text:
    TURNER v. OTTAWA CIRCUIT JUDGE.
    Default — Motion to Set Aside — Rule of Court.
    Circuit Court Rule No. 12, subd. b, providing that, default of a party being “ duly entered,” the other party shall not be required to accept the pleading or proceeding in default until such default shall be set aside by the court, and that, in cases where personal service is had, a default shall not be set aside unless on application made within six months after such service, does not create a time limit for setting aside defaults “improperly" entered, even after personal service.

      Mandamus by Jerome E. Turner to compel Philip Padgham, circuit judge of Ottawa county, to vacate an order setting aside a default.
    Submitted March 27. 1900.
    Writ denied April 3, 1900.

      Jerome IS. Turner, in pro. per.

      Dan F. Pagelsen, for respondent.
   Montgomery, C. J.

This is an application for a mandamus requiring the respondent to vacate an order setting aside a default. The return of the circuit judge shows that he set the default aside as improperly entered, and states the grounds for his views of the law, which need not here be repeated, as the relator, in his brief, says: “I find no fault with the law as stated by the learned circuit judge in the latter part of his return, for, no doubt, it would be the law, in a proper case, where not more than six months had elapsed between date of personal service and date of motion to set aside default; but, under the facts in this case, his allowing the motion to set aside the default is in the teeth of Rule 12.” It will be seen, therefore, that the sole question for our decision is whether, under subdivision 6 of Circuit Court Rule No. 12, the time limit for setting aside default is intended to apply in cases of default improperly entered. The language of the entire rule makes it clear that such was not the intention. Subdivision a refers to a case where either party shall make default in fact. Subdivision b deals with defaults “duly entered,” and provides that in such case the party entering the default shall not be required to accept the pleading or proceeding which was in default until such default be set aside by the court. The rule further provides that the vacation of the default shall rest in the discretion of the court, and that, in cases where personal service has been had, the default shall not be set aside after six months. We think it clear that, if the party whose default has been attempted was not in fact in default, these provisions do not apply.

Writ denied, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    AMBOS v. INGHAM CIRCUIT JUDGE.
    Mandamus — Refusal of Judge to Enter Decree.
    While mandamus would lie to compel a circuit judge to decide a suit in chancery in which he should refuse to sign any decree, the writ cannot be invoked to compel him to enter the specific decree which relator desires.

      Mandamus by William J. Ambos to compel Howard Wiest, circuit judge of Ingham county, to enter a decree of divorce in favor of relator.
    Submitted March 27, 1900.
    Writ denied April 3, 1900.
    Relator filed a bill for divorce against his wife. The bill was filed November 9th. The jurat bears date November 4th, and the petitioner says that he cannot say whether it was actually sworn to on that day or some later day. On November 4th complainant also made an affidavit, entitled in the cause, to the effect that the defendant was not a resident of Michigan, but was a resident of the city of Columbus, Ohio. Upon this the court made an order of publication, which order was properly served upon the defendant at Columbus, Ohio, in accordance with Act No. 210 of the Public Acts of 1899. A default was duly entered, proofs taken in open court, and the judge took the case under advisement. He subsequently notified complainant’s solicitor by letter (the solicitor residing in Detroit) that a decree of divorce would not be granted, because the affidavit of residence was made several days before the bill was filed and the' order of publication made. Relator now applies for the writ of mandamus to compel the circuit judge to sign a decree giving him a divorce.

      Arthur D. Prosser, for relator.
   Grant, J.

(after stating the facts). We may infer that no decree dismissing the bill has been entered. This court will not compel a circuit judge to sign a particular decree. If he refuses to sign any, the writ of mandamus would issue to compel him to decide the case and enter such decree as he thinks is proper. Respondent returns that he is satisfied from the proofs that the material allegations of the bill of complaint are true. Chancery cases are heard de novo in this court, and, if the case were here on appeal, we might not concur in the conclusion reached by the circuit judge. The circuit judge has not refused to enter a decree, but has refused to enter such a decree as complainant wants. If the learned judge thinks that the circuit court had no jurisdiction, it is his duty to enter a decree dismissing the bill, whereupon relator could appeal, and the case would be before us on the jurisdictional question raised, and also upon the merits. The writ of mandamus cannot be invoked to compel the court helow to enter a specific decree.

The writ is denied.

The other Justices concurred.


author: Moore, J.

text:
    WORLD MANUFACTURING CO. v. HAMILTON-KENWOOD CYCLE CO.
    1. Promissory Notes — Fraud—Bargain and Sale.
    Complainant corporation contracted with a bicycle manufacturing company to furnish certain bicycles, to be shipped subject to its order. It gave notes for certain invoices of bicycles not shipped, on the representation that they were completed and set apart as its property. Held, that the fact that the bicycles were not so completed and set apart was not such fraud as entitled complainant to a cancellation of the notes; the frames having been set apart, and other parts kept on hand, so they could be quickly assembled, and it appearing that the bicycles could not be put together until instructions from complainant as to tires and sprocket-wheels were received.
    8. Same — Good-Faith Holder — Notioe.
    Where a stockholder in a corporation was also cashier of a bank which discounted certain notes given to the corporation, and attorney for an individual who through him had discounted other such notes, such bank and individual are not charged, through their relations to him and his relation to the corporation, with notice of fraud in obtaining the notes; it appearing that, though a stockholder, he was not an officer, and had no knowledge which should have put him on inquiry as to the fraud.
    3. Trust Mortgage — Construction.
    Where a cycle company, after having received notes from a manufacturing corporation in payment for bicycles not shipped, makes a mortgage of all its assets, including such bicycles, to secure creditors, — the mortgage indicating that the buyer was not intended to be included among creditors, by being made to cover a certain balance supposed to be due from it to the company, — such corporation is not entitled to participate with other creditors in the proceeds of the mortgage sale.
    4. Same — Property Covered — Accounting by Trustee.
    Where, in pursuance of a contract of purchase of bicycles from a manufacturing company, certain frames are set apart as the property of the purchaser, and form part of the consideration for note? given by the purchaser and discounted by the company, such frames become the property of the purchaser, as against the trustee in a mortgage covering all assets, given to secure creditors of the manufacturer, and such purchaser is entitled’to an accounting from the trustee for the value of the frames.
    Appeal from Kent; Adsit, J.
    Submitted January 11, 1900.
    Decided April 24, 1900.
    Bill by the World Manufacturing Company, Joseph O. Stokes, and William J. B. Stokes against the HamiltonKenwood Cycle Company, the National City Bank of Grand Bapids, J. Frederic Baars, trustee, Jennie W. Mc-Kibben, and others, for the cancellation of certain promissory notes. From a decree for defendants upon answers in the nature of cross-bills, complainants appeal.
    Modified.

      Hyde, Earle & Thornton (Myron H. Walker, of counsel), for complainants.

      Eitz Gerald & Barry (Wanty & Knappen and Francis A. Stace, of counsel), for defendants.
   Moore, J.

The printed record and briefs in this case consist of nearly 1,000 pages. The pleadings occupy nearly 200 pages. In disposing of the case, we do not think it would be profitable to state in detail what is contained in the record, but will content ourselves with a general statement of the material questions involved, and our conclusions in relation thereto.

In December, 1896, a contract was made between the complainant company and the Hamilton-Kenwood Cycle Company for the manufacture by the latter company of 1,000 bicycles. Forty dollars each was to be paid for the wheels. Settlements were to be made on the 1st of the month for all wheels shipped during the prior month. This contract was afterwards modified so that the wheels were to be held by the cycle company subject to the order of the "World Manufacturing Company. Invoices were sent by the cycle company to the complainant company. Payments were made by the complainant company, in cash or notes, aggregating upwards of $20,000. The notes of the complainant company were indorsed by the complainants Stokes, and were discounted by the cycle company. At the time this proceeding was commenced, three of them were held by the National City Bank of Grand Rapids, and one by Jennie W. McKibben.

It is the claim of complainants that these notes were forwarded to the cycle company upon the representation that the wheels for which the notes had been given were completed, and set apart as the property of the complainant company, when as a matter of fact the wheels had not been so set apart. It is claimed that in June, 189?, the complainant company learned of this fact, and telegraphed the manager of the cycle company to come to New York, when an arrangement was made between the managers of the respective companies that the notes were to be surren- ' dered to the complainant company and the contract ended. Within a few days after this alleged agreement, the cycle company made a mortgage upon all its property to secure its creditors. This mortgage was made to Mr. Baars, as trustee. He was at this time a stockholder in the cycle company. He was also cashier of the National City Bank. Mrs. McKibben was his client, and it was through him that she bought the note held by her, made by the World Manufacturing Company. After the mortgage was given,. proceedings were had in court for the purpose of closing up the affairs of the company, of which it will not be necessary to speak in detail. The assets of the company have been converted into money, and are awaiting a disposition by the court.

It is the claim of complainants that the notes were obtained by fraud, that the relation of Mr. Baars to the cycle company and the other parties was such that the taint of fraud followed the notes held by the bank and Mrs. Mc-Kibben, and that by reason thereof they cannot be said to be bona fide, good-faith holders of the notes. The bill in this case was filed to have the notes canceled, and for other relief. Answers in the nature of cross-bills were filed. A hearing was had in open court. A decree was entered denying to complainants any relief, and one was entered in favor of defendant bank and Jennie W. Mc-Kibben for the full amount of the notes held by them, respectively.- From that decree the complainants have appealed.

The solicitors for the complainants make the following claim:

‘ ‘ The questions of fact to be considered on this record are:
“1. Are the bank and Mrs. McKibben bona fide holders of the paper of complainants ?
“2. Are the complainants entitled to prorate with the other creditors in the third class in the mortgage ?
“3. Are the complainants entitled, with the other third-class creditors, to a division of the fund arising from the sale of the property bought and disposed of by the wheel company, the new" organization ?
“4. Is the bank bound, on account of the fraud of the stockholders of the cycle company in its organization, to resort to the Sligh Furniture Company’s stock to pay its claim, before participating in the fund arising under the mortgage and assignment of accounts, even though the furniture company’s stock was deposited with the bank to secure the indorsements of Sligh and Case upon the cycle company’s paper ?
“5. Are the complainants entitled to an accounting for the frames set apart for the World Company by the cycle company, and converted by the trustee under the mortgage?”

We agree with the circuit judge that the first of these questions should be answered in the affirmative. We are not satisfied from the evidence that any fraud was practiced in obtaining these notes. It is true, the wheels for which the notes were given when the invoices were sent were not completed; but the record discloses that, after the original contract was made, a new arrangement was made, —that the wheels were to be held subject to the order of complainant. It is evident from the record that it would not be known what sized sprocket-wheels or what kind of tires would be required until the order was received. The record also indicates that the frames were set apart as the property of the complainant, and that the other parts were, in the main, kept on hand, and could quickly be assembled after the receipt of the order. Even if it should be conceded that the wheels were not completed as was contemplated by the complainant, there is nothing to indicate that Mr. Baars knew of that fact, or that he had any knowledge which ought to put him upon inquiry. It is true, he was a stockholder in the cycle company; but he was not an officer of the company, and had nothing to do with its management. He testified that, when the notes were discounted by the bank and Jennie W. McKibben, they paid full value for the notes, and that he and they had no knowledge of any fact which would tend to invalidate the notes. This testimony is uncontradicted.

We agree with the circuit judge that the second and third questions propounded by the solicitors should be answered in the negative. The mortgage clearly indicates that it was not intended to secure the complainants, but, on the contrary, attached to it was a list of the debts due the cycle company which were mortgaged to the trustee, and among them was a balance claimed to be due from the complainant company. The complainants are not willing to be subrogated to the rights of the mortgagee. We are content with the disposition of this feature of the case made by the circuit judge.

We think the circuit judge made a proper disposition of the claim arising under the fourth question of the solicitors. The cycle company claimed to have a capital of $100,000. This was largely made up of a consolidation of two going concerns then engaged in the manufacture of bicycles, the property of which was turned into the new organization. It is true that, when the assets were converted into money, the assets of the cycle company did not realize a large sum; but it is also true that the failure of the cycle company occurred at a time when companies of a similar character were failing all over the country, so that the market for such assets was oversupplied, and the machinery and other assets would not sell for anything near what it would cost to duplicate them. It does not appear that the capital stock of the cycle company influenced the complainant company in the least in making its contract.

As to the fifth question presented by the solicitors, we think the circuit judge was in error. There can be no question from the record but that 250 frames were set apart for the complainant company. These frames made a part of the consideration for which the notes were given. They belonged to the complainant company. They passed into the possession of the trustee, and were used by him to make completed bicycles, which were sold. Part of the fund now on hand consists of the amount realized from the conversion of these frames. It is claimed that the complainant company relinquished its title to any wheels in the possession of the cycle company. The managers of the respective companies are not agreed as to what occurred in New York in June. Taking the version of either of them, it is clear that the arrangement was not so far completed as to devest the title to the frames. The complainant asks that the frames be accounted for upon the basis of $15 apiece. We do not think that ought to be done. There is difficulty in fixing the value of these frames. They inventoried at less than $4 each. Completed wheels (such was the state of the market) were sold, after the fullest publicity was given, at $14 each. Considering all the proofs -in the case, we think it would be equitable to treat these frames as worth $4 apiece, and they will be so treated.

The complainant company asks for a decree against the cycle company for the amount of its overpayments. We think it is entitled to such a decree. The amount will be fixed upon the settlement of the decree.

The record is unnecessarily voluminous. The complainants are entitled to the costs of this court as against the trustee, but the amount thereof will be decided upon the settlement of the decree. The defendants as to whom the decree is affirmed will recover their costs against the complainants. In other respects the decree of the court below is affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    KEYSTONE MANUFACTURING CO. v. FORSYTH.
    1. Sale — Breach of Warranty — Laches—Question for Jury.
    A husking-machine was sold upon a warranty, and notes were given for the purchase price. In an action on the notes, defendant gave testimony that he made a trial of the machine promptly, and notified the seller’s agent that it did not work, and that they each wrote the seller to that effect, but received no reply. A letter from the purchaser, given.in evidence, indicated that two or three months were allowed to elapse before trial of the machine was made. Held, that it was proper to submit to the jury the question whether the trial was made within a reasonable time.
    2. Same — Action on Notes — Defense—Burden of Proof.
    Where defendant, in an action on notes given for the price of a machine sold to him by plaintiff, sets up a breach of warranty as a defense, the burden of proof is upon him to establish it.
    Error to Wayne; Hosmer, J.
    Submitted February 2, 1900.
    Decided April 24, 1900.

      Assumpsit by the Keystone Manufacturing Company against Charles Forsyth and Charles Neuendorf upon promissory notes. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Hamilton Baluss, for appellant.

      William O. Gottman, for appellees..
   Montgomery, C. J.

This case has once been before this court, and is reported at 115 Mich. 51 (72 N. W. 1109). On the second trial the defendant Forsyth was allowed to recoup damages for the breach of warranty, and recovered the full amount of money paid, with interest. The facts as disclosed by the record are that on the 15th of September, 1890, the defendant Forsyth gave an order to plaintiff for a combined corn-husker and fodder-cutter ; the order containing a statement of warranty, and the defendant Forsyth agreeing to receive the same at the depot, to pay the freight charges, and to pay the purchase price, — $100 in cash, and the balance in two notes. The machine was promptly shipped. The defendant Forsyth paid the $100 in cash to the agent, Charles Neuendorf, and gave the two notes, of $100 each, and took the machine into his possession. The notes are the notes in question in this suit. Some considerable time after receiving the machine, defendant Forsyth made a trial of it. Just how long a time intervened is not entirely clear on the record. A letter from defendant Forsyth would indicate that some two or three months were allowed to elapse, and that the trial was not made until late in January. The oral testimony, however, is to the effect that the trial was promptly made, and notice given to the agent, Neuendorf, that the machine did not work, and that he directed that it be left where it was until an agent. of plaintiff should put it in shape, and that both he and defendant Forsyth wrote the company at once, and received no reply. Plaintiff’s counsel claims that, upon this statement of facts, a verdict should have been directed for the plaintiff. We think the learned circuit judge properly left this question to the jury.

The circuit judge, among other things, charged the jury as follows:

“Now, there is one bugbear in this case, and that is the question of the burden of proof. In general, gentlemen of the jury, a person who asserts a proposition is bound to establish it; but the burden of proof, I think, lies upon the plaintiff from first to last. I think there is a vast deal of bugbear about the burden of proof. A party has sustained the burden of proof when he adduces evidence which satisfies the jury of the very right of his case. Now, with reference to the question, I am asked to charge you about the burden of proof. Mr. Baluss requests me to charge you that it is the duty of the defendants to furnish the burden of proof to establish every necessary fact to maintain the defense here set up, and that the jury have a right to consider the good faith of the defendants. I think the latter part of the request is proper, but not the former. If your minds should be exactly balanced as between whether the machine would work or not, then the plaintiff has not sustained the burden of proof, and the verdict should be for the defendants.”

We think this instruction was error. The rule is well established that, where the defendant relies upon an affirmative defense (that is, a defense by way of confession and avoidance), the burden rests upon him to establish such defense. See Powers v. Russell, 13 Pick. 69; 5 Am. & Eng. Enc. Law (2d Ed.), 26; Day v. Raguet, 14 Minn. 213; Champion Machine Co. v. Gorder, 30 Neb. 89 (46 N. W. 253); 22 Am. & Eng. Enc. Law (1st Ed.), 361, and. cases cited in note 1. Defendants’ counsel cites us to cases in our own court which hold that, where the defense to a promissory note is want of consideration, the burden of proof rests upon the plaintiff to show consideration. See Manistee Nat. Bank v. Seymour, 64 Mich. 59 (31 N. W. 140). But in the ease just cited the rule which governs the present case is recognized, and it is expressly stated that “when a party having the affirmative of the-issue introduces competent evidence in support thereof, and the adverse- party, instead of offering evidence upon the facts alleged by the plaintiff, sets up another and distinct fact in avoidance, then the burden of proof is upon him to establish such defense.” The fact that the plaintiff’s claim in this case is represented by a promissory note; does not make tbe cases cited by defendants’ counsel applicable, as it might be said that, if the defendants had set up want of consideration, plaintiff might have met this claim by showing the actual delivery of the machine in question at the agreed price. The defendants could then only defeat recovery by showing, by way of confession and avoidance, a breach thereof. This case is in-this respect no different than if the action had been brought directly upon an engagement to pay for goods sold and delivered, where no note is given.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    SHAW v. CHICAGO & GRAND TRUNK RAILWAY CO.
    1. Railroad Companies — Negligence — Sufficiency of Averment.
    A declaration which charged that a railroad company, by its servants, “made a practice” of permitting and allowing a mail bag to be ejected at a station from one of its through trains in a negligent manner, was sufficient, in the absence of demurrer, as an averment that the company knew of the alleged dangerous practice.
    2. Same — Mail Agent’s Negligence — Throwing Bag from Car —Notice to Company.
    Evidence that a railroad mail agent, in ejecting a mail bag at a way station, had occasionally thrown it so that it struck the platform or the end wall of the depot building, and that on one or two occasions it had been thrown through the open door of such building, was competent to go to the j ury on the question whether an accident caused by throwing the bag through a window located in the center of the end wall of the depot ought to have been anticipated by the company when it permitted the continuance of the practice.

      3. Same — Continuance oe Practice — Liability eor Accident.
    A railroad company is not primarily liable for the negligence of a mail agent, bnt it owes a duty of not permitting dangerous habits of the agent in delivering packages from the car in such manner as to endanger persons lawfully on its premises to continue; and evidence of such a practice for a considerable period is notice to the company, rendering it liable to one lawfully on its premises and injured by such practice.
    4. Same — Evidence—Remoteness—Objections.
    In an action against a railroad company for negligently permitting the throwing of a mail bag from a passing train through a depot window, causing injury to a passenger in the waiting-room, evidence that a person had previously been struck by a mail bag while standing on the depot platform, though not open to the objection that it was incompetent and immaterial, should, perhaps, if defendant had made the proper motion, have been stricken out as too remote, it appearing on cross-examination that the incident referred to occurred 13 or 14 years before the accident to plaintiff.
    5. Same — Trial—Error Without Prejudice.
    Where, in an action against a railroad company for negligently permitting the throwing of a mail bag from a passing train through a depot window, causing injury to a passenger in the waiting-room, a letter written by defendant’s attorney to the mail agent, stating that his act and negligence caused the injury, and chat he would be held liable for any verdict recovered, and offering him control'of the suit, was received in evidence, a verdict for plaintiff would not be disturbed therefor, since the letter contained no admission of liability, and hence could not have damaged defendant.
    6. Same — Remarks oe Counsel — Correction by Court.
    The fact that counsel for plaintiff referred to the letter in argument, asking why defendant served notice on the agent to help defend the suit, and stating it was because it knew that its negligent acts made it liable, though improper, was not ground for reversal of a judgment for plaintiff, where the court in his charge took pains to remove any false impression that might have been caused thereby from the minds of the jury.
    7. Personal Injury — Loss oe Eye — Excessive Verdict.
    A verdict for 57,000 damages, rendered in favor of an infant plaintiff for an injury to the eye, which completely destroyed the sight, and caused permanent disfigurement, besides being very painful, was not so excessive as to warrant the court in setting it aside.

      Error to Eaton; Smith, J.
    Submitted February 7, 1900.
    Decided April 24, 1900.
    Case by Mary L. Shaw, an infant, by her next friend, Charles B. Lamb, against the Chicago & Grand Trunk Railway Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      E. W. Meddaugh ( Geer & Williams and L. C. Stanley, of counsel), for appellant.

      Dean & Hooker, for appellee.
   Montgomery, C. J.

Plaintiff went to defendant’s station at Millett at about the hour of 7:30 a. m. on the morning of July 4, 1898, to take a local train for Lansing, due at Millett at 8:17 a. m. Defendant’s train No. 1, west-bound, was due at Millett at 7:35 a. m. This train carried mail, but was not scheduled to stop at Millett. Mail had been carried on this fast train since some time in 1893, during which time the mail sack had been thrown off and picked up at this station while the train was in motion. The plaintiff was in the station, sitting near the window at the northeast end of the building. The bottom of the window was 3 feet above the floor, and the window was near the center of the east wall of the building, which was 16 feet in width and 32 feet in length. The platform in front of the building was 12 feet in width, and the rail nearest the platform would be about 3 feet distant from the platform. The evidence shows that the mail bag was either kicked or thrown from the car door, and went about 18 feet to the east and 30 feet to the southwest. In other words, it was thrown from the car when the train was 30 feet distant from the station, and was thrown 18 feet away from the car. The mail pouch did not strike the ground, but went through the air sufficiently high to go through the'window 3 feet above the ground, breaking the sash and panes out. The glass from the broken window struck the plaintiff in the eye, which has resulted in total loss of sight in that eye, and caused a disfigurement of the eye. In an action against the railroad company, plaintiff recovered a verdict of $7,000, and defendant brings error.

It is insisted that the declaration states no cause of action, and that error was committed in admitting any evidence under the declaration. The declaration contains the following averments: '

“That while the said plaintiff was lawfully upon the premises of said defendant upon said day and year aforesaid, and while seated within said depot of said defendant, next to the window at the northeast end of said depot, upon a seat placed in said depot for the convenience and use of prospective passengers of said railroad company aforesaid, a certain fast west-bound train, commonly known as a 'mail train,’ and scheduled to arrive at the station of Millett aforesaid at 7:35 o’clock, or thereabout, in the morning of the day and year aforesaid, and each day of the week during which time it was so scheduled to arrive, passed through said station of Millett aforesaid at a high rate of speed, which said train was scheduled by said railroad company not to stop at said station of Millett aforesaid, but to pass through said place or settlement without stopping, and which said train carried mails for the government of the United States of America, and from which train it was the practice of the mailing clerk or agent on said west-bound train to eject a mail pouch or bag at said station of Millett, from the mail car attached to and a part of said train, while said train was in motion and running at a high rate of speed; and said mailing clerk or agent, on the said 4th day of July, 1898, aforesaid, ejected said mail pouch or bag aforesaid from the door of said mail car aforesaid at said station of Millett aforesaid in manner aforesaid.
‘ ‘ That it was the custom and practice of said defendant, through its servants, to allow said mail pouch or bag aforesaid to be ejected from its said fast west-bound mail train so scheduled to arrive at and pass through said station of Millett as aforesaid without stopping, and while running at a high rate of speed.
“And thereupon, to wit, the 4th day of July, 1898, and upon all such days upon which said west-bound mail train was scheduled to arrive at and pass through said station of Millett aforesaid without stopping, and at the said station of Millett aforesaid, it became and was the duty of said defendant to manage and conduct its said westbound mail train aforesaid, by its said servants or servant, with all due care, caution, and diligence, and in a manner which would afford safety to those persons or that person who might be lawfully upon the premises of said defendant aforesaid. Yet the said defendant did not regard its duty, and use due care, caution, and diligence, but, on the contrary thereof, by its said servants or servant, made a practice and custom of allowing' and permitting said mail pouch or bag aforesaid to be ejected from said westbound mail train in a manner and at a place which subjected the persons or person who might chance to be lawfully upon the premises of said defendant at the time and place aforesaid, or on any day upon which said westbound mail train aforesaid was scheduled to so arrive, to hazard and danger of injury; and-upon the said 4th day of July, 1898, while the said plaintiff was so seated in said depot of said defendant as aforesaid, at said station of Millett, the plaintiff being then and there lawfully, and in and about her proper business, and in the exercise of due care, caution, and diligence, and without negligence or fault on her part, the said defendant, through its negligence and the negligence of its said servants or servant, allowed and permitted said mail pouch or bag aforesaid to be so ejected from said west-bound mail train aforesaid while in motion, and while running at a high rate of speed, and at such a place on said premises that it struck the said window upon the northeast end of said depot aforesaid, and, breaking through said window aforesaid, caused said plaintiff to be struck in the left eye by said mail pouch or bag aforesaid.”

It is said that the declaration fails to state defendant’s duty; that it states inferences, and not facts; that there is no averment that the defendant knew of the dangerous practice of discharging the mail bag. It is alleged, however, that the defendant, by its servants, made a practice of permitting and allowing the mail pouch to be ejected in a manner and at a place which subjected the person or persons who might chance to be lawfully upon the premises to hazard. This averment implies knowledge, and, if not deemed sufficiently specific, should have been demurred to. See Fox v. Iron Co., 89 Mich. 387 (50 N. W. 872).

The plaintiff offered testimony tending to show that, for a considerable period of time, the mail agent had, in ejecting the bag, occasionally thrown it so that it struck upon the platform intended for passengers, at times struck the depot building, and once or twice it was known to go into the open door of the depot. It is contended that this evidence was—

“Incompetent and immaterial, for the reason that it did not furnish a basis for the jury to find that the defendant knew that the practice of discharging the mail bag at this station was likely to cause the injury complained of here; that is, that the defendant might anticipate or expect that the mail bag would be thrown through the window, and injure some person on the inside of the waiting-room.”

It is said that:

“The most that defendant could have anticipated or expected (if the evidence was properly admitted) would be that some person who might be standing on the platform or cinder bed might be hit by the mail bag.”

It is true that on no previous occasion did the mail bag go through the window, but it did strike against the end of the building. The building was 16 feet wide, and the window in the center, so that, in striking against the corner of the building, it must have struck near the window. We think it not necessary that the plaintiff show that the mail bag had previously struck at this precise place. The test to be applied should be, were the previous acts such that, in common prudence, the defendant ought to have anticipated that such an accident was liable to happen ? And the evidence in this case was such as to make it proper to submit the question to the jury, as the circuit judge did.

This question has never been presented to this court before, but, in a number of the States, almost the precise question has been passed upon. We think a fair statement of the law as established by the decisions is this: The railroad company is not primarily liable for the negligence of the mail agent, but it does owe the duty of not permitting dangerous habits of the agent in delivering heavy packages from the car in such manner as to endanger persons lawfully on its premises to continue; and evidence of such a practice continued for a considerable period is notice to the company. Snow v. Railroad Co., 136 Mass. 552 (49 Am. Rep. 40); Galloway v. Railway Co., 56 Minn. 346 (57 N. W. 1058, 23 L. R. A. 442, 45 Am. St. Rep. 468); Carpenter v. Railroad Co., 97 N. Y. 494 (49 Am. Rep. 540). The cases cited by defendant’s counsel (Muster v. Railway Co., 61 Wis. 325 [21 N. W. 223, 50 Am. Rep. 141] ; McGrath v. Railway Co., 74 Minn. 363 [77 N. W. 136]; Southern Railway Co. v. Rhodes, 30 C. C. A. 157, 86 Fed. 422), do not, as we read them, deny any of the propositions above stated.

Mr. Crane, a witness for plaintiff, was asked whether he was present at one time when an old gentleman was hit by a mail bag on the platform. It was objected to as immaterial and incompetent. The answer was given in the affirmative. On the cross-examination it developed that this transaction occurred some 13 or 14 years before the trial. The cross-examination developed that the transaction was remote from the time of the injury to plaintiff, and a motion to strike out would have been proper; but no such motion appears to have been made. The question itself was not improper, nor did the defendant’s counsel ask to have the quéstion limited as to time, or suggest that the time was too remote. There was no error in the ruling.

The plaintiff called as a witness the mail agent who threw the bag causing the injury, and, in connection with his testimony, offered in evidence a notice given by the attorney of the company notifying him of the pendency of the suit, stating, among other things, ££ You are notified that your act caused said injury, and your negligence, if any, occasions said action,” and stating that he would be held responsible to answer and pay any verdict recovered, and tendering him control of the suit. The purpose of introducing this paper is not stated. It may have been to show the interest or bias of the witness; but, as his interest already appeared, it is difficult to see how the paper became important. We do not discover how its bare introduction could have damaged defendant. The paper contained no admissions of liability on the part of the company.

In the argument plaintiff’s counsel referred to this notice as follows:

“Why did they serve notice on him to come in and help defend the suit? They knew a judgment stared them in the face; they knew their negligent acts made them liable and responsible for it.”

This- was excepted to. The circuit judge began his charge as follows:

“Before I give you the law in the case, I think I had better suggest to you something briefly regarding one suggestion made by Mr. Dean in his argument, and that is about the notice served upon Mr. Fulton. I thought possibly, in his zeal, he might have said something that you might misconstrue. As a matter of fact, he did not say anything really out of place. That notice the railroad company had a perfect right to serve. It was a fair and proper thing for it to do. It was not served on the government; it was served on Mr. Fulton, an employé of the government, to protect its legal rights. Should a judgment be rendered against it, if it desired or felt that Mr. Fulton was the man that should pay any damages, should any be rendered, it had a perfect right to serve that paper. I want to call your attention more particularly that the fact of serving that paper is not an admission that it is liable, and you ought not to find it so from-the fact of serving that paper.”

While it is manifest that counsel made an improper use of this paper as evidence of an admission by defendant, it is equally manifest that the court took pains to remove any false impression from the minds of the jury. We do not think the judgment should be disturbed on this ground, as we feel satisfied that the jury could not have failed to understand the caution of the court.

Other exceptions were noted to the argument of counsel. We do not find in it any such abuse of privilege or distortion of the evidence as called for the interposition of the court.

Error is assigned on the refusal of the court to grant a .new trial. We do not find the verdict so clearly against the evidence as to justify us in reversing it on that ground. We also think that there was evidence to support the theory given to the jury by the charge.

As to the claim that the verdict was excessive, it is true that $7,000 is a large sum. The injury is, however, severe. Besides being very painful, it caused permanent disfigurement to the eye and loss of sight. We do not think the award of damages so grossly' excessive as to justify us in interfering.

The judgment will be affirmed, with costs.

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


text:
    TAYLOR v. NEWCOMB.
    Landlord and Tenant — Right to Manure.
    The owner of a farm sold it, and leased the barns and barnyards thereon of his grantee. At the time of the sale there was a quantity of hay and straw in the barns belonging to the grantor, which he fed to his stock on the leased premises after the sale. Held, that the manure made on such premises was personal property belonging to the lessee, as manure is only a part of the realty when it results from a consumption of the. product grown thereon.
    Appeal from Montcalm; Davis, J.
    Submitted February 7, 1900.
    Decided April 34, 1900.
    Bill by Henrietta W. Taylor against Solomon B. New-comb, John Banfield, and another, to enjoin the removal of' manure from leased premises. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      William O. Webster, for complainant.

      Frank A. Miller, for defendants.
   Montgomery, C. J.

On the 13th of November, 1894, the defendant Newcomb conveyed to complainant a farm consisting of 80 acres in the township of Pierson, Montcalm county. On the same day a lease in the following words was given back to Newcomb:

“It is hereby contracted and agreed by and between Fred F. Taylor, of the first part, and Solomon B. New-comb, of the second part, that in consideration of one dollar and other valuable consideration, the receipt whereof is hereby confessed and acknowledged, that the said first party leases to the second party the use of the buildings, well, windmill, yard, and barnyard on the north \ of northeast ¿, section 38, town 11 north, range 10 west, of Michigan, from the date hereof to the first day of April, A. D. 1895, and all the pasture on said land until the winter of 1894-5 sets in.?’

On the date of this transaction, defendant Newcomb had stored in the barn a quantity of hay, cornstalks, and straw. During the winter following he made a quantity of manure by feeding such fodder to his stock, the manure remaining and being housed in the barn and on the premises. In June, 1895, defendant Newcomb sold this manure to defendant Banfield, and the present bill is filed to enjoin its removal from the premises. From a decree dismissing the bill, complainant appeals.

The great weight of authority in this country sustains the rule that, as between landlord and tenant, manure made on the farm try the cattle of the lessee, which is made from the products of the farm, and as a result of the consumption of its produce thereon, becomes a part of the realty. Tyler, Fixt. 356; 1 Washb. Real Prop. *5; Kittredge v. Woods, 3 N. H. 503 (14 Am. Dec. 393); Lassell v. Feed, 6 Greenl. 222; Middlebrook v. Corwin, 15 Wend. 169; Daniels v. Pond, 21 Pick. 371 (32 Am. Dec. 269). The rule as stated in Tyler on Fixtures is as follows:

“ The rule of law, therefore, may be safely declared that manure made upon a farm, or gathered in therefrom, and produced mainly by the feeding and depasturing of sheep, cattle, and horses on its succulent vegetables and grasses, or other products of the farm, in the absence of any stipulation or custom to the contrary, belongs to the farm, and cannot be legally removed therefrom by the tenant. But if the manure were not produced directly or indirectly from the land, and were in no sense the product of agricultural demised premises, — -such as accumulates in livery stables and the like, — it is no part of the realty, and may be removed by the tenant at the close of his term.”

Defendants’ counsel does not controvert this general rule, but contends that in this case the manure never became a part of the realty, for the reason that, on the sale of the land to complainant, the straw, hay, and cornstalks remained the property of defendant Newcomb, to do with as he pleased; that he might have removed them from the premises without let or hindrance; that the manure was not produced, directly or indirectly, from the land while the defendant Newcomb was tenant of complainant. The circuit judge adopted this view, and we think he is sustained by the logic of the cases. It is held in numerous cases that, where the manure is made, not from the products of the farm, but substantially like making it iri a livery stable, the tenant is entitled to it. Needham v. Allison, 24 N. H. 355; Fletcher v. Herring, 112 Mass. 382. In the case of Pickering v. Moore, 67 N. H. 533 (32 Atl. 828, 31 L. R. A. 698, 68 Am. St. Rep. 695), it was said by Carpenter, J.:

“No rule of good husbandry requires the tenant to buy hay or other fodder for consumption on the farm. If, in addition to the stock maintainable from its products, he keeps cattle for hire, and feeds them upon fodder procured by purchase or raised by him on other lands, the landlord has no more legal or equitable interest in the manure so produced than he has in the fodder before it is consumed. It is not made in the ordinary course of husbandry; it is produced in a manner substantially like making it in a-livery stable.”

In the present case complainant had no interest in the fodder which was fed out by defendant Newcomb. Her rights in it were not in any way different than they would have been in fodder purchased by the tenant. When the manure was made, the rights of the defendant Newcomb were those of a tenant in the buildings only. His rights to pasturage terminated when winter set in. The manure was produced substantially like making it in a livery stable. See, further, Gallagher v. Shipley, 24 Md. 418 (87 Am. Dec. 611).

It should be stated that the record shows that there was no manure on the premises when sold. The right of a purchaser to the manure accumulated on agricultural lands is, therefore, in no way involved.

Decree is affirmed, with costs.

The other Justices concurred.


author: Long, J.

text:
    SOKUP v. LETELLIER
    1. Principal and Agent — Ratification of Agent’s Contract.
    Defendant contractor, V., not having sufficient credit to purchase materials in erecting a house, applied to defendant L. to furnish lumber as needed, and agreed to assign to L. a mortgage as security. L. sent an agent, F., to examine the mortgaged property, and, relying on his report that the security was ample, agreed to V.’s proposition. From that time all of V.’s negotiations were carried on with F. ' V. had received estimates from complainants for furnishing certain materials, and notified them that L. would pay them out of the mortgage proceeds. F., who had so agreed with V., informed complainants that this was true. L. had no knowledge of these transactions. An assignment of the mortgage to L., and a contract collateral to it, authorizing L. to apply the proceeds under the mortgage to the payment of his claim, were delivered to the agent, F. Held, that the proceeds from the mortgage should be divided pro rata among all these material men, as the accepting of the assigned mortgage by L. was a ratification of the acts of his agent.
    2. Mortgages — Proceeds oe Sale — Distribution—Degree.
    Where the circuit judge, upon finding that a mortgage should be subjected to the payment of certain claims, entered a decree requiring the holder of the mortgage to assign to a receiver for foreclosure and sale and distribution of the proceeds among the persons entitled, he was in error in omitting to direct such holder to account to the receiver for interest collected on the mortgage,
    S. Same — Adversary Proceeding — Costs.
    Where a mortgage was assigned to defendant L. as security for materials furnished, under an agreement, ratified by L., that it should likewise stand as security for the claims of complainants, also material men, and complainants were obliged to bring suit to subject the mortgage to their claims, the suit was distinctly an adversary proceeding, and costs, as between solicitor and client, were properly not allowed to be deducted from the proceeds of the mortgage before distribution.
    Appeal from Kent; McMahon,-J., presiding.
    Submitted February 7, 1900.
    Decided April 24, 1900.
    Bill by Frank J. Sokup and William Reid against Francis Letellier, Abraham Vanden Boogert, and Clara S. Morley to subject a mortgage to the payment of certain claims. From the decree rendered, complainants and defendant Letellier appeal.
    Modified.

      Rood & Hindman, for complainants.

      Butterfield & Keeney, for defendant Letellier.
   Long, J.

The bill was filed in this case for the purpose of subjecting a real-estate mortgage held by defendant Letellier to the payment of certain claims held by complainants and some of the defendants for materials furnished for a building erected by defendant Vanden Boogert, as contractor. The court below filed a written opinion in the case, in which the facts are set out as follows:

“1. In the month of September, 1894, one Carrol Hartman contemplated erecting a building on East Fulton street, in Grand Rapids, Mich. Abraham Vanden Boogert was a contractor and builder in said city, and agreed with Hartman to erect the building.
“2. Before making the contract, Vanden Boogert went to William Reid, a dealer in glass, to Frank J. Sokup, a maker of roofs and galvanized cornices, and to Clara S. Morley, an agent dealing in lumber, and obtained estimates from them for the furnishing of the material for the aforesaid building, in accordance with his contract with Hartman. Hartman had 'failed in business about two or three years prior to this time, and Vanden Boogert had little property, and for these reasons neither had extensive credit.
“ 3. The contract price for the building was to be twenty-three or twenty-four hundred dollars. A portion of this Hartman agreed to pay in cash as the building progressed, and to give a mortgage for the balance on property owned by his wife in Spring Lake, Mich.
“4. A contract was finally made between Hartman and Vanden Boogert, and Mrs. Hartman executed and delivered to Vanden Boogert a mortgage on the property aforesaid for the sum of $1,953.
“5. The defendant Letellier was a dealer in lumber in Grand Rapids, and a man of considerable means. Vanden Boogert went to Letellier, and told him of his contract with Hartman, and asked him if he could take an assignment of this mortgage, and furnish lumber for the building as it was needed. Letellier referred Vanden Boogert to one Finegan, who was in his employ in the lumber business, and Vanden Boogert from that time on negotiated with Finegan in regard to the mortgage and furnishing of material. Letellier told Vanden Boogert that he would handle the mortgage providing it appeared that the security was good. In order to ascertain this, Letellier sent Finegan to Spring Lake to examine the property, and Finegan upon his return reported that, in his judgment, the property was worth the amount of the mortgage.
“6. Finegan was in the employ of Letellier on a salary, and it was his duty to attend to business in the office, make sales of lumber in the ordinary course of business, and to collect notes and accounts which had be,en given by customers for lumber sold. It was Finegan’s custom to carry on the business in the ordinary way, and in all matters of importance or of an unusual character consult with Letellier.
“7. On the 18th day of October, 1894, Yanden Boogert and Finegan went together to the office of Butterfield & Keeney, who were the attorneys and counsel for Letellier. Yanden Boogert executed and delivered to Finegan an assignment of the Hartman mortgage, in the usual form, and also executed and delivered a contract collateral thereto, reciting the facts, and authorizing Letellier, if the mortgage was not paid, to sell and dispose of it, and apply the proceeds to the payment of such sums of money as might then be due and owing from Yanden Boogert to Letellier. These papers, after they had been prepared, were read by the attorney, Mr. Keeney, to Yanden Boogert, and by him were executed without any suggestion or any further arrangement or contract between the parties.
“8. As a matter of fact, without consulting Letellier, without any special authority from him, Finegan agreed with Yanden Boogert that Letellier should take the mortgage, and pay all bills for materials which should be furnished to Yanden Boogert by other parties for the construction of the Hartman building. When Yanden Boogert applied to the agent of William Reid for the glass for said building, he informed the agent of his arrangement with Finegan, and Reid’s agent inquired of Finegan by telephone, and was informed by him that such arrangement did exist, and that Letellier was to pay these bills for material out of the proceeds of the mortgage when he should realize upon it; and, in reliance upon such assurance, Reid furnished glass for the Hartman building to the amount of $282.01. Yanden Boogert obtained flooring for the building from Mrs. Clara S. Morley to the amount of $102.48, upon the same conditions and assurances as in the case of Reid. He obtained roofing and material from Sokup to the amount of $150, giving Sokup to understand that Letellier would pay these bills from the proceeds of the said mortgage.
“9, Letellier had no knowledge of these transactions, or of the assurances given to these parties by Finegan. He furnished material for the building to the amount of over $1,200, advanced Yanden Boogert money to obtain material and to pay his employes from time to time, until the amount of the advances made by Letellier on account of this building was over $1,400. Letellier, also, at other times and on other accounts, advanced money and material to Vanden Boogert, and the amount of the indebtedness of Vanden Boogert to Letellier, at the time' this bill was filed, was at least equal to the face of the mortgage.
“ 10. Letellier was not informed of the situation until a short time prior to the bringing of. this suit, when the arrangement made with Finegan was explained to him, and demand made by or on behalf of Sokup and Reid of a share in the mortgage or its proceeds. Letellier insisted that these parties had no interest in the mortgage, that the assignment to him was absolute, and that no arrangement had ever been made by which he was to become liable to Sokup and Reid to the amount of the indebtedness of Vanden Boogert to them. * * *
“ The sole question presented by these facts seems to me to be whether Finegan was authorized to make the contract on behalf of Letellier which he did make with Sokup and with Reid.”

From these findings of fact, the court below concluded, that all the parties must share in the mortgage pro rata, —that is, in proportion to the value of the materials furnished by them, respectively; and it was decreed that Letellier assign the mortgage to a receiver to he appointed by the court; that the receiver either sell the mortgage or foreclose it, and pay out of the proceeds the costs in the case; that he then distribute the balance of the proceeds to the parties as above, less the receiver’s compensation, to be allowed by the court; and that defendant Letellier pay complainants their statutory costs to be taxed. Complainants and defendant Letellier have each appealed from this decree. .

The main contention of counsel for defendant Letellier is that this decree cannot be sustained, for the reason that it attempts to make a contract between parties at variance with the written contract, and that such written contract cannot be changed or varied by parol evidence. Counsel cite many cases to sustain this proposition. Counsel for complainants admit this rule, but insist that the finding made by the court does not violate the rule. In this we think complainants’ counsel correct. It appears that Mr. Hartman, who was without funds, wanted to put up this building. The mortgage was given for the purpose of obtaining the material and labor with which to build it. Yanden Boogert obtained the mortgage in his own name, and the material and labor were furnished by all the parties upon the understanding that the mortgage was taken and held for the sole purpose of security to them. The mortgage was assigned by Yanden Boogert to defendant Letellier, and a contract executed by Yanden Boogert to Letellier, reciting the assignment, and by the terms of which Letellier was authorized to collect the mortgage, and pay himself out of the proceeds. Finegan made arrangements for Letellier with these other parties, well knowing that all the material men were relying upon the mortgage for the payment of their claims. In fact, Yanden Boogert had no other means of getting the materials except by these representations that the mortgage was given for this purpose. " Finegan knew this, and the court below found that:

‘ ‘ The condition upon which the mortgage was assigned to Letellier was that the bills of Reid, Morley, and Sokup should be paid by Letellier out of the proceeds of the mortgage, and it cannot be said that' Yanden Boogert would have assigned the mortgage on any other terms. If, therefore, Letellier chose to take and keep the mortgage, it was incumbent upon him to carry out the terms of the contract by which it was obtained. He has taken and kept the mortgage, and to that extent he has affirmed the contract. This amounts in law to a ratification of the whole contract which Finegan made.”

In support of this the court cites the case of Busch v. Wilcox, 82 Mich. 336 (47 N. W. 328, 21 Am. St. Rep. 563). In that ease it was held that when a principal adopts the contract of a self-constituted agent, who has assumed to act for him without authority, he is bound to inquire into and ascertain the extent to which the self-constituted agent assumed to act in his behalf; and the principal, when he becomes such by adopting his acts, is bound by all the acts within the scope of the assumed authority. Here Finegan knew of the representations made by Van-den Boogert that this mortgage was to be-held for the benefit of all the parties. He was acting as the agent of Letellier. He knew that the assignment was made to Letellier, and that the other parties were relying upon the agreement that they were to be protected. Letellier had left the matter in F-inegan’s hands, and, when he accepted the assignment of the mortgage, was bound to carry out the agreement made by Finegan by which the assignment was obtained. We think the court was not in error in so holding.

It appears, however, that Letellier had collected interest on the mortgage to the amount of $350. There is not sufficient due on the mortgage to pay all the claims, but the court below directed an assignment of the mortgage to a receiver, and a sale or foreclosure of it by him. The court made no provision in the decree for the payment by Letellier of the interest collected bn the mortgage or for his accounting therefor. This should be done. The decree of the court below'must be modified in that respect.

The court below decreed that:

“ The receiver shall pay out and distribute the moneys that shall come into his hands in the following manner: (1) All expenses of the receivership. (2) The balance received by him, to the amount, in the proportion, and to the persons heretofore mentibned in this decree as entitled to the same, except that the receiver shall deduct from the amount due said Letellier the taxable statutory costs in the case, and pay the same to the complainants or their solicitors, in case the same have not already been paid by said Letellier.
‘ ‘ The matter of the taxation of costs, as between solicitor and client, is denied.”

It is the contention of solicitors for complainants that the costs, as between solicitor and client, should be deducted from the fund before any division is made of it. We think not. The case, as between the parties, is strictly an adversary proceeding. It is not different in this respect than would be an action at law to recover from Letellier the proportion of the proceeds of the mortgage belonging to complainants. It is not like a proceeding instituted for the purpose concerning a fund which is subject to dissipation. The mortgage fund was in no danger. The controversy related solely to the question of whether complainants were entitled to share in the fund. "We do not think the rule should be extended to include an allowance in such cases.

The decree below, modified as indicated, will be affirmed. Complainants will recover costs of this court.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Grant, J., took no part in the decision.


author: Hooker, J.

text:
    CHASE v. MIDDLETON.
    1. Township Board op Health — Abatement of Nuisance — Record op Proceedings.
    The record of the proceedings of a township board of health stated merely that a motion was made that a member of the board should serve a notice on the owners of a ditch, constructed by them to drain certain lates, requiring them to abate the same as a nuisance, for the reason that the withdrawal of the water through the ditch, at certain seasons, left exposed a large amount of low, wet land, which, because of decaying vegetation, was dangerous to the public health. Then followed a certificate of the member directed to serve the notice, that he did personally serve the same, but showing neither what notice was served nor upon whom service was made. The member admitted that there was no service upon one of the owners, and that the entry in the record was made subsequent to, the commencement of suit by such owners to compel persons who had obstructed the ditch to remove the obstructions. Held, that the proceedings of the board of health were irregular, and ineffectual to authorize an abatement, and afforded no protection to defendants in such suit.

      2. Highways — Easement—Prescriptive Right.
    One who constructed a ditch across a highway, and used the same as a drain for more than 20 years, without objection from the township authorities, acquired a prescriptive right to such use.
    3. Same — Condemnation Proceedings.
    Where, after complainant had constructed a ditch across a highway, and bridged the same, the township authorities changed the line of the highway, and built a new bridge, a • proceeding, instituted many years later, to restore the highway to its original course, in which complainant was allowed a nominal sum for damages to his land, could not be relied on as a legal condemnation of his right to maintain the ditch.
    4 Townships — Liability for Torts of Officers.
    A township is not liable for the torts of its officers in filling up a ditch without legal authority.
    Appeal from Kent; Grove, J.
    Submitted February 8, 1900.
    Decided April 24, 1900.
    Bill by Frank R. Chase and George Banks against Cíiarles W. Middleton, executor of the estate of Edward Middleton, deceased, Albert W. Middleton, Cass T. Wright, Nathaniel Havens, and the township of Oakfield, for an injunction and other relief. From a decree dismissing the bill, complainants appeal.
    Reversed.

      George E. & M. A. Nichols (E. D. M. Davis, of counsel), for complainants.

      Wolcott & Ward (N. O. Griswold, of counsel), for defendants.
   Hooker, J.

At an early day there were in Oakfield township, Kent county, five lakes, whose overflow found its way northward to the Flat river, as follows, viz.: From Horseshoe lake to Woodbeck lake; thence to Stock or Banks lake; thence to Thomas lake; thence to McClellan lake, whose outlet emptied into Black creek; which, after receiving the waters of Clear creek, emptied into Flat river; upon which, some miles below, were the dams and mills of Edward Middleton and Cass T. Wright. The accompanying diagram will serve to show the relative positions of the lakes and their surroundings:

John and George Banks owned the lands between Woodbeck lake and Thomas lake, which included Stock or Banks lake, in the bottom of which was a bed of marl, supposed to be valuable, but which could only be made available by lowering the water in that lake. We get the impression from the testimony that in ordinary stages of the water there was little, if any, water flowing between the three southernmost lakes, but that the Van Winkle dam, which was located upon Black creek, below the mouth of Clear creek, for logging purposes, set the water back into McClellan, Thomas, and Banks lakes, and possibly the others also. The level of Horseshoe lake was considerably above the level of Wabasis creek, distant a few rods south. They were separated by a ridge of sandy land. Banks Bros, conceived the plan of cutting a ditch- through this ridge, thus making an outlet to these lakes to the south, which would have the effect of lowering Banks lake. To enable them to carry out this project, they purchased a piece of land, extending from Horseshoe lake to the creek, upon which to dig the ditch. George Banks entered into a written agreement with all of the persons owning land bordering upon the lakes or outlets south of their own land upon Banks lake. By this agreement he promised to lower the three lakes mentioned, and in consideration thereof the other parties to the contract consented to his “lowering and drawing off the waters of said lakes, and that he should have the right to keep the same off as long as he should desire to do so, and that they would never interfere with his rights aforesaid within twenty years;” and it was also agreed that he should lower the water as soon as he could consistently, and keep the same down, at least to the common high-water mark as it existed before any dams were built on , Black creek below the lakes. This agreement was dated in 1865.

Banks Bros, proceeded without delay to construct the ditch contemplated, and, to avoid any effect upon the lakes north of Banks lake, they built a dam upon their own land, across the outlet of Banks lake, which had that effect, except when cut or injured, as it was on a few occasions. At the time this ditch was dug, a highway existed upon the ridge south of Horseshoe lake, and a bridge was built by Banks Bros, over the ditch. The ditch had the expected effect upon the lakes, lowering the water several feet, and exposing the marl bed. Owing to the nature of the ground and the sharp fall, the water increased the size of the ditch, and made trouble with the bridge. Finally, it is said, an arrangement was made by which the township agreed to maintain the bridge, and ultimately it changed the line of the highway from the ridge to a point on lower ground near the lake, and erected a new bridge. It is, claimed that this bridge was used more than 15 years prior to 1893, and until burned by some person or persons unknown.

Soon after this, the township authorities attempted to vacate the road near the lake, and relay it upon the ridge, near or upon its former line, and caused the ditch to be filled; thereby practically shutting off the outlet to the south, and causing the water to rise in the lakes to its old level. John Banks thereafter sold and assigned his interest in the premises, with all rights of action, to Chase, by whom, in conjunction with George Banks, the bill in this cause was filed. The bill states that the action of the township was invalid, in so far as it attempted, either through its board of health or township board, to deprive the complainants of their right to maintain the ditch. The other defendants are mill owners upon Flat river, who are charged with conspiring and aiding in the perpetration of the alleged wrong upon the complainants. The bill prays a mandatory injunction, commanding the township to remove the obstruction to the ditch, and reconstruct the dam between Banks and Thomas lakes; and that, if more in accordance with equity, this work be ordered to be done by all of the defendants; and that an injunction issue against all, commanding them to thereafter refrain from interfering with complainants’ rights in the premises. As an alternative, it was prayed that the complainants be decreed a sufficient sum to compensate them for doing such work, and that the defendants be restrained from subsequent interference. A decree was also asked against each and all defendants for the damages sustained, including loss of profits, and for general relief. Edward Middleton was made a defendant, but died pending the suit, which was revived in the name of his executor. Nathaniel Havens was the highway commissioner of the township, and participated in filling up the ditch. The defendants answered, and the case was heard, proofs being taken in open court.

The important questions appear to have been:

1. Whether Banks Bros, acquired a right to maintain their ditch.

2. Whether it was abated under proceedings by the board of health of the township, and, if so, whether those proceedings were valid.

3. Whether the filling of the ditch for the purpose of a highway was lawful, under the proceedings taken.

4. Whether the Middletons and Wright, or any of them, had anything to do with those proceedings.

5. Whether the complainants suffered any injury thereby. •

The court found:

1. That the agreement between Banks and the riparian owners was a license, revocable at the end of 20 years, and that, as Banks Bros, were claiming under such license, they acquired no prescriptive right to control the waters of the lakes.

2. That practically no beneficial use of the marl beds was made by Banks Bros., except in an experimental way, from about 1871 to 1893.

3. That the alternate rising and lowering of the waters, resulting from the attempts of Banks Bros, to control them, created a public nuisance, and that the township board of health, after due notice, abated «it, by filling the ditch, thereby restoring the waters of the lakes to their nátural level.

4. That this was a proper and legal exercise by the board of health of their power.

5. That the damages, if any, to the complainants were inconsiderable, while the menace to the public health was great.

The bill was dismissed, with costs, and the complainants have appealed.

The testimony convinces us that the complainants have a valuable bed of marl upon their land, in proximity to the railroad, and that it is not accessible with the water at its natural level. As early as 1865 the Banks considered it worth their while to go to considerable trouble and expense to drain the bed, so as to make it feasible to excavate and use the marl. From that time until 1893 they maintained and enjoyed their right to keep the waters down. The township, if it had any rights to the contrary, did not assert them, nor does it appear that the public, or any member of it, complained that rights of navigation were affected thereby. On one occasion Mr. Middleton did assert an objection to the maintenance of the ditch, and caused some obstructions to be placed' in it, but, on the Banks requiring it, he caused them to be removed, thus recognizing the right of the Banks to maintain the ditch. This was in 1891, when the ditch had been used over 20 years. Two years later some one suddenly awoke to the realization that the public health was in danger from the “odors” which came from the lakes. A petition was circulated through the surrounding country, asking that the nuisance be abated, and the board of health of the township took steps in the matter. By a singular coincidence, the bridge across the ditch was burned about this time, and, by a still more significant coincidence, an application was made to the highway officers to take up the existing highway, and relocate it upon the ridge. Accordingly, the board of health condemned the ditch, and began to fill it up, and on the same day the highway officers, who found that the board of health had begun to fill at the exact spot to which the highway had been changed, finished the job. A bee was made, which some of the inhabitants attended, and $50, which Middleton contributed to the project, was paid into the public treasury, as shown by the township treasurer’s receipt, $25 to be applied to the township fund, and $25 tp the highway fund. Twenty-five dollars was expended on filling the ditch, and $25 was applied to the payment of the members of the board of health.

We are satisfied from the testimony that Mr. Middleton and other persons interested in raising the lakes had more to do with having the ditch declared a nuisance than did any well-founded or wide-spread conviction that the public was suffering from, or in danger of, an epidemic ascribable to the draining of those lakes. Many witnesses testify that the odors arising from the drained portions of the lakes were not specially noticeable, or the subject of comment; while, of those who testify to the contrary, some admit that they wanted the water raised to help their wells, to facilitate the drinking from the lakes by stock, the making of a pleasure resort for cottagers, or that the fishing might be improved. We are convinced that there was an understanding between Middleton, the township officers, and the board of health that the latter should declare the place a nuisance, and, by the aid of some of the inhabitants, start a fill in the ditch, which should be taken up and completed by the highway officers, who were to change the line of the road for the purpose; and that Middleton contributed $50 to the enterprise, which whs carried out accordingly, under the protection of a constable or deputy sheriff, who, through the unnecessary caution of the projectors of the scheme, was engaged to be present to preserve the peace, which it was expected that George Banks would otherwise break. We look upon this as a high-handed proceeding, which cannot be too severely condemned, and should not protect the parties who participated, unless the regularity of the proceedings of the board of health and highway officers compels it. This we cannot say, (1) because we find them to have been fraudulent; (2) we find neither of them regular.

The board of health was moved by a petition. This is recorded in the proceedings of the board. Then followed an entry as follows:

“Edward W. Blanchard, one of the members of the township board of health, moved that A. D. La Shell, one of said board, be instructed to serve the following notice upon George Banks and John Banks, said service to be made as soon as convenient; said notice being in words and figures as follows, to wit:
‘“Oakeield Township, Kent County, Mich., June 5, 1-893. “‘To George Banks and John Banks:
“ ‘ You are hereby notified, as owners or occupants of the artificial drain or ditch leading from certain lakes in said township, particularly the lakes known as the ‘Woodbeck Lake’ and the ‘Horseshoe Lake,’ in said township, by which the said lakes are drained into Flat river, instead of into Black creek, where said water would naturally flow, to abate a nuisance caused along and around the margin of said lakes by the maintenance of said artificial drain; said nuisance consisting of the fluctuation of the amount of water retained in said lakes by said artificial drain partially draining the same, and leaving at certain seasons of the year a large amount of land around the margin of said lakes, which is low, wet, and unwholesome, and dangerous to health, on account of decayed vegetation and the gases and unwholesome stench which arises therefrom while the land is so temporarily exposed. The exposing of said land to the sun, and the withdrawing of the water therefrom, being a public nuisance, and a detriment to the public health of the inhabitants of said township, you are therefore ordered to have said nuisance abated by filling up said artificial drain sufficient to cause the water to flow in its natural channel, within forty days from the date of the service of this notice upon you.
“ ‘ Given under our hands this 5th day of June, 1898.
‘“Edward H. Jones,
“‘Edward W. Blanchard,
“ ‘ A. D. La Shell,
“ ‘H. M. Hutchins,
“ ‘Members of the Board of Health of the Township of Oakfield, Kent County, Michigan.’”

This is followed by an entry reading:

“I hereby certify that I personally served the within notice.
“Dated this 5th day of June, 1893.
“A. D. La Shell.”

It was admitted by La Shell, whose name is appended to the entry, that he did not serve the notice on George Banks, and that the entry was made after this bill was filed. It does not show what notice was served, nor upon whom it was served. The record contains no action upon the petition, declaring the ditch a nuisance, and ordering it abated, unless the motion of Blanchard, directing a notice to be served, can be said to sufficiently show such action.

We need not inquire whether the complainants acquired prescriptive rights against those with whom they contracted. It is evident, however, that they did, so far as the Middletons and Wright were concerned.

As to the members of the board of health, there is no pretense that their acts can be justified, except upon the theory of valid action as a board or health. So, the highway officers can only justify upon the theory that Banks Bros, trespassed upon the highway, or that their rights were condemned in valid proceedings to lay out the highway. "We have already said that we think both proceedings invalid for fraud, and endeavored to show how the proceedings of the board of health were inadequate. If it be said that Banks Bros, had no right to cross the highway with the ditch, there are several answers: (1) They acquired a prescriptive right by a 20-years user; (2) the township appears to have abandoned the highway in existence at the time the ditch was made, and subsequently made use of another, recognizing Banks Bros.’ rights by bridging the ditch. In the last proceeding to change the highway, they profess to have condemned Banks Bros.’ land for the purpose. They awarded them two dollars for the damage. They do not pretend to have-condemned the right to maintain the ditch, or to have-paid anything for the right to lower the lakes; relying upon the action of the board of health. We are of the opinion that all engaged in the enterprise of filling the complainants’ drain, or removing the dam between Banks and Thomas lakes, were trespassers, and should be required to remove such obstructions and replace the dam. Three members of the township board were present participating, and money was received into the public treasury for, and appropriated to, the purpose. They are not parties to the record, however, and the township is not liable for the torts of its highway officers and members of the board of health, under circumstances like these. McElroy v. City Council of Albany, 65 Ga. 387 (38 Am.. Rep. 791); Wilson v. Mayor, etc., of Macon, 88 Ga. 455 (14 S. E. 710); Cooney v. Town of Hartland, 95 Ill. 516; Elmore v. Drainage Commissioners, 135 Ill. 269 (25 N. E. 1010, 25 Am. St. Rep. 363); Jolly’s Adm’x v. City of Hawesville, 89 Ky. 279 (12 S. W. 313); Goddard v. Inhabitants of Harpswell, 84 Me. 499 (24 Atl. 958, 30 Am. St. Rep. 373), and cases cited; Thayer v. City of Boston, 19 Pick. 511 (31 Am. Dec. 157); Clark v. Inhabitants of Easton, 146 Mass. 43 (14 N. E. 795); Taylor v. Township of Avon, 73 Mich. 604 (41 N. W. 703); Dawson v. Township of Aurelius, 49 Mich. 479 (13 N. W. 824); Town of Chelsea v. Town of Washington, 48 Vt. 610; 2 Dill. Mun. Corp. (4th Ed.) §§ 961-964, 972, 975.

The compláinants may take a decree requiring the defendants Middleton and Havens, at their own expense, to remove the obstructions to the complainants’ ditch, and put it in as good condition as before it was filled, and requiring defendants Middleton to replace and rebuild the dam between Banks and Thomas lakes, upon its former site, to the same height, and in as substantial a manner and condition, as it was before said dam was cut or destroyed, and that, unless said work shall be done or completed within 90 days from the filing of this decree, the complainants shall be at liberty to do and perform the same, or either thereof; in which case they shall be entitled to recover from said defendants Middleton the sum of $250 for reconstructing said dam, and from said defendants Middleton and Havens the sum of $723 for removing the obstructions to said drain. The bill will be dismissed as to defendant Wright, with costs. All other defendants will be restrained- from preventing the removal of said obstructions, or in any way preventing the drainage of said lakes to the level at which they were maintained previous to the filling of said drain. The complainants will recover costs of both^ courts against defendants Middleton and Havens.

The other Justices concurred.


author:
Long, J.
      Grant, J.

text:
    ANTI-KALSOMINE CO. v. KENT CIRCUIT JUDGE.
    Trial — Accounts—Order of Reference — Discharge of Auditor-Mandamus.
    Under 3 Comp. Laws 1897, §§ 10098, 10103, authorizing trial courts to appoint auditors to investigate accounts, and to discharge them for sufficient reasons, and appoint others, an order discharging an auditor appointed to take an account is within the discretion of the trial court, and, in the absence of abuse of such discretion, mandamus will not issue to set aside the order.

      Mandamus by the Anti-Kalsomine Company to compel Willis B. Perkins, circuit judge of Kent countjr, to set aside an order discharging an auditor.
    Submitted March 7, 1900.
    Writ denied April 24, 1900.

      T. J. O’Brien and Wanty & Knappen, for relator.

      Hyde, Earle & Thornton, for respondent.
   Long, J.

In 1898, Melvin B. Church brought a suit at law by declaration against the relator in the Kent circuit court. Relator demurred to the declaration, and the demurrer was sustained in the court below. The case being removed into this court, it was remanded, and the relator given 20 days in which to plead. In the opinion in that case it was said that the court below was authorized to appoint one or more auditors to investigate the accounts, and take evidence in relation thereto, and to make a report thereon, which report might be used in a jury trial; citing 2 How. Stat. §§ 7386, 7391. The case is reported in 118 Mich. 219 (76 N. W. 383).

It appears that the court below thereafter appointed one auditor, to whom the case was referred. Thereafter plaintiff in the cause made application to this court for mandamus to compel the court below to set aside that appointment. This was refused. Certain proceedings were had before the auditor, when he made a report to the circuit court, embodying his conclusions as to the scope of his duties and powers, in view of the apparently irreconcilable conflict of opinion between the contesting parties before him. A motion was then made by the plaintiff to discharge the auditor, and the order was made. This application is for mandamus to compel the court below to set that order aside. A return has been made to an order to show cause, and the circuit judge sets out fully the reasons why the order of discharge was made. It is claimed therein that the appointment, under the terms of the statute, was one within the discretion of the trial court, and that the order revoking the appointment was also within his discretion.

We think this is true. The statute, by section 7386, provides that the court may appoint one or more auditors when it shall appear that the trial will require the investigation of accounts or the examination of vouchers. Section 7390 provides that the court may, for sufficient reasons, discharge the auditors, and appoint others, and may also recommit the report for revision or further examination, etc.

Counsel for relator are in error in supposing that this court held, in deciding the demurrer, that the case should be referred to an auditor. It is true that it was suggested that the trial court had the power, under the statute, to appoint auditors, but it was not determined that the case should be so submitted; and again, in the mandamus case afterwards brought, it was not so determined, but it was thought the appointment was within the discretion of the court, and the order was not disturbed.

We are therefore of the opinion that the order discharging the auditor is within the discretion of the court, and we are not able to say that the discretion has been abused. The writ must be denied, with costs.

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

Grant, J.

I concur in the conclusion reached by my Brother Long. I desire to express my reasons therefor more fully, in view of the trial to be had before the jury. It was held by us that, upon the declaration filed, this was a proper case for reference to an auditor under the statute. In compliance with that decision, Judge Adsit made an order of reference. After the expiration of his term of office, his successor, upon petition of the plaintiff, discharged the auditor from any further consideration of the case. This was based upon a report of .the auditor upon the conflicting claims of the parties, and his difficulty in determining the extent of his authority .under the statute. As I read the record, Judge Perkins did not arbitrarily set aside the order of his predecessor, but made the order upon the concession of the plaintiff in his petition and before the auditor that the books are correct, and that, if lie has any claim, it is based upon fraud, with which the books have nothing to do. This being so, I think the circuit judge acted within his authority, and with proper discretion. By plaintiff’s concession, both before the auditor and upon his petition, he is now estopped to contest the correctness of the books, and a necessity for an accounting is thus obviated. So far, therefore, as the books of the defendant and the Diamond Wall-Finish Company are concerned, they must be taken as correct in the trial before the jury. Plaintiff now stands before the court admitting that the books show no fraud, that they are correct, and that his claim is based upon matters entirely outside of them.


text:
    METCALFE v. MICHIGAN STATE BOARD OF REGISTRATION IN MEDICINE.
    Physicians — Registration—College Graduate.
    One who attended a so-called medical college for a day only, during examination, and received a diploma therefrom, was not a graduate in medicine, within the meaning of the medical registration law of 1887 (2 Comp. Laws 1897, § 5280), and, therefore, the registration of such person, upon affidavit showing the above facts, was not a legal registration, such as would entitle him to be re-registered under Act No. 237, Pub. Acts 1899, which provides .(section 3, subd. 1) for such reregistration upon sufficient proof that the applicant was “legally registered” under the earlier statute.

      Mandamus by Richard Metcalfe to compel the Michigan state board of registration in medicine to register relator, and issue to him a certificate of registration.
    Submitted March 27, 1900.
    Writ denied April 24, 1900.

      George H. Heck (Fred H. Allen, of counsel), for relator.

      Horace M. Oren, Attorney General, for respondent.
   Montgomery, C. J.

Relator made application to the respondent board for registration as a medical practitioner, under Act No. 237 of the Public Acts of 1899. His application was refused. This application is for a mandamus to compel respondent to register his name, and grant him a certificate of registration.

Relator claimed the right of registration under the provisions of section 3 of the act, subdivision 1 of which reads as follows:

“The applicant sTtall be registered and given a certificate of registration if he shall present sufficient proof, within six months after the passage of this act, of his having already been legally registered under act number one hundred sixty-seven of eighteen hundred eighty-three, as amended in eighteen hundred eighty-seven, entitled ‘An act to promote public health.’ The fee for applicants of this class shall be one dollar.”

The relator produced proof of having been registered in February, 189?, under the earlier act, and insists that the respondent board is not authorized by the act of 1899 to look behind the fact of previous registration to ascertain whether the applicant was entitled to be registered. It is conceded that the law of 1899 is within the police power, and that the legislature might have vested the board with full power to investigate the right of the applicant to registration, but the contention is that the act of 1899 does not purport to give the board such authority; that, when the applicant presents evidence of former registration, the duty of the board is merely ministerial.

The language of the section above quoted requires, as a prerequisite to registration without examination, and by virtue of previous registration, that the applicant shall have been ‘ ‘ already legally registered. ” It becomes necessary, therefore, to turn to the earlier acts to ascertain whether the relator was “ legally registered.” Section 2 of Act No. 167, Pub. Acts 1883, as amended by Act No. 268, Pub. Acts 1887, provided:

“Every graduate of any legally-authorized medical college in this State or any [one] of the United States, or in any other country, shall be deemed qualified to practice medicine and surgery in all its departments, after having registered as provided in this act: Provided, that * * * every person qualified to practice medicine and surgery under the provisions of this act shall, within three months after this act shall take effect, file with the county clerk of the county wherein he has been engaged in practice, or in which he intends to practice, a statement, sworn to before any officer authorized to administer oaths in said county, setting forth, first, if he is actually engaged in practice in said county, the length of time he has been engaged in such continuous practice, and, if a graduate of any medical college, the name of the same and where located, when he graduated, and the length of time he attended the same, also the school of medicine to which he belongs. * * * It shall be the duty of the county clerk of each county in this State to record, in a book to be provided by the county, the affidavit (or sworn statement) of every physician practicing in said county. For recording each statement the county clerk shall receive fifty cents, to be paid by the person filing the same.” 2 Comp. Laws 1897, § 5280.

It will be noticed that the county clerk is by this act given no discretion to confer any rights upon the person registering. This right was defined by the act itself. If he came within its provisions, he was entitled to register. If he did not, while he might go through the form of filing an affidavit, yet, if it showed on its face that he was not entitled to practice medicine, it would be a contradiction in terms to say that the right was acquired by the bare act of filing evidence that was in itself wholly insufficient to show that he was so entitled. In this case the affidavit filed was as follows:

“State op Michigan, County of Berrien,}ss.
“Richard Metcalfe, being first duly sworn, deposes and says: That he is a physician, and actually engaged in practice in the county above named, and that he has been so engaged continuously for the period of ten years and -months. Also, that he is a graduate of Independent Medical College, a medical college located at Chicago, in the State of Illinois; that he attended said college for the period of one day, during examination, and graduated therefrom February 4, A. D. 1897. Deponent’s present residence and place of business is St. Joseph, in said county, and he belongs to the Physio-Medical school of medicine. That he practiced under Dr. Hugins for a period of ten years.
[Signed] “Richarq Metcalfe.
“Subscribed and sworn to before me this fifth day of February, A. D. 1897, at St. Joseph, in said county and State.
“John W. Needham,
“County Clerk, County of Berrien,
“State of Michigan.”

If we are able to say that a showing of attendance for one day only, and the grant of a diploma by a so-called medical college, do not constitute the fortunate recipient of such a- certificate a graduate, within the meaning of the law of 1887, it follows that, on the face of. the record of Berrien county, relator was not legally registered. We do say it. It follows that the relator is not entitled to the relief prayed.

The other Justices concurred.


text:
    SIEFERT v. SIEFERT.
    Evidence — Sickness of Witness — Testimony at Former Trial-Temporary Illness.
    Illness of, a witness does not justify reading in evidence her testimony given on a former trial, where the illness is not of a permanent character.
    Error to Gratiot; Daboll, J.
    Submitted April 4, 1900.
    Decided April 24, 1900.

      Assumpsit by George N. Siefert against Jacob Siefert, Jr., upon certain promissory notes. From a judgment for defendant, plaintiff brings error.
    Reversed.
    This was a suit upon two promissory notes, of $112.50 each. The defense is payment. Defendant gave testimony tending to show that at a certain time, in his house, he paid the plaintiff $193 in payment of the notes. The case had once been tried, and defendant’s wife was a witness, and testified that she heard plaintiff and defendant “figuring, out in the kitchen.” Plaintiff denied that he was present at that time. Defendant testified that his wife was sick, and unable to go out; was suffering from nervous prostration; was under the doctor’s care; that excitement made her nervous. On cross-examination, he testified that she was up and around the house; did some work; that she was getting better; and had been up and around the house for a week. Upon this showing, the court permitted her former testimony to be read.

      Edwin H. Lyon {Kelly S. Searl, of counsel), for appellant.

      Leet & Moinet {John T. Mathews, of counsel), for appellee.
   Grant, J.

{after stating fhe facts). She was only temporarily ill. Her deposition might have been taken. Her testimony was important. I find no authority which holds that temporary illness is sufficient to justify the reading of the testimony taken upon a former trial. "Where the illness is only temporary, certainly the opposite party should be allowed the choice to consent to a continuance or to the introduction of the former testimony. Counsel rely upon Howard v. Patrick, 38 Mich. 795. It must be conceded that the language there used is broad enough to include any case of illness. The character of the illness in that case does not appear in the opinion. The testimony was excluded. Upon examining the record, we find the offer was to prove that the witness, about five months before, had been struck with paralysis; had been confined to his house, and most of the time to his bed; had been ever since, and then was, insane, and unable to come to court, or to give his testimony or his deposition in the case. The language of the court must be construed in the light of the facts. The only safe rule is that the illness must be of a permanent character. We think this is the rule sustained by the authorities. 2 Jones, Ev. § 345; Rex v. Hogg, 6 Car. & P. 176.

Judgment reversed, and new trial ordered.

The other Justices concurred.