text:
    LYON v. DADA.
    Wills—Undue Influence.
    the representation to a testatrix by her brother, who was a lawyer and the draftsman of her will, that the residuary clause in a former will, giving the property to her brothers in trust, was objectionable, because it threw a question upon the validity of the will, and that it would be better to leave the trust part out, and his concealment of the fact that the clause might be so drawn as to accomplish her purpose, with knowledge that she relied on him, constitute such undue influence as will avoid the will, which gave the residue to the brothers absolutely.
    Error to Berrien; Coolidge, J.
    Submitted November 11, 1896.
    Decided December 24, 1896.
    William R. Lyon, as executor, presented for probate the will of Laura E. Dada, deceased. Prom an order probating the will, Percy A. Dada, an infant, by his guardian, Warner M. Baldwin, appealed to the circuit court. The will was there set aside, and the executor brings error.
    Affirmed.

      Edward Bacon, for appellant.

      E. L. Hamilton and M. L. Howell, for appellee.
   Long, C. J.

Laura E. Dada died, leaving her last will and testament, which was executed March 1, 1890. By this will she gave to each of her five brothers |100, and, as stated in the will, “as a slight token of my appreciation of their kindness to me.” After the making of some other small bequests, the will provided by the eighth clause that—

“All the rest, residue, and remainder of my estate, both real and personal, I give, devise, and bequeath to my brothers, Marcus, Brainard, Newell, William Richards, aud Lewis E. Lyon equally, share and share alike, to have and to hold to themselves, their heirs and assigns, forever.”

Mrs. Dada had been married for several 'years to William B. Dada, who was living at the time of Mrs. Dada’s death. They had had one child, by the name of Arthur, who lived to attain his majority, had married, and had one child, Percy A. Dada, the contestant in this case. At the time of the making of this will, Arthur had died, leaving a widow and this child him surviving. The will was admitted to probate, and the decree of the probate court was appealed from by the guardian of the infant to the circuit court, where a contest was made, resulting in the setting aside of the will by the jury. The éxecutor of the will brings error.

Considerable contest was had on the trial below on the question of the incompetency of the testatrix, but before the close of the case that was withdrawn, and the whole case submitted to the jury by the trial court upon the question of the undue influence of William R. Lyon (who is the executor of said will), and of the fraud practiced by him upon the testatrix, by which it is claimed he procured the residuary clause to be written in the will in favor of his brothers and himself, and leaving out all provision for the husband, except a few tablespoons, knives and forks, a cake basket, and a bible, and also leaving out all provision for the grandchild, except the sum of $100, provided he lived to the age of 21 years.,

William R. Lyon was a practicing attorney. Prior to the execution of the will in question, which was drawn up by him, Mrs. Dada had made and executed two other wills, in which she had by residuary clauses made her brothers trustees for certain purposes in said clauses mentioned. On the trial in the court below it was the contention of the contestant that it was the intent of the testatrix to give the residue of her property in trust for certain purposes, and not absolutely, but that, by the fraud and undue influence of her brother William R. Lyon, the will was so drawn that he and his brothers took by its terms the residue absolutely, which amounted to the sum of nearly $2,500. This question was submitted to the jury as follows:

“If Mrs. Dada always intended to set apart by a residuary clause a certain portion of her property for charitable and humane purposes, and not to give the property so to be provided for absolutely to her brothers, then it becomes important, as bearing upon the question whether her brother William R. Lyon overpersuaded or induced her to sign the last will by artful or- fraudulent suggestions against her own will and desires. If suggestions were made by Mr. Lyon at the time of making the last will, to his sister, that he doubted whether the residuary clauses in the two former wills were valid, and if at the same time he fraudulently concealed from her a,ny method by which she might legally draw up a residuary clause providing for the control and disposition of trust funds contemplated by the former wills, and artfully and fraudulently induced her to sign a will containing a residuary clause which gave the major part of her property absolutely to her brothers, she not understanding that she could make such trust clause- for humane and charitable purposes; and if you find in connection therewith that the residuary clause was not her free act and deed, but the act and deed of William R. Lyon, and that William R. Lyon then fraudulently drew up such residuary clause, and fraudulently persuaded her to sign such will,—then such will, you can find, was not the last will and testament of Mrs. Laura Dada. * * * If you find' that Mr. Lyon did not fraudulently induce Mrs. Dada to sign the will, or insert a residuary clause fraudulently; that he read it to her carefully, and she fully understood it, and in no way was imposed upon, or fraudulently dealt with, and that such will was her free act and deed,—then the will was hers, and her last will and testament. If you find that Mrs. Dada wished and intended to leave a part of her property for any charitable or humane purpose, and that it should be expressed in her will, and so stated to her brother at the time of the making of the last will, then her brother should have suggested to her that he could draw up such a clause as would answer the purpose, and be valid. I do not, say it was his legal duty to do it, but I say that would be the natural duty and suggestion of a confidential adviser. But if she did not express or indicate any such wish or intent, and Mr. Lyon drew up the will just as she had intended and indicated to him, or if the will was accepted by her freely, after he drew it, as her own act and deed, without fraud or undue influence on his part, then the will was hers, and not his.”

The court further charged:

“It appears in the case that Mrs. Dada, as well as her husband, had incurred a great dislike towards the mother of Percy and her family. It also appears that Mrs. Dada was desirous of keeping her property from the control and management of Percy’s mother, and desirous of making a will so as to carry out her desires in this respect. Now, these facts go to show the reason why this will was drawn up as it was. If you find that Mrs. Dada preferred to have the property go to her brothers, in view of these facts, rather than to her grandchild, because she feared that the property, in case she devised it to the grandchild, would go into the control of the mother; and if you find that she made this will intelligently for these reasons, and not because she was unduly influenced or imposed upon in any way,—then you can find that this was the last will and testament of Mrs. Dada. If Mrs. Dada, for some time previous to the making of the last will, and up to that time, had a love and affection towards her grandson, and wished to devise a larger portion of her property than $100 for his benefit, and was prevented from so doing only by a belief that she could not legally make a will that would prevent her property from going to the control and benefit of the child’s mother, and that this grandchild therefore would not receive any benefit from her disposition of the property as she wished to devise it, then she was laboring under a mistake of law. If, under such circumstances, she communicated to her brother William R. Lyon, her confidential adviser, the fact of her desire to devise to her grandchild, and the further fact that she believed that she could not devise her property to the benefit of her grandchild so as to keep it from the control and benefit of the mother of such child, then it became the duty of her confidential adviser, William R. Lyon, to acquaint her with her mistake, and suggest the drawing of a will that would obviate the legal difficulties presented, and yet carry out the wishes of Mrs. Dada. * * * But if, in this case, Mr. Lyon carried out the wishes of Mrs. Dada so far as he understood them, and so far as she indicated, and it became apparent to him just what her wishes were, and he did not attempt to impose upon her, or to exert any fraudulent influence upon her, did not deceive or attempt to carry out any cunning and well-devised scheme of fraud, then there was no undue influence and no fraud perpetrated. In such case you will find that this will was the last will and testament of Mrs. Dada.”

The contention of the proponent of the will is that there was no evidence showing or tending to show that William R. Lyon unduly influenced the testatrix in making the 'will she did, or that he perpetrated any fraud upon her to induce her to make himself and his brothers the residuary legatees in the will. We think the testimony, as gathered from the record, is abundant to show that the making of the residuary clause was brought about directly by the influence of William R. Lyon, and that he fraudulently concealed from the testatrix the fact that he could draw a will which would carry out her desires and her intent to place the property in the hands of her brothers as trustees merely. William R. Lyon himself testified in reference to the drawing of the two former wills, and also of the last will. He was asked:

‘ ‘ Did she tell you anything else at any time about that residuary clause ?

“A. No, except when the last will was drawn. When the last will was drawn, I intimated to her that that clause was perhaps a little objectionable,—perhaps it would throw a question as to the validity of the will, and it would be better to leave that trust part out.

“Q. Give it to you absolutely ?

“A. Yes, sir, as I drew it, and she said all right.

“ Q. You were to dispose of the property just the same, were you ?

“A. She didn’t say anything about that.

“Q. Did you tell her, under the first two wills the property-was held by you in trust, and you had to discharge it, and under the last will it belonged to you absolutely ?

“A. I didn’t discuss the question at all. I told her that there would be a question as to that will, leaving the clause in. It would be better to put it in as I drew it in the last will. She said all right. She understood it •perfectly, and acquiesced.

“Q. She gives you $100 apiece for love and kindness, and then gives you the rest of it ?

“A. The will shows.

Q. She understood that she was giving it to you absolutely ?

“ A. It shows so. I have given you the conversation.

Q. Did you, in drawing these wills, inform your sister that instead of that will conveying the property to you to give to certain charities, in your discretion, it gave you the right to use it to support your own families ?

“A. I did not.

Q. Did she know it ?

“A. We did not discuss that question at all.”

We need not set out any further of his testimony. We think the charge of the court was fully sustained by the evidence. It appears that the testatrix had the most implicit confidence in the integrity of her brother, as well as in his ability as a lawyer, to guide and direct her in the disposition of her property. It is evident that she intended to make these brothers trustees under the residuary clause for certain charitable purposes, and we have no doubt that it was her intent to provide something further for her grandchild. From the affection she exhibited towards him in the last days .of her life, the fact that she did not make more provision for him in her will can be accounted for only by the influence which her brother seems, to have had over her, and the craft displayed by him in changing the residuary clause so as to make an absolute gift to himself and his brothers of the whole of the estate. He was bound, not only morally,' but legally, to advise her that a residuary clause could be drawn which would carry into effect her wishes and desires, and not to take advantage of his relation to her as her confidential adviser, and thereby acquire to himself a large share of her property. Tompkins v. Hollister, 60 Mich. 479, and cases there cited. The questions were properly submitted to the jury under the charge of the court.

The judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    PEOPLE v. GRANT.
    1. Criminal Law—Witnesses—Duty oe Prosecution.
    The prosecuting attorney is not obliged to place upon the stand one whose name is indorsed on the information, unless such person is a res gesta witness; his duty in the premises being fully performed by producing the person in court, and giving the respondent an opportunity to examine him.
    2. Trial—Remarks oe Counsel.
    A conviction will not be reversed merely because of improper language by the prosecutor, where the court immediately stated, in the presence of the jury, that the language should not have been used, and it was not of a character to work prejudice to the jury, in view of the statement by the court.
    Exceptions before judgment from Lenawee; Lane, J.
    Submitted November 17, 1896.
    Decided December 24, 1896.
    Charles G. Grant was convicted of an indecent assault upon a female child under the age of 14 years.
    Affirmed.

      Westerman & Westerman, for appellant.

      John E. Bird, Prosecuting Attorney, for the people.
   Montgomery, J.

Respondent was convicted of an indecent assault upon a female child under the age of 14 years. The name of the mother of the girl claimed to have been assaulted^appeared upon the information, and respondent, on the trial, after the people had rested their case, asked to have her placed upon the stand. The witness' was present in court, and the court stated to the prosecutor: “You are not called upon to examine her; but, if the defense desires her, I think the prosecution should have her here, so she can be produced.” We think no error was committed in declining to require the prosecution to swear the witness. Counsel refer to the case of People v. Deitz, 86 Mich. 430; but in that case the witness was a res gestee witness. See Wellar v. People, 30 Mich. 22; People v. Kindra, 102 Mich. 150; People v. Wright, 90 Mich. 362.

Complaint is made of language employed by the prosecutor, which need not be set out at length. It is sufficient that the court immediately stated, in the presence of the jury, that the language should not have been used, and it was not of such a nature as, in view of this statement of the court, we think, worked any prejudice with the jury. See People v. Gosch, 82 Mich. 22; People v. Hess, 85 Mich. 128; People v. Case, 105 Mich. 92.

The conviction will be affirmed.

The other Justices concurred.


text:
    CARROLL v. McKALE.
    Principal and Agent—Replevin—Title to Support.
    An agent for the exchange of property, who' fraudulently retains the goods received in exchange, and turns over to his principal other goods of an inferior quality, the principal in no way acquiescing therein, cannot maintain replevin against one who levies upon the goods retained by him under an execution against the principal, although the latter has failed to tender back the goods which-he has received.
    Error to Ingham; Person, J.
    Submitted November 19, 1896.
    Decided December 24, 1896.
    Replevin by Joseph E. Carroll against William H. McKale. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Arthur D. Prosser, for appellant.

      Samuel L. Kilbourne, for appellee.
   Montgomery, J.

This is an action in replevin for a Columbia bicycle, taken frQm possession of defendant, who, as deputy sheriff, seized the same on a writ of execution in favor of Fred Haines, and running against the property of one Smoyer. The issue was whether the property was the property of Smoyer at the time of its seizure, or the property of plaintiff. The circuit judge directed a verdict for plaintiff, and the question is whether there was any testimony tending to support the title of Smoyer.

There was testimony on the part of the defendant which tended to show that Smoyer was the owner of an equity in a piece of property in the city of Lansing, which was considered worth $130. Plaintiff is a real-estate agent. Smoyer employed him to make a trade of his equity in the property referred to for a Columbia bicycle, and agreed with plaintiff that, in case he effected a trade, he (Smoyer) wonld pay plaintiff by drawing him six perch of stone. Plaintiff traded the equity for the Columbia bicycle. Instead of turning over to Smoyer the Columbia bicycle which he received, and which, of course, belonged to Smoyer, he sent him a Crescent wheel, claiming it was the wheel he received in trade for Smoyer’s equity. On the trial, it appeared that this Crescent wheel had not been returned to plaintiff, Smoyer testifying that, before he had an opportunity to return it, it Was seized on an execution against himself by the defendant in this case. But defendant testified that he had never considered that he had a levy on the Crescent wheel. And, also, defendant offered testimony tending to show that the Crescent bicycle was worth very little. The theory upon which the verdict was directed appears to have been that Smoyer, by retaining the Crescent wheel, estopped himself from claiming the Columbia.

This case is a very peculiar one. It does appear on the record that, after the commencement of the replevin suit in this case, the Crescent wheel was tendered to the plaintiff. But was this necessary in the first instance? Under the theory of the defendant, Mr. Smoyer became the absolute owner of the Columbia bicycle the moment it was received into the possession of plaintiff. How has he been divested of that ownership? Does it lie with plaintiff to say: “ True, the property was yours absolutely. By a trick, I placed in your possession a piece of property which was not yours. Thereby you have become the conditional owner of the property in your possession, and I am the conditional owner of your property, and this without your knowledge or consent.” We are cited to no case which sustains this ruling. It is not like a case where there is a contract by which one vests a title in another, or a right to possession, and which contract may be avoided for fraud. In this case there was never a purpose, for one moment, to vest plaintiff with the title to this Columbia bicycle. If plaintiff had gone to Smoyer’s premises, taken a horse from his stable, and left another horse there in his stead, we do not think Smoyer would be bound to tender to plaintiff the horse left in his possession before bringing an action to recover his own property.

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

The other Justices concurred.


author: Grant, J.

text:
    MILES v. McNAUGHTON.
    1 Buildings—When Part op Realty—Evidence.
    An intention on the part of a claimant of land, in constructing a building thereon, so to construct it as to permit of its removal as personalty in case his title to the land should be defeated, is immaterial in determining the character of the building, as a part of the realty or otherwise, in a subsequent controversy between adverse claimants under the same chain of title.
    2. Same—Mortgages.
    A building so constructed as to be a part of the realty, and which is treated as such by the parties to a real-estate mortgage, will not be deemed to have been severed from the realty, and made personalty, as against the mortgagee, in favor of one who accepts a subsequent mortgage of the premises described in the first mortgage, “together with the building and its appurtenances,” merely because the first mortgagee, to make sure of his security, takes, in addition to the real-estate mortgage, a chattel mortgage covering the building.
    3. Mortgages—Assignment—Estoppel.
    The assignee of a mortgage which is in form a mortgage on real estate, and which was recorded as such by the original mortgagee, instead of being filed as a chattel mortgage, who treats it as a real-estate mortgage in proceedings for foreclosure, is afterwards estopped from asserting the contrary.

      Appeal from Chippewa; Steere, J.
    Submitted November 13, 1896.
    Decided December 24, 1896.
    Bill by Lavinia J. Miles against John McNaughton and others to quiet title. From a decree dismissing the bill, complainant appeals.
    Reversed.
    On March 15, 1888, John H. Fielding and Michael F. Fielding obtained title by warranty deed to the following described land:
    ‘ ‘ That certain piece or parcel of land situate and being in the village of Sault Ste. Marie, county of Chippewa, Slate of Michigan, and described as follows, to wit: All that part of private land claim number 135, bounded on the north by Franklin street, on the east by Prospect street, on the south by a line drawn parallel with Spruce street and 100 feet therefrom, and on the west by a lot .formerly owned by Joseph H. Steere, being lot No. 7; all being the same property bought by William O Johnston from William F. Purdy and wife by deed recorded April 25, 1887, in Liber 19 of Deeds, on page 220.”
    The Fieldings purchased this land - for the purpose of erecting thereon an opera house, which they erected the same year. January 31, 1889, the Fieldings, by warranty deed, conveyed this land to defendant Clara L. Shute. May 2, 1890, Clara L. Shute executed to complainant, who then and ever since has lived in Cleveland, Ohio, a real-estate mortgage upon this property, the consideration of which was $4,000. The mortgage contained the usual clause conveying the tenements, hereditaments, and appurtenances. At the same time, and for the same consideration, she executed to complainant a chattel mortgage, which covered ‘ ‘the building known as the ‘Soo Opera House,’ and the contents contained therein,” specifically describing them. It also stated that it was “collateral to a real-estate mortgage of same date by and between said parties.” January 15,1891, Clara L. Shute executed another real-estate mortgage on this same property to W. J. Bell, for the consideration of $1,000. The description in this mortgage was the same as in the other, with the addition, “together with the opera house and the appurtenances therewith.” This mortgage was assigned to defendant McNaughton June 22, 1891. February 13, 1891, Clara L. Shute executed a chattel mortgage to the defendant Harrietta H. Shute upon “all personal property, goods, and chattels contained in the Soo Opera House,” and on the following day conveyed to her the real - estate. August 15, 1894, Clara L. executed to Harrietta a bill of sale of the property described in the chattel mortgage. Complainant commenced a foreclosure suit upon her real-estate mortgage, July 6,1893. Decree was duly entered, property sold, and the sale became absolute October 3, 1894. Soon after the sale became absolute, complainant, through her agent, took possession of the property, and has remained in possession ever since. Defendant McNaughton commenced foreclosure proceedings upon the Bell mortgage September 19, 1893. Decree was duly entered, and the sale made March 18, 1895. At the time of this sale, title under complainant’s sale had become perfect. McNaughton, at the sale under his decree, requested the commissioner to sell the “opera house and appurtenance's,” but not the land. The sale was so made. McNaughton bid the property in for $800, and the sale was confirmed. Complainant, ascertaining the claims of McNaughton and Harrietta H. Shute, filed this bill to remove a cloud from title. Decree was entered dismissing her bill.

      Horace M. Oren (Moores & Goff, of counsel), for complainant.

      Holden & Steinlein and McDonald & Chapman, for defendant McNaughton.
   Grant, J.

(after stating the facts). (1) Complainant claims that the opera house and its appurtenances were a part of the realty, and that she obtained absolute title thereto by virtue of her foreclosure proceedings-. (2) Defendant McNaughton claims that the opera house was personal property, and that he obtained title to it and its appurtenances by virtue of his foreclosure proceedings and sale. (3) Defendant Harrietta H. Shute claims title to the chairs, curtains, and stage fixings, and other property, by virtue of her chattel mortgage.

As between complainant and defendant McNaughton, two questions are presented:

1. Was the opera house personalty or part of the realty ?

2. If personalty, have the defendant McNaughton and his assignor, Bell, treated the opera house as realty, so as to now estop them from asserting that it is personalty ?

The opera house is 120 feet long, 49 feet wide, and 24 to 35 feet high, built of wood, close to the ground, on sills, the roof supported by the sides and iron columns .running from the basement to the roof. The base of each column rests upon a stone and wood foundation. Excavations were made in the ground for the stage and for the furnace. The furnace was put in place, and the building connected with the sewers of the city. It is urged by the defendant McNaughton that the Eieldings constructed this building without a solid stone foundation because there was a cloud upon their title, and they desired to so construct it" that, if their own title failed, they might remove the building as personal property. This cloud arose from the fact that some land speculators pretended to have a title to a large tract of land in the center of the city of Sault Ste. Marie, including the land in question, by reason of some Porterfield scrip, with which they claimed to have located this land. That cloud was removed by the decision of the secretary of the interior March 31, 1890, as was known to Mr. Colwell, complainant’s agent and draftsman, when he drew the real-estate and chattel mortgages of complainant. While there is some evidence to sustain the claim of McNaughton that the Pieldings intended to construct the building with a view to attempt its removal in case their title to the land was defeated, that question is of no importance in this controversy. Their acts and intentions would have no binding force upon the real owner. If the speculators had maintained their title, the Fieldings could not have removed their building if it was a part of the realty, nor would their intention have been conclusive. Under McNaughton’s own theory and evidence, the building was not to be treated as personalty if the Fieldings maintained the title to the land. To put it in the strongest light for McNaughton, it is equally clear that the Fieldings intended no severance, but that the building should be permanent, and a part of the realty, if their title to the land was good, as it is that they intended, if possible, to make it personalty if their title failed. We therefore need not consider the question which would be presented if the controversy were between the Fieldings and persons whose title had been determined to be paramount to theirs. This is apparent for another reason. Clara L. Shute made written application to Mr. Colwell, complainant’s agent, for this loan. Neither in her written application nor in any conversation between her and Mr. Col-well was the claim made, or even referred to, that this property was personalty. It was so constructed as to be a part of the realty. Mr. Colwell did not take the chattel mortgage for his client because he considered it personalty, but, in his own language, “to be sure and have security on everything.” The inclusion of the building in the chattel mortgage did not ipso facto effect a severance, or, under the explanation given by Mr. Col-well, amount to one. Mr. McNaughton stands in the same position that Mr. Bell occupied. Mr. Bell knew the situation perfectly. He did not want, and declined to take, a chattel mortgage, and insisted upon a real-estate mortgage which should include the opera house. He recorded his mortgage as a real-estate mortgage; he did not file it as a chattel mortgage. He knew that complainant’s security covered the entire property. His own mortgage, which specifically mentioned the opera house, stated that it was subject to a first mortgage given to the complainant. McNaughton foreclosed his mortgage as a real-estate mortgage. In his bill he asserts that “the property was largely valuable by reason of the opera house and its appurtenances situate thereon, and that there is a prior mortgage on said property for $4,000,” describing complainant’s mortgage. The decree and order of sale were the usual ones in the foreclosure of real-estate mortgages, and it does not appear that there was any thought on the part of McNaughton to insist that he had a chattel mortgage upon the building until the sale. Having thus treated the property as real estate, he will not now be permitted to assert to the contrary.

No brief has been filed on behalf of the defendant Harrietta H. Shute. It is not necessary to determine in this suit what contents of the opera house are fixtures, and what are not. The law furnishes an ample remedy to try that question, and it appears from the record that Mrs. Shute already has planted a suit for that purpose.

The decree of the court below is reversed, and decree will be entered in this court in accordance with this opinion, with the costs of both courts to the complainant.

The other Justices concurred.


author: Moore, J.

text:
    McCUAIG v. CITY SAVINGS BANK.
    1. Assignments for Benefit of Creditors—Filing of Papers— Copies.
    The filing with the county clerk of a document purporting to be a “copy” of an assignment for the benefit of creditors is not a compliance with 3 How. Stat. § 8739, requiring the assignment itself, or a “duplicate” thereof, to be so filed.
    2. Same—Statutory Provisions—Effect of Noncomplianoe.
    The failure of an assignee for the benefit of creditors to file with the county clerk the original assignment or a duplicate thereof, an inventory of the assigned property, a list of creditors of the assignor, and a bond for faithful performance, duly approved by the clerk, within 10 days after the making of. the assignment, as required by 3 How. Stat. § 8739, renders the proceedings invalid.
    3. Same—Bonds—Surety Companies.
    The filing of a bond by an assignee for the benefit of creditors, signed by a corporation of another State as surety, without evidence that such corporation has been authorized to become surety on undertakings, is not such a compliance with the statute as to qualify the assignee to sue for assets of his assignor.
    Error to Wayne; Donovan, J.
    Submitted November 13, 1896.
    Decided December 24, 1896.

      Assumpsit by James F. McCuaig, assignee of George Beasley & Company for benefit of creditors, against the City Savings Bank, to recover the amount of a general deposit. From a judgment for' defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      S. E. Engle, for appellant.

      Bowen, Douglas & Whiting, for appellee.
   Moore, J.

The plaintiff, as assignee, sued the defendant to recover deposits, amounting to $270, deposited with it by Beasley & Co. Defendant claimed by way of defense:

1. That plaintiff was not legally the assignee of Beasley & Co.

2. That, if plaintiff was the assignee, defendant was entitled to retain ont of the deposit- enough to pay two notes, amounting to about $250, which it held, given by Beasley & Co., which matured after the assignment was made and before suit was brought.

The circuit judge found the proceedings relating to the assignment fatally defective, and directed a verdict for defendant.

The record shows that the assignment was made August 31, 1895; that on the same day a copy of said assignment' was filed with the county clerk; that neither the original assignment nor a duplicate of it has ever been filed with the clerk. It also discloses that, after office hours on September 10th, the assignee and his attorney visited the county clerk’s office with an inventory of assets and a list of creditors that were not sworn to, and with a bond, the surety to which was the Fidelity & Deposit Company of Baltimore, Md. They found a deputy clerk in the office, who had returned to the office for his bicycle. A request was made of this deputy that he approve the bond and file the papers. He declined to do so, on the ground that it was something that he knew nothing about; that it came within the duty of Mr. Christian, another deputy, or the clerk himself. The papers were left in the clerk’s office. The next morning the assignee and his attorney again appeared at the clerk’s office. The assignee wanted to verify the inventory and list of creditors. He was told that this must be done by the assignor, who was summoned, and, after the papers were verified, a filing was indorsed on one of them by the clerk, and the bond was detached and placed in the vault. There was no approval of the bond, or no filing of it, indorsed upon it, and there never has been, though the clerk testified that he regarded the bond as good, and would have indorsed it with his approval on the 11th day of September if his attention had been called to it. Counsel for plaintiff asked that he be allowed at the trial to indorse his approval upon the bond, but the circuit judge declined to let him do so. No proof of the authority of the company to become surety on the bond was made. See Act No. 266, Pub. Acts 1895. Objection was-made to the admission of these papers because they did not comply with the provisions of 3 How. Stat. § 8739; 2 How. Stat. § 8740.

A filing of a copy of the assignment, instead of an original or a duplicate, was not a compliance with the statute. A copy is a transcript of an original writing (Bouv. Law Diet.), and may be made by anybody. A copy cannot be given in evidence unless proof is made that the original is lost, or is in the power of the opposite party. While a duplicate is the double of anything. Bouv. Law Diet. It is either one of the two originals, both of which are executed by the same party or parties, and may be offered in evidence. It is no part of the duty of the clerk to file a copy of an assignment, but he could not refuse to file an original or a duplicate. The creditors are entitled to know that an assignment has in fact been made. That they cannot ascertain from inspecting what purports to be a copy. The failure to file an inventory and list of creditors within 10 days with the clerk is not a compliance with the statute. The failure to file with the clerk a bond, approved by him, within 10 days, is not a compliance Avith the statute. Munson v. Ellis, 58 Mich. 331; Beard v. Clippert, 63 Mich. 719; Springett v. Colerick, 67 Mich. 367; Abbott v. Chaffee, 83 Mich. 256. The surety was the Fidelity & Deposit Company of Baltimore. There is nothing in the record to show that this company was authorized to become a surety on the bond. The defendant is a creditor, which seeks to apply funds in its possession to the payment of a debt owed it by the assignors of the plaintiff. The creditor has a right to insist that, before it can be deprived of this fund, the plaintiff shall show a substantial compliance with the statute. It will not be necessary to discuss the other questions raised by the record.

Judgment is affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    BERNDT v. IONIA CIRCUIT JUDGE.
    Replevin—Costs in Circuit Court—When Awarded Depend-ant.
    Under 2 How. Stat. § 8964, subd. 4, providing that a prevailing plaintiff shall recover his costs “in all actions of replevin, * * * in all cases where the court has exclusive or concurrent jurisdiction,” and section 8967, providing that the defendant shall have judgment for costs in oases where the plaintiff’s judgment is insufficient to entitle him to costs, the defendant in an action of replevin instituted in the circuit court is entitled to his costs where the value of the property recovered by the plaintiff is less than §>100.

      Mandamus by William Bérndt and another to compel Frank D. M. Davis, circuit judge of Ionia county, to set aside a judgment for costs.
    Submitted November 24, 1896.
    Denied December 24, 1896.

      Vernon H. Smith, for relators.

      Royal A. Hawley, for respondent.
   Long, C. J.

An action of replevin was commenced by the relators in the Ionia circuit to recover possession of certain property described in the affidavit and writ as:

“About 500 bushels of ears of corn in crib; about 50 bushels of ears of corn in field; about 8 acres of corn in shock, not husked, including the corn stalks; about 9 acres of corn stalks; 125 bushels of potatoes; 1£ tons of hay; 12 hogs; 1 fanning mill; 1 pair bob sleighs; 1 f ourtined pitchfork; and one three-tined pitchfork.”

The property was taken under the writ, and appraised at $241.60. The cause was tried before a jury, who found that the plaintiffs were entitled to recover the fanning mill and the bob sleighs, the appraised value of which amounted to $22 only. The jury also found that the plaintiffs were not entitled to recover the balance of the property. The court below, under the findings of the jury, gave judgment in favor of the defendant for costs. Mandamus is asked to set aside that judgment, and to enter judgment in favor of the plaintiffs.

We think the court below was correct. 2 How. Stat. § 8964, provides:'

“In the following cases, if the plaintiff recover judgment by default, upon confession, verdict, demurrer, or otherwise, in any action or proceeding at law, he shall recover his costs: * * * Fourth. In all actions of replevin, and in all actions for the recovery of any debt or damages, or for the recovery of penalties or forfeitures, in all cases where the court has exclusive or concurrent jurisdiction.”

Section 8967, 2 How. Stat., provides:

“In all actions and proceedings in which the plaintiff would be entitled to costs upon a judgment rendered in his favor, if, after the appearance of the defendant, such plaintiff be non-suited, discontinue his suit, be nonprossed, or judgment pass against him on verdict, .demurrer, or otherwise, or in case a plaintiff recover judgment, but not enough to entitle him to costs, the*defendant shall have judgment to recover against such plaintiff his full costs, which shall have the like effect as all other judgments.”

It has been several times held in this court, under subdivision 4 of section 8964 above quoted, that if the amount of the plaintiff’s claim is less than $100, as established upon the trial, defendant is entitled to costs. Strong v. Daniels, 3 Mich. 466; Inkster v. Carver, 16 Mich. 484; Dikeman v. Harrison, 38 Mich. 617; Stortz v. Ingham Circuit Judge, Id. 243. Counsel for relators, however, relies upon Merrill v. Butler, 18 Mich. 294. That decision was based upon subdivision 4 as it stood prior to the amendment of 1871, and read: “In all actions for the recovery of any debt or damages, or for the recovery of penalties or forfeitures, in cases where such actions are not cognizable before a justice of the peace, and in all actions of replevin.” The amendment of 1871 (Act No. 122, Laws 1871) was undoubtedly passed in view of the decision in Merrill v. Butler, and for the purpose of granting to defendants in actions of replevin the costs where the plaintiffs failed to recover more than $100, as in such cases justices of the peace have exclusive jurisdiction.

Some question is raised by counsel for relators that there was nothing upon the record showing the value of the property. The appraised value was shown upon the record, and the respondent returns that, at the time of entry of judgment for costs in favor of defendant, it was conceded by counsel for relators that the value of the property recovered amounted to only $22. Since the passage of the amendment, it has been twice held that where the plaintiff recovered in replevin less than $100, the cause being commenced in the circuit court, the defendant was entitled to costs. Kittridge v. Miller, 45 Mich. 478; Kirby Carpenter Co, v. Trombley, 101 Mich. 447.

The writ must be denied.

The other Justices concurred.


author: Per Curiam.

text:
    OSBORN v. COMMON COUNCIL OF DETROIT.

    Municipal Corporations—Officers and Employes—Power of Removal.
    A special clerk appointed, by the receiver of taxes of the city of Detroit, and confirmed by the common council, pursuant to an ordinance providing that, when assistants shall be required, the receiver shall apply to the council therefor, and such assistants, when appointed, shall receive such compensation as the council shall by resolution prescribe, holds office at the pleasure of the receiver, there being no charter provision vesting in the council the power of removal as to employés so appointed.

      Certiorari to Wayne; Donovan, J.
    Submitted November 24,1896.
    Decided December 24, 1896.

      Mandamus by William P. Osborn against the common council of the city of Detroit to compel the payment to relator of a balance alleged to be due him for salary as special assessment clerk in the office of the receiver of taxes. From an order granting the writ, respondent brings certiorari.

    Reversed.

      John J. Speed, for relator.

      Charles Flowers, for respondent.

       Rehearing denied June 18, 1897.

   Per Curiam.

The relator, William P. Osborn, was employed as special assessment clerk in the office of the receiver of taxes of Detroit. The office of receiver is filled by appointment by the common council, on the nomination of the mayor. The charter is silent as to what employés shall be employed in that office, and as to the method of their appointment and discharge. The common council passed an ordinance relative to the clerks and assistants, as follows:

“When assistants are necessary for the proper dispatch of the business in his [receiver’s] office, he shall apply to the common council for the same, and such assistants, when appointed, shall receive such compensation as the common council shall by resolution prescribe.”

Undoubtedly it is in the power of the council to determine what employes shall be there employed, and to fix their compensation. Among such employés is one called the “special assessment clerk.” September 3, 1895, the receiver sent a communication to the council, appointing Mr. Osborn, and requesting his confirmation. He was confirmed, and filled the position until the 29th day of February, 1896, when the receiver discharged him, informing him that his services, were no longer required. After the close of the year he presented a petition to the circuit court for the county of Wayne, against the common council, asking for a writ of mandamus to compel the payment of the balance of the year’s salary, claiming that his employment was by the year. His contention is that his discharge was illegal, insisting that the common council alone had the power of removal. We find no express provision of the charter placing in the council the power of removal of the employés of the receiver of taxes, and the ordinance above quoted does not confer it. The circuit court should have refused the writ.

Judgment is reversed, and an order dismissing the writ of mandamus will be entered, in accordance with this opinion.


text:
    PEOPLE v. HOLMES.
    1. Homicide—Degree of Crime—Questions for Jury.
    Whether a homicide which the evidence tends to show was committed by the accused, who was a small man of nervous temperament, with a revolver which he procured from his room in his boarding house immediately after having been set upon and maltreated by the deceased, who was a fellow boarder and a man of large size and great strength, was prompted by a wicked and malignant heart, and, if so, whether there was such deliberation as to constitute the offense murder in the first degree, or whether it was committed in the heat of passion caused, by reasonable provocation, and before due time had elapsed for reason to resume control, so as to reduce the offense to manslaughter, are questions of fact for the juTy.
    2. Same—Premeditation—Instructions.
    An instruction, in such case, that the accused would be guilty of murder in the first degree, if he had time after the assault to form a conscious design of killing, is erroneous, in that it eliminates from the consideration of the jury the question whether the crime might not have been committed under the influence of passion for which there was a reasonable provocation, in which case, even though there was an intention to kill, the crime would be only manslaughter.
    3. Same—Evidence—Threats.
    Evidence of threats, though ostensibly made in jest by the accused to the deceased, is admissible upon the trial, and may be construed by the jury, in the light of subsequent events, as bearing upon the question of malice.
    4. Criminal Law—Trial—Instructions.
    The rule that an instruction, though erroneous in itself, is cured by a correct statement of the law by the charge as a whole, will not be applied to a prosecution for murder, unless it clearly appears that such erroneous instruction could not have prejudiced the accused.
    5. Homicide—Insanity as Defense.
    In a prosecution for murder, where the defense interposed is that the homicide was committed after an assault by the deceased upon the accused of so aggravated a nature as to render the accused temporarily insane, the testimony offered in support of the defense should be treated with the same respect as that offered to establish any other fact, and the use of language in the charge to the jury which is well calculated to impress upon them the view that the defense of insanity is unworthy of consideration is reversible error.
    6. Trial—Reading Law Reports to Jury.
    It is error for the trial court to read to the jury an extract from an opinion rendered in the Supreme Court in a case differing in its facts from the case at issue; especially if the language quoted is argumentative.
    7. Witnesses—Expert Testimony.
    Although a witness called as an expert on the subject of insanity may base his opinion upon his observation and experience in cases similar to the one at bar, he cannot, on his direct examination, be questioned concerning the particular cases.
    8. Same.
    While one expert may testify from knowledge as to the qualifications and authority of another expert, his opinion in regard thereto, based upon general reputation, is inadmissible.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted November 18, 1896.
    Decided December 24, 1896.
    Joseph S. H. Holmes was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.
    Reversed.

      Thomas F. McQarry, George E. Nichols, and Jacob L. McPeek, for appellant.

      Alfred Wolcott, Prosecuting Attorney, and Charles E. Ward, Assistant Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of murder in the first degree. A brief statement of the circumstances of the tragedy is as follows: Respondent and the deceased, Albert Johnson, were both boarders at the boarding house of Mrs. Posner, in the city of Grand' Rapids. Both were about the age of 27 years at the time of the tragedy. The deceased was a powerful man, weighing about 220 pounds, and respondent is rather frail and delicate, of a nervous temperament, and weighed, at the time of the tragedy, about 128 pounds. On the 12th of January, 1896, which was Sunday, Holmes sat in the sitting room of the boarding house, which was located in what could be termed the basement, the house being built upon ground which rises rapidly up from the street, the first story being level with the street, while the second story is more nearly on a level with the ground back a few feet from the street. Johnson came in from his work, entered the dining room from the outside door, and passed into the sitting room, where Holmes was reading. As he came in, he called out “ Dinner! ” and as he approached Holmes he said in a good-natured manner, “Hello, Birdie!” and Holmes replied in apparent good nature, “Hello, Fatty!” Johnson passed by Holmes, and in returning thrust his fingers, which were cold, down the back of Holmes’ neck. Holmes was annoyed, and said “Stop! ” or words to that effect, and, the fingers not being removed immediately, he jumped up from his chair, and struck Johnson with his fist somewhere about the chest,— a blow which probably inflicted no pain or injury. Johnson said, “Do you mean it?” Holmes replied, “Yes, I do.” Johnson then said, “Wait until I get my coat off,” whereupon he took off his overcoat, dropped it upon the floor, advanced a few steps towards Holmes, took him by the throat, backed him up against the wall of the house, and held him there for a few seconds at arm’s length, Holmes meanwhile making no struggle or show of resistance. Johnson then released Holmes, and went to the kitchen, located on the same floor, the dining room being between the sitting room and kitchen. He was gone four or five minutes before returning to the sitting room.

Holmes, when released by Johnson, stepped to the little hallway out of which ascends a stairway leading to the next floor above. This hallway opens from the sitting room, where this little scuffle had taken place, the door being some six or eight feet from where Holmes had been sitting reading. He advanced to the foot of the stairs after entering the hallway, placed one foot on the step, and stood there for a few seconds, then returned, and sat down in the chair he had been occupying before the scuffle. After he had seated himself, Johnson came into the sitting room again, and, without saying anything to any one, picked up his overcoat, made some inquiry about his boots from one of the boarders, and proceeded to the little hallway. This hallway has no light except that which comes either from the door being left open, or from a window situated some little distance from the head of the stairs. When Johnson entered the hallway, he left the door open. Holmes got up and shut the door, he says, ‘ ‘ pretty quick. ” Others describe it by saying Holmes slammed the door shut. Johnson then opened the door, saying he wanted the door open in order to see. Holmes replied, “I am not going to get cold for you,” and got up and slammed the door shut again. Johnson opened the door and said, “What do you mean?” Holmes said, “I mean that, if you weighed 300 pounds, you can’t bluff me,” and jumped up from his chair, where he had gone after shutting the door the last time, and went over to Johnson, who was then standing close by the doorway leading into the hall, and some five or six feet from Holmes. There is a conflict in the testimony as to whether Holmes struck Johnson first, or whether Johnson was the aggressor. Johnson clinched Holmes, and they both struggled around the sitting room, and they finally, in their struggles, passed through the door into the dining room. Johnson here got his left arm around Holmes’ neck, and they both fell to the floor. They continued to struggle, and both regained their feet, Johnson still holding Holmes around the neck. While in this position Johnson struck Holmes in the face with his right hand three or four times, inflicting such injuries as caused Holmes’ nose to bleed, his face being covered with blood. At this point one of the boarders spoke to them, on which Johnson immediately released his hold, and they separated, Johnson going at once to the kitchen, and from there to the little wash room opening off from the kitchen, for the purpose of washing his hands. One witness testifies that Johnson, on releasing his hold, said, “I’ll fix you.”

Holmes, after this struggle, went back through the sitting room to the foot of the stairs which he had started to ascend after the first struggle, proceeded upstairs to his room a.t the head of the stairs, went to the dresser in his room, drew out the drawer, took from it his revolver, which was loaded, started back, removing the case from the revolver as he passed along, dropped the case on the floor, and as he passed back by the door of Johnson’s room, which was on that floor, stopped and looked in at the open door, then passed down the stairway into the sitting room, out through the dining room, and into the kitchen, passing several people on his way, and, arriving at the kitchen, looked around that room, and passed across the room to within a few feet of the wash-room door, where Johnson was at that time engaged in washing his hands at the bowl in the northeast corner of the room, with his back towards Holmes. As Holmes entered the kitchen, Miss Helwig said to him: “I think you boys have gone far enough with this. Don’t go near him. Your face is all blood now.” Another of the boarders, who saw what Holmes was about to do, called out to him, “Here, Holmes.” To these remarks Holmes- paid no attention, except to glance at the speaker. In passing down the stairs and through the rooms, he put the revolver in, his right-hand hip pocket, and he placed both hands in his hip pockets, and kept them in that position until he arrived in front of the wash-room door, as already stated. He then drew the revolver from his pocket, raised it, and fired three shots in quick succession. Johnson, as soon as the firing commenced, stepped off the little platform on which he was standing, and to the west, where he would be partly behind the door casing and partly out of the range of Holmes’ revolver. Holmes fired two more shots. One of these bullets passed into the fleshy parts of Johnson’s left arm, and another pierced his left breast, and passed through his heart and killed him. He staggered into the dining room, and expired in a very few moments. Holmes immediately passed out of the kitchen, through the dining room, through the sitting room, up one flight of stairs, and out of the front door of the house, and went hurriedly to police headquarters, a few blocks away, presented himself at the window, and stated to witness Traxler that he had shot a man at 348 Ottawa street. Traxler, being surprised, said, “What!” and Holmes repeated the statement. He was asked if he had the gun, and replied that he had, and Traxler took it from him. It was suggested to him that perhaps he had not killed the man, and he said he thought he had hurt him.

On the trial the respondent offered testimony tending to show an hereditary predisposition to insanity, and tending to show that the treatment to which he was subjected brought on a temporary insanity, and that in all that he did after being subjected to the treatment which he received he acted automatically; and introduced the testimony of expert witnesses for the purpose of maintaining this defense. He was a witness himself upon the stand, and gave testimony tending to support this theory, testifying that while Johnson had his arm around his neck he could not breathe; that he felt a fullness in his head, and experienced a sensation of something giving way in his head; that he felt himself smothering; but could not recollect what took place subsequent to the sensation of fullness in his head.

It is insisted by the respondent’s counsel that under the evidence in the case the court should have instructed the jury that the crime, if any, was not murder, but manslaughter ; or, if murder, that it did not amount to murder in the first degree. It is true that under the law, as it has been understood and administered in this State for many years, the act of killing, though intentional, may be committed under such circumstances as to make the killing manslaughter, rather than murder. This occurs when the act is committed in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and for reason to resume its habitual control, and where the act is the result of temporary excitement, .by which the control of reason was disturbed, rather than of any wickedness of heart, or cruelty or recklessness of disposition. In such case the law, out of indulgence to the frailty of human nature, regards the offense as of a less heinous character than murder, and designates it manslaughter. People v. Scott, 6 Mich. 295; Maher v. People, 10 Mich. 219 (81 Am. Dec. 781); People v. Lilley, 43 Mich. 526. But, in most cases, what constitutes such provocation is necessarily and obviously a question of fact. It must be such provocation as has a natural tendency to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case in hand; and, equally, in determining the length of time during which the passions aroused by provocation may be recognized in reducing the offense to manslaughter, the judgment of the average jury is more trustworthy than could be any precise rule laid down by the court. Maher v. People, supra. See, also, People v. Garbutt, 17 Mich. 9. The question must depend upon the nature of the accused and the laws of the human mind, as well as upon the nature and circumstances of the provocation. Whether the offense is murder 'or manslaughter depends upon the presence or absence of malice,-—that is, whether the act is induced by adequate provocation, committed before reasonable cooling time has elapsed, and is the result of temporary excitement, by which the reason was disturbed, rather than of any wickedness of heart, or cruelty or recklessness of disposition; or whether, on the other hand, the act ip prompted by a wicked or malignant mind, which, in its habitual condition, when excited by no provocation which would be liable to give undue control to passion in ordinary men, is cruel, wanton, or malignant, reckless of human life, or regardless of a social duty.

Under our statute (2 How. Stat. § 9075), murder in the first degree is distinguished from murder in the second degree by this: In the former case there must be a willful, deliberate, and premeditated killing, or the offense must be committed in an attempt to commit a felony; while premeditation is not requisite to constitute murder in the second degree, if the other elements exist. Under the evidence in this case, we think it must be held that whether the shooting was induced by passion caused by reasonable provocation, or whether the act was prompted by a wicked and malignant heart, and also the question whether there was such deliberation and premeditation as to constitute the offense murder in the first degree, were questions for the jury.' In People v. Scott, 6 Mich. 294, it was said:

“ When, therefore, following the statute, we hold murder in the first degree to be that which is willful, deliberate, and premeditated, and all other murders to be murder in the second degree, we should be undertaking a task which, if possible, would be exceedingly dangerous to undertake, to enumerate what facts constitute deliberation and what exclude it. Practically, a jury could rarely find much difficulty in applying the test. Where there is positive proof of previous threats, ill will, or preparation, and all of such a nature as to lead naturally and clearly to a fatal crime, questions seldom arise. It is where surrounding circumstances áre not clearly proven, and where the offense has no established antecedents, that difficulties have arisen in defining it. In all these cases the circumstances proven must be taken into account, and the jury must, from the whole facts, determine the intent and the deliberation. Voluntary manslaughter often involves a direct intent to kill, but the law reduces the grade of the offense, because, looking at the frailty of human nature, it considers great provocations sufficient to excite the. passions beyond the control of reason. But provocations often arise which are of less intensity, a¡nd are not in law regarded as sufficient to reduce the crime to manslaughter. If it appears that murder is committed upon a heat of passion engendered entirely by such provocations, and suddenly conceived, such a murder cannot properly be called deliberate. But whenever murder is intentionally committed, without serious provocation, and under circumstances which do not reasonably account for such an excitement of jDassion as naturally deprives men of deliberation, common experience teaches us that such an act is wanton, and its perpetrator responsible for it, as in other cases of cold-blooded crime. The time within which a wicked purpose is formed is immaterial, provided it is formed without disturbing excitement. The question of deliberation, when all the circumstances appear, is one of plain common sense; and an intelligent • jury can seldom be at a loss to determine it.”

In this case there was some testimony by Mrs. Posner tending to show threats previously made. It is true, this witness testifies that she understood the respondent meant these remarks in fun, from his action and appearance at the time; but the jury had the right to construe these statements in the light of subsequent events, independent of this testimony. Also it was the province of the jury to determine whether there had been time for the formation of a deliberate and predetermined design. The case is unlike that of Hurd v. People, 25 Mich. 405, as in that case the assault by the deceased had not been abandoned. In this case the parties had separated; respondent had gone upstairs, secured his revolver, and returned, and assumed the aggressive; and, while the jury might well have found that these acts were the result of one impulse, yet we are not, nor was the court below, authorized to say this as matter of law.

But while we fully realize that this question was, in this case, a question of fact, as did the trial judge, as shown by his general charge, we feel compelled to hold that he fell into a grave error in giving the people’s fifth and seventh requests. ’ The requests read as follows:

“Fifth. The question is, was such purpose formed before the deed was committed ? If so, even though such purpose was conceived but a moment before the deed was committed, the homicide is murder in the first degree; and if you find that the respondent purposely killed Johnson after reflection, with a wickedness and depravity of heart, and the killing was determined on even a moment before the fatal shot,- he is guilty of murder in the first degree. "The deliberation mentioned in the statute refers to an intent to kill, executed by a person in furtherance of a formed design to accomplish an unlawful purpose. In order that homicide shall be murder in the first degree, the elements of premeditation and deliberation need to have coexisted but a moment before the killing, provided they have prompted the fatal act. The real test of malice is to be found in the presence or absence of adequate cause or provocation to account for the violence; and an unprovoked homicide, however suddenly conceived, may he malicious. In other words, malice aforethought does not mean, or need not necessarily mean, deliberate and calculating malice, but only malice existing at any time before the act, so as to be its moving cause or concomitant.”

“Seventh. If, at the time the respondent shot Johnson, he thought of his purpose to kill deceased, and had time to think that he would execute it, and did so, and formed fully in his mind the conscious design of killing, and had time to think of the weapon he procured for that purpose, and that he would use it, he is guilty of murder in the first degree.”

These instructions, particularly the seventh, instead of permitting the jury to decide whether there was such premeditation and deliberation as to raise the offense to murder in the first degree, gave it, as a rule of law, that if he had time to think he would kill deceased, and thought of his purpose to kill him, and formed in his mind the conscious design of killing, and had time to think of the weapon he procured for the purpose, and thought he would use it, this would constitute murder in the first degree. All these elements might exist, and the respondent be guilty of no greater offense than manslaughter. In answer to the criticisms of this charge the learned counsel for the people say in their brief:

“We think, when the charge is examined altogether, it will be seen that the instructions are not open to this criticism. They were given upon a specific branch of the case, namely, the time necessary to elapse for the blood to cool in order that the crime be murder, and not manslaughter. Every element in the case which it is claimed was left out of those requests,(such as ‘the condition of his mind, the assault,tthe provocation, and everything that would justify or excuse,’ was given due prominence in the charge in such a way that the jury could not well have lost sight of them, nor have failed to understand that if he was insane he was not guilty at all; and the surrounding circumstances and the provocation were very carefully laid before the jury in such a way that they could not well have failed to understand that if he acted in the heat of blood, and before there was time for passion to subside and reason to resume its sway, and acted under such reasonable provocation as would lead an ordinary man of fair average disposition to act from passion rather than from judgment, then he could not be guilty of murder, but only of manslaughter.”

We do not think it possible to say that the seventh instruction would be likely to be so interpreted by the jury. Fairly construed, this instruction could not fail to impress the jury with the view that, if the respondent was responsible for his acts at all, they were bound to find him guilty of murder in the first degree; for the facts embodied in the request can scarcely be said to have been in dispute. In a case of the supreme importance which this case has, we cannot hold an erroneous instruction to be cured by the general charge, unless it appears clearly that it could not have worked a prejudice with the jury; and, if we were to speculate as to this instruction, we should be led to quite the contrary opinion, as there was certainly ample room for a finding of the offense of manslaughter in this case, or of murder in the second degree.

In dealing with the subject of insanity as a defense, the trial court said:

“Our own Supreme Court, in discussing the subject of insanity, says: ‘ Unfortunately for the administration of justice, persons are sometimes found who have succeeded in formulating theories under which, if properly applied, there would be hardly enough sane persons found to sit upon juries or attend to business. If the term "insanity ” is to be enlarged so as to include persons who were capacitated to resist it, then it would include persons whom the law deems capable of crime, and is a phrase entirely inapplicable in civil or criminal law.’ And in this case it is for you to determine whether the insanity relied upon by respondent’s counsel is that convenient form of it which enables a person who does not choose to bridle his passions to allow them to get and keep the upper hand just long enough to enable him to commit an offense, and then let them subside.”

We think this instruction is open to the criticism made by respondent’s counsel. It is argumentative, and well calculated to impress upon the jury the view that the defense of insanity offered was unworthy of consideration. The province of the court was to define what in law constitutes such a degree of insanity as excuses an act which, but for the fact of the clouded- faculties, would constitute a crime. This the court did in other portions of his charge, but, in dealing with this question, fell into the error, as we think, of impressing his own views of the case, reinforced by argumentative language taken from a decision of this court in another case. When the question of insanity is to be submitted to the jury, the testimony which is offered to support the claim should be treated with the same respect as that offered to establish any other fact; and, if insanity is made out in the particular case, it cannot concern the jury that evil-disposed or ignorant persons are sometimes found who have formulated theories inconsistent with the true rule; and, as the jury naturally attend to the instructions of the court with a view to receiving aid in determining questions of fact it cannot be doubted that the use of this language was or at least might have been, interpreted as intended by -the court to apply to the defense made in this suit, and to characterize the testimony of the medical witnesses for the defense. The fact that a portion of this language is found in a judicial opinion does not of itself authorize it to be used before a jury. The rule of law determined by the court in the case quoted from was proper to be given to the jury, but the reasoning may contain language of impatience in treating of the subject, or of indignation towards a spurious defense, which would be exceedingly damaging when used in another case. The rule that the trial judge should not impress his own view of the facts upon the jury is so well understood that no authority need be cited to support it. As to the propriety of reading from the reports of other cases to the jury, see Lendberg v. Mining Co., 75 Mich. 90, in which case the learned justice from whom the trial judge quoted in the instruction said:

“It is no more correct for the court than for counsel to read law reports to a jury. There are in all reports discussions which may include references to facts, real or supposed, and law questions in or out of the record, which cannot be taken literally, and just as they stand, as guides to a jury in some other case, and with different facts. Between this case and that there are very serious differences as to the alleged cause and manner of the accident, and the supposed duty and negligence, that need not be dwelt upon, because the citation would have been improper in the way resorted to in any case. Precedents are for the use of courts, who are supposed competent to extract their principles; and not for juries, who cannot be expected to discriminate in their use. It is the office of a trial court to formulate the legal rules to guide the jury in the case before them with as little extraneous combination as possible.”

We think the objection to the testimony of Louisa Posner was properly overruled. The testimony was competent for the jury to consider. As before stated, the jury had the right to interpret this testimony in the light of subsequent events, and, if the threats were not made seriously, they would have no tendency to show malice'; but if, in the light of what occurred on the fatal 12th of January, the jury believed these threats were made seriously, and really showed a purpose fixed in the respondent’s mind, the testimony certainly had a bearing on tfie subject of malice.

The respondent sought to show that one Dr. Edwards had received an injury bearing some analogy to the injury inflicted upon the respondent in this case by Johnson, and to show the .effect upon his mind. This was excluded, and the ruling is assigned as error. The ruling was right. The rule is correctly stated in Rog. Exp. Test. § 35:

“ While the opinion of experts maybe based on their observation and experience in similar cases, yet the principle is well settled that such witnesses cannot, on their direct examination, be questioned concerning the particular cases which have happened to come within their observation, and which have no connection with the case in hand. The reason for the rule is manifestly to prevent the introduction of innumerable side issues, which might render the trial of a cause interminable, distract the attention of the jury from the real issue, and render the costs in the case unnecessarily burdensome and enormous.”

See, also, 1 Grreenl. Ev. § 448.

One Dr. Puller was a witness in the case for respondent, and another medical witness, when on the stand, was asked whether he regarded Dr. Puller as good authority. This testimony was excluded, and error is assigned on the ruling. As the question was framed, it calls for the opinion of the witness, which opinion might be based upon mere reputation, and we think the ruling excluding it was, for this reason, competent. It is'true that one who has personal knowledge of the qualifications of an expert may speak to the fact, based upon such knowledge; but reputation cannot be shown, nor can an opinion as to the qualifications of an expert be based upon reputation. Lawson, Exp. Ev. 236; Laros v. Com., 84 Pa. St; 200; Thompson v. Ish, 99 Mo. 160 (17 Am. St. Rep. 552). See, also, Mason v. Phelps, 48 Mich. 126.

None of the other questions raised are likely to arise on a new trial.

For the errors pointed out, the conviction will be set aside, and a new trial ordered.

The other Justices concurred.


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    BAKER v. BOARD OF STATE CANVASSERS.
    Mandamus—When Denied.

      Mandamus will not issue to compel the board of state canvassers, which refuses to credit a candidate at a general election with the votes cast for him in certain counties because his name is spelled incorrectly in the returns, to obtain corrected returns, and canvass the votes in accordance therewith, if the general result is such that the action would be an idle ceremony affecting no material rights or interests.

      Mandamus by Fred A. Baker to compel the board of state canvassers to obtain corrected returns of the votes cast in certain counties at a general election, and to canvass and record the result in accordance with the returns as corrected.
    Submitted December 18, 1896.
    Denied December 24, 1896.

      Fred A. Baker, in pro. per.

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

The petition of the relator represents that he is chairman of the Democratic state central committee, and for that reason is interested in having the votes cast for the state officers at the last election correctly canvassed, to the end that, in future elections, the ticket of the said Democratic party may have its proper place on all official ballots in the several counties of the State. The petition then states the names of the candidates of said party for the offices of governor, commissioner of the state land office, superintendent of public instruction, and member of, the board of education. The petition then avers that the respondent refused to give Charles R. Sligh credit for 2,627 votes cast for him in the county of Huron, and for 393 votes cast for him in the county of Ontonagon, because, in the returns from said counties, his surname was spelled “ Sleigh;” and they refuse to give him credit for 1,158 votes cast for him in the county of Delta, because his surname was spelled “Slig.” The petition also makes similar representations as to the other candidates therein named. The petition avers that it was the duty of the board of state canvassers to obtain from the county clerks correct returns, and to credit the votes therein mentioned to the candidates entitled to them. The prayer is for a writ of mandamus to compel the board of canvassers to obtain corrected returns, and to make the proper credits.

The answer of the respondent shows that, if all the votes were credited as prayed for by relator, it would not affect the election of any of the candidates mentioned by relator, or the relative position of the ticket of the party represented by him on the official ballot at the next general election. The answer shows that, in the case of governor, there are but 4,178 votes in dispute. Crediting all of these to Mr. Sligh, Mr. Pingree would still have a plurality of 79,231 votes. After making the credits as prayed, Mr. French, candidate for commissioner of the land office, would have upwards of 57,000 plurality. Mr. Hammond, candidate for superintendent of public instruction, would have a plurality of more than 57,000. This would also be true of Mr. Simmons, candidate for member of the state board of education. Nor would the result be changed so as to affect the relative position on the ticket at the next general election of the various party candidates. It may be said, also, that section 14 of Act No. 202,> Pub. Acts 1893, provides that the board of election commissioners in each county shall be clothed with certain duties, and that the ‘ ‘ ticket of the party having the greatest number of votes within the county at the last preceding general election shall be placed first on the ballot, the position of other tickets to be governed relatively by the same rule.” To determine the number of votes cast for the various parties, the election commissioners go to the county clerk’s office, and not to the office of the state board of canvassers; and there is nothing in the record to show but what the votes are properly tabulated in the offices of the clerks of the counties mentioned in relator’s petition.

The writ of mandamus is a discretionary writ. In the case of Pistorius v. Stempel, 81 Mich. 133, it was held that, though one has such a special interest as entitles him to apply for the writ, 'unless he makes a showing that his rights or interests are prejudiced or affected, the writ will not issue. In Tennant v. Crocker, 85 Mich. 328, it was held, in an opinion written by Justice Champlin, “that the writ is a discretionary one, and will not be awarded in all cases, even where a prima facie right to relief is shown; that regard must be had to the exigency which calls for the exercise of the discretion, the nature and extent of the wrong or injury which would follow its refusal, and other facts bearing upon the particular case;” and that the writ should not be issued to compel the performance of an idle ceremony. We do not think any such exigency has been shown as to require the issuing of the writ.

The writ will be denied, without costs to either party.

The other Justices concurred.


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    STEEL v. AUDITOR GENERAL.
    1. Statutes—Constitutionality—Surety Companies.
    Act No. 266, Pub. Acts 1895, permitting the acceptance, as sureties on bonds, of companies authorized to act as such, is not dependent for its validity upon the constitutionality of Act No. 194, Pub. Acts 1885, but is in itself complete.
    2. Same—Deposit With Surety—Exception.
    Since a deposit of the state funds subject to the control of a surety company would be improper and illegal, the bond of the state treasurer is excepted from the operation of section 6 of the statute, which provides for a deposit of the money for which such company may be responsible “if such deposit is otherwise proper.”
    3. Official Bonds—Acceptance.
    The acceptance of the state treasurer’s bond is discretionary with those charged with the duty of accepting it.

      Mandamus by George A. Steel to compel Stanley W. Turner, Auditor General, and Fred A; Maynard, Attorney General, to approve the official bond of relator as State Treasurer.
    Submitted December 28,1896.
    Granted December 28, 1896.

      Brennan, Donnelly & Van De Mark, for relator.

      Fred A. Maynard, Attorney General, for respondents.
   Per Curiam.

Petition for writ of mandamus to compel the auditor general and the attorney general of the State to approve the bond of the state treasurer, with the Fidelity & Deposit Company of Maryland as surety. The court has reached the following conclusions:

1. Act No. 266 of the Public Acts of 1895 is complete in itself, without reference to the law of 1885 (Act No. 194, Pub. Acts 1885), and is constitutional. We do not, therefore, pass upon the constitutionality of the. act of 1885.

2. Section 6 of the act of 1895 has no application to the bond of the state treasurer, for the reason that the deposit of the state funds, subject to the control of any surety company, would not be proper or legal. The bond of the state treasurer falls within the exception of this section.

3. The acceptance 'of the state treasurer’s bond is discretionary with those charged with the duty of accepting it, and the responsibility rests with them.

4. The attorney general, in his brief, says: “For the purpose of this suit, I admit the pecuniary responsibility of the surety, and that, if the legislation in this State by which the surety undertakes to do business in this State is constitutional and valid, the bond would be approved.”

It follows that the writ must issue as prayed.


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    KENT FURNITURE MANUFACTURING CO. v. LONG.
    1. Easements—Construction of Grant.
    A perpetual right of way over a railroad track and the land upon which it is laid, appurtenant to the mill of the second parties, is granted by an instrument by which the first parties, for a cash consideration, grant and release to the second parties, “their heirs and assigns, forever,” the undivided half of a side track or railroad which is used by the second parties in connection with their mill, and which, under the contract, is to be kept in repair by the parties jointly, and is not to be removed without the written consent of all the parties.
    2. Same—Substituted Agreement—Statute of Frauds.
    A parol agreement by the servient owner to allow to the dominant owner, in consideration of a release by the latter of his rights in the track as originally laid, • a corresponding interest in a new track to be constructed a short distance away, is so far performed as to be taken out of the statute of frauds, where the dominant owner consents to the removal, and continues to use the track as reconstructed.
    Appeal from Kent; Grove, J.
    Submitted June 12, 1896.
    Decided January 5, 1897.
    Bill by the Kent Furniture Manufacturing Company and the Chicago & West Michigan Railway Company against George H. Long, individually and as executor of the will of Arthur B. Long, deceased, to restrain the prosecution of an action in ejectment. From a decree dismissing the bill, complainants appeal.
    Reversed.

      Taggart, Wolcott & G-anson and Smiley, Smith & Stevens, for complainants.

      Albert Crane, for defendants.
   Long, C. J.

The bill filed in this case asks for an injunction restraining defendants from prosecuting an ejectment suit brought to compel the railway company to remove its tracks from lands described in the bill, and to surrender possession thereof to plaintiffs in ejectment (defendants herein). In 1869, the firm of A. B. Long & Sons owned and operated a sawmill on the west bank of Grand river, in the city of Grand Rapids, and had constructed a side track from the Grand Rapids & Indiana Railroad to its mill. The firm of Wonderly & Co. also built a mill south of the Long mill, and the two mill companies entered into a contract, whereby Wonderly & Co. became the owner of an undivided half of this side track, the monetary consideration being $1,950.83. In 1876, Wonderly & Co. was adjudged bankrupt, and it ceased to operate its mill or use the track. In 1880, Joseph H. Wonderly, who had acquired all the interests of Wonderly & Co., gave a bill of sale of a large amount of personal property, including this side track, to the Kent Furniture Manufacturing Company. This was followed in 1895 by a quitclaim of the same property from Wonderly to the Kent Company. By successive business changes and death, the firm of A. B. Long & Sons is now represented by George H. Long, executor, and George H. Long, individual.

In 1877, the Detroit, Grand Haven & Milwaukee Railway Company put in a side track to the Long mill, and from that time Long & Sons ceased to use the old track. In 1882, Long & Sons gave the Chicago & West Michigan Railway Company oral license to lay a side track to its mill, and the track was laid, part of it being over the same right of way as the old side track of 1869. The rest of the track was laid upon the private lands of Long & Sons. The Kent Furniture Manufacturing Company alleges that Long & Sons requested it to consent to the laying of this track, representing that if such change were made, the railway company would keep the track in repair, and the Kent Furniture Manufacturing Company would have the same rights as in the old track. The furniture company consented to this arrangement. This entire agreement was by parol. In 1891, Long & Sons wound up its business, and gave the Chicago & West Michigan Railway Company notice to quit. The company did not do this, and defendants brought ejectment, in 1894.

The complainant furniture company alleges that it should have the same right’ in the new track as in the old, and to its use as long as desired; that the railway company was to keep the track in repair, and that, relying upon the representations made, complainant railway company laid the track at an expense of several thousand dollars, and the furniture company invested large sums in its plant; that defendants should be forever absolutely barred from interfering with complainants’ use of this track. The defendants answer, and say that they own the lots occupied by the side track in fee simple; that neither complainant has the right to use or maintain the track; that the firm of A. B. Long & Sons was dissolved in 1878, the firm of Wonderly & Co. in 1876, and that the track was wholly abandoned after 1877; that complainant railway company laid its track under parol license, which has been revoked, and is estopped from denying the right and title of these defendants, its licensors; that, under the agreement of 1869, A. B. Long & Sons did not convey any right of way across the lots occupied by the track; that the license to use the track under the agreement of 1869 was revoked by the dissolution of the two original firms, in 1876 and 1878; that the interest of Wonderly & Co. was not assignable; that the furniture company, was not a party to the ejectment suit, and is not entitled to join in this action; that complainants have not stated a case entitling them to relief; and defendants claim the benefit of a demurrer. Upon the hearing in the court below, a decree was entered in favor of defendants, from which decree complainants appeal.

The contract between A. B. Long & Sons and Wonderly & Co. recites the consideration, the fact that Wonderly & Co. was erecting a sawmill south of the Long mill, and then provides that—

“The said parties of the first part, for and in consideration of the sum of $1,950.83, to them in hand paid by the said parties of the second part, * * * do, by these presents, grant, bargain, sell, remise, release, alien, and confirm unto the said parties of the second part, their heirs and assigns, forever, the undivided one-half of the said side track or railroad; to have and to hold the said side track to the said parties of the second part, their heirs and assigns, to the sole and only proper use, benefit, and behoof of the said parties of the second part, their heirs and assigns, forever.” -

The contract also provides that each party should 'bear one-half of the expense of keeping the side track in repair at all times, and that either party might at any time construct switches from such toack to either of their mills or yards, and that the side track should be used in common so long as either party should desire to use the same, and should not be moved without the written consent of all the parties. The contract was signed and sealed, in the presence of a witness, November 22, 1869, by all the members constituting the two firms. The track at that time extended across several lots owned by A. B. Long & Sons, as copartners. The contract contemplated the use of the track, and the right granted to be appurtenant to the Wonderly mill and plant, and the right retained to be appurtenant to the mill and plant of Long & Sons, and also contemplated a long-time use. It was the expressed intention of the parties that the second parties, their heirs and assigns, should have such use forever, qualified only by the proviso that if such parties, their heirs or assigns, should not wish the further use of the way at any time, then it might cease.

The contention of the defendants that this writing was a mere license cannot be sustained, either upon reason or authority. It was the evident intent of Long & Sons, by the conveyance of the track, that the right of way should be continuous over the- land occupied by the track. The track was already laid, and there is no indefiniteness as to the land. .The contract conveyed an interest in land appurtenant to the mill, to which property the complainant furniture company acquired title by a writing executed by Joseph H. Wonderly, the surviving member of the firm of Wonderly & Co. The court below held, in effect, that the contract of November 22, 1869, did not create an easement, and was but a license revocable at will. In the determination of that question, the court may look, not only at the contract, hut the surroundings of the parties and the situation of the properties affected. At the time of the execution of the contract, Wonderly & Co. was erecting a mill south of the Long mill. An extensive business was to be carried on, not only by Long & Sons, but by Wonderly & Co., and the business of these mills could not very well be conducted without the aid of this side track. The parties undertook to make an agreement that would be binding upon each, and for the benefit of the mill properties. Long & Sons was getting nearly $2,000 in cash, and an agreement by Wonderly & Co. that it would meet half the expense for keeping it in repair; while Wonderly & Co. was getting the right of way to its mill over a side track, which easement was to continue forever, unless it should give its consent in writing that the track might be discontinued. The conveyance was to Wonderly & Co., “their heirs and assigns, forever.” The granting of the side track carried with it the use of the land upon which it was laid. When the use of anything is granted, everything is granted necessary to the enjoyment of such use. Washb. Easem. (3d Ed.) pp. 46, 4?. The right of way, under the circumstances here stated, was not intended to be limited to the grantees in person, but' was to their heirs and assigns. An easement or servitude created by deed is never presumed to be personal or in gross when it can be fairly construed to be appurtenant to some other estate. McMahon v. Williams, 79 Ala. 288; Washb. Easem. pp. 40-42; Spensley v. Valentine, 34 Wis. 154. In McMahon v. Williams, supra, it was said:

“The inquiry in these cases [whereland is conveyed in parcels to several purchasers, subject to restrictions with reference to the use of the premises conveyed] has generally been whether the servitudes or restrictions imposed were of such a nature as to operate as an inducement to purchasers, and, if so, the inclination of the courts has been to construe them as appurtenant to the estate, and intended for its protection, rather than as personal to the grantor. If appurtenant, it, of course, follows the land, being assignable with it, and each grantee can enforce it in equity against each other grantee having notice of it; ” citing Sharp v. Ropes, 110 Mass. 381; Whitney v. Railway Co., 11 Gray, 359 (71 Am. Dec. 715); Inhabitants of Winthrop v. Fairbanks, 41 Me. 307.

In Peck v. Conway, 119 Mass. 549, the court said:

‘ ‘ The question whether such an easement is a personal right, or is to be construed to be appurtenant to some other estate, must be determined by the fair interpretation of the grant or reservation creating the easement, aided, if necessary, by the situation of the property and the surrounding circumstances.”

See, also, Fitch v. Hydraulic Co., 44 Mich. 74.

We think that Wonderly & Co. took a perpetual right of way over this track for the use of its mill, and that it was such a right in the land as Wonderiy & Go. could and did convey to the Kent Furniture Manufacturing Company. The claim that this right was ever abandoned in any way is not sustained by the proofs.

In 1882, as has been said, the track, or a portion of it, was moved for a distance by Long & Sons. Complainant-furniture company claims that this was by its consent, and upon an agreement by Long & Sons that the rights of the furniture company in the side track and easement would not be changed by the slight alteration thus to be made. The proofs sustain the claim made that such track was moved over upon this agreement and understanding. Counsel for defendants contends, however, that this last track was laid under a parol license, and therefore revocable at the will of the licensor. But it appears that a part of the old track was used, and that the old right of way is rendered useless to the complainant. The parties continued to use the new track up to the time when the notice was given to the railway company to remove it, and without any objection on the part of Long & Sons. It would be a gross fraud upon the complainant, under these circumstances, if the defendants should be now permitted to set up the statute of frauds to evade the contract made in 1882. Not only Wonderly & Co., but the Kent Furniture Manufacturing Company, have expended large sums of money in improving this property, and the last-named company has invested over $200,000 in its plant, and apparently in reliance upon its rights in this side track. We think, however, that the contract is not void under the statute of frauds. The complainant furniture company had the right to the use of the track as it was originally laid; and so long as it operated its plant, and desired the use of the track, it could not be divested of it. In consideration of its agreement to release its rights in the old track, the defendants agreed that it might have the same use of the track then to be laid in place of it. The complainant furniture company carried out its part of the agreement; but, when it attempted to assert its right in the new track, the defendants set up the claim that, the arrangement resting in parol, the complainant could not enforce it. No such defense can be permitted. The complainant furniture company has performed on its part, and has the right to insist that defendants be compelled to specifically perform on their part. The rule is well settled in this State that where, under an agreement to convey land, the purchase money has been paid, and possession has been taken, these acts of part performance are sufficient to take the case out of the statute of frauds, and to entitle the purchaser to a decree for specific performance. Farwell v. Johnston, 34 Mich. 342; Twiss v. George, 33 Mich. 253; Burtch v. Hogge, Har. Ch. 31; Putnam v. Tinkler, 83 Mich. 628; Canham v. Mooney, 73 Mich. 184. Here there was a sufficient consideration by the surrender of the old .track and the rights which the complainant had therein; and the defendants are bound now to recognize all the rights in the new track which complainant had in the old.

The decree of the court below must be reversed, and a decree entered here in accordance with the prayer of the bill. Complainants will recover their costs of both courts.

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