text:
    WESTERN NATIONAL BANK OF NEW YORK v. LAWRENCE.
    Foreign Corporations — Individual Liability oe Stockholders —Enforcement.
    The individual liability of stockholders in Kansas corporations, as declared by statute enacted pursuant to a requirement of the constitution of that State, for the debts of the corporation, to an amount equal to the stock owned by them, is a contractual, not a penal, liability, and as such may be enforced in the courts of this State.
    Error to Kent; Grove, J.
    Submitted June 8, 1898.
    Decided July 18, 1898.

      Assumpsit by the Western National Bank of New York against John S. Lawrence to enforce the individual liability of defendant as a stockholder in a Kansas corporation. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.
    Reversed.

      C. O. Smedley (John W. Powers, of counsel), for appellant.

      Fletcher & Wanty, for appellee.
   Long, J.

The declaration in this cause states that the plaintiff is a corporation under the national banking act, having its place of business in the city of New York, and, as such corporation, loaned the Western Farm Mortgage Trust Company, a Kansas corporation, $20,000, and on the 2d day of July, 1892, obtained a judgment against the Kansas corporation for $22,911.35, on which there has been issued an execution which has been returned unsatisfied, and since that time the plaintiff has credited on said judgment $7,094.60, the balance being wholly unpaid; that the Western Farm Mortgage Trust Company is insolvent, and has no property of any kind or description in Kansas or elsewhere; that defendant is a stockholder owning 10 shares, of $100 each, in said company, and became liable to the plaintiff for the amount of said stock. The declaration sets forth the provisions of the constitution and statutes of Kansas under which it is claimed the defendant became liable. The defendant demurred to the declaration, and the demurrer was sustained in the court below.

The constitution of Kansas, by section 2, art. 12, provides :

“Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes.”

It is contended by counsel for defendant that no right of action against a stockholder of a corporation existed at common law, and that the above-quoted provision of the Kansas constitution created no liability, and is only a provision enabling the legislature of the State to pass statutes making stockholders liable for debts of corporations in con-f ormity therewith; that is, that the constitution creates no liability of itself, and is not self-executing. This view, it is claimed, was taken by the court below; and counsel for plaintiff concede that view to be correct. The only liability, if any, arises from the Kansas statutes (1 Gen. St at. 1889, § 1192), which provide:

“If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; hut no execution shall issue against any stockholder except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged, and, upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.”

It is conceded by counsel for plaintiff that the first of these remedies provided by this statute could be enforced only in the State of Kansas; but it is contended that the other may be enforced in this State by an action, as no particular procedure is prescribed by the act, and therefore the form of procedure prescribed by the laws of the State where the stockholder resides can be resorted to, just as though the action were on a promissory note or other obligation of the defendant. In Howell v. Manglesdorf, 33 Kan. 194, speaking of this statute, the court said:

“It will be observed that two remedies for enforcing the individual liability of stockholders are prescribed in the statute above quoted. In the one case, the judgment creditor of an insolvent corporation may proceed by a summary action on a motion in the court where the judgment was rendered against the corporation; in the other, by an ordinary action to be instituted wherever personal jurisdiction of the stockholders can be acquired. * * :'r' This ruling does not deprive a creditor of the insolvent corporation of a remedy against the stockholder residing in another State, and upon whom service cannot be obtained here. While the liability is statutory, it is one which arises upon the contract of subscription- to the capital stock of the corporation, and an action to enforce the same is transitory, and may be brought in any court of general jurisdiction in the State where personal service can be made upon the stockholder.”

• It will be noticed that the statute, in providing for the recovery against the stockholder by action, empowers the plaintiff, whenever his execution is returned nulla bona against the corporation, to charge the stockholders with the amount of his judgment; but the constitution of Kansas provides that a stockholder’s personal liability cannot be more than the amount of the stock owned by him, so that the language of the act must be limited to that amount. The suggestions made by the court in Howell v. Manglesdorf, supra, are supported by the great weight of authority, in that, while the liability is statutory, it is one which arises on the contract of subscription to the capital stock, and an action to enforce the same is transitory, and may be brought in any court of general jurisdiction where personal service may be had upon the stockholder. In Morawetz on Private Corporations (section 870) the rule is stated as follows:

“If the company’s charter provides that the shareholders shall be subject to a special individual liability to creditors, -persons becoming shareholders agree to become liable, both in a corporate capacity and individually, to all persons who shall give credit to the corporation. They offer to all the world to become liable in their corporate capacity to the extent of the capital which they have agreed to contribute for the purpose of carrying on the company’s business, and they offer to become liable individually to the amount expressly provided by their charter or incorporation law. Parties who contract with the corporation contract upon the faith of this liability, held out as their security; and the offer of the shareholders, being thereby accepted, ripens into a binding contract.”

It is further said (in section 875):

“ It seems clear upon principle that a creditor of a corporation whose shareholders are individually liable for its debts may maintain a suit to enforce this liability wherever he can obtain jurisdiction over the necessary parties. The right to maintain a suit of this character outside of the jurisdiction of the State by which the corporation was chartered does not depend upon the comity of the State where suit is brought, or its willingness to recognize and give effect to the laws of a foreign State. It depends upon the willingness of the courts to enforce a contract validly entered into between the parties in another jurisdiction. A refusal to grant a remedy in a case of this kind would not be a refusal to enforce a foreign law; it would be simply a denial of justice.”

These principles are fully sustained by Thompson in his Commentaries on the Law of Private Corporations (volume 3, § 3050), Cook on Stock, Stockh. & Corp. Law (section 223), and by the. courts generally where these questions have arisen. Bank of North America v. Rindge, 57 Fed. 279; Rhodes v. United States Nat. Bank, 13 C. C. A. 612, 66 Fed. 512 (34 L. R. A. 742); Cuykendall v. Miles, 10 Fed. 342; McVickar v. Jones, 70 Fed. 754; Guerney v. Moore, 131 Mo. 650; Ferguson v. Sherman, 116 Cal. 169; Flash v. Conn, 109 U. S. 371; First Nat. Bank v. Gustin Minerva Con. Min. Co., 42 Minn. 327 (18 Am. St. Rep. 510); Morris v. Glenn, 87 Ala. 628; Huntington v. Attrill, 146 U. S. 657.

In McVickar v. Jones, supra, which was tried in the circuit court of the United States for the district of New Hampshire to enforce against the defendant the remedy provided by this same statute of Kansas, it was held that the action was transitory, and could be enforced in any State. This same statute was also before the court in Guerney v. Moore, supra, and the court discussed the distinction between the two classes of liability, the one penal and the other contractual, and held that the statutory liability under this Kansas statute was contractual, and not penal, and consequently might be enforced in any court of competent jurisdiction. This statute was also before the court in Ferguson v. Sherman, supra, and the same principle enunciated.

The court below seems to have relied upon the rule laid down in Marshall v. Sherman, 148 N. Y. 9 (34 L. R. A. 757, 51 Am. St. Rep. 654). That opinion is based upon Erickson v. Nesmith, 4 Allen, 233; but the court of Massachusetts has more recently limited the language of that case in Hancock Nat. Bank v. Ellis, 166 Mass. 414 (55 Am. St. Rep. 414), and now stands in line with the cases which support the action against stockholders under the Kansas act. Tuttle v. National Bank, 161 Ill. 497 (34 L. R. A. 750), is inline with Marshall v. Sherman, supra; but a dissenting opinion in that case was filed, in which three of the justices of that court found, holding to the doctrine laid down by the majority of the cases, that such actions can be maintained in any court of competent jurisdiction against stockholders, and that the statutory liability is contractual.

Many other cases might be cited in line with the above. We do not deem it necessary, however, as we are satisfied that to enforce this contract does not import the law of one State into another State, and give it an extraterritorial effect, in any proper sense. It merely allows the law to be read for the purpose of determining the contract into which the stockholder has entered. The contract is expressed by the statute and what the stockholders have written and done under it, when taken and read together as a whole. As said in Cook on Stock, Stockh. & Corp. Law (section 223):

‘ ‘ The law is clear that the courts of one State will not enforce penalties imposed by another State. But the usual statutory liability of stockholders is not a penalty. * * * In other words, the ordinary statutory liability of stockholders is a contract liability, and will be enforced as such by the courts of all .the States.”

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

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    DOWNING v. BIRNEY.
    1. Estates in Land — Limitations—Unborn Children.
    Under a deed which operates to convey a life estate to the grantee, with an estate in fee in expectancy to her or her heirs, or to the assigns of herself and husband, .subject to a contingent life estate in her children begotten of said husband, only those children can take who were living at the time of the grant, since 2 How. Stat. § 5533, provides that successive estates for life shall not be limited, unless to persons in being at the creation thereof.
    2. Same — Vested and Contingent Remainders.
    The children in being take, under such a conveyance, Vested, not contingent, future estates.
    3. Same — Tenancy in Common.
    And, under 2 How. Stat. § 5560, providing "that all grants of land to two or more persons shall, in the absence of express declaration to the contrary, be construed to create estates in common, and not in joint tenancy, the estate of each child terminates at death, and is not cast upon the survivors.
    4. Ejectment — Pleading and Proof — Variance.
    Where a declaration in ejectment alleges a right of possession in several plaintiffs to an undivided three-fourths of the land, and the proof shows an interest, in one of the plaintiffs only, to an undivided one-half, defendant is entitled to judgment.
    Error to Bay; Wilber, J., presiding.
    Submitted June 8, 1898.
    Decided July 18, 1898.
    Ejectment by Parmelia Downing, Clarissa B. Smith, and Mary P. Graham against Henry Birney and wife. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Reversed.

      Simonson, Gillett & Courtright (George P. Cobb and E. A. Cooley, of counsel), for appellants.

      James Van Kleeck, for appellees.
   Montgomery, J.

This is an action of ejectment, has once been considered by this court, and will be found reported in 112 Mich. 474, to which report reference is made for a statement of the main facts. We there construed the deed under which plaintiffs claim as creating an estate for life in Lorainie Spicer, and a fee in the grantees of Lorainie and Ezekiel, subject to a contingent life estate in the heirs of the body of Lorainie. Whether all the plaintiffs áre entitled to take we found it unnecessary to determine. We found that the plaintiffs, or some of them, are owners of a life estate in the premises. It is now contended that under the provisions of section 5533, 2 How. Stat., two of the plaintiffs are precluded from taking a life estate. At the date of the conveyance, two children of Lorainie were living, — Mary Parmelia (now plaintiff Graham), born in 1844, and Diana, who was born in 1847, and died in 1857. The two other plaintiffs are children born to Lorainie after the date of the deed. The statute referred to reads as follows:

“Successive estates for life shall not be limited, unless to persons in being at the creation thereof; and when a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void, and, upon the death of those persons, the remainder shall take effect, in the same manner as if no other life estate had been created.”

The language of this statute is clear and unambiguous. Under it the plaintiffs Downing and Smith do not take; neither was in being at the date of the conveyance. See Amory v. Lord, 9 N. Y. 419.

Did the second life estate vest in moieties in the two living children of Lorainie, or was such estate a contingent remainder ? As we held in our former opinion, the word “children” should not be considered a word, of inheritance, but of purchase. The word as used in this deed is designatio personae, and indicates not inheritable succession, but individual acquisition. The policy of the law favors vested estates. 2 Washb. Beal Prop. (5th Ed.) 594 (* 228) et seq. The present capacity of taking effect in possession if the possession were now to become vacant, and not the certainty that the possession will become vacant before the estate limited determines, distinguishes a vested remainder from one that is contingent. Id. True, there is a class of cases where the remainder is regarded as vested, although all the persons to take are not ascertained or in esse; as in case of a devise to a class, as to the children of A. of a remainder upon a life estate to B. If the intent is manifest, though the remainder vest at the death of the testator, yet if, during the continuance of the precedent estate, additional children be born to A., the estate will open, and they will take shares as vested remainders. Id. 599 (* 230). But, under our statute, the conveyance under consideration cannot have this effect, as any attempt to limit a second life estate to persons not in being was futile.

Was a life estate in the whole cast upon Mary Parmelia at the death of Diana? If this be treated as a grant, section 5560, 2 How. Stat., controls. This section provides that all grants and devises of land made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy. The exceptions stated in the next section do not apply to such a grant as is here under consideration. It follows that the estate of Diana terminated at her death, and a life estate in an undivided one:half only remained in Mrs. Graham, one of the plaintiffs.

The declaration, having alleged a right of possession in all three plaintiffs to the undivided three-fourths, is not supported bjr proof of right to an undivided one-half in one of the plaintiffs. Lynch v. Kirby, 36 Mich. 238.

The judgment, which was for the plaintiffs, must be reversed, and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    UNION NATIONAL BANK OF CHICAGO v. MUSKEGON CIRCUIT JUDGE.
    1. Garnishment — Affidavit—Amendment.
    An affidavit for garnishment may be amended to correct a clerical error in the date, whereby it appears to have been made and sworn to a day before the writ issued.
    2. Same — Contradictory Allegations — Foreign Judgment.
    An affidavit for garnishment is not open to the objection that it is contradictory, because it states in separate paragraphs that the cause is a personal action, arising upon an implied contract, and that it is upon a judgment rendered in a foreign court of record; a foreign judgment being a contract, within the garnishment statute.

      Mandamus by the Union National Bank of Chicago to compel Fred J. Russell, circuit judge of Muskegon county, to reinstate a writ of garnishment.
    Submitted June 28, 1898.
    Writ granted July 18, 1898.

      C. W. Sessions, for relator.

      H. L. Delano, for respondent.
   Per Curiam.

April 12, 1898, relator caused a writ of garnishment to issue out of the Muskegon circuit court. The writ was personally served on the garnishee defendants, who answered, denying all liability, and thereupon moved the court to dismiss the writ for the reasons (1) that the affidavit for the writ was made and sworn to on April 11th, one day before'the writ issued; (2) that the affidavit is contradictory, in that it states that “ said cause is a personal action, arising upon an implied contract, upon which defendant is indebted to plaintiff in the sum of $26,-250,” and in the next paragraph it states: “ Said sum of $26,250 is due said plaintiff from said defendant on a certain judgment rendered against said defendant, Amazon Hosiery Company, 'by the circuit court of Cook county, in the State of Illinois, said court being a court of record and of general jurisdiction, in a suit wherein the said Union National Bank of Chicago is plaintiff and the said Amazon Hosiery Company is defendant.” This motion was granted by the court, and the writ of garnishment dismissed.

The record.shows that the date of April 11th in the affidavit is an error, as no suit was in fact commenced until April 12th. An amendment of the date should have been permitted. Millard v. Lenawee Circuit Judge, 107 Mich. 134; People, ex rel. Dickinson, v. Simondson, 25 Mich. 113. See, also, Wattles v. Wayne Circuit Judge, ante, 662.

The affidavit for the writ is not contradictory in its terms. While the action is upon a foreign judgment, it is upon contract, within the meaning of the statute. Wattles v. Wayne Circuit Judge, supra, and cases there cited.

The order quashing the writ of garnishment must be reversed, and the writ reinstated, with costs in favor of relator.


text:
    HALLENBECK v. POWERS & WALKER CASKET CO.
    1. Corporations — Officers—Implied Authority.
    The apparent authority of the officers of a corporation, arising from a course of dealing, is not available for the purpose of charging the corporation with acts not within their actual authority, to one who did not know of such course of dealing at the time of the acts in question.

    2. Same — By-Laws—Notice.
    A by-law of a corporation, limiting the authority of its officers to enter into contracts in its behalf, is binding upon persons who contract with such officers with knowledge of the by-law.
    Case made from Kent; Adsit, J.
    Submitted June 8, 1898.
    Decided July 18, 1898.

      Assumpsit by Adelbert W. Hallenbeck against the Powers & Walker Casket Company for the breach of an alleged contract of employment. There was a judgment for defendant, and plaintiff assigns error.
    Affirmed.

      Uhl, Hyde & Earle, for appellant.

      C. H Gleason (Arthur Lowell, of counsel), for appellee.

       The powers of the president and vice president of a corporation are considered at length in a note to Wait v. Nashua Armory Ass’n, (N. H.) 14 L. R. A. 356.

   Montgomery, J.

This case comes up for review on a special finding of facts by the trial judge. As the evidence is not before us, the only question which we can consider is whether the finding supports the judgment. The substance of the finding may be stated briefly:' The defendant is a corporation engaged in the manufacture, purchase, and sale of burial cases, caskets, and undertakers’ goods and supplies. The articles of association of said corporation provide that the stock, property, affairs, and business of the corporation shall be managed by four directors, to be chosen annually by the stockholders, and that the directors shall choose one of their number to be president, one to be vice president, and one to be secretary and treasurer, and that the board of directors shall have power to employ such superintendents, clerks, agents, and other employés as they shall deem proper, and shall manage and direct the entire business affairs of the corporation. The by-laws of the corporation provide that the board of directors shall appoint and employ and have power to remove clerks, superintendents, agents, and other employés necessary or proper, in their judgment, for the best interests of the corporation, and prescribe rules for the government of the business and employés, and fix their compensation. They also provide that all notes, obligations, and contracts of the corporation shall be signed by the president, and countersigned by the secretary and treasurer. On the 13th of June, 1895, the plaintiff had an interview with William E. Cox, secretary and treasurer of defendant, in the presence of Joseph H. Walker, president of the defendant. It was proposed that defendant employ the plaintiff as a resident buyer in New York, paying him $25 a month as retainer, and 1 per cent, on goods purchased; it being understood that the plaintiff was to be employed by several others in a like capacity, the scheme being to secure, by co-operation, better prices. The plaintiff was informed by Mr. Cox that he was willing, so far as he was concerned, to enter into such a contract, but, before it could go into operation, it would be necessary to have it approved by defendant’s stockholders or board of directors. A contract to go into effect July 1, 1895, and continue to January 1, 1897, was thereupon drawn up, and signed, on behalf of defendant, by Mr. Cox, as secretary and treasurer, and also signed by plaintiff. At the same time the plaintiff gave back to Mr. Cox a memorandum as follows:

‘ ‘ If, at a meeting of the stockholders, they decide it is not best to enter into the contract with me, the contract is null and void, and to be returned to me to destroy.
“ Contract signed June 13th.”

Plaintiff was informed by Mr. Cox, in the presence of Mr. Walker, that the stockholders would meet before July 1, 1895. No meeting was in fact held until September following. On June 24, 1895, without the knowledge or approval of any director or stockholder, Mr. Cox wrote plaintiff as follows:

“We have further considered the matter of entering into an arrangement with you, such as indicated by contract,' and decided to allow our contract to remain in force. ”

This was signed in the defendant’s name, by William E. Cox, treasurer.

Plaintiff made arrangements to carryout the contract with defendant and others, and incurred some obligations in so doing. Defendant also sent one or two orders to plaintiff to be filled. This service was performed by plaintiff. On the 27th of September, 1895, a meeting of the stockholders was held, and the contract with plaintiff was disapproved, and similar action was taken on the same day by the board of directors. This action was advised by Mr. Cox after having taken the opinion of a lawyer as to the binding effect of the contract with plaintiff, and as to the steps necessary to disapprove it, and avoid liability thereunder. The finding shows that the board of directors met only at intervals of several months, the dates being January 30, 1894; January 29, 1895; March 4, 1895; April 20, 1895; September 27, 1895; December 13, 1895; January 28, 1896. It was further found:

“Mr. Cox has been the secretary and-treasurer of the defendant from several years before 1895,’up to the time of the trial. The financial matters of defendant have during this time been under his control, but in important matters he always consulted Mr. Walker, the president. Mr. Cox, during the time aforesaid, had charge of the buying for defendant, except the buying of machinery, lumber, and general factory supplies. This, Mr. Walker attended to. In important purchases in Mr. Cox’s department, if it was anything extraordinary, he consulted with Mr. Walker, and Mr. Walker conferred with him about purchases in his (Walker’s) department. * * * The matter of the employment of men on the road, or the purchase or selling of goods, did not come before the board. The only salaried members of the board of directors were Messrs. Walker and Cox. After the death of Mr. William H. Powers, Messrs. Walker and Cox carried on the business of defendant; i. e., the manufacturing, buying, and selling, and hiring traveling men, and fixing their salaries, except as to the matters acted on by the board of directors, as above stated. Mr. Cox bought thousands of dollars worth of goods for defendant without consulting the board of directors. The traveling men were hired for no specific time, and were subject to discharge at any time. Neither Mr. Walker nor Mr. Cox ever entered into a written contract on behalf of defendant, except letters and orders for goods, without first having a vote of the stockholders or of the board of directors authorizing it.”

The circuit judge found as a conclusion of law that—

“Inasmuch as the agreement sued upon was never approved by the stockholders of defendant, but was disapproved by them, and also by the board of directors, the agreement never became operative, and plaintiff has no right of action.”

The finding undoubtedly established such a course of dealing on the part of Mr. Cox as would, to one having knowledge of such dealing, be evidence of extended power, and as to one cognizant of the continued exercise of such authority, and with no knowledge of the restrictions placed upon him by the by-laws of the company, the course of dealing was such as to constitute a holding out of Mr. Cox as one authorized to transact most of the affairs of the corporation, so far as they concerned the purchase and sale of wares or the means of accomplishing either. But in this case there is no finding that the plaintiff had any previous dealing with the defendant, or that he knew of the several acts of authority exercised by Mr. Cox. On the contrary, the finding is that he was informed by Mr. Cox that, before the contract could go into operation, it would be necessary to have it approved by the de-' fendant’s stockholders or board of directors. It is also a fact that the by-laws of the company did confer the power upon the board of directors. With this finding of fact binding upon this court, we must hold that the plaintiff is not in a position to rely upon a holding out of the agent as having authority in excess of that which he in fact possessed*. Plaintiff, having notice of the limitations on Mr. Cox’s authority, was bound to see to it that those having authority had assented to this contract. Rice v. Peninsular Club, 52 Mich. 87; 4 Thomp. Corp. § 4887.

It is true, as contended by plaintiff, that by-laws of a corporation do not ordinarily bind third persons. 2 Beach, Mod. Cont. § 999; Union Mutual Life Ins. Co. v. White, 106 Ill. 67. But the reason why this is so is that persons dealing with the agents of corporations are justified in assuming that they possess such power as their employment would generally indicate, and are not bound to take notice of limitations of such power fixed by the by-laws. When, however, the third person dealing with an agent has direct notice of limitations placed upon his authority, it would be perversion of that salutary rule to hold that he may ignore such notice, and fall back upon what would otherwise have been apparent authority.

The judgment will be affirmed.

The other Justices concurred.


author: Montgomery, J. Grant, C. J.

text:
    ANGELL v. CITY OF WEST BAY CITY.
    1. Municipal Corporations — Amendment to Charter — Prospective Operation — Claim: for Personal Injuries.
    The provision of section 1 of chapter 22 of the amended charter of West Bay City (Act No. 442, Local Acts 1897), that the city shall not be liable in damages for injuries sustained by any person by reason of a defective street or sidewalk, unless ' such person shall serve, “within 60 days after such injury shall have'occurred,” a notice in writing upon the city clerk, setting forth the time, place, manner, and extent of the injury, is not binding upon one whose injuries were sustained 10 days before the amended charter took effect. Grant, C. J., dissenting.
    2. Same — Verification op Claim.
    Section 20 of chapter 8 of the amended charter of West Bay City provides that “no account, claim, or contract shall he received for audit or allowance unless it shall be accompanied with * * * an affidavit of the person rendering it * * * that the services therein charged have been actually performed, or the property delivered, for the city, and that the sums charged therefor are reasonable and just.” The section further provides that it shall be a sufficient defense to any action for the collection of any demand or claim against the city, for personal injuries or otherwise, that it has never been presented to the council for allowance, or, “if such claim is founded on contract,” that the same was presented without the affidavit aforesaid. Held, that the requirement of an affidavit does not apply to a claim for personal injuries.
    Error to Bay; Maxwell, J.
    Submitted June 9, 1898.
    Decided July 18, 1898.
    Case by John C. Angell against the city of West Bay City for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Lyon & Pierce, for appellant.

      Lee E. Joslyn, for appellee.
   Montgomery, J.

In this case plaintiff brought suit to recover damages for an injury sustained by him on the 15th day of May, 1897, while traveling on foot upon a sidewalk in defendant city, which he claimed was out of repair, and not reasonably safe for public travel, and that his injury was the result of a fall caused by the dangerous condition of said walk, and that the defendant had knowledge that it was not reasonably safe for travel prior to the injury, and for a time that would have enabled it, by the exercise of ordinary diligence, to repair the walk before the date plaintiff was injured. The charter of West Bay City was revised and amended by an act of the legislature approved May 26, 1897 (Act No. 442, Local Acts 1897), and in this revision certain provisions were made, relating to claims against the city for damages sustained through injuries resulting from defective streets and sidewalks by persons traveling thereon, not contained in the charter prior to said revision. Section 1 of chapter 22 of said amended charter, among other things, provides as follows:

“The city shall not be liable in damages sustained therein by any person, either to his person or property, by reason of any defective street, sidewalk, cross-walk, or public highway, or by reason of any obstruction, ice, snow, or other incumbrance upon such street, sidewalk, cross-walk, or public highway, situated in said city, unless such person shall serve or cause to be served, within 60 days after such injury shall have occurred, a notice in writing upon the clerk of said city, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury, as far as the same has become known, and that the person receiving such injury intends to hold the city liable for such damages as may have been sustained by him. All such facts as heretofore named, relating to personal injuries, shall be set forth in an affidavit made by claimant. Such affidavit shall also state the name of the attending physician, if any, the amount of money, if any, expended for medical attendance, the loss of time and .the value thereof, and shall fully describe the nature and extent of the injury received, and the amount of compensation claimed by reason of such damage or injury. All claims for damages against the city, growing out of negligence or default of said city, or of any officer or employé thereof, shall be presented to the council in the manner above provided within 60 days after such damage has been sustained or injury received, and, in default thereof, shall thereafter be forever barred. ”

Section 20 of chapter 8 of the revised and amended charter, approved on the date specified, is as follows:

“The council shall audit and allow all accounts and claims chargeable against the city; but no account, claim, or contract shall be received for audit or allowance unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed, or the property delivered, for the city, that the sums charged therefor are reasonable and just, and that, to the best of his knowledge and belief, no set-off exists nor payment bas been made on account thereof, except as are indorsed or referred to in such account or claim; and every such account shall exhibit in detail all the items making up the amount claimed, and the.true date^of each. It shall be a sufficient defense in any court to an action or proceeding for the collection of any demand or claim against the city, for personal injuries or otherwise, that it has never been presented to the council for allowance, or, if such claim is founded on contract, that the same was presented without the certificate or affidavit aforesaid, and rejected for that reason, or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”

The counsel for defendant objected to the introduction of any testimony by plaintiff, and based his objection upon the claim that plaintiff'did not, within 60 days from the time of the injury, or the date when the charter went into effect, present the notice to the council required by section 1 of chapter 22 of said revised charter, and that he -did not present, before the suit was commenced, an account to the city, verifie'd by affidavit. The plaintiff offered to show that on the 9th of August, 1897, he caused to be served upon the clerk of West Bay City a claim in writing, in compliance with the city charter in every respect,- setting forth the matters required by said section 1 of chapter 22, and that plaintiff also, after demand made, and on the 15th daj^ of November, 1897, caused to be served upon the clerk of said city a bill of particulars of his claim for damages. The court held that the plaintiff could not maintain his suit, for the reason that he did not file the claim required by section 1 of chapter 22 of the charter within 60 days after the injury, and refused to admit any testimony, and directed a verdict for the defendant. The plaintiff excepted to the ruling of the court and the direction given above, and claims the court’s refusal to permit plaintiff to give evidence in the case, and the direction given to the jury to render a verdict for the defendant, was error.

The questions involved in the case are as follows: Do the provisions of section 1 of chapter 22 of the revised charter, requiring a claim to be filed within 60 days after the injury, apply to plaintiff’s case, in which the injury occurred prior to the time the revised charter was approved’ and took effect ? If necessary to file a claim with the council before the commencement of suit, was the claim filed by the plaintiff with the common council sufficient to meet the requirements of the revised and amended charter ?

The general rule is that a statute is to be construed as having a prospective operation only, unless its terms show clearly a legislative intention that its terms should operate retrospectively. Ludwig v. Stewart, 32 Mich. 27; Harrison v. Metz, 17 Mich. 377; McKisson v. Davenport, 83 Mich. 211 (10 L. R. A. 507); Atherton v. Village of Bancroft, 114 Mich. 241; Cooley, Const. Lim. (6th Ed.) 455. It is significant that the language quoted from section 1, chap. 22, follows provisions of the same section imposing duties upon the city authorities, — provisions plainly prospective. Moreover, the provisions quoted do not, in express terms, apply to cases in which the injury has already been sustained. If the statute had been so construed, the effect would be to cut off one whose claim had accrued 59 days before the law took effect just as effectually as it would this plaintiff. We cannot ascribe to the legislature the purpose of working out so great an injustice, in the absence of clear and unequivocal language. The language here employed does not express such a purpose, as the cases have generally held. It is generally held that an amendment of a statute of limitations, shortening the term within which an action may be brought “after the cause of action shall have accrued,” should be construed as having prospective operation only. See article in 17 Alb. Law J. 183, and cases. The language here employed, “within 60 days after such injury shall have occurred,” is similar.

It is further contended that, uven if the provisions of section 1, chap. 22, do not apply to this case, the plaintiff cannot maintain this action, for the reason that he has failed to comply with the requirements of section 20, chap. 8, above quoted. The point made is that the claim was not accompanied by an affidavit; but we think this section does not require an affidavit to a claim for personal injuries. The facts required to be set up in the affidavit required by this section are not pertinent to such a claim. Furthermore, the clause that “it shall be a sufficient defense ” that the claim was never presented for allowance, “or, if such claim is founded on contract, that the same was presented without the certificate or affidavit aforesaid,” leaves no doubt of the intention to limit the requirement as to the affidavit to contract cases.

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

Hooker, Moore, and Long, JJ., concurred with Montgomery, J.

Grant, C. J.

(dissenting). Plaintiff claims that he was injured May 15, 1897, by a fall on a defective sidewalk of the defendant city, and that the defect was due to its negligence. Upon the trial the court directed a verdict for the defendant because plaintiff had failed to serve upon the common council a verified statement of his claim within 60 days after the accident.

The revised charter of the defendant took effect May 26, 1897. Section 20, chap. 8, and section 1, chap. 22, require the service of such verified statement as a condition precedent to suit, and make failure to present it a sufficient defense to the action. Act No. 442, Local Acts 1897. Plaintiff offered to show a verified claim presented August 9, 1897, which offer was rejected.

No liability for injuries caused by defective highways and sidewalks exists at the common law. It is purely a creature of the statute. One legislature may give the right, and another may take it away. If the law establishing the liability were repealed, it would destroy all existing rights of action, in the absence of a saving clause. The repeal involves no violation of contract, and there is no vested right, in such case, until the statutory right is merged in judgment. When the statute is repealed, the situation is the same as though it had never existed. End. Interp. Stat. §§ 478-486; National Bank v. Williams, 38 Fla. 305; Musgrove v. Railroad Co., 50 Miss. 677; Grim v. Weissenberg School District, 57 Pa. St. 433 (98 Am. Dec. 237); Bennet v. Hargus, 1 Neb. 419; John S. Hanes & Co. v. Wadey, 73 Mich. 178 (2 L. R. A. 498); Heineman v. Schloss, 83 Mich. 153. The rule is stated by Endlich as follows: “In all matters of pure legislation^ contract and vested rights not resulting, * * * the repeal of the statute puts an end to all proceedings pending undetermined under it.” End. Interp. Stat. § 486. If the repeal destroys the statutory right of action, it follows that any modification of the remedy controls the future exercise of the right. The effect of the charter was to deprive plaintiff of his remedy, and his right of action as well, unless he complied with the provision of the law. He had ample time, and ignorance of the law furnishes no excuse.

Judgment should be affirmed.


author: Moore, J.

text:
    BENTLEY v. ROBSON.
    1. Mortgages — Execution—Duress oe Imprisonment.
    A mortgage given by a wife at the instance of her husband, who, unknown to her, had committed a forgery, and thereby defrauded an insurance company, and had, upon its discovery, been required, though ill, to accompany an officer from his house, and, after a consultation with the representative of the company and the prosecuting attorney, in which the latter had suggested that he ask his wife to give a mortgage to the company, had returned home in the custody of the officer, accompanied by the assistant prosecutor, and had told her that she would have to sign the mortgage to save him from jail, and which mortgage was signed by her on this assurance, without her knowing the nature of the charge against him, is void for duress, although no threats were employed by the officers to induce its execution.
    2. Same — Ratification—Continuing Influence.
    The taint of duress attaching to the execution of a mortgage is not removed by payments on the mortgage, or other recognitions of it, made Under the same influence which controlled its original execution.
    3. Same — Evidence—Liens.
    Where it is contended that a mortgage which was executed by a wife on her property under duress, to save her husband from imprisonment for obtaining money on a forgery, was on property paid for in part with the money so obtained, so as to give the injured party a lien upon it, such fact must be made affirmatively to appear.
    Appeal from St. Clair: Eldredge, J., presiding.
    Submitted June 10, 1898.
    Decided July 18, 1898.

      'Bill by Louisa G-. Bentley against William O. Robson, trustee, to set aside a mortgage. From a decree for complainant, defendant appeals.
    Affirmed.

      Seward L. Merriam, for complainant.

      Stevens & Graham (Avery Bros. & Walsh, of counsel), for defendant.
   Moore, J.

Complainant filed a bill to set aside a mortgage given by her, upon the ground that she was under duress when it was given. The proofs were taken in open court, and a decree was granted according to the prayer of the bill, from which decree the defendant appeals.

The circuit judge filed in the case a written finding of facts, as follows :

“ Charles Bentley, husband of the complainant, was for some years prior to the 8th of January, 1897, the secretary of Hope Lodge of the Royal Arcanum of Port Huron, and acting collector, and had, by means of forged proof of the death of one Henry S. Ballentine, procured the allowance by the supreme council of said society of a claim for said sum in favor of the beneficiary, and the forwarding to said Hope Lodge of a draft upon Detroit for $3,000, payable to the beneficiary named, and had forged her name to the indorsement of the draft, and obtained the cash thereon. Henry S. Ballentine was living at the hearing of this cause. Mr. Bentley had also, something over a year prior thereto,-by like means, obtained a like sum on the assumed death of one George McPherson, -who still lives, but the latter fraud was not known to the defendant at the date of said mortgage. The defendant is the supreme secretary of the supreme council of the Royal Arcanum, and was, shortly prior to the 8th day of January, 1897, advised that the said Henry S. Ballentine was still living, and became advised of the fraud perpetrated by said Bentley. He is a resident of Boston, and came to Port Huron with the forged claims and proofs of death in the Ballentine matter, arriving on the evening of the 7th of January. The next day he submitted to the prosecuting attorney of St. Clair county the evidence that he had of Bentley’s fraud, and the prosecuting attorney sent for the sheriff, and directed him to go and get Bentley, and come to the hotel where he and the defendant were. This was about noon of that day. The sheriff went to Bentley’s house, where he found Bentley sick, and claiming to be too sick to go. The sheriff, after a time, made report to the prosecuting attorney of Bentley’s sickness, and during the afternoon the defendant, the prosecuting attorney, and a member of Hope Lodge went to Bentley’s house, and found him sick. He admitted the fraud, and pretended he still had $1,500 of the Ballentine money in the bank in the shape of a certificate of deposit in the St. Clair County Savings Bank in his store, and gave to the defendant an order1 therefor on his son-in-law, then temporarily in charge of the store. The certificate was not found at the store, and in fact Bentley had cashed it early in the morning of that day, and the $1,500 was then in his bureau drawer at his house. During the afternoon it was ascertained that Bentley had cashed the certificate, and the sheriff was directed by the prosecuting attorney to bring Bentley to the hotel, where the defendant and prosecuting attorney were.
“During the afternoon the sheriff had kept the house of Bentley under surveillance by himself or deputies; and, on being directed as above stated by the prosecuting attorney, the sheriff and deputy sheriff went to the house of Bentley, arriving there as the family were about to take supper. Bentley was upstairs in bed, and had been during the afternoon. The sheriff went upstairs to Bentley, and insisted on his going to the hotel, telling him that he had been instructed to fetch him to the hotel. Bentley claimed to be unable to go; that he was too sick. Thereupon the sheriff went out, leaving the deputy in the house downstairs, and in view of the foot thereof, with directions to stay there until he (the sheriff) should return, and in a short time returned, went upstairs, and came down with Bentley, having his hands upon him. Bentley being but partly dressed, Bentley’s wife and children put on his shoes, necktie, coat, and hat, and the sheriff, with Bentley, then went out, got into a buggy, and drove to the hotel, leaving the deputy to follow on foot.
“At this time the complainant was not informed of the reason why the sheriff was doing as he was, and had no knowledge of the fraud committed. She had applied to her husband during the afternoon to know why the men were coming there as they were, and what was the trouble, and could get no satisfaction. She and her sons and daughters were much disturbed and excited when the sheriff took Bentley away in the buggy. She and the daughters were in tears, and by her direction the son and son-in-law followed the buggy, to see where Bentley was taken. They, running to keep the buggy in sight, saw it stop at the hotel, and the sheriff, with Bentley, go in. Watching the hotel a short time, they left, and on the way home one of them was told by a third party something of the nature of the trouble Bentley was in.
‘ ‘ The deputy sheriff followed to the hotel, and was left there by the sheriff — who went to his supper — to follow such directions as the prosecuting attorney should give him. On arriving at the hotel, Bentley "was taken up to the defendant’s room, aiid there, being advised by the prosecuting attorney as to his official position, and that whatever he said would be used against him, was asked where the money was he had drawn from the bank that morning. Bentley then informed the defendant that he had $1,000 in the bureau at home, excusing his course in sending the defendant to the store as being the result of sickness and medicine he had taken. At the time he was sick — quite sick. He lay upon the bed in the room, and vomited once or twice. He announced his willingness to turn over the $1,000. The deputy, who was in the hotel on the same floor as the room in which the parties .were, was called in, and directed by the prosecuting attorney to take Bentley to his home, and told that Bentley would get $1,000, and give him, and to return with Bentley to the hotel. The deputy drove Bentley to his house. Bentley went in and upstairs, and returned to the buggy, gave the deputy a roll of bills, and the two got in, and the deputy drove back to the hotel, went to the defendant’s room, and there the deputy produced, and there was turned over to the defendant, the roll of bills, which, on being counted, was short of the $1,000. Bentley’s attention being called to it, he claimed that he must have dropped it in the drawer of the bureau, and that it was still there.
“ Bentley was urged to make restitution of the money he had defrauded the Royal Arcanum of. He was not promised by the defendant or the prosecuting attorney that his doing so would avoid prosecution, but it was represented to him that his doing so would aid him in getting leniency at the hands of the court. He was asked as to the title of his house, and he informed the parties truthfully that the title was and had been in his wife for many years, had been bought in her name, and at the time was free from incumbrances. He was asked if his wife would help him out, and would give a mortgage for the balance of the money. On his reply that he thought she would, the prosecuting attorney telephoned for a clerk in his office to come over with a blank mortgage, and the assistant prosecuting attorney, the clerk being absent, went to the hotel with the blank, and, by direction of the prosecuting attorney, Bentley and the assistant prosecuting attorney were driven to Bentley’s house by the deputy sheriff, who was instructed that Bentley would give him the shortage above mentioned, and his wife was to execute a mortgage which the assistant prosecuting attorney would draw. On arriving at the house about 8 o’clock p. m., the assistant prosecuting attorney and Bentley went in at the kitchen door, and Bentley had some conversation with his wife, which, it is evident, the assistant prosecuting attorney did not overhear. Bentley then told his wife in that conversation, in substance, that she would have to sign a mortgage on their home, to save his going to jail; “that there was no other way to avoid it.” On his last assurance she reluctantly consented to do so; whereupon Bentley, the assistant prosecuting attorney, and complainant went upstairs to a room where there was a desk, followed by the deputy sheriff, who had come into the house. The deeds to complainant were produced, from which the assistant prosecuting attorney took the description of the property included in the mortgage, drew the latter, and the note accompanying the same. While the assistant prosecuting attorney was filling out the mortgage, Bentley went into an adjoining ro'om, and returned soon with the shortage above mentioned, and handed it to the deputy sheriff.
“When the mortgage was completed, it was read” over, and it was signed and acknowledged by complainant, and, with the note, duly signed, it was taken by the assistant prosecuting attorney. While the mortgage was being drawn, the complainant was much of the time in tears, and much disturbed and excited. At the time the complainant executed the mortgage she was not advised and did not know fully what Bentley had done, but supposed he was in great trouble on account of something he had done, and she executed the mortgage in the belief on her part that her doing so would save him going to jail. On the execution and delivery of the mortgage, the two officers left the house. The deputy sheriff turned over the shortage to the assistant prosecuting attorney, and the same and the mortgage were given to defendant the next morning, the 9th of January. On the 9th, Robson, the defendant, and the prosecuting attorney, urged Bentley to turn over the balance of the $1,500, the proceeds of the certificate cashed the day before, and during the day Bentley paid to Robson $500, and in the evening of the 9th he gave Robson $100, which his minor son had let him have from the son’s savings. This was done at Robson’s urgency that the mortgage be reduced in amount, to enable him to negotiate a sale and transfer of it at Port Huron.
“Before leaving Port Huron, defendant made a criminal complaint against Bentley, by direction of the prosecuting attorney, for forgery, based on the Ballentine matter. Bentley was arrested, and examination before the justice was continued to the 26th of January, 1897, he being let to bail. Before that day arrived, Bentley’s fraud in the McPherson matter, came to light and to the knowledge of the defendant, who communicated the facts to the prosecuting attorney, who caused Bentley to be arrested and put in jail, where he was on the arrival of the defendant in Port Huron on the 25th of January. Thereupon two new complaints were made by defendant against Bentley, charging him with uttering forged paper, based on each the McPherson and Ballentine matter. Bentley waived examination, and on the 27th of January pleaded guilty to an information in each case in the circuit court, and on one conviction was sentenced to Ionia for seven years.
“It is evident that Bentley was practically in custody from about noon of the 8th of January until complainant, in the evening, executed the mortgage in question, and in actual custody from supper time until the mortgage was executed. The show of force used in the compulsion of Bentley to go to the hotel by officers known to be such, in the condition he was, very naturally impressed complainant with the conviction that he was arrested and about to be prosecuted for a crime, and a serious one; and when he returned, still in the custody of the officer, and she was told by him that it was necessary for her to sign the mortgage to save him going to jail, she must be deemed just as much under duress as though a direct threat of prosecution had been made. When the defendant and the prosecuting attorney sent Bentley, with the officer, to get the mortgage, it is not claimed that they charged him with the duty of informing complainant, when asking her to sign the mortgage, that it was to secure the repayment of money Bentley had wrongfully taken, or that it was not to secure his release from the custody of the officer, or to prevent a prosecution, but knowing, at least, that he had been brought to the hotel when sick, by officers, from the presence of his family, at night, they did leave him to use such means of securing the signature of his wife as he might feel best calculated to insure success, and they ought to be held responsible for the means he did use; but, whether that is so or not, the conclusion is irresistible that she gave the mortgage for the purpose of securing his release from apparent arrest, and with the belief that it would avoid the imprisonment of her husband. It is her belief that controlled her action in the premises. It was justified by what occurred and what was said to her. She was perfectly innocent of any wrong. There was no consideration for the mortgage. I cannot see that she was indebted to the defendant, or the society he represented, equitably or otherwise, or that they ought to have any lien on her property. It is not necessary that threats of prosecution by words be shown, or that promises to forbear prosecution be actually made, to constitute such duress as will avoid such an obligation. It exists when there is actual violence or restraint contrary to law that compels one to enter into a contract. Complainant was the wife of the party under restraint by the officei’S of the law, and, in executing the mortgage, acted upon the assurance that she must do so to prevent his going to jail. She was a woman in distress, laboring under excitement. She had a right to imply from the assurance that it was understood that, if she did execute the mortgage, her husband would not be sent to j ail. Evidently her will was overcome, and, in my opinion, the prayer of the bill should be granted, with costs. ”

The record shows that the learned circuit judge was justified in most of his findings of fact. It is impossible to read the record without coming to the conclusion that Mrs. Bentley understood when she gave the mortgage that her husband was in the custody of the officers, and that, to save him from being conveyed to jail, it was necessary for her to give the mortgage which she executed. It was this motive which actuated her to make it. There is nothing in the record to indicate it would have been made had she not believed it would have this effect. The case comes clearly within the principles established by the following decisions: Seiber v. Price, 26 Mich. 518; Vyne v. Glenn, 41 Mich. 112; Bowe v. Bowe, 42 Mich. 195; Meech v. Lee, 82 Mich. 274; Cribbs v. Sowle, 87 Mich. 340 (24 Am. St. Rep. 166); Miller v. Lumber Co., 98 Mich. 163 (39 Am. St. Rep. 524); Benedict v. Roome, 106 Mich. 378. The court was right in holding the mortgage was tainted with duress.

It is now said, even conceding the mortgage was obtained by duress, it was ratified after the duress had passed, by making payments upon it, and by attempting to have it discounted. The" conclusion we reach from the record is that the wife and family did all that was done in the expectation and belief that it was necessary to .be done to save Mr. Bentley from being imprisoned as the result of his criminal act. What was done after the mortgage was given was in the same line as the giving of the mortgage, prompted by the same motive, expecting to bring about the same result.

It is urged that at least a part of the property covered by the mortgage was paid for by money Mr. Bentley secured, belonging to the defendant, and for that reason should be subjected to the lien of the mortgage. The record shows the lot upon which the house was built was purchased upon a land contract 20 years before Mr. Bentley’s crime was committed, and in 1890 the property was deeded to Mrs. Bentley. In 1895 a deed of a strip of land 28 feet wide was made to Mrs. Bentley. This had been purchased earlier upon a land contract, and it is the claim of the complainant it was paid for by money coming from honest sources, and not from the company represented by the defendant. Mrs. Bentley owed the defendant nothing. The mortgage was given upon her property. If she saw fit, she could secure a debt of her husband by a mortgage upon her real estate, but she was under no obligations to do so. When it is made to appear that the mortgage which was executed was given under duress, before a lien can be established upon a portion of the real estate, upon the claim it was the defendant’s money which bought the real estate, that fact ought to be made to appear affirmatively. We do not think this has been done.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    MANOR v. BAY CITIES CONSOLIDATED RAILWAY CO
    with Vehicle — Contributory, Street Railways — Collision Negligence of Driver.
    Plaintiff’s wife was driving, in a sparsely-settled neighborhood, a covered milk wagon, which had doors, at the sides and a small window at the hack. The weather was cold, and she had a shawl over her head and ears. Before crossing the track of an electric railway, upon which cars ran at half-hour intervals, she looked up and down the track, but no car was visible. She could see to the west a half mile. After crossing, she drove east, parallel with the track, but at such a distance therefrom that she thought a car could pass without hitting the wagon. The traveled portion of the roadway was narrow, and she guided the horse so that the wheels of the wagon would follow in the ruts. After driving about 309 feet, she heard a bell, and attempted to turn out farther, but, before she could do so, an east-bound car struck the wagon.

      Held, in an action against the company, not to show contributory negligence as a matter of law.

    2. Same — Instructions.
    In view of the facts of the particular case, it was not reversible error for the court to charge that “she had a right to drive down the track just as she did, and if she turned out, or tried to turn out, immediately on the sounding of the gong, she was blameless, and there is no contributory negligence in the case;” and that “a man may drive ahead of you with a wagon, * * * but * * * you must wait until your opportunity comes to pass, and the same rule applies to a street car,”— further instructions making it clear to the jury that the question of contributory negligence was for their determination, and that if they should find 'that she drove in front of the car after she had turned out (as claimed by tlie oompany), and it was then so near to her that it could not be stopped, they should return a verdict of no cause of action.
    Error to Bay; Maxwell, J.
    Submitted June 10, 1898.
    Decided July 18, 1898.
    Case by Napoleon Manor against the Bay Cities Consolidated Railway Company for negligent injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      T. A. E. & J. C. Weadock, for appellant.

      H. M. Beady (Simonson, Gillett & Courtright, of counsel), for appellee.

       The authorities on liability for injuries by street-car collisions with vehicles or horses are collated in a note to Hicks v. Citizens’ R. Co., (Mo.) 25 L. R. A. 598.

   Moore, J.

This is one of two cases, both by agreement tried as one, growing out of a collision between an electric car belonging to defendant, and a milk wagon in charge of the wife of plaintiff. A judgment was recovered of $81, from which defendant appeals.

Defendant’s road is an electric road. The wife of the plaintiff was driving a milk wagon in the village of Essex-ville. She had occasion to cross the track from the south. She was riding in a covered wagon, which had doors at the sides, and a small glass window at the back. The weather was cold, and she had her shawl over her head and ears. According to her testimony, before crossing the track, she stopped the wagon, opened the doors, and looked both ways. She could see to the west a half mile. She saw no car, and crossed the track, and turned to the east, on the north side of the track, and parallel with it. The street on the south side of the track was sandy and soft, and for that reason was not traveled to any extent. On the north side of the track, for about nine feet from the track, it was macadamized with broken stone, which was worn smooth only in two narrow parallel tracks, where the wheels of vehicles ran. Mrs. Manor drove her horse so the wheels of the wagon would follow in these beaten portions of the road. She was familiar with this street, having driven on it frequently. She says she supposed she was driving far enough away from the track so that a car coming from the west could pass her without hitting the wagon. There were two cars run over this line. They passed at intervals of one-half hour each. Mrs. Manor says she looked west as she crossed the track, and saw no car. She had driven east about 300 feet when she heard a bell, and instantly attempted to guide her horse away from the track, when at once her wagon was struck by the car which had overtaken her, and the injury was done.

When the testimony of the plaintiff was all in, the court was asked to direct a verdict for the defendant, upon the ground that plaintiff was guilty of contributory negligence. The court refused to do so, and this is said to be error. We cannot agree with counsel in this claim. It is true, the defendant must run its cars upon the rails, and cannot turn out upon the street; but it has no exclusive right to the use of the street. The plaintiff also had a right to drive her vehicle in the beaten portion of the road, and to act as a reasonable and prudent person would under like conditions. She might dress against the inclemency of the weather. The motorman could see her vehicle for a half mile. He had notice of its proximity to the track, and of the danger to it if he let his heavy car run against it. It is true, he says in his testimony that he rang his gong, and saw Mrs. Manor turn away from the track, and he supposed he could pass her safely, when she turned back into the dangerous position again, and was hit. Testimony was offered supporting and rebutting the testimony of the motorman; but it is perfectly evident from the record that but a moment’s delay and a little more care on the part'of the motorman would have avoided the injury. When the motion was made, the defense had not introduced any testimony, and we do not think it could be said as a matter of law that, under the facts then disclosed by the record, the defendant was excused from any liability because of the injury.

After this motion was overruled, defendant put in testimony which, if believed by the jury, made a complete defense. Testimony was introduced to rebut this defense. The case was submitted to the jury in a charge which is claimed by defendant to be erroneous. The record does not disclose that any written requests were preferred by counsel for defendant. So much of the charge as counsel think necessary for the purpose of making their point is cited in the brief. If more of the charge had been quoted, it would have modified what was quoted. So far as it is necessary to quote, the language used by the circuit judge was as follows:

“Now, gentlemen, the view I take of this testimony narrows the points for your consideration down to two propositions. The woman has given her testimony as to crossing the track, and driving along down beside it. There is no evidence in the case that the thoroughfare was crowded, or that there was any occasion for unusual caution on anybody’s part in the matter. She had a right to cross the railroad, and she had a right to drive down the track, just exactly as she did; and if she turned out, or tried to turn out, immediately on the sounding of the gong, she was blameless; there is no contributory negligence in the case. But if, instead of turning out, and getting out of the way, or attempting to, she turned out in part, and turned around and tried to get back to that position, as testified to by some of the witnesses, and that was the reason why the accident happened, she cannot recover in either case; neither can recover a penny. You have heard the testimony upon that branch of the case, and you will judge of it just exactly — You know it just as well as I do; and it is your province and your duty to determine what the facts were about it. That place there was a common street or highway. Both the railroad company and she had a right there, and when one overtakes another— A man might drive ahead of you with a wagon, and you might be so crowded or loaded that you could not get by him; but you cannot have your horses jam onto his wagon; you must wait until your opportunity comes to pass. The same rule applies to a railroad company. The manager of that car must not be guilty of negligence or carelessness. He had a right to run up to the wagon. He must slow down and get control of his car more effectually even than the counsel has stated to you here, so that the control is approximately absolute. A street car and a locomotive are tremendous agencies. They are necessary for the good of society, but they are very dangerous; and while the defendant is innocent if merely running its car and managing it as well as it can, or as a prudent, careful, competent man can manage it, it can do all that and be blameless, and no court or jury has any right to find any damage against it for such conduct. But if this statement was that the woman was trying to get away from the car, and he could have stopped it, and prevented the accident, he was bound to do it. Hence, if that is all there is of the case, your inquiry on the merits of the case perhaps might as well end there. But if, going further, you think that she tried to drive in front of the car after she turned out', and it was so near to her that the men could not have stopped, and that that caused or contributed to cause the accident, you will find no cause of action. A great deal of law argument has been had, and law submitted, to the effect that the plaintiff in this case was guilty of contributory negligence in driving along down the street as she did. I don’t think there was any negligence in doing so until she heard the bell from the car; but that is a matter for you to determine.”

In determining whether this charge is error, we must take the facts disclosed by the record into consideration. This accident did not occur in a crowded street, or in a thickly-populated neighborhood, or in an attempt to cross the track. Mrs. Manor was familiar with her surroundings. She knew when she crossed the track there was no car in sight, and that she would be in sight of the motorman approaching behind her for more than a half mile. She also knew the cars ran only once each half hour. The portion of the roadway which was macadamized and used by the public was comparatively narrow. She'was driving in the usually traveled portion of it, at a distance which she thought was far enough away so she would be safe. It was not unreasonable for her to expect that a car overtaking her would not run into her vehicle without first giving her such notice as would enable her to get out of the way. While it doubtless would have been better for the court to abstain from expressing any opinion as to the negligence of Mrs. Manor, he told the jury it was a question for their determination. He reviewed briefly the claims of the parties, and told the jury, if the facts were as sworn to by the motorman and the witnesses for the defendant, plaintiff could not recover. In Laethem v. Railway Co., 100 Mich. 297, it is held, when the driver of a street car sees that a sleigh is standing so near to the car track as to make the striking of it certain unless it is removed, he is bound, if able to do so, to stop his car, if he sees the driver of the sleigh is unable to move soon enough to avoid the accident. See Montgomery v. Railway Co., 103 Mich. 46 (29 L. R. A. 287 ). In the case of La Pontney v. Shedden Cartage Co., 116 Mich. 514, in speaking of the duty of a motorman towards the driver of a vehicle loaded with a merry-go-round, Justice Montgomery used this language: “It was the duty of plaintiff to have the car under such control as to admit of its being stopped after he became able to discern objects on the track, and before a collision with such objects should occur,” — citing a number of cases. See, also, Goldrick v. Railroad Co., (R. I.) 37 Atl. 635, 2 Am. Neg. Rep. 647. Taking the charge as an entirety in connection with the facts shown by the record, reversible error is not shown.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    BALL v. RIDGE COPPER CO.
    1. Taxes — Review—Validity of Roll.
    The failure of the board of review to enter the valuations of the several parcels of land, as fixed by it, in the column of the assessment roll prepared for that purpose, as required by section 39 of Act No. 306, Pub. Acts 1893, does not invalidate the tax, where it does not appear that any changes of valuation were made by the board, in view of the further provision that the roll as prepared by the supervisor shall stand as approved and adopted as the act of the board of review, except as changed by vote of the board.
    3. Same — Enforcement—Effect of Decree.
    A valid decree in proceedings for the sale of land delinquent for taxes forecloses all questions as to the validity of the assessment. ‘
    3. Same — Constitutionality of Act — Due Process of Law-Notice.
    The tax law of 1893 is not unconstitutional as depriving persons of their property without due process of law, in that it makes no provision for personal service of notice upon the delinquent taxpayer of the proceeding for the sale of his land, but, on the contrary, provides (section 66) that notice by publication shall be equivalent to personal service.
    4. Same — Conolusiveness of ÍDeed.
    Nor is the whole act rendered void by reason of the provision therein (section 73) attempting to make tax deeds conclusive evidence of title.
    5. Same — Right to Jury Trial — Writs of Assistance.
    Nor is the constitutional right of trial by jury violated by the provision of the act (section 73) authorizing the court to put the purchaser in possession of the premises by writ of assistance.
    6. Corporations — Writs of Assistance — Demand of Possession.
    A demand for the possession of land, made upon the agents of a corporation who are in the actual occupancy thereof, is a sufficient foundation for an application for a writ of assistance as against the corporation.

      Appeal from Ontonagon; Haire, J.
    Submitted January 27, 1898.
    Decided July 18, 1898.
    Petition by J. Everett Ball against the Ridge Copper Company for a writ of assistance. From an order granting the writ, respondent appeals.
    Affirmed.

      Ball & Ball (M. J. Sherwood and Dan H. Ball, of counsel) for petitioner.

      Clark & Pearl, for respondent.
   Long, J.

A petition for a writ of assistance was filed by J. Everett Ball in a proceeding by the auditor general of the State in the Ontonagon circuit court, in chancery, for the sale of certain lands delinquent for taxes. Respondent answered the petition, and, after a hearing in that court, an order was made directing that the writ of assistance issue. Respondent [appeals.

It appears that the lands were bid in by the State in December, 1895; and in February, 1897, the auditor general executed and delivered to the petitioner deeds for the lands. Demand of possession was made upon the parties in possession of the lands by the petitioner, and, upon the refusal to surrender, this petition was filed. Respondent answered the petition, and by the answer claimed:

(1) That the court had no jurisdiction to enter the decree of sale, for the reason that there was no completed assessment roll, as it was not reviewed by the board of review of the township, as required by the statute; that there was no proper certificate attached, and no entry of values by the board in separate columns.

(2) That the tax law of 1893, under which the lands were sold, is unconstitutional, in that it provides for no personal service of notice upon the landowner of the proceeding for the foreclosure of the tax lien, which results in a decree and sale of the land, thus depriving the owner of his property without due process of law, contrary to the provisions of the fourteenth amendment to the Constitution of the United States; and also that it is unconstitutional for the reason that it provides that the tax deed shall -be conclusive evidence of title in the tax purchaser.

(3) That the act is also unconstitutional in so far as it provides for the granting of a writ of assistance to the purchaser of the tax title, as it deprives the owner of the right to try the title to his land before a jury in an action of ejectment.

The questions will be discussed in the order stated in the answer.

1. Section 29, Act No. 206, Pub. Acts 1893, provides for a meeting of the board of review in each township on the Tuesday next following the third Monday of May in each year; that the supervisor shall submit to the board his assessment roll, and the board shall examine and review the same. The board is given power, on sufficient cause shown, to add the names of persons to the roll; also, the values and descriptions of personal and real property liable to assessment, which has been omitted. It may also correct errors in names and descriptions of property. This section then provides:

“The board shall pass upon each valuation'and each interest, and shall enter the valuation of each, as fixed by it, in a separate column. The roll as prepared by the supervisor shall stand as approved and adopted as the act of the board of review, except as changed by a vote as herein provided.”

Section 30 provides:

“After said board shall complete the review of said roll, a majority of said board shall indorse thereon and sign a statement to the effect that the same is the assessment -roll of said township for the year in which it has been prepared and approved by the board of review.”
An abstract of the assessment rolls for 1892 and 1893 is contained in the record. In each of these years the columns for the valuations fixed by the board are left blank.There is a certificate attached to each roll, and signed bjr the members of the board of review, in the following form:
“Assessment roll for the township of Greenland, county of Ontonagon, and State of Michigan, for the year 1892 [and 1893], as approved by the board of review.”

There is nothing upon either roll showing that the board of review made any changes in the roll by adding to or striking from the roll. Inasmuch as the statute provides that ‘ ‘ the roll as prepared by the supervisor shall stand as approved and adopted as the act of the board of review, except as changed by a vote as herein provided,” and there being no figures in the columns which are prepared for such changes, the presumption follows that no changes were made by the board, and hence there was no necessity to insert any figures in such columns. Chamberlain v. City of St. Ignace, 92 Mich. 335. But, in any event, that question was foreclosed in the auditor general’s proceedings in which the decree was entered. Muirhead v. Sands, 111 Mich. 487.

2. Section 62 of the act provides that, on the filing of the petition by the auditor general, the court shall make an order fixing a day for hearing, etc. Section 66 provides that this petition and order shall be published at least once in each week for four successive weeks next prior to the time of hearing, and further provides:

“The publication of the order and petition aforesaid shall be equivalent to a personal service of notice on all persons who are interested in the lands specified in such petition of the filing thereof, of all proceedings thereon, and of the sale of the lands under the decree, and shall give the court jurisdiction to hear such petition, determine all questions arising thereon,, and to decree a sale of such .lands for the payment of all taxes, interest, and charges thereon.”

It appears that the respondent is a resident corporation, and was in possession and occupancy of the lands in controversy here.

It was said in Muirhead v. Sands, supra, that—

“The statute makes the publication the equivalent of personal service, and it is therefore the duty of the owner to watch the proceedings provided for by the statute for the foreclosure of the lien, and interpose any objection he may have to-the validity of the tax. The purpose of the statute is to give every person his day in court,, in an equitable proceeding.”

This case followed the rule of this court in Cole v. Shelp, 98 Mich. 58, and In re Wiley, 89 Mich. 58. Inasmuch as counsel have reargued that question in their briefs, we have re-examined it, and are satisfied that the ruling heretofore made must be adhered to. Judge. Cooley, in the second edition of his work on Taxation (page 527), speaking of the proceeding to enforce the payment of the tax upon land, and of its nature, says:

“ Proceedings of this nature are not usually proceedings against parties; nor, in the case of lands or interests in lands belonging to persons unknown, can they be. They are proceedings which have regard to the land itself, rather than to the owners of the land; and if the owners are named in the proceedings, and personal notice is provided .for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to them, than from any necessity that the case shall assume that form. As in all other cases of proceedings in rem, if the law makes provision for publication of notice in a form and manner reasonably calculated to bring the proceedings to the knowledge of the parties who exercise ordinaiy diligence in looking after their interests in the lands, it is all that can be required.”

Two years before the above work was written, Mr. Justice Cooley, in the State Tax-Law Cases, 54 Mich. 362, had said:

“The first objection made to the statute is that it makes no provision for personal service on resident owners of land. We think this objection without force; but, in view of the necessary length of the opinion, we pass it without discussion, for the reason that the respondent, by filing demurrer, has put itself in a position which precludes the raising it.”

In Pennoyer v. Neff, 95 U. S. 714, the distinction is clearly drawn between actions in which the notice must be personal and those in which it may be by substituted service, as by publication, and it is said: "Such service [substitutive] may answer in all actions which are substantially proceedings in rem.” This rule was also recognized and followed in Francis v. Grote, 14 Mo. App. 324; Eitel v. Foote, 39 Cal. 439; Chauncey v. Wass, 35 Minn. 23; Kansas City v. Duncan, 135 Mo. 583; Dousman v. City of St. Paul, 23 Minn. 398. See, also, Black, Tax Titles, § 166.

In Winona, etc., Land Co. v. Minnesota, 159 U. S. 537, the question of the sufficiency of the notice by publication under the Minnesota tax statute was under consideration. Mr. Justice Brewer said:

“All the privileges which are secured to the property owner in respect to the taxes of the current year are also secured to him in reference to those imposed under amended section 113. He is therefore notified and given an opportunity to be heard before his property is taken from him. Questions of this kind have been repeatedly before this court, and the rule in respect thereto often declared. That rule is that a law authorizing the imposition of a tax or assessment upon property according to its value does not infringe that provision of the fourteenth amendment to the Constitution which declares that no State shall deprive any person of property without due process of law, if the owner has an opportunity to question the validity or the amount of it either before that amount is determined or in subsequent proceedings for its collection. * * * That the notice is not personal, but by publication, is not sufficient to vitiate it. Where, as here, the statute prescribes the court in which and the time at which the various steps in the collection proceedings shall be taken, a notice by publication to all parties interested to appear and defend is suitable, and one that sufficiently answers the demand of due process of law,”— citing State Railroad Tax Cases, 92 U. S. 575, 609; Hagar v. Reclamation District, 111 U. S. 701, 710; Kentucky Railroad Tax Cases, 115 U. S. 321; Lent v. Tillson, 140 U. S. 316, 328; Pittsburgh, etc., R. Co. v. Backus, 154 U. S. 421.

The authorities might be multiplied upon this subject. The great weight of authority supports the ruling made in Muirhead v. Sands, 111 Mich. 487.

It is contended that, the statute having provided that the tax deed shall be conclusive evidence of title in the purchaser, the act is therefore void.

“Declaring tax titles conclusive is no new thing in legislation. * * * The legislature has repeatedly undertaken to give greater force to tax deeds than could legally be sanctioned. But the attempt, though unsuccessful, was never supposed to affect the whole tax law.” Judge Cooley in State Tax-Law Cases, 54 Mich. 367.

Whether the deeds in the present case are to be treated as conclusive or not is wholly unimportant. Even if that clause should be held unconstitutional, it would not render the whole act void. If the „court had jurisdiction to render the decree, no irregularities prior to the decree can now be set up to defeat the deeds.

3. Section 72 of the tax law provides: “The courts may, on application, put the purchaser in possession of the premises by writs of assistance.” It is the contention of counsel that this provision is unconstitutional, because it deprives the landowner of the right of trial by jury in an action of ejectment, and is in violation of section 27 of article 6 of the Constitution of this State, which provides that “the right of trial by jury shall remain.” The argument is that numerous questions of jurisdiction to enter the decree may arise, and these questions may rest upon facts to be passed upon, and which are still open to attack, affecting the validity of the title.

This is not a trial of the respondent’s right of possession, or of its title to the premises. ’ Those questions were involved in the issue upon the auditor, general’s petition. Upon the filing of the petition for the writ of assistance, the inquiries are:

(1) Whetner the court had jurisdiction to render the decree.

(2) Whether all the steps required by the statute have been taken in making the sale, filing the report of sale, etc.

(3) Whether the time for redemption has expired.

These are questions which may be determined by the chancery court in the tax proceedings. The provision of the statute for the issuance of a writ of assistance is the means provided by the legislature to enable the court to carry its decree into execution. The calling of a jury to determine the questions arising under this application would be but an idle ceremony. Where the court of chancery has power to decree, it has power to carry its decree into effectual execution. In cases of mortgage foreclosures it is the general rule that the purchaser of the lands sold under the decree is entitled to be put into possession by the court entering the decree. It was said in Ludlow v. Lansing, Hopk. Ch. 232, that “to transfer the title, and leave the purchaser to another suit to obtain possession from a party whose rights have been fully decided by this court, would be useless and vexatious circuity.” The object of a writ of assistance is to compel parties who are bound by a decree in foreclosure to give up the possession which the decree and sale under it estop them from further asserting. Ramsdell v. Maxwell, 32 Mich. 285. And matter set up in defense to a motion for a writ of assistance cannot be received to affect the decree determining the defendant’s rights, unless the matter goes to the jurisdiction of the court in rendering the decree. Howe v. Lemon, 47 Mich. 544; Muirhead v. Sands, supra.

We can see no distinction between a decree rendered in the foreclosure of a mortgage and the decree in a tax proceeding, as in the present case, so far as these questions are concerned. One deprives the party of the title and right to possession the same as the other; and the rules for the enforcement of a decree in a foreclosure proceeding are applicable to the enforcement of a decree in a tax proceeding. The respondent has had its day in court in this equitable proceeding. It is well settled in foreclosure proceedings that the purchaser of the premises under the decree cannot be compelled to resort to a court of law to obtain possession. In Kershaw v. Thompson, 4 Johns. Ch. 609, it appears that a decree of sale was made that did not contain any order that the purchaser be let into possession. An application for a writ of assistance was made, and the defense was specifically raised th _ the purchaser under the decree should be left to his remedy by ejectment. Mr. Chancellor Kent said:

“ If it was to be understood that, after a decree and sale of mortgaged premises, the mortgagor or other party to the suit, or, perhaps, those who have been let into the possession by the mortgagor pendente lite, could withhold the possession in defiance of the authority of this court, and compel the purchaser to resort to a court of law, I apprehend that the delay and expense and inconvenience of such a course of proceeding would greatly impair the value and diminish the results of sales under a decree. * * * It seems to be absurd to require the assistance of two distinct and separate jurisdictions for one and the same remedy, viz., the foreclosure and possession of “the forfeited pledge. * * * It may be safely laid down as a general rule that the power to apply the remedy is co-extensive with the jurisdiction over the subject-matter. A bill to foreclose the equity of redemption is a suit concerning the realty, and in rem; and the power that can dispose of the fee must control the possession.”

This is the rule of all the cases in foreclosure proceedings. Montgomery v. Tutt, 11 Cal. 190; Terrell v. Allison, 21 Wall. 289; Schenck v. Conover, 13 N. J. Eq. 220 (78 Am. Dec. 95); Stanley v. Sullivan, 71 Wis. 585 (5 Am. St. Rep. 245).

But counsel contend that our Constitution guarantees the right of trial by jury, and that, therefore, the respondent was entitled to a trial in an action of ejectment, where a jury might be called. This question was discussed by Mr! Justice Cooley in the State Tax-Law Cases, supra. It was there said:

“This case is a proceeding in equity instituted by the State to enforce against a parcel of land a lien which it’ . claims for taxes, and it is a different proceeding altogether from any which was known to our jurisprudence in 1850. It is a new proceeding, and therefore, if jury trial cannot fee had in it, that method of trial is not cut off, but is simply not given. There is nothing in the Constitution which renders it necessary to provide for jury trial in new cases. The constitutional provision is, ‘ The right of trial by jury shall remain,’ by which we are to understand merely that it is retained for the cases in which it existed before. * * * But it may be said, and is said, that, in the event of a sale taking place and of a deed being given in these proceedings, jury trial would be an idle ceremony, because the act makes the deed conclusive evidence of title in the purchaser. In response to this it may well be replied — and the experience of every practicing lawyer will confirm it- — -that jury trial in cases involving the validity of a tax deed was always an absurdity. * * * Such cases are therefore either tried by the court without a jury, or, if a jury is called, the court, by his charge, determines what the verdict should be, and the jury merely bow their heads in assent. Jury trial, therefore, as a great constitutional privilege in such cases, if not calculated to provoke a smile as an absurdity, is certainly without any claims upon courts for. the straining of a point for its protection. * * * It is often said that a court of chancery is not the proper tribunal for the trial of titles to land, and perhaps a notion has arisen from this that there is some constitutional impediment. If it were the fact, it would be immaterial in this case, for this, as we have already said more than once, is not a case in which titles are to be tried, or in which a title is even dis-puted. But the notion that the chancery court cannot try titles to land under proper legislative authority is quite baseless. My Brother Campbell showed this very satisfactorily in Hoffman v. Beard, 22 Mich. 59, 69. That case was a suit in partition, and the land was held adversely to the complainant.”

In Ward v. Farwell, 97 111. 593, the constitutionality of a statute allowing a receiver of an insurance company to file a bill to assess the stockholders was attacked because it did not provide for a trial by jury. The court cited the provision in regard to jury trial, as contained in the several constitutions that have been in force in Illinois, and said:

“The constitution of 1870, by which the question under consideration must be determined, guarantees the right of trial by a jury to all persons, whether natural or artificial, to the same extent and in the same manner it had been enjoyed previous to its adoption. The provisions of the previous constitutions above cited were never regarded, so far as we are advised, as being mandatory upon courts of equity, if, indeed, as having any application to proceedings in those courts. And it was, and still is, under the present constitution, the constant practice of those courts to decide, without the intervention of a jury, im-. portant questions of fact involving property rights, without at all consulting the wishes of the parties to the proceeding ; whereas, if the same questions were to arise in a common-law action, either of the parties to the suit would have the constitutional right to have them passed upon by a jury. And the right of a court of equity to pass upon questions of this kind does not depend upon the fact that the cause of action was one of equitable cognizance prior to the adoption of the existing constitution. It is sufficient if it is one in fact, without regard to when it became so or was first recognized by the courts as such. It is a fact well understood by all who are .familiar with the history of courts of equity that their jurisdiction, from the earliest times to the present, has been of a gradual and constant growth. Originally, the subjects over which they assumed jurisdiction were comparatively few; but, in process of time, they have gradually increased to an almost indefinite extent. Nor is it important whether this gradual growth in their jurisdiction is attributable to direct legislation, or to the enlarged views of the eminent chancellors who have presided over and shed so much luster upon those courts. It is sufficient if the subject-matter of the suit is one of equitable cognizance, without regard to when it first became so or was recognized as such; and in all such cases, except where some statute has otherwise expressly provided, the court may, if it thinks proper to do so, pass upon all questions of fact involved' in the controversy without the intervention of a jury. Of course it would not be competent for the legislature to defeat the right of trial by a jury in common-law cases by simply declaring they might be tried in courts of chancery, and that the proceedings therein should conform to the proceedings in chancery causes. This would simply be an attempted evasion of the provisions of the constitution. Where a new class of cases are, by legislative action, directed to be tried as chancery causes, it must appear that, when tested by the general principles of equity, they are of an equitable character, and can be more appropriately tried in a court of equity than in a court of law. And if of this character, when brought in a court of equity, they stand upon the same footing with other causes, and the court will have the right, as in other cases, to determine all questions of fact without submitting them to a jury. * * * The constitutional provisions we have cited were designed simply to secure the right of trial by jury in all tribunals exercising common-law jurisdiction as it had theretofore been enjoyed. It was not intended to confer the right in any class of cases where it had not previously existed; Nor was it intended to introduce it into special summary jurisdictions unknown to the common law, and which do not provide for that mode of trial,” — citing Johnson v. Railroad Co., 23 Ill. 203; Sedg. Stat. & Const. Law, 549; Ross v. Irving, 14 Ill. 171.

Some question is raised over the sufficiency of demand of possession of the premises. We think the testimony conclusively shows that a proper demand was made upon the proper agents of the respondent who were in possession of the premises. The deeds were produced and exhibited to the parties in possession, who refused to surrender.

The court below ordered the writ of assistance to issue, and, we think, very properly, under the showing made. That order mubt be affirmed, with costs.

The other Justices concurred.