text:
    George Philpott and Kalma Friedman v. Albert D. Bechtel.

      Partnership — Contract by one member of firm — Evidence.
    -At the time one member of a firm of newspaper publishers made a contract for advertising, nothing was said about the existence of the partnership. And, in a suit by the firm upon the contract, in which the partnership is established, it is held that the plaintiffs need not prove that the defendant understood, when he made the contract, that plaintiffs were partners.
    Error to Saginaw. .(Wilber, J.)
    Submitted on briefs January 23, 1895.
    Decided February 12, 1895.

      Assumpsit. Plaintiffs bring error.
    Beversed.
    The facts ■are stated in the opinion.

      Beach & Gavit, for appellants.

      Crane & Crane, for defendant.
   Grant, J.

Plaintiffs were copartners engaged in publishing a newspaper. Plaintiff Philpott made an agreement with defendant for advertising in the paper. Defendant was a merchant, and it- was agreed that Mr. Philpott’s bill at his store should be credited on the amount •due for advertising. Defendant presented a bill of $29, which was allowed,' but left a balance of $19.85, for which ■this suit was brought. Defendant claimed that the cost of advertising should not exceed $20. When the agreement-was made nothing was said about the copartnership of plaintiffs. The bill was made out and presented in the name of the firm. The court instructed the jury that it was necessary for the plaintiffs, before they could recover, to prove that they were copartners, and it was so understood by defendant.

The instruction was erroneous. A partner, in making-contracts, acts as the agent of the copartnership, and suit may be brought in the name of the firm. The partnership was clearly established, and the court should have so-instructed the jury. McDonnell v. Ford, 87 Mich. 198. The only fact for the determination of the jury was whether the agreement was for $20, as defendant claimed, or whether it was a contract to pay the usual rates, as-plaintiffs claimed.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    James A. Loranger v. The Lake Shore & Michigan Southern Railway Company.

      Master arid servant — Injury to. brakeman — Safe place — Contributory negligence — Fellow-servants.
    1. An experienced freight brakeman, after turning a switch to-allow the engine and tender to pass onto another track for the purpose of running out some cars, ran past the engine and tender, which were backing up “as fast as a fast walk,” and when within about two car lengths of the cars, and without signaling the engineer, who was bound to obey his orders, to-slacken speed, stepped in front of the tender for the purpose of reversing a crooked link, and thereby enabling him to make-the necessary coupling. While walking sideways upon the track, in his attempt to reverse said link, the brakeman stubbed his toe against a pile of ashes and cinders, lately dumped upon the track from a passing engine, fell, and was seriously injured. The brakeman had passed over the track on his way from the cars to the switch, but did not notice the ashes and cinders. The rules of the railroad company, and his contract with it, required the brakeman to look before entering upon the track in front of a moving train, to see that the track was clear. And it is held that the brakeman was guilty of such negligence as would bar a recovery for the injuries sustained.
    2. The usual and proper place to dump the ashes and cinders was ' at the turntable. And it is held that the fireman who dumped the ashes and cinders onto the track, and the section men whose duty it was to remove them, were fellow-servants with the brakeman, and for their negligence the railroad company is not liable, unless it had actual notice of the obstruction, or the same had existed for such a length of time that the law will imply such notice.
    Error to Monroe. (Kinne, J.)
    Argued November 23, 1894.
    Decided February 12, 1895.
    Negligence case. Defendant brings error.
    Reversed, and no new trial ordered.
    The facts are stated in the opinion.

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

      J. R. Rauch and G. 'A. Golden (George M. landon, of counsel), for plaintiff.
   Grant, J.

The accident which resulted in plaintiff’s injury occurred July 31, 1879, at 5 o’clock p. m. The train crew consisted of five men, — conductor, engineer, fireman, and two brakemen, — plaintiff being the head brakeman. The freight train in charge of the crew had been engaged during the day in distributing steel rails. Just before the accident, the engine and tender were standing upon one track, and the rest of the train upon the main ■track. , Plaintiff was directed to go over upon wbat was «called the “pier track,” and couple some cars to the engine for the purpose of putting them into their train going ■west. It was necessary to turn a switch in order to get the engine and tender upon the pier track. Plaintiff testified that he was directed by the conductor to proceed in liaste, and throw the switch, there being no switchman at ¡hand to do the work. He hurried along the track; turned the switch; the engine passed over the switch, and backed •■upon the pier track. The engine and tender were backing mp “as fast as a fast walk.” Plaintiff ran past the engine ;and tender “ on a dog trot,” and when within about two car lengths of the cars to be coupled stepped inside the rail in advance of the tender for the purpose of reversing a crooked link, so as to be able to make the coupling when the standing cars were reached. He did not signal to the ¿engineer to slacken speed; and while he was walking sideways, in his attempt to turn the link, he stubbed his toe .against a pile of fresh ashes and cinders lying between the Tails, fell, and was seriously injured. While other grounds •of negligence are alleged in the declaration, none were insisted upon at the trial except the pile of cinders and ashes, and upon this alone the recovery was based. Plaintiff had just passed over the track on his way to the switch, but did not notice it. He says he glanced at it as he fell, .and thought it was five or six inches high, filling the entire .space between the rails. He gave the only evidence on his part as to the manner of the accident.

The contention of the plaintiff is—

1. That he was not furnished a safe place to work in "by reason of this pile of cinders and ashes, and that its ■being there was the negligence of the defendant.
2. That it was good and. safe railroading and customary for brakemen to go in front of the cars for the purpose for which he went while they were moving “as fast as a fast walk.”
3. That in so doing he was in the exercise of due care.

The contention of the defendant is—

1. That in so doing he violated its rules, and his written ■contract of service.
2. That the ashes and cinders, if any were there, were ■placed there by some fireman or engineer, and that, if they were there, the duty to remove them belonged to the ¡section crew, and that all these employés were fellow-•servants, for whose acts the defendant is not liable.
3. That the plaintiff was guilty of negligence.

For A full understanding of the case a further statement of facts may be important. Plaintiff was a man of experience in, and thoroughly familiar with, the business in which he was engaged. The movements of the engine were entirely under his control, and the engineer was bound to obey his orders. The engineer was looking out upon ■one side and the fireman on the other of the cab, ready ffo receive orders from him. The rules of the company particularly bearing upon this case — Nos. 28 and 29 — are .as follows:

“28. Every employé is required to exercise the utmost ■caution to avoid injury to himself or to his fellows, and -especially in the switching of cars, and in all movements •of trains; in doing which work each employé must look .after, and be responsible for, his own safety. Jumping on -or off trains or engines in motion, getting between cars in motion to uncouple them, and all similar imprudences, are ■dangerous, and in violation of duty. All employés are warned that if they commit them it will be at their own peril and risk. '
“29. Every employé is hereby warned that before exposing himself in working, or in being on the tracks or grounds -of the company, or in working with or being in any manner on or with its cars, engines, machinery, or tools, he must examine, for his own safety, the condition of all -machinery, tools, tracks, cars, engines, or whatever he may ■undertake to work upon or with, before he makes use of ■or exposes himself on or with the same, so as to ascertain, so far as lie reasonably can, tbeir condition and soundness^ * * * The object of this rale is to protect employésfrom suffering personal injury from any cause. While the company will be responsible to each one for the discharge-of all its duties and obligations to him, and for any fault, or neglect of its, own or of its board of directors or general officers which are the proximate cause of injury, yet it will not be responsible to him for the consequences of his own fault or neglect, or of that of any other employés of the-company, whether they, or either of them, are superior to him in authority, as conductor, foreman, or otherwise, or not; it being the right and duty of every employé, under all circumstances, to take sufficient time, before exposing himself, to make such examination as is here, required, and to refuse to obey any order which would expose him to-danger. No person who is careless of others or of himself' should be continued in the service of this company.”

His written contract of service, signed by him, is as. follows:

I, the undersigned, having been employed in the service-of the Lake Shore & Michigan Southern Railway Company,, hereby acknowledge the receipt of a copy of the printed orders, rules, and regulations of said company, also of a-copy of this agreement, and do hereby agree with itj in consideration that it will pay me the wages stipulated, that-I will, so long as I remain in its service, faithfully respect, and obey all said. orders, rules, and regulations, and all others which may be adopted, and of which I may have-notice; and I do further agree that I will, for myself, in all cases, before exposing myself in working, or in being on the tracks or grounds of the company, or in working with or being in any manner on or with its cars, engines, machinery, or tools, examine, for my own safety, the con'dition of all machinery, tools, tracks, cars, engines, or whatever I may undertake to work upon or with, before I make use of or' expose myself on or with the same, so as-to ascertain, so far as I reasonably can, their condition and soundness; and that I will promptly report, either to-the superintendent of the company or to its agent who. may be my immediate superior officer, any defect in any track,_ machinery, tools, or property of the company affecting the safety of any one using or operating upon or with, the same. The object of this agreement being:
“First. To protect me from suffering personal injury rfrem any cause.
“Second. That, while the company will be responsible "to me for the discharge of all its duties and obligations to me, and for any fault or neglect of its own or of its board ■of directors or general officers which are the proximate ■cause of injury, yet it will not be responsible to me for the consequences of my own fault or neglect, or of that of .any other employés of the company, whether they, or either ■of them, are superior to me in authority, as conductor, foreman, or otherwise, or not; it being expressly agreed upon "the part of the company that it is my right and duty, under all circumstances, to take sufficient time, before exposing himself, to make such examination as I have here •agreed to, and refuse to obey any order which would expose me to danger.”

There is a direct conflict of evidence as to the existence of the pile of cinders and ashes. The other brakeman, the engineer, the fireman, and the conductor testify that plaintiff rode on the engine down to the switch. These witnesses also testify that, after taking care of plaintiff, they examined-the end of' the tender, to determine, if possible, how the accident happened; that upon the brake beam they found fresh marks make by boot heels, and that on the end of the tender, which was thickly covered with dust, were finger marks reaching nearly to the top of the tender. The testimony of the engineer upon this point is as follows:

“Thefe were prints where he [plaintiff] stepped on the brake beam, and finger marks six or seven inches from the top of the tank. The marks looked as if he had attempted to reach the molding of the tender and had missed it,— could not reach high enough, — as he stepped on the brake beam, and missed his hold.”

To the same effect are the other witnesses above named. One, David Boies, a witness having no connection with the ■defendant, testifies that he was about four blocks distant when the accident happened; that he saw plaintiff at the switch; saw him step in front, put his foot on the brake beam, and reach his hand up to take hold; that he slipped his hold and fell down. The claim of the defense was that the cars standing on the pier track were more than-200 feet from the place of the accident, and that plaintiff was attempting to get upon the brake beam to ride.

We think the plaintiff must be held to have been guilty of contributory negligence. The 'rules of the company and his own contract required him to look before entering upon the track in front of a moving train, to see-that it was clear. According to his own testimony, he had just passed over the' track, and presumably over this, very obstruction. It was but two or three steps from him when he stepped upon the track, and he could have seen it at a glance. He did see it as he fell, and was able to-tell its size. No rule of the company required him to go-in front of a train moving as fast as this one was, to-reverse the link, or perform any other act of service; and there was .no evidence that any such method was known or sanctioned by it. Such a requirement would be at once-condemned as cruel and inhuman. If it was customary for the employés to do so, it was a custom for which they, and not the company, must be held responsible. Employés cannot bind a company by the performance of' such reckless acts, no matter how frequently they may do-them. It is abhorrent to reason and common sense to say that it is good and safe railroading and careful conduct, for a brakeman to step in front of a train moving as fast as a fast walk, and perform a service which requires him to step sideways to keep out of the way, knowing that., death is almost sure to follow should he miss his footing.. Testimony that" such conduct is prudent, and constitutes, good railroading, is incompetent, and unworthy of credence.. The fireman testified that he had seen brakemen climb-onto a brake beam to ride, but that he always stopped his engine, and made them get off. Should brakemen do this habitually, would it make a custom binding upon the defendant? When employés become forgetful of danger, and perform acts in a manner not required by the rules of the company, and entirely unnecessary, they assume the consequence of these acts.

It appears to be undisputed that the usual and proper, place to dump the ashes and cinders was at the turntable.According to the plaintiff's own showing, the ashes were-fresh and had been recently dumped. They may not have' been there an hour. There is nothing in the record to» show how long they had been there. Under the repeated! decisions of this Court, the fireman, who dumped them,, and the section men whose duty it was to remove them,, were fellow-servants with the plaintiff, and for their negligent acts the defendant is not liable. The defendant’, had furnished a good roadbed, and in this respect hadi done its duty in furnishing a safe place. It was rendered unsafe temporarily by the act of a fellow-servant. In order to bind defendant, actual notice of the obstruction must”, be shown, or it must be shown to have existed for such¿ a length of time that the law will imply notice. Neither-is shown or claimed. This is another attempt to avoids non-liability for the acts of a fellow-servant by invoking-the doctrine of a safe place. Jarman v. Railway Co., 98 Mich. 135, and authorities there cited; Railway Co. v. Adams, 105 Ind. 163.

Judgment reversed, and no new trial ordered.

Long and Hooker, JJ., concurred with Grant, J„. McGrath, C. J., and Montgomery, J., concurred in the.result.


text:
    George F. Beardsley v. Oscar Webber and Clarence W. Chapin.

      Banks and banking — Certificate of deposit — Demand—Interest.
    .1, A certificate of deposit, payable to the order of the depositor on its return properly indorsed, ■ is a promissory note, payable on demand; citing Cate v, Patterson, 25 Mich. 191; Tripp v. Curtenius, 36 Id. 494; Birch v. Fisher, .51 Id. 36.
    2. The institution of a suit upon such a certificate of deposit is a sufficient demand of payment.
    3. Where a certificate of deposit provides for the payment of interest if the deposit is left for a stated time, and suit is brought upon the certificate before the expiration of said period and without previous demand, interest should only be allowed from the date of the commencement of suit; citing In re Estate of King, 94 Mich. 411.
    Error to Kent. (Grove, J.)
    Argued January 24, 1895.
    Decided February 12, 1895.

      Assumpsit. Defendant Webber brings error.
    Judgment modified.
    The facts are stated in the opinion.

      William O. Webster, for appellant.

      1. J. O’Brien and James H. Campbell, for plaintiff.

       For the authorities on the maturity of a certificate of deposit, see note to First Nat’l Bank v. Security Nat’l Bank, 15 L. R. A. 386.

   Grant, J.

Defendants were bankers. Plaintiff deposited with them $8,000, «for which ,he received the following certificate;

“Bank of Webber & Chapin.
“Stanton, Mich., Oct. 26, 1892.
“G. F. Beardsley has deposited in this bank $8,000 (eight thousand dollars), payable to the order of himself on the return of this certificate properly indorsed. Interest at 6 per cent, if left 12 months for all full months. Interest to cease if not renewed at end of one year from date.”

July 26, 1893, the bank closed its doors, having previously suspended payment. Plaintiff testified that he presented the certificate and demanded payment before bringing suit, which was instituted July 28, 1893. The defendants denied that the certificate was presented and payment demanded. They, however, admit that they could not pay it; that plaintiff had a conversation with them in regard to its payment; and that they then, offered to pay it by turning out other paper. The court directed a verdict for plaintiff for the amount of the certificate and interest from its date.

The appellant contends that the instruction was erroneous, because the presentation of the certificate, properly indorsed, and demand, were necessary before suit. We need not refer to the holdings of other courts. This Court has held that such a certificate of deposit is a promissory note, payable on demand. Cate v. Patterson, 25 Mich. 191; Tripp v. Curtenius, 36 Id. 494; Birch v. Fisher, 51 Id. 36, 39. No demand is necessary on a demand note as against the maker. The institution of a suit is a sufficient demand. 3 Rand. Com. Paper, § 1070; Story, Prom. Notes, § 29. The authorities on this point will be found cited in notes to the above sections. It follows that the court was correct in instructing the jury that no specific demand was necessary before the suit, and in directing a verdict for plaintiff.

We think, however, the court erred in allowing interest from the date of the certificate. It was the express agreement that interest should not be allowed unless the deposit remained for a year. On such notes interest does not begin to run until demand made or suit brought. In re Estate of King, 94 Mich. 411.

Judgment will be entered in this Court for the principal and interest from the date of the commencement of suit. Neither party will recover costs in this Court.

Long, Montgomery, and Hooker, JJ., concurredMcGrath, C. J., did not sit.


author: Hooker, J.

text:
    Royal Barber v. William E. Stone.

      Landlord and tenant — Non-payment of part of rent — Summary ■ • proceedings.

    1. The fact that rent is payable in advance does not make the-actual use of the leased premises any the less the consideration for such payment.
    2. How. Stat. § 8295, which provides for the recovery by summary-proceedings of leased premises for non-payment of rent, does-not authorize the commencement of such proceedings before-the rent paid has been fully earned.
    3. A lease provided for the payment of rent in monthly installments in advance. The tenant was in arrears for a portion of a month’s rent, and failed to pay the rent for the succeeding month when due. The landlord served the tenant with notice to quit, and on the same day accepted from him a sum of money sufficient to pay the rent which had been earned, and a portion of the installment due for the succeeding month. After the expiration of the time limited in the notice for the-payment of the rent, and before the -portion of the advance-installment paid had been fully earned, the landlord instituted summary proceedings to recover the leased premises. And it. is held that it is inconsistent for the landlord to assert a forfeiture and termination of the lease by said notice and action, and at the same time take and retain money, his only right to-which is predicated upon the continuance of the tenant’s right to occupy under the lease, and a judgment in favor of the-tenant is affirmed.
    Error to Hillsdale. (Lane, J.)
    Submitted on briefs January 23, 1895.
    Decided February 12, 1895.

      Summary proceedings to recover the possession of leased prfemises for non-payment of rent. Complainant brings error.
    Affirmed.
    The facts are stated in the opinion.

      William O. Chadivick, for appellant.

      James T. Qhestnut, for defendant.
   Hooker, J.

The complainant leased the premises in-controversy to the defendant, the rent being payable-monthly in advance on the 1st day of each month. On September 1, 1892, the rent was not paid, and there was-also a dispute of $4.50, which the circuit judge has determined to have been due and unpaid for back rent. The sum of $11.50 was therefore due and payable on September 1. On September ,2, the complainant served the statutory notice to quit or pay the rent, and on the-same day he was paid and received the sum of $8.50. It is apparent that this paid the back rent, and left $4 'lobe applied upon the month of September, then just commenced. At the expiration of seven days summary proceedings were commenced before a circuit court commissioner to recover possession upon the ground of non-payment of rent.

The defense contends that at this time no. rent was earned by the complainant, as the $4 paid the rent for four-sevenths of the month of September, and that while-the complainant had a right to require payment of rent in advance, according to the terms of the lease, and to-declare the lease forfeited if not paid, he could not receive a part of the rent for the succeeding month, and then enforce the forfeiture which he had declared by his notice.

The fact that rent was payable in advance does not make the actual use of the premises any the less the consideration for the payment. The landlord, by receiving the monthly payment, recognizes the right of his tenant to occupy for the succeeding month. He is under ho obligation to receive less than the monthly payment. What excuse is there for his doing so, unless he expects to give something in return? By the terms of the lease, a failure to pay rent gives an immediate right of re-entry without recourse to legal proceedings. Pendill v. Mining Co., 64 Mich. 179. But if the landlord receives' a portion of such rent, although not in full compliance with the terms of the lease, may he still re-enter, claiming the forfeiture, and at the same time retain money, the only consideration for which is future occupation? In such case we think that the receipt of the money is a recognition of the right to occupy the premises for the period which such sum would cover, to say the least, and we do not see how the case is different where the payment is made after notice, except as to amounts actually earned. The statute permits notice only when rent is due by the terms of the lease. We cannot believe that it was the intention of the Legislature to provide for an ouster during, the period for which rent has already been paid. Parties may agree that successive payments of rent shall be made before the preceding payments are fully earned, but, in our opinion, this act (How. Stat. § 8295) would not justify the commencement of proceedings before the rent’actually paid was-fully earned. For that period the tenant should have a right to stay, and it is to be presumed that at its expiration he would yield possession without litigation, if in duty bound to do so. It is inconsistent for a landlord to assert a forfeiture and termination of a. lease, which he does by his notice and action, and at the same time take and retain money, his only right to which is predicated upon the continuance of the tenant’s right to occupy under the lease. Our attention has not been called to a case which decides the exact point in controversy, but we think the principle is recognized by many of the cases cited by counsel..

In our opinion, the judgment of the circuit court should be affirmed, and it will therefore be so ordered.

The other Justices concurred.

       Counsel cited Bleecker v. Smith, 13 Wend. 530; Prindle v. Anderson, 19 Id. 391; Jackson v. Allen, 3 Cow. 220; Jackson v. Sheldon, 5 Id. 448; Camp v. Pulver, 5 Barb. 97; Hunter v. Osterhoudt, 11 Id. 33; Conway v. Starkweather, 1 Denio, 113; Camp v. Scott, 47 Conn. 366; Richburg v. Bartley, Busb. (N. C.) 418; Gomber v. Hackett, 6 Wis. 323.


text:
    Simon Fine v. Robert P. Navarre.

      Malicious prosecution — Probable cause — Question for jury — Damages — Evidence.
    1. Where, in a suit for malicious prosecution, the facts are undisputed, want of probable cause is purely a question of law? citing Huntington ’v. Gault, 81 Mich. 144, 155.
    2. In a suit for malicious prosecution in causing plaintiff’s arrest for engaging in the business of selling spirituous and intoxicating liquors without having paid the 8500 tax and posted the reeeipt and notice as required by law, the proof relied, upon to sustain the complaint was that the defendant had sent a third party to the plaintiff to buy whisky, which he did, bringing it to the defendant in a colored bottle furnished for that purpose, and that, on tasting the contents of the bottle the next day, it was found to be whisky. The plaintiff denied selling any whisky to said party, but admitted that he sold him light wine, made from native grapes, and claimed that, while he was not authorized to sell whisky, he had a “ beer license.” .And it is held- that a request on the part of the defendant for an instruction that there was probable cause for making the complaint was properly refused, it being a question for the jury.
    S, It was competent for the plaintiff under his declaration (which averred that, "by reason of said prosecution, his credit was impaired so that his creditors demanded security for their debts, and he was obliged to mortgage his property to give such security) to show that plaintiff was a merchant; that he bought goods in a certain city; that he was indebted to several parties for goods; that said parties, on hearing of the pendency of the charge, refused him further credit, and required a chattel mortgage, which he was obliged to give in order to avoid being sued.
    Error to Monroe. (Kinne, J.)
    Argued January 25, 1895.
    Decided February 12, 1895.
    Case. Defendant brings error.
    Affirmed.
    The facts are ■stated in the opinion.

      William Look and Ira G. Humphrey, for appellant.

      S'loman, Groesbeck & Robinson (H, R. Gilclay, of counsel), for plaintiff.
   Hooker, J.

The defendant appeals from a judgment -rendered against him in the circuit court in an action for malicious prosecution. The defendant had made a complaint against the plaintiff for violation of the liquor law, the charge being that he was engaged in the business of selling, etc., spirituous and intoxicating liquors without having paid the tax of $500, and without having posted the receipt and notice required by law, which resulted in bis acquittal upon the trial at the circuit. This action was Ihen brought.

The counsel for defendant requested the circuit judge to instruct the jury that there was probable cause, and that the defendant must be acquitted, which was refused. We .are cited to the case of Huntington v. Gault, 81 Mich. 155, in support of the request. As stated in that case, admitted or undisputed facts make probable cause a question of law for the court. In this case the proof relied upon to. sustain the complaint was that the defendant had sent one JBarrow to buy whisky, which he did, bringing it to the •defendant in a blue bottle; that the next day it was tasted, and found to be whisky. The plaintiff denied selling any whisky to Barrow, but said that he sold wine, and that, while he was not authorized to sell whisky, he had a ■"'beer license.”- There was a dispute over the question of "the sale. If this was the only proof that he was engaged in the business charged, the prosecution would fail if wine was sold instead of whisky; and if it was true, as contended, that this wine was changed to whisky by the defendant after the bottle was brought to him, he knew to ■a certainty that the plaintiff had not on that occasion sold in contravention of law, and, unless he had some other reason for believing that the plaintiff was engaged in selling spirituous and intoxicating liquors without paying the tax of $500 and posting the receipt and notice, he had not •a shadow of justification for his complaint. Harris v. Woodford, 98 Mich. 151. This purchase by Barrow was the transaction upon which the defendant sought to justify his •complaint. It was the support of his alleged good faith. It was, therefore, a proper question for the jury.

The plaintiff introduced evidence tending to show that he was a merchant, and that he bought goods on credit in Detroit; that at the time of the prosecution he was indebted to several parties for goods, who, on hearing of the pendency of the charge, refused him further credit, and required a chattel mortgage, which he was obliged to give to avoid being. sued. This is said to have been erroneously admitted. The only comment made in the brief is that it was not cotopetent to prove loss of credit by particular instances. The declaration states that the-plaintiff's “credit was thereby impaired-so that his creditors demanded security for their debts, and said plaintiff was obliged to mortgage his property to give said security.”' Loss of pecuniary credit may be a substantial injury to-one relying upon, it. It does not necessarily and inevitably follow arrest upon a criminal charge, and perhaps cannot, be presumed to do so. If not, it follows that it must be-proved like any other special damage, and, if instances of' loss of confidence cannot be. shown, it is not clear how it. should be established. A descent of creditors, brought about by the publicity of the charge, would seem to be-as tangible evidence of the loss of credit as any that can be imagined, especially if, under threats of suit, they required and procured a mortgage of the debtor's property to secure their debts. See Tomlinson v. Derby, 43 Conn. 562; Burt v. McBain, 29 Mich. 260; Steph. Mal. Pros. 117; Hatt v. Evening News Association, 94 Mich. 117; 14 Am. & Eng. Enc. Law, 71, 72, and notes. We think, that it was proper to admit the testimony mentioned.

We deem it unnecessary to discuss the other errors; alleged further than to say that we find no error in them.

The judgment will be affirmed. -,

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, C. J., did not sit.

       Plaintiff testified that the wine he sold was light wine, made from native grapes, and of the color of whisky. See Act No. 313, Laws of 1887, § 3.


text:
    James F. Joy, Sullivan M. Cutcheon, and Helen M. Moore, Executors, etc., v. Emerson Vance et al.

      Principal and agent — Estoppel—Payment of mortgage — Notice*
    1. The owner of property cannot be held estopped from denying the authority of an assumed agent to act with reference thereto where the person dealing with such agent is ignorant of the. owner’s claim to such property.
    2. The fact that the" holder of á mortgage, while retaining the-securities in his possession, forwards the coupon interest notes to a third party for collection from time to time, as they mature, does not, as a matter of law, constitute such party an agent for the collection of subsequent installments of interest or of the principal.
    3. Where a mortgagor pays the mortgage to one who has never held the legal title thereto, either as mortgagee or assignee, and who does not have the mortgage papers in his possession, it is immaterial, in a suit brought by an assignee to foreclose-the mortgage, that the mortgagor, at the time of such payment, had no notice of the assignment.
    Appeal from Clinton. (Daboll, J.)
    Argued January 24, 1895.
    Decided February 12, 1895.
    Bill to foreclose a mortgage. Complainants appeal»
    Decree reversed, and one entered in this Court as prayed»
    The facts are stated in the opinion.

      Cutoheon, Stellwagen & Fleming, for complainants.

      Perrins & Baldwin, for defendants Vance.
   Hooker, J.

The complainants purchased a mortgage and four accompanying notes from Walker & White. As the interest notes came due, they were sent to the Michi■gan Mortgage Company for collection. With the last of these was sent a letter of which a copy follows:

“ Detroit, Mich., Feb. 25, ’91.
“Michigan Mortgage Co., Lim.,
“St. Johns, Mich.
Gentlemen: Inclosed you will find, for collection, interest coupon of James D. Estes for $52.50, due at your office Feb. 24, ’91; also interest coupon of Emerson Vance for $130, due at your office Feb. 28, ’91. Please receive these .amounts, and remit to me;
“The Emerson Vance mortgage becomes due the 28th inst. Does he wish to pay it? If so, we will prepare a discharge, and send to you.
“Yours truly,
“S. M. Cutcheon, Ex. “F.”

'The principal was not paid, and in February, 1892, the interest was collected as before, upon a request by letter from the complainants to the Michigan Mortgage Company. ■On February 22, 1893, the following letter was sent by comjplainants to the Michigan Mortgage Company, viz.:

“Detroit, Mich., Feb. 22, ’93.
“Michigan Mortgage Co., Lim.,
“St. Johns, Mich.
“Gentlemen: On the 24th inst. there will be due this -estate six months’ interest upon mortgage of James D. Estes, amounting to fifty-two dollars and fifty cents ($52.50). The principal of the mortgage becomes due the same time. Does Mr. Estes wish to continue the loan?
“ On Feb. 28 there will be due one year’s interest upon mortgage of Emerson Vance to this estate, amounting to ■one hundred and thirty dollars ($130.00).
“May I trouble you to collect these notes, and remit to me, and greatly oblige.
“Yours truly,
“S. M. Cutcheon, Executor.
“Fi”

, 'On March 11, 1892, Vance paid the mortgage, taking ifche receipt of the Michigan Mortgage Company in full. The interest was paid to the complainants in October, 1893. They never received the principal, and the Michigan Mortgage Company soon after failed. Complainant ■subsequently filed a bill for foreclosure, making Yance and wife and Walker & White parties. Yance asserts payment by way of defense.

The mortgage and. notes were made payable to Walker & White at their office in St. Johns. The Michigan Mort,gage Company succeeded to their business, they being loan -agents, and seems to have been conducted by them at their .former office. Yance testified that he had no notice of the assignment of the mortgage, and that he paid it to the Michigan Mortgage Company, at its place of business. The complainants allege that the receipt taken at the time ¡apprised him of the fact that the mortgage belonged to ■the Moore estate. It is as follows:

“$2,005. St. Johns, Mich., March 11, ’92.
“ Eeceived of Emerson Yance $2,005, in payment in full ■of his mortgage to the Moore estate, and interest to date.
“Michigan Mortgage Co., Liar.
“By Theo. Price.”

Inasmuch as the mortgage was not paid to Walker & White, but to the Michigan Mortgage Company, as Yance himself testifies, it is not important whether he had notice or not. Had he paid to Walker & White in ignorance of the transfer, this question might have been important, but the case does not turn upon his right to pay to them, but upon his right to pay to the mortgage company. And, as Yance says that he did not know of the complainants’ ownership, there is no estoppel which would preclude their denial of the agency. He was not misled by them, but, if at all, by the acts of the Michigan Mortgage Company. The •case is reduced, therefore, to the single question of the .authority of the Michigan Mortgage Company to receive the money upon the mortgage, Unless we are to say that the collection of the interest through this company, from time-to time, constituted it an agent for the collection of subsequent installments of interest and the principal, we cannot-deny complainants the relief sought. Vance admits he paid the interest to the company without taking the trouble to-ascertain whether it had the mortgage or who owned'it. When he paid the mortgage, he was satisfied with the statement that the mortgage was mislaid, although he received a receipt which indicated that it did not belong to the-company to which he was paying it. It was perhaps the natural thing for him to pay it, in reliance upon the statement of these men with whom he was acquainted and in whom he had confidence; but his rights must depend upon their authority to receive the money, not upon his confidence in them.

Defendants’ counsel claim that there was a general-authority to collect from the fact that Mr. Cutcheon was in the habit of having this company make collections for his clients, including this estate, for which he had purchased several mortgages from -the company. The authority of the company does not depend upon the amount of business done by it for the complainants, but upon the character and extent of the employment, as evidenced by the express authority conferred and the method of their dealing with it. Campbell v. Sherman, 49 Mich. 536. So far as shown, Mr. Outcheon retained the custody of his papers, sending from time to time specific authority and directions for the performance of particular and designated acts. We search the record in vain for evidence that he-gave a general authority to collect mortgages purchased or held by him. He found them profitable business acquaintances, for they had mortgages which he wished to buy;, but he appears to have carefully managed the collections-in a way which enabled him to keep track of them, as a-prudent lawyer should for clients who confide their busimess to him. He had a right to suppose that the mortgagor would not pay notes or mortgage without receiving them, and by beeping them in his.own hands he interposed the only practical obstacle to the perpetration of a fraud by the mortgage company. Had the mortgagor been ■as careful to ascertain the authority of the company as the complainants were to restrict it, no one would have suffered. As it is, the loss should fall upon him, and not upon the complainants, who . are in no way responsible for it.

The decree of the circuit court must be reversed, and -one entered here . for the complainants, as prayed in the bill, with costs of both courts.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, C. J., did not sit.


text:
    Alfred Burden, Administrator, etc., v. The Lake Shore & Michigan Southern Railway Company.

      .Railroad companies — Injury to trespasser — Jumping from train— Proximate cause — Contributory negligence.

    _A youth 18 years of age, upon, being detected by the conductor of a passenger train upon which he was stealing a ride, refused to pay the required fare, and, upon the conductor’s stating that he would turn him over to an officer at a certain place several stations distapt, jumped from the rear platform of the last car, while the train was running at a high rate of speed, and was killed. And it is held that the statement of the conductor cannot be said to have been the proximate cause of the injury, and, furthermore, that the decedent was guilty of such negligence as would bar a recovery by the administrator of Ms estate for his death.

      Error to Wayne. (Lillibridge, J.)
    Submitted on briefs. January 23, 1895.
    Decided February 12, 1895.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Ervin Palmer, for appellant.

      Wells, Angelí, Boynton & McMillan, for defendant.
   Hooker, J.

Plaintiff's intestate, a youth of 18 years-, of age, and a companion somewhat younger, were detected riding upon the rear steps of the defendant's passenger-train, by the conductor, who told them to come in the-car, lest they be jerked from the train and injured. On being asked where they were going, they replied, " To the next station.'' They refused to pay fare, saying they had but three cents. According to some of the testimony, the* conductor then said that he would take them to Adrian,, a distance of three or four stations, and turn them over to an officer, and then left them to see if any more .boys, were on the train; whereupon the boys mentioned had a. conversation together, and went upon the rear platform again, and the plaintiff's intestate jumped from the train, and was killed, although his companion advised him not to do so, to which he replied that he could do it.

This was an act so palpably reckless as to be inexcusable.. Nor can the statement of the conductor be said to have-been the’ proximate cause of the injury to the deceased. The circuit court was right in directing a verdict for the-defendant.

The judgment will be affirmed.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, C. J., did not sit.


author: McGrath, C. J.

text:
    M Foster Chafey v. John T. Mathews, Receiver, etc.

      Chattel mortgage — Affidavit of renewal — False representations of mortgagee — Conditional sale — Replevin.
    1. A dealer in wagons, carriages,-and agricultural implements mortgaged to the plaintiff, who was cashier of a bank of which the mortgagor was a customer, his entire stock and- all additions thereto, to secure the payment of his present and future obligations to the bank. The bank continued for more tharn two years after the execution of the mortgage to discount, paper for the mortgagor, and furnished him other financial! assistance, when he made an assignment for the benefit off creditors, and the receiver, appointed upon the failure of theassignee to qualify, took possession of the assigned property»,, which was replevied by the mortgagee. And in affirming a. judgment in favor of the plaintiff it is held:
    a — The defendant cannot object to said recovery on the ground that the mortgage was taken in the individual name of the plaintiff, it appearing that its purpose was fully understood, not only by the mortgagor, but by the creditors, that-all of the business was done through the plaintiff, and that no one has been prejudiced by reason of the mortgage not-running directly to the bank.
    b — Affidavits of renewal, stating that there was due and, unpaid on the mortgage the sum for which the same was-given, and that the interest of the mortgagee in the chattels-described in the mortgage remained unchanged, were sufficient» it not being necessary to state therein the actual amount off the matured indebtedness at the time the affidavits were-made, so long as the obligations, both matured and unmatured», exceeded that sum.

      c — Representations made by the plaintiff, upon inquiry made by other creditors, that the mortgagor was doing a good business, and would be able to meet his obligations, were opinions, merely; and, it not appearing but that such opinions were •given in good faith, the rights of the plaintiff are not affected thereby.
    '2. After the execution of the mortgage, a carriage company delivered to the mortgagor wagons and carriages under written contracts, by the terms of which the title thereto was to remain in the vendor, and it was urged that the plaintiff had no right to take said property under his writ. And it is held that the right to the possession of said property was at the date of the assignment in the mortgagor; that he cannot be said to have had no interest in said property; that whatever interest he had passed to the plaintiff under the mortgage, and ■whatever payments the mortgagor may have made on the contracts inured to the benefit of the plaintiff; that the receiver took through the mortgagor, and subject to the mortgage, and he cannot be allowed in said suit to represent the carriage company, whose claim is adverse to that of the receiver and the creditors.
    Error to G-ratipt. (Daboll, J.)
    Argued January 29 and 30, 1895.
    Decided February 12, 1895.
    .(Replevin. Defendant brings error.
    Affirmed.
    The iacts are stated in the opinion.

      B. H. Sawyer, for appellant.

      Stone & Salter, for plaintiff.

       AFFIDAVIT FOR RENEWAL OF CHATTEL MORTGAGE.
      For cases bearing upon the question of the sufficiency of such affidavits under How. Stat. § 6196, which provides that they shall set forth the interest which the mortgagee has by virtue of his mortgage in the property therein described, see:
      1. Briggs v. Mette, 42 Mich. 12, where an affidavit of renewal of a chattel mortgage lease, by the terms of which the lessee covenanted to pay the lessor a specified amount of rent in advance payments at a certain rate per month up to a certain date, and. At an increased rate per month thereafter, set up that there was due and remaining unpaid on said mortgage the conditions as mentioned in said chattel mortgage lease; that the interests of the mort^gee in the chattels described in the mortgage remained unchanged, and were thereby renewed for the amount above •written. The lease contained various stipulations to be observed by the lessee, and which were secured by the mortgage clause, And the term had still some time to run. And it is held that no one, by inspecting the affidavit, could gather whether or not the lessee had observed said stipulations, or whether any rent remained due or not, and that the affidavit failed to convey any such distinct information as the statute requires.
      2. Manwaring v. Jenison, 61 Mich. 117, 130, 140, holding that an affidavit of renewal made by one of two mortgagees, in.wliidh the mortgage is described by giving the names of the mortgagors and mortgagees and the date and amount of the mortgage, and in which the affiant certifies that a specified sum is claimed by him to be due upon the mortgage at the date of the affidavit, and that said sum constitutes the amount of interest of the mortgagees in the property mentioned and described in the mortgage, is sufficient.
      3. Eddy v. McCall, 71 Mich. 497 (affirmed in 77 Id. 242), holding that an affidavit of renewal of a chattel mortgage upon a stock of lumber and other material kept for sale in connection with the business of the mortgagors, including all such other lumber, stock, or material of every kind which the mortgagors might thereafter add to said business, and all other property which they might thereafter purchase and use in connection with said business, which states that the mortgagee’s interest in the chattels described in the mortgage remains unchanged, and is thereby renewed for the amount claimed to be due upon the mortgage, is sufficient to continue the mortgage in force as to such after-acquired property.

   McGrath, C. J.

Plaintiff was on the 23d day of Ja-nn-' ary, 1891, and is now, the cashier of the First National Bank at Ithaca. On that date he took from one Moore, who was a customer of the bank, a chattel mortgage in the sum of §4,000, covering Moore’s stock of merchandise, and all additions and accessions to said stock, to secure the payment of Moore’s obligations, both present and future, to the bank. The bank continued to discount Moore’s individual paper, as well as that of his customers, and advance moneys upon drafts drawn by Moore upon his customers, until August, 1893, when Moore made an assignment for the benefit of his creditors. The assignee failing to qualify, defendant was appointed receiver, and took possession. Plaintiff replevied the stock of merchandise under his mortgage.

It is insisted by defendant:

1. That the mortgage runs to plaintiff individually, and not to the bank.

Its purpose, however, was fully understood, not - only by the mortgagor, but by the creditors. All of the business was done through plaintiff, and no one appears to have-been prejudiced by the fact that the mortgage did not run directly to the ban^:.

2. That the affidavits of renewal filed January 13, 1892, and January 23, 1893, did not correctly set forth the facts-as they existed at that time.

The renewals allege that there is due and remaining* unpaid on said mortgage the sum of $4,000,” and ftthat-the interest of said M. Foster Chafey in the chattels therein described remains unchanged.” It appears upon the face of the mortgage that it was to be a continual indemnity. The mortgagee was not required to state the actual amount of the matured indebtedness upon those dates, so long as-the obligations, both matured and unmatured, exceeded that sum.

3. That plaintiff made representations to certain creditors which -were misleading, and operated as a fraud upon them.

It is-not claimed that the mortgagee at any time misrepresented the state of the account between the bank and the mortgagor. What is charged is that, upon inquiry made by creditors, plaintiff represented that Moore was doing a good business, and would be able to meet his obligations. These were opinions, merely, and there was-nothing to show that they were not given in entire good faith. Indeed, at the time of the failure, Moore was indebted to the bank in the sum of $14,000, — a sum largely in excess of the security held by the bank.

4. That certain goods seized by plaintiff under the writ-had been delivered to Moore by the McFarlan Carriage Company, under written contracts, by the terms of which the title to the goods was to remain in the carriage company, and it is urged that plaintiff had no right to take these goods under his writ.

The right to possession of these goods under the contract in question was at the date of the assignment in Moore. He cannot be said to have had no interest in the-goods, and whatever interest he had passed under the-mortgage. Whatever payments he may have made upon them inured to the benefit of the mortgagee. The receiver took through Moore, and subject to the mortgage. He cannot be allowed, in this proceeding, to represent the-carriage company. The claim of that company is adverse to that of the receiver and the creditors. The carriage-company, when it asserts 'this claim, if it ever does, will do so, not as a creditor, but as having the title to the-goods in question.

It further appears that the carriage company, on the-14th day of October, 1893, filed its claim as a creditor for the balance of its account, without reference to any claim of ownership. It is not necessary to determine whether the filing of said claim was a waiver of its right to claim title. It is sufficient that Moore mortgaged his interest in these goods — including, as an incident, the right of possession — to plaintiff.

The judgment is affirmed.

The other Justices concurred.


text:
    Martin Wolf v. Thomas Holton.
    [See 92 Mich. 136.]

      Ejectment — Estoppel—Deed—Proof of heirship — Guardian and' ward.

    1. A defendant in ejectment who entered into possession of the land in dispute under an arrangement with the acting guardian. of the minor owners for its purchase, which was never consummated, is estopped from disputing the title of the minors; citing Wolf v. Hollon, 92 Mich. 186.
    2. Recitals in a deed describing the grantors as heirs of the deceased owner of the land conveyed are insufficient proof of such heir-ship, and the grantee, in order to entitle the deed to be received in evidence in an action of ejectment brought by him.for said land, must prove the identity of the grantors as heirs of said deceased owner.
    3. A guardian of minor heirs has no authority to make a contract . for the sale of land belonging to his wards without a license from the probate or other proper court.
    Error to Gratiot. (Daboll, J.)
    Argued January 30, 1895.
    Decided February 12, 1895.
    Ejectment. Defendant brings error.
    Reversed.
    The facts are stated in the opinion, and in 92 Mich. 136.

      O. W. Oicldings, for appellant.

      John T. Mathewg, for plaintiff.
   McGrath, C. J.

This case is before us for the second time. 92 Mich. 136.

.Defendant went into possession under Foot, as guardian of Lois, Bhoda Jane, Harriet, Ella, Frank, and Della Partello, minor heirs of Leonard Partello, and therefore could not question title in those heirs.

Plaintiff claims title from Emeline Betsey Deal, formerly Emeline Betsey Partello, the widow of Leonard Partello and mother of the above-named minors. Conveyances were introduced from Frank Partello, Ella Henderson, Hattie Lutes, and Adelpha Watson to Emeline Betsey Deal. Lois Partello and Bhoda Jane Partello died without issue, before the conveyance to plaintiff. The deed from Adelpha Watson was executed March 15, 1883, and does not attempt to describe her. The deeds from Ella Henderson and Hattie Lutes describe the grantors as heirs of Leonard Partello. Proof of the identity of each of these three grantors as heirs of Leonard Partello should have been made. The recitals in the last-named deeds were insufficient proof of the fact.

Defendant insisted upon the trial that he went into possession under a contract of purchase, and not under a lease; but the guardian had no authority to make such a contract, if made.

Other questions are raised, which are disposed of by the former opinion.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    Stephen H. Hough v. Edson C. Brown.

      Landlord and tenant — Abandonment of premises — Lease — Forfeiture — Implied covenants.

    1. The lessee of a farm upon shares, owing to his inability to put in spring crops by reason of the season’s being wet, rented an hotel near the farm, to which he removed his family, but left in the house on the farm, which he locked up, some of his furniture, and upon the farm some tools and poultry. After such removal he did some work upon the farm, repairing fences and planting corn. When leaving the farm his intention was to retain possession thereof, and, before the expiration of his lease, return and cut some hay growing thereon. And it is held that the lessee cannot be said to have relinquished to the landlord the right to the possession of the farm or his right to the hay, or to have surrendered his lease,
    2. A tenant leased a farm for one year at a cash rental, the lease being in writing. The tenant continued to occupy the farm after the expiration of the year, under, as he claimed, an independent verbal lease, while the landlord claimed that the original lease was verbally renewed upon the same terms and conditions, except that he was to receive as rent one-third of the crops. Both parties agreed that, at the time of such renewal, nothing was said as to how the farm should be operated. In addition to the stipulation for the payment of rent, the written lease provided that the lessee should pay the road tax, keep the buildings and fences in good repair, should not sublet, and at the expiration of the term should surrender possession to the lessor. Following these agreements, was a general provision that, should the tenant “fail in any of the foregoing promises,” the lease should become null and void, and the lessor might peaceably re-enter and take possession without formal proceedings. And it is held that, if it be conceded that the reletting was subject to the terms and conditions of the original lease, the general provision relating to re-entry cannot be held to apply to an implied covenant that the tenant should properly farm the leased premises.
    Error to Gratiot. (Daboll, J.)
    Argued January 30, 1895.
    Decided February 12, 1895.
    Replevin. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      John T. Matheios, for appellant.

      George P. Stone and Kelly S. Searl, for plaintiff.
   McGrath, C. J.

In April, 1889, plaintiff was the •owner of 40 acres of land, and by written instrument leased the same to Erastus Hewitt for one year, at a given rental. In addition to the stipulation for the payment of the tent, the lease provided that the lessee should pay the road tax, keep the buildings and fences in good repair, should not sublet, and at the expiration of his term should surrender possession. After these provisions there was a general provision that, should the tenant “fail in any of the foregoing promises,” the lease should become null and void, and the lessor might peaceably re-enter and take possession of the farm without formal proceedings. It is ■claimed by plaintiff that the lease was verbally renewed in the spring of each of the years 1890, 1891, 1892, and 1893, upon the same terms and conditions, except that, instead of an annual money rental, he was to receive one-•third of the crops. Hewitt insists that an independent parol lease was entered into in the spring of each year, without reference to the terms of the old lease. Both parties agree that, at the time Of the renewals, nothing was said as to how the farm should be operated. In the ¡spring of 1893, Hewitt repaired the fences upon the farm, and plowed some of the land, intending to put in crops, but he claims that the land was low, and the season very wet, and consequently he was unable to put in any spring •crops, except some corn, which was almost wholly drowned •out; that in view of his inability to put in such crops, • and thereby to provide for his family, he rented an hotel ■ about half a mile distant, and removed his family thither, intending to do what he could with the farm during that • season. He left some articles of furniture in the house, •and locked it up, and left some farm implements and • some poultry upon the farm, and, after he had moved his ■family to the hotel, he did some work upon the farm, repairing fences and planting corn. On the 12th of July, plaintiff, without the knowledge of Hewitt, engaged certain parties to cut and cure about eight acres of hay which was upon the farm, they to receive one-third of the hay, •.and plaintiff to have two-thirds. The hay was cut, and two-thirds of it stacked upon the farm. As soon as Hewitt learned of the cutting, he forbade it, but without effect. The defendant, under a chattel mortgage given to him by Hewitt, took the hay from the stacks, and plaintiff brought replevin, insisting that, by reason of Hewitt’s failure to properly farm the premises, the lessor had the right to re-enter, and also that there had been an abandonment of the premises by the lessee.

Counsel for defendant requested the court to instruct the, jury—

“ That, in order for the jury to find an' abandonment of the premises, they must first find that he had voluntarily relinquished his claim or privilege to work and operate the plaintiff’s farm during the period for which he had rented it; that the fact or right of abandonment was with Mr. Hewitt alone. Mr. Hough had no right to declare an abandonment so long as the tenant was holding possession of the farm, and intending to use it, so that if you find that by locking up the house and holding the key, and looking after and having general supervision of the farm, an abandonment cannot be found.”

The court refused to give that instruction, but did instruct-the jury that — -

“If Mr. Hewitt stopped working the place, and refused to go on with this contract and pay rent in that way,— has abandoned the farm, — that would authorize Mr. Hough to re-enter and take possession, and the lease would be forfeited, and Mr. Hough would become the owner of the grass. If you find that to be the state of affairs, then Mr. Hough is entitled to recover, because such abandonment as that, and refusal to go on with the contract as I have named, would be a forfeiture; and, if it was forfeited and abandoned, then the landlord, on re-entering, becomes .entitled to the crops. If, on the other hand, Mr. Hewitt had not abandoned the farm, but was still going on with his contract and in possession, then this action cannot be maintained by Hough, because, as long as a tenant has not abandoned his contract and the premises, any one buying his crops, or, as in this case, taking a chattel mortgage, as is claimed, would get a good title, and can enforce it. The mere fact that the tenant does poor work and poor farming does not give the landlord the right to -declare an abandonment, against the wish of the tenant, who'is still in possession, and refusing the landlord’s demand of possession under a lease, as claimed in this case. So, as I said, gentlemen, the case turns very largely upon how you shall find that question of abandonment; in fact, that is the issue in this case, and it turns entirely upon that.”-

The court erred in refusing to give the instruction requested and in the instruction given. An “abandonment ’’ is defined as a relinquishment or surrender of rights or property by one person to another; a giving up; a total desertion. It includes both the intention to abandon and the external act by which the intention is carried into effect. 1 Amer. & Eng. Enc. Law, 1. The plaintiff testifies that on June 23, which was 11 days after Hewitt had moved his family to the hotel, he had a conversation with Hewitt at the farm.

“I had a talk with him in regard to the corn, and he said he was going to cultivate it. I spoke to him, that his hens were eating up the corn. He was then living at the hotel. I made no objection to his" living at the hotel. I was next there on June 29. I had then determined to cancel the lease, but I did not so state to him. I asked him for the key to the house, stating that I wanted to look through it. My real object was to take possession, but I did not get the key."

It was conceded upon the trial by counsel for plaintiff that Hewitt “ intended when he left the things in the house, and all the time, to go back there and cut the hay." Counsel was then asked: “You will admit that he intended to keep possession of the farm ? A. Eor the purpose of going back and cutting this hay."

Under this testimony and admission, it cannot be said that Hewitt’s removal of his family to the hotel was a relinquishment to plaintiff of the right of possession or of the crops. The neglect of the crops, if any, may be evidence of a breach of an implied covenant to care for them; but a party intending and claiming the right to harvest the crops upon the farm cannot be said to have relinquished the possession of the farm or his right to the crops or to have surrendered his lease. It was held in Doty v. Gillett, 43 Mich. 203, that a surrender will not be presumed from mere acts of non-user. It requires something more than a mere neglect of a farm to constitute a surrender of it to the landlord.

If it be conceded that the relettings were subject to the terms and conditions of the original lease, the provision relating to re-entry cannot be held to apply to implied covenants. Suppose that the new lease had been reduced to writing, and the agreement to turn over to the lessor one-third of the crops had been substituted for the agreement to pay a specific annual rental, and then followed the clause providing that, should the tenant “fail in any of the foregoing promises,” etc., can it be said that the right to declare a forfeiture followed a failure to perform a promise not expressed, but implied? We think not. The implied agreement must be regarded as a naked covenant, and the right of re-entry must be held to apply in case of default respecting express promises. Forfeiture ■clauses in a lease are not favored, and their effect will be restricted as far as possible. Miller v. Havens, 51 Mich. 482.

In Walsh v. Martin, 69 Mich. 29, it was held that the indorsement upon the written lease, which expressly referred to the “ within lease,” was in itself an independent agreement, and that the forfeiture clause had no application.

In Koeleg v. Phelps, 80 Mich. 466, the lease contained a covenant that the lessee should work the farm in a workmanlike manner, and then followed a provision for re-entry in case of default, precisely like that contained in the written lease in the present case, and the Court held that such provision did not authorize the lessor to take the lessee’s share of the crops.

The only question for the jury in the case, the defendant having waived a return, was the value of the property.

The judgment is .reversed, and a new trial ordered.

'.The other Justices eoncurred.

       The mortgage was given July 17, 1893.


author: Long, J.

text:
    Henry W. Ostrom v. Albertson Potter and Frank Potter.
    [See 71 Mich. 44.]

      Trespass — Pleading—Title to premises — Judgment—Costs.
    1. The title to lands, which is averred in a declaration for trespass to lands to have been in the plaintiff at the time of the commission of the trespass, is not put in issue by the plea of the general issue.
    '.2. How. Stat. § 8964 (subd. 2), which provides that if the plaintiff recover judgment in an action in which the title to lands or tenements has been put in issue by the pleadings, or has come in question on the trial, he shall recover his costs, does not authorize a judgment for costs in favor of the plaintiff in an action for trespass to lands upon the recovery by him of a judgment for nominal damages, where the plea of the general issue alone is interposed to the declaration, which avers the ownership and possession of the lands trespassed upon to have been in the plaintiff, and the record shows conclusively that the title to the lands did not come in question on the trial.
    Error to Oakland. (Moore, J.)
    Submitted on briefs January 25, 1895.
    Decided February 12, 1895.
    Trespass. Defendant Albertson Potter brings error from .a judgment for 'costs in favor of the plaintiff.
    Reversed, and judgment entered in this Court for appellant.
    The facts are stated in the opinion.

      J. Ten Eyck, for appellant.

      Aug. O. Baldwin, for plaintiff.
   Long, J.

This action of trespass guare clausum was commenced in the circuit court. The declaration averred title in fee and possession of the premises, which were .specifically described. Plea, general issue. On the tri%l, plaintiff proved his title by the introduction of a deed of conveyance, to himself, proved his possession, and the trespass of defendants by the digging and taking away of several loads of earth from the highway. Defendant offered no evidence, except to show the number of loads, of éarth taken, and that the trespass was not willful and malicious. The jury returned a verdict in favor of the plaintiff for six cents damages. The court, in entering judgment upon this verdict, certified that the title to the land came in question, and gave judgment in favor of the-plaintiff for full costs. Defendant appeals, and claims that, the court was in error in regard to the judgment for costs.

Section 8964, How. Stat., provides:

“ In the following cases, if the plaintiff recover judgment by default, upon confession, verdict, demurrer, or otherwise, in any action or proceeding at law, he shall recover his costs:”
Subdivision 2. “In all actions to which the title of lands or tenements or right of way, or right by prescription or otherwise to any easement in any land, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have-come in question on the trial of the cause.”

If the plaintiff be entitled to costs, it is by virtue of this subdivision 2 of this section. The plea was the general issue only, and if such plea was a denial of the-plaintiff’s title, or under it the defendants had the right, to prove title in themselves or in a third party, then it. may be said that the title was put in issue by the pleadings, and came in question on the trial of the cause.

The general issue is a demand of a trial of the matters-set forth in the declaration, and puts in issue every matter except such as, prior to the adoption of section 7362, How. Stat., were required to be pleaded specially, or of which special notice was required to be given under th& general issue. How. Stat. § 7363. As special notice is required to, be given only of those matters which had previously been required to be specially pleaded, it follows that the general issue in this State is exactly as broad as the general issue at common law, with the qualification that, as to all such matters as should have been specially pleaded at common law, the defendant should now annex to his plea of the general issue a notice “briefly stating the precise nature of such matter of defense.”

At the common law the plea of the general issue to ■such a declaration allowed the defendant to show title in himself or in some other person, on the theory that proof of title in defendant or in some other person falsified the averment in the declaration that the defendant broke the plaintiff’s close; but this pleading was early modified, for in the Hilary term, á Wm. IV., it was provided:

“In actions of trespass quare clausum fregit, the plea of not guilty shall operate as a denial that the defendant ■committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff’s possession or right of possession of that place, which, if intended to be denied, must be traversed specially.” Reg. Gen. Hil. T. 4 Wm. IV. r. 5; 1 Chit. Pl. (16th Amer. ed.) 538; Jones v. Chapman, 18 Law J. Exch. 456.

In this State a declaration in trespass for breaking and entering plaintiff’s close, without asserting and describing the title in the plaintiff to the lands, is not such a claim •of title as, under the statute, is admitted by the plea of the general issue. The land is the close of the plaintiff, if he had peaceable possession, even though he had no ■title, and was not the plaintiff’s close if the defendant was in peaceable possession. Under such a declaration, the plaintiff relies upon his possession, and the defendant may ■disprove it under the general issue. Vandoozer v. Dayton, 45 Mich. 247; Dewey v. Bordwell, 9 Wend. 65. It was said by Mr. Justice Cooley in Vandoozer v. Dayton, supra, in speaking of the declaration in the case, and the claim® made under it: . .

“All these rulings of the circuit judge were based upon the assumption that the plaintiff had asserted title in himself by his declaration, and described it, and that defendant had admitted it by his pleading. [The general issue-only was pleaded.] If the assumption had been well founded, the judge would have ruled correctly in holding-that defendant could not show any right or possession in himself as tenant, for a tenancy of any sort would be a. species of title.” '

Mr. Justice Campbell laid down the rule in Druse v. Wheeler, Mich. 445, which follows the common law, and which resembles closely, if it is not entirely similar to, the Hilary rule. He said:

“Both title and license were set up'in the notice under the general issue, which is, under our practice, the only admissible form of pleading such matters, and each is. within the clear intent of the statute.”

Again, in Walters v. Tefft, 57 Mich. 391, it was said:

“ The title was averred to be in the plaintiff by the declaration, and the defendant claimed title under the notice filed with his plea. This is, under our statute, the only admissible form of pleading such matters.”

In Keyser v. Sutherland, 59 Mich. 465, it was said:

“Pleading the general issue, without putting the title' in issue, in the trespass case, the defendant in that action could only contest the fact of trespass. The narrow issue-thus made excluded any assertion or trial of ownership of' the premises, and, for the purposes of that trial, conceded the title to be in Keyser.”

While the trespass case above referred to was commenced in justice's court, and the statute provides for such pleading, yet the rule,- we think, is as well established in actions commenced in the circuit court that the plea of' the general issue is not a denial of title, where title is declared upon, in actions quare clausum. It cannot be said in the present case that the title to the premises was put in issue by the pleadings, as the general issue was not a denial of the plaintiff’s title. If defendants desired to raise that issue, they could do so only by proper notice under their plea.

The record shows conclusively that the title to the lands did not come in question on the trial, as the defendant, did not undertake to defeat plaintiff’s title. It is evident, that the learned circuit judge, in certifying that the-, “title to the premises came in question,” did so upon the-assumption that the plea of the general issue was a denials of the plaintiff’s title.

The court below was therefore in error in awarding cost's - to the plaintiff upon a verdict of six cents damages. The defendant was entitled to full costs.

The judgment for costs will be reversed, and judgment entered here in favor of defendant for costs of both courts..

The other Justices concurred.

       Defendant Albertson Potter alone defended.


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    William O. Haney v. Hiram Munger.
    [See 101 Mich. 392.]

      Trespass — Costs.
    This case is ruled by Ostrom, v. Potter, ante, 115.
    Error to Muskegon. (Russell, J.)
    Submitted on briefs January 23, 1895.
    Decided February 12, 1895.
    Trespass. Plaintiff brings error from a judgment in. favor of defendant for costs.
    Affirmed.
    The facts are. stated in the opinion.

      Walter I. Lillie, for appellant.

      LÑélson DeLong, for defendant.
   Long, J.

Action, trespass quare clausum, commenced in the circuit court. Plaintiff alleged that he was the owner of the land described in his declaration. Plea, general issue only. On the trial, plaintiff proved his title .and the trespass. Defendant admitted the trespass, and ■claimed that the only questions were the amount of damages, and whether^ the trespass was willful and malicious. The jury, under the' evidence, returned a verdict for plaintiff for $47.50, and that the trespass was casual, and not willful. Judgment was entered for plaintiff on the verdict, and for defendant for costs. Plaintiff brings error, and claims that the costs should have been awarded to him.

The case is ruled by Ostrom v. Potter, ante, 115. The court was correct in awarding defendant his costs.

Judgment affirmed.

The other Justices concurred.


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    Thaddeus S. Gibbs v. Ernest W. Johnson.

      Mortgage — Purchase of equity of redemption — Merger.
    Where, upon the purchase by a mortgagee of the equity of redemption, it is agreed between the mortgagor and mortgagee that the latter shall retain possession of the note and mortgage for the purpose of cutting off by foreclosure a subsequent levy made upon the mortgaged premises, equity will treat the estates as separate, and, after foreclosure, will, at the suit of the mortgagee, set .aside said levy and a sale made thereunder as a cloud upon his title.

      Appeal from Kent. (Grove, J.)
    Argued January 24, 1895.
    Decided February 12, 1895.
    Bill to quiet title. Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.
    W. O. Griswold, for complainant.

      Frank G. Holms, for defendant.
   Long, J.

On June 5, 1884, Mary J. Anderson owned 60 acres of land, and on that date she. gave a mortgage to Mary A. Miller of’ $500. On October 7 following, William J. Anderson, the husband of Mary J. Anderson, owned about 105 acres adjoining the land of his wife. On this land complainant had a mortgage of $1,000 given before Anderson purchased. On that date, October 7, 1884, William J. Anderson and his wife gave a mortgage to complainant on all their land for $2,550, subject, to the mortgage of $1,000 and the Miller mortgage. On June 4, 1890, complainant purchased the Miller mortgage, and took an assignment. There was then due him on the three mortgages, for principal and interest, about the sum of $4,000. The Andersons then deeded the lands to the complainant, and he gave them back a contract in writing, in which it was agreed that the Andersons might occupy the lands until the 1st day of April, 1891; they agreeing to pay the taxes, make some repairs, and pay $400 within that time to complainant upon the amount due him. The complainant held possession of all the mortgages and notes, but agreed to surrender them when they were all paid, and to reconvey the premises to the Andersons. Anderson remained in possession of the premises, but made no payments under his last contract. On November 14, 1890, complainant foreclosed this $2,550 mortgage, which covered the entire premises, by advertisement, and received a sheriff’s deed. This deed became absolute November 14, 1891. The Andersons remained in possession until February or March, 1892, when the complainant went into possession, and has since continued to occupy the premises. It is claimed by the complainant that he never intended that, the mortgage interest held by him should merge into the title conveyed to him by the deed from the Andersons.

It appears that in 1886 the Andersons became indebted to William B. Johnson, for which indebtedness they gave him a promissory note. Mr. Johnson thereafter died, and Jennie A. Johnson, his wife, being appointed administratrix, commenced suit in justice’s court on the note against the Andersons, and obtained a judgment of $249.50. A transcript of this judgment was thereafter filed in the circuit court, and an execution issued thereon, and levied upon the lands of the Andersons. This levy was subject to the mortgages of complainant. Mrs. Johnson, as administratrix, assigned the judgment to the - defendant. After complainant’s foreclosure was completed, and he had gone into possession of the premises, the defendant advertised the premises for sale on the Johnson levy, and on the sale he bid the premises in, received the usual certificate of sale, and filed it in the office of the register of deeds. The bill in this case was then filed by complainant to set. aside this levy and sale as a cloud upon his title. The proofs were taken in open court, and a decree entered in favor of complainant as prayed in his bill. Defendant, appeals.

Unless the complainant’s mortgage interest merged into the title acquired by his deed from the Andersons, this decree must stand. The complainant testifies that after the deed was executed he learned of this levy; that he then took the advice of counsel on the subject, and was informed that he could take the deed, and it would not stand in the way of his foreclosing his mortgages and perfecting his title in that way; that it was agreed with the Andersons that he might hold the notes and mortgages for that purpose. Mr. William J. Anderson also testified that he agreed that complainant might keep the notes "and mortgages for the purpose of foreclosing them and perfecting his title. There is some evidence in the record contradicting this, and from which- defendant contends that there was no arrangement of this kind, and that the real intent of the parties was to cancel and surrender the notes and mortgages upon the giving of the deed. But we think the evidence shows very conclusively that the parties to the transaction understood that this levy was in the way of a perfect title to the complainant under the deed, and that a foreclosure of the mortgages would be necessary to cut off the levy. This position is strengthened by the fact that complainant did in fact retain possession of the notes and mortgages, and subsequently foreclosed the largest mortgage for the very purpose for which he contends he retained it.

There were several other levies on the land, but the Johnson levy was the one under which the sale was made. All these levies were put on subsequent to the complainant's mortgage which was foreclosed, and it is clear that, complainant intended to cut them off by the foreclosure. It is certain that under' these circumstances the rights of the complainant required that his' interests under the mortgages be kept separate. In Cooper v. Bigly, 13 Mich. 478, it was said:

“The doctrine is too familiar to need authorities that a mortgage is not merged by a purchase of a partial or entire interest in the equity of redemption, where there are intermediate rights, or where the interests of the mortgagee require the title to be kept separate.”

In Snyder v. Snyder, 6 Mich. 472, it was said:

“ The authorities are quite uniform that the holder of a, mortgage interest shall lose no substantial rights by becoming the owner of the equity of redemption.”

The same rule was laid down in Tower v. Divine, 37 Mich. 445, and Cook v. Foster, 96 Id. 610.

In Moore v. Luce, 29 Penn. St. 260, 263, the court held that—

Merger takes place when a greater and a less estate come together in the same person, and when there is no reason for their longer existence as separate estates.”

Equity will treat the estates as separate when it is shown that the party intended they should be so kept, and the intent to keep them separate will be presumed whenever it is to his interest so to keep them, although his actual intent is not shown. Jones, Mort. §§ 848-873. But in the present case we think the evidence clearly establishes the fact that it never was intended by the parties that the titles should merge. If the parties interested in these levies had any right, it was to redeem from the mortgages.

The decree must be affirmed, with costs.

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


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    Ira N. Bryant v. The Estate of Warren S. Rich, Deceased.

      Fraud — Settlement—Survival of action — Statute of frauds — Promise to pay the debt of another.

    1. A mortgagee was induced by the fraudulent representations of the mortgagor to apply as a partial payment upon his mortgage a note and mortgage owned by the mortgagor. Upon the discovery by the mortgagee of the fraud, the mortgagor, in settlement thereof, promised to pay the mortgagee the amount of the note and mortgage if he failed to collect if by suit, which he agreed to bring upon said note. The suit was brought, but the desired collection was not made. And it is held that the cause of action thus arising against the mortgagor is not based upon the fraud practiced by him, and therefore survives, and is enforcible against his estate.
    2, A promise by a debtor, who by means of fraudulent representations has induced the creditor to accept as part payment of his claim a note and mortgage owned by the debtor, that if the creditor fails to collect the note he (the debtor) will pay the creditor the amount of the same, is not within the statute of frauds.
    Error to Hillsdale. (Lane, J.)
    Argued January 23, 1895.
    Decided February 12, 1895.
    Appeal from the disallowance of a claim by commissioners. The estate brings error.
    Affirmed.
    The facts are stated in the opinion.

      Watts, Bean & Smith, for appellant.

      Fellows & Chandler and John F. Bird, for claimant.
   Long, J.

■ Claimant recovered judgment in the court below, from which the defendant estate appeals.

The account filed by the claimant against the estate was:

To amount included in an indorsement of $1,963.-96 made on a certain promissory note, with mortgage collateral, executed by deceased, and delivered by him to the claimant, bearing date
July 12, 1890 — .................................$288 84
To costs in case of claimant against Debrix Miller,
and expense of the same......................... 58 80
To interest........................................ 34 08

In the statement of the claim it is alleged, substantially, that deceased was indebted to the claimant on a certain note and -mortgage collateral in the sum of $6,400, and, being desirous of reducing said amount, agreed to turn out to claimant a certain real-estate mortgage, known as the “Miller mortgage," and, to induce claimant to accept said Miller mortgage and indorse it on said indebtedness, deceased represented that it covered thre$ lots in the city of Hillsdale, each of which was assessed at the sum of $300; that said lots were' covered by a prior mortgage, but were worth three times the amount of both mortgages; and that said Miller mortgage was as good as the wheat. It is alleged that claimant, relying upon these representations, took the Miller mortgage, and indorsed the amount of the same on the mortgage and note held by him against the deceased. Claimant further alleges that said representations were false and fraudulent, which was well known to the deceased; that said lots were not assessed for $300 each, and that said mortgage was wholly worthless, which facts were well known to the deceased when the statements were made as aforesaid. It is further alleged that, soon after taking said Miller mortgage, claimant ascertained' that it was wholly worthless, and that said representations so made by deceased were false, and he immediately went to the deceased, and asked him to make the mortgage good; that deceased then promised claimant that, if he would sue Miller on the note collateral to the mortgage, he (the deceased) would pay the expenses of the suit, and, if claimant failed to collect the amount of said Miller note and mortgage collateral, he (deceased) would pay claimant the amount thereof. Claimant further alleges that he did bring suit on said note, as he agreed with deceased to do, obtained judgment, and caused execution to be issued thereon, which has been returned unsatisfied. On the trial, claimant introduced evidence to sustain the charges made.

It is contended by counsel for the estate that the claim made is based upon an alleged fraud of the deceased, and did not survive his death. It is also contended that, though there was a fraud perpetrated upon the claimant, the claimant affirmed the transaction, and Miller thereupon became his debtor to th.e extent of that note and mortgage, and any promise on the part of the deceased to pay the same was a promise to pay the debt of another, and was therefore void, under the statute of frauds.

The claimant does not seek to recover for the fraud perpetrated upon him by deceased. He sets up and proves the'fraud, not as a ground of action, but for the purpose of showing that a controversy arose over the assignment of the Miller mortgage and note, and the settlement of that controversy, as the consideration for the promise of the deceased to pay to him the amount thereof, on condition that claimant would, in the first instance, attempt to collect of Miller. The claimant performed on his part. He brought suit, failed to recover on the execution, and now seeks to have the promise of the deceased fulfilled. We think the claimant set up a cause of action in the •claim made.

The court below charged the jury, substantially, that, if there was no agreement to settle the fraud, no recovery •could be had; and that the jury must find that a fraud •was charged by the claimant against the deceased, that the •deceased understood that the fraud was charged, and that dhe agreement was made between the parties for the purpose of settling it, or the claimant could not recover. It is true, as claimed by the defendant, that, if the cause of .action were for the fraud perpetrated by the deceased upon the claimant, no. recovery could be had, as the cause would not survive. Stebbins v. Dean, 82 Mich. 385. But, as we •have seen, that is not the cause of action. It is the promise of the deceased to settle an-amount out of which claimant insists he had been defrauded.

This claim is not within the statute of frauds. The promise was not to pay the debt of Miller. If the claimant’s contention is true, it was a promise upon the part of the deceased to pay his own debt. He acknowledged that he had perpetrated a fraud upon the claimant. The-claimant demanded that he be made good. Deceased promised to make it good, but first wanted the claimant, to try and collect it from Miller, which he promised to do. Claimant failed to collect, and now asks that the amount be paid to him from the estate. The claim is not made that the deceased promised to pay the Miller note and mortgage if the claimant failed to collect of Miller, but it is that he (the deceased) would pay the amount to-settle the fraud if the claimant failed to collect of Miller.

It is claimed, however, that the claimant could not have-the judgment against Miller, and at the same time have a. claim against Mr. Rich. It was held in Calkins v. Chandler, 36 Mich. 320, 324, that,—

“ Where the third party is himself to receive the benefit-for which his promise is exchanged, it is not usually material whether the original debtor remains liable or not.”

In Nelson v. Boynton, 3 Metc. 396, 402, it was said:

“The rule to be derived from the decisions seems to be-this: That cases are not considered as coming within the statute when the party promising has for his object a. benefit which he did not before enjoy, accruing immediately to himself; but where the object of the promise is to obtain the release of the person or property of the debtor, or other forbearance or benefit to him, it is within the statute.”

This case was cited with approval in Rice v. Building Co., 96 Mich. 24.

Here the promise was not made for the benefit of Miller. It was for the benefit of the deceased. It was made to settle a matter of diis own, and clearly is not within the statute of frauds. In • fact, the original debt against Rich was never extinguished, by reason of this fraud. Huntington v. Wellington, 12 Mich. 10.

Some other questions are raised, but they are not of importance to the rights of the parties, and will not be discussed.

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

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


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    Joseph Berles v. Everett D. Comstock, Circuit Court Commissioner of Kent County.

      Execution — Discovery—Sufficiency of affidavit.

    Under How. Stat. § 8107, which provides that when an execution against the property of a judgment debtor shall have been returned unsatisfied, in whole or in part, the judgment creditor may obtain an order from a circuit judge or circuit court commissioner requiring the judgment debtor to appear and make discovery on oath concerning his property, a showing by affidavit that an execution has been returned unsatisfied warrants the making of said order.

      Certiorari to Kent. (Adsit, J.)
    Submitted on briefs January 23, 1895.
    Decided February 12, 1895.
    Relator applied to the circuit court for mandamus to compel respondent to set aside an order requiring relator to appear before him and submit to an examination concerning his property, and brings certiorari to review order denying the writ.
    Affirmed.
    The facts are stated in the opinion.

      Fletcher & Wanty, for relator.

      Rood & Ryan, for respondent.
   Grant, J.

Judgment was rendered in the circuit court for the county of Kent against the relator for $991.53 and costs. Execution was issued, and returned nulla Iona. The plaintiffs in that suit thereupon presented an affidavit to one of the circuit court commissioners of Kent county for an examination of the relator under oath, and the discovery of his property, in accordance with the provisions of How. Stat. § 8107. The commissioner made an order for the relator to appear before him at a specified time for examination. The relator then applied to the circuit court of the county of Kent for the writ of mandamus to compel the vacation of this order by the commissioner. The circuit court denied the writ, and the case is now before us for review on a writ of certiorari.

The contention of the learned counsel for the relator is that the affidavit was not sufficient to authorize the issuance of the order, and to entitle the plaintiffs to an axamination of their judgment debtor, in that it showed no ground for the order other than the fact of the return of the sheriff to the writ of execution.

The validity of this statute was sustained in Lee v. Circuit Judge, 101 Mich. 406. The statute is silent as to the preliminary proceedings requisite to authorize the examination by the judge or commissioner. The only prerequisite provided in the statute is the return of an execution unsatisfied, whereupon—

“The judgment creditor may obtain an order from the judge of the court in which the judgment was obtained, or from -the judge of the circuit court for the county in which the defendant resides, or from the circuit court commissioner of any such county, * * * requiring the judgment debtor to appear and make discovery on oath,” etc.

The object of this statute is to provide a summary and inexpensive method by which judgment creditors, after the failure of the sheriff to find any property, may determine, by an examination of the debtor, whether he has property subject to execution. If such creditor were required to make a showing by affidavit that he believed the •debtor was secreting his property, or had transferred it with intent to defraud his creditors, or to specify the property, the statute would prove of no avail in many •cases. In New York and Mirinesota it is held, under similar statutes, that no such showing is necessary. Lathrop v. Clapp, 40 N. Y. 334; Kay v. Vischers, 9 Minn. 270. It is true that the statutes of those states use language different from ours, but not so different as, in our judgment, to prevent the application of the rule they have •adopted to our statute. The Minnesota statute provides that, upon the return of an execution unsatisfied, the •creditor “shall thereupon be entitled to an order requiring the judgment debtor to appear and answer concerning his property.” The statute of New York is no stronger. Neither provides for preliminary proceedings. We can see mo reason why one rule should be adopted where the statute says that a creditor “ shall be entitled,” and a •different rule where it says “he may have such order.” The purpose of all these statutes is to give a summary proceeding where the sheriff is unable to find property on which to levy his writ.

A different rule prevails in North Carolina. Hinsdale v. Sinclair, 83 N. C. 343. In that state the distinction between law and equity was abolished, and in construing this statute the court recognized and adopted the proceeding provided by the former system. At page 343 is this language:

“This construction of the statute on the subject of .supplemental proceedings is adopted by way of as near conformity as possible to the ca. sa. under our former system, of which it is in part a substitute, to have which it was a prerequisite to exhaust all' liens by levy, and,, besides, show by affidavit the non-existence of property which could be reached by a fi. fa., and the existence of property which could not be reached by a fi. fa.”

The judgment of the court below is affirmed, with costs*

The other Justices concurred.