text:
    ALLEN v. PULFER.
    Fraud — Opinions — Rescission in Equity — Stock and Stockholders.
    The defendants obtained an agreement from the complainants to exchange stock in a foreign corporation at par for the business of complainants, and after securing the contract doubled the capital stock of the defendant company, without making any additional payment or assessment, and without increasing the assets of the corporation. False representations were made as an inducement for the making of the exchange, to the effect that the defendants could make more money for the complainants, that the stock would pay six per cent, dividends, that the corporation could make large advances for the business, and that the business would improve ; defendants also promised that the corporation would remove to Detroit and appoint complainants managers of departments. The promises were not performed. Held, that fraud was shown which would justify rescission in equity.
    Appeal from Wayne; Mandell, J.
    Submitted December 15, 1909.
    (Docket No. 135.)
    Decided February 3, 1910.
    Bill by Eugene D. Allen and others against George B. Pulfer and Mentor Wetzstein, individually and as trustees, the Ideal Concrete Machinery Company, and the Architectural Mold Company to set asidej certain articles of incorporation on the ground of fraud. From a decree for complainants, defendants, except the Architectural Mold Company, appeal.
    Affirmed.

      Orla B. Taylor and Charles F. Delbridge, for complainants.

      Craves, Hatch & Wasey, for appellants.
   Ostrander, J.

The record presents questions of fact only. It would profit no one to set out the testimony. What was actually accomplished through the dealings of the parties was this: Complainants, who were copartners in a small but growing business, were induced by defendants, or by some of them, to incorporate under Michigan laws and to assign the stock of the corporation to trustees for the defendant Ideal Concrete Machinery Company, an Indiana corporation. The inventoried value of the property of the corporation so organized was $4,133.37. The stock was exchanged for $4,000 par value of the stock of the above-named corporation, which was capitalized at $200,000 and the capital of which had been increased a few days before the exchange referred to, and after negotiations were begun, from $100,000, without the contribution of any money from any source and without the addition of anything of value to its assets, unless it was a reissue patent and other patents. The contract of the parties is in writing and dated February 12, 1907. The monthly statement of the Ideal Concrete Machinery Company for December, 1906, the last one before the capital stock was doubled, showed’assets of $114,043.59, of which $22,197.28 was notes receivable and $21,773.12 patents. Total liabilities, including capital stock, were $131,351.78. The notes treated as assets included notes of defendant Pulfer for $11,500, with stock of the company as security, and note of one Smith for $10,000,.given for treasury stock, which stock was held as security. Liabilities included accounts, payable $8,262.78, notes payable $20,000, personal accounts $3,089. The statement of the company for January, 1907, .showed assets of $208,265.15, and liabilities including $200,000 capital stock, of $230,848.50. The assets were increased by valuing patents at $121,773.12, which it will be seen was an increase over the valuation of the prior month of $100,000. Various representations were made to complainants by the defendant Pulfer to bring about the transfer of complainants’ property, first, to a corporation, and then to the defendant Ideal Concrete Machinery Company, which must be regarded as statements of fact and not of opinion, although, if the dealings had been between persons of equal or nearly equal intelligence in such matters, they might be regarded as expressions of opinion merely. The reason for this is well expressed in the opinion of the trial judge, who found and said:

‘ ‘ Prior to entering into this deal, none of the complainants had had the advantage of a business education. They were unlearned and unskilled in business, and particularly in corporate ways. No explanation can be given for the deal that they actually entered into, unless upon the theory that they expected and were led to believe they would get some advantage out of it, not contained in the papers they signed, for by the deal they gave up their business, all proprietorship therein, and reduced themselves to the condition of mere employés, who could be discharged at will, with or without reason, and they were bound by the terms of their contract not to engage in any similar business for themselves for the period of three years from the date of the contract. What did they get in return ? The privilege of working for about mechanics’ wages in Detroit for an Indiana corporation, and each received $1,000 worth par value of the stock in such corporation. If they understood the contract, and if there was nothing more to. the contract than appears in the written paper, then most assuredly there can be no doubt that the bargain was a very one-sided one, for the physical property they gave up was clearly worth $4,000, to say nothing of the patent which it was claimed was worth, and appears to be worth, $1,000 additional, for $4,000 par value of stock which was then of doubtful value. When the papers were examined by an attorney of standing in this community, he stated to them that the papers were properly drawn, but that their interests were not taken care of therein. One of the complainants stated in the presence of at least one of the defendants that the complainants depended upon the good faith of the defendants, and that their protection was in the confidence they had in the defendants. This confidence was born undoubtedly out of certain statements and assurances of the defendants. The evidence clearly shows that the negotiations lasted some little time, and that several interviews were had between one or more of defendants and the co’mplainants, and that in these interviews the complainants were assured by the defendants that they, the complainants, were not making enough money, and that the defendants could make more money for them; that it was to the complainants’ advantage to make the deal; that the defendants could advance lots of money to get out forms, etc. They were assured that ‘ your business will improve.’ They were also informed that the business of the Ideal Concrete Machinery Company would be moved to Detroit, and gradually enlarged, and that the stock of that company would net a return of 6 per cent., and that each of complainants would be appointed head of a department. It is claimed by the defendants that these very statements made by them were made in good faith, and that no charge of fraud can be predicated on them, because they were merely executory promises, but in view of the peculiar nature of the contract, and the character of what the complainants were giving, and what they were actually receiving, under the terms of the contract, I am convinced that these various statements should be construed into statements of conditions actually existing, that justified the conclusions drawn by the defendants and assurances given to the complainants.”

The promises made to complainants have not been kept. That complainants were in fact deceived cannot be doubted. I am satisfied from the testimony that deceit— actual inducing of beliefs, based upon speculative statements accepted by complainants as true, affecting and intended to affect the action of complainants to their detriment and to the advantage of defendants — was practiced, and was intended to be practiced.

The decree requires the holders of the stock of the Architectural Mold Company to return it to complainants,. and requires the complainants to return the shares they received in the Ideal Concrete Machinery Company. We are all agreed that the decree should be affirmed.

Montgomery, C. J., and Hooker, Moore, and ,MoAlvay, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    ZOLTOVSKI v. GZELLA.
    1. Negligence — Automobiles— Motor Vehicles — Evidence oe Excessive Speed.
    That an automobile was exceeding the speed limit or was running at an excessive rate is not shown by testimony that it was running a good deal faster than a horse trots, and went • pretty fast.
    2. Same — Lights—Statutes.
    Absence of lights on an automobile in violation of Act No. 196, Pub. Acts 1905, as amended by Act No. 301, Pub. Acts 1907, constitutes negligence.

      3. Same — Contributory Negligence — Infants—Pedestrians.
    A child of 13 years who runs across a public street without looking for any vehicle which might be coming, is guilty of contributory negligence precluding recovery for injuries received by being run down by an automobile.
    Error to Wayne; Mandell, J.
    Submitted December 15, 1909.
    (Docket No. 46.)
    Decided February 3, 1910.
    Case by Paul Zoltovski, by next friend, against Francis Gzella for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Sloman & Sloman, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Hooker, J.

The plaintiff is a boy 13 years old. He was playing tag in a public street, and, having tagged a companion, started to run across the street pursued by the older boy. As he crossed, he ran into or was struck by an automobile driven by the defendant. There was testimony tending to show that the car struck him. If so, it is clearly demonstrable that he ran directly in front of the car, and was struck, while his companion saw the car, and stopped before getting in the way of danger. The accident happened about 30 feet from the intersection of two streets, at a place well lighted by an arc and other lights. There is evidence tending to show that there were no lights on the machine. After the boy was struck, the machine ran but little more than its length. Only one witness, a woman, testified to the speed of the machine. She said it ran “a good deal faster than a horse trots. It went pretty fast.” The negligence claimed is (1) excessive speed; (2) absence of lights on the car. The learned circuit judge held that the testimony would not justify the finding of excessive speed, either as exceeding the statutory limit or as unreasonable, and that the absence of lights on the machine did not contribute to the injury, because the boy did not look toward the automobile. He also found that the plaintiff was guilty of contributory negligence, in that he ran immediately in front of the machine, and he directed a verdict for the defendant, and plaintiff has appealed.

We are of the opinion that excessive speed was not proved; i. e., that it does not appear that the statutory limit was exceeded, nor is there testimony which shows an unreasonable speed. We think, however, that proof of an absence of lights on the car was testimony tending to prove negligence under our decisions, in view of the statutory requirements.

The evidence indicates that the boy was careless in not seeing the car. If, as the learned circuit judge said in his charge, the boy testified in answer to a question that was asked him that he did not look but was intent on his play, it would establish his contributory negligence. This proof is not to be found in the record, but it does not appear that all of the testimony is in the record, and we must take the statement of the circuit judge as true. But aside from that, all of the testimony shows that the plaintiff carelessly ran immediately in front of the machine. The boy who was chasing said:

“I did not see the automobile only just as it struck Paul. That is all I can say.. I know that I had been standing on the side of the street, and all at once Paul tagged me and scooted across the street as fast as he could because I was after him, and I intended to catch him. I wanted to make him ‘It.’
Q. And just the instant he got out in the road the automobile was there, too ?
“A. Yes, sir.
“Q. It stopped instantly ?
“A. Yes, sir.
“Q. It didn’t run three feet ?
“A. No; it didn’t run nothing at all. As soon as it run over him, he stopped.”

The boy and the machine reached the same point in the highway at the same instant. Neither boy saw the machine, but the one behind the plaintiff had his attention called to it by its striking the plaintiff, who was just far enough in advance of him to get hit.

The only question is one of law. Was it contributory negligence in a 13 year old boy to become so engrossed in play as to run across a city street and immediately in front of an approaching automobile without thought to look to see whether such a machine or any other vehicle was approaching ? In Henderson v. Railway, 116 Mich. 368 (74 N. W. 525), an eight year old boy ran into the front end of a street car. . In that case his view was more or less obstructed by a coal wagon or another car going in a direction opposite to that of the car that he ran into, and which wagon or car he ran behind in his approach to the track. Mr. Justice Montgomery said:

“It was but common prudence in crossing such a thoroughfare to look, not only for the car, but for any vehicle which might be coming. Injury would have occurred from collison with an ordinary wagon just as surely as from running into this car, and from the testimony of the lad himself he had intelligence enough at the time to know this. • Why, then,” should it be left for the jury to say that he had not ?”

See, also, Ecliff v. Railway Co., 64 Mich. 203 (31 N. W. 180).

While the injury to this child necessarily arouses the sympathy of all observers, it does not warrant the imposition of damages upon one who is not shown to have been blamable in the premises. A verdict in this case would be, as the judge well said, a bestowal by the jury of “ charity from another man’s pocket.”

The judgment is affirmed.

Montgomery, O. J., and Ostrander, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    DELOR v. DELOR.
    1. Divorce — Extreme Cruelty.
    Calling his wife vile names, accusing her of theft and of infidelity constitute extreme cruelty on the part of the husband.
    2. Same — Practice.
    Testimony received and considered in a suit for divorce taken upon a reference to a commissioner by the court of its own motion, works no prejudice to an appellant where the point which it tends to sustain is decided by the court in appellant’s favor.
    3. Same — Alimony—Estates by the Entireties.
    The interest of a wife in an estate by the entireties cannot be diminished by a decree for divorce.
    4. Same — Amount oe Alimony.
    An allowance to the wife of $3,800 in lieu of her interest in certain real property held by the entireties and valued at $7,000 is not excessive.
    Appeal from Wayne; Donovan, J.
    Submitted December 15, 1909.
    (Docket No. 154.)
    Decided February 3, 1910.
    Bill by Barbara Delor against Joseph Delor for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Thomas Hislop, for complainant.

      Charles 8. Hampton, for defendant.
   Moore, J.

The complainant filed her bill of complaint, alleging cruelty and asking a legal separation, which bill was amended by consent so as to ask for an absolute divorce. The defendant filed an answer in the nature of a cross-bill asking for a divorce. Complainant filed a replication, also answered to the cross-bill. A decree was granted complainant for divorce and for alimony. The case is brought here by appeal.

The case did not take the usual course, but after it was partly heard in open court it was referred to a commissioner. A consideration of the questions raised by the - solicitor for the appellant will be simplified by calling attention to some of the things which occurred upon the trial.

The trial progressed for a time, when the following occurred:

“The Court: I take it the contest is divorce, or no divorce, mainly ?
Mr. Hampton: Principally, I presume, the matter of property. The bill of the complainant is for separate maintenance, but the defendant files a bill in the nature of a cross-bill asking for divorce. The complainant asks for separate maintenance, and the defendant asks for a divorce. The principal matter of contest will be the property. ”

After a number of witnesses had been sworn, a colloquy occurred between court and counsel, in which the court suggested a limitation of the number of witnesses. Counsel said:

“Mr. Hampton: I readily appreciate what the court suggests and think it is better to adopt it, for my client will take the stand and swear he will not live with this woman any longer. I will say, second, if this accusation that this woman has made in her pleadings and in testimony so far as she was permitted to — if that accusation is true — the woman should have her decree, or anything she asks for, and it is simply a question of the division of the property. If that accusation is not true, no white man would live with the woman who would so charge, and the man should have the decree. I am willing to brush aside all the other matters, and come directly to that one, and I think the court is right in suggesting a limitation to this.”

Later the question of amendment to complainant’s bill arose when the following occurred:

(After a brief recess.)
“The Court: You may amend your bill.
“Mr. Hislop (to Mr. Hampton): As I understand it, you consent to that amendment ?
“Mr. Hampton: It is asked that the prayer of the bill be so amended as to ask for a divorce, instead of separate maintenance, and I have no objection to that.”

After the question of whether defendant was afflicted with the disease referred to in her bill of complaint was raised, and some testimony given in relation thereto, a colloquy arose as follows:

“The Court: I am not judging the case upon that ground at all. If you are determined to go on with it that way, it will take probably more than the day.
“Mr. Hampton: The time of this court cannot be better used than in clearing a man’s character.
“The Court: You may take all the time you want to. I will refer this case to Commissioner Samuel May for the balance of the hearing upon this testimony. I deem the case one that should not be heard in a public court room.
“Mr. Hampton: Shall we take testimony upon this one charge?
“The Court: That is all I care for.
“Mr. Hislop: Your honor has imposed a burden upon the complainant, which she is absolutely unable to bear. She cannot bring in that testimony and present it to this court.
The Court: She does not need to bring in the testimony except upon that one charge.
“ Mr. Hislop: I have not the money, and she has not the money.
The Court: There are only two doctors; how many physicians have you ?
“Mr. Hislop: I guess a couple.
“The Court: You have two. It is referred to Mr. May. I wish you would go down and make your arrangements as to time with him.
“Mr. Hislop: Will your honor make an order for an allowance to be made for the production of the testimony ?
“ The Court: Yes, upon that one point, I wish you would go down and make your terms with him.
Mr. Hislop: We do not know where we are.
The Court: It is confined to doctors.
“Mr. Hislop: I never could be confined to that; all the hearing that this case will ever have must be now.
“The Court: All the hearing that this case will ever have before me is referred.
“Mr. Hislop: So that we cannot put in our case.
“Mr. Hampton: We do not want to go before the commissioner, and pay for all of these witnesses. When I state upon that one point I will rest my case, I think you ought to adhere to the ruling made.
“ The Court: I shall keep my word.”

Testimony was taken before the commissioner. The complainant took testimony before the commissioner other than the testimony of the two doctors. When the testimony was presented to the trial judge, objection was made to his considering any of it.

It is evident, from a reading of the record, that defendant was seeking two things: First, to avoid having the charge established as set out in the complainant’s bill of complaint that he had a venereal disease; and, second, to keep the amount of alimony as low as possible. The decree was to the effect that the acts of cruelty charged in the bill of complaint were true, except the allegation that defendant had a venereal disease. If all that occurred before the commissioner was eliminated by the trial judge, there was abundance of proof of extreme cruelty on the part of defendant to sustain the decree. It was shown that defendant had called complainant many vile names. He accused her of being a thief, and had charged her with infidelity to her marriage vows. It is apparent that, if the trial judge considered the testimony at all which was taken before the commissioner, it did not harm the appellant, for the reason that the judge found that complainant did not establish the charge to which appellant objected, and to meet which charge the testimony of the doctors was taken. It is also clear from the record that no injustice has been done defendant in sustaining the charge of extreme cruelty other than the one of having a Venereal disease.

This brings us to the question of alimony. The decree gave to complainant as alimony the household furniture, $110 as costs, and $3,800, and required complainant to release her interest in the real estate. It also gave the complainant the option to take over the real estate upon the payment of $3,000. This option she declined to exercise. The real estate is owned by the parties by the entireties. It is appellant’s claim that the allowance of alimony is too large, that there should be deducted from the value of the real estate the sum of $1,500 contributed towards its purchase of property which came to the appellant from the Delor estate. There are two answers to this contention: First, it is not made clear from what sources the money came which was the consideration for the real estate; and, second and conclusively, that the real estate is owned by the entireties, and it is not competent for the court in fixing alimony to diminish the estate owned by the wife in the realty in this proceeding. See Brown v. Brown, 144 Mich. 654 (108 N. W. 288). There is no serious controversy about the real estate being worth $7,000, making the interest of the complainant therein $3,500. The appellant is allowed to keep his grocery stock. The allowance of $300 alimony in excess of the value of complainant’s interest in the real estate is not an excessive allowance in a proceeding of this kind.

The decree is affirmed, with costs.

Montgomery, C. J., and Ostrander, Hooker, and McAlvay, JJ., concurred.


text:
      In re BOLDEN.
    1. Criminal Law — Sentence.
    A respondent convicted of lewd and lascivious cohabitation within 3 Comp. Laws, § 11693, providing for imprisonment in the county jail for not more than one year, or a fine not exceeding $500, is not subject to 3 Comp. Laws, § 11785, imposing an additional term of imprisonment in the State prison for subsequent offenses in the case of persons duly sentenced to one year or more therein.
    2. Same — Habeas Corpus — Discharge.
    A prisoner sentenced to two and one-half years in the State prison under such statutes is entitled to release on habeas corpus.
    Habeas corpus proceedings by John Bolden to procure his discharge from the State prison at Jackson.
    Submitted December 30, 1909.
    (Calendar No. 23,799.)
    Petitioner discharged February 3, 1910.

      John Bolden, in pro. per.

      John E. Bird, Attorney General, and George B. Law, Assistant Attorney General, for respondent Warden.
   Moore, J.

The petitioner was convicted of violating the following statute:

“If any man and woman, not being married to each other, shall lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, shall be guilty of open and gross lewdness and lascivious behavior, or shall designedly make open and indecent or obscene exposure of his or her person, or of the person of another, every such person shall be punished by imprisonment in the county jail, not more than one year, or by fine not exceeding five hundred dollars.” Section 11693, 3 Comp. Laws.

He was also indicted under section 11785, 3 Comp. Laws, which reads:

“When any person shall be convicted of any offense, and shall be duly sentenced therefor to confinement in the State prison of this State, for one year or more, and it shall be alleged in the indictment on which such conviction is had, and admitted or proved on the trial, that the convict has before been sentenced to a like punishment by any court in this State, or in any other of the United States, for a period not less than one year, he shall be sentenced to be punished by imprisonment in the State prison not more than seven years in addition to the punishment prescribed by law for the offense of which he shall then be convicted.”

The petitioner was on the 30th day of September, 1905, sentenced to be confined in the State prison at Jackson, for a period of not less than two years and six months, and not more than eight years from and including the 30th day of September, 1905, where he has since been and now is confined. This is a proceeding by habeas corpus to determine the validity of the sentence imposed upon the petitioner. The petitioner claims that for the offense which he committed and was convicted he could not be sentenced for any period to the State prison. The statute which provides in what cases persons may be sentenced to the State prison is section 2108, 1 Comp. Laws, and is as follows:

“Courts of criminal jurisdiction may sentence to the State house of correction and reformatory at Ionia all male persons over fifteen years of age and not known to have been previously sentenced to a prison for felony, who shall be convicted of any crime except treason or murder in the first degree; and all male persons over fifteen years of age who shall be convicted of any misdemeanor, where the sentence for such crime or misdemeanor shall not be less than six months; and may sentence to the State prison at J ackson any person over the age of fifteen years, duly convicted of any crime punishable by imprisonment in said State prison, as the courts shall deem best.; and may sentence to the State house of correction and branch of the State prison in the Upper Peninsula all persons convicted as is or may be provided by law for sentencing prisoners to any of the other prisons in this State, as the court shall in its discretion deem best.”

These provisions do not authorize a sentence to the State prison at Jackson of one convicted of an offense against the provisions of section 11693, 3 Comp. Laws. In re Allen, 139 Mich. 712 (103 N. W. 209). In this case it was held:

“That on conviction of lewd and lascivious cohabitation (section 11693), an offense for which the imprisonment provided is, ‘ imprisonment in the county jail not more than one year or fine not exceeding five hundred dollars,’ the offender may be sentenced to the State house of correction at Ionia, or to the branch prison at Marquette, but not to the State prison at Jackson.”

On the part of the people it is said:

“ The Michigan reformatory is clearly a State prison within the meaning of this statute. It is governed by the general revision of the laws applicable to the Michigan State prison at Jackson, the Upper Peninsula prison at Marquette, and the Michigan reformatory. If the court in this case had imposed a sentence of one year to_ the Michigan reformatory, or to the Upper Peninsula prison, upon conviction' of the offense of indecent exposure, it is clear that the court would have had authority under this section to impose an additional sentence of not more than seven years by reason of the previous conviction for the same offense.”

It is also said that petitioner should not be discharged, but should be remanded for a legal sentence under People v. Farrell, 146 Mich. 264 (109 N. W. 440), and In re Vitali, 153 Mich. 514 (116 N. W. 1066, 126 Am. St. Rep. 535). The trouble with this contention is that the additional sentence authorized by section 11785, 3 Comp. Laws, may be imposed only in cases where one shall be duly sentenced in the State prison of this State, for one year or more, while in this case the sentence for the original offense must be not more than one year, and could not be in the State prison at all. It follows the petitioner must be discharged.

It is so ordered.

Montgomery, C. J., and McAlvay, Brooke, and Blair, JJ., concurred.


author: Ostrander, J.

text:
    BENHAM v. FERRIS.
    Brokers — Compensation—Principal and Agent.
    No liability is shown to a plaintiff for negotiating a sale of defendant’s lands, under testimony that the defendant offered a third person all he might obtain above a specified sum if he should obtain a purchaser, and the third person, without authority, arranged with plaintiff to find a buyer; the defendant not being shown to have given authority to employ plaintiff, or to have known that the latter was acting as his agent.
    Error to Barry; Smith, J.
    Submitted January 5, 1910.
    (Docket No. 6.)
    Decided February 3, 1910.
    Assumpsit by Charles B. Benham against Alonzo Ferris for commissions on. the sale of real estate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Thomas Sullivan, for appellant.

      Colgrove & Potter, for appellee.
    Plaintiff sued defendant, a nonresident of the county, in justice’s court, employing the writs of attachment and of garnishment. As appears by the return of the justice of the peace:
    “ The plaintiff declared on the common counts in assumpsit, and especially on a contract whereby defendant agreed to give the plaintiff a certain sum of money in case plaintiff found a purchaser for defendant’s farm.”
    Defendant did not appear, and judgment for the plaintiff was rendered. On appeal to the circuit court various objections were made to the pleading in justice’s court, to the admission of testimony, to the charge of the court, and to refusals of the court to charge as requested by defendant. A jury returned a verdict for plaintiff, and judgment followed. A new trial was asked for, and was refused.
   Ostrander, J.

(after stating the facts). We shall consider but one of the numerous assignments of error, which is the refusal of the court to charge the jury that:

“ Under the undisputed evidence in this case there was no such contract of agency proven and established by the plaintiff that will bind the defendant, Mr. Ferris, to the payment of a commission to the plaintiff, and the plaintiff cannot therefore recover under the proofs in this case.”

It is not claimed that defendant ever made any agreement with plaintiff to sell his lands, or ever saw or communicated with plaintiff. The claim of plaintiff is stated in the brief in this way:

“ It is our claim in the case at bar that there was sufficient testimony as to defendant Ferris’ knowledge of Mingus’ dealings and transactions with Benham, and of his ratification of such transactions, to justify the jury in finding that Mingus was in fact the agent of Ferris, with full authority to make the contract on Ferris’ behalf with Benham; and, if they so found, they had a perfect right to consider the statements of Mingus, as testified to by Benham, as being part of the transaction, of the benefits of which Ferris availed himself with full knowledge of the facts, which constituted a ratification on his part.”

There is testimony tending to prove an agreement between defendant and one Mingus, that if Mingus would sell defendant’s farm, he might have all he could get more than $1,800. There is testimony tending to prove that Mingus availed himself of the services of plaintiff upon an arrangement made between them. There is testimony tending to prove that plaintiff brought about a sale of the land in two parcels for more than $1,800, and that defendant aecepted from Mingus the sum of $1,800, and conveyed the land; the plaintiff being named as vendee in one of the deeds. We have discovered, and have been referred by counsel for appellee to, no testimony tending to prove any authority of Mingus to employ plaintiff on defendant’s account, or to make for defendant any arrangement with plaintiff, and none tending to prove that defendant ever supposed that plaintiff was claiming to act as his agent, or was assuming so to do. The jury should so have been instructed.

Judgment is reversed, and a new trial ordered.

Montgomery, C. J., and Brooke, Blair, and Stone, JJ., concurred.


author: Brooke, J.

text:
    COELING v. BARNARD.
    1. Appeal and Error — Bond—Motion to File after Writ of Error.
    After return is made to a writ of error the Supreme Court has exclusive jurisdiction to entertain a motion to file an appeal bond nunc pro tunc to stay proceedings on execution.
    2. Same — Appeal Bond — Amendment.
    Appellate courts have power as an incident to their appellate character, on application, to amend an original appeal bond or require a new one.
    3. Same — Showing.
    The affidavit of plaintiff’s attorney, uncontradicted, that the appellant omitted to file the statutory appeal bond because he intended to pay the judgment for . costs awarded against him, but had later discovered the defendant was irresponsible and that he could not recover them if he prevailed on error, is sufficient to warrant the court in granting the application.
    Replevin by Tite Coeling against Edward N. Barnard and another: On motion of plaintiff for leave to file a bond to stay proceedings pending an appeal to the Supreme Court.
    Submitted January 11, 1910.
    (Calendar No. 23,741.)
    Motion granted February 3, 1910.

      Smedley, Hall & Freeland, for the motion.

      Maher & Barnard, contra.

   Brooke, J.

Appellant was plaintiff in a replevin case at circuit, where a verdict was directed against him on November 2, 1909, with costs to be taxed. Said costs were afterwards taxed at the sum of $25.

Appellant caused a bill of exceptions to be settled and filed within the 20 days allowed by the statute. On November 26, 1909, he caused a writ of error to issue out of this court which has been returned, and the case is ,now pending here. He did not file the statutory bond to stay proceedings pending appeal, and defendant has caused execution to issue against him for the taxed costs. Appellant, by one of his attorneys, now applies to this court for leave to file the statutory bond nunc pro tunc to stay proceedings, averring in his petition that, when the appeal was perfected, it was his intention to pay the taxed costs, but that the petitioner had learned, about December 1st, that the defendant was financially irresponsible, so that if a reversal should follow in this court, he would be unable to recover back the money so paid. After return is made to the writ of error, this court is the only one possessing jurisdiction to entertain such an application. Worden v. Manistee Circuit Judge, 33 Mich. 111.

Appellate courts have power as incident to their appellate character, on application, to amend the original bond or require a new one. Pulte v. Wayne Circuit Judge, 47 Mich. 646; Bock v. Grocery Co., 100 Minn. 71 (110 N. W. 257, 9 L. R. A. [N. S.] 1054); American Brewing Co. v. Talbot, 135 Mo. 170 (36 S. W. 657). That power is broad enough to cover a case like the present, where it is sought to file an original instead of an amended, or new bond.

Defendant objects to the allowance of the order upon the ground, among others, that the petition is made by the attorney for appellant, instead of by appellant himself. .We notice that defendant has filed no affidavit denying the averments of the petition; they may therefore be presumed to be true.

The order will be made as prayed, but with costs of motion to appellees.

Montgomery, C. J., and Ostrander, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    FRANKLIN LIFE INSURANCE CO. v. COMMISSIONER OF INSURANCE. FEDERAL LIFE INSURANCE CO. v. SAME. UNITED STATES ANNUITY & LIFE INSURANCE CO. v. SAME.
    Insurance — Form op Policy — Statutes.
    The commissioner of insurance will not be required by mandamus to approve insurance policies of the relators which include a clause that if any premium, note or portion thereof is not paid when due the policy shall be void, the provision being a material change from the requirements of Act No. 187, Pub. Acts 1907, as to the payment of the first premium in advance, and subsequent premiums within thirty days.
    Mandamus by the Franklin Life Insurance Company, the Federal Life Insurance Company, and the United States Annuity & Life Insurance Company to compel James V. Barry, commissioner of insurance, to vacate an order disapproving certain policy forms.
    Submitted January 4, 1910.
    (Calendar Nos. 23,678, 23,679, 23,680.)
    Writ denied February 3, 1910.

      McAnulty & Allen, Q. A. Atkinson, and Lucius Me-Adam (Thomas, Cummins & Nichols, of counsel), for relators.

      John N. Bird, Attorney General (Arthur P. Hicks, of counsel), for respondent.
   Blair, J.

In the above-entitled cases respondent, acting under the authority conferred upon him by section 4, Act No. 187, Pub. Acts 1907, disapproved of certain policy forms filed with him by relators, who seek the writ of mandamus to compel respondent to withdraw his disapproval of such forms.

The ground upon which the commissioner disapproved of the policy forms was that the provision therein, “If any premium is not paid when due or if any note or part thereof is not paid when due, this policy shall be ipso facto null and void, and all premiums forfeited to the company, except as herein provided,” was in conflict with the first and second subdivisions of section 1 of the act, providing for payment of premiums in advance and for one month’s grace for such payments after the first year. It is conceded by respondent that prior to the passage of the act in question a policy containing the provisions under consideration would have been unobjectionable, and that the courts have so held. Relators contend that the insertion in the policy by the command of the statute of the requirement of payment in advance, which was voluntarily included in the policies by universal custom previously, does not operate to render illegal the use of a note clause theretofore legal; that there is no express prohibition of the note clause in the, statute and the court has no authority to supply such prohibition; that the provisions of the note clause are beneficial to the company and it may waive such benefits.

As we have heretofore held, “the requirement that certain provisions shall be and certain others shall not be incorporated in the policy requires us to say that no provisions should be inserted which have the effect of avoiding or nullifying the required provisions,” and “no provision may rightfully be used which shall, with or without action of the policy holder, materially change or avoid the statute scheme of the contract.” Mutual Benefit Life Ins. Co. v. Commissioner of Insurance, 151 Mich. 610 (115 N. W. 707). Prior to the enactment of the statute, it was optional with the parties what provisions the contract should contain upon the subject of payment. Since the passage of the act it has ceased to be optional with the parties, and authorities construing the contract independent of the statute are not conclusive. The provision, “all premiums shall be payable in advance,” etc., is mandatory in form and in spirit, except as the next subdivision, providing for a month’s grace after the first year expands its application, and, taken together, they require that payment of the first premium must be strictly in advance and of subsequent payments within 30 days. We are of the opinion that, as contended by respondent, the note clauses of the policy forms in question are inconsistent with the statutory requirement of payment in advance and materially change the scheme of the contract as outlined by the statutory requirements and prohibitions.

The question of waiver has no application to the case. The respondent’s inquiry is limited to a consideration of the question whether the policy forms submitted are in compliance with the statute.

We think that respondent’s rulings were correct, and the application for the writ is denied.

Montgomery, C. J., and Ostrander, Hooker, and Stone, JJ., concurred.


author: Stone, J.

text:
    KLOTZ v. LENAWEE CIRCUIT JUDGE.
    Appeal and Error — Extension op Time to File Claim op Appeal — Equity Praotioe — Mandamus.
    It is not an abuse of discretion unwarranted by Act No. 340, Pub. Acts 1907, for the circuit judge to extend the time for filing a claim of appeal in chancery, in behalf of a defendant whose attorney through an error omitted for seven months to file and serve the notice, although he prepared the record from the minutes obtained from the court stenographer and otherwise perfected the appeal in time.
    Mandamus by Effie Klotz to compel John L. O’Mealey, circuit judge of Lenawee county, to vacate an order extending the time to take an appeal.
    Submitted January 4, 1910.
    (Calendar No. 23,672.)
    Writ denied February 3, 1910.

      Smith, Baldwin & Alexander, for relator.

      Theodore M. Joslin, for respondent.
   Stone, J.

This is a petition for mandamus to compel the respondent to set aside an order made on August 23, 1909, extending the time for filing notice of appeal and settling the testimony in a chancery case that had been disposed of by a decree of said court.

The petition for mandamus states that the decree was made and filed October 22, 1908, but the return of the respondent gives the date of the decree as December 15, 1908. The order complained of was based on the affidavit of Theodore M. Joslin, which stated that he was the solicitor for the defendants in the said chancery cause, and that after the announcement of the finding of the court in said cause, and before the preparation and filing of the decree in said cause, deponent announced, to the solicitor for complainant in said cause that he intended to take an appeal, and immediately following the filing of the decree he prepared a notice of appeal, and also ordered a transcript of the testimony in- said cause from the stenographer of said court, but by mistake the said notice of appeal was not filed until the month of July, 1909, and that deponent believed that the notice of the claim of the appeal had been served upon the complainant’s solicitor, until that time. He further says that within 40 days after the filing of the decree he had procured a transcript of the testimony in said cause and had met Henry C. Smith, one of complainant’s solicitors, on a Toledo & Western car en route to Toledo, and had then shown said transcript to said Smith, and had talked with him in reference to preparing an appeal. That deponent used reasonable diligence in preparing said appeal, and that he had prepared the same and submitted it to complainant’s solicitors; that the same constitutes over 125 pages of typewritten matter; and that the failure to serve notice of appeal within the statutory time was due entirely to a mistake, and the belief that the same had been served; that large expense had thus been incurred in securing a transcript of the testimony and settling on appeal; and that such defendants would be deprived of their just rights if prevented from taking an appeal, and that said appeal would be prepared within the next 80 days; and that there had been no delay or laches on the part of defendants, and the only reason for the failure to file said claim of appeal in time was simply due to a mistake in not 'serving after the same had been prepared. This affidavit was sworn to on the Í3th day of July, 1909. Motion was made and notice of hearing thereof served, and on August 23, 1909, the respondent, after reciting the appearance of the solicitors for the respective parties before him, ordered as follows:

“After hearing and considering the allegations of the parties, and the argument of counsel, and being fully advised in the premises, it is found that the said defendant’s solicitor prepared said claim of appeal within the time provided by statute, and ordered a transcript, and prepared the testimony from the same in good faith ánd for the purpose of procuring a review of the same in the Supreme Court, to be settled by the court, and only learned that said claim of appeal had not been filed and served when the service of transcript and proposed testimony was served upon the solicitors for the opposite party, and it is ordered that said motion be, and the same is hereby granted, and that sixty days from this date be allowed to settle the testimony in said cause.”

Thereafter the solicitors for the relator and for the complainant in said chancery cause filed a motion to vacate said order of August 23d upon the grounds:

“(1) That said proposed decree was not submitted to solicitors for complainant and they had no opportunity to examine the same, and the same contains findings of fact which there was no evidence to sustain.
“ (2) That there was no legal showing to move the discretion of the court to grant such order.”

The only showing was the affidavit of the solicitor for the defendants, simply showing that he omitted to file and serve the notice of appeal. His omission was simply due to a mistake in not serving; that the same had been prepared.

“(3) That the court did not exercise a legal discretion in granting the motion without a proper showing of facts sufficient to base the same upon.
“ (4) Because the motion for the order was not made by defendants, the showing was not made by them.”

There was no showing that they, or any of them, had been misled by any act, mistake, or failure of their solicitor.

“(5) Because under the statute the court had no authority to extend the time.”

This motion came on to be hear.d before respondent on the 13th day of September, 1909, and was denied. The reasons for the writ of mandamus, as stated in the petition, are substantially the same as those in the motion which we have just referred to. The respondent returns that he had no knowledge as to whether the proposed order or decree was submitted to the relator’s solicitor, except that he had reasons to believe, and did believe, the statement of defendants’ solicitor, Theodore M. Joslin, that he had submitted the same to relator’s solicitor, Henry C. Smith. That respondent inserted in said order, when submitted to him, the words that the action of defendant’s solicitor in the chancery cause had been in good faith, and for the purpose of procuring a review of the case in the Supreme Courtand that he also inserted in said order the words “ that said solicitor had only learned that said claim of appeal had not been filed or served when said transcript of testimony had been served upon the opposite party.” The respondent further returns that he held and determined from the affidavit of the said Joslin that he, the said Joslin, had, within the 40 days after decree, prepared a claim of appeal and had ordered a transcript of the testimony for the purpose of reviewing said cause in the Supreme Court. That this was done in good faith, and that the failure to serve the same was in view of the fact that defendants’ solicitor believed that the same had been served, and therefore prepared the proposed testimony covering 125 pages of typewritten matter, indicating a desire to review such cause in good faith, and presented such a situation as would move the discretion of the court to grant an extension of the time asked for.

Act No. 340, Pub. Acts 1907, has received a construction by this court in the case of Witham v. Clinton Circuit Judge, 150 Mich. 568 (114 N. W. 337). There, as here, the relator sought to raise the question of the authority of the circuit judge to extend the time of taking an appeal from the decree in chancery, the contention being that under that act an Appeal must be made in all cases within 40 days, as prescribed by section 2 of that act, and that no authority existed for extending the time beyond the 40 days. In that case Justice Montgomery used the following language:

“ Section 2 standing by itself relates to an appeal upon the party’s own initiative. It is to be construed in connection with section 6, and, as so construed, the last clause of section 2 simply forbids an appeal after time fixed by the statute by the party’s own initiative and without an order from the court such as is provided in section 6. There is little room to doubt what is meant by the language of section 6. It authorizes the extension of time'for the preparation, filing or service of any papers herein provided to he prepared, filed or served, with the proviso that the time shall not be extended for the taking or perfecting of any appeal so that more time may be consumed thereby than one year from the filing of the decree.”

The writ was denied in that case, and it was held that the conduct of the circuit judge had been proper. In the recent case in this court of Bliss v. Tyler, 156 Mich. 640 (121 N. W. 292), an appeal had been dismissed, and upon a request being made that this court extend the time for perfecting a new appeal, this court said:

“The court below could doubtless deal with that question if it was presented to it.”

We have examined with some care the authorities cited by the solicitors for the relator. The first four cases cited by the relator’s solicitors relate to the rule governing circuit court applications for the allowance of an appeal from justice’s courts after the five days’ limitation. All those cases are governed by the statute, which is peculiar in its language, and it has been repeatedly held that this right of appeal is only given when the party has been prevented from appealing within five days “ by circumstances beyond his control,” which is the provision of the statute, and the discretion is confined to such cases. Here section 6 of the act of 1907 provides:

“ The trial court or any judge thereof * * * may, upon cause shown, and reasonable notice given, extend the time provided in this act for the preparation, filing or service of any papers herein provided to be prepared, filed or served.”

Other cases cited by counsel relate to appeals from the probate court, and in settling bills of exceptions in law cases, and in our judgment are not applicable here.

It seems to us that the showing made by Mr. Joslin in his affidavit was sufficient to authorize the circuit judge in his discretion to grant the extension complained of, and that the respondent was warranted in the conclusions which he reached. It is urged by relator’s solicitor that this showing, or affidavit, was not made by the defendants, but by the solicitor. It appears, however, that Mr. Joslin was the solicitor for defendants at the time of making the affidavit. The facts stated by him were peculiarly within his own knowledge and related to his own conduct or action-in the matter, and it seems to us that where the solicitor has knowledge of the facts, and it appears, as in this case, that there has been no laches or delay on the part of the defendants themselves, and that the only reason for the failure to file the claim for an appeal was the mistake of the solicitor himself, there is no necessity for submitting the affidavit of the parties, but it must be held- that the affidavit of the solicitor is sufficient. The respondent, it seems to us, exercised a reasonable discretion under the statute upon the showing already indicated, and, having made the order, we do not think the same should be disturbed.

The writ will therefore be denied.

Montgomery, O. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    MOYER v. ANN ARBOR RAILROAD CO.
    1. Master and Servant — Assumption op Risk — Work Outside Scope op Employment.
    Going to meals and taking dinner to his eo-employés is not outside the scope of the employment of a section hand.
    2. Same — Railroads—Increase op Hazard — Assumption op Risk.
    The increase of danger in riding upon an engine is an obvious risk, assumed by the servant.
    3. Same — Duty to Promulgate Rules — System.
    The fact that a rule employed by a railroad company is a modification of one used by another company, which was not shown to result in greater safety to life and property than the defendant’s rule would secure, does not justify the submission of the question of its sufficiency to the jury, where obedience to the rule adopted by defendant would have averted the injury.
    Error to Gratiot; Searl, J.
    Submitted January 11, 1910.
    (Docket No. 37.)
    Decided February 3, 1910.
    Case by John Moyer against the Ann Arbor Railroad Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      John T. Mathews and Stone & Watson, for appellant.

      Benjamin S. Warren and Codd & Drake, for appellee.
   Brooke, J.

Plaintiff’s action is based upon the same facts, considered by this court, in the case of Veit v. Railroad Co., 150 Mich. 358 (114 N. W. 233), where a full statement thereof will be found. In the Veit Case, the plaintiff was an engineer of one of the colliding trains; in the case at bar, the plaintiff was a section hand of six or seven years’ experience. The wreck at Bagnall was within the limits of the section upon which plaintiff was employed. He was set to work by Cooley, his section boss, to help clear away the wreck. After working about half an hour, plaintiff was ordered by Cooley to get on the engine of No. 42 and go home (to Mesick) for his dinner, and to bring the dinners of the other section hands back to them. Plaintiff obeyed the order, and the engine proceeded to Mesick. Plaintiff received the injury complained of when the engine upon which he was riding collided with engine No. 7, which Veit was driving.

A verdict having been directed for defendant, plaintiff urges reversal in this court upon two grounds :

(1) That the court erred in instructing the jury that the plaintiff was a fellow-servant of Moody and Jepson.
(2) In refusing to submit to the jury the negligence of the defendant, with respect to its rules, adopted and in use at the time of the accident.

Plaintiff claims that, even if it be held that he was a fellow-servant of Moody and Jepson, he did not assume the risk of their negligence, because, in ordering him to go upon the engine and bring meals back to his fellows, defendant imposed upon him a dangerous duty, and one without the scope of his employment. We are of opinion that this position cannot be maintained. The going home to his own dinner, and the bringing of meals to his fellow laborers, was an incident of his employment. During his long employment as a section hand he had frequently ridden upon trains to and from his labor, but never before had ridden upon an engine in the performance of his duty.

It would scarcely be claimed, we think, that, if plaintiff had been injured while riding on passenger train No. 7, the train which collided with the engine upon which he was riding, and which was carrying many employés of defendant to the scene of the wreck, he had not assumed the risk of injury upon said train due to the negligence of fellow-servants. Travel to and from scenes of disaster upon railways is clearly an incident of the employment of an employe engaged in the maintenance of the track and roadbed, and it seems obvious that travel to and from the wreck, for the purpose of bringing food to those engaged in its removal, is likewise necessarily an incident of such employment. Does the fact that plaintiff rode upon the engine, instead of upon the train, modify this rule ? We do not think it does. Travel upon a locomotive is of course more dangerous than travel in the train because, in the event of a collision, the passenger is nearer the point of impact. But this increase of danger is an obvious one, readily to be appreciated even by the inexperienced. A man of plaintiff’s age and experience must have known and appreciated it. Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Gavigan v. Railway Co., 110 Mich. 71 (67 N. W. 1097), and cases cited.

2 Labatt on Master and Servant, § 624, states the rule as follows:

“A servant who, at the time of the accident in suit, was being transported on a railway car, or other vehicle furnished for the purpose of facilitating the performance of his work, is deemed to have been injured in the course of his employment, and therefore cannot recover if the injury was the result of a risk known to and appreciated by him. * * * The character of the train on which the servant was being transported is immaterial, provided it was being used as a means of conveyance to take him, in the course of the performance of his contract, to or from the place where his duties called him.” Citing cases.

See, also, 26 Cyc. p. 1351, and cases cited; 34 Cent. Dig. §§ 501-503.

Plaintiff offered in evidence the rule books of the Pere Marquette Railroad Company, and the Chicago & Northwestern Railway Company, with special reference to rule No. 99, which differed in some respects from rule No. 99, adopted and in use by the defendant at the time of the accident. These exhibits have not been returned with the record, as was stipulated, but the fact is unimportant, for we must hold that the court below was correct in holding that the question of whether rule No. 99, as adopted by another company, would have afforded greater protection to plaintiff than did the one in use by defendant, was not a proper one to be submitted to the jury, upon this record. In Seccombe v. Railway, 133 Mich. 170 (94 N. W. 747), this court said (quoting from Niles v. Railroad Co., 14 App. Div. [N. Y.] 58 [43 N. Y. Supp. 751]):

“ The doctrine imposing liability upon railroad companies for failure to adopt particular rules, the necessity for which was not apparent to them, should not be unduly or unreasonably extended. And since the company has a paramount interest in protecting its property from injury or destruction, and also in avoiding all liability for damages to employes and passengers, * * * these considerations must have some weight in determining whether the omission to promulgate a particular rule constitutes a neglect of duty in not being able to foresee certain contingencies.”

This court further cited with approval Berrigan v. Railroad Co., 131 N. Y. 582 (30 N. E. 57), and Morgan v. Iron Co., 133 N. Y. 666 (31 N. E. 234). See, also, Whalen v. Railroad Co., 114 Mich. 512 (72 N. W. 323), Enright v. Railway Co., 93 Mich. 409 (53 N. W. 636), and Shadford v. Railway Co., 111 Mich. 390 (69 N. W. 661).

It was admitted that rule 99 in a modified form was in force on the Pere Marquette Railroad, but no testimony was introduced tending to show that such modification resulted in greater safety to life and property than did rule 99, as in use by defendant, and nearly all other railroads. Veit’s testimony has been considered, but we are of opinion that it was not such testimony as under the authorities would warrant the court in submitting the question of the sufficiency of rule 99 to a jury. See Berrigan v. Railroad Co., supra. But another reason exists why the question should not have been submitted. As this court found in considering the case of Veit v. Railroad Co., supra, the accident resulted from a disregard by the train crew of No. 42 of “the well-understood rules made largely for the protection of their own lives.” Had the employés of defendant, fellow-servants of plaintiff, obeyed rule No. 99, as in use by defendant company at the time of the accident, no accident would have occurred. The defendant “had the right to rely upon the observance of the rules by the trainmen.” Veit Case. See, also, 26 Cyc. p. 1170, and cases cited.

Judgment affirmed.

Hooker, Moore, McAlvay, and Blair, JJ., concurred.


text:
    KALAMAZOO TRUST CO. v. MERRILL.
    1. Partnership — Actions—Parties—Joint Obligations — Action Against Member op Firm.
    A partnership may not bring an action at law against one of its members, who would be both plaintiff and defendant in the same cause.
    2. Same — Joint Obligations with Third Parties — Actions — Equity.
    An obligor, who is liable jointly and severally on a note, cannot be held in an action at law by one of the parties jointly liable with him until such co-obligor has paid the note or more than his proportion thereof; and then, only for contribution.
    3. Same.
    A copartnership, three of whose members are liable as makers or indorsers on a promissory note, and thereby disabled from bringing an action against a third person who is jointly and severally liable as their co-obligor, may not maintain an action against him on the obligation, and is limited to a suit in equity.
    4. Same.
    The right of such defendant is not in the nature of a set-off or contribution, but consists of a right to the adjustment of equities existing against those holders who are equally liable with himself.
    5. Same — Trustee in Bankruptcy — Parties.
    The trustee in bankruptcy of a copartnership cannot bring such action if it might not be maintained by the bankrupt.
    Error to Calhoun; North, J.
    Submitted January 12, 1910.
    (Docket No. 42.)
    Decided February 3, 1910.
    Assumpsit by the Kalamazoo Trust Company, trustee in bankruptcy, against David L. Merrill on certain promissory notes. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed, and no new trial ordered.

      Stewart & Jacobs and Dallas Boudeman, for appellant.

      A. M. & G. H. Stearns and Arthur B. Williams, for appellee.
    Gilkey, Bowman, Wilson, Dewey, Whitney and Stratton, were equal copartners, engaged in the banking business under the firm name of Union Bank, Whitney, Gilkey & Co. Gilkey, Bowman, and Wilson, together with defendant and several others, signed, either as makers or guarantors, promissory notes to the amount of $83,200. Gilkey signed with defendant, either as maker or guarantor, $83,000 of these notes. Bowman signed with defendant, either as maker or guarantor, $28,000 of these notes, and Wilson signed with the defendant, either as maker or guarantor, $22,000 of these notes. The notes all ran to Rell S. Wilson, cashier of the copartnership bank. As to $83,000 of the $83,200 worth of notes, the liability of Gil-key was the same as that of the defendant. Upon $28,000 worth of them Bowman was likewise equally liable. And upon $22,000 worth of them Wilson was likewise equally liable. These notes were discounted by the copartnership bank, and the money was used in connection with the business of two corporations, in each of which Gilkey, Bowman, Wilson, and defendant were stockholders. Wilson, besides being cashier of the bank, was manager of one of these corporations and treasurer of the other. No payments have been made on the notes by any person liable thereon. Defendant offered to show that he had paid $20,000 worth of other notes upon which Gilkey, Bowman, and Wilson were liable, which notes were given in connection with the same enterprises as those above mentioned were given. This proof was excluded. In November, 1907, the partnership bank was adjudicated a bankrupt, and each of the six partners was likewise so adjudicated. The plaintiff in this case was appointed and duly qualified as trustee, not only of the estate property and assets of the copartnership, but likewise of the property of each of the six partners. Plaintiff brought suit in assumpsit upon the notes against the defendant.
    Under the plea of the general issue defendant gave notice of special defense in substance as follows:
    “(1) That Patrick EL Gilkey, Elias W. Bowman, and Hell S. Wilson, three of the six men forming the copartnership, Union Bank, Whitney, Gilkey & Co., are joint makers and guarantors with the defendant on all the notes sued upon; that one joint obligor has no right of action against a co-obligor until he has paid the debt, and then his suit would be for contribution; that, neither Mr. Gilkey, Mr. Bowman, or Mr. Wilson having paid the notes, or any of them, they could not sue Mr. Merrill; that Gilkey, Bowman, and Wilson could not collect from the defendant a debt which they themselves owed as well as the defendant; that, Gilkey, Bowman, and Wilson, being barred from bringing suit themselves, they could not do so by joining in the action Wallace W. Dewey, Richard D. Whitney, and Asa Stratton, who are in privity with them; that the trustee in bankruptcy has no greater rights than the copartnership it represents, and could not bring an action which the partnership could not bring; that any proceedings brought either by said copartnership or its representatives on these notes owed by the defendant and three of its copartners should be in a court of equity where the interest of the copartners Wallace W. Dewey, Richard D. Whitney, and Asá Stratton, who are not obligated on the notes, could be determined, where an accounting between the firm and Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson might be had to ascertain whether they owed the partnership, or it owed them, and where the respective rights and interests of the co-obligors might also be adjudicated.
    “ (2) That the defendant, D. L. Merrill, had paid other notes to the amount of about $20,000, principal and interest, given at the same time, for the same purpose, in connection with the same transactions, and on which these same copartners Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson were jointly obligated with the defendant. That the defendant has a legal and equitable set-off against all the notes and guaranties sued upon, they being the notes and guaranties of Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson, three of the six members of this copartnership, and that a court of equity is the proper tribunal to sift out and determine the rights and liabilities of all parties at interest.
    * ‘ (3) That the trustee has in its possession all of the property and assets of Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson, which, under the bankruptcy statute, must be first applied to the payment of their individual indebtedness; that, the notes sued upon being the notes of these copartners and a part of their individual indebtedness, the said trustee, as a duty in carrying out his trust, should apply this property on said notes pro rata with other individual indebtedness; that if the defendant be compelled to pay these notes, he would have no recourse against the property of Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson, as their estate is in the hands of the trustee, and would be distributed among those persons who were creditors of said parties at the time of the filing of their petitions in bankruptcy. For these reasons a court of equity is the proper tribunal.
    “(4) That at the time the notes at issue were given it was the understanding and agreement that all parties should sign all notes; that as to all those notes not so signed the defendant is not liable.
    “(5) That no steps were taken by either the copartnership, or by any one for or in its behalf, to charge the defendant as either indorser or guarantor, and for this reason he is not liable.
    “(6) That the trustee has in its possession a large amount of collateral, to wit, $90,000, par value of the capital stock of the Price Cereal Food Company, given to secure the payment of the notes known as Price Cereal Food Company notes, for which collateral said trustee should account to this defendant and the other owners thereof, and credit the value of said stock on said notes.
    “(7) That the notes were without consideration.”
    Proof was offered, but excluded, showing that the trustee proved its claim under these notes against Gilkey’s individual estate for $95,502.13, and against Bowman’s individual estate for $37,194.22. The schedule filed by Gilkey in bankruptcy shows individual assets of his in the hands of the trustee of nearly $50,000. The trustee also has in its possession individual assets of Mr. Bowman and Mr. Wilson to the value of several thousands of dollars. A verdict against defendant was directed by the court, to the amount of $81,789.76. The jury, upon questions of fact submitted by the court, found a further liability, bringing in a total verdict against defendant for $92,923.36. The case is before us upon writ of error.
   Brooke, J.

(after stating the facts). Two questions are involved in this controversy:

(1) Could the copartnership bank itself have maintained a suit at law upon said notes, it being conceded that three of the six members were jointly liable with the defendant thereon ?
(2) If this is answered in the negative, can the trustee maintain such suit ?

With reference to the first question, we think it may be said to be settled law in this State that a copartnership may not maintain a suit at law against one of its partners, and the reason for the rule is that, inasmuch as all the partners have a jointjntevest in the claim, all are necessary parties plaintiff, and to permit the action would present the anomaly of a single individual acting as both plaintiff and defendant in the same suit. And it is elementary that in suits at law, by or against a copartnership, all the partners must be named as plaintiffs or defendants, as the case may be. As to both these propositions, the authorities (where, as in this State, the common law obtains) are practically unanimous. 30 Cyc. pp. 561, 567; Mechem on Partnership, §§ 130, 131, 147, 225; George on Partnership, p. 363; Smith v. Canfield, 8 Mich. 493; Barber v. Smith, 41 Mich. 138 (1 N. W. 992); Learned v. Ayres, 41 Mich. 679 (3 N. W. 178); Davis v. Merrill, 51 Mich. 480 (16 N. W. 864); Carpenter v. Greenop, 74 Mich. 664 (42 N. W. 276, 4 L. R. A. 241, 16 Am. St. Rep. 662); McGowan v. Lamb, 66 Mich. 615 (33 N. W. 881); Grimes v. Bowerman, 92 Mich. 258 (52 N. W. 751); Reed v. Gould, 105 Mich. 368 (63 N. W. 415, 55 Am. St. Rep. 453); Stever v. Brown, 119 Mich. 196 (77 N. W. 704). See, also, Jacaud v. French, 12 East, 317; Bank of Toronto v. Nixon, 4 Ont. App. 346; Hoare v. Oriental Bank Corp., L. R. 2 App. Cas. 589; In re Wakeham, L. R. 13 Q. B. Div. 43; De Mazar v. Pybus, 4 Ves. Jr. 644; Jones v. Blun, 145 N. Y. 333 (39 N. E. 954); Strauss v. Frederick, 91 N. C. 121; Chambers v. Sloan, 19 Ga. 84; Harris v. Visscher, 57 Ga. 232; Schreiner v. United States, 6 Ct. Cl. 359; cases cited 15 Enc. Pl. & Prac. p. 839. The cases of Kinney v. Robison, 52 Mich. 389 (18 N. W. 120), Mitchell v. Wells, 54 Mich. 127 (19 N. W. 777), Carpenter v. Greenop, supra, and Cook v. Canny, 96 Mich. 398 (55 N. W. 987), relied upon by appellee, will be found, upon examination, to present exceptions to the rule rather than to afford any modification of it.

But it is urged by plaintiff’s counsel that, even conceding this to be the rule, it has no bearing upon the case before us because Merrill, the defendant, was not a member of the copartnership, and therefore no reason exists under the authorities cited why he should not be made defendant in a suit at law wherein all the partners were parties plaintiff. This would be unquestionably true if in fact all six members of the copartnership bank are under no disability which would prevent them from becoming parties plaintiff in a suit at law upon these notes. It will be remembered that Gilkey, Bowman, and Wilson are jointly and severally liable with the defendant upon the paper. Can these three men, who, as we have shown, are necessary parties plaintiff, maintain a suit at law upon the notes against their co-obligor, no one of them having paid the debt secured thereby, or any part thereof ? We think not. One joint obligor may not sue another joint obligor, upon their common obligation, until he has paid the debt, or a larger portion thereof than, as between himself and his coobligor, he would be liable to pay. His action would then be for contribution. 9 Cyc. pp. 798-801, and cases cited; Tobias v. Rogers, 13 N. Y. 59. All six being necessary parties, and three being under disability, the suit at law could not be maintained by the copartnership bank.

Let us see what the result would be if the copartnership bank were permitted to maintain a suit at law upon the notes. For convenience, let us suppose that the notes amount to $100,000, and that Gilkey, Bowman, and Wilson are, with defendant, equally liable upon all of them. Then the bank would recover a judgment against defendant for $100,000, $75,000 of which it was the duty of Gilkey, Bowman, and Wilson to pay. And who receives the $100,000 ? The copartnership bank, one half of which is owned by Gilkey, Bowman, and Wilson. Therefore these three men, instead of paying $75,000, actually receive $50,000. Such a result would be manifestly monstrous.

It is not necessary that this defendant should first pay the notes, and then have recourse to a suit for contribution against his co-obligors. Nor is his claim against them one in the nature of a set-off, as claimed by appellee. It is his right to have the equities, as between himself and his co-obligors, adjusted in the action upon the instrument, where such instrument is, in part, the property of those equally liable thereon with himself, and this conclusion does no violence to the rights of the copartnership or of the three members thereof, not themselves liable upon the paper. The copartnership bank, in taking the paper of three of its members, must be presumed to have known that a suit at law could never be maintained thereon because of the lack of necessary parties plaintiff. This was an infirmity in the paper, apparent upon its face, and one which affected all the partners alike. No honest claim of the partnership, or of either of the partners, will, however, be lost or impaired. In a suit in equity the defendant must respond to the extent to which he is properly liable, but he will not be compelled to pay to his coobligor a sum of money for which his co-obligor is liable.

Can the trustee (plaintiff herein) maintain the suit if its bankrupt, the copartnership bank, could not ? Collier on Bankruptcy (7th Ed.), p. 810 e, states the rule as follows:

“It is well settled that a trustee takes, not as an innocent purchaser, but subject to all valid claims, liens, and equities. Thus he has no better title than the bankrupt had, and is affected with every equity which would affect the bankrupt himself if he were asserting the same rights and interest. A trustee in bankruptcy stands in the shoes of the bankrupt, and has no better title than he, in the absence of fraud, or of attaching or judgment creditors at the time of the filing of the petition. Where a right of action passes to the trustee, any defense, legal or equitable, which might have been raised against the bankrupt’s claim may be raised against the trustee.”

This rule finds support in the following cases, among others: Chattanooga Nat. Bank v. Rome Iron Co., 102 Fed. 755; Atchison, etc., R. Co. v. Hurley, 153 Fed. 509, 82 C. C. A. 453; Security Warehousing Co. v. Hand, 206 U. S. 415 (27 Sup. Ct. 720, 19 Am. Bankr. Rep. 201). See, also, Loveland on Bankruptcy (3d Ed.), p. 438.

After issue was joined in this case, but before trial, plaintiff proved its claim upon these notes, against the individual estates of Gilkey and Bowman, to the extent of their several liability thereon. Thereupon defendant filed a plea puis darrein continuance, setting up these facts, and at the trial offered proof thereof, which was excluded. '.The effect of this plea need not be considered here, because the plaintiff, by reason of the disability pointed out, cannot maintain its action at law. In a suit in equity the assets in the hands of this plaintiff, belonging to the individual estates of defendant’s co-obligors, will be marshaled in accordance with familiar rules.

The judgment is reversed, and no new trial is ordered.

Hooker, Moore, McAlvay, and Blair, JJ., concurred.


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    MOODY v. MACOMBER.
    1. Wills — Deeds—Executors and Administrators — Conveyancing.
    A deed containing a clause providing that it shall not become operative until the death of the grantor, when it is to have full force and effect, interpreted in the light of surrounding circumstances indicating such intent, is a testamentary disposition of property, revocable by a subsequent will.
    3. Same — Delivery.
    No estate passes with the delivery of a will to the devisee.
    3. Same — Estates oe Decedents — Executors and Administrators — Authority over Real Estate — Statutes.
    The executor, under a will which grants to him full power and authority to make such disposition of the estate as may be necessary to carry into effect the provisions of the instrument, obtains title to the land coupled with a power of sale, and may maintain e'jectment. 8 Comp. Laws, § 9854.
    4. Ejectment — Parties—Who May Maintain — Title and Possession.
    One entitled to the possession of land may maintain ejectment.

      Error to Lapeer; Smith, J.
    Submitted January 11, 1910.
    (Docket No. 23.)
    Decided February 3, 1910.
    Ejectment by Paul B. Moody, executor of the last will and testament of John B. Sutton, deceased, against John B. Macomber. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      B. F. Heed, for appellant.
    Geer, Williams & Halpin, for appellee.
    Plaintiff herein brings ejectment against defendant to recover possession of a farm.. It appears that prior to August 12, 1885, plaintiff’s decedent was the owner in fee simple of the premises described. On that date he executed an instrument in the form of a deed to his wife, Louisa A. Sutton, covering said premises, and containing the following provision:
    “This deed is not to become operative until the death of the grantor, named herein, at which time, and from then on, it is to have full force and effect.”
    Upon the same day plaintiff’s decedent executed two other conveyances to his wife, covering other property, each containing the foregoing clause, and one of them containing the blanket provision, “and all other real estate of which I may die seised.” He also, on the same day, executed a bill of sale of certain personal property to his wife, which contained the provision, “ and all the personal property of which I may die seised.” Louisa A. Sutton, the wife, executed an instrument to her husband on the same day, covering a store she owned in Lapeer, which contained the same provision found in the deed from her husband to her. All these deeds and the bill of sale were placed in an envelope, in a tin box, containing private papers of both Sutton and wife, which was kept in the safe at the store of Loder & Sutton. Sutton later retired from the partnership, but the box was fouhd in the safe at the time of his death. Prior to his death, plaintiff’s decedent sold a part of the home and the “ Sanilac eighty,” both of which were covered by the deeds to his wife. In the fall of 1902 plaintiff’s decedent made a will, by the terms of which his wife took a life estate in the entire estate; the residue being disposed of among certain of the relations of the parties. This will was' probated by plaintiff, and the real and personal property, coming into his hands as executor, was turned over by him to the widow, in accordance with the terms of the will. On April 10, 1907, Louisa A. Sutton executed a deed of the premises here in dispute to defendant, in consideration of “one dollar and other consideration.” This deed was deposited with an attorney, and attached thereto was a letter of instructions providing for the delivery of the deed at Mrs. Sutton’s death, and the payment' to her of $800 per year during her life. She died about one year later. Plaintiff then brought this action. A. verdict was directed for plaintiff, and defendant has removed the case here by writ of error.
   Brooke, J.

(after stating the facts). But two questions are presented:

(1) Does the deed in question convey a present interest, or is it testamentary in character, and therefore revoked by the will of 1902 ?
(2) Has the plaintiff, as executor under the will, such an interest in the farm in question as will enable him to maintain ejectment?

Gardner on Wills, at page 24, states the rule as follows:

“ The essential difference between a deed and a will is that a deed must pass a present interest in the property, although the right to possession and enjoyment may not accrue until some future time, while an instrument, which passes no interest until after the maker’s death, is a will. * * * Regard must be had to the intention of the maker viewed in the light of the language of the instrument, and the circumstances surrounding the parties and attendant upon its execution” — citing cases.

1 Underhill on Wills, § 37, in discussing the question, uses language to the same effect. See, also, Borland on Wills, § 8, and cases cited.

Applying the foregoing rule to the case at bar, we find that there is no ambiguity in the language used:

“This deed is not to become operative until the death of the grantor named herein.”

These words can have but one meaning, viz., that no interest passed to the grantee thereunder until the happening of the event described. It is manifest that the instrument cannot be inoperative, as provided by its terms, and at the same time operative, to convey a present interest to be enjoyed by the grantee, at the death of the grantor. Nor is the meaning of the language quoted enlarged, restricted, or in any wise changed by the words following the quotation. If we look to the circumstances surrounding the parties at the time of the execution of the instrument (which is unnecessary in this case), in order to ascertain the intent of the parties, there can be no doubt that both Sutton and his wife- believed that, in executing deeds to each other to become operative at death, they were making a testamentary disposition of their several estates. The fact that John B. Sutton, in his lifetime, deeded away two parcels described in the deeds to his wife is significant as to his understanding of the effect of the instrument. The language contained in one of the deeds, “and all other real estate of which I may die seised,” is also important as indicating a testamentary intention on the part of the grantor.

Another important fact, as bearing upon his intention, is that in 1902 he made a will by the terms of which his wife was given a life estate only. Similar provisions have frequently been construed by this court. In the late case of Leonard v. Leonard, 145 Mich. 563 (108 N. W. 985), the language construed was: “This déed is not to become operative until after the death of the parties of the first part hereto ” — where this court said:

“ The words used cannot be said to apply simply to the enjoyment and possession of the property, but to the entire force and effect of the instrument, and are repugnant to the creation of a present interest.”

See, also, Bigley v. Souvey, 45 Mich. 370 (8 N. W. 98); Lautenshlager v. Lautenshlager, 80 Mich. 285 (45 N. W. 147); Ferris v. Neville, 127 Mich. 444 (86 N. W. 960, 54 L. R. A. 464, 89 Am. St. Rep. 480); Lincoln v. Felt, 132 Mich. 49 (92 N. W. 780); Clay v. Layton, 134 Mich. 337 (96 N. W. 458); In re Dowell’s Estate, 152 Mich. 194 (115 N. W. 972). The instrument, though in form a deed, was in fact a will. We find no evidence in the record of the delivery of the instrument, but whether it was delivered or not is of no consequence if, in fact, it was testamentary in character. The delivery of a will conveys no estate to a devisee therein named.

Can the executor maintain ejectment? The language of the will is as follows:

“I hereby nominate, constitute and appoint Paul B. Moody, executor of my last will and testament, with full power and authority, upon the decease of my said wife, Louisa A. Sutton, to make such disposition of any and all of the property of which I may die seised- and possessed, as may be necessary to carry out the provisions of this instrument.”

The statute gives to the executor the right to the possession of all real and personal estate of the deceased. Section 9354, 3 Comp. Laws. The right of an executor to maintain ejectment under this statute has been upheld. Kline v. Moulton, 11 Mich. 370; Barlage v. Railway Co., 54 Mich. 564 (20 N. W. 587). One entitled to the possession of land merely may maintain ejectment. Covert v. Morrison, 49 Mich. 133 (13 N. W. 390); Shaw v. Hill, 79 Mich. 87 (44 N. W. 422). But we are of opinion that the language of the will above quoted is broad enough to convey title to the land in question coupled with a power of sale, though the land is not specifically described.

The judgment must be affirmed.

Montgomery, C. J., and Hooker, McAlvay, and Blair, JJ., concurred.


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    BULL v. HEPWORTH.
    Compromise and Settlement — Estates oe Decedents — Consideration — Fraud.
    In the absence of fraud or overreaching, the compromise of a claim against the estate of a decedent, made to avoid the expense of litigation by one in possession of the entire property under a conveyance made by the deceased to take effect at his death, is supported by adequate consideration, and is not subject to rescission in equity.
    Appeal from Cass; Des Voignes, J.
    Submitted January 13, 1910.
    (Docket No. 53.)
    Decided February 3, 1910.
    Bill by Eunice Bull against Josephine Hep worth for the cancellation of a note and mortgage for fraudulent representations. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John B. Carr, for complainant.

      Clyde W. Ketcham (John W. Adams, of counsel), for defendant.

      Cornelius Terwilliger owned a farm of 80 acres in Cass county, upon which, he resided for a number of years, and up to the time of his death, which occurred November 18, 1907. He had no children, and died intestate. His wife had died several years earlier. Complainant, his niece, and a widow, worked for him for six months in the year 1904, and after his wife’s death returned to' him in October, 1905, remaining until his death in the capacity of housekeeper. On October 31, 1907, about two weeks before his death, Terwilliger deeded his farm to complainant. This deed was not delivered, but was held by the justice of the peace who took the acknowledgment, and delivered to complainant after the funeral. The deed contained the proviso: “This deed, to take effect at my death.” Defendant had made eight trips from her home in Kansas to nurse and care for Terwilliger and his wife. These visits together covered a period of about two years. They were made at the request of Terwilliger, and under a promise of remuneration, as shown by numerous letters from him to defendant. After the funeral defendant made a claim to complainant that Terwilliger was indebted to her for her services in nursing him and his wife, and for expenses of travel between Kansas and Michigan, incurred by her at Terwilliger’s request. The parties had several conferences about the matter, and it was finally agreed between them that complainant should give defendant a note for $1,000, secured by a mortgage on the south half of the farm, in full satisfaction for defendant’s claim against Terwilliger’s estate. On December 3,1907, this note and mortgage were executed by complainant. It was recorded on December 5, 1907, and two days later, complainant filed her bill herein, seeking to set aside said note and mortgage for fraud and lack of consideration. At this time no administration had been asked for upon Terwilliger’s estate, and complainant was in undisputed possession thereof, personal as well as real. The only known claim against the estate was that of defendant.
   Brooke, J.

(after stating the facts). The record discloses absolutely no evidence of fraud or overreaching on the part of the defendant. There is, then, but one question remaining for determination.

Can one who is in possession of the entire estate of a decedent settle and compromise a claim against the estate, and is the forbearance to sue said claim a sufficient consideration for the payment of the sum agreed upon in settlement? This question should, we think, be answered in the affirmative. The case of Teed v. Marvin, 41 Mich. 216 (2 N. W. 20), relied upon by the complainant, is clearly distinguishable from the cáse at bar, and the long line of decisions cited by complainant, to the effect that claims against an estate are barred unless presented within the time limited for that purpose, have no application. Here, immediately after Terwilliger’s death, complainant, who is in possession of his entire estate (an estate clearly burdened in her hands with all the just debts of Terwilliger), effects a compromise of defendant’s claim, with the particulars of which she is fully familiar, for the purpose of avoiding the expenses of administration and (possibly) an expensive legal controversy over said claim. There surely is no reason, either in law or equity, which would not uphold and encourage such settlements, in the absence of fraud. The forbearance of defendant to present her claim was an adequate consideration for the payment to her of the money agreed upon. In Van Dyke v. Davis, 2 Mich. 145, this court said:

“It is a principle well established that the compromise and settlement of an asserted claim involved in legal controversy, be it never so doubtful, constitute a sufficient consideration for the settlement, and for any obligations given by one party to the other in consideration of such settlement” — citing Weed v. Terry, 2 Doug. (Mich.) 344 (45 Am. Dec. 257).

See, also, Wehrum v. Kuhn, 61 N. Y. 623; 8 Cyc. p. 505, and cases cited.

We are of opinion that complainant was fully advised of her rights in the premises, and that she made a wise adjustment with defendant.

The decree is affirmed, with costs.

Hooker, Moore, McAlvay, and Blair, JJ., concurred.


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    OBLASER v. WAYNE CIRCUIT JUDGE.
    1. Criminal Law — Procedure—Adjournment of Examination.
    No formal adjournment is necessary on preliminary examination of a person charged with a crime, where the testimony was taken by a stenographer before the examining magistrate, and the decision of the justice to bind over the respondent announced orally, and after twelve days the witnesses were brought in, signed their testimony as extended, and the defendant was remanded into custody.
    2. Same — Evidence—Judicial Notice.
    The court will take judicial notice of the fact that some time is required to reduce stenographic notes of testimony taken on preliminary examination to typewritten form.
    3. Same — Order of Justice on Preliminary Examination — Premature Action.
    It does not preclude further action in the case for the justice to announce his decision to bind over the respondent under the testimony, at the close thereof, before it has been signed by the witnesses.
    4. Same — Binding Over Respondent.
    The intention to make a valid order and to sign the testimony at the proper time will be presumed.
    5. Same — Return of Justice — Requisites.
    The return of the examining magistrate, which is defective in not being properly verified, or in failing to contain the signed testimony and a proper affidavit, may be amended or a new return filed.
    Mandamus by August Oblaser to compel Henry A. Mandell, circuit judge of Wayne county, to vacate an order denying a motion for an amended return by an examining magistrate.
    Submitted January 13, 1910.
    (Calendar No. 23,774.)
    Writ denied February 3, 1910.

      Philip A. McHugh and William Henry Gallagher, for relator.

      Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for respondent.
   Hooker, J.

The defendant being before the circuit court on a charge of murder, to which he had not pleaded, caused this motion to be made for an order for an amended return by the examining magistrate, claiming that the return made under date of August 31,1909, does not show all that occurred, and that a true amended return would show that defendant had not been accorded a lawful and valid examination. It is shown by defendant’s affidavit: That the witnesses for the prosecution were examined and testified on August 19th before the justice and in the presence of the defendant that upon said day he was bound over to the circuit court for trial, and remanded to the jail to await trial, by the following oral order:

The Court: Oblaser, I find that there is probable cause to connect you with this crime, and I bind you over to the circuit court for trial, ánd I remand you to the custody of the sheriff.”

That afterwards, and before August 30th, the justice delivered to the prosecuting attorney his return, to be filed in the circuit court by him or his assistants. That afterwards said justice caused said witnesses to be subpoenaed, and they appeared before said justice on August 31st, and signed a typewritten transcript of their testimony in the presence of the defendant and his counsel. No order of continuance having been made or entered, that thereafter, and on the 31st day of August, said justice made and caused to be filed a return, which did not include a statement of the facts alleged, that no continuance of the examination was made or entered upon August 19th at the close of the examination. The motion was made on November 18th, and was based on an affidavit of the defendant made on that day. It is inferable that the testimony was taken by a stenographer, and that it was afterwards transcribed. The statute (3 Comp. Laws, § 11853) permits the testimony to be reduced to writing under the direction of the justice, and we may take judicial notice that, where taken by a stenographer, some time is required to reduce it to typewriting, as was apparently the case here. On August 31st the defendant was brought in, the witnesses appeared, their testimony was read over to them, and was subscribed by them in the presence of defendant and his counsel. This was in our opinion a proper proceeding, unless the justice had lost his jurisdiction (1) by a failure to adjourn or hold open the cause toa day certain; (2) by the alleged order of commitment; (3) by his alleged return delivered to the prosecuting attorney to be filed.

In the case of Hamilton v. People, 29 Mich. 176, it was said:

“ The justice, in these examinations, does not act judicially in the technical sense, but in his capacity of a conservator of the peace, and the proceeding is one which at common law was conducted very much at discretion. It is possible that the regularity of the arrest and continued custody of the prisoners may have been open to question; but we have found no authority for holding that a criminal examination before a justice is void if a complaint has been made before him on oath, and the accused are finally held to bail or committed on a law day upon testimony taken in their presence in pursuance of it. Whether irregular or not, we find no authority for regarding such proceedings as nullities. We can see no reason why a complaint properly verified should cease to be valid to maintain an examination unless the parties accused are either discharged or held to commitment so long as there is nó substantial break in the proceedings. No formal record is required to be kept of them, and the continuance from day to day is not an adjournment of such a nature that the failure to announce it would be of any consequence. The proceedings are by the statute contemplated as continuous, unless formally adjourned from time to time, and the close of business on one day would carry it over until the next business day as a matter of course, unless otherwise ordered. The adjournment to the 22d, if illegal, would not interrupt a legal course, which would take the matter over to the 23d; and whether the justice did or did not consider some testimony which was not admissible because irregularly taken his discretion in ordering the commitment cannot be reviewed in any such way as proposed here. The plea does not dispute the fact that there was a preliminary examination upon a proper complaint before a magistrate having jurisdiction resulting in a commitment; and this we think was all that was necessary to justify proceeding by information.”

In the present case the testimony was taken and defendant was remanded. When the testimony was ready for signature, the cause was taken up and proceeded with. We are not advised that any objection was made to this at the time or that any change was made in the testimony as taken, and we feel justified in saying that it was a continuous proceeding within the holding in the Hamilton Case, and that no formal adjournment or designation of time was necessary.

It is contended that the order remanding and binding over was invalid because made before the testimony was signed, and that it was a final disposition of the matter precluding further action. If it is true that the order was void because premature, it was of no effect, and ought not to preclude the further action of preparing and signing the testimony, which was evidently necessary. This, in the absence of clear proof to the contrary, we must presume to have been intended; and also the making of another order when it would be valid. The fact that the justice after hearing the testimony announced his conclusion is not inconsistent with an intention to have the examination completed and testimony signed, when he would necessarily have to make a formal certificate and return whether he had previously announced his conclusion or not.

The alleged return to the prosecuting attorney is open to several suggestions.

(а) It is not proven, being stated only on information and belief.
(б) It was an inadequate return for the reason that it did not contain the signed testimony. Indeed, the affidavit does not show what it consisted of.
(c) If it were invalid or incomplete, it was competent for the justice to amend it before filing or make a new one.

The writ is denied.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.