author: Long, J. Montgomery, J.

text:
    James A. Benage, Administrator, etc., v. The Lake Shore & Michigan Southern Railway Company.
    [See post, 79.]

      Injury to railroad employe — Contributory negligence.

      Í. A brakeman who rides in a standing position on the brake-beam of the tender of an ordinary road engine while backing across a river upon a trestle, at a rate of speed of from five to eight miles per hour, he having no place to hold onto except the draw-bar, against which he leans, and being in a 1 position where he cannot see the engineer or fireman or be seen by either of them, is guilty of such negligence as will bar a recovery for injuries received by being struck by the end of a gate which had in some way become unfastened, and swung partly across the track, so as to come in contact with the rear end of the tender, and slide along, and crush the brakeman against the draw-bar.
    2.i The contention that the swinging in of the gate was not one of the dangers to be expected, and that the brakeman had the right to assume that the railroad company would discharge its duty, and not permit the gate to be unfastened or across the track at the time of the accident, as it was closed only at night and opened each morning, cannot be sustained, the brakeman being in a position where he could not escape injury if the tender backed into any other obstruction upon the track, and likely to be thrown off by any sudden starting of the engine; nor will it do to say, under these circumstances, that, because it was the custom of others to ride in the same exposed place, therefore the brakeman was in the exercise of due care.
    Error to St. Joseph. (Loyeridge, J.)
    Argued June 7, 1894.
    Decided September 25, 1894.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the majority opinion.

      R. R. Pealer, George E. Miller, and Bishop E. Andrews, for appellant.

      O. E. Weaver (George 0. Greene and 0. G. Getzen-Eanner, of counsel), for defendant.
   Long, J.

Plaintiff’s intestate, Jacob Gee, was a brakeman in the employ of the defendant company, which owned and operated a side track crossing the Kalamazoo river in the village of Otsego. This side track was placed across the'river by the company for the purpose of running its ■cars from the main line to the Bardeen paper mill, to transfer from the mill its manufactured product. It was built upon a trestle, and in a circular form, until it reached the manufacturing plant. Across the river from the main line the Bardeen Paper Company had erected gates across the track, just at the edge of the river. One of these gates was hung on. hinges so that, when unfastened, it would, of itself, swing across the track. The gates were so placed there with the consent-of the defendant company. They were fastened to upright posts; which were fastened to bed-pieces extending partly under the track; and, as claimed by plaintiff, the posts and gates were so connected to the railroad track or the trestle that, by the jar of a train or engine crossing, the upper or right-hand gate would become unfastened, and swing across the track.

On July 18, 1892, an engine, and a tender, connected, were to be taken across from the main track to' haul ont some cars upon the other side. The engine was in the charge of the engineer and fireman. Plaintiff’s intestate was a brakeman at work under the «direction of the conductor of the train. As the engine and tender were about to be started across this trestle, backing up, the conductor of the train and Gee stepped upon the brake-beam, one each side of the draw-bar, to ride over, Gee-intending bo couple the engine to the cars which were to-be hauled out. As the tender neared' these gates, the one upon the side where Gee was riding, being unfastened, stood partly open, so that, as the rear end of the tender reached it, the end of the gate came in contact with the rear end of the tender, and, sliding along, crushed Gee against the draw-bar, and injured him so severely that he-died from such injuries on the same day. This action is-brought to recover damages for negligently causing Gee’s death. On the trial the court directed a verdict in favor of the defendant company, on the ground that Gee was-guilty of contributory negligence in riding on this brake-beam.

The case has been very fully and ably argued in this Court. Counsel for plaintiff contend that Mr. Gee’s position on the brake-beam, though dangerous, yet was not the proximate cause of his injury and death, and therefore, if he came to his death through the negligence of the company, it cannot escape liability by saying the decedent was i'n a dangerous place; that the mere fact that he was in a position where he might be injured in some other way would not excuse the company from the consequences of its own neglect. It is contended that at least it was a question for the jury. It appeared from the testimony given on the trial that other employés of the defendant company ‘had been for some considerable time accustomed to ride in this way on this and other engines, and it is therefore claimed that Gee conld not, as matter of law, be said to have been guilty of negligence in doing what was customary to be done there.

From a careful examination of the authorities, we are led to the conclusion that the court below was not in error, under the circumstances shown in this record, in the direction given to the jury. The engine and tender were similar to those used in the general business of the company over the line of its road. It was not a yard engine. It had no foot-board, like those at the rear end of tenders upon which so often employés ride back and forth to attend switches or to couple or uncouple cars. The brake-beam was about 7 inches in width at the center, and continued for 12 inches each way, when it tapered down to 3% inches, and. was only 5 feet 8 inches long. It was 29 inches from each end of this beam to the outside of the tender. The men standing on this beam had no place to hold on, except the projection of the draw-bar, against which they leaned. In this position they conld not see the engineer or fireman, or be seen by them. The engine was running from five to eight miles an hour, according to the testimony. All the witnesses, without exception, pronounced it an unsafe place to ride. The rules of the company, with which the deceased must have been familiar, provide, among other things:

ft It is made hereby the right and duty of every employé, under all circumstances, to take sufficient time before exposing himself to danger to ' make such examination as is here required, and refuse to obey any order which would imperil his life or limb.”

From the testimony, therefore, which was substantially uncontradicted, it appears that this was a dangerous place in which to attempt to ride. With no place to hold by the .hands, except the draw-bar, and standing upon this narrow and confined place, with nothing to alight upon, but an open trestle if he jumped, and out of the sight of the engineer and fireman, and presumably not within their* hearing above the noise of the engine in motion, any person riding in this way would be perfectly helpless, should accident happen. Yet counsel contend that the swinging in of the gate was not one of the dangers to be expected, and that the deceased had the right to assume that the defendant would discharge its duty, and not permit the gate to be unfastened or across the track at that time, as it was closed only at night, and opened each morning. But the deceased was in a position where he could not escape injury if the tender backed into any other obstruction upon the track, or he was likely to be thrown off! by any sudden starting or stopping of the engine. It will not do to say, under these circumstances, that, because it was the custom of others to ride there, therefore he was in the exercise of due care. It is apparent that the deceased must have known, as others did, that it was dangerous, and that he was willing, contrary to the rules of the company, to take his chances. It appeared from the testimony that he was not compelled to ride there. He could have gone into the cab of the engine, as brakemen were permitted to ride there, and thus have been in a safe place, compared to riding on the brake-beam.

The case falls within the rule laid down in Glover v. Scotten, 82 Mich. 369. There the deceased was riding on the cow-catcher, in a sitting position, and with his legs hanging over. It was said:

“The difference in danger between standing on a platform of a regular switch-engine, and sitting on a cowcatcher, with one's legs hanging over it, is apparent. In the one case the switchman is ready to jump upon the approach of danger; in the other, considerable time must elapse before he could recover his standing position upon the pilot beam, and put himself in readiness to avoid danger."

Here the deceased was utterly helpless. He could not avoid danger by anything he conld do. He could not jump, or protect himself at all, and this' he must have known when he took his place there. It cannot be said that the position he was in was not the proximate cause of the.injury. He was in the only place where he could have been injured by the gate, or any collision by the rear end of the tender, and a safe place had been provided. As was said in Glover v. Scotten, supra, “nor would the fact that switchmen were in the habit of riding upon1 the cow-catcher excuse the deceased, as between him and defendant.”

We think the case conclusively shows that the deceased was guilty of contributory negligence, and there was no question in it for the determination of the jury¡

The judgment must be affirmed.

Grant and Hooker, JJ., concurred with Long, J.

Montgomery, J.

(dissenting). The facts are sufficiently set forth in the opinion of Mr. Justice Long. I think the case should have been submitted to the jury. It was the duty of the defendant to provide a reasonably safe place for plaintiff’s intestate to work, and it can hardly be contended that it conclusively appeared on the'trial that defendant had performed this duty, in view of the fact that the motion of the train was sufficient to cause the gate to become unfastened, and Swing around so as to come in contact with any person- who happened to be riding on the rear of the train. Nor do I think that negligence of the plaintiff’s intestate, which contributed to the injury, was conclusively shown. It would not have been negligent to ride upon the fear of the train. It is true it is said that the position which decedent occupied on the rear of the train was such as to render him subject to danger, but what danger? Obviously, the danger of being thrown from his post by the motion of the car. But the injury to decedent did not result from this cause. Certainly the fact, if it is a fact, that he assumed such a risk as that of falling from the car, did not make him a legitimate mark for the trespass or negligence of others. I think the case falls within the principle of Gray v. Scott, 66 Penn. St. 345, in which case a car was negligently shoved over the end of a track, and killed a boy playing in the passage. The boy had been frequently • warned not to play in the passage, on account of danger from trucks and wheel-barrows; but it was held that, as he had no reason to expect harm from the cars, from being in the passage, his failure to heed the warning was not negligence contributing to the injury. See, also, section 33 of Beach on Contributory Negligence, and cases cited. I do not think it can be said, as a matter of law, that one who is riding on the rear of a train moving backward is bound to anticipate obstructions on the track. This being so, it is immaterial whether his position subjected him to other dangers than that which occasioned the injury.

I do not attempt to distinguish Glover v. Scotten, 82 Mich. 369, for the reason that I regard the case as a departure from principle.

McGrath, O. J., did not sit.


source: Caselaw Access Project

author: Long, J. McGrath, . C. J.

license: Public Domain

text:
    James A. Benage, Administrator, etc., v. The Lake Shore & Michigan Southern Railway Company.
    [See ante, 72.]

      Contributory negligence.

    This case Is ruled by Glover v. Seotten, 82 Mich. 869, and there , is nothing in the cases cited or arguments made on the rehearing to change the views expressed in the former majority opinion.
    Rehearing, upon application of plaintiff, of case reported in 102 Mich. 72.
    Argued January 29, 1895.
    Former decision affirmed April 26, 1895.
    The facts are stated in the .several opinions.

      R. R. Pealer, George E. Miller, and Bishop E. Andrews, ':for appellant.

      O. E. Weaver (George G. Greene and O. G. Getzen-Danner, of counsel), for defendant.
   Long, J.

This case has been reargued, and the points raised fully and carefully reconsidered.

I am unable to find anything in the cases cited or the arguments made to change my views, expressed in the iormer opinion. The ease falls so clearly within Glover v. Scotten, 82 Mich. 369, that it must be ruled by it, and I am not prepared to overrule that case.

Judgment must be affirmed.

Grant and Hooker, JJ., concurred with Long, J.

McGrath, . C. J.

(dissenting). Plaintiff’s intestate was a brakeman upon one of defendant’s way freight trains, running between Grand Rapids and White Pigeon. The Bardeen Paper Company has two mills at Otsego, one lying between the main track and the river, and the other located on the other side of the river. A spur ran from defendant’s main track to mill No. 1, and across the river, upon a trestle, to mill No. 2, the track being half circular in form. The train stopped at Otsego, left some cars at mill No. 1, and the engine, with tender attached, started in a westerly direction to back over the trestle to-mill No. 2. The paper company had been allowed by defendant to erect a gate upon the trestlework about 100. feet from the easterly end thereof. The object of the-gate was to prevent persons from crossing the trestle at-night or on Sundays. It had been in place two or three months. At first, it seems to have been closed over the-track each night, but for some time it had been closed from Saturday night to Monday morning only. When opened, the nose of the gate faced westerly, and it was-supposed to be fastened with a hook to a post placed for that purpose. The engine was not a yard or switching engine, but was an ordinary freight engine, without foot-boards. As the engine started over the trestle, decedent and the conductor of the train, after attending to the switches, mounted the brake-beam in the rear of the-tender, one on each side of the draw-bar. As they approached the gate, it seems to have been unfastened, and the vibrations of the trestlework, to which tfhe gate was attached, caused it. to swing to, the end of the gate-striking the rear of the tender, grazing along the rear end of the tank, and crushing decedent between the end of the gate and the draw-bar. The testimony .tended to show that the trestle was a rickety structure. Both parties saw the gate start, and signaled the engineer, who applied the brakes, and stopped the engine, but not in time to-avoid the injury. The gate, when open, was but 39 inches from the - rail, and the tender projected some distance beyond the rail, so that the distance between the open gate and the tender was but slight.

The court below instructed the jury that decedent was guilty of contributory negligence, in that he chose a dangerous place to ride upon the engine, and directed a verdict for the defendant. In this I think the court erred. The proximate cause of the injury was the closing of the gate. The structure was there by and with the consent of the defendant. It was not a part of defendant’s system. The gate was upon a spur track, which had been used by the company but occasionally in the course of a period of two or three months. In Sweet v. Railroad Co., 87 Mich. 559, it was held that constructing and maintaining a side track so near to a building in the yards of the company as to endanger the lives of its employés while switching cars on said track was a violation of the duty of the company to provide a safe place for its employés to work in; and it was also held that, in the absence of testimony tending to show that one so injured had any reason to apprehend the existence of such special danger, it was a question for the jury, under all the testimony, to determine whether he knew or ought to have known of such danger.

There was no rule of the company prohibiting riding upon brake-beams. There was abundant testimony tending to show that it was customary upon such engines to ride upon the brake-beams, when engaged in like service. The conductor of the train was with the decedent upon the brake-beam when the accident occurred. The ordinary switch engine is provided with a foot-board, which occupies the same relative position which did this brake-beam, upon which it is expected and intended that switchmen shall ride in whatever direction the engine is moving. It is true that the foot-board in such case projects at each end beyond the track, but it also extends across the rear end of the tender, and the same accident might have occurred had the decedent been riding upon the foot-board of a switch engine. At the point where the collision occurred, there was an open trestlework, and the track was some 12 feet above the water. In jumping from the *bar, the same danger would have confronted him in either case. It is urged that hand rails are provided upon yard engines; but the absence of them in the present case did not cause, contribute to, or aggravate the injury. The decedent was not knocked from the car or injured by a cause rendered concurrent by reason of his situation; indeed, he retained his place, and was taken therefrom after the collision. In Preston v. Railway Co., 98 Mich. 128, we held that the failure to fasten the tank to the frame upon which it rested, so as to maintain its place in case of a collision, could not be regarded as negligence. In Noble v. Railway Co., 98 Mich. 249, it was held that where a passenger attempts to escape from a street car, which has run off the track, and while alighting is injured, the fact that the passenger was riding upon the platform of the car at the time cannot be said to have been the proximate cause of the injury.

The judgment should be reversed, and a new trial ordered.

Montgomery, J., concurred with McGrath, C. J.


author: McGrath, C. J.

text:
    Hattie M. Crawford v. Medad Vinton.

      Chattel mortgage — Condition—Recognizance—Notice.
    The term “appear,” as used in the condition to a chattel mortgage executed by a respondent in a criminal case to secure the mortgagees for becoming sureties for his appearance at a certain term of court to answer an information on file against him, and conditioned that, if the mortgagor shall “appear” at the next jury term of said court, then the mortgage'shall be void, must be construed with reference to the obligation which the sureties have undertaken, and the appearance of the mortgagor at the term named will not void the mortgage, so far as notice to subsequent purchasers is concerned.
    Error to Grand Traverse. (Ramsdell, J.)
    Submitted on • briefs June 8, 1894.
    Decided' September 25, 1894.
    Trover. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Umlor & Pulcipher, for appellant.

      Totten J Phelps, for plaintiff.
   McGrath, C. J.

This is trover for a span of horses seized by defendant under a chattel mortgage given May 29, 1891, by one Blakely, of Traverse City, Grand Traverse •county, to Lars Sogge and Rudolph Ruff. The condition of the mortgage was that if the said Blakely shall appear at the next jury term of the circuit court in Leelanaw county, Mich., then this mortgage shall be void and of no effect.” Indorsed upon the mortgage was the following:

“This mortgage is giyen and is for the express purpose to secure the above-named party on his becoming surety in the penal sum of $500 for his (George A. Blakely’s) appearanee at the next term of .court, in November, 1891, in and for the county of Leelanaw, Michigan.”

The court found the following facts:

That on the 29th day of May, 1891, George A. Blakely made a chattel mortgage on a span of gray geldings, the chattel mortgage being in favor of Lars Sogge and Rudolph Ruff, to secure them against loss that they might sustain by reason of their entering into a recognizance with George A. Blakely as principal, said recognizance requiring Mr. "Blakely’s appearance at the circuit court for the county of Leelanaw, at the then next November term of court, to answer to an information that might be on file against him at that term; that, after he gave the mortgage, Mr. Blakely removed from the township of Traverse City, where he resided and where the mortgage has been recorded, to the township of Helena, in Antrim county, and took with him the property in question; that he remained there for some time, and held the property there; that he placed a chattel mortgage upon it in favor of the Bellaire Bank, and subsequently sold the property to Bass and Dewey; that Bass and Dewey held possession of the property for some time, and then sold it to Mr. Edward Clark, of Kalkaska; that subsequently Mr. Clark sold the same property to the plaintiff in this case; that in March, 1893, the property was taken upon the chattel mortgage by the agent of the original mortgagees, and claimed as theirs; * * * that George A. Blakely appeared at the November term of the circuit court for the county of Leelanaw, in 1891, to' answer to an information filed against him, in accordance with, the requirements of the chattel mortgage; that, at the time of and during that session of court, Mr. Blakely and the mortgagees agreed that the mortgage should continue in force as long as the recognizance continued in force; that this agreement was not put in writing, nor was it attached to the mortgage, so that the record of the mortgage showed nothing of the agreement that had been entered into between the parties at that term of court; * * * that affidavits of renewal were filed each year before the expiration of the time; that the mortgage was not recorded or filed in the township of Helena, in Antrim county, or in any of the townships where the subsequent purchasers resided; * * * that this plaintiff was a subsequent purchaser in good faith, without notice of the oral agreement between Mr. Blakely and the mortgagees.”

Upon these findings the court concluded:

“The condition in this mortgage was that Mr. Blakely should surrender himself for trial, or to answer to the information on file against him, and, if he so appeared, then the mortgage was to be null and void. This was notice to every one interested in the property, and as it appears, as a matter of fact, that this condition in the chattel mortgage was fulfilled on the part of Mr. Blakely, the chattel mortgage became null and void at that time, so far as any notice to any subsequent purchasers might affect it. That any agreement entered into between Mr. Blakely and the mortgagees orally at that time, unless that agreement was brought home, by actual notice, to subsequent purchasers, could not be inferred from the chattel mortgage itself, and therefore held as constructive notice of the interest that the mortgagees still held as between them and Mr. Blakely, and that consequently they .lost their rights as to subsequent purchasers in good faith and without notice."

Conceding that the record of the chattel mortgage operated as constructive notice of such facts only as would have been learned from the record if examined, and that the rule that what is sufficient to put a purchaser upon inquiry is notice of whatever the inquiry would have disclosed applies to actual, not constructive, notice, we think the construction given to. the condition of the chattel mortgage in the present case was too narrow. It is evident from the face of the mortgage that it was given to indemnify the mortgagees as sureties for the 'appearance of Blakely at the next jury term of the circuit court, and the court finds that such was its purpose. A recognizance is a debt of record entered into before some court, judge, or magistrate having authority to take the same. Its object is to secure the presence of the defendant to perform or suffer the judgment of the court. The sureties are regarded in law as the keepers of their principal, and a continuance of the cause would not operate as their discharge. An appearance is defined as “thp formal proceeding by which a defendant submits himself to the jurisdiction of the court;” “ the prescribed mode of complying with the exigency of the process.” The usual form of a recognizance is for defendant's appearance at, etc., and not departing without leave. The term “appear,” in the condition, must be construed with reference to the obligation which the sureties had undertaken, as disclosed by the instrument. The findings fail to disclose when the plaintiff purchased the property. The fact that the mortgage was kept alive by renewals properly filed is found, and it does not appear that the plaintiff purchased the horses before the filing. The renewals were notice of a claim still existing under the mortgage.

The judgment is reversed, and a new trial awarded.

The other Justices concurred.


author: 7 Hooker, J.

text:
    Edward Corning and Anna Corning, Executors of the Last Will and Testament of William Corning, Deceased, v. Frank S. Burton, Milon W. Ellsworth, Freeman B. Dickerson, and Harvey G. McQueen.

      Equity practice — Subpoena—Beturn—Mortgage foreclosure — Deficiency — Assumption of mortgage.

    1. The subpoena and underwriting provided for by Chancery Rule No. 122 may properly be treated as one instrument; and a return by an officer that he served a copy of the “ within subpoena,” which subpoena upon its face contains the underwriting, leaves no room to doubt that service was made of all that appears upon the face of the subpoena, and no more, and is sufficient.

      2. A personal decree may be rendered in a foreclosure case against a grantee of the mortgagor, who has accepted a deed stating that it is subject to the mortgage, which the grantee assumes and agrees to pay.

    3. A grantee who is thus liable cannot escape liability by, inserting in his deed of the mortgaged premises a like agreement, by his grant|^to pay the mortgage debt.
    4. Doubtless equity would say that the second grantee was primarily liable, the first grantee next, and the mortgagor last; but all are liable.
    Appeal from Midland. (Hart,. J.)
    Argued June 27, 1894.
    Decided September 25, 1894.

      Bill to foreclose a mortgage. Complainants appeal from a decree denying their petition for execution for deficiency.
    Reversed, and decree entered in accordance with ^prayer of petition.
    The facts are stated in the opinion.

      H. P. Smith (Gamp & Brooks and W. G. Gage-, of counsel), for complainants.

      Brooke & Spalding, for defendant Dickerson, who alone resists the claim of complainants on appeal.

       LIABILITY OF GRANTEE OF MORTGAGED PREMISES TO PAY THE MORTGAGE.
      For cases bearing upon the question of the liability of the grantee of mortgaged premises to pay the mortgage, see:

        Action at Law for Deficiency.

        Hicks v. McGarry, 38 Mich. 667, holding that, the grantee is not liable to the mortgagee in an action at law for the balance of the mortgage debt remaining unpaid after the foreclosure of the mortgage, where the basis of liability is the agreement to pay contained in the deed. *

        Illustrative Oases. -
      1. Gomstoek v. Smith, 26 Mich. 306, where a married woman conveyed Canadian oil land subject to a purchase-money mortgage. The deed provided that the grantees should have quiet possession of the laud, free from all incumbrances, except said mortgage, upon which there was due a specified sum, which was to be deducted from the consideration stated in the deed, and paid by the grantees to the mortgagee.. The grantees failed to make such payment, and the grantor filed a claim against the estate of one of the grantees, based upon said provision in the deed. The estate objected to the allowance of the claim on the ground, among others, that-, the claimant being a' married woman, and the land being in Canada, and her notes .and mortgage having been made there, the same w.ere not enforceable against her on account of her alleged disability, and that her immunity from legal liability, though of a personal nature, invalidated her claim against the estate. And it was held that the decedent and his estate were precluded from raising said objection.
      2. Crawford v. Edwards, 33 Mich. 354, where the defendant accepted a deed stating that the same was made subject to a certain mortgage, describing it, which the -grantee assumed and agreed to pay as part of the consideration expressed in the deed. And it was held:
      a — That the acceptance of such a deed binds the grantee as effectually as though it had been inter partes, and executed by both grantor and grantee; that the obligation of the grantee inures in equity to the benefit of the mortgagee, who may enforce it in a bill to foreclose his mortgage.
      b — That the grantor is not discharged except at the option of "the mortgagee, who may treat both the grantor and grantee as principal debtors to him, and have a personal decree against either -or both.
      e — TMt the grantee cannot avoid liability under his agreement ¡because, on account of a defective description, he acquired no legal title under his deed, where he obtained possession thereunder of the premises intended to be conveyed, with the right by virtue thereof to have the mistake corrected, but, instead of availing himself of such right, permitted the premises to be fraudulently conveyed to a third person in order to cut off the mortgage.
      3. Miller v. Thompson, 34 Mich. 10, where complainant filed a hill to foreclose two mortgages given to him by defendant’s grantor. Defendant’s deed was the usual warranty deed, with the following clause added at the conclusion: “Excepting, however, as against two certain mortgages held by Sidney D. Miller, of Detroit, amounting to $6,000 as of this date, which mortgages the party of the second part assumes.and agrees to pay.” The defendant denied the legal execution of the mortgages, and denied that so much was due upon the mortgages as was recited in the deed. He claimed, further, that the bill was fatally defective because the mortgagor was not made a party, and that complainant was not entitled to a personal decree against him because the facts made out no novation which would substitute him as the debtor in place of the mortgagor. And it was held:

        ■ a — That the defendant was not in position to dispute either the legal execution of the mortgages, or the amount which his grantor by his deed admitted was at that date due and payable upon them; that defendant was allowed for said amount as a part of the purchase price which was to be paid by him, and the effect of the arrangement was that his grantor ordered it to be paid to the mortgagee; that, if the grantor had legal defenses to the mortgages, he waived them in this arrangement, and, if he directed more to be paid to the mortgagee than was actually due, that fact concerned no one but the mortgagee and himself.
      b — That the mortgagor was a proper, but not a necessary, party defendant; that no relief was sought against him, nor could any •decree be rendered that would injuriously affect his interests; that, while he might have deductions or claims that he would be entitled to have allowed to him if he were proceeded against on the mortgage debt, he could not complain if the mortgagee collected of •defendant the sum that in the sale he had directed the latter to pay over to the mortgagee; that, if this overpaid the mortgage, the mortgagor might call upon the mortgagee to account, but the decree would protect the grantee, and that is all he could insist upon.
      c — That it was not essential that there should have been a novation; that it was sufficient that the defendant, as between himself and his grantor, had agreed to pay the mortgage; that this agreement brought the case within the equity of the statute (How. Stat. § 6704), which provides that, “if the mortgage debt be secured by the obligation or other evidence of debt of any other person besides the mortgagor, the complainant may make •such person a party to the bill, and the court may decree payment of the balance of such debt remaining unsatisfied, after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases.”
      4. Taylor v. Whitmore, 35 Mich. 97, where the owners of an undivided one-half of certain lands mortgaged the same for $1,350, after which they conveyed the lands by warranty deed for an expressed consideration of $2,400, and the grantee assumed and agreed to pay the mortgage as a part of said consideration. A bill was filed to foreclose the mortgage, to which the mortgagors and their grantee were made parties, and a decree was made in form against the entire premises, but no personal decree was made against the grantee. The grantee appealed, claiming that only the interest which he acquired under his first deed could be affected by the foreclosure proceedings, and that the remaining interests, which he afterwards acquired by quitclaim deeds from the owners, were exempt from the burden of the mortgage. And, in affirming the decree, it was held that, by accepting a deed from the mortgagors in which he assumed and agreed to pay the mortgage, the grantee took the land subject to the payment of said incumbrance, and also bound himself personally to pay the same; that it- appeared from the evidence that he obtained conveyances from the owners of the remaining interests in the land because of the first conveyance, and the representations made by him or his agent on the strength of that conveyance, and that he only paid $7, for said latter deeds; that in an action, therefore, for breach of the covenants of warranty in the déed from the mortgagors, the amount he would be entitled to recover would be but small; and that there was nothing in that fact which would make it inequitable to hold the entire premises subject to the payment of -the mortgage, as in form they were liable under the mortgage and in- the first deed.

        5. Higman v. Stewart, 38 Mich. 513, 522, holding that the doctrine which makes a grantee responsible to a mortgagee in consequence of a provision in the grant that the grantee assumes the payment of the mortgage debt has been maintained in two forms:
      a — Where a special agreement has been made between the seller of the equity of redemption and the purchaser that the mortgage debt shall be considered purchase money, but be left in the hands of the purchaser for the use of the mortgagee, and this, it has been said, affords a valid basis for a direct claim by the mortgagee against the purchaser thus holding the mortgage debt for his use; but this view, however, has been expressly overruled by courts of high authority, and upon the ground of want of privity on the part of the mortgagee.
      b — Where the grantee, upon consideration, agrees with the grantor to pay his debt, whereby, as between them, the grantee becomes principal debtor and the grantor his surety, and, in accordance with the principle which in equity entitles the chief creditor to receive the ' benefit of a security held by a surety, the mortgagee creditor is entitled to the benefit of the agreement made by the purchaser of the equity of redemption. In this aspect the doctrine does not contemplate an obligation from the grantee to the mortgagee, but a promise from the grantee to the mortgagor, which may be caused to inure by an equitable subrogation to the mortgagee’s benefit; and the court seem to have thought in Burr v. Beers, 24 N. Y. 178, that the mortgagor, as actual promissee, was an indispensable party for the purpose of subrogation.
      6. Winans v. Wilkie, 41 Mich. 264, holding:

        a — That where the words inserted in the deed, and which are claimed to impose a legal obligation on the grantee to pay an existing mortgage, are of doubtful meaning or ambiguous, evidence showing the value of the premises, or the agreed consideration therefor, and whether a sufficient or any part of the same was retained, by the grantee for the purpose of paying the mortgage indebtedness, is material as an aid in the construction thereof.
      b — That a person may purchase and accept a conveyance of mortgaged premises subject to the incumbrances thereon, and incur thereby no personal responsibility; but where, however, he takes a conveyance assuming therein the incumbrances, he thereby becomes personally responsible for the debt, equally as though an express promise to pay were contained in the deed which he accepts, within the principles laid down in Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Id. 10.
      c — That where mortgaged premises are sold, and the deed of conveyance contains a clause that the grantee assumes all indebtedness on the premises, and he afterwards takes an assign'ment of the mortgage to himself, the mortgage is thereby extinguished, arid he cannot thereafter assign the same to a third party, and confer upon him any right to foreclose the same.
      7. Booth v. Insurance Co., 43 Mich. 299, where the assignee of insolvent debtors, who had accepted a deed of mortgaged premises subject to the payment of the mortgage, filed a bill to determine the amount of the mortgagee’s claim against the assignors, so that the assignee might pay the mortgagee a dividend out of the funds in his hands. And, in affirming a decree dismissing the bill, it was held:

        a — That the assignors incurred a liability only as purchasers of the mortgaged lands, subject to the payment by them of the mortgage; that they never assumed any obligation to the mortgagee, and, if their implied undertaking arising from the acceptance of their deeds was to be treated as a promise on their part to pay the mortgage, it was, nevertheless, a promise on which no suit by the mortgagee could be maintained, because it was a promise not made to the mortgagee, but to third persons.
      5 — That, in a suit to foreclose the mortgage, the party who is chargeable with an implied promise of this sort may be joined as a party defendant, and a decree -obtained against him for any deficiency that may exist when the land is sold; that this is only by way of enforcing an equity by subrogation, and, if the party thus made liable is compelled to make payment, he is doubtless entitled to' be subrogated to collateral securities, if any, which the mortgagee may have held.
      e — That, in order to enable the mortgagee to enforce any such equity against the purchasers, it is necessary that the purchasers and the land mortgaged be ' within the same jurisdiction; that no personal decree can be made in one jurisdiction against parties-not personally served or not submitting voluntarily by appearance; that there was therefore in this case, where the purchasers of the land resided in Michigan and the land was in Illinois, neither a direct liability on their part to the mortgagee, nor a contingent liability, except such as depended upon the voluntary action of the purchasers themselves.
      8. Canfield v. Shear, 49 Mich. 313, where a purchaser bought mortgaged premises of the mortgagor, his deed being expressly made subject to the mortgage, but uot in terms obligating him to pay it. The grantee agreed to pay a specified sum for the land, and paid the sam'e except the amount owing on the mortgage, which the mortgagée would not receive, and for this reason its payment was postponed until the mortgage fell due. Both the mortgagor and the agent of the grantee who negotiated the sale understood that the grantee was to make such payment. And it was held that the assumption of the mortgage debt by the grantee, as between himself and the mortgagor, was fully made-out; and that to cast upon the mortgagor any deficiency that might exist after a sale would take from him a portion of the purchase price which the grantee agreed to.
      9. Gage v. Jenkinson, 58 Mich. 169, holding that one who takes a deed of mortgaged land will be personally liable on the foreclosure of the mortgage if his deed expressly binds him to pay the mortgage; but a covenant to do so cannot be implied by either deed or mortgage.
      10. Shelden v. Estate of Warner, 59 Mich. 444 449, holding that it is only where a personal decree is sought against sureties, or other persons besides the mortgagor, that such decree must be based on some written obligation.
      11. Winsor v. Ludington, 77 Mich. 215, holding that in order to authorize a decree for the payment of the deficiency on a foreclosure sale against a third party, under How. Stat. § 6704, the obligation or evidence of debt of such . party must be one upon which he can be sued at law to recover the mortgage debt.

   7 Hooker, J.

On May 8, 1886, Burton and Ellsworth •executed and delivered to Corning a promissory note for $3,200, and secured it by a mortgage upon real estate. In October, 1887, Burton deeded an undivided half of the premises to Dickerson, the deed stating that it was subject to a mortgage of $3,200 and accrued interest thereon, “one-half of which incumbrarice^Shd debt said second party [i. ■e., Dickerson] assumes and agrees to pay.” On November 10, 1887, Ellsworth deeded to Dickerson the other undivided half of the land, by a deed containing similar provisions. On July 25, 1888, said Dickerson conveyed the premises to McQueen, a similar provision in the deed requiring him to pay the mortgage mentioned. Subsequently the executors of Corning filed the bill in this cause, and obtained a decree of foreclosure and sale upon bill taken as confessed for want of appearance, under ' which the premises were sold by the commissioner, and the usual proceedings followed. Burton, Ellsworth, Dickerson, and McQueen were made defendants by the bill. Under a petition for execution against them for a deficiency, Dickerson and McQueen answered, and were heard by counsel. From a denial of the prayer of this petition, complainants appeal. ^

Three points are pressed by cotinsel, for Dickerson, who alone resists here the claim of complainants:

"1. That the record, as it stood when the application for execution was argued and decided, showed that the court never got jurisdiction to make a personal' decree against Dickerson.
“ 2. That the application for leave to file Murphy’s second affidavit, showing service of a copy of the underwriting, being substantially an application to amend a return so as to show such jurisdiction, was improperly made after the decision of the case; that, whenever made, notice thereof should have been served on Dickerson personally; and that the order granting the petition was therefore made without jurisdiction, and was nugatory.
3. That no execution for deficiency can issue against defendant Dickerson, because he was not a party to the mortgage, and had no contract relations with the mortgagee, and therefore could not be sued at law by the mortgagee to recover the deficiency.”

An examination of the files shows that the original subpoena and underwriting were regular. The return of the officer shows that he served the within subpoena * * *■ personally * * * by delivering to each of said defendants a true copy of the within subpoena, inscribed copy, * * * and * * * showed * * * the original subpoena, with the seal,” etc. It is argued that this is not a sufficient return, and that it was necessary that the return show not only that the subpoena was served, but that the underwriting was also served. The case of Turrill v. Walker, 4 Mich. 185, is cited in support of the proposition. That was an action which was attempted to be commenced by declaration and rule to plead. The return failed to show that any notice of the rule to plead was served. It was said that this was an irregularity. The case, however, did not go off on that point, and the Court intimated that the irregularity had been waived. -

The cases are not parallel, however. In the commencement of actions at law by declaration the statute (How. Stat. § 7291) requires two things, to be done, viz., file declaration and enter rule to plead. The declaration must be served, and so must a notice of the rule. But there is nowhere any implication that the rule or notice is a part of the declaration. The notice may be a different and separate paper. It is reasonable, therefore, to hold that its service be shown by the return. The form of chancery subpoenas is prescribed by this Court. By Rule 122 it provided for a change in the form of the subpoena as a means of preventing the misapprehension upon the part of defendants that a personal appearance was required upon the return-day under a pecuniary penalty. The rule provides that in lieu of the old form the new subpoena shall contain a notice of the filing of the bill, and of the time when appearance may be entered on penalty of default,” and adds that there shall be underwritten a notice designating against what defendants a personal decree is asked.” It continues, Such subpoena shall be In substantial compliance with the form hereto appended.” It requires all to be upon one page. The form appended is entitled “Form' of Subpoena.” This is followed by a form of subpoena proper and the underwriting. This may properly be treated as one instrument, as the Court evidently considered it. A return by an officer that he .served a copy of the within subpoena, which subpoena upon its face contains the underwriting, leaves no room to doubt that service was made of all that appears upon its face, and no more. In Vaughan v. Black, 63 Mich. 216, .the Court held that ■ a failure to serve the notice invalidates a decree for deficiency, but it is not intimated that the officer must return specifically that he served the underwriting. We are of the opinion that the original return was sufficient, and it therefore becomes unnecessary to discuss the question of amendment.

We consider it ^unnecessary to discuss at length the proposition that a personal decree may be rendered in a foreclosure case against a grantee of the mortgagor, who has accepted a deed stating that it is subject to the mortgage, which the grantee assumes and agrees to pay. It is settled by repeated decisions in this State and in New York, from which state we borrowed the statute (How. Stat. § 6704) which authorizes it. Such decisions will be found collected in the note to section 6704. Just such a decree was rendered in this case by a court having full jurisdiction of the subject-matter and the parties, from which decree defendants did not choose to appeal.

But, if that decree should be thought not conclusive, we have no doubt of the defendant Dickerson’s liability upon this record. It is claimed that by his deed to McQueen upon his undertaking to pay he was released from liability. But we think otherwise. When Dickerson .bought 'the premises, a part of the consideration was his promise to pay this mortgage. His grantors had, and still have, a right to require him to perform that promise, just as much, as the mortgagee has the right to say that the mortgagors are still indebted to him, notwithstanding their sale of the land upon the promise that another would' pay the debt. The sale to McQueen does not,deprive any one,not a party to it of rights then existing against Dickerson. Doubtless, equity would say that McQueen was primarily liable, Dickerson next, and the mortgagors last; but all are liable. To-hold otherwise would be to say that Dickerson could escape his personal liability, and compel the mortgagors to pay, by deeding to an impecunious person who should assume the debt.

The decree of the circuit court will be reversed, and one entered here in accordance with the prayer of the petition, with costs of both courts.

The other Justices concurred,


author: Hooker, J.

text:
    Edward Corning and Anna Corning, Executors, etc., v. Frank S. Burton et al.
    [See ante, 86.]

      Mortgage foreclosure — Execution for deficiency — Jurisdiction.
    1. A petition for an execution for deficiency cannot be resisted on grounds inconsistent with the decree.
    2. A subsequent purchaser of mortgaged premises, who in his deed had assumed and agreed to pay the mortgage, claimed the right on the hearing of a petition for an execution for deficiency to question the return of service of the original subpoena, he having denied in his answer to the petition that the subpoena was served upon him. And it is held that said defendant might have had the question of the validity of the decree determined by a proper motion before enrollment, or upon bill of review after enrollment, in wbicb case all persons interested should be made parties; but that such question was not open for hearing in said ancillary proceeding.
    Rehearing, upon application of defendant Dickerson, of case reported in 102 Mich. 86.
    Submitted on briefs January 8, 1895.
    Former decision affirmed April 16, 1895.
    The facts are stated in the main opinion.

      H. P. Smith (Gamp & Brooks and W. G. Gage, of counsel), for complainants.

      Brooke & Spalding, for defendant Dickerson.
   Hooker, J.

Hpon a rehearing of the above cause the defendant Dickerson claims the right to question the return of service of the original subpoena in the foreclosure case, having denied, by his answer, that any service was made upon him.

It has been indicated in several cases that the validity of the decree cannot be questioned in this proceeding. Ransom v. Sutherland, 46 Mich. 489; Wallace v. Field, 56 Id. 3; Haldane v. Sweet, 58 Id. 429. The defendant might have the question of the validity of the decree determined by a proper motion before enrollment, or upon bill of review after enrollment. In such case all interested should be made parties, and complete. relief to all could be given. We think either would be a better practice than to open the question to an informal hearing in an ancillary proceeding, and therefore adhere to the doctrine stated in the cases cited, viz., that petition for execution for deficiency cannot be resisted on grounds inconsistent 'with the decree.

The other Justices concurred.


author: Grant, J.

text:
    Alvah C. Filer v. William H. Smith.
    [See 96 Mich. 347. J

      False imprisonment — Arrest without warrant — Probable cause.

    It was settled by the former decision:
    a — That this case forms an exception to the general rule that what constitutes probable cause to justify an arrest without a warrant is a question of law to be determined by the court.
    b — That when an officer, in making such- an arrest, acts in good faith, and after such reasonable investigation- as circumstances permit, he is not liable in damages, either actual or otherwise.
    Error to Muskegon. (Dickerman, J.)
    Argued June 27, 1894.
    Decided September 25, 1894.
    Case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion, and in 96 Mich. 347.

      L. King Soper (Nelson DeLong, of counsel), for appellant.

      Chamberlain & Cross, for defendant.
   Grant, J.

The facts in this record do not differ materially from those in the former record -in 96 Mich. 347. The warrant for the arrest of Reynolds, for whom plaintiff was mistaken by defendant, was produced upon this trial; otherwise the record is substantially the same, and we refer to that case for a statement of the facts.

1. It was settled by the former decision that this case, forms an exception to the general rule that what constitutes probable cause to justify an arrest without'a warrant is á question of law to be determined by the court. It was also settled that when an officer, in making such arrest, acts in good faith, and after such reasonable investigation as circumstances permit, he is not liable in damages, either actual or otherwise. This rule was recognized by both opinions. These questions have therefore become stare decisis, and are no longer Open to discussion. The question was left to the jury by the court under proper and careful instructions as to the diligence and precaution to be exercised by the officer, and they have, by their verdict, established his justification.

2. Complaint is made of the admission of testimony from the reporter of the newspaper who gathered the facts and wrote the two articles for publication which were introduced in evidence. This testimony related to the sources of hjs information, part of which he obtained from the defendant and some from other parties, including the •sheriff who had the warrant for the arrest of Eeynolds. It was competent. These published articles are not given in full, but from the extracts which do appear it is evident that the information' upon which they were based was obtained from the defendant, the. plaintiff, and the sheriff of Isabella county, Mr. Kane, who had the-warrant, and who went to the jail to see the man who had been arrested as Eeynolds. The character of this testimony is illustrated by the following portion of one of the articles:

“The sheriff, as he looked at the prisoner through the bars, was positive that the Muskegon officer had the man wanted.”

These articles, which were excluded on the first trial, were introduced by the plaintiff. Now, it is too clear to require argument that the defendant might show that this statement was based entirely upon information obtained from Sheriff Kane, and not from defendant.

¥e find no error, and the judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    George Kruse v. George M. Kingsbury et al.

      Bond to the jail limits — Inability of sureties.

    1. A jail-limits bond executed pursuant to the provisions of How. Stat. chap. 310, is given to the sheriff of the county in his official capacity, and stands as indemnity to his successor in office without any written assignment, and during its lifetime may be assigned by the sheriff in office to the party for whose benefit it was given, whenever a breach occurs.
    2. A jail-limits bond is in effect a substitute for the custody of the sheriff; and, after admitting the prisoner to the liberty of the jail limits, the sheriff has no longer any power over him, either to restrain or discharge him. -
    8. Section 5 of chapter 810, How. Stat., authorizes a sheriff who-shall have taken a jail-limits bond, upon discovering that any surety to such bond is insufficient, to commit the prisoner who executed the bond to close confinement in jail, until other good and sufficient sureties shall be offered. And it is held that whether the prisoner .is or is not in actual confinement when the other sureties are obtained cannot affect the validity of the bond.
    4. A judgment debtor, on being arrested on a body execution, gave a jail-limits bond. He was afterwards notified by the successor in office of the sheriff to whom the bond had been given that one of the sureties was insufficient, and that it would be necessary for him to procure a new bondsman. He thereupon took the bond, and secured the signature thereto-of an additional surety, and returned the bond to the sheriff. And it is held that the contention that the additional surety did not sign the bond under such circumstances as to bind him is without force.
    Error to Cass. (O’Hara, J.)
    Argued June 6, 1894.
    Decided September 25, 1894.

      Assumpsit. Defendants bring error.
    Affirmed.
    Th& facts are stated in the opinion.

      Howell & Carr, for appellants.

      Harsen D. Smith, for plaintiff.
   Long, J.

This is an action on a bond to the jail limits.

In 1881 the plaintiff obtained a judgment of $1,000 against the defendant Edward E. Graham for assault and battery. Graham,was arrested upon an execution against Lis body by Frank M. Sanders, then sheriff of Cass county, and, upon being taken into custody, obtained the liberty •of the Cass county jail limits by giving the bond in question. The bond is given to Sanders, as “sheriff of the ■county of Cass,” and provides that the penalty shall “be paid to the said sheriff, or his certain attorneys, administrators, executors, or assigns,” and is upon the condition that said Graham “shall not at any time or in any manner escape or go without the jail limits of said county until legally discharged.” Sanders’ term as sheriff expired .January 1, 1887, when, he was succeeded by Jacob McIntosh, who took possession of' the'jail January 3, 1887. Sanders at that time turned over to him everything connected with the' office except the jail records and the bond in question. A few days afterwards, McIntosh learned from the plaintiff that Sanders had the bond, and at the same time was informed as t'o its character. He at once •saw Sanders, and requested the bond of him. Sanders promised to bring it on that same day, but neglected to do •so. McIntosh finally, after waiting about three months, went to Sanders’ house and procured the bond from his ■daughter, Sanders not being present.- McIntosh put the bond in the safe at the jail office, and held it from that time as sheriff, and delivered it". over to his successor at the close of his term of office. Some time after receiving the bond, McIntosh, upon inquiry, became satisfied that one surety on the bond was insufficient. He thereupon .saw defendant Edward E. Graham, and notified him that it would be necessary for .him to get a new .bondsman, telling him that, unless he did so, he would have to lock Mm up. Graham took the bond, and procured defendant Kingsbury’s signature to it, and returned it to McIntosh the same day. At the close of his term of office, McIntosh delivered the bond to his successor, Mr. Reagan, who-accepted it, and kept it in the safe at the jail until it was assigned to the plaintiff after breach by Graham’s going out of Cass county, September 21, 1892. The bond was never transferred from one' sheriff to another by any formal written assignment, nor was there any schedule or list of property or prisoners .made out when the sheriff’s office was turned over to successors in office.

Jt is claimed by the defendants that Sanders, the' sheriff, who took the bond, had informed the principal in the bond (Edward R. Graham) that, upon the expiration of his term of office, he could go where he pleased, and that this permission had never been rescinded, and no notice had been given to any of the makers of the bond that either McIntosh or Reagan held the obligation, or claimed to have the prisoner in custody; that the prisoner had never been transferred to either McIntosh or Reagan in conformity with the provisions of the statute; and that neither of those sheriffs ever claimed to have the prisoner in custody, or in any manner concerned himself about his whereabouts, or considered himself in any way responsible for his keeping.

On the trial the court below directed a verdict' in favor of the plaintiff.

The defendants claim:

1. That the title to the bond was never transferred, but still remains in Sanders.
2. That the prisoner was never in custody of either McIntosh or- Reagan, and hence did not escape, as alleged.
3. That Sanders released him. ■
4. That the sureties were released by the neglect of the sheriffs.
5. That Kingsbury’s signature was not made under such circumstances as to bind him.

Chapter 310, § 1, How. Stat., provides that persons in custody of the sheriff under certain process “shall be entitled to the liberty of the jail limits, which limits shall be co-extensive with the limits of such county, upon executing a bond to such sheriff and his assigns,” etc. It is provided further, by sections 3 and 4 of that chapter, that “such bond shall be conditioned that the person so in custody of such sheriff shall not at 'any time, or in any manner, escape or go without .the jail limits of the county until legally discharged;” and that “every such bond taken for the liberties of any jail shall be valid, and shall be held for the indemnity of the sheriff taking the same, and of the party at whose suit the prisoner executing such bond shall be confined.” Sections 6 and 7 of the chapter provide for the surrender of the principal by the sureties in the bond to the keeper of the jail at any time before judgment rendered against them on such bond, and they are thereby exonerated from all subsequent liability on the bond. By section 16 it is provided that the bond, after breach, may be assigned by the sheriff taking the same, or his successor in office, or, in case of a vacancy in his office, by his under-sheriff, to the party at whose suit the prisoner is confined; and by section 18 it is provided that the acceptance of such assignment shall be a bar to any action by or on behalf of any party receiving such assignment, against the sheriff or other officer making the same, for any escape, etc.

It is claimed that the bond in question was intended solely for the protection of Mr. Sanders, and not for the protection of the sheriff of Cass county as an officer; that it belonged to Sanders personally, and not to the office, and-was incapable of passing to his successor or protecting him. We are satisfied that the statute contemplates that such bond is given to the sheriff in his official capacity, and that it stands as indemnity tcuhis successor in office without any written assignment, and that during the lifetime of the bond it may be assigned by the sheriff in office 'to the party for whose benefit it is given, whenever a breach occurs. The phrase “ the sheriff taking the same ” means the sheriff of the county in which the bond is given, and necessarily includes the succeeding sheriffs of the county. The bond in question was correct in form, running to “F. M. Sanders, sheriff of the county of Cass;” was properly assigned; and the plaintiff, by such assignment, acquired the right to bring suit upon it. How. Stat. § 599, provides for the delivery over of such bond by the outgoing sheriff to his successor in office, and this bond was so delivered.

In Wilcox v. Ismon, 34 Mich. 268, the bond was given to the under-sheriff, and the claim was made that the bond was void for informality, and it was said:

“The bond to the sheriff’s officer may well be treated •as a bond to the sheriff himself. It is to the officer rather than to the individual.”

In Meredith v. Duval, 1 Munf. 83, a bond'was given to ‘the jail limits under a statute which provided that persons in custody might give a bond to the sheriff, which might be assigned by him to the creditor. Action was brought by the assignee. The court said:

“ The bond taken by the sheriff for keeping the rules is as much a muniment of safety in behalf of the creditor as the keys of the jail are in relation to a prisoner in close •custody, and when legally taken, according to the provisions of the act, would seem to me as much to devolve on .a succeeding sheriff at the expiration of the preceding sheriff’s term of office as the keys themselves; and this, .although the act of 1764, chap. 6, •§ 1, makes it the ■duty of the sheriff to assign over the bond ‘ly him’ taken. This word ‘him’ (which in this place is used in the general), is inadequate to exclude the succeeding sheriff from the power to assign the bond under the force of the foregoing principles.”

The bond having been properly delivered over to Sheriff Beagan, the prisoner, in contemplation of law, was in his possession, and the going out of the jail limits was an ■escape from his custody which wrought a forfeiture of the bond. The jail-limits bond is in effect a substitute for the custody of the sheriff; and, after admitting the prisoner to the liberty of the jail limits, the sheriff has no longer any power over him, either to restrain or discharge him.

In Cargill v. Taylor, 10 Mass. 208, -it was said:

“Bonds given to entitle a prisoner to the liberties of the prison-yard are, in effect, a substitute for the custody •of the sheriff. After the enlargement of the prisoner, upon the acceptance or allowance of the bond, his restraint, the custody in which he remains, is altogether of a moral nature, — a sense of his liability and of the responsibility of his sureties in the penalty of the bond. The consent of the creditor is not implied in the transaction. * * * * * a bond regularly taken and allowed dis•charges the sheriff from any further responsibility for the prisoner’s remaining within his custody. The restraint to which he is subject is indeed called the custody of the jailer; not, however, as expressing his power of control or .a confinement within the walls of the prison, but the bounds and limits prescribed by law, in which he is kept by the penalty of the bond. The prisoner is to continue a true prisoner in the custody of the jailer, and within the limits of the said prison, until he shall be lawfully discharged, without committing any manner of escape.”

In Call v. Hagger, 8 Mass. 429, the plaintiff brought suit upon a bond given for the jail limits. Hagger admitted that he had gone outside of the limits, but claimed in defense that he was instructed by the sheriff that he had a right to go. The court, in disposing of the point, say:

“It is agreed in this case that the debtor was out of his proper limits as a prisoner. The defense is that the sheriff deceived him by giving him improper instructions. This cannot avoid.the effect of the bond, given voluntarily by the obligors, and placing the debtor'll conformity to its condition at his own peril.”

See, also, Burroughs v. Lowder, 8 Mass. 373.

In Lansing v. Fleet, 2 Johns. Cas. 3, in referring to-the plaintiff in execution cases where the sheriff has consented to an escape, Kent, J., says:

“ The plaintiff shall never suffer for the sheriff's default. The law is active to help him, and accordingly gives him his election to charge the sheriff or to pursue the defendant,” etc.

Benson, J., in the same case, says:

“The law, as collected from the authorities, appears to-be that, as it relates to the plaintiff, there is no difference whether the escape is voluntary or tortious, and that he has the same remedies in the former as in the latter caseN

In the case of Meredith v. Duval, supra, the court say:

“A prisoner who gives security for the prison bounds is from thenceforward no otherwise in the custody of the sheriff than as may be sufficient to protect the sheriff' against any suit which the creditor may bring against him for not confining the debtor within the walls of the prison. * * * * * He is in the custody of the law, but the-sheriff has no longer any power over him, either to restrain him or to discharge him.”

In Lyle v. Stephenson, 6 Call, 54, the court say:

“After the sheriff has taken a prison-bounds bond from the debtor, * * * * the debtor is then in the .custody of the law, and' the sheriff has no power to authorize or prevent his escape.”

The same rule is also held in Codman v. Lowell, 3 Me. 52, and Palmer v. Sawtell, 3 Id. 447.

The point sought to be made, that Kingsbury did not sign the bond under such circumstances as to bind him, has no-force. Section 5 of the chapter authorizes the taking of additional security, and whether .the prisoner was in actual confinement or not at the time the new surety was secured'cannot affect the validity of the bond.

The judgment must be affirmed.

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


text:
    Terrence McGee v. The Consolidated Street Railway Company.

      Electric street railways — Negligence—Failure to have headlight— Injury to pedestrian — Contributory negligence.

    1. Where the ordinance under which an electric street railway is operated only requires that the cars “after sunset shall be provided with colored signal lights in front and rear,” the failure to have also a headlight or light attached to the dashboard of the car is not negligence per se.

    2. The rule that one must look and listen before crossing the tracks of a steam railway is equally applicable to an electric street railway.
    3. Defendant operates an electric street railway in the city of Grand Rapids, and by ordinance is permitted to run its cars at a rate of speed not exceeding 15- miles per hour. Plaintiff, while attempting to cross defendant’s double tracks on South Division street, in the dusk of a dark and wet November evening, was struck by a south-bound car which was running from 7 to 15 miles per hour, and injured. The car carried five electric lights inside, and the colored signal lights in front and rear required by the city ordinance. Plaintiff, after leaving the street curb, walked a distance of about 14 feet before reaching the track, and he testified that during this time he had his eyes upon a car coming from the south, and did not expect a car from the north, which he could have seen had he looked in that direction. Plaintiff had lived in the vicinity of the accident for many years, and knew of the constant passage in both directions of defendant’s cars. And it is held that plaintiff was bound to know that the crossing was a place of danger; that he was bound to look both ways before getting upon the track; that it will not do to say that he acted prudently and carefully in looking before getting off the curb, and was therefore not bound to look again because he saw no car coming from the north at that time; and that a verdict should have been directed for the- defendant.
    Error to superior court of Grand Rapids. (Burlingame, J.)
    Argued June 20, 1894.
    Decided September 25, 1894.
    Negligence case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Kingsley v. Kleinlians, for appellant.

      Me Garry, McKnigM é Judkins, for plaintiff.

       With this case as reported in 26 U. R. A. 300, there is a note on “Necessity of Headlights on Street Cars.”

   Long, J.

Plaintiff brought suit-to recover damages for the loss of a foot, claiming it was occasioned by the negligent act of the defendant street-railway company in running one of its electric cars over him. The accident occurred at the intersection of South Division street and Fifth avenue, in the city of Grand Rapids, while plaintiff was attempting to cross the company's tracks, in the dusk of a dark and wet evening, on November 26, 1892. The defendant has parallel double tracks on South Division street, which is fiat and level where it crosses Fifth avenue at right angles. The company runs its southbound trains over South Division street on the west track, while its north-bound trains use the east track. Plaintiff claims that about half past 5 o'clock on that evening, while he was crossing South Division street from the west along the, north crosswalk on Fifth avenue, and at the west rail of the west track, he was run against by a motor car without a headlight, then going south at a high rate of speed, without sounding a gong or giving any note of ■warning, and that the wheel of the car passed over his right ankle, necessitating amputation. The company claims that at the time of the accident it was only early twilight; that it was then operating its motor car with care; that the time for putting on a headlight, according to the custom of the company, had not yet arrived, but that the car was brilliantly illuminated on the inside by many electric lights, and that the gong was sounded at the. crossing as usual. The defendant also claims that the plaintiff was wholly at fault in heedlessly walking in front of the visible and illuminated car; and that the motorman, although he saw the plaintiff, had no notice of his intention to pass within the lines of danger until he was so near the tracks that it was too late to stop the car before the accident occurred; that the car, however, was stopped in the shortest time and space possible after the first appearance of danger, and, although the rails were wet and slippery, still it came to a halt before the second wheel could pass over the plaintiff’s leg.

The city ordinance requires- that—

The cars of said railway, after sunset, shall be provided with colored signal lights in front and in the rear.”

It cannot be said that it was negligence per se not to have a headlight or light attached to the dashboard of the car, as the ordinance itself provides what kind of lights shall be carried, — that is, colored signal lights in front and in the rear,” — and the testimony is uncontradicted that such lights were carried.

Plaintiff cites Rascher v. Railway Co., 90 Mich. 413, on the proposition that it was negligence not to have a headlight. That case does not support that proposition. There the plaintiff was driving along a street-car track, after dark, towards a coming car, which was running at the rate of from 15 to 20 miles an hour, and which came suddenly upon her. The ear was not lighted inside or out. It was said by this Court that—

“It ought to be lighted in the night-time, so that its approach can be seen by other travelers; and between twilight and dark, if not lighted, it ought to be run so slowly as to avoid collision, or else give by some signal warning of its approach.”

The car in the present case was running from 7 to 15 miles per hour, and under the ordinance it was permitted to run 15 miles per hour. The testimony is quite contradictory on the question whether the gong was sounded. The defendant contends that all the requirements of the city ordinance were complied with, not only in regard to lights, but also in the sounding of the warning signals, and the testimony tends strongly to show that these warnings were given.

The most important question in the case, however, relates to the care which the plaintiff exercised in attempting to make the crossing in front of the car. The plaintiff testified that when he neared the curb, and before stepping down into the street, he looked north and south along Division street; that he saw a car coming from the south, and it had a headlight; that it was then a- block or a half a block away. He then testified as follows:

Q. Now, what was the fact as to whether you looked north or not to see if there was any car in that direction ?
“A. I did. I thought I was safe enough to cross. I didn't expect a car coming from the north.
Q. Did you look to see whether there was any, or not ?
“A. Yes, sir.
Q. Did you see any ?
“A. No, sir; I didn't observe any.”

On cross-examination, he testified as follows:

Q. Which way did you look first, to the north or south?
“A. Well, I was making my way. home, of course, and I saw this car coming from the south'with a headlight on.
“ Q. Did'you look at that first? Did you look at the car coming from the south, first?
“A. Yes, sir; because I saw that car visibly, you know.
“ Qx Did you notice it the other way?
“A. I -did look the other way, and, of course, I didn’t notice anything, because, if I hád, I would not be caught.
“ Q. Where were you when you looked to the north?
“A. When I looked to the north?
“ Q. Yes, sir.
“A. It was just when I was starting across.
“ Q. Before you left Division street?
“A. Yes, sir; when I looked up.
“ Q. Just as you were going to leave Division street, you .looked to the north, and didn’t see anything?
“A. Yes, sir. ' «
“ Q. Before that you had looked to the south?
“A. Yes, sir.
“ Q. Did you continue straight across up to the time of ■the accident?
“A. Yes, sir.
“ Q. Without looking either way?
“A. I know I thought there was no danger of this car coming from the south. It was far enough off so that I .had time enough to cross.
“ Q. Were the electric lights lighted at this time?
“A. Not that I know of.
“ Q. You think not?
“A. I don’t think they were.
“ Q. When you left Division street, did you have to step •down?
“A. After I left Division street?
“ Q. When you stepped off of Division street, did you step down into the roadway?
“A. Yes, sir. I stepped off of the sidewalk, you know.
« Q. Was it before you took this step that you looked .north and south?
“A. Yes, sir.
“ Q. After you took that step, just describe what you did.
“A. Well, I had my eye upon the car coming from the south, and I was not paying much attention to the north, because I didn’t expect any car coming from the north, .really.
“ Q. You walked straight that way, and kept your eye on the car from the south?
“A. Yes, sir. It was far enough so that I had plenty of time to cross.
“ Q. Up to the time you were hit?
“A. Yes, sir.”

Redirect examination:

Q. About how far is this west track of the railroad company from the sidewalk?
“A. The west track?
“ Q. The west track of the railroad company. You say you looked to the south and north as you started to go across. How far were you from that track? How many steps would you have to take to strike the track?
“A. Oh, it must probably be 13 or 15 feet.
“ Q. As-you started to go across, as you were walking, did you look both ways?
“A. Yes, sir; I did, sir.”

It is therefore made certain by the plaintiff’s own testimony that after he left the curb, some 15 feet away (by actual measurement 13 feet 10 inches), he did not look to the north. During that time he had his eyes upon the car coming from the south, and he says he did not expect a car from the north. This seems to account for his not having seen the car by which he was struck. Others saw it, and testified that it was lighted inside, and carried the-lights required by the ordinance. If he had looked to the north before stepping upon the first rail, he conld have seen this car. It was then almost upon him. The-motorman saw him when some distance away, but supposed that he would stop.

While pedestrians have the right to be upon and travel along the public highway, yet they are bound to take notice of the dangers incident to the public travel thereon, and especially is this so Where street cars are constantly passing and repassing, driven with electricity. The city authorities recognized the necessity of rapid transit, and limited the cars upon that street to 15 miles per hour. These cars are heavy, laden with motors, and they cannot at once be stopped. They have no right to run down pedestrians, but those in charge have a right to suppose that pedestrians will not walk onto the track without looking to see if a car is coming. It is well known that these crossings are places of danger, and that cars do not. stop at every crossing. Here the custom was to stop on the opposite crossing from where the plaintiff was. Plaintiff had lived in that vicinity for many’years, and knew of the constant going and coming of these cars, and he was bound to know that the crossing was a place of danger. He was bound to look both ways before getting on the track. It will not do to say that he acted prudently and carefully in looking before getting off the curb, and was therefore not bound to look again because he saw no car coming from the north at that time. A car running 15 miles an hour would pass a great distance while a pedestrian was going 13 feet 10 inches. The plaintiff was bound to look before stepping upon the place of danger.

In Gardner v. Railroad Co., 97 Mich. 240, it was held that a traveler was guilty of negligence in not looking in the proper direction for an approaching train, by which he was injured. It appeared in that case that when within 5 feet of the track, if he had looked, his view would have been unobstructed for 250 feet in the direction from which the train approached.

In Haight v. Railroad Co., 7 Lans. 11, a woman on foot approached the defendant’s tracks on Bridge street, in the village of Amsterdam. This street crossed three tracks at right angles. Her attention was fixed upon a train passing over the third track. She passed over the first track in the rear of some freight cars. Here she looked up the second track, but, on account of the freight cars, could not see very far. Then, in passing over the seven feet between the first and sécond tracks she looked at the rear end of the train which had just passed over the third track, but did not look along the second track after she left the rails of the first, and, reaching the second, she was struck by a train on that track. It appeared that in the seven feet between the first and second tracks she could have seen the approaching train for several hundred feet. She did not once look down that track, but kept her eyes upon the train upon the third track. This was held to be contributory negligence as matter of law. The supreme court said:

Pit is therefore quite plain that, if the plaintiff had looked in the right direction as she was about leaving the first track, she must have seen the approaching train. There was no obstruction in the way, and that she did not see or hear the train which was coming when she stepped -on the track was owing to the fact that she did not look for it in the direction from whence it came. * * * She neglected to look in the right direction.”

This case was cited with approval by the court of appeals in Salter v. Railroad Co., 75 N. Y. 279.

It is said by counsel for plaintiff that, while this may be the rule in regard to steam railways, it cannot be applied to street railways. In Carson v. Railway Co., 147 Penn. St. 219, it was held that failure to look for approaching cars on the part of one about to drive across the tracks of an electric street-railway company is such contributory negligence as will prevent his recovery for injuries received by colliding with a car. The court said:

“If, by looking, the plaintiff could have seen, and so avoided, an approaching train, and this appears from his own evidence, he may properly be nonsuited.”

In Ward v. Railway Co., 17 N. Y. Supp. 427, it appeared that plaintiff’s intestate was fatally injured while attempting to drive across a street-railway track. There was evidence that, at any time before reaching the track, deceased, by a glance, could have informed himself of the approach of the car, but that he drove onto the track without looking in either direction. It was held that he was guilty of contributory negligence.

In Creamer v. Railway Co., 156 Mass. 320, the supreme court of that state held that where a person stepped from a horse car at the junction of two streets, and immediately started .to cross the track of an electric road, without looking or listening, and was run over by an electric car running at the rate of 15 miles an hour, there could be no recovery, because the deceased was not exercising due care.

We see no more reason for applying the rule that one must look and listen before crossing the tracks of a steam railway than that one must look and listen before crossing a street-car track upon which the motive power is electricity or the cable. In this State it is well settled that persons passing over railroad crossings must exercise care. They-must look and listen, and,- under certain circumstances, must Stop, before attempting the crossing. Electric street-car crossings are also places of danger. The cars are run at a great speed on this street in question. The city ordinance permits it, and the rule must be that, before going upon such tracks, every person is bound to look and listen. If the view is unobstructed, and the pedestrian takes this precaution, there is not much opportunity for him to be injured. It will not do to say that he has discharged his responsibility in case of an accident by looking when some feet away, for he may miscalculate the distance and the speed of the car. To avoid danger, he must look just before he enters upon the track. This was the rule laid down by this Court in Houghton v. Railway Co., 99 Mich. 308. The uncontradicted evidence shows that the car was lighted with five electric lights inside, and carried the signal lights required by the ordinance. Others saw these lights, and it does not seem to-be disputed that, had the plaintiff looked just before going upon the track, he would have seen the car.

Defendant requested the court to charge the jury that under the evidence the plaintiff could not recover. This request should have been given upon the facts shown by this record.

The other questions do not become important.

Judgment is reversed, and a new trial ordered.

Grant and Hooker, JJ., concurred with Long, J. McGrath, 0. J., concurred in the result. Montgomery, J., did not sit.


author: Montgomery, J.

text:
    Jacob Maatta v. August Kippola.

      Homestead — Leased premises — Husband and wife.

    1. A lessee of lands who erects a dwelling-house thereon, and actually occupies the lands, is entitled to a homestead exemption.
    2. Where a tenant at will erects a house on the leased land, and with his wife occupies the same as a home, an assignment of his leasehold interest, made with the assent of the lessor, is-ineffectual to convey the homestead rights thus acquired, if not signed by the wife.
    Error to Houghton. (Hubbell, J.)
    Submitted on briefs June 26, 1894.
    Decided September 25, 1894.
    Summary proceedings to recover the possession of land. Complainant brings error.
    Affirmed.
    The facts are stated in the opinion.

      W. F. Riggs, for appellant.

      A. T. Streeter, for defendant.
   Montgomery, J.

This is a summary proceeding to recover possession of real estate. The facts were agreed to on the trial before a jury in the court below as follows:

For two years and upwards prior to December 21, 1891, the defendant was a tenant at will of the Hungarian Copper Company, and occupied the lands in question as such tenant at will, and at an annual rent of $100. During the time defendant so occupied said lands as tenant at will under the said Hungarian Copper Company, he, the defendant, built the house mentioned and described in the complaint, and from the time he so built said house he and his family have occupied said house as a home continuously until the present time, and he has had and has no other home or homestead. On the 21st day of December, 1891, defendant assigned his interest in said lands by an instrument in writing, which, after reciting a consideration of one dollar and other valuable consideration, proceeded:

“I hereby transfer, set over, and assign to Henry Keronen all my farming rights in and to the following described lands, including all dwellings, barns, and other buildings thereon, with the right to enter and occupy the ■same, including all agricultural improvements, leases, and agreements of what kind so ever” (describing the lands).

This was signed by the defendant, but not by his wife. The assignment was assented to by the landlord, and Henry Keronen paid to the landlord $220 of back rent, and thereupon Keronen rnoved^ upon the premises, and •occupied said premises and a part of the dwelling mentioned -in the complaint from December 21, 1891, until December 19, 1892, when he sold to complainant. This •assignment was also in writing, approved by the agent of the lessor, and since its date complainant has paid the ground rent.

The contention of the defendant is stated in the bill of exceptions to have been that— .

“ The sale and assignment from the said defendant to-said Henry Keronen was made without the consent and signature of the wife of said defendant, and that the said defendant and his wife had, at the time of said assignment to said Henry Keronen, homestead interests and rights in said house,” “ which,” as is stated in the bill of exceptions, “is the only question of law involved in this-suit.”

The circuit judge held in accordance with the contention of defendant, and we think correctly. A lessee of lands-who erects a dwelling-house thereon, and actually occupies the lands, is entitled to a homestead exemption. Pelan v. De Bevard, 13 Iowa, 53; Conklin v. Foster, 57 Ill. 104; Johnson v. Richardson, 33 Miss. 462; Thomp. Homest. § 176; Smyth, Homest. § 117. It is said in appellant’s brief that—

“If the wife acquired homestead rights and interests in the premises by reason of her husband’s occupancy as-tenant at will, then these rights would be good against everybody, the Hungarian Copper Company not excepted. This would lead to a new and original way in acquiring; real estate, hitherto unknown.”

But the fact that- the wife acquired homestead rights as-against a creditor of or a purchaser from the husband does not impair the right of the landlord, under whom the husband held. The law only exempts the homestead from sale under execution, or from private ■ sale without-the concurrence of the wife, and does n'ot divest the right of the owner of the land, nor impair any remedy which the law gives him, Buckingham v. Buckingham, 81 Mich. 89.

Judgment is affirmed, with costs.

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

       The defendant, after assigning to Keronen, continued to reside in one portion of the house, and when Keronen, who is the father-in-law of defendant, removed from the premises, defendant took possession of the entire house, and refused to vacate, and this proceeding was instituted.


text:
    Frank Vereycken v. Antoinette VandenBrooks.

      Contract — Reduction of interest — Consideration—Involuntary payment — Duress.
    1. A writing signed by the payee in a note then past due, and bearing interest at 10 per cent., by which the payee agrees to let the maker “have all the money at 8 per cent.,” may be well construed to be an open proposition to the maker to retain the money, at least until further demand, at the reduced rate of interest, and, when acted upon by the maker, the payee cannot be permitted to exact a greater rate.
    2. Where, upon being served with a subpoena in a chancery foreclosure suit, the defendant mortgagor pays the amount demanded, under protest, there is not such duress of property as will make such payment involuntary, and enable him to recover an excess over the amount legally demandable, included in such payment.
    Error to Bay. (Cobb, J.)
    Submitted on briefs June 27, 1894.
    Decided September 25, 1894.

      Assumpsit. Defendant brings error.
    Beversed.
    'The facts are stated in tbe opinion.

      D. B. Richardson, for appellant.

      Lee B. Joslyn, for plaintiff, contended:
    1. If a mortgagee of land require that the mortgagor pay more than is legally due for the purpose of preventing a foreclosure, it is such a compulsory payment as entitles the party who so .pays to recover it back; citing 6 Amer. & Eng. Enc. Law, 84, 85; McMurtrie v. Keenan, 109 Mass. 185; Bennett v. Healey, 6 Minn. 240; Freeman v. Etter, 21 Id. 3; and an attorney fee paid under protest on redeeming from a statutory foreclosure, if illegally included in the amount for which the land was sold, may be recovered back; citing Vosburgh v. Lay, 45 Mich. 455; and a payment of" money under legal process is not a voluntary payment; citing McKee v. Campbell, 27 Mich. 497; Congdon v. Preston, 49 Id. 204; McCabe v. Shaver, 69 Id. 25.
    2. The agreement to reduce the rate of interest from 10 to 8 per cent, was founded upon a sufficient consideration, and was valid. If plaintiff was to get the money of some one else at • 7 per cent., and defendant wanted her money to remain where it was, it was a sufficient consideration passing to defendant that her money should continue to draw interest, and the loan remain, and the money not to be idle, as it might be for some time if paid. This Court has held that a written 'agreement to pay a higher rate of interest than that expressed in the obligation, in consideration of forbearance, is valid between the parties to the original agreement and their representatives. On the same grounds an agreement in writing to reduce the rate of interest is binding; citing Burchard v. Frazer, 23 Mich. 240; Smith v. Graham, 34 Id. 302; Tousey v. Moore, 79 Id. 564.
   Montgomery, J.

This is an action brought to recover an alleged overpayment of interest upon a real-estate mortgage and note.

April 14, 1879, plaintiff gave his promissory note to Antoinette VandenBrooks for $460, with interest at 10 per cent, per annum, due in three years from its date. The note remained unpaid. On the 2d of August, 1885, VandenBrooks gave the plaintiff a written agreement as follows:

I, A. VandenBrooks, agree to let Frank Vereycken have all the money at 8 per cent.
“A. VandenBrooks.”

The note remained unpaid until September 18, 1891, when proceedings were instituted in the circuit court, in chancery, for the county of Bay, to foreclose the mortgage, and a subpoena was served on plaintiff. On the same day, the plaintiff paid the amount demanded, under protest, and brought this suit to recover the excess, which, if the agreement to reduce interest be valid, amounted to the sum recovered in the court below.-

Two questions are presented by the record: First, whether the agreement to reduce the interest was based upon a sufficient' consideration; and, second, whether the payment of the excess was, within the legal definition of the term, involuntary.

We think the written memorandum may be well construed to be an open proposition to plaintiff to retain the money, at least until further demand, at the rate bf 8 per cent., and that, when acted upon, the mortgagee cannot be permitted to exact a greater rate of interest.

A question of more difficulty is whether the payment was an involuntary payment. The general rule is that, to constitute a payment involuntary, it must be made under such circumstances as precludes the exercise of the free will of the payor. There must be either duress of the person or the property. Some courts- have held that there can be no duress of real property which remains in the possession of the payor, but most courts hold the contrary. State v. Nelson, 41 Minn. 25; Pemberton v. Williams, 87 Ill. 15; White v. Heylman, 34 Penn. St. 142; Joannin v. Ogilvie, 49 Minn. 564. So it has been held that if the mortgagee of land require that the mortgagor pay more than is legally due, for the purpose of preventing a foreclosure by advertisement,- this is such a compulsory payment as entitles the party to sue and recover back the excess. But it is to be noted that in such a case-the mortgagee, by his own act, unaided by any process of court, has it within his power to deprive the mortgagor of his title. Such was not 'the case here. All that the defendant had done was to file a bill to obtain a decree of the court fixing the amount due. Before any decree could pass against the present plaintiff, he was. entitled to his day in court. Under these circumstances, we think that there was no duress of property such as the law recognizes. See Forbes v. Appleton, 5 Cush. 115; Benson v. Monroe, 7 Id. 125; Taylor v. Board of Health, 31 Penn. St. 73; Navigation Co. v. Tappan, 16 Blatchf. 296; Mariposa Co. v. Bowman, Deady, 228.

It follows from these views that the judgment should be reversed, with costs.

The other Justices concurred.