounts turned over by it to the defendant bank upon its organization as a banking corporation; that the defendant bank did business directly with the Citizens’ Bank of Edwardsburg and the Union Bank of Richland, both of which were copartnerships in which Zimri Dwiggins, J. M. Starbuck, some of the officers of defendant bank, and others were interested, until those banks failed, in May, 1893; that at that date they owed defendant bank as follows: The Citizens’ Bank of Edwards-burg $806.34, and the Union Bank of Richland $1,319.33.

To recapitulate complainant’s claim, it is insisted:

1. That it was entitled, upon the proofs, to the transfer of the stock as prayed.

3. That if defendant bank might, under the statute, claim a lien as against this stock, such lien was waived by the form of the stock certificate and defendant’s by-law No. 13.

3. That the decree, in any event, is erroneous in so far as it adjudicates a lien as.against complainant’s stock.

4. That defendant bank is not entitled to a foreclosure of this alleged lien, and that the decree of the court below was in that respect correct.

5. That, assuming defendant bank has a prima facie lien on the stock, complainant is entitled to have the stock registered upon the books of the bank, subject to the lien, when established.

It was held in Michigan Trust Co. v. State Bank of Michigan, ante, 306, that third parties purchasing stock of a registered holder could not compel a transfer of the stock upon the books of the bank issuing it, when it appeared, at the time of such demand of transfer, that the registered holder of such stock was liable as principal debtor, surety, or otherwise to the bank for any debt which should at that time be due and unpaid. In the present case it appears that the debt was due and unpaid at the time the demand was made; so this case upon that point is ruled by the. case cited. The reasons are fully set out in that case.

The contention that the registered holders are members of a copartnership, and that the indebtedness is due from such copartnership, and not from the holders of the stock individually, has no force, as we must give some meaning to the term “or otherwise.” The statute is plain, and covers all indebtedness, whether as principal debtor,, surety, or otherwise. The rule under such statutes, where a lien is created, is that the lien is a general one, .and secures all debts due from stockholders or firms of which they are members, even when the debts grow out of transactions not connected with their shares, and though the stockholders are but sureties for debts, and though they are created after the transfer without notice to the corporation. 23 Am. & Eng. Enc. Law, p. 693. This doctrine is fully supported. So we say of this statute it is broad .enough to cover the indebtedness here claimed. We are of the opinion that it was the intent of the legislature in the passage of this statute to create a lien upon the registered stock for all such debts; that when the debt matured and remained unpaid, and the stock remained in the name of the registered holder upon the books of the bank, he could not, and a third party could not, compel the transfer of the stock upon the books of the bank, until the lien was paid and discharged. This question was substantially disposed of in Michigan Trust Co. v. State Bank of Michigan, supra.

It is not necessary to decide in this case whether a lien was created upon the stock when the debt to the bank arose; and we only hold that it became a lien when the indebtedness matured and remained unpaid; that at that time it became and was a prior lien over any lien acquired by a third party by transfer of the stock prior to that time. The party taking a transfer of bank stock must be held to know that it is subject to any debt at the bank where the stock is registered, and that, when that debt matures, the bank has the right to enforce that lien. National Bank v. Watsontown Bank, 105 U. S. 217; 1 Cook, Stock, Stockh. & Corp. Law, § 530. We need go no further in the present case upon the facts proved.

It is claimed that by-law 12, above set forth, waived any lien which the bank had. It is evident from the reading of the by-law that the bank did not intend to waive its lien upon stock; and we think it cannot be construed as waiving the lien.

We think the court below was not in error in finding that the defendant bank had a lien upon the stock, and properly dismissed complainant’s bill.

Defendants, however, have filed a cross-bill, asking that the bank might be permitted to foreclose its lien in this proceeding. This the court denied, and from this part of the decree defendants appealed. The position of the court below was- that the necessary parties were not before the court. In this we think the court was in error. Dwiggins and Starbuck had assigned all their interest in the stock to the complainant, and it had the right in this proceeding to show that there was no indebtedness from them to the bank. This subject was gone into on the hearing, and found against the complainant. The defendant bank was making no personal claim in this proceeding against Dwiggins and Starbuck. It was simply-claiming it had a lien upon the stock for an indebtedness equal to the value of the stock. This was established to the satisfaction of the court. The court had jurisdiction to award foreclosure of the lien, and should have done so, as no personal decree was sought against Dwiggins and Starbuck. Miller v. Thompson, 34 Mich, 10.

The decree will be modified in this respect, and affirmed. Defendants will recover their costs of both courts.

Grant, Hooker, and Moore, JJ., concurred. Montgomery, J., did not sit.


text:
    STONEY CREEK WOOLEN CO. v. SMALLEY.
    1. Vendor and Purchaser—Joint Tort Feasors—False Receipt.
    One who deliberately gives to another a receipt falsely stating that he has received a specified amount for certain property, knowing that the latter intends to use the same for the purpose of obtaining a higher price for such property on a resale thereof, is liable as a joint wrong-doer for any damages resulting from such use, although he is in no way benefited by the fraud.
    2. Same—Caveat Emptor—Application op Rule.
    M., being possessed of -considerable means, advertised for a business opening, and was answered by D., who' solicited him to purchase certain property. D. represented that he had acquired the property from S. for a consideration of $5,000, and, in support of the representation, exhibited a receipt signed by S. M. was an entire stranger to the parties, and was ignorant of the value of the premises; but, having learned by inquiry that the reputation of D. was good, he made the purchase. It thereafter developed that the receipt falsely stated the consideration of the transfer to D.; that D. had in fact paid §2,500 only. Held, that the rule of caveat emptor did not apply, and that M. was entitled to recover for the deceit.
    3. Fraud—Settlement of Tort—What Constitutes.
    The payment to the president of a corporation of an amount due him for services rendered to the corporation, and the assignment of his stock to a person in trust for the corporation, and his withdrawal from all connection therewith, upon discovery of the fraud practiced by such president in selling property to the corporation, do not amotmt to a settlement of the tort, where none of the parties regard it as such.
    Appeal from Oakland; Smith, J.
    Submitted October 23, 1896.
    Decided December 24, 1896.
    Bill by the Stoney Creek Woolen Company and Foster Macgurn against Robert Smalley and Edwin E. Davis to set aside a deed and a mortgage on the ground of fraud. From a decree for complainants, defendant Smalley appeals.
    Affirmed.
    The object of the bill filed in this cause is to set aside a deed of certain real estate, constituting a mill property, executed by the defendant Smalley to the complainant corporation, to set aside a mortgage executed to Smalley by the corporation, and to recover moneys invested by the complainants in permanent improvements, on account of fraudulent representations alleged to have been made by the defendants to the complainant Macgurn. The case was heard upon the pleadings and proofs taken in open court, and decree rendered setting aside the deed and mortgage, and that complainants recover $2,821.89, the amount invested in permanent improvements. The facts are not in dispute. The property was owned by defendant Smalley, and was out of repair. Macgurn was possessed of some means, and advertised for a business opening. He received an answer from the defendant Davis. Davis represented to him that he had acquired this property, had paid $2,500 in cash, and had agreed to pay $2,500 more. He exhibited a receipt to Mr. Macgurn, signed by Smalley, acknowledging the receipt of $2,500 ■upon the purchase price, which receipt was signed by one Redfield as a witness. Mr. Macgurn was a stranger to Davis and to the property, and had had no experience in the business, or knowledge of the value of property of that character. He inquired about the reputation of Mr. Davis, and found it was good. Smalley offered Davis the property for $2,500. Davis told Smalley that he wanted the consideration expressed as $5,000, and wanted a receipt from him of a cash payment of $2,500, which Mr. Smalley gave. Davis paid Smalley nothing. Macgurn went to Stoney Creek, and looked over the property. Relying upon the representations made by Davis, and upon the receipt given by Smalley, Macgurn agreed to the purchase of the property at $5,000; that a corporation should be formed; that Davis was to take $2,500 of the stock, and Macgurn was to contribute $7,500. Improvements were to be made. Smalley was to execute a deed to the corporation, and receive back a mortgage of $2,500, the balance of the purchase price. The. corporation was formed, and the papers executed. Davis contributed nothing, and the entire expenditures were made by Macgurn. The business was a failure. Upon ascertaining the facts in the case, complainants filed this bill.

      James C. Smith,. Jr., and Otto Kir diner, for complainants.

      Aug. C. Baldwin, for appellant.
   Grant, J.

(after stating the facts). Three defenses are interposed.

It is urged that Davis was not an agent of Smalley; that the latter did not authorize Davis to make any representations ; that he was to have no interest in the corporation; had no partnership relations with Davis; that he was not concerned in and received no part of the purchase money for which the property was to be sold, above his original price of $2,500. This defense cannot obtain. Smalley gave Davis a false paper. He knew it was false, and that it could not be used for any legitimate purpose. He knew that a fictitious consideration was stated in the deed. He testified:

“Q. Did you give Davis a receipt?

“A. He has got a receipt for $2,500. I must have given it.

“Q. Was that receipt a lie?

“A. It appears it is.

“Q. Did you think it was right to give it to him when you gave it to him ?

“A. I did not think it right, but I did it.’”

Mr. Macgurn testified that on one occasion Smalley told him that Davis wanted the receipt to show to parties that he was trying to get interested in forming a company. Mr. Redfield testified that Smalley told him that the consideration was to be stated at $5,000, but the mortgage was to be given for $2,500; and Mr. Redfield asked him if Davis had paid a part of the consideration, to which Smalley replied, “That is a matter between us.” Where one deliberately gives another a false statement in writing, knowing the purpose for which it is to be used, which that other uses to deceive a third party, he is a joint wrong-doer, and must be held responsible for the consequences which follow. Smalley cannot defend upon the ground that he received no benefit from the fraud. Weber v. Weber, 47 Mich. 569.

It is also urged that an action for deceit in the sale of real estate does not lie for the fraudulent misrepresentation as to the price paid. In support of this, the' learned counsel cites Holbrook, v. Connor, 60 Me. 578 (11 Am. Rep. 212); Medbury v. Watson, 6 Mete. (Mass.) 259 (39 Am. Dec. 726); Mooney v. Miller, 102 Mass. 220. In Medbury v. Watson the question now presented was not in issue, and the language of the court upon which the counsel relies was not necessary to a decision of the case. In Mooney v. Miller the representations relied upon referred to the quantity of wood and hay that could be cut from the land, the possibility of acquiring adjoining lands with buildings thereon belonging to third persons, and to the number of acres in the lot, the boundaries of which were truly pointed out. It was properly held that the action would not lie. The case of Holbrook v. Connor appears to sustain the defendant’s contention. The court was divided in opinion. The authorities are quite fully referred to and discussed in the majority and minority opinions. We cannot accede to the doctriné of that case as applied to this. Macgurn was a stranger to both- the business and the locality, and did not know the value of the property. Smalley was a very old man, and stood high in the community. Davis’ reputation was good. Both had asserted in writing that the price at which Smalley agreed to sell to Davis was $5,000, of which $2,500 had been paid. We think Macgurn was entitled to rely upon these representations, and to recover upon proof of their falsity. The rule of caveat emptor does not apply to such a case. Jandorf v. Patterson, 90 Mich. 40.

It is next urged that Macgurn and Davis compromised the fraud, and that this estops complainants. The law is well settled that where one, with full knowledge of the situation, settles with one tort feasor, he discharges not only him, but also the others. This is conceded. 1 Am. & Eng. Enc. Law (2d Ed.), 428. But the facts in this case do not bring the complainants within this rule. Mr. Davis was made president of the company, and had much to do with its management. For reasons unnecessary to mention, Mr. Macgurn became suspicious of Mr. Davis, and about that time he was informed that Mr. Davis had not paid the $2,500. He thereupon went to see Mr. Smalley, who admitted that he had received no money. He also said that he had received a letter from Mr. Davis, which he refused to let Mr. Macgurn see, and that the only paper he considered he was bound under was the mortgage. He then returned to Mr. Davis, who denied Mr. Smalley’s statements, and asserted he had paid Mr. Smalley. Mr. Macgurn, being dissatisfied with his management, insisted that Davis should withdraw from the concern. Mr. Macgurn paid him $280, the balance due him for services rendered to the Company, and he assigned his stock to a person in trust for the corporation, and withdrew from all connection with it. Neither Macgurn nor Davis understood that they were settling the fraud, or that their negotiations had any reference whatever to the transaction connected with the purchase of the property. The rights of neither Davis nor Smalley were affected by that arrangement. Davis had paid nothing for his stock. Mr. Macgurn desired to rid the corporation of any control by Davis, whom he believed to be dishonest, and who was financially irresponsible. This did not amount to an accord and satisfaction, with full knowledge of the facts. Mudsill Mining Co. v. Watrous, 9 C. C. A. 415, 61 Fed. 163.

Decree affirmed, with costs.

The other Justices concurred.


author: Grant, J. Hooker, J.

text:
    CITY OF LANSING v. BOARD OF STATE AUDITORS.
    Statutes—Object not Expressed in Title—Taxation of State Property.
    The provision of Act No. 405, Local Acts 1893, § 14, tit. 10, that the common council of the city of Lansing shall afford fire and police protection to the property owned by the State, and bestow such care and attention upon the streets on which state property is located as may be necessary, and that the board of state auditors shall allow the city such sums as would, in the judgment of the city assessors, be lawfully assessable for like purposes against the property generally in said city, is not within the title, “An act to reincorporate the city of Lansing,” and is therefore void, under section 30, art. 4, of the Constitution. Hooker and Montgomery, JJ„ dissenting.

      Mandamus by the city of Lansing to compel the board of state auditors to allow a claim against the State for affording fire and police protection to its property.
    Submitted November 19, 1895.
    Reargued May 6, 1896.
    Denied December 24, 1896.
    In 1893 the legislature passed a local act entitled:
    “An act to reincorporate the city of Lansing, in the county of Ingham, and to repeal all acts and parts of acts in conflict herewith.”
    This act will be found in the Local Acts of 1893, extending from page 1230 to page 1306. Section 14, tit. 10, p. 1270, reads as follows:
    “ The council shall afford all fire and police protection to property owned by the State, and bestow such care and attention upon the streets, sidewalks, cross-walks, sewers, and drains as the council shall deem necessary to such streets or avenues upon which may be located any of the State’s buildings, parks, or grounds. The state board of auditors shall allow the city of Lansing such sum or sums of money as would, in the judgment of the city assessors, be lawfully assessable for like purposes against the property generally in said city of Lansing. And the auditor general, on the presentation of such account, duly signed, shall draw his order on the state treasurer therefor.”
    Acting under this authority, the city assessors of Lansing assessed the value of the state property in the city at $1,300,000, and apportioned to the State for police 'and fire expenses $2,525.90 for 1893, and for 1894 $2,470, making a total of $4,995.90. The relator presented this claim to the respondent, demanding its allowance. The respondent refused to allow it, and the purpose of this petition is to obtain the writ of mandamus to compel it.

      Bussell G. Ostrander, for relator.

      Fred A. Maynard, Attorney General, for respondent.
   Grant, J.

{after stating the facts). Four objections are raised by the attorney general to this claim:

1. That this provision of the city charter is in violation of section 20, art. 4, of the Constitution, in that no such object is expressed in its title.

2. That the general tax law of the State was passed subsequently to this charter, which act exempts all state property from taxation, and therefore repealed this provision of the charter.

3. That the act reincorporating the city of Lansing was not constitutionally enacted, because it was not read three times in each house of the legislature before its final passage, as required by section 19, art. 4, of the Constitution.

4. That the act is an appropriation of public money for local purposes, and is therefore void under section 45, art. 4, of the Constitution, in that two-thirds of the members of each house did not vote for the bill.

It has been the policy of this State from the beginning to exempt its property from taxation, local and general. I am not aware of any act before passed by the legislature imposing the burden upon the State of assisting municipal corporations financially to support their local governments. This is taxation pure and simple, and confers the extraordinary power upon the local authorities to assess the state property at any sum they shall deem proper, and then to apportion a certain part of the city taxes to the State. The State has no part or lot in the matter. No provision is made by which any state officer is notified, and can appear to contest the assessed value of the state property or the amount of the taxes, or to protect the interests of the State. That such power is extraordinary is a very mild statement of the case. It is the sole instance ever found upon the statute books of Michigan where private or public property was assessed, and taxation imposed, without - giving the owner an opportunity to be heard. Such power is repugnant to every principle of just taxation. The title to the act gives no hint of an intention to confer such power. It is not a common incident to municipal corporations. No better case can be found to illustrate the necessity and wisdom of the constitutional requirement. There is nothing in the title to this act to indicate to the taxpayers of this State or to their representatives in the legislature that the state property is to be taxed, or that its funds are to be appropriated to maintain the local government of the city of Lansing. No one would be bold enough to assert that, if such appeared in the title, it would not have met with opposition. We think this provision of the act is clearly unconstitutional, because the object is not expressed in the title. Davies v. Board of Sup’rs, 89 Mich. 295.

It is unimportant, in this view of the case, to discuss the other questions.

The writ is denied.

Long, C. J., and Moore, J., concurred with Grant, J.

Hooker, J.

(dissenting). I cannot concur with the majority of the court. The legislature, by Act No. 405, Local Acts 1893, passed “An act to reincorporate the city of Lansing, in the county of Ingham, and to repeal all acts and parts of acts in conflict herewith.” Section 14 of title 10 of said act reads as follows:

“The council shall afford all fire and police protection to property owned by the State, and bestow such care and attention upon the streets, sidewalks, cross-walks, sewers, and drains as the council shall deem necessary to such streets or avenues upon which may be located any of the State’s buildings, parks, or' grounds. The state board of auditors shall allow the city of Lansing such sum or sums of money as would, in the judgment of the city assessors, be lawfully assessable for like purposes against the property generally in said city of Lansing. And the auditor general, on the presentation of such account, duly signed, shall draw his order on the state treasurer therefor.”

This section, by its terms, imposes the duty upon the city of providing fire and police protection for state property, and of bestowing care upon the streets, sewers, and walks adjacent to such property. It recognizes that such service is of benefit to the entire State, as it unquestionably is, and provides for the reimbursement of the city from the state treasury. Municipal corporations are the creatures of the State, dependent upon it for existence, vested with certain privileges, and charged with certain duties of government, for the benefit of the State as well as the locality. They are agencies of government, and may be required to do and pay for many things which are of state as well as local interest, such as building and repairing roads, providing jails and prisons for local offenders against the laws of the State, as well as the ordinances of the city. How far a city may be required to defray expenses for the benefit of the State may be questionable, as a perusal of the following cases will show: State v. Haben, 22 Wis. 660; Board of Sup'rs v. Weider, 64 Ill. 427; Burr v. City of Carbondale, 76 Ill. 455. But where the locality has a special interest, as well as the general interest in which the State at large shares, and the subject is immediately related to its powers and privileges, the legislature may, at least, permit it to assume obligations and incur expenses for such objects. Merrick v. Inhabitants of Amherst, 12 Allen, 500; Marks v. Trustees of Purdue University, 37 Ind. 155; Hasbrouck v. City of Milwaukee, 13 Wis. 37; Gordon v. Cornes, 47 N. Y. 608; Bay City v. State Treasurer, 23 Mich. 499; Kirby v. Shaw, 19 Pa. St. 258; Callam v. Saginaw, 50 Mich. 10. Without determining the validity of a compulsory act of this character, when assailed by the city upon which it is imposed, we have no doubt of the validity of an arrangement by which services may be rendered by the city, and paid for by the State, for their mutual convenience. Undoubtedly, the legislature may provide a fire apparatus and service, and police, for its buildings, at the expense of the State. The city has provided itself with the appliances and means of furnishing the service, and the arrangement contemplated by section 14 may be mutually economical and desirable.

The act is attacked by the board of auditors, who refuse to pay the assessment made in accordance with section 14 of the charter. Several questions are raised by this record: It is alleged—•

1. That the provision is one appropriating money, and was not passed by the requisite two-thirds of the members elect.

2. That it is not within the title of the act.

3. That the general tax law passed at the same session, 18 days after the charter was passed, repealed section 14, inasmuch as it provided that the state property should not be taxed.

Section 45, art. 4, of the Constitution, provides: “ The assent of two-thirds of the members elected to each house of the legislature shall be requisite to every bill appropriating the public money or property for local or private purposes.” It is not applicable to this case, because, if this section can be said to appropriate money, it is not for local or private purposes, but for the benefit of the State at large.

Is the provision within the title ? The claim that it is not seems to rest upon the fact that the section provides for a charge against the State. When we consider that the State creates cities for its own purposes, and charges them with duties, I think there is little reason for saying that all matters connected with the affairs of the State, which may lawfully be confided to the city, are not covered by the title, unless we are to say that the title must contain a complete index to the provisions of the, act. Innumerable powers and privileges are given by such acts. Boards and courts, commissioners, public officers, etc., are provided for under similar titles, and they are sustained. It is not the first time in the history of the State that legislation of a similar character has been indulged in. In the year 1857, in an act entitled “An act to revise the charter of the city of Detroit,” provision was made for the erection of houses of correction by said city, to which offenders against the laws of the State might be sent from the various counties of the State; and it was provided that—

“All expenses attending the confinement of any person sentenced to be committed to any workhouse or house of correction of said city, for any offense against the general laws of this State now or hereafter punishable by imprisonment in the state prison, shall be paid by the state treasurer quarter yearly, on the certificate of the city controller that such expenses have been incurred.” Act No. 55, Sess. Laws 1857, p. 107.

Again, under an act entitled ‘ ‘ An act to establish the Detroit House of Correction, and authorize the confinement of convicted persons therein,” provisions were made by which the state prison inspectors might contract for the keeping of certain prisoners in said house of correction. 2 How. Stat. chap. 344. Under these and similar acts, persons have been confined in said house of correction, at the expense of the State and the several counties, ever since; and we are unable to learn that the validity of the acts has been questioned. I think that the point is not well taken. People v. Pond, 67 Mich. 98; People v. Gobles, Id. 475; Hargrave v. Weber, 66 Mich. 59; Boyce v. Sebring, Id. 210; Board of Sup’rs v. Auditor General, 65 Mich. 408; Tice v. Bay City, 78 Mich. 209.

The remaining question relates to the effect of the general tax law of 1893. This act provided a general rule for the assessment and collection of taxes, and in express terms repealed the general tax law of 1891, and “ all other acts and parts of acts in any wise contravening any of the provisions of this act.” Act No. 206, Pub. Acts 1893, § 126. Under the head of “ Beal Estate Exemptions” it provides that “all public property belonging to the United States, and all public property belonging to the State of Michigan,” etc. (section 7), shall be exempt from taxation. Was section 14 of the local act, reincorporating the city of Lansing, repealed by this provision ? If this latter act is to receive a strict and literal construction, it repeals section 14; but that is not necessary, and both laws may stand together, if such shall be shown to have been the legislative intent. The rule that statutes are to be interpreted in the light of, and with reference to, others in pari materia, has additional weight when applied to acts passed at one and the same session. Black v. Scott, 2 Brock. 325; State v. Rackley, 2 Blackf. 249; Carver v. Smith, 90 Ind. 227; State v. Dickinson, 20 Miss. 579; Simpkins v. Ward, 45 Mich. 559; Joy v. Thompson, 1 Doug. 373; Willard v. Longstreet, 2 Doug. 172; Malonny v. Mahar, 1 Mich. 26; People v. May, 3 Mich. 598; Galpin v. Abbott, 6 Mich. 17, 34; People v. McKinney, 10 Mich. 54, 84; Whipple v. Saginaw Circuit Judge, 26 Mich. 342; Reithmiller v. People, 44 Mich. 280; Turnbull v. Lumber Co., 55 Mich. 387. In Cain v. State, 20 Tex. 355, it was held that the enactment of a Criminal Code, repealing all other laws as to crimes, should be construed not to repeal, but to leave standing side by side with it, a license law with penalties passed at the same session.' See, also, People v. Jackson, 30 Cal. 427; Chandler v. Lee, 1 Idaho, 349; Nazareth Literary & Ben. Lnst. v. Com., 14 B. Mon. 266; State v. Bishop, 41 Mo. 16; Riggs v. Brewer, 64 Ala. 282. And see Smith v. People, 47 N. Y. 330, where it is said:

“Words, absolute of themselves, and language the most broad and comprehensive, may be qualified and restricted by reference to other parts of the same statute in which they are used, and to the circumstances and facts existing at the time, and to which they relate or are applied. A literal interpretation of words in most common use, and having a well-defined meaning as ordinarily used, would not unfrequently defeat, rather than accomplish, the intent of the party using them. * * * A clause in a statute purporting to repeal other statutes is subject to the same rules of interpretation as other enactments, and the intend must prevail over literal interpretation. One part of an act of the legislature may be referred to in aid of the interpretation of other parts of the same act. So, in case of doubt or uncertainty, acts in pari materia, passed before or after, and whether repealed or unrepealed, may be referred to, in order to discern the intent of the legislature in the use of particular terms; and within the same rule, and the reason of it, contemporaneous legislation, although not precisely in pari materia, may be referred to for the same purpose. Statutes in pari materia relate to the same subject, the same person or thing, or the same class of persons or things, and are to be read together, for the reason that it is to be implied that a code of statutes relating to one subject are governed by the same spirit, and are intended to be harmonious and consistent. They are to be taken together as if they were one in law, as one statute. ”

This rule of construction is reinforced by the rule, “ Generalia specialibus non derogant. The presumption is that a general later law does not abrogate an earlier special one by mere implication. The general law is usually presumed to have only general cases in view, and not particular ones, which have been already provided for by the special act. Having already given its attention to the particular subject, and provided for it, the legislature is reasonably presumed not to intend to alter that special legislation by a subsequent general enactment; and the latter is read as silently excluding from its operation the cases which have been provided for by the special one. Thorpe v. Adams, L. R. 6 C. P. 125; Reg. v. Champneys, Id. 384; Seward v. The Vera Cruz, 10 App. Cas. 68; New York, L. E. & W. R. Co. v. Board of Sup'rs of Delaware Co., 67 How. Prac. 5; Village of Hyde Park v. Oakwoods Cemetery Ass'n, 119 Ill. 141; State v. Mills, 34 N. J. Law, 177; Brown v. County Com’rs, 21 Pa. St. 37; Cumru Tp. v. Berks Co. Poor Directors, 112 Pa. St. 264; Gage v. Currier, 4 Pick. 399; Fitzgerald v. Champneys, 2 Johns. & H. 54; Crane v. Reeder, 22 Mich. 322, 334, and cases cited. This rule is held to have an added force when the two acts were passed at the same session, in the following cases: Town of Ottawa v. LaSalle Co., 12 Ill. 339; McFarland v. Bank, 4 Ark. 410. It is also said that the fact that the general act contains a clause repealing acts inconsistent with it does not diminish the force of this rule of construction. Brown v. Mullica Tp., 48 N. J. Law, 447. In view of these authorities, I am of the opinion that the two acts may be reasonably said to have been intended to stand together, and that the writ should issue as prayed.

Montgomery, J., concurred with Hooker, J.


author: Moore, J.

text:
    CLELAND v. CLARK.
    1. Appeal—Dissolution op Attachment—Objections not Raised Below.
    An objection that, under 2 How. Stat. § 8030, appeal, and not certiorari, is the proper remedy by which to obtain a review in the circuit court of proceedings before a commissioner for the dissolution of an attachment, cannot be raised for the first time in the Supreme Court.
    2. Attachment—Proceedings por Dissolution—Service of Citation—Attorneys.
    The attorney for an attachment creditor, both of whom are nonresidents of the county in which the action ’is pending, is not privileged from service of citation in interlocutory proceedings to dissolve the writ, while in the county for the purpose of trying the principal suit.
    3. Same—Construction of Statute.
    Under 3 How. Stat. § 8028, providing that the citation in proceedings to dissolve an attachment shall be served by reading it to the plaintiff, if found within the county, and, if not, that it may be served upon his agent or attorney, service upon the attorney without reading the citation to him is insufficient.

      Certiorari to Muskegon; Rugsell, J.
    Submitted November 12, 1896.
    Decided December 24, 1896.
    Attachment proceedings byJ Daniel Cleland against John H. Clark. The circuit court commissioner, upon defendant’s petition, entered an order dissolving the attachment, and plaintiff removed the proceedings to the circuit court by certiorari. From a judgment affirming the order-of dissolution, plaintiff brings certiorari.

    Reversed.

      Arthur Lowell (C. H. Gleason and R- J. Cleland, of counsel), for.appellant.

      Chamberlain & Cross, for appellee.
   Moore, J.

On or about March 2, 1895, appellant, as plaintiff, procured a writ of attachment to be issued out of the Muskegon circuit against the goods, chattels, and real estate of John H. Clark, who was then sued with one Zacheus C. Dyer as codefendant. This attachment was levied on certain lands in said county as the lands of said John H. Clark on or about March 22, 1895. On the 16th day of December, 1895, said attachment case came on for trial. The trial was ended on the 17th day of ¡December following, when plaintiff recovered judgment against said defendant. On the 16th day of December, John H. Clark presented his petition to a circuit court commissioner for the county of Muskegon, and procured a citation as commencement of proceedings to dissolve said attachment, which citation was returnable December 20, 1895. The citation was served upon appellant by delivering a triplicate original to both appellant and his attorney. It was not read to either of them. Appellant and his attorney were both nonresidents of the county of Muskegon, and only present at the time of service for the purpose of trying the attachment case before mentioned. The only allegation, in the petition for dissolution of attachment, that the said Clark had any interest in the property attached, is as follows:

“Your petitioner further shows that the legal title to said described parcel of land is in one Isaac Manchester, but that your petitioner is entitled to the possession thereof under a contract for sale of land, and that the said described parcel of land, or a portion thereof, constitutes the homestead of your petitioner. * * * And your petitioner therefore prays that the said attachment may be dissolved, and that the lands and property so seized and taken under said attachment may be wholly released therefrom, and may be restored to this defendant, who is still entitled to the full and free possession and enjoyment thereof.”

On the return day of the citation, appellant appeared for the purpose of making a motion to dismiss the proceedings for dissolution of attachment, for the reasons:

1. That there had been no service of the citation as required by law; consequently, the court had no jurisdiction.

2. That, as both the appellant, who was plaintiff in attachment, and his attorney, were nonresidents of the county in which the proceedings were begun, and as they were only present in that county for the purpose of attending upon the court then sitting, in the trial of the cause In which they were both interested, no service was made.

3. That the return of the officer on the citation did not show that any copy thereof was served.

4. That the petition nowhere alleged that the petitioner was, at the time of making the petition, the owner of the land attached.

5. That the petition did not allege that the petitioner was the owner of the land, or that he was entitled to the possession, at the time the attachment was levied.

6. That the petition did not allege sufficient facts to warrant a conclusion, as alleged, .that it was his homestead.

Said motion was overruled by the commissioner, and the defendant had judgment that the attachment be dissolved, and for his costs. Plaintiff then removed said cause to the circuit court for the county of Muskegon by certiorari, where the judgmént of the said circuit court commissioner was affirmed. The case is brought here for review by certiorari.

It is now the claim of the defendant that plaintiff has mistaken his remedy,—that since 1881 (2 How. Stat. § 8030) the remedy is by appeal, and not certiorari. No claim of that sort was made in the circuit court, and we think it too late to insist upon it here.

The circuit judge returns that, in the hearing before him, it was not contended that the service upon the plaintiff was legal; so that the only question necessary to consider here, in relation to the service, is, was the service upon the attorney sufficient ? It is claimed by the plaintiff, and admitted by defendant, that there could be no service of the citation upon the plaintiff, for the reason that he was not a resident of the county. It is also his claim that there could be no service upon the attorney for the plaintiff, because he was. in the county solely for the purpose of attending court, and was privileged. We think it a complete answer to this contention to say that his attendance upon court was to try the same cause in which the interlocutory proceedings were instituted. We can see no reason for saying that service of papers in an interlocutory proceeding in the same case cannot be made. To so hold would be very unjust. j

2 How. Stat. § 8028, contemplates service upon the attorney under some circumstances. It is urged, in addition to the reason already assigned, that the service on the attorney was not good because, instead of serving a copy, a triplicate original was served, and the citation was not read to the attorney. We think the service on the attorney was insufficient. The service was by delivering a triplicate origing.1 of the citation, and the citation was not read to the attorney. The statute provides that the citation shall be served three days, at least, before the return day thereof, by reading it to plaintiff in attachment, if found within the county, and, if not, then the same may be served upon the agent or attorney of the plaintiff, by the sheriff, either of his deputies, or any constable, etc. We think it is clear that the service is to be made in the same manner, whether served upon the agent or attorney or the plaintiff himself. No other method of service is prescribed by the statute, and it must be held that, where the alternative of serving upon the agent or attorney is resorted to, the method prescribed for service governs.

The order should be reversed.

The other Justices concurred.