text:
    WALKER v. CITY OF ANN ARBOR.
    Public Improvements — Basis oe Assessment — Land Values.
    Under a statute authorizing a city to levy the cost of an improvement upon adjacent property “ by foot frontage, according to benefits, or by land values, as the common council shall determine,” an assessment based on the value of each parcel “exclusive of improvements” is void.
    Appeal from Washtenaw; Kinne, J.
    Submitted June 17, 1898.
    Decided September 27, 1898.
    Bill by Bryant Walker, administrator de bonis non of the estate of Corydon L. Ford, deceased, against the city of Ann Arbor and William Behfuss, county treasurer, to restrain the collection of a special assessment. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Hinton E. Spalding, for complainant.
    O. E. Butterfield, City Attorney, for defendants.
   Montgomery, J.

This bill was filed to restrain the. collection of a special assessment, upon property of the estate represented by complainant, to meet the cost of a lateral sewer. The court below dismissed the bill, and complainant appeals.

It is contended by the defendants that the decree should be affirmed without reference to the irregularities in the proceedings, if any, for the reason that there is no showing of fraud, and the complainant waited, before taking any proceedings, until the work of the construction of the sewer was completed. Defendants cite, to sustain this contention, Lundbom v. City of Manistee, 93 Mich. 170; Byram v. City of Detroit, 50 Mich. 56; Goodwillie v. City of Detroit, 103 Mich. 283; Fitzhugh v. City of Bay City, 109 Mich. 581; and the curative section of the general tax law. We regard the rule laid down in the cases cited as salutary and just, and, if the facts in this case admitted of the application of that rule, we should apply it with great satisfaction to ourselves. For although, as will be shown later, we feel constrained to hold that the basis adopted for assessment was erroneous, and therefore jurisdictionally defective, yet we are left in doubt as to whether the complainant’s cestuis que trustent have really suffered any substantial injury by reason of this departure. We find, however, in this case, an admission of record that the complainant had no knowledge of these proceedings until long after they were taken, and feel that we cannot, in view of this admission, ignore jurisdictional defects without doing violence to established principles.

We need discuss but one defect in the proceedings. Act No. 313, Local Acts 1895, § 2, provides:

“That all lateral and connecting sewers maybe constructed at the cost and expense of the lands, tenements, and premises adjacent thereto and benefited thereby, and the cost thereof may" be levied on and assessed against such lands, tenements, and premises, and collected from the owners thereof, by foot frontage, according to benefits, or by land values, as the common council shall or may determine by ordinance.”

The record shows that the assessment was made on the basis of the value of each parcel, “exclusive of improvements erected thereon.” While it was doubtless competent for the legislature to have authorized an assessment on a basis which would exclude the value of improvements (Cooley, Tax’n [2d Ed.], 649), the statute in question does not do so, but authorizes an assessment based upon the value of the land. Land, of course, includes the structures and improvements thereon. 2 Bl. Comm. 18. It follows that the basis adopted was unauthorized, and the assessment was jurisdictionally defective. The assessment must be set aside, but without prejudice to a reassessment, if the city shall be advised that one may be lawfully made. Complainant will recover costs against the city.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    THOMAS v. CRAWFORD.
    Deeds — Mental Incapacity — Grant to Married Woman — Consideration.
    Complainant, an aged woman, incapable, from grief over the recent death of her husband, of understanding the nature of business transactions, gave to defendant a deed of her property, in consideration of her support during life and burial at death. The grantee was a married woman, and, while her husband participated in the negotiations, he did not obligate himself to fulfill the wife’s agreement as recited in the deed. No separate instrument binding defendant was executed, and the deed did not correctly represent the bargain which defendant’s own testimony showed was made. Held, that it should be set aside.
    Appeal from Hillsdale; Peck, J., presiding.
    Submitted June 17, 1898.
    Decided September 27, 1898.
    Bill by Mary Thomas against Lucinda Crawford to set aside a deed. Prom a decree for complainant, defendant appeals.
    Affirmed.

      Frankhauser & Cornell, for complainant.

      Mains & Cavanagh, for defendant.
   Montgomery, J.

Bill filed to set aside a conveyance on the grounds of undue influence and mental weakness. The court below granted the relief prayed, and defendant appeals.

The complainant is a widow, and at the date of the conveyance was 74 years old. The evidence shows that she, as Dr. Howard, a witness for the defendant, expressed it, “is a nervous, fidgety woman, troubled with nervous prostration at times.”- About a week-after her husband’s decease the conveyance in question was made, transferring all the real estate which the complainant had to the defendant, who is not a relative. The deed recited a consideration “of her [grantor’s] support during her-natural life, and her burial at death, by said second party.” It was accompanied by no separate agreement. The complainant’s testimony tends to show that she was, at the time this deed was made, so overcome by grief that she was incapable of understanding the transaction, and did not, in fact, understand that she had conveyed away the fee of the land. The testimony on the part of the defense indicates thát the negotiations were conducted with defendant and her husband, and no satisfactory reason is shown why the husband was not obligated in some way to fulfill the engagement to care for complainant. The circuit judge was of the opinion that the deed -did not protect the complainant, or correctly represent the bargain which defendant’s testimony shows was made, and that the complainant did not understand the legal effect of the conveyance.

We are fully satisfied that the circuit judge reached the correct result. The case, in many of its features, is similar to Crips v. Towsley, 73 Mich. 399. The court found that defendant had been fully compensated for the care of complainant for the time she remained with her, and in this we also concur.

The decree will be affirmed, with costs.

The other Justices concurred.


author: Grant, O. J.

text:
    HOOKER v. BOND.

    1. Taxes — Constitutional Law.
    Certain objections to the constitutionality of the tax law of 1893 are overruled upon the authority of Ball v. Ridge Copper Co., ante, 7.
    .S. Same — Validity of Sale — Irregularities.
    Under former decisions, a tax sale is not void because—
    (1). No demand was made for the payment of the tax, nor effort made to collect the same from personal property.
    (3) The land was not assessed to the owner.
    (3) No order pro confesso was entered.
    (4) The decree was not entered in the record book of decrees, did not contain a description of the property, and was not enrolled.
    3. Same — Degree —Time of Entry — Directory Provisions of Statute.
    The provision of section 66 of the tax law of 1893, that decree shall be rendered “at least 10 days prior to the time fixed for the sale,” is directory merely, a failure to observe which does not invalidate the proceeding.
    4. Same — Curative Provisions.
    Furthermore, such a defect is clearly within the-curative provision of the act (section 99).
    •5. Same — Tax Record — Appeal—Objections not Raised Below.
    An objection that a certified copy of the decree in a tax proceeding was not annexed to the tax record, as required by section 67 of the tax law, will be disregarded on appeal, where the fact is not clearly shown by the record, and the-objection does not appear to have been raised in the court below.
    Appeal from Wayne; Donovan, J.
    Submitted June 7, 1898.
    Decided September 27, 1898.
    Petition by Joseph Hooker against William G. Bond, Estella C. Murgittroyd, and Elanson S. Murgittroyd, for a writ of assistance under a tax deed. From an order denying the writ, petitioner appeals.
    Reversed.

      Charles C. Stewart, for petitioner.

      Albert J. Chapman, for respondents.

       Rehearing denied June 28, 1899.

   Grant, O. J.

The petitioner, Joseph Hooker, presented his petition to the court below for a writ of assistance under a tax deed issued to him for delinquent taxes for the year 1892. The court denied the writ. The defendant Estella O. Murgittroyd is the owner of the original title. The validity of the proceedings under which petitioner obtained his deed is attacked for the following reasons:

1. The tax law of 1893 is unconstitutional, in that it permits landowners to be deprived of their property without due process of law.

2. The provision authorizing the issuance of the writ of assistance is void.

3. No demand for the payment of the taxes was made of the person liable to pay them.

4. The property was not assessed to the owner.

5. The collector did not seize and sell personal property to pay the tax.

6. No order pro confesso was ever entered.

7. No decree was made and entered of record in the proper book in the office of the register in chancery.

8. The decree does not contain a description of the property.

9. No certified copy of the decree was annexed to the tax record in the county treasurer’s office.

10. The decree was not enrolled.

11. The decree was not rendered 10 days before the day fixed for the sale.

The first and second objections are disposed of by Ball v. Ridge Copper Co., ante, 7. All the other objections, except the eleventh and ninth, are controlled by former decisions of this court. Muirhead v. Sands, 111 Mich. 487; Auditor General v. Sparrow, 116 Mich. 574; Mersereau v. Miller, 112 Mich. 103; Jenkinson v. Auditor General, 104 Mich. 37; Iron Star Co. v. Wehse, 117 Mich. 487; Hochgraef v. Hendrie, 66 Mich. 560. All - of these objections relate to questions over which the court in the tax proceeding had jurisdiction, and are foreclosed by that decree. The only way in which the defendant owner could have contested them was by appearing in that case, or, within the time provided, filing her petition to open the decree..

The statute clothes the court of chancery with general jurisdiction over these proceedings. It does not lose jurisdiction by the failure of any officer to perform the acts imposed upon him within the time fixed by the law, unless the taxpayer is deprived of some right, or unless the law, by negative language, prohibits the doing of the act at any other time. It should clearly appear that the act was mandatory; otherwise it will be held directory. If the taxpayer is not injured by the failure of the officer to act within the time prescribed, the failure does not render the decree and sale void. Justice Cooley states the rule as follows:

“The fixing of an exact time for the doing of an act is only directory, where it is not fixed for the purpose of giving the party a hearing, or for any other purpose important to him.” Cooley, Tax’n (2d Ed.), 289.
This rule is supported by Black, Interp. Laws, § 126; End. Interp. Stat. §§ 431, 436; 1 Blackw. Tax Titles, § 468; People v. Doe, 1 Mich. 451; Sibley v. Smith, 2 Mich. 486.

Where a statute required venires for grand jurors to be issued at least 40 days before the second Monday of September, a venire issued in less than 40 days was held valid, it being in season for service by the officer’ State v. Smith, 67 Me. 328.

A similar question was before the Supreme Court of the United States, involving the tax law of the Territory of Arizona, and it was held that the object of these provisions as to time was to secure prompt action, but that the court would not lose jurisdiction to enter a decree by failing to act within the time prescribed. The court in that case say:

‘ ‘ But, inasmuch as this proceeding is one in a court of general jurisdiction, it would require very precise and prohibitory language in the statute in order to withhold from that court the ordinary functions and powers of such a tribunal, among which is not only the right, but the duty, of giving such full consideration to all questions presented as its judgment determines is necessary. No such prohibitory language is found. The purposes and intention of the act are the collection of taxes, but only of such taxes as ought to be collected, and judicial determination is invoked to determine what taxes are justly due; and that the court takes time for the examination and consideration of this question does not oust it of jurisdiction.” Maish v. Territory of Arizona, 164 U. S. 599.

Moreover, this is one of the defects expressly cured by the statute that “no sale shall be held invalid on account of any irregularity, informality, omission, or want of any matter of form or substance in any proceeding that does not prejudice the property rights of the person whose property is taxed.” Act No. 206, Pub. Acts 1893, § 99.

i As to the ninth objection, if counsel for defendants intended to rely upon it, the should have introduced proofs to establish it. The objection is not argued by either counsel, and is not referred to in the brief of petitioner. It is made in the brief of defendants, without any reference to the record to support it. The record contains the petition of the auditor general, the decree, and report of sale. It shows that the deputy county treasurer was a witness, and that he produced the records from the office of the county treasurer, and that he read on his cross-examination from the decree, or a copy thereof, which must have been attached to the record. We find nothing to indicate that any such point was raised in the court below. It is a fair inference from the record that a copy of the decree was attached. If defendants claimed that it was void, they should have introduced it in evidence and made it a part of the record.

We are compelled to hold that the tax deed is valid, and that the petitioner was entitled to his writ of assistance.

The learned counsel for the defendants severely attacked the officers for their carelessness and neglect of • duty evidenced by the record in this case. It may be conceded that his criticism is deserved. This court has frequently spoken plainly upon this subject. But this does not excuse the taxpayer. This property had been Mr. Bond’s homestead for many years. The title was in his first wife, who died some years ago, leaving one heir, the defendant Estella C. Murgittroyd. The tax was not paid, and it does not appear that any of the parties interested made any attempt to pay it.

The order of the court below will be reversed, and the court directed to issue the writ of assistance. The costs of both courts are awarded petitioner.

The other Justices concurred.


author: Moore, J.

text:
    PRENTIS v. RICHARDSON’S ESTATE.
    1. Mortgages — Foreclosure—Decree for Deficiency — Notice.
    Under 2 How. Stat. § 6702, authorizing the court in foreclosure proceedings to render a personal decree against the mortgagor for a deficiency “on the coming in of the report of sale,” a provision in the original decree that the mortgagor shall be personally liable for a deficiency, “if any,” is insufficient; the statute contemplating a supplemental petition, with notice to the mortgagor.
    2. Same — Discharge in Bankruptcy — Effect.
    A mortgagor who receives a discharge- in bankruptcy pending foreclosiu-e proceedings is not liable to a decree for deficiency.
    Error to Wayne; Donovan, J.
    Submitted June 17, 1898.
    Decided September 27, 1898.

      John F. Prentis presented a claim against the estate ox David M. Richardson, deceased. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for the estate on verdict directed by the court, claimant brings error.
    Affirmed.

      H. G-. Holmes, for appellant.

      Dickinson, Thurber & Stevenson and Charles B. Warren, for appellee.
   Moore, J.

Prior to 1877, Mr. Richardson was liable upon a note secured by a mortgage. Foreclosure proceedings were commenced in August, 1877. The subpoena was personally served. The defendant did not appear in the case, and his default was taken December 20, 1882. A decree was entered, finding the amount due on the note and mortgage to be $9,313, directing a sale of the premises, and for the deficiency, if any, it was decreed defendant Richardson should be liable personally, and execution should issue therefor. In April, 1883, the commissioner made his report of sale, and also reported the deficiency was $5,581. This report was confirmed. No further proceedings were ever had in the cause. Mr. Richardson died in September, 1889, when Mr. Prentis presented a claim against his estate for the amount of the deficiency. The claim was disallowed by the commissioners. An appeal was taken to the circuit court, where the judge directed a verdict in favor of the estate.

The record shows Mr. Richardson filed a petition in bankruptcy in December, 1877. Among his list of debts was the debt secured by the mortgage. Mr. Prentis, doubtless because he preferred not to surrender his security, did not prove his debt in the bankruptcy court. In April, 1878, Mr. Richardson was discharged in bankruptcy. On the part of the estate it is contended there are two defenses to the claim:

1. The discharge in bankruptcy.

2. That the case is still pending in chancery, and, claimant having elected to proceed in'chancery, he must pursue his remedy there until authorized to pursue it somewhere else.

As to the first of these defenses, Mr. Prentis urges it might be good against a judgment rendered prior to the discharge in bankruptcy, but that it is not good against this decree, because it was rendered after the discharge was procured. It becomes important to inquire whether this personal decree was regularly taken. The right to a personal decree for the deficiency in a foreclosure proceeding is purely statutory. It is not until the coming in of the report of sale, showing a deficiency, that the court can make a decree directing the payment by the mortgagor of any balance remaining unpaid after a sale of the premises. Section 6702, 2 How. Stat., provides:

“When a bill shall be filed for the satisfaction of a mortgage, the court shall not only have power to decree and compel the delivery of the possession of the premises to the purchaser thereof, but, on the coming in of the report of sale, the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the mortgagéd premises, in the cases in which such balance is recoverable at law, and for that purpose may issue the necessary executions, as in other cases, against other property'of the mortgagor.”

This section has frequently been construed by the courts. In Johnson v. Shepard, 35 Mich. 122, it is said:

“Under the original equitable jurisdiction, there never was any power to make a personal decree against even the mortgagor himself. His personal obligation could only be enforced in a suit at law. It was an innovation which provided that, in case there was a deficiency left after exhausting the land, the debt might be collected in the same proceedings. The first Michigan statute authorizing this remedy was the chancery act of April 23, 1833, and was confined strictly to the mortgagor himself. Section 37. Before the Revised Statutes of New York, there was no remedy in equity against anything but the lands mortgaged, in that State (Dunkley v. Van Buren, 3 Johns. Ch. 330), and such was the general rule (Downing v. Palmateer, 1 T. B. Mon. 66). The debt could only be collected at law. The Michigan Revised Statutes of 1838 prohibited proceeding at law and in equity at the same time, and provided that the personal claim might be pursued against the mortgagor; but in giving this power it was made to act as a supplementary process. ‘On coming in of the report of sale, the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the premises, in the cases in which such balance is recoverable at law, and for that purpose may issue the necessary executions, as in other cases, against other property of the mortgagor.’ Rev. Stat. 1838, p. 376, § 105. * * * Our present statutes on this subject are in all respects the same with those of 1838, and those were borrowed from the laws of New York. The language is unambiguous in requiring the action which shall finally authorize the issue of an execution to be based on the confirmation of a report of deficiency. The proceeding is essentially new and supplementary, and not a mere continuation of the foreclosure. It resembles the proceeding had on the coming due of a new installment, which, although it is usually provided for in the original decree, is nevertheless as distinct a proceeding as a scire facias for further breaches of a bond. Brown v. Thompson, 29 Mich. 72. It was not until 1840, in McCarthy v. Graham, 8 Paige, 480, that it was settled by any reported decision that a contingent provision for personal liability could be inserted in the original decree. But it is merely contingent. It has never been held that an absolute decree can be rendered before the confirmation of the report, so as to operate as a final judgment. The practice in Michigan has generally conformed to the chancellor’s decision in McCarthy v. Graham.”

See, also, Howe v. Lemon, 37 Mich. 164; Gies v. Green, 42 Mich. 107; Ransom v. Sutherland, 46 Mich. 489; McCrickett v. Wilson, 50 Mich. 513; Vaughan v. Black, 63 Mich. 215; Shields v. Riopelle, Id. 458.

In Shelden v. Erskine, 78 Mich. 627, at page 633, Justice Campbell said, speaking of the jurisdiction of the court to render a personal decree in such cases:

“It is also to be exercised, and the trial of liability had, on a new hearing, after the deficiency is reported. Any decree in advance of sale made for payment is, at best, no more than declaratory, and can fix no rights.”

The cases hold very clearly the attempt to take a personal decree is substantially a new proceeding, requiring personal service upon the defendant, if he can be found. In this case it was the duty of the complainant, before a personal decree could be taken against the defendant, to serve him personally with notice of the application. When the decree was taken, Mr. Richardson was in default. He could not contest the amount due on the mortgage, for there was no dispute about the amount. He could not question the lien upon the land, for the bankruptcy proceedings could not discharge the lien. He had no reason to suppose an attempt would be made to take a decree against him personally, for the statute, by its terms, did not authorize such a decree until after sale; and, as construed by the courts, the statute did not permit the taking of a personal decree without the filing of a petition, and notice to him personally. He had a right to answer the petition. While he could not dispute the amount which was due upon the mortgage, he could set up any defense which would operate to discharge his liability upon the debt. He would have had a right to show that the debt secured by the mortgage was in existence when the bankruptcy proceedings were commenced, and was provable in the bankruptcy proceedings, and his discharge in bankruptcy. The discharge would not be a defense to the mortgage, but it' would be a defense to a decree against Mr. Richardson . personally for deficiency. McDougald v. Reid, 5 Ala. 810; Ewing v. Peck, 17 Ala. 339; Roberts v. Wood, 38 Wis. 60; Luning v. Brady, 10 Cal. 265. Mr. Richardson was never informed it was proposed to take a personal decree against him for the deficiency. He never had an opportúnity to plead his discharge in bankruptcy to an application of that character. He was entitled to such an opportunity before he could be cut off by the decree. Dresser v. Brooks, 3 Barb. 429; McDonald v. Ingraham, 30 Miss. 389 (64 Am. Dec. 166); Boynton v. Ball, 121 U. S. 457.

If be bad been properly brought into court before tbe personal decree was taken,' and failed to plead bis discharge in bankruptcy, a different question would be presented.

Tbe judgment is affirmed.

Tbe other Justices concurred.


author: Hooker, J.

text:
    BARNUM v. BARNES.
    1. Tax Sales — Sufficiency of Petition.
    A proceeding for the sale of land delinquent for taxes was found to have been based upon a petition forming a part of the tax record in the county treasurer’s office, rather than upon an incomplete instrument found among the flies in the office of the register in chancery.
    2. Same — Decree—Description of Lands.
    The decree in a tax proceeding, as recorded, need not contain a description of the lands to be sold; the statute (Act No. 206, Pub. Acts 1893, § 67) contemplating that the tax record, with its entries, shall be considered a part of the decree by reference.
    3. Same — Report of Sale — Sufficiency.
    A county treasurer’s report of a tax sale, filed with the county clerk, may refer to the tax record for the particulars of the sale, and need not set forth the same in full. Jenison v. Conklin, 114 Mich. 9, followed.
    4. Same — Decree—Time of Entry.
    A tax sale is not void because 10 days did not intervene between the date of the decree and the date of sale. Hooker v. Bond, ante, 255, followed.
    5. Same — Want of Enrollment.
    Nor is it void because the proceedings were not enrolled; 2 How. Stat. §§ 6648, 6649, and Chancery Rule No. 24, not being applicable to such a case.
    6. Same — Sale to State — 'Validity.
    Under section 70 of the tax law, it is not necessary that the sale should be kept open for 20 days before bidding off the land to the State, but it is sufficient if, on being reoffered before the close of the sale, it is found impossible to sell the land for the amount of the tax.
    7. Same — Void Sale — Remedies.
    Whether the validity of a tax sale can be questioned by petition in the main case after the rights of third parties have intervened, or whether the proper remedy is by bill of review, —qucere.

    Appeal from Van Burén; Buck, J.
    Submitted June 8, 1898.
    Decided September 27, 1898.
    Petition by Isaac E. Barnum against Arthur E. Barnes and the auditor general to set aside a tax sale. Prom a decree dismissing the petition, petitioner appeals.
    Affirmed.

      E. A. & Robert B. Crane, for petitioner.

      Williams & Williams, for defendant Barnes.

      James E. Chandler, for the auditor general.
   Hooker, J.

The petitioner is a mortgagee of the premises in question, which were sold for the tax of 1893, under a decree of the circuit court on petition of the auditor general. The purchaser sold to Barnes, who has appeared by solicitors in this proceeding.

The petition is filed to open the decree entered in the proceedings instituted by the auditor general, under which the sale was made, and allow the petitioner to defend against the tax, upon several grounds set up in the petition. The circuit judge denied the prayer of the petition. The jurisdiction of the circuit court is attacked upon the ground that a sufficient petition was not filed by the auditor general. The decree is said to be defective, in that it fails to describe any lands to be sold, and because it was not made 10 days prior to the time fixed by law for the sale; also because the county treasurer never made and filed with the clerk a report of sale. It also prays that the sale be set aside because made without enrollment of the case, and because the land was sold on the first day of the sale to the State, instead of offering it from day to day for 20 days.

To prove his case, the petitioner offered in evidence the files found in the office of the register in chancery, who testified that they were all of the files that he found in his office. Among these was a petition, and counsel for the petitioner insist that this must be assumed to be the petition filed in the case, and argue, among other things, that it appears to have been filed one day after the order of publication was made. On the other hand, counsel for the auditor general asserts that this writing was a copy, and was attached to the order of publication. On consulting the original return, we find a printed order signed by the circuit judge, followed by the petition, in the same type, with a memorandum to the printer to print both, which is required by section 66 of the law. Act No. 206, Pub. Acts 1893. It would seem to follow that this cannot be considered the original petition in the . case, and we need not discuss the numerous questions raised upon the assumption that it was such.

The record also contains a petition which seems to conform to section 61. It was in book form, containing a list of the lands alleged to be delinquent, and bears the evidence of filing signed by the register. It appears to have been produced from the county treasurer’s office. .We are satisfied of its identity and sufficiency as the original petition in the case. Mersereau v. Miller, 112 Mich. 103.

The decree is said to be void because as recorded it does not contain the descriptions of lands ordered to be sold. The statute (section 67 ) prescribes the form of the decree, and clearly indicates that the tax record, with its entries, shall be considered a part of the decree by reference, and as clearly that it was not intended that this record or any part of it should be recorded.

The report of sale was valid under the decision in the case of Jenison v. Conklin, 114 Mich. 9.

The decree was not made 10 days before the sale, but that does not preclude a sale at the usual time. The point is ruled by Hooker v. Bond, ante, 255.

It is also contended that the cause was not enrolled, and argued that this is necessary, under the general statute and rule, to the validity of a sale. The statute prescribes a time for the sale to take place, which precludes the application of 2 How. Stat. §§ 6648, 6649. Chancery Rule No. 24 cannot overrule the tax law, which provides when deeds may issue. Hochgraef v. Hendrie, 66. Mich. 561.

We cannot sustain the claim that the sale must be kept open 20 days before selling the land to the State. It is enough if, on being reoffered before the close of the sale, it is found impossible to sell the land for the amount of the tax during the sale.

It is contended that this is not a proper proceeding, after land has been deeded by the State, and conveyed by the purchaser to Barnes; that he is not a party to the record; and that a bill of review is the proper practice. We have not found it necessary to intimate an opinion upon that question.

The order of the circuit court in chancery is affirmed, with costs.

The other Justices concurred.


author: Long, J. Hooker, J. Montgomery, J.

text:
    STATE SAVINGS BANK OF DETROIT v. FOSTER.
    Banks and Banking — Who are Depositors — Individual Liability of Stockholders.
    A bank holding certificates of 'deposit issued by another bank, in which it has not actually deposited the moneys thereby represented, but to which it has given credit for the amount on its own books, against which checks or drafts have been drawn, is not a depositor, within the provision of 3 How. Stat. § 3208e5, creating an individual liability of stockholders to depositors. Montgomery, J., dissenting.
    Appeal from Ingham; Person, J.
    Submitted June 8, 1898.
    Decided October 3, 1898.
    Petition by the State Savings Bank of Detroit against Seymour Poster, receiver of the People’s Savings Bank of Lansing, to compel the payment of a dividend. Prom an order dismissing the petition, petitioner appeals.
    Affirmed.

      Walker & Spalding, for petitioner.

      Bussell C. Ostrander (Cahill & Ostrander, of counsel), for respondent.
   Long, J.

This petition was filed to compel the receiver of the People’s Savings Bank of Lansing to pay to the petitioner 12i per cent, dividend out of the moneys in his hands as such receiver. It appears that the petiti oner holds two certificates of deposit issued to it by the People’s Savings Bank, — one for $10,000, dated March 24, 1894; and one for $5,000, dated June 3, 1896. These certificates are in the usual form, each stating a deposit in the People’s Savings Bank by the petitioner of the amount of the certificate, payable to the order of the petitioner on the return of the certificate, properly indorsed, with interest if left for three months; no interest after a year from date, or for fractional parts of a month. These certificates, upon the insolvency of the People’s Savings Bank, were duly proved as claims against it. An assessment having been ordered by the court upon the stockholders of the People’s Savings Bank to pay depositors, this petition was filed, and claim made by petitioner that it was a depositor, and entitled to be protected as such, and to have its dividend declared the same as the other depositors.

The respondent, in answer to an order to show cause issued by the court below, after setting out the certificates of deposit in question, says, among other things:

“The moneys represented by the said certificates of deposit were not deposited in the People’s Savings Bank by the petitioner at any time in the regular course of the business of said bank; nor were they ever deposited in the People’s Savings Bank. The said moneys represent a sum borrowed by the People’s Savings Bank of the State Savings Bank of Detroit, which sum was placed to the credit of the People’s Savings Bank upon the books of the State Savings Bank of Detroit, against which credit so appearing upon said books the People’s Savings Bank drew its checks or drafts as its business required.”

Respondent further answers that he has declared no dividends as receiver of the People’s Savings Bank excepting out of funds coming to his hands from stockholders of said bank in discharge of their individual liability as stockholders; that, when he was appointed receiver of the bank, he found from an examination of its books and papers that said bank had borrowed from time to time of other banks and bankers, and that other banks and bankers, including the petitioner in this case, had loaned to the People’s Savings Bank, at its request, sums of money aggregating $96,.000 and more; that in his application to the court for an order permitting this respondent to enforce the additional or statutory liability of stockholders, and in ascertaining or determining the sum of money necessary to be raised from stockholders to pay depositors, none of the banks or bankers from whom said People’s Savings Bank had so borrowed sums aggregating $96,000 or more were treated as depositors in said bank. Respondent further returns that the petitioner holds, another certificate of deposit, not mentioned in said petition, dated July 10, 1896, for $8,000; and that, all the moneys put to the credit of the People’s Savings Bank having been drawn against and exhausted, the People’s Savings Bank continued to draw checks and drafts upon said petitioner bank, creating in said bank an overdraft, which amounted July 10, 1896, to about $8,000-; and that to balance said overdraft, and to stand for it, and to take the place of the money borrowed and represented by it, said certificate of $8,000 was issued.

Respondent therefore says that he is advised that the - provisions. of section 3208e5, 3 How. Stat., by which stockholders of every bank are liable individually for the benefit of the depositors in said bank to the amount of their stock at the par value thereof in addition to said stock, were intended to afford security to, and the word “depositors” therein means, the class of persons who, in the regular course of business, deposit or leave in a bank temporarily, and for a period determined at their option, money; that said section was not intended to protect, and the word “depositors” therein does not mean, persons from whom a bank, upon its own application, borrows money, whether loans so made are evidenced by notes, certificates of deposit, or otherwise. Respondent further says that he is advised that the certificates mentioned in said petition no more represent deposits in said People’s Savings Bank, within the meaning of the banking law of Michigan, than does the certificate of July 10, 1896; but that all of them represent money loaned by the petitioner to the People’s Savings Bank in the regular course of the-borrowing and lending of money.

On the coming in of this answer, the court below dismissed the petition, with costs in favor of respondent. Petitioner appeals from this order.

Section 3808e5 provides that—

"The stockholders of every bank shall be individually liable, equally and ratably, and not one for another, for the benefit of the depositors in said bank, to the amount of their stock at the par value thereof, in addition to the said stock. * * * Such liability may be enforced in a suit at law or in equity by any such bank in process of liquidation, or by any receiver or other officer succeeding to the legal rights of said bank.” Section 46, Act No. 205, Pub. Acts 1887.

The above section forms part of the act entitled “An act to revise the laws authorizing the business of banking, and to establish a banking department for the supervision of such business.” The act provides for two kinds of banks, to wit, commercial banks and savings banks; and the powers of each are fixed by the act, and each may receive deposits. It was the evident intent of the legislature that only those persons who should become depositors in the bank should have any claims upon stockholders under section 46, which makes stockholders liable to “depositors in said bank.” The federal banking law now in force, which provides for banks of issue, makes stockholders liable for all engagements of the bank; and our own former banking laws, which provided for banks of issue, made stockholders liable for all such engagements; but it was only in case such banks were banks of issue that the stockholders were made so liable. Under the present banking system, the powers of banks are limited to the discounting of bills and notes, loaning money, and receiving deposits; and under this system the stockholders are liable only as provided in section 46 of the act,' — -that is, to the depositors.

Can this petitioner be treated as a “depositor,” within the meaning of the act? We think there can be but one answer to this, under the facts appearing from the answer, which answer we must take as true. It must be conceded that a bank, as well as a private individual, may become a depositor in another bank. Elmira Savings Bank v. Davis, 73 Hun, 357. But from the answer in this case it appears that no part of the money represented by these certificates ever went into the People’s Savings Bank. Under the arrangement, the petitioning bank took these two certificates of deposit with the understanding that the People’s Savings Bank might draw its drafts upon it to the amount represented by the certificates, and it would .honor the drafts, or it may have credited the People’s Savings Bank in account upon its books. The certificates were simply evidences of debt, and nothing more. It might as well have held the notes of the People’s Savings Bank; the transaction would have been no different. The relation of debtor and creditor exists between the bank and every depositor therein; but the legislative intent undoubtedly was to secure to depositors, as such, a right to call upon the stockholders to the amount of the stock held by each for the payment of deposits. It was not the intent of the legislature to compel the stockholders to meet the ordinary debts of the bank. Bolles, in his work on Banks and Their Depositors, says (section 1):

“While it is difficult to make an accurate definition of a deposit which shall distinguish it from every other loan, yet there are many particulars by which it may be described. A very important part of the business of banking consists in receiving, keeping, and refunding the money of persons who are called ‘depositors.’ ‘Originally, a deposit,’ says Judge Learned, ‘was a thing delivered to a person for gratuitous safe-keeping, and it remained the property of the owner. The word, however, is now used to designate a certain kind of loan; for money deposited in the ordinary way becomes the property of the bank or banker, and the deposit is a debt.’ When we attempt to state what kind of loans are properly called ‘deposits,’ we find that to some extent the original meaning of the word colors its present meaning; for there is an idea in the mind that money on deposit is lying in the bank on hand, ready to meet the demand of the owner, and that it is kept there for convenience.”

It is, however, evident in the present case that this money was borrowed to enable the People’s Savings Bank to keep an account at Detroit. Each actual depositor is concerned that no fictitious depositor shall participate in a fund to be created by an assessment upon shareholders. It is stated, and not disputed, that an assessment of 70 per cent, has been required to pay depositors, without taking into account upwards of $96,000 of like claims as this now presented.

It must be held, under the facts here shown, that the transaction between the petitioner and the People’s Savings Bank was a loan by the petitioner, and not a deposit in the People’s Savings Bank, within the meaning of the banking law.

The order of the court below must be affirmed, with costs in favor of respondent.

Grant, C. J., concurred with Long, J.

Hooker, J.

(concurring). The statute limits the personal liability of stockholders to an amount equal to their stock. Depositors are therefore liable to loss when the deposits exceed the amount of the capital stock of the bank. The benefit of this personal liability of the stockholders is limited to depositors, and other creditors are excluded. While a depositor is necessarily a creditor, and ordinarily the law will treat any one as a depositor whom the bank agrees to so treat by issuing its certificate of deposit, another bank which merely loans money to and is not a patron of the debtor bank, in the sense that the ordinary individual depositor is, has no right to the benefits reserved by the law to the ordinary or bona fide depositor. I do not wish to be understood that a bank cannot become a depositor, within this law, in another bank, under some circumstances, but that in this case it has not. I therefore concur in the opinion of my Brother Long.

Moore, J., concurred, with Hooker, J.

Montgomery, J.

(dissenting). I can see no good reason for denying to the claimant the rights of a depositor. It is conceded that a bank may become a depositor in another bank. Elmira Savings Bank v. Davis, 73 Hun, 357. There can be no question in this case that the People’s Bank attempted to confer upon the claimant the rights of a depositor. It issued the certificate of deposit in the usual form. The only possible distinction between this and the ordinary case of paying money over the counter of the bank, and receiving a certificate of deposit, is that in • this case, instead of going through the form of paying the money into the People’s Bank, the cashier of that bank was permitted to draw on the claimant to the amount of the certificate of deposit. The funds of the People’s Bank were increased by the amount of the certificate of deposit. The money was available to meet its liabilities. The case, in my view, is not different than if a draft or check had been given, drawn upon a third bank, and treated as the equivalent of cash, and the certificate of deposit given for it. It is no answer to say that this was a loan of money. So is a deposit a loan. In case of a general deposit, the money becomes the property of the bank, and the bank merely the debtor to the depositor. 1 Morse, Banks, § 186; Cate v. Patterson, 25 Mich. 191; Beardsley v. Webber, 104 Mich. 88.

Counsel for the respondent make this suggestion as to the distinction between the case presented and the case of an actual deposit, within the meaning of the banking act. Sections 3208c3 and 3208c6, 3 How. Stat., provide for a certain reserve to be kept in commercial and savings banks, and therefore counsel say:

“Will it be seriously contended that for the money received from the State Savings Bank the People’s Savings Bank was obliged, within the meaning of the statute, to maintain a cash reserve ? Suppose the banking commissioner finds that in a given bank the cash reserve is deficient $20,000, reference being had to actual deposits. He orders this made good, and threatens, in case of default, to close the bank. The bank borrows of the petitioner $20,000, and issues its certificate of deposit therefor. If this $20,000 is to be held to be a deposit, the reserve is still short, because every dollar of increase of deposits requires 15 cents increase of reserve; and it must therefore be held that the legal accompaniments of loans and deposits are not the same.”

The case suggested by counsel illustrates, it seems to me, the danger of holding that this claimant is not a depositor. If it be held not a depositor, within the meaning of these sections, it follows that a bank might borrow of another bank the entire of its reserve, issue a certificate of deposit entitling the holder to demand immediate payment, and thus evade wholly the provisions of these two sections. It is very clear that it was not the purpose of the legislature to leave open such a possibility; and either we must hold that the word “depositor” is used in a different sense in the various sections of the statute, or we must sustain the contention of the claimant here. I see no reason for any such distinction, or for holding the contract to be anything different than the parties undertook to make.

I think the decree should be reversed, and a decree entered in favor of claimant.


author: Moore, J. Hooker, J.

text:
    WACHSMUTH v. SHAW ELECTRIC CRANE CO.
    1. Master and Servant — Defective Appliances — Negligence.
    Defendant provided certain of its employés with a simple tool, called a “snap-hammer,” for use in riveting. The tool was made by a competent blacksmith, from proper material. The employés who used the hammer were skilled mechanics, as competent as any one to decide when it became out of repair, and were at liberty at any time to have it repaired or replaced by a new one. A chip from the hammer struck plaintiff and injured him. It did not appear that an inspection before the accident would have disclosed any defect. Held, that defendant was not liable.

      2. Same — Duty oe Inspection — Simple Tools.
    The duty of inspection, by an employer, of the appliances used by his employés, does not extend to the small and common tools in everyday use, of the fitness for use of which the employés using them may reasonably be supposed to be competent judges.
    Error to Muskegon; Russell, J.
    Submitted June 9, 1898.
    Decided October 3, 1898.
    Case by Albert J. Wacbsmutb against the Shaw Electric Crane Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Bunker & Carpenter, for appellant.

      Chamberlain & Cross, for appellee.
   Moore, J.

Plaintiff recovered a judgment against the defendant for the loss of one of his eyes. Defendant brings the case here by writ of error.

It is the claim of the defendant that there was contributory negligence on the part of the plaintiff. That'question was fully submitted to the jury, who found against the contention of defendant.

The important question' is, Does the testimony tend to show any negligence on the part of the defendant? The plaintiff is an intelligent workman, upwards of 30 years old. He had been a machinist 14 or 15 years. He worked for the defendant several years, operating a machine for boring iron. Not far from his machine a gang of men were engaged in riveting together parts of a bridge for an iron crane. The process is for one man to heat the rivets. Another places beneath the rivet a solid support, capped by a piece of steel, in which there is a cup to hold in place and preserve the under head of the rivet. Another man places on the upper end of the rivet a snap-hammer, which is a hammer with a cup on its face, designed to form the upper head of the rivet. While the rivet is hot, this snap-hammer is struck by two men. with sledges, alternately, until the riveting is completed. It is the claim of the plaintiff that he stepped away from his machine to inspect some trolley sides, upon which he would later have to do some work, and that, while so doing, a piece of steel was broken from the face of the snap-hammer, and struck him in the eye, resulting in its loss. He further claims this snap-hammer was out of repair, and should have been known to be so by the defendant, and that it was not a reasonably safe tool with which to do the work. It is the claim of the defendant that the tool was properly made by its blacksmith, from the best material; that it was not out of repair; that what occurred was an accident which could not have been foreseen. It is also' claimed that, when the accident occurred, plaintiff was not engaged in necessary work, but was leaning on a pile of trolley sides, looking at the riveters, and that his negligence caused the accident. It is also claimed that, if the tool was out of repair, it was the fault of the man who was using it, and that he was a fellow-servant, and for that reason plaintiff cannot recover. Defendant asked the court to direct a verdict. This was denied. This is said to be error.

The case is very near the border line which separates those cases where a verdict should be directed from those where the case should be submitted to the jury. The difficulty does not grow out of the law itself, so much as out of the application of the law to a given case. It is now well settled the master owes to the servant the duty of using ordinary care and diligence in pfoviding for his use sound and safe materials, and such appliances as are reasonably calculated to insure his safety. • He is also bound to examine and inspect these things from time to time, and to use ordinary care and skill to discover and repair defects in them. 1 Shear. & R. Neg. § 194; 2 Thomp. Neg. 984; 14 Am. & Eng. Enc. Law, 894; 7 Am. & Eng. Enc. Law, 830; Holden v. Railroad Co., 129 Mass. 268; Cooley, Torts, 556; Johnson v. Spear, 76 Mich. 139 (15 Am. St. Rep. 298); Tangney v. Wilson & Co., 87 Mich. 453; Anderson v. Railroad Co., 107 Mich. 591; McDonald v. Railroad Co., 108 Mich. 7. The record shows defendant furnished an excellent quality of steel from which to make the tool. It was made by a competent blacksmith. There is no claim that when made it was not a proper tool with which to do the work required. The men using it were skillful mechanics, as competent as any one would be to decide from an inspection of the tool whether it was a reasonably safe one to use or not. The men were not required or expected to use a tool after it became unsafe because of use or for any other cause. They were at liberty to take a defective tool at once to the blacksmith, and have it-repaired or get a new one in its place. This tool was a simple one. The men using it were competent to pass upon its fitness for use. All the witnesses who saw the hammer say it was a safe one to use. The only testimony to the contrary is given by the plaintiff, who never saw the tool, but was of the opinion, judging from the appearance of the small piece of steel taken from his eye, the tool was not a proper one to use. The testimony discloses that no steel is so perfect as not to have defects which will not be disclosed by inspection. Sometimes a sliver will break off from the best of hammers. It does not appear that an inspection would have shown any defect in the hammer.

The plaintiff failed to establish a cause of action. The court should have directed a verdict in favor of defendant. Rawley v. Colliau, 90 Mich. 31; Kehoe v. Allen, 92 Mich. 464 (31 Am. St. Rep. 608); Miller v. Railroad Co., 21 App. Div. 45; Marsh v. Chickering, 101 N. Y. 396.

Judgment is reversed, and a new trial ordered.

Montgomery, J., concurred with Moore, J.

Hooker, J.

(concurring). I concur in- the result reached by Mr. Justice Moore in this case upon the grounds stated by him, but I am of the opinion that the duty of periodical inspection does not extend to the small and common tools in everyday nse, of the fitness for use of which the persons who use them may reasonably be supposed to be better judges than the master, or any person that he can employ for the purpose. The evidence shows that there were thousands of small tools in this shop, and it is improbable that there was any one man in the shop that was as expert in the use of all as the individual workmen were as to those that they respectively used. In my opinion, it is not unreasonable to say that the workmen assumed the risk of the use of such tools of this character as they chose to use. As already stated, the evidence shows that the small tools in use in this factory numbered thousands. We may assume that they consisted of innumerable articles of everyday use, such as crowbars, picks, spades, shovels, chisels, files, rasps, pliers, wrenches, braces and bits, reamers, and others that will readily suggest themselves, including hammers. It is well known that most such tools are used until they become unfit for use by wear, and that the user is not only competent to judge of their fitness, but as a rule does so. There is no evidence in the case that any concern in the country employs a person to inspect 'the common tools in use in the shop.

We have decisions sustaining the doctrine that a master must provide safe appliances, and that' he must use reasonable diligence in keeping them in repair. In heavy or complicated machinery, and where the person called upon to use the appliance may not possess the skill to detect unfitness, or the opportunities to do so, the law may require diligence upon the part of the master; but where the appliance is a common tool, of which the man who uses it is necessarily well qualified to judge, and who when he uses it has an opportunity to know its condition, a distinction may be made, and the master may rely upon the servant to inform him of the defect, or not use the tool, 'if it is unsafe. This exception to the rule relied on in this case is recognized in Miller v. Railroad Co., 21 App. Div. 45, where it was held that the master was under no obligation to inspect a push-bar, used in moving cars, which, from use would wear, and from lapse of time decay, and which would naturally be first observed by the user. It was said in that case that “there is no duty resting on an employer to inspect during their use those common tools and appliances with which every one is conversant,” and that “if a spade, a hoe, or a push-stick either wears out or becomes defective, the employer may ordinarily rely on the presumption that those using the article will first detect the defect.” If, as held in the case cited, a master is not under a legal obligation to protect the servant using the tool by inspection, he is under no such obligation to the fellow-servant who suffers from the negligent use of the tool.

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


author: Long, J.

text:
    AMERICAN TRUST & SAVINGS BANK OF CHICAGO v. FOSTER.
    Banks and Banking — Depositors—Who Are.
    Case ruled by State Savings Bank of Detroit v. Foster, ante, 868.
    Appeal from Ingham; Person, J.
    Submitted June 14, 1898.
    Decided October 3, 1898.
    Petition by the American Trust & Savings Bank of Chicago against Seymour Poster, receiver of the People’s Savings Bank of Lansing, to compel the payment of a dividend. Prom an order dismissing the petition, petitioner appeals.
    Affirmed.

      Jay P. Lee and Bartlett Wiley, for petitioner.

      Bussell O. Ostrander (Cahill & Ostrander, of counsel), for respondent.
   Long, J.

It appears in this case that the moneys in controversy were borrowed by the People’s Savings Bank from the petitioner. The petitioner is not a depositor, within the meaning of the banking law, and not entitled to claim any part of the dividend arising from the fund recovered against the stockholders. The case is governed by State Savings Bank of Detroit v. Foster, ante, 268.

The order below must be affirmed, with costs in favor of respondent.

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

Montgomery, J. My views are expressed in State Savings Bank of Detroit v. Foster, ante, 273.


text:
    COLLINS v. NORTH BRITISH & MERCANTILE INSURANCE CO.
    Eire Insurance — Clear-Space Clause — Evidence—Estoppel.
    A finding that the insured, at the time of taking out a policy, informed the agent of the insurance company of the location of his property with substantial accuracy, and that, therefore, the company is estopped from asserting a violation of the “clear-spaee” clause, is justified by evidence that he furnished the agent with a rough diagram approximately showing the correct situation, but which the agent incorrectly copied, and that' neither party understood the diagram to be precisely accurate.
    Error to Newaygo; Edwards, J.
    Submitted June 14, 1898.
    Decided October 3, 1898.

      Assumpsit by David Collins against the North British & Mercantile Insurance Company on a policy of fire insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Me Garry & Nichols {Crane, Norris & Stevens, amici curiae), for appellant.

      George Luton {W. D. Fuller, of counsel), for appellee.
   Montgomery, J.

The plaintiff recovered a verdict on. a fire-insurance policy, and defendant brings error. The defenses made below were two: (1) That the plaintiff himself burned the property; and (2) that there was a violation of the “ clear-space clause,” so called.

The first question was submitted to the jury, and found against the defendant. The meritorious question arises out of the following provision of the policy, viz.: “ Warranted by the assured that a continuous clear space of 150 feet shall hereafter be maintained between the property hereby insured and any wood-working or manufacturing-establishment.” It appeared by the undisputed testimony that there was not between an unused sawmill and the lumber insured 150 feet of clear space; that the mill was situated about 250 feet in a direct line from the lumber, but that 101 feet from the lumber was a house 18x46, and that from this house to the mill was a distance of about 100 feet. Plaintiff’s counsel concede that the situation was not exactly as warranted, but contend that the agent of the insurance company was fully apprised of the situation before the policy was written,.and that, therefore, within the rule laid down in Michigan Shingle Co. v. State Invest. & Ins. Co., 94 Mich. 389 (22 L. R. A. 319), and Michigan Shingle Co. v. Pennsylvania Fire Ins. Co., 98 Mich. 611, the company is estopped from asserting the breach of warranty. The defendant’s counsel, on the other hand, contend that the undisputed testimony shows that the true state of facts was not revealed to the agent.

It would appear by the testimony of defendant’s witnesses that a diagram was prepared by a Mrs. Underwood, a clerk in the office of the agent, Shaw; that this diagram showed the distance from the lumber to the mill to be 350 feet; that in a line drawn from the mill to the lumber east and west there were no buildings or barns, but a dwelling house and barn were shown farther north; that the barn was marked 95 feet from the lumber, and the distance from the barn to the mill was not given, nor were the dimensions of the barn given'; so that it is not‘very clear from the plat whether or not there would be 150 feet of clear space between the barn and the mill, assuming the correctness of the map, but it is clear that, according to any scale adopted, there was not shown any such clear space. If the distance noted on the east and west line as 350 feet be taken as a basis, it is still uncertain, as the size of the barn is not given.

It is admitted, however, that the diagram drawn by Mrs. Underwood is inaccurate, in that it should have placed the house and shed substantially on a direct east and west line drawn from the lumber to the mill, and that there was not in fact a clear space of full 150 feet. It is contended by counsel for defendant that plaintiff’s own testimony shows that this diagram was drawn from the plaintiff’s directions, and fully approved by him. Mr. Collins did, it is true, testify that the preparation of the diagram was done under his supervision, but he further testified as follows:

Q. What is your recollection as to the location as given by you of the barn and the dwelling house that were represented here to the left of the 350 feet ?

“M. Well, I think this is just the same as I have looked at before. I went there, and made an application to insure the lumber that I had at Conger Station; and Mr. Shaw asked me the location and the surroundings, and I went on and described to him, as well as I could, and he didn’t appear to understand. Then I took a scrap of paper, and made a rough diagram of it, upon which I represented those buildings; and I told them about these buildings being there, and the distances. The house I represented as a small house, and a small barn, I think I called it, that was north of it. I had marked out the location of this dwelling on this diagram.

Q. How does the location that Mrs. Underwood has given upon the diagram of that house and barn correspond with what you told them, as you remember it, as to the location ? Have they got it correct as you told it ?

“A. They have got it correct with the exception of having the buildings farther north than I marked them in my diagram, — than I told them. That is my recollection.

Q. You made no measurement at the time, and didn’t make any diagram of the ground, and what you told them was from your recollection of the location of things there ?

“A. I had paced; I hadn’t measured with a tapeline.

Q. (showing witness a map). You notice on this map a house and shed, as they call it, represented as on a direct line between the lumber and the mill ?

“A. Yes, sir.

Q. Now, you see the way they represented it on the diagram ?

“A. Yes, sir.

Q. Way to the north or left of that ?

“A. Yes, sir.

Q. You say you had paced the distance from the lumber to the house ?

“A. Yes, sir; I made it 95 feet by pacing, and 101 feet by measurement with a tapeline afterwards; that was from the house to the lumber.

Q. What I want to know is whether Mrs. Underwood is correct according to your recollection,— whether you represented the location of this house in the place she has put it on the diagram.

“A. I don’t think I did. I knew where the house was. I think' that I got the house on the diagram that I gave her, and I think you will find it, if you find it, right there at about the north end of the house, as represented here. I made the diagram by standing over near the lumber on the north part, and I looked from there, and I think I got the house a little too far north. But I don’t think I got it as far north as she has got it. I am quite positive that I did not. I think she made a mistake there. * * *

Q. Bid you pronounce it correct after she had got through drawing it, as she testifies?

“A. I did not look at it at that time as it is here now, if that is the one.

■“ Q. She testifies that that is the one. Have you any doubt of that ? Have you any doubt that she testified to the fact ?

“A. I would not want to. It don’t seem possible to me that I could be so mistaken about that house being so far to one side there, but I have no doubt of her truth in the matter.”

We think this testimony was sufficient to raise a question for the jury as to whether the plaintiff, at the time of taking out the insurance, informed the agent of the situation of the property with substantial accuracy. It is significant that none of the parties understood that this diagram was precisely accurate. If, as the plaintiff states, the diagram drawn by him showed the house and barn farther south, it was not his fault that the clerk made the mistake in putting on paper the results of the information given her.

The other questions raised have had consideration, and no error is discovered.

The judgment will be affirmed.

The other Justices concurred.


text:
    STAFFORD v. CRAWFORD.
    1. Findings by Court — When Made — Final Judgment.
    Findings of fact and law are not authorized after final judgment, unless such judgment is vacated for the purpose on proper showing.
    2. Same — Review on Appeal.
    Failure to file exceptions to findings precludes the raising of any question on appeal save that of whether the findings support the judgment.
    Error to Huron; Beach, J.
    Submitted June 15, 1898.
    Decided October 3, 1898.

      William R. Stafford appealed from an order of the probate court disallowing certain items in his account as executor of the last will and testament of Mabel Crawford, deceased. The account was allowed in the circuit, and Clay Crawford, co-executor, brings error.
    Affirmed.

      W. T. Bope (McDonell & Hall, of counsel), for appellant.

      Bacon. & Palmer, for appellee.
   Montgomery, J.

The circuit court, on an appeal from the probate court, entered a judgment allowing the account of William R. Stafford as executor. The proceeding is before us on error. Insuperable objections to a consideration of the points made confront us. The record shows that no request for a finding of facts or law was presented before judgment. After judgment was entered, a finding was made on request of the appellant, but no exception to this finding was filed. Circuit Court Rule No. 26 has been ignored. In Brown v. Haak, 48 Mich. 229, it was held that the request for findings must precede the entry of judgment. Indeed, the language of the rule is plain and unambiguous. We held in Co it v. Judge of Superior Court, McGrath, Mand. Cas. No. 704, that a trial court may vacate a judgment to afford opportunity for presenting a request for findings in a proper case, but no showing authorizing such action was made or attempted in this case. The appellee objected to the court’s filing findings, and, as the findings were not authorized while final judgment stood, we think the appellee was not bound to propose amendments, and was justified in ignoring the-findings. The failure to file exceptions to the findings would also, even if the findings were regular, preclude us from examining any other question than that of whether the findings support the judgment. Weist v. Morlock, 116 Mich. 606.

The judgment, will be affirmed, with costs.

The other Justices concurred.


text:
    PEOPLE v. ENGLE.
    Criminal Law — Verdict—Instructions Urging Agreement.
    Upon a prosecution for.violation of the local option law, the testimony was in direct conflict. After being out all night, the jury announced that they were unable to agree, but were sent back by the court, with the direction that each should try to he persuaded, instead of trying to persuade his fellows. The jury, within an hour, returned a verdict of guilty, with the recommendation that the court fix the penalty as light as the law would allow. Held, that the direction was calculated to convey to the individual juror the impression that the verdict need not he the result of his own convictions, and was therefore erroneous.
    Exceptions before judgment from Yan Burén; Buck, J.
    Submitted June 16, 1898.
    Decided October 3, 1898.
    M. A. Engle was convicted of violating the local option law.
    Reversed.

      Benjamin F. Heckert, for appellant.

      James E. Chandler, Prosecuting Attorney, for the people.
   Long, J.

In July, 1897, the local option law was in force in Yan Burén county. Respondent was a registered pharmacist, and was charged in the information with having sold, furnished, and delivered, on July 23, 1897, to one Charles T. Benham, one bottle of beer, to be used as a beverage. The pharmacy was owned and kept by W. A. Engle, and the respondent was in his employ ■as a clerk. It appears that Charles T. Benham and E. S. Persing were employed by the prosecuting attorney and sheriff of the county to look up liquor cases in that county, and were paid $5 a day each for their services. Benham went by the name of F. C. Hart, and Persing by the name of F. J. Freeman, and so registered at their different stopping places in the county. On the day the beer is alleged to have been sold, they arrived in Hartford, Van Burén county, about noon, and stopped at an hotel. Ben-ham testified that, at about 9 o’clock in the evening, he and Persing went into the Engle store, and found the respondent there, and asked him for a bottle of export beer; that respondent said he would get it for them; that—

“He went down cellar, and came up with a bottle. We stood at the head of the stairs leading down cellar. * * * The respondent brought back a bottle of lager beer, and asked if he should open the bottle. I told him, ‘Yes,’ and he drew the cork; and he says, ‘Boys, you will have to step to the door to drink it.’ And we stepped just outside of the door, on the back steps, and drank the beer, came back, and he was standing on the stairs. He said: ‘ Set the bottle right down there; it will be all right. ’ I paid him 20 cents, and went out. We didn’t inform Mr. Engle the purpose we wanted to put the beer to. He didn’t ask us. He said nothing about it.”

Mr. Persing was called, and testified to the same transaction having taken place at the time given by Benham. They both testified that they did not go into the store except on that occasion, and were not there in the afternoon. The people then rested.

The respondent testified that he was not in the store at the time mentioned, but that he went from it about 8 o’clock; that he sold Benham no beer on that night, but that about 4 o’clock in the afternoon the parties came in, and asked him for some beer; that Mr. Persing, who called himself Freeman, asked for it. Respondent then testified:

“Freeman is the name he gave. He said he would like to get a couple of bottles. I asked him if he wanted it for medicine, and he said he did. I asked him his name, and he gave the name of F. J. Freeman, and I put it on the book, and he took the beer, and went out. This was about 4 o’clock in the afternoon. * * * ”

Mr. Woolsey, a half brother of the respondent, was also a clerk in the store. He testified that he was in the store that night, and that respondent went out of the store at 8 o’clock; that no such transaction took place that night as testified to by Benham and Persing. Milo Wolcott testified that he saw Benham and Persing come out of the store about 4 o’clock that afternoon, and saw them all the evening at the hotel, which was his headquarters; that, when he saw them come out of the store, one of them had a long package done up in a piece of paper. It was the theory of the respondent that this package was the two bottles of beer just purchased from him.

The business of druggist is a lawful business, in which the legislature has recognized the necessity for the sale of all kinds of liquors to adult persons, at all times, day or night, even where the local option law is in force. The restriction placed upon the sale is that it shall be sold only for medicinal, chemical, scientific, mechanical, or sacramental purposes. The statute further provides that it shall not be sold to any person as a beverage, to be drunk on the premises; and that the druggist shall keep a blank book in which shall be recorded the names of all persons applying for such liquor for any of these lawful purposes, the date of each sale, the amount and kind of liquor sold to each person, and the purpose to which the same is to be applied, as stated by the purchaser. 3 How. Stat. § 2283c6. Respondent claimed to have fully complied with this statute.

.The question in the case is whether the sale was made at 9 o’clock in the evening, and under the circumstances claimed by the people, or at 4 o’clock in the afternoon of the day, under the circumstances testified to by respondent. If the sale was made as claimed by the two witnesses for the people, there .was a violation of the law; if sold under the circumstances stated by respondent, there was no violation of the law, and the respondent was wrongfully convicted.

There is but one question in the case which we deem important to discuss. It appears that the jury had been out all night, and, returning into court in the morning, they were asked if they had agreed upon their verdict, and, answering in the negative, the court asked:

“Do you think you have exhausted every reasonable effort to agree ?

The Foreman: Yes, sir; we have been over the testimony several times.

" The Court: I was very sorry, gentlemen, that you were obliged to remain out all night with this case. The work of a jury is hard enough if it only works when court is in session, without having to be out all night; but the interests of both the people and the respondent are important in this case, and it is very important that you should, if possible under the testimony, agree upon a verdict. Now, I have no doubt that you have done just as your foreman says, — gone over the testimony very carefully and conscientiously, and endeavored to agree upon a verdict, so far as you have been able to; but perhaps, on further reflection, you may be able to do so. I certainly hope so. Now, I make this suggestion: I have no doubt that each side has used all the powers of persuasion, that of the individual jurors, to convince his fellow jurors of the case as it looks to him. Now, suppose you go out and try the reverse, and let each of you try as hard as you can to be persuaded, instead of trying to persuade the others. Try and persuade yourselves, those who do not agree with their fellow jurors, and see if, looking over the testimony carefully and listening to all the arguments that those who do not agree with you may use, you cannot come to the same verdict. In view, as I have said, of the importance of the verdict in this case, I do not feel like discharging you at this time. It is now early in the morning. You have had your breakfast. Make yourselves as easy and comfortable as you can, and think the matter over carefully. Divest yourselves of all sort of preconceived opinions about the case on either side up to this time. Start right in now just as if you had first gone out, and see what you can do. You may again retire, gentlemen.”

Within an hour after this charge, the jury returned a verdict of guiltj', but with the recommendation that the court fix the punishment or fine as light as the law would allow in such cases.

Counsel for the people contends that the instruction comes within the rule laid down in Com. v. Tuey, 8 Cush. 1, where the trial court, among other things, charged the jury:

“But in conferring together you ought to pay proper respect to each other’s opinions, and listen — with a disposition to be convinced — to each other’s arguments; and, on the one hand, if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression upon the minds of so many men equally honest, equally intelligent, with himself, and . who have heard the same evidence with the same attention, with equal desire to arrive at the truth, and under the sanction of the same oath; and, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to, doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.”

That court before that, however, had stated in the same connection to the jury:

“Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring 12 minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other.”

That charge was approved by the supreme court of Massachusetts.

In the present case, however, the jury were not instructed that the verdict to which they agreed should be and must be each individual juror’s own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows; but, on the contrary, they were instructed just the reverse,— that they must each try to be persuaded. We think the court was in error in this instruction, and that its substance had a tendency to make the jurors feel that they must give way their honest convictions upon the merits, and agree with the majority, though they had a reasonable doubt of the guilt of the respondent. This may have been what the minority did, and in consequence of which the foreman, in announcing the conclusion, recommended that the court should be lenient in passing sentence. For this reason the verdict must be set aside, and a new trial granted.

We have examined the other questions raised, and find no error in them.

The other Justices concurred.


text:
    PEOPLE v. SWARTZ.
    1. Criminal Law — Change of Venue — Denial.
    The denial of a change of venue, asked because of alleged local prejudice, is no ground for a reversal of a conviction, where the jury was obtained without the respondent having ex’hausted his peremptory challenges, and there is no evidence that the jury were improperly influenced.
    2. Same — New Trial — Statutory Limitations.
    Respondent, having been convicted at the May term of court, applied for a new trial, which was denied at the October term. In July following he made a motion for a rehearing of the application, on the ground of newly-discovered evidence. Held, that the motion was, in effect, for a new trial, and under 2 How. Stat. § 9576, authorizing the granting of new trials in criminal cases “at the same term” at which the trial is had, “or at the next term thereafter,” came too late.
    3. Trial — Witnesses—Error Cured.
    Error in sustaining an objection to a question is cured by subsequently permitting an answer.
    4. Homicide — Evidence — Declarations of Accused — Relevancy.
    Evidence on a trial for murder, that the accused, shortly after the crime, voluntarily stated that, while attending ■ a medical college, he had strapped a corpse to a buggy seat, after tying its hands and feet together, and had driven with it some distance, is admissible, where the prosecution claims that the condition of the deceased’s body when found indicated that it had been so treated.
    5. Criminal Law — Remarks of Prosecutor — Reporter’s Minutes — Contradiction.
    Statements by the prosecuting attorney in his argument, although improper as shown by the reporter’s minutes, will not be so considered, where affidavits as to the exact language used, made by the attorney and several of the jurors, indicate an entirely proper statement, — especially where no objection was made to the language used until the reporter’s minutes were written out.
    ■6. Same.
    Improper statements by the prosecuting attorney' are not ground for reversal where the court peremptorily checked the attorney, and instructed the jury to disregard the improper remarks.
    7. Same — Reasonable Doubt — Definition.
    An instruction defining a reasonable doubt as a fair doubt, growing out of the testimony, based on reason and common sense, and not an imaginary, captious, or possible one, and as “such a doubt as may leave your minds, after a careful examination of all the evidence in the case, in that condition that you cannot say that 'you have an abiding conviction to a moral certainty, from the evidence in the case, of the truth of the charge,” is not misleading.
    8. Same — Requested Instructions — General Charge.
    The action of the court in refusing to give certain instructions in the form requested by respondent, embodying instead, in the general charge, the substance of all that were material and proper, is to be commended, rather than condemned as error.
    Error to St. Joseph; Yaple, J.
    Submitted June 16, 1898.
    Decided October 3, 1898.
    Adelbert D. Swartz was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.
    Affirmed.

      H. P. Stewart and Howard, Boos & Howard, for appellant.

      Fred A. Maynard, Attorney General, and George H. Arnold, Prosecuting Attorney (B. E. & L. F. Andrews, of counsel), for the people.
   Moore, J.

On the morning of the 13th of October, 1894, the dead body of Willard N. Johnson, with four bullet holes in the heart, was found in the St. Joseph river, near the Farránd bridge, in the county of St. Joseph. The respondent is convicted of his murder, and has been sentenced to state’s prison for life. He brings the case here by writ of error.

The record contains 75 assignments of error. It is not necessary to discuss many of them, though they have all had careful examination. Before the trial there was an application for a change of venue, upon the ground that respondent could not have a fair trial in St. Joseph county, because of the prejudice against him. Affidavits and counter affidavits were filed. The court denied the application. The record shows that a jury was obtained without serious difficulty, and before respondent had exhausted his peremptory challenges. After the respondent was convicted, a motion was made for a new trial, and it was then averred that the court erred in denying the application for a change of venue, and it was also said respondent did not have a fair trial, on account of the public feeling, which manifested itself during the trial both in and out of the court-room, and because of the argument made by the prosecuting attorney. The statements contained in this application were supported by some affidavits, and were denied by many counter affidavits. The court denied the application for a new trial, and found that there was no serious difficulty in getting a jury, and that there was no evidence that the jury were improperly influenced within or without the court-room. In his disposition of the petition, he found:

Whenever recess or adjournment was taken, the peopie in the court-room were required to remain in their places until the jury, had retired. While the jury were deliberating upon their verdict, officers of the court were stationed upon the ground outside of the court-house, to guard against any possible attempt on the part of any person to approach, influence, communicate, or interfere with the jury in any manner : and I find that the officers performed their duties faithfully, and that nothing transpired which could have prejudiced the respondent. There was no attempt during the progress of the trial, so far as I- am able to ascertain, to intimidate or interfere with the witnesses for respondent. There was no manifestation óf any such disposition in the court-room. The claim of counsel for respondent in this respect is not sustained. I find that the circumstances surrounding the trial support the integrity and purity of the verdict.”

There is nothing in the showing made in this court which leads us to doubt the correctness of the conclusions of the trial court. There is no such showing as leads us to the conclusion that the court erred in refusing a change of venue. 4 Am. & Eng. Enc. Law, 818.

The case was tried at the May term of court, in 1895. The application for a new trial was denied at the October term of court. In July, 1896, a motion was made to have the application for a new trial reheard, upon the ground of newly-discovered evidence. Affidavits were filed in support of the motion, and counter affidavits were filed. The motion was overruled. This was practically an application for a new trial, made more than a year after the case was tried. The statute contemplates applications for a new trial shall be made speedily. 2 How. Stat. § 9576; People v. Marble, 38 Mich. 309; Frazer v. Judge of Recorder’s Court, 112 Mich. 469. But, even should it be conceded this application was made in time, no such showing was made as.to indicate a wrong use of the discretion vested in the trial court in refusing a new trial.

Many assignments of error relate to' the admission of testimony. One of the expert -witnesses was asked, if a man having received wounds through the right side of his heart had hold of a rod or something with the left hand to steady himself, would it have a tendency to keep the body in an upright position longer than if he had not ? An objection was made to the question, which objection was sustained. Counsel were afterwards told they might take an answer to the question. They now assign error. We do not deem it necessary to discuss the matter further than to say, if error was committed in sustaining the objection, it was afterwards cured by permitting an answer to the question. Stanton v. Estey Manfg. Co., 90 Mich. 12.

Some testimony was permitted to be given, when counsel for respondent objected that it was immaterial, which testimony was afterwards stricken out by the court. It is now urged that, as the court struck out the testimony, it must have been immaterial or incompetent, and, having been allowed to go to the jury, it worked prejudice to the respondent. Except as we shall discuss the testimony more in detail, it may be said of this testimony it was not of a character that could do any harm to the respondent, and might well have been left in the case. It was evidently stricken out of the case by the trial judge because of a desire to leave nothing in the case which could be possibly prejudicial to the respondent. When the court struck out this testimony, he cautioned the jury they must not consider it at all.

After the body was found, a coroner’s inquest was held. The respondent was present, and talked a good deal about Mr. Johnson, and the manner of his killing, and about offering a reward for the murderers, and about his relations with Mr. Johnson. Witnesses were asked about this conversation, and related it in detail. A witness was allowed to state as follows:

“We were talking about folks feeling timid around where corpses were. Tie said they didn’t affect him. Of course, he was a little bit affected being around Johnson’s, the way he was killed. He said he had been in a room, and moved around and hit them, when he was alone. He told about going out about 12 miles. He said an old man had been turned over to the school, and he said they went out, and got him, and took and tied his hands together and his feet together, and set him up in a buggy strapped to the seat, and they put a hat on his head, and everybody they met thought he was a living man sitting in there. Dell Swartz is studying for a physician. He showed us a letter that he got from the professor of the college, but I don’t remember where.”

It is said this was a serious error. It was the theory of the people that respondent had lived with the deceased, who was his brother-in-law, for some time; that shortly before the murder, in the absence of Mr. Johnson, his wife, who was an invalid and a sister of the respondent, took their little girl, and, with the respondent, left her husband’s house, and went to live with her father, 20 miles or more from the home of Mr. Johnson. It is claimed Mr. Johnson went to see his wife, and, when he arrived at her father’s, the farm bell was rung for the respondent, before Mrs. Johnson would see her husband. It is said Mr. Johnson was not allowed to see his little girl; that there was ill feeling between the respondent and Mr. Johnson; that, after Johnson left the home of respondent’s father, he stopped at the house of Mr. Tunison; that the respondent, assisted by some one else, waited for him near a piece of woods, when Mr. Johnson was shot dead; that his body, horse, and cart were taken to the woods until people were not likely to frequent the roads, when his body, seated in a buggy, was conveyed several miles, to the Farrand bridge, where it was thrown into the river, and a number of shots fired upon the bridge, and that at the same time a revolver was thrown into the river, for the purpose of conveying the impression that Mr. Johnson had committed suicide. It is the. claim of the people that rigor mortis had set in when the body was thrown into the river; that the legs were drawn up, and in the position they would be if the body had stiffened while seated in the seat of a buggy, strapped to the back of the seat; that.the arms were also rigid, and partly drawn back, one of the hands being nearly as high as the head. It is claimed, after the body was thrown into the river, the respondent and another man took the horse and cart belonging to Mr. Johnson to the home of Mr. Johnson, a number of miles away, leaving them in the barnyard, there being in the cart Mr. Johnson’s hat, overcoat, and rubber coat; that the inmates of the house were awakened by the horse. It is claimed that, after the horse and cart were left at Mr. Johnson’s, the respondent returned to his home. It is the claim of the people that the respondent drove a gray horse belonging to Dr. Peas, and arrived home very early in the morning. The people gave testimony tending to support their theory of the case. The respondent denied having any knowledge of what occurred to Mr. Johnson after he left the house of Mr. Swartz; and it was the theory of the' defense that Mr. Johnson had committed suicide, but that, if he was murdered, it was done without the knowledge of the respondent, and by some one else. Testimony was given showing respondent did not leave his father’s house that night. In view of the theory of the people and the testimony in support of it, the testimony in relation to the finding of the body, its position in the stream, the heels dragging on the bed of the stream, the body being partially erect, the head and hands nearly out of the water, the rigid condition of the legs and arms, the fact that this conversation occurred soon after the tragedy, that it was a voluntary talk in connection with the circumstances attending the death of Mr. Johnson, we think it was relevant evidence, and it was for the jury to decide what effect should be given it in connection with all other testimony. Bradner, Ev. (2d Ed.) 5, 6.

We do not deem it necessary to discuss the other assignments of error in relation to the admission of testimony.

Exceptions were taken to the argument of the prosecuting attorney. It is said he misstated the testimony to the jury. As to some of the instances cited by counsel, an inspection of the record shows the statements were fully justified by the evidence. In another instance there was a disagreement between counsel as to what the record contained, and the court caused the stenographer’s minutes to he read to the jury. The judge cautioned the jury against relying upon anything except the testimony in relation to questions of fact.

It is claimed the prosecuting attorney expressed his opinion of the respondent in such a way as to prejudice the jury, and to bring the case within People v. Montague, 71 Mich. 447; People v. Evans, 72 Mich. 367; People v. Lange, 90 Mich. 454; People v. Kahler, 93 Mich. 625. The prosecuting attorney was commenting upon the testimony of a witness, and it is claimed used the following language: “That is either true or false, and, if it is false, John Derhammer is no better than the man we are trying here today.” The attention of the court was not called to this language until the motion for a new trial was inade. The reporter’s minutes show the language as quoted. The prosecuting attorney and 11 of the jurors made affidavit that the language quoted was .not all that was said, but the words “if he is guilty” were used by the prosecuting attorney. The circuit judge, in-disposing of the question, finds that the arrangements of the courtroom and the relative position of the parties will readily account for the failure to correctly report the remarks of counsel. The fact that no objection was made until the minutes of the reporter were written qut is strongly corroborative of the accuracy of the recollection of the prosecuting attorney and the jurors.

Complaint is made of the use made by the prosecuting attorney of the case of Com. v. Webster, 5 Cush. (Mass.) 295 (52 Am. Dec. 711); Id. 386. The record shows that the counsel for respondent called the attention of the jury to this case, and used it in behalf of his client; and that the prosecuting officer was replying to his argument. As soon as the objection was made to the argument, the court stopped it, and told the jury in very explicit terms that they must not be influenced by .the statement of counsel in regard to the Webster Case. If what was said by the counsel was improper,— and, in view of the way the question came up, I am not prepared to say it was, — the court at once prevented any mischief being done by instructing the jury not to regard the remarks made. The zeal of counsel in an important and closely contested criminal case is apt to lead them to extreme expressions; but where the court directs and controls the trial, and promptly checks the attorney when he attempts to go further than his duty calls him, and properly instructs the jury to disregard the improper remarks, the verdict should not be set aside because, before this is done, an improper sentence has dropped from the lips of counsel. People v. Hess, 85 Mich. 128; People v. Pope, 108 Mich. 361.

Exception is taken to the instruction of the court as to what constitutes a reasonable doubt. Counsel say:

“The difficulty grows out of the fact that the term ‘reasonable doubt’ is exceedingly difficult to define, except in a negative way. There is no better positive definition than the expression itself, and when you commence to explain to a jury what a reasonable doubt is, and what constitutes a reasonable doubt, and what does not constitute a reasonable doubt, you are liable to leave in their minds a ‘reasonable doubt’ as to what a reasonable doubt is.”

The charge of the court upon that subject is as follows:

“A reasonable doubt,, gentlemen, is a fair doubt, growing out of the testimony of the case. It is not a mere imaginary, captious, or possible doubt. There are very few things in this world outside of mathematics, gentlemen, that are capable of demonstration. But it is a fair doubt, based upon reason and common sense. It is such a doubt as may leave your minds, after a careful examination of all the evidence in the case, in that condition that you cannot say that you have an abiding conviction to a moral certainty, from the evidence in the case, of the truth of the charge here made against the respondent. Now, apply this rule to this case and to this respondent. If you should become satisfied from the evidence that he is guilty of murder, so that you can say: ‘ There may be a possible doubt, but there is no reasonable doubt; I am morally satisfied and cex-tain from the evidence in tlxe case that the respondent is guilty,’ — then you should say so by your verdict.”

This charge is in entire harmony with the decisions of this court. People v. Finley, 38 Mich. 482; McGuire v. People, 44 Mich. 286 ( 38 Am. Rep. 265); People v. Cox, 70 Mich. 257; People v. Flynn, 96 Mich. 276.

Error is assigned because the court refused to give certain of the requests to charge presented by counsel for respondent. Instead of reading these requests, the court gave the substance of all of them which were material and proper to be given, in a general charge of exceptional clearness and fairness, in which all of the rights of the respondent were carefully guarded. Such a course, instead of being error, is to be commended. Fraser v. Jennison, 42 Mich. 206; Keables v. Christie, 47 Mich. 594; People v. Sligh, 48 Mich. 54; Miller v. Sharp, 65 Mich. 21.

The court was asked to charge the jury that the evidence in the case was not sufficient to warrant a conviction. A long and able argument is made to convince us that this request ought to have' been given. We have already sufficiently alluded to the different theories held by the people and by the respondent. If the jury believed the testimony offered by the people, in connection with the circumstances presented, it was not an unfair inference from all the proofs offered by the people that Mr. Johnson was murdered, and by the respondent. On the other hand, if the testimony offered on the part of the respondent is believed, he should have been acquitted. The case was a proper one to submit to the jury.

We discover no error in the case. The judgment is affirmed.

The other Justices concurred.