text:
    WORLD MANUFACTURING CO. v. KENT CIRCUIT JUDGE.
    1. Equity Practice — Answer on Oath — Waiver.
    Under new chancery rule No. 10, providing that “whenever in a cause a sworn bill of complaint is filed, and a sworn answer demanded, the defendant-shall be required to file such sworn answer, ” an answer under oath must be deemed to be waived in all cases except where a sworn bill is filed and a sworn answer demanded.
    2. Same — Court Rules — Conflict with Statute.
    Such rule is not in conflict with 2 How. Stat. § 6621, which provides that ‘ ‘ when a bill shall be filed in chancery, other than for discovery only, the complainant may waive the answer being made on the oath of the defendant, and in such cases the answer may be made without oath, and shall have no other or greater force as evidence than the bill,” since the statute does not in terms prescribe the manner in which waiver of answer on oath may be made.

      Mandamus by the World Manufacturing Company and others to compel Allen C. Adsit, circuit judge of Kent county, to strike from the files an unsworn answer to a bill in chancery.
    Submitted January 4, 1898.

    Writ denied February 16, 1898.

      Uhl, Hyde & Earle and M. H. Walker, for relators.

      Fitz Gerald & Barry (Francis A. Stace, of counsel), for respondent.
   Montgomery, J.

This application for mandamus calls for a construction of the new chancery rule No. 10, subdivision a of which reads as follows: “Whenever in a cause a sworn bill of complaint is filed, and a sworn answer demanded, the defendant shall be required to file such sworn answer. * * *” It is contended by the relators that this rule conflicts with section 6621, 2 How. Stat., which reads as follows:

“ When a bill shall be filed in chancery, other than for discovery only, the complainant may waive the answer being made on the oath of the defendant, and in such cases the answer may be made without oath, and shall have no other or greater force as evidence than the bill.”

We think the rule can be reconciled with the statute. The statute does not in terms prescribe the manner in which waiver of answer on oath may be made. Under the former practice it was common to demand ah answer on oath, although not strictly necessary. Following the enactment of the statute, and under former chancery rule No. 18, the practice was, in case answer on oath was not desired, to specially waive answer in the bill. Under the present rule an answer under oath must be deemed to be waived in all cases except where a sworn bill is filed and a sworn answer demanded. We think the rule, so construed, does not conflict with the statute. It simply prescribes the manner of waiving a sworn answer.

The writ will be denied.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    HEES v. CARR.
    Chattel Mortgages — Consideration—Antecedent Indebtedness.
    A chattel mortgage given to secure a precedent indebtedness is valid as against one from whom goods had been fraudulently purchased by the mortgagor, where the mortgagee had no knowledge of the fraud, and a part of the indebtedness was incurred subsequent to such fraudulent purchase, and upon the agreement of the debtor to give such security whenever it should be demanded.
    Error to Wayne; Lillibridge, J.
    Submitted January 4, 1898.
    Decided February 16, 1898.
    Replevin by George H. Hees and others against Robert T: Carr and others. From a judgment for defendants, plaintiffs bring error.
    Affirmed.

      Moore & Moore, for appellants.

      Philip T. Van Zile, for appellees.
   Hooker, J.

Carr, Adix & Co. was a mercantile co-partnership, which began business in February, 1894. Joseph H. Valpey and Henry H. Valpey constituted a similar firm,' and obligated themselves to indorse the paper of Carr, Adix & Co. to the extent of $4,000, which they did. In January, 1895, the Valpeys asked for a chattel mortgage; and Carr, Adix & Co. promised, in consideration of past and prospective aid, to secure the former company by a mortgage upon its goods whenever it should insist upon it. In accordance with this agreement, the Valpeys loaned the firm of Carr, Adix & Co. further sums of money, and indorsed their paper. On May 1st, when the mortgage was given, it is said that they owed the Valpeys, for notes indorsed, $4,500, and for cash advanced, $1,500. The mortgage was not filed until May 10th. Carr, Adix.& Co. approached the plaintiffs for credit in February, and it is claimed that they concealed their relations with the Yalpeys, and their agreement to mortgage; representing that they had a stock of $4,000, and owed but $250, whereby they obtained from the plaintiffs goods amounting to $1,139, most of which were delivered in February and March, and were never paid for. On discovering the facts about the mortgage, the plaintiffs 'replevied a portion of the goods furnished, claiming that they were procured by fraud; making Carr, Adix & Co. and the Yalpeys defendants. The jury rendered a verdict for the defendants for the value of the property replevied, viz., $490, from which the defendants consented to remit $152.50; being the amount of a bill of goods furnished after the making, but before the recording, of the mortgage. The plaintiffs appeal.

Counsel seem to agrée that the crucial question in the case is whether the Yalpeys were bona fide holders, for value, of the mortgage; it being contended by their counsel that they are, because it was given in compliance with a promise, under which credit was furnished and money paid, some of which was later in point of time than the furnishing of the goods by the plaintiffs, with the exception of the bill remitted. On the other hand, it is said that inasmuch as the giving of the mortgage was after the indorsement and payments, and not concurrent in point of time with any of them, it was taken to secure pre-existing debts, notwithstanding the fact that it was given in compliance with a promise to give it, in reliance upon which the Yalpeys indorsed paper and paid money.

It is clear that a payment by the Yalpeys previous to the. sale of goods by the plaintiffs would not furnish such a consideration for the mortgage as would cut off this replevin. To hold that it would, would be to say that the promise to give a mortgage would be better than a mortgage executed and delivered, but unrecorded. We understand that counsel for the defendants does not contend otherwise, but bases the defense on the proposition that defendants subsequently parted with money on the promise to give a mortgage, and tliat the giving of such mortgage later, in compliance with the promise, is in effect the same as though it had been given at the time of the payment, and is valid as against intervening creditors. The charge of the learned circuit judge upon this point was, in substance, that:

“ If you believe that Yalpey & Co. assumed the liability of $1,500, or increased their liability $1,500, for Carr,' Adix & Co., after these goods were delivered, and that Yalpey & Co. did not know of any fraud of that kind, then they are protected as bona fide mortgagees.”

It is our understanding that the validity of a mortgage, as against a vendor defrauded in the previous sale of the mortgaged goods, is not necessarily established by the fact that it is given for a debt incurred by the mortgagor after the fraudulent purchase. It must depend on an entirely different consideration, viz., that another than the vendor has acquired a title to or interest in the goods, in ignorance of the fraud, and that he has parted with value in consideration of such title or interest. These elements being present, it is not necessary that the giving of the mortgage be concurrent in point of time with the payment, so long as the right to have the mortgage is a part of the consideration for the payment. It is no less the consideration because given at a later time, in compliance with the obligation to do so. It is said that an executory promise to give a mortgage, in consideration of which money is paid down, could not be enforced, and, moreover, if valid between the parties, would be void as to creditors if not recorded. "Whether equity would enforce a lien upon goods when a mortgage was promised in consideration of money paid, and not given, we need not inquire (but see Jones, Chat. Mortg. § 3), because in this case the obligation had been recognized and performed by giving the mortgage before any other rights or equities had intervened; and the only question before us is whether it is supported by value, or, as said in Schloss v. Feltus, 103 Mich. 529 (36 L. R. A. 161), whether it appears that the Yalpeys “paid as well as purchased.” We have already said that the executory promise to give a mortgage might not be any better than an unrecorded mortgage, under the statute, and would not stand as against intervening creditors. See Jones, Chat. Mortg. § 3.

We need not discuss the validity of a mortgage given for and at the time of the payment of money, as all recognize that it is valid, and binds property against a vendor, though fraudulently procured. See Schloss v. Feltus, supra, where th'e subject is discussed; Benj. Sales (6th Ed.), 446; Tied. Sales, § 329, and cases cited; 8 Am. & Eng. Enc. Law, 756, 842. All of these authorities recognize the rule that the purchaser must part with something of value, and they agree that merely taking security for an antecedent debt does not, alone, furnish a valuable consideration. But here the consideration for the mortgage was a precedent debt, and also the payment of a sum of money which would not have been paid' but for the promise to give the mortgage. Had the mortgage been given then and there, it could not be said that it was given for an antecedent debt, and the claim of the plaintiffs is predicated upon the interval of time that elapsed between payment and the delivery of the mortgage. In our opinion, it was essentially one transaction, and, instead of being given solely for an antecedent debt, the mortgage was given for a concurrent obligation, from which the mortgage was inseparable, and to that extent, at least, bound the property. The passage quoted from the charge would be too broad, inasmuch as it appears to omit reference to the importance of the agreement to give the mortgage, but for the fact that the undisputed testimony shows that the money was paid in reliance upon the agreement to give the mortgage. This was doubtless the reason for its omission.

As the undisputed evidence shows that the Yalpey mortgage was taken in good faith, and for value parted with in reliance upon it, it was a perfect defense, except as to the amount remitted; and, as the court might have said so to the jury, the other questions raised need not be considered.

The judgment of the circuit court is affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    MARKILLIE v. MARKILLIE.
    1. Contracts — Consideration—Antenuptial Promise.
    An antenuptial promise by the husband to convey land to the wife does not constitute a consideration for a conveyance after the marriage, where the wife did not rely upon such promise in contracting the marriage.
    2. Settlement — Matters not Involved.
    Where a testator’s heirs at law threatened to attack, on the ground of incompetency and undue influence, a codicil to his will bequeathing certain moneys to his wife, and a deed conveying to her certain lands, and thereafter came to a settlement with her with respect to the bequest, nothing being said about the land, they were not precluded by the settlement from pursuing proceedings in equity to set aside the deed.
    Appeal from Van Burén; Buck, J.
    Submitted January 5, 1898.
    Decided February 16, 1898.
    Bill by George W. Markillie and others against Wealthy Markillie and Charles Allen to set aside certain deeds. From a decree for complainants, defendants appeal.
    Affirmed.

      T. J. Cavanaugh and Alfred J. Mills, for complainants.

      A. Lynn Free and Heckert & Chandler, for defendants.
   Grant, C. J.

Complainants are the heirs at law of William Markillie, deceased. The defendant Wealthy Markillie is his widow. They were married May 26, 1894; he being 81 years of age and she 59. He was a widower, having been married twice. She was a widow. He died July 17, 1896. On February 25, 1895, he executed a deed of 80 acres of land to his wife. He was placed under guardianship, as an incompetent person, September 23, 1895. Defendant Allen is her grantee; she having deeded the land to. him February 11, 1896. The complainants charge in their bill that the deed from Mr. Markillie to his wife was without consideration, was procured by undue influence, and that Mr. Markillie was incompetent to execute it; that the deed to Allen was made without consideration, and upon an agreement that at the death of Mr. Markillie he should redeed the land to her; and that the arrangement was made with full knowledge that Mr. Markillie was incompetent, and for the sole purpose of assisting her to defraud the estate and heirs of Mr. Markillie. The defendants deny the undue influence and incompetency, assert that the deed was made pursuant to a promise before marriage, but do not deny that the deed by defendant Markillie to defendant Allen was made under an agreement to reconvey on Mr. Markillie’s death.

Many witnesses were sworn — about an equal number on each side — in regard to the mental condition of Mr. Markillie for some years before his death, and as to his promise to deed the land to her. There is a sharp conflict of testimony on all the points raised, except that of an antenuptial contract. If there was any such promise, it rested .entirely in parol. There is testimony that he told her he would give her the Barton place if she would marry him. Whatever Mr. Markillie said to her, she has disposed of the question of a valid antenuptial contract by her own testimony, for she says that she did not rely upon any such promise in getting married: “I married him for a companion, so that I might have some place to stay, and that he might have some place to stay. I had a home as well as I have now. One would assist in taking care of the other.” The promise to convey was not, therefore, the consideration -for the marriage contract. Two physicians testified that Mr. Markillie was seriously affected with senile dementia at the time of, and for a long time prior to, the making of the deed. There is no medical testimony to contradict this. Where the testimony is in such direct conflict, much depends upon the character of the witnesses as they appear upon the stand, and whose credibility the judge presiding is better able to determine. Able briefs are filed, and the case was ably argued here; but we think the court below was in better position than are we to decide the questions .involved, which are purely those of fact.

On the day that Mr. Markillie was adjudged incompetent, he made a codicil to his will, bequeathing to his wife $5,000. The heirs compromised the claim by giving her $é,000. It is now insisted that this settlement was made upon the basis that she retain the land. She herself testified that during the settlement no reference.was made to the land. It cannot, thei’efore, well be maintained that the parties understood that no attempt should be made to set the deed aside. They settled the bequest under the will, and nothing more. The agreement of settlement did not purport to settle anything else than the matters therein described.

We deem it just to Mr. Free, who drew the deed and took the acknowledgment, to say that there is nothing in the record which will justify an inference of improper conduct on his part.

The decree must be affirmed, with costs.

The other Justices concurred.


text:
    STEBBINS v. HEATH.
    Mortgages — Foreclosure—Redemption—Resale.
    A mortgagor’s petition, for a resale of the premises, -which were bid in by the mortgagee upon foreclosure, will be denied, notwithstanding the latter promised to redeed to the mortgagor upon payment being made within a specified time after sale, or to give still further time for redemption on payment of a specified sum, where it appears that the mortgagor made no offer of payment within the period limited, nor requested further time, but talked and acted as though he had abandoned his purpose to redeem, in reliance upon which the mortgagee paid prior incumbrances and taxes upon the land, and went to a considerable expenditure of money, time, and trouble v
    Appeal from Kent; Grove, J.
    Submitted January 5, 1898.
    Decided February 16, 1898.
    Bill by Andrew J. Stebbins against Wilmer H. Heath and others to foreclose a mortgage. From an order denying a petition for a resale, defendant Wilmer H. Heath appeals.
    Affirmed.

      Wolcott & Ward, for appellant.

      Frank W. Hine, for complainant.
   Hooker, J.

The complainant took a consent decree of foreclosure, and the proceedings up to the sale appear to have been regular. The sale was made in the presence of the defendants and their solicitors, and the premises were bid in by the complainant for the amount due, which was figured and agreed to by the defendants. The sale occurred on May 19, 1897, the report of sale was made, and order nisi (of confirmation) was entered, upon the same day. On the 2d day of June, 1897, the defendant Heath filed a petition praying that a resale be ordered unless the complainant should execute a deed to such party as should be designated and agreed upon by and between all of the defendants within 10 days. This petition was heard upon affidavits, and the prayer denied. The defendant Wilmer H. Heath has appealed.

The gist of the petition is that on the day of, and previous to, the sale, the defendants Heath and Hastings informed the complainant that it was their intention to redeem the land from the complainant’s mortgage, and that they had on hand the amount necessary to pay him, but that parties from whom they were expecting to get the money required a release from the defendant Louise Holt Manchester, who held a prior mortgage on a part of the premises, amounting to $300, and that they did not have that sum, and that they requested that the sale be deferred, but that the complainant declined to consent to that, and it was agreed that he should be allowed to bid in the property for the amount of his claim, with the understanding that he would deed to any one designated by the defendants, at any time with'in one week, upon payment, and that, if they wanted further time, he would extend that arrangement 10 days for the sum of $10. It is further alleged that the land was struck off to the complainant; that, on the 27th day of May, Heath saw the complainant, and told him that the week was up, and that he could have the $10 if he wished, and complainant said that the payment of the $10 was unnecessary at that time, that the matter might rest, and he would take care of the interest of Heath; that on Tuesday, June 1st, he was prepared to pay the complainant, having succeeded in satisfying the party who was to loan him the money in regard to the Manchester interest, and called on complainant with one Burtch, who was to loan him the money, to ask about making certain arrangements in regard to the money, whereupon he was informed by the complainant that he should require the sum of $2,800 (being about $1,000 more than was bid at the sale by the complainant); that the complainant was informed that his money was ready, and declined to receive it; and that Burtch is ready to pay the amount due to the complainant. Heath was the owner in fee of the premises until they were deeded to Hastings by himself and wife in trhst, for what purpose he does not state. To support the petition, the affidavits of Heath and Hastings and their counsel were read, substantially supporting the allegations of the petition.

The complainant’s affidavits set the matter out in a different light. His own affidavit states that the sale was originally advertised for May 10th, and was adjourned to the 19th upon request of Heath; that on that day he wanted more time, but complainant refused a further adjournment, but did promise to deed the premises to him on or before May 26th, on payment, and, if he wanted more time, he would give him 10 days more on payment of $10. He explicitly denies any bargain that others should not bid, and says that there was no one there to bid except the defendants, who confessedly had not the means to pay with if they had bid; that at that time Hastings refused to furnish- the money, saying that he had already enough money invested in Heath. His affidavit states further that on the 27th day of May there was no request for further time, or offer of money, but Heath talked as though he had abandoned the matter, saying he had no more 10 dollars to pay out; that at that time he wanted complainant to borrow $1,800 of Burtch, and give petitioner a contract for the land, which was refused. Complainant shows further that after May 26th he paid prior incumbrances and taxes, and expended money, time, and trouble about the matter; that he is still willing to deed the premises, however, if he can be made whole, and paid other obligations which Heath owes him, to defeat the collection of which, he charges, Heath conveyed his property. He is corroborated by his solicitor as to the transaction on the day of sale; and the affidavit of the county treasurer shows that on May 27th Heath left with him a check to pay the taxes; that on May 28th he received a telegram from Heath to hold the check, and the same day a message, over the telephone, that he had changed his mind, and would not pay the taxes, — that probably Stebbins would pay them; that he (the treasurer) requested Stebbins to pay them, telling him what Heath said, and Stebbins paid them.

We are of the opinion that the preponderance of evidence is with Stebbins. He bid the premises in fairly, and was under no obligation to concede any opportunity for redemption. Having done so, however, he appears to have been willing to carry it out. Now he is asked to forego his purchase and legal rights under it. A court of equity would always prefer to permit redemption, but cannot consistently do so in disregard of plain rights.

The circuit judge seems to have taken the same view of this evidence that we do, and his order is affirmed, with costs.

The other Justices concurred.


text:
    ROGERS v. DAY.

    1. Homestead — Rights of Wife.
    A wife does not lose any of her rights in the homestead by being driven therefrom by the cruelty of her husband.
    2. Same — Mortgage by Husband Alone — Covenants of Warranty — Effect of Subsequent Divorce,
    A covenant of warranty of title in a mortgage of a homestead, which was originally void because the mortgagor’s wife did not join therein, does not operate to cure the invalidity upon the subsequent granting of a divorce to the wife.
    3. Same — Abandonment—Evidence.
    A letter written by a wife to her husband, who has driven her from home by his cruelty, in which she states that she will not go back to live with him, that he can use the place to help himself with, and that she will have what she took away, does not amount to a declaration of abandonment of her homestead interest.
    4. Same.
    A husband’s attempted conveyance of the homestead without the wife’s signature is not validated by the subsequent abandonment of the homestead by the wife.
    5. Same — Purchase at Execution Sale — Rights Acquired.
    A purchaser of a homestead at an execution sale under a decree for alimony in favor of the owner’s wife succeeds to her right to attack a prior mortgage as invalid because she did not join therein.
    6. Equity Pleading — Advérse Possession.
    A title in complainant by adverse possession may be snown under a bill to set aside a mortgage which avers a purchase of the property by complainant’s grantor at an execution sale at a certain date, the immediate taking of possession thereunder, which was more than 15 years before the commence, ment of the suit, and states that complainant and his grantors have since been in the “actual, continuous, and uninterrupted possession” of the premises; complainant not being obliged to rely solely upon the title acqured at the execution sale.
    Appeal from Muskegon; Russell, J.
    Submitted January 5, 1898.
    Decided February 16, 1898.
    Bill by Jesse Rogers against Albert G. Day to set aside a mortgage. From a decree for complainant, defendant appeals.
    Affirmed.
    Bill to set aside a mortgage executed by one Isaac Louw to defendant for $100, dated September 20, 1880, on the ground that the land mortgaged was a homestead, and the mortgage was not signed by the wife. The following facts are established; Louw owned the land, and, with his wife and children, lived upon and occupied it as a homestead from 1870 to May, 1880. By his cruelty, he drove his wife and children from home. He was convicted of assaulting his wife, and sentenced to prison for 65 days. She filed a bill for divorce, and obtained a decree February 23, 1881. After he was sent to prison, she exercised control over the farm during the year 1880. She had sold two cows which were left on the farm at the time of her husband’s arrest. On his return from prison, seized and took away one of these cows, for which act he was charged with larceny, and arrested. While in jail, awaiting trial upon this charge, he executed the mortgage in question. On the' same day he executed a deed of the land to one Carrington. In neither of these conveyances did the wife join. January 17, 1881, his wife filed a petition for alimony for the support of herself and her three infant children, described the land in question, stated its value at $500, that it had been acquired mainly by her industry, energy, and frugality, and asking for alimony, which was granted, and, upon the failure of her husband to pay, the land was sold upon execution, bid in by one Dresser, from whom complainant derives his title, through mesne conveyances. Complainant and his grantors had been in possession under the execution sale for 15 years prior to the commencement of this suit.

      James C. McLaughlin, for complainant.

      Albert G. Day, in pro. per.

       Rehearing denied March 22, 1898.

   Grant, C. J.

(after stating the facts). 1. Was the mortgage valid when executed ? To this there can be but one answer. It was not. The wife lost none of her marital rights, including her right in the homestead, by being driven therefrom through the cruelty of her husband. At the time the mortgage was executed, her homestead right was as secure as though she had been in actual possession. Sherrid v. Southwick, 43 Mich. 515; Barker v. Dayton, 28 Wis. 367; Herron v. Knapp, 72 Wis. 553.

2. The mortgage contained a covenant of warranty of title. Did this inure to the benefit of defendant upon the granting of the divorce ? The plain language of the statute, which makes such a mortgage absolutely void, is a complete answer to the question. The covenant in an absolutely void instrument has no greater force than the instrument itself. A covenant in a deed which is void cannot be given life as an effectual conveyance by a decree of divorce. Phillips v. Stauch, 20 Mich. 369, 381; Watertown Fire Ins. Co. v. Saving Machine Co., 41 Mich. 131; Hall v. Loomis, 63 Mich. 709; Alt v. Banholzer, 39 Minn. 511 (12 Am. St. Rep. 681); Barton v. Drake, 21 Minn. 299.

The defendant cites, to support his contention, Heaton v. Sawyer, 60 Vt. 495; In re Romero’s Estate, 75 Cal. 379; Prater v. Prater, 87 Tenn. 78 (10 Am. St. Rep. 623); Wiggin v. Buzzell, 58 N. H. 329. In Heaton v. Sawyer the decree settled all the rights of the parties. The care of the children was given to the wife, and a certain sum was decreed to be paid by the husband to her in lieu of all her rights in the estate. The same remark applies to Wiggin v. Buzzell. In Prater v. Prater the wife had deserted her husband, eloped with another man, had taken up a permanent residence with him in another State, and had continued to live in adultery with him until her husband’s death. In Re Romero’s Estate it was held that a homestead cannot be set apart from the estate of a decedent to minors who are not the children of decedent either in fact or by adoption. These cases do not support the contention.

3. An attempt was made to show an abandonment of the homestead by Mrs. Louw. This is based upon two letters, dated, respectively, in August and September, 1880, which are claimed to have been written by her. The former purports to be signed “Sarah M. Louw.” The other has no signature. These letters were written after she had been compelled to leave her husband and his home, and while proceedings for divorce were pending. Neither letter says a word about abandoning her right to the homestead. The first states that she will not go back to live with him, and that he can use. the place to help himself with, and she will have what she took away. The second letter says nothing whatever about her intentions. Giving these letters the* broadest significance, they do not amount to an abandonment. She, soon after, filed her petition for alimony, and prosecuted her suit to a decree. But an abandonment by husband or wife does not validate a conveyance of a homestead without the other’s signature. Belden v. Younger, 76 Iowa, 567; Bruner v. Bateman, 66 Iowa, 488.

4. Defendant insists that only the husband, widow, or children can take advantage of this homestead right, and maintain a suit to protect it; and that, since neither in this case disaffirmed the conveyance, the complainant has no standing. Complainant stands in the shoes of Mrs. Louw. She chose to have the property sold upon execution on a decree rendered in her favor. This act estopped her to set up her homestead right as against the purchaser at the sale and his grantees. Complainant is in possession under her, and as her grantee under the execution sale. He succeeded to her rights.

5. Defendant attacks the regularity of the execution sale, and sets up alleged jurisdictional defects. If complainant rested his rights upon this sale, it would be necessary to determine its validity. He, however, has shown title by adverse possession. Defendant insists that such title is not claimed by the bill, and that, therefore, complainant cannot recover on this ground, and cites Moran v. Palmer, 13 Mich. 367. The decision in that case was based upon the fact that complainant, after proofs were in, sought relief upon equities springing from estoppels in pais, which were not even referred to, either in the bill or the answer. The case, however, was remanded, with permission to complainant to amend his bill. In the present case complainant sets up the date of a sale, and the immediate taking of possession thereunder (which was more than 15 years before the commencement of the suit), the continuance of such possession, and states that he and his grantors have been in “ actual, continuous, and uninterrupted possession” of the premises. An adverse possession is therefore set up, and can be taken advantage of under the prayer for general relief.

The decree is affirmed, with costs.

The other Justices concurred.


author: Long, J.

text:
    PEOPLE, for use of SIMON, v. PACK.
    Attorney and Client — Lien Upon Judgment.
    It is immaterial that an attorney, who claims a lien upon a judgment for his services, was styled upon the record as “of counsel ” merely, where it appears that he actively assisted in the preparation for and conduct of the trial.
    Error to Alpena; Kelley, J.
    Submitted January 6, 1898.
    Decided February 16, 1898.

      Assumpsit by the people, for the use and benefit of Sigmund Simon and another, against Albert Pack and others, upon a sheriff’s official bond. The case was settled and discontinued by stipulation. Thereafter, one of plaintiffs’ attorneys having given notice of attorney’s lien, the stipulation of discontinuance was stricken from the files, the case tried, and judgment rendered for plaintiffs for the amount of the lien. Both parties bring error.
    Affirmed.

      Sloman & Groesbeek, for plaintiffs.

      J. H. Cobb (Moore & Moore, of counsel), for defendants.

      I. S. Canfield, in pro. per.

   Long, J.

Plaintiffs, who were in May, 1893, doing business in Detroit, under the firm name of S. Simon & Co., became joint mortgagees with the firm.,of Heaven-rich Bros, in a mortgage given by Kositchek Bros., of Alpena. In June of the same year, the' sheriff of Alpena county, through his deputy, attached the mortgaged property in an action brought by other creditors against the Kositcheks. Plaintiffs and Heavenrich Bros, brought separate actions of trover against the sheriff and the attaching creditors, in which plaintiffs recovered a judgment for $3,267. Plaintiffs, being unable to collect their judgment, brought this action in the Alpena circuit upon the sheriff’s official bond. While this action was pending, the defendants paid to plaintiffs the amount of the judgment, interest, and costs, less $500, which was retained, notice having been given them by I. S. Canfield that he claimed an attorney’s lien for the sum of $425' on such judgment and the judgment in the Heavenrich case. Thereupon plaintiffs assigned their judgment to Comstock, one of the defendants, who was a surety upon the said sheriff’s bond. At the same time, plaintiffs, through Sloman, Groesbeck & Robinson, their Detroit attorneys, stipulated with defendants’ attorney for the discontinuance of the suit; but no order of discontinuance was ever entered.

It appears that Mr. Canfield, an attorney residing at Alpena, had been employed in June, 1893, through Sloman & Duffie, for plaintiffs, to assist them in the litigation against the defendants in those lien suits. Canfield, as plaintiffs’ attorney, had demanded the mortgaged property, and, being refused, commenced the trover suit, signing, under instructions, the writ by which such suit was commenced, ‘ Sloman & Duffie, Attorneys for Plaintiffs, Frank Emerick and I. S. Canfield, of counsel.” Sloman & Duffie drew the declaration in said cause, signing and indorsing the same in like manner, and sent it to Canfield for filing and service. The notice of retainer and plea in both of said causes were directed to and served upon Canfield, who noticed the cases for trial, filed notes of issue with the clerk, opposed the application of defendants, looked up the testimony for plaintiffs by their request, talked with their witnesses, and secured their attendance, consulted with and attended the trial with plaintiffs, and actively assisted them. On motion of Can-field, judgment was entered in plaintiffs’ favor in those suits. He also taxed the costs, took out an execution upon said judgment, and looked after the same, and caused its return. The judgment not being collected from the sheriff, Canfield, at the request of the aforesaid attorneys, commenced the action upon the sheriff’s official bond to enforce its collection, prepared the declaration, noticed the same for trial, opposed in court a motion made by defendants for a continuance, and did all of the work incident to the preparation thereof for trial, all of which was performed for and at the request of said plaintiffs, through their attorneys. After defendants paid plaintiffs, and the stipulation discontinuing suit had been filed, Can-field, to preserve his attorney’s lien, obtained an order striking said stipulation from the files, and reinstating the case for trial; and in March, 1897, the case was tried at the circuit, and verdict and judgment entered for $217.50, being the amount of Canfield’s lien, in favor of the plaintiffs, from which both of said parties to the original suit have appealed. Mr. Canfield tried the case for plaintiffs, and Sloman & Groesbeck appeared for the plaintiffs, and J. H. „Cobb for defendants.

We are satisfied that the court was not in error in instructing the jury that Mr. Canfield was employed as attorney and counsel in the suits in question. The court left it for the jury to determine what those services were worth. The only question which we need discuss is whether Mr. Canfield, as plaintiffs’ attorney, has a lien for his services upon the judgment obtained by the plaintiffs against the defendants. The contention of counsel for plaintiffs seems to be that Mr. Canfield, being merely counsel in the case, had no lien upon the judgment. A similar case was before this court at the October term, 1896, in a mandamus proceeding. Heavenrich v. Alpena Circuit Judge, 111 Mich. 163. There the same question was raised, and the mandamus denied. The court below held that Mr. Canfield had a lien upon the judgment; and it was said by this court that the case was governed by Weeks v. Wayne Circuit Judges, 73 Mich. 256, and Carpenter v. Myers, 90 Mich. 210. The present case is ruled by those cases.

Judgment affirmed.

The other Justices concurred.


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    MOSSER v. KNIGHTS TEMPLARS & MASONS’ LIFE INDEMNITY CO.
    Lire Insurance — Lapsed Policy — Reinstatement.
    The fact that a life-insurance company, in reply to a letter written on behalf of the wife of a-policy-holder, apprising it of the latter’s disappearance, suggesting the inadvisability of her continuing the payment of premiums, and inquiring whether, in case the x>olicy should lapse, the insured could be reinstated upon his return, or would be obliged to apply anew, wrote advising the cancellation of the policy, and stating that, in the event of his return, it would do whatever was right in regal’d to a new policy, after which no further premiums were paid, will not, in the absence of fraud, entitle the wife to a reinstatement of the policy, where the husband died without having returned.
    Appeal from Wexford; Aldrich, J.
    Submitted January 6, 1898.
    Decided February 16, 1898.
    Bill by Sarah A. Mosser against the Knights' Templars & Masons’ Life Indemnity Company for the reinstatement of an insurance policy. From a decree for complainant, defendant appeals.
    Reversed.

      Sawyer & Bishop (John W. McGrath, of counsel), for complainant.

      McIntyre & Wetmore, for defendant.
   Hooker, J.

This suit is based on a policy of insurance, and the complainant obtained a decree reinstating the policy. The defendant asserts that the policy was canceled nearly three years before the husband of the complainant died. The following correspondence will show the foundation for this claim:

“Cadillac, Mich., Oct. 26, 1893.
“W. H. Gray, Gen’l Mgr. K. T. & M. L. I. Co.,
“Chicago, Ill.
“Near Sir and Bro.: On the 19th of August last, Bro. John G. Mosser, the holder of policy No. 8,160, made an assignment for benefit of creditors, and, for some.unknown reason, left the country. All trace of him was lost at Niagara Falls, Aug. 22, when he took a Grand Trunk train for the West. His wife has paid his assessments in all his insurance companies since that time, but we do not think it advisable for her to continue paying until something further develops. We would like to know if, in case his policy lapses for nonpayment, can he be reinstated when he turns up, or would he be compelled to apply anew ? It seems to us that, in the present uncertain state of affairs, Mrs. Mosser had better not risk any further payments, as they would be of no benefit to her. Let us hear from you.
“Yours, etc.,
“J. R. Bishop,.H. P.,
“Cadillac Ch., No. 103, R. A. M.”
“Chicago, Nov. 4, 1893
“J. R. Bishop, Esq.,
' “ Cadillac, Mich.
“Near Sir: Yours received and noted. In reply, will say, when Mr. Mosser returns, we will do whatever is right, in the way of issuing a new policy; but, under the circumstances, I would not approve of the continuation of the old policy, since, should he die, it would not be known when or where he died, all of which would have to be in strict accordance with the provisions of the policy, and be furnished as information, in the event of death, to show he had not violated any of the terms of the policy while he was gone. The best thing to do would be to let the policy cancel, and, if he returns, we could consider him for a new policy, waiving the entrance fee on the proper papers being furnished. With best wishes, I am,
“Yours respectfully,
“W. H. Gray, General Manager.”

We think it clear, from this record, that the complainant, acting under the advice of her friends, determined to, and did, allow the policy to be canceled. The defendant made no promise to do more than “to do what is right, upon an application for a new policy, in case of his return.” There is not a suggestion of fraud or overreaching, nor is there anything that could constitute an estoppel. The solicitors for the complainant say that the complainant acted upon the advice of the defendant. This is doubtless true, in a sense; but it was advice sought by her, and conformed to the opinions of her own friends. We discover no just reason for compelling the payment of the policy, or any rule of law which would warrant it.

The decree is reversed, and complainant’s bill is dismissed, with costs of both courts.

The other Justices concurred.


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    BLITZ v. FIELDS.
    Mechanics Liens — Subcontractors—Notice of Claim — Payment to Contractor.
    The failure of a subcontractor to serve upon the owner of the premises a detailed statement of his claim for material within 10 days after the same was furnished, as provided by section 1 of the lien law of 1891 (Act No. 179, Pub. Acts 1891), would not relieve the owner from liability thérefor, where he paid to the contractor the full contract price without requiring of him the sworn statement as to the claims of sub-contractors, laborers, and material men, provided for by section 4 of the act.
    Appeal from Wayne; Hosmer, J.
    Submitted January 6, 1898.
    Decided February 16, 1898.
    Bill by Louis Blitz against Lorenzo D. Fields, impleaded with Michael Schuh, to enforce a mechanic’s lien. From a decree for complainant, defendant appeals.
    Affirmed.

      Moore & Moore, for complainant.

      James H. Pound, for defendant.
   Long, J.

On June 6, 1892, defendant Fields owned certain land in the city of Detroit, described in complainant’s bill, and on that day entered into a contract with defendant Schuh for erecting a building thereon. In August following, complainant, as subcontractor, furnished to said Schuh labor and material to complete the house under the contract, to the amount of.$118.43. Complainant’s work began August 20th and terminated August 25th. It is claimed by complainant that, within 10 days after the completion of the work, he served on defendant Fields a detailed statement of the goods so sold. This is denied by defendant Fields. September 20th complainant filed in the register of deeds’ office a lien upon the land in question. The next day he caused a copy of this lien to be served on defendant Fields, and on October 7th he filed in the register’s office proof of this service. October 8th the bill of complaint in this cause was filed. Defendant Schuh did not appear, and the bill was taken as confessed against him. Defendant Fields appeared and answered, claiming that he had paid the original contractor in full. On the hearing in open court, the foregoing facts appeared from the testimony, and it appeared that the defendant, almost immediately after the work was finished, paid the defendant Schuh the balance of $200, which was then due him, without securing an affidavit from Schuh, as required by Act No. 179, Pub. Acts 1891, but paid it on the verbal assurance of one of Schuh’s creditors that he (the creditor) would protect him (Fields) against any unpaid claims:

It is the claim of counsel for defendant that the complainant did not serve upon the owner of the premises a detailed statement of the claim within 10 days after the material was furnished, as provided by section 1 of the act, and that, therefore, defendant might pay the contractor without becoming liable to material men and for labor; that the owner was informed by the contractor that the claim of complainant was paid; that the payment by the owner to the contractor- was without notice of complainant’s claim. It is further contended that the owner did not pay until after the work was completed, and when there was no reason why he should withhold payment. In other words, it is contended that, notwithstanding the provisions of section 4 of the act, the owner has the right to pay the contractor the full amount of the contract price, unless each material man shall, within 10 days after the sale of the material to the contractor, serve on the owner, etc., a fairly detailed .statement of the goods so sold, etc. But it was held by this court in Smalley v. Ashland Brown-Stone Co., 114 Mich. 104, that this provision of section 1 of the act is for the protection of the subcontractor or laborer, and is not a condition to the lien attaching. Counsel seeks to distinguish that case from the present by the fact that that case arose under the act of 1893; but the same provision is found in both statutes, and we think the case is not distinguishable.

It is provided by section 4 that the owner may deniand of the contractor a sworn statement before making payments to him, giving the substance of what shall be contained in this sworn statement. It is then provided by that section:

“Until the statement provided for in this section is made, in manner and form as herein provided, the contractor shall have no right of action or lien against the owner * * * on account of such contract, and any payments made by the owner * * * before such statement is made, dr without retaining sufficient money, if that amount be due or is to become due, to pay the subcontractors, laborers, or material men, as shown by the statement, shall be considered illegal, and made in violation of the rights of the persons intended to be benefited by this act, and the rights of such subcontractors, laborers, and material men to a lien shall not be affected thereby.”

It is shown that no such sworn statement was made or demanded by the owner. He claims to have paid the full contract price, paying $200 after the material furnished by the complainant had been put into the building. The defendant’s contention cannot be sustained. The owner paid at his peril.

The court below very properly found that the complainant had the lien claimed, and decreed accordingly. That decree must be affirmed, with costs to the complainant.

The other Justices concurred.


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    TOWNSHIP OF DEERFIELD v. HARPER.
    1. Taxes — Action by Township — Defenses.
    In a suit brought by a township, under the authority of its supervisor, to recover taxes upon personalty, it cannot be shown in defense that the defendant had personal property in the township out of which the township treasurer might have satisfied the claim for taxes, and that the treasurer did not, in his return, set up his inability, to find such property.
    2. Same — Tax Roll — Identification.
    In a suit by a township to recover personal taxes, the testimony of the supervisor that he made the tax roll, delivered it to the township treasurer, and obtained it from the county treasurer’s office for use upon the trial, sufficiently identifies the roll to justify its introduction in evidence.
    3. Same — Fraudulent Action of Board of Review — Notice of, Defense.
    In a suit by a township to recover personal taxes, the defendant cannot show that the board of review acted fraudulently in raising the assessment made by the supervisor, unless he has given notice of such defense.
    4. Same — Residence—Road Districts — Evidence.
    Evidence as to the road district in which one was previously assessed for highway taxes is not admissible for the purpose of showing that he was not a' resident of the district in which the assessment in question was made, as under 3 How. Stat. § 1361, the highway commissioner and the township board are authorized to divide the township into road districts, and may change them from year to year.
    5. Same — Lost Record — Secondary Evidence — Foundation.
    Proof that the return of the highway taxes for a road district, which was procured for the purpose of a former trial from the township clerk, has been lost, does not, in view of 3 How. Stat. § 1416, requiring the filing of such return with the supervisor, lay a sufficient foundation for the introduction of parol proof as to its contents, unless it is shown that the return is not in the supervisor’s office.
    6. Same — One-Mill Tax — Valuation.
    The one-mill school tax provided for by 3 How. Stat. § 5091, is to be determined by the assessed valuation fixed by the board of review, and not by the equalized valuation fixed by the board of supervisors, in view of the requirement that the township clerk shall report to the director of each school district the amount of such tax before the 1st day of September.
    Error to Shiawassee; Smith, J.
    Submitted January 25, 1898.
    Decided February 16, 1898.

      Assumpsit by the township of Deerfield against William Harper to recover a tax on personal property. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. E. Richards, for appellant.

      Louis E. Howlett and Dennis Shields, for appellee.
   Grant, C. J.

Plaintiff sued defendant to recover taxes upon personal property assessed against him for the year 1895.

1. It is urged that this suit cannot be maintained because the township treasurer did not levy upon personal property of the defendant, which he claims to have had in the township, and that he made no return of his inability to find any. This suit was not brought at the instance of the treasurer, but at the instance of the supervisor. It is therefore ruled against the defendant by Township of Bangor v. Smith Transportation Co., 112 Mich. 601.

2. Error is assigned upon the admission in evidence of the tax roll. The supervisor who made the roll testified that it was made by him, that he delivered it to the township treasurer, and that he obtained it from the county treasurer’s office for use upon the trial. The identification was sufficient to justify its introduction.

3. Defendant sought to prove that the board of review acted fraudulently in raising the assessment made by the supervisor. The testimony was properly excluded. Defendant had given no notice of such a defense. Alpena National Bank v. Greenbaum, 80 Mich. 1; Morley v. Insurance Co., 92 Mich. 590; Miller v. Finley, 26 Mich. 249 (12 Am. Rep. 306).

4. The principal issue in the case was whether defendant was a resident of the plaintiff township at the time of the assessment. Counsel for the defendant insists that the evidence conclusively establishes that he was not. The court assumed that the evidence was in conflict, and submitted it to the jury, who found against the defendant. It is unnecessary to detail the testimony. There was sufficient evidence to justify the verdict of the jury.

5. Defendant claimed that the highway tax assessed against him was illegal because he was not a resident of the road district where it was assessed. The testimony offered related to the district in which he had been previously assessed. Under 3 How. Stat. § 1361, the highway commissioner and the township board are authorized to divide the township into road districts. They may change these from year to year. The testimony offered did not relate to the year in which these taxes were assessed, and was properly excluded.

6. Defendant tendered parol proof of the contents of the return of the highway taxes for the district and year, in question. The return was produced upon the former trial of the cause, and since then had been lost. This was the return in possession of the township clerk. 3 How. Stat. § 1416, requires that such return shall be filed with the supervisor. No attempt was made to show that no such return was in the supervisor’s office. The proper foundation, therefore, was not laid for the introduction of secondary evidence.

7. The one-mill tax was placed upon the tax roll upon the assessment made by the board of review in May. Under this assessment the tax amounted to $667.88. At the annual October meeting, the board of supervisors reduced by a small amount the valuation of said township for that year, so that the mill tax upon that valuation would have amounted to $G65, — a difference of $2.88. It is claimed that the equalized value by the board of supervisors must prevail. The law (3 How. Stat. § 5091), which is an amendment of 1887, requires the township clerk to report to the director of each school district the amount of the one-mill tax before the 1st day of September. The object of this is to permit school districts, at their] annual September meeting, to know the amount of money at their disposal for the ensuing year. We think that the law contemplates that this mill tax shall be determined by the assessed valuation fixed by the board of review, and not by the equalized valuation as fixed by the board of supervisors.

The judgment is affirmed.

The other Justices concurred.


text:
    LORANGER v. LORANGER.
    1. Slander — Words Imputing Want of Chastity — Circumstances op Utterance.
    In the course of a dispute over some wood which plaintiff was attempting to prevent defendant and his tenant from hauling away from premises claimed by her, defendant was alleged to have said to plaintiff, in the presence of the tenant: “You are not a decent woman; you do not keep a respectable house.” Held, that defendant could not complain that the jury, in an action for slander, were permitted to find that the words used imputed to plaintiff a want of chastity and the keeping of a house of ill fame.
    2. Same — Publication—Pleading,'
    Under a declaration for slander alleging that the words complained of were used in the presence and hearing of divers persons besides plaintiff, the plaintiff may establish publication by showing that one person other than the parties was present and heard the slanderous words. •
    8. Same.
    ' The testimony of such third person that he did not hear the defendant utter the alleged slanderous words is not conclusive of the question, if the evidence shows that he was in a position to have heard them; the jury being at liberty, his denial • to the contrary notwithstanding, to find that he did hear the words.
    4. Same — Damages—Relationship and Pecuniary Standing.
    It is proper for the jury, in an action for slander, to consider the relations of the parties and the pecuniary standing of the defendant.
    5. Same — Verdict—Separation op Items.
    The court may properly require the jury to reconsider their verdict in an action for slander, if it does not conform to Act No. 316, Pub. Acts 1895, with reference to the separation of the items for injuries to feelings and other injuries.
    6. Malicious Prosecution — Probable Cause — Evidence.
    In an action for malicious prosecution, there was evidence that defendant aided in procuring the arrest of plaintiff upon a charge of larceny for taking*wood from land to which he knew that she made a bona fide claim of title and possession; and that, when plaintiff was discharged by the justice, defendant said to her: “You beat me. I will take you before my jus tice, where you will be beaten.” Held, sufficient evidence of want of probable cause.
    Error to ’Wayfie; Hosmer, J.
    Submitted January 26, 1898.
    Decided February 16, 1898.
    Case by Ellen Sopbia Loranger against Joseph Loranger for slander and malicious prosecution. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George W. Coomer, formppellant.

      Jay Fuller, for appellee.
   Hooker, J.

The plaintiff recovered a verdict in an action of case, upon a declaration containing counts for slander and malicious prosecution. The slanderous words complained of were, “You are not a decent woman; you do not keep a respectable house.” The plaintiff testified to the use of this language, and also the words, “You are not respectable.” The court left it to the jury to determine whether this language imputed a want of chastity. The interview in which the words were uttered was in the woods, upon ground claimed by both parties, on an occasion when the plaintiff attempted to prevent the defendant and one Halstead (his tenant upon adjoining premises) from drawing away wood claimed by her. She was disputed, as to the use of these words, by both Halstead and the defendant. Both said that they were not uttered, and there was no evidence tending to show that Halstead might not have heard all of the conversation if they were. It was, of course, fatal to plaintiff’s case if Halstead did not hear them. The prosecution claimed to have been malicious was a charge of larceny of wood belonging to Halstead, prosecuted upon his complaint before a justice, the defendant being security for costs. The plaintiff was arrested, and was subsequently discharged. The papers were destroyed by the justice, but his docket states that she was discharged by reason of a defective complaint. There was testimony that, after this discharge, the defendant, who was present, said to her: “You beat me. I will take you before my justice at Wyandotte, where you will be beaten.” Halstead testified that the plaintiff did not steal the wood, and that those who did were subsequently arrested and convicted.

The jury returned a verdict: “ For injury to feelings, $500; for other injury, $300; lawyer’s fee, $30.” The court refused to receive this verdict, and instructed them as follows:

“You misunderstood, — I will have to ask you to retire again, — to this extent: The statute requires that in slander and libel cases you should specify what is for injury to the feelings and what is for the other injuries. There is also, as I say, submitted a cáse for malicious prosecution. This specification is only for the slander. You are not required by statute to specify for malicious prosecution. Of course, it would be the difference between the slander case and the balance. In other words, any injury to the feelings would be only in the slander case, and the other injuries is only in the slander case. That is in accordance with my charge. So I am rather inclined to think that you must keep the slander case distinct and clear from the case for malicious prosecution.
‘Foreman: So we understand we have.
“The Court: I don’t think I could infer that from this paper, — for injury to the feelings, $500. That applies only to the slander case. For the other injury, and that only applies to the balance of the slander case, $300; lawyer’s fee, $30., The lawyer’s fee, you see, has nothing to do with the slander case; that is only for malicious prosecution. Perhaps if I put it on there, the statute, as I said before, of 1895, made it incumbent upon the jury only in cases of slander to so divide their verdict as to show what sum they have assessed for injury to the feelings and what for the other injuries; that is, to the reputation or property, or other injury arising in slander cases. So, in this case, while your general verdict may be a certain sum, you must separate the slander case. There is no reason why you should not find for a malicious prosecution apart from that, and so I think I make it plain in that way; but the slander case must be kept distinct from the malicious prosecution case, so as to show those matters which are pointed out and required by statute. You may retire. Mr. Clerk, you may file that as part of the case.
“Defendant’s Attorney: We take an exception to the action of the judge in returning the jury to the jury room, and in directing a finding for them.
“Thereupon the jury retired, and after awhile returned into court, and rendered the following verdict: ‘We find for the plaintiff in the sum of $830, — $375 for injured feelings; $125 for reputation; and $330 for malicious prosecution.’ The defendant’s attorney objected to the receipt of this verdict, on the ground that another and different verdict had been rendered in the case by the jury, and because the verdict was not in accordance with the law governing this kind of case; which objection was overruled by the court, and exception taken by defendant’s attorney.”

A motion for new trial was made, and the court made an order that the same be granted, unless the plaintiff remit all over the sum of $400 awarded her by the jury, which was done, and judgment was entered for that sum. The defendant has brought the case here by writ of error.

The claim is made that the words alleged and proved were not slanderous per se, i. e., that they do not necessarily impute a want of chastity, and that they were not said under circumstances which made it proper to permit the jury to so find. We are of the opinion that to charge a woman with not keeping a respectable house would ordinarily be understood to mean that she kept a house that was not respectable, especially if it was known that she kept a house; and, in the absence of circumstances tending to show some other particular in which it was dis-respectable, we think that such a charge would be commonly understood to mean a ‘ ‘ bawdy house ” or “ house of ill fame.” This charge was made in a controversy over the ownership of land, and the character of the plaintiff’s house was not involved in the merits of the dispute, but was brought in by way of vituperation. The defendant has no cause to complain that the question was left to the jury.

It is said that the plaintiff should not have been permitted to recover because the declaration alleged that the slanderous words were used in the presence and hearing of divers persons besides the plaintiff, while the proofs show that only one person besides the parties was present, and that he did not hear them. It is essential that a publication be alleged, though we have held that the omission is cured by verdict. Taylor v. Kneeland, 1 Doug. (Mich.) 67. But the authorities agree that the allegation in this case is sufficient. 13 Am. & Eng. Enc. Law, 472; Townsh. Sland. & L. §§ 107, 324. Under it, proof may be offered showing that the words were spoken in the presence and hearing of one or any number besides the plaintiff.

The statement of the witness Halstead that he did not hear the words alleged to have been spoken is not conclusive of that question. There was testimony that he was where he might have heard them if spoken, and he was called to dispute the statement of the plaintiff that they were spoken, which he did unqualifiedly. « The jury believed the plaintiff, and it was competent for them to find that Halstead heard them, his denial to the contrary notwithstanding. It was therefore not error to submit the case to the jury upon the slander count, or to instruct them that it was sufficient if one person, other than the plaintiff, was present, and heard the words uttered.

It was proper for the jury to consider the relations of the parties, and, under our decisions, the pecuniary standing of the defendant.

It was not error for the court to require the jury to reconsider their verdict, if not in conformity to Act No. 216, Pub. Acts 1895. Courts should not receive unlawful verdicts, if it can be avoided without injustice. The defendant has no cause for complaint. That verdict as first rendered awarded $500 for injury to feelings, upon both counts, while judgment was entered for but $400, thus eliminating all questions relating to the award of $300 for other injury and $30 attorney’s fee. If, on the other hand, it be said that the corrected verdict shows but $375, all told, for injured feelings, there was $330 returned for malicious prosecution; thus making more than $400, if we leave out the $125 for injury to reputation, upon the assumption that it must have related to the slander suit, and that it was not recoverable under the law of 1895.

We do not agree with counsel that there was no evidence tending to show a want of probable cause. There was testimony that the defendant aided in procuring the complaint and arrest to be made upon a charge that the plaintiff was guilty of larceny for taking wood from land to which he knew that she made a bona fide claim of title and possession. These circumstances, and his threat to prosecute before “his justice at Wyandotte,” tend to show malice. She was discharged by the justice, and has never been prosecuted since. In the absence of a specific request upon the subject of probable cause, we cannot hold that the court did not sufficiently explain it.

We find no. error in the record, and the judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    MARVIN v. RUHMOHR.
    Trial — Remarks of Counsel.
    A judgment for defendant will not be reversed because of the remark of his counsel in reference to plaintiff’s chief witness, ‘ ‘ This man is a star witness in all these cases; he would swear a hole through a two-inch plank,” — where plaintiff’s counsel did not bring the remark to the attention of the trial judge, who apparently permitted it to pass as unworthy of notice.
    Error to Wayne; Carpenter, J.
    Submitted January 26, 1898.
    Decided February 16, 1898.
    Replevin by, Curtis W. Marvin against Henry Ruhmohr and wife. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Flowers, May & Moloney, for appellant.

      James H. Pound, for appellees.
   Per Curiam.

Action of replevin for a piano.

1. Error is assigned upon the admission of certain testimony. We find no error in the ruling of the court.

2. Error is assigned upon certain remarks of counsel for the defendants in reference to plaintiff’s chief witness. The remarks complained of are these: “This man Bouton is a star witness for Marvin in all these cases. He would swear a hole through a two-inch plank.” Evidently the learned circuit judge did not consider such extravagant statements worthy of notice. Nor does it appear that counsel for plaintiff called the attention of the court to it. We do not think that under these circumstances the judgment should be reversed.

Judgment affirmed.


text:
    KAYSER v. FARMERS & MECHANICS’ BANK.
    Garnishment — Justices of the Peace — Summons Against Garnishee — Time of Issuance.
    Under 2 How. Stat. § 8038, iiroviding that, at any time within 30 days after the final determination of a suit in justice’s court against the principal defendant in garnishment proceedings, the justice shall, at the request of the plaintiff, issue a summons against the garnishee, commanding him to appear and show cause why judgment should not be rendered against him, the jurisdiction of the justice to issue the summons is limited to 30 days after judgment, not to 30 days after the expiration of the time for appeal.
    Error to Washtenaw; Kinne, J..
    Submitted January 25, 1898.
    Decided February 16, 1898.
    Garnishment proceedings by Charles F. Kayser against the Farmers & Mechanics’ Bank, as garnishee of Gustave Brehm. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      John W. Bennett, for appellant.

      E. B. Norris, for appellee.
   Hooker, J.

The plaintiff recovered a judgment on October 24, 1896, against one Brehm before a justice of the peace; proceedings against the defendant bank, as garnishee, being then pending, disclosure being made on November 7th. On November 24th a summons to show cause was issued against the garnishee, which was followed by judgment. Appeal was taken to the circuit court, where an objection to evidence upon the ground that the justice had no jurisdiction to issue the summons to show cause, inasmuch as more than 30 days had elapsed after judgment against Brehm, was sustained. The cause is here upon writ of error.

It is contended that the statute (2 How. Stat. § 8038) should be construed to mean -30 days after the time for an appeal of the action against the principal debtor expired; and it is urged that the word “final,” in this statute, would have no meaning, unless this construction is the correct one, inasmuch as all justice’s judgments are final in every other sense. The significance of the use of this word in this statute appears from the case of Erickson v. Railway Co., 105 Mich. 415. It is there indicated that the judgment of the justice may or may not be an absolutely final determination. If no appeal be taken, it is final, but, when appealed from, it may not be, in which case, it is said, “he is chargeable with knowledge of the law which gives the right of appeal, and that, if the appeal is taken, he is not released until final judgment.” Id. 418. A “ final judgment ” has a well-defined meaning in the law, and both at equity and law finality is a condition of appeal. Although subject to review and annulment or modification, these are known as “final,” as contradistinguished from “interlocutory,” adjudications. The statute uses the term in this sense. We consider the case of Heritage v. Armstrong, 101 Mich. 85, conclusive upon the question. It was there said by Chief Justice McGrath that “ no judgment could be rendered against the garnishee, except upon a summons issued within 30 days after the rendition of the judgment.” In that case 74 days elapsed, and it is possible to say that this case can be distinguished; but there should be a valid reason for distinguishing cases beyond that of finding a remedy for a belated litigant. Not only is the meaning of the statute plain, but it was construed in the case of Heritage v. Armstrong, supra.

The judgment is affirmed.

The other Justices concurred.


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    BLUE v. SCHURTZ.

    Estates of Decedents — Fraudulent Conveyances — Subjection to Debts.
    Lands conveyed by a husband to his wife under stress of debts and without adequate consideration, his debts exceeding the value of his remaining property, will be subjected to claims allowed against his estate.
    Appeal from St. Joseph; Tapie, J.
    Submitted January 26, 1898.
    Decided February 16, 1898.
    Bill by John Blue, administrator of the estate of James Schurtz, deceased, against Albert Schurtz and others, heirs at law of Sarah Schurtz, to set aside a deed. From a decree dismissing the bill, complainant appeals.
    Reversed.

      B. E. & L. E. Andrews and Dallas Boudeman, for complainant.

      Henry J. Barton (B. M. Thompson, of counsel), for defendants.

       Rehearing denied June 7, 1898.

   Hooker, J.

In December, 1884, James Schurtz deeded to his wife, Sarah, his home farm, of 160 acres, leaving him the owner of two 80-acre parcels. At this time it is (claimed that he was indebted to his sister, Hannah Smith, and others. He died in 1889, at which time Mrs. Smith held his note for $1,590. He had previously paid all other debts, except the sum of $68.14, due Jones & Putnam. Hannah Smith died soon after the death of her brother, and her claim was allowed by commissioners. On appeal, her administrator obtained an allowance of $1,989.13 on the 18th of November, 1892, with costs, taxed at $86.-90. This stands as a valid claim against the estate of James Schurtz. The Jones & Putnam claim was also allowed. The bill in this cause was filed by the administrator of James Schurtz, during the lifetime of Sarah Schurtz, to reach the land conveyed to her as aforesaid, so that he might be enabled to pay the claims against said estate. Sarah Schurtz answered, alleging that the claim of Hannah Smith was a forgery, and that her husband was not indebted to her at the time of his death; and, further, that while she did not, at the time she received the conveyance, pay a consideration therefor, such deed was made in pursuance of an understanding that said land was the product of money that she had received from her father’s estate, and permitted him to use in the purchase of land, which was the consideration, in whole or in part, for the purchase of the land deeded to her. It was also maintained that, at the time this deed was made, he retained ample property wherewith to pay his debts, in addition to which she mortgaged 80 acres of said land for $4,000, and the money derived therefrom was used to pay most, if not all, of said debts. In 1886 and 1887, Schurtz sold the remaining two 80-acre parcels to his son Reuben, for $12,000. Our understanding is that they were taken subject to mortgages, the amount of which was taken from the purchase price, and that money that the son had advanced to the father was. applied. The remainder was paid in money, and it is our understanding that'the $4,000 mortgage given by Sarah Schurtz was paid with this money.

The case seems purely one of fact. It is proven to our satisfaction that the claim of Hannah Smith was a just one, and we are equally well convinced that the conveyance to Sarah Schurtz was made under stress of debts, and that no adequate consideration was paid for the property conveyed, which represented a large portion of the accumulations of an industrious life. We think his debts exceeded the remaining property, and that the practical result of the manipulation of this property is that the representative of Sarah Schurtz has property which in equity should pay tbe claims allowed against tbe estate of her husband. We are of the opinion that the decree of the circuit court in chancery should be reversed, and a decree entered in this court as prayed in the bill, subject, however, to the right'of the defendants to relieve said premises from the lien of this decree by paying to the complainant an amount sufficient to pay said claims, with interest, the expenses of administration arising out of this transaction, and costs of both courts in this cause, which the complainant will recover. A decree in accordance herewith may be entered.

The other Justices concurred.


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    PEOPLE v. BERNOR.
    1. Rape — Age op Consent — Evidence.
    The testimony of the prosecutrix upon a trial for carnally knowing a female child under the age of consent, and of her mother, that she is under-16 years of age, is sufficient to authorize the submission of that question to the jury, in the absence of any evidence to the contrary, although the mother’s examination shows that she is mentally weak, and does not remember dates well.
    2. Same — Proof of Penetration — Inconsistent Testimony.
    The fact that the complaining witness, upon a prosecution for carnally knowing a female under 16 years of age, at first testified that there was no penetration, does not amount to a failure of x>roof, where it is evident that she did not comprehend the question, and her subsequent testimony showed penetration.
    3. Same — Trial—Leading Questions — Discretion of Court.
    It is discretionary with the trial court, in a prosecution for carnally knowing a female under 16 years of age, to permit the prosecuting attorney to ask leading questions upon the examination of the prosecutrix, who is mentally weak.

      4. Same — Disclosure oe Occurrence.
    It is competent for the mother of the prosecutrix, on a trial for carnally knowing a female under the age of consent, to testify that her daughter, upon arriving home some days after the assault, told her what had occurred.
    Error to Wayne; Hosmer, J.
    Submitted January 28, 1898.
    Decided February 16, 1898.
    Eli Bernor was convicted of carnally knowing a female under 16 years of age, and was sentenced to 5 years’ imprisonment in the state prison at Jackson.
    Affirmed.

      Albert L. Widdis, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Byron S. Waite, Assistant Prosecuting Attorney, for the people.
   Long, J.

The respondent was charged under Act No. 70, Pub. Acts 1895, which provides:

“If any person shall ravish and carnally know any female of the age of sixteen years or more by force and against her will, or shall unlawfully and carnally know and abuse any female under the full age of sixteen years, he shall be punished by imprisonment in the state prison; * * * and such carnal knowledge shall be deemed complete upon proof of penetration only.”

The claim of the prosecution was that on the 22d of October, 1896, the respondent had intercourse with Mary Day, a female under 16 .years of age, while the parties were on their way from Wyandotte to South Rockford. -The defense interposed was: (1) That' the girl was not shown to be under 16 years of age; (2) that there was no sufficient proof of penetration. Some other questions are also raised, which will be considered.

1. Mary Day testified that" she was 14 years of age on September 18, 1896. Her mother testified that Mary was born on September 18, 1882. But counsel contends that the mother’s examination shows that she was mentally weak, and could not remember dates; that she did not remember her own age, and all the record she had of the age of Mary she' kept in her head. Counsel argues that this testimony, coming from such a source, did not prove beyond a reasonable doubt that Mary was under 16 years of age. There is no claim that there was any testimony contradicting the girl or her mother in reference to the age. The court submitted the question to the jury to determine whether the girl was under the age of 16 years. The charge was very fair, and the rights of the respondent fully guarded.

The claim that there was no proof of penetration cannot be maintained. It is true that the girl testified in the first instance that there was no penetration, but it is evident that she did not comprehend the question. She afterwards testified: “He took me up in his arms, and

laid me in the wagon-box, and there he done what was not right;” and she further testified to the penetration. A very learned discussion is entered into by counsel for respondent under a claim that there was no sufficient penetration shown. In People v. Courier, 79 Mich. 366, it was said:

“ Perfect penetration is not now considered necessary in order to constitute the crime of rape, or carnal knowledge and_ abuse of a child under the age of 14 years. * * * The' English and American courts hold that nothing more than res in re is necessary, without reference to the extent of the penetration.”

But the complaining witness is sustained in her statement by the testimony of the officer who made the arrest. He testified that when the respondent was brought before the justice, and the complaint read to him, he was asked by the justice, “ How do you plead to that ?” and answered, “I plead guilty.” The justi.ce asked him why he pleaded guilty, when respondent admitted that he had had intercourse with the girl.

3. Complaint is made of the conduct of the assistant prosecuting attorney in the examination of the witness Mary Day. We find nothing in that examination calling for criticism under the circumstances there shown. It is evident that the witness was not very intelligent, and counsel was compelled to ask many leading questions; but it appears that no objection was made to this mode of examination, and, if there had been, the matter was entirely within the discretion of the trial court.

4. It is contended that the court was also in error in permitting the mother of the girl to state that her daughter, upon her arrival home, some days after the assault, told her what had occurred. This is all that the record shows as to statements made by the daughter. The case is governed by People v. Gage, 62 Mich. 271 (4 Am. St. Rep. 854). .

Some other questions are raised, which are not of importance to discuss. We find no error in the record. The judgment must be affirmed.

The other Justices concurred.


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    TATMAN v. CITY OF BENTON HARBOR.
    1. Municipal Corporations — Obstructions in Highway — Injury to Abutting Property.
    The liability imposed upon municipalities by Act No. 264, Pub. Acts 1887 (3 How. Stat. § 1446c et seq.), for injuries resulting from their neglect to keep their highways in reasonably safe condition, is limited to injuries to persons and property upon the highway, and does not extend to injuries to abutting lands resulting from obstructions in the highway.
    2. Same — Liability por Negligence op Railway Company.
    A city which, under authority from the State, grants to an electric-railway company a franchise, and the use of the streets for its trolley poles, is not liable for the flooding of premises abutting the street, occasioned by the company’s negligence in obstructing a gutter while engaged in the construction of its road.

      Error to Berrien; Coolidge, J.
    Submitted January 28, 1898.
    Decided February 16, 1898.
    Case by George B. Tatman and Curtis Hemingway against the city of Benton Harbor for negligence in allowing a street-railway company to obstruct a gutter. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.
    The defendant city, under the authority conferred upon it by the legislature, duly granted by ordinance to the St. Joseph & Benton Harbor Street-Railway Company, a corporation organized under the laws of this State, a franchise for the construction of a street railway, and the use of electricity as a motive power. The ordinance expressly authorized the railway company to erect posts, etc., for the support and maintenance of its overhead trolley wire. The city had constructed along one of its streets, and on the outside of the sidewalk, a plank gutter, four feet wide, to carry off the water. The railway company was about to place one of its posts in this gutter, had cut a place through the plank, dug a hole about six feet deep, and unloaded some clay below the hole to put around the post when erected. A sudden rain storm arose the following night, a large volume of water ran down the gutter, broke through the embankment at the place above described, overflowed the adjoining land, ran into the basement of a building, and wet and injured a quantity of wool which the plaintiffs had stored there. Plaintiffs insist that the defendant is liable for the alleged negligent acts of the railway company in obstructing the gutter. When the plaintiffs rested their case, the, court directed a verdict for the defendant, for the reason that it was not responsible for the injury alleged and proven.

      George W. Bridgman, for appellants.

      Charles N. Sears, for appellee.
   Grant, C. J.

(after stating the facts). After this court had decided that at the common law municipalities were not liable for neglect to keep their highways in a safe condition, a statute was passed imposing a liability. The act at present in force is Act No. ¿64, Pub. Acts 1887 (3 How. Stat. § 1446c et seq.). Many decisions are cited in the briefs of counsel under this and previous acts. They, however, have no bearing upon this case, for the reason that the statute fixes the liability only for injury to persons and property upon the public highway. It imposes no liability for injury to abutting lands. If, therefore, the defendant is liable, it is because such liability exists at the common law. Cases holding that municipalities cannot avoid liability by letting contracts, and that they are liable for the negligence of the contractors, do not apply, because the railway company and the city do not occupy that relation. The railway company is not doing any work for the city, but solely for itself. Authorities holding that municipalities are liable for erecting and maintaining obstructions which cause the water to overflow the lands of abutting owners, as in Rice v. City of Flint, 67 Mich. 401, are not applicable, for the city itself has committed no act causing such a result. The city, under authority received from the State, granted the railway company a franchise, and the use of its streets to erect the necessary plant. The rail why company, under authority received from the State, accepted the franchise, and was erecting its plant. The railway company was not the agent of the city. The city was engaged in no act of a private character or for private gain. In granting this franchise it was exercising a public function, from which it was not to derive any benefit. Was it under obligation to watch the railway company in its work, to see that it did no damage to the property abutting the street ? Township boards are now authorized by the legislature to grant rights of way over the public highways to street-railway companies. Is tbe township liable if the railway company, in laying its track and erecting its plant, by its negligent acts injures the property of the abutting owner? If so, it follows that the township must, through its officer or agent, superintend the work, and see that it is properly done. No such duty is imposed by statute, and no authority is cited sustaining it. The railway company was lawfully in possession of the street, engaged in lawful work, and no duty was imposed upon the defendant city to be on the watch to prevent trespasses by the railway company to abutting lands. In Frith v. City of Dubuque, 45 Iowa, 406, it is said:

“It [the city] may, by ordinance, permit the use of a street for a railway. The railway company accepts the grant subject to liability for any damages which .may be sustained by individuals by an improper construction of the road or unauthorized use of the street. The use of the street under such permission or grant cannot make the city liable in damages.”

The court was correct in directing a verdict.

Judgment affirmed.

The other Justices concurred.


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    PEOPLE v. WING.
    Bastardy — Trial—Identity of Child.
    Where the record on appeal from a judgment in bastardy proceedings does not indicate that there was any dispute as to the identity of the child, the statement of counsel, made in the course of his argument to the jury, that the child was present in the court-room, within view of the jury, will be assumed to have been true.
    Same — Resemblance Between Child and Putative Father— Comments of Counsel.
    A conviction in bastardy proceedings will not be reversed because the jury were asked by the people’s counsel to consider an alleged resemblance between defendant and the child.
    3. Same — Order of Maintenance — Indefiniteness.
    An order of maintenance in bastardy proceedings, which provides that the father shall pay a specified sum per week towards the support of the child, “until the further order of the court,” is erroneous, since such order should be definite, fixing a limit to the liability of the father, and not leaving the matter open for subsequent application.
    4. Same — Default in Giving Bond — Commitment. .
    An order of maintenance in bastardy proceedings, which provides that unless the proper bond, conditioned for the performance of the terms of the order, be executed by a certain date, the father shall be committed to jail until he shall execute and deliver such bond, “and until the fm-ther order of the court,” is erroneous, in that it permits the restraint of the father after the required bond is furnished and approved.
    5. Same — Certiorari—Remanding Cause.
    Where, on certiorari, the order of maintenance in bastardy proceedings is declared bad for indefiniteness, the case may be remanded, with directions to the court to vacate the order, and enter one in conformity with the decision of the Supreme Court.

      Certiorari to Jackson; Peck, J.
    Submitted January 28, 1898.
    Decided February 16, 1898.
    Nelman F. Wing was convicted of bastardy.
    Conviction affirmed and record remanded.

      John W. Miner, for appellant.

      Richard Price, for the people.
   Hooker, J.

The defendant was found guilty by a jury in bastardy proceedings, and it was adjudged that he was the father of complainant’s child, and that he stand chargeable, with the assistance of the mother, for the maintenance of said child. It was—

“Therefore ordered that the said Nelman F. Wing do pay to the said Myrta A. Holmes, the mother of the said child, for its maintenance, the sum of $1.50 per week, payable every four weeks, the first payment of six dollars to be made on the 11th day of November, 1897, and six dollars to be paid at the end of each and every four weeks thereafter, until the further order of this court.
“ It is further ordered that said Nelman F. Wing give a bond with two good and sufficient sureties, to be approved by this court, in the penal sum of $700, to the superintendents of the poor for the county of Jackson, conditioned that he, the said Nelman F. Wing, shall abide by and perform the conditions of this order, and shall also indemnify and bear harmless said county of Jackson from all damages it may sustain by reason of its becoming chargeable with the maintenance of said child.
“ And it is further ordered that said defendant have until the 6th day of November, 1897, at 12 o’clock noon of said day, in which to comply with the terms of this order by giving said bond as aforesaid; and, if said bond be not furnished by that time, that the said defendant be committed to the common jail of said county until he shall execute and deliver such bond, and until the further order of this court.”

Defendant brings certiorari. The following errors are assigned in the petition for the writ.

“And deponent alleges as error that the statement of said counsel for the complainant to the jury was with reference to a matter not in evidence in the case, and was made with intent to prejudice and did prejudice the jury against defendant. And deponent alleges as error, also, that said judgment is void for the reason that it is not final, in that it contemplates a further order by such court in such case; and that it is also void for uncertainty, in that it fixes no time at which the payments provided for shall cease; and that it is also void for the further reason that deponent, in default of giving the bond mentioned, shall be committed to the common jail of the county of Jackson until he shall execute and deliver such bond, and' until the further order of the court.”

It is contended that the conviction was erroneous for the reason that counsel called attention to an imaginary resemblance between the infant and the defendant, and that the judgment was void because it did not point out, distinctly and definitely, what was to be required of the defendant.

During the argument of counsel for the people, the following occui’red:

“Mr. Price: The child has been here in court, and you can tell whether it is more like Dan Ferguson. It is the image of Nelman Wing. (This is excepted to by Mr. Miner.)
The Court: I don’t think that is correct, Mr. Price. There has been no exhibition of the child to the jury. * * *
Mr. Price : It is for you to say, gentlemen, whether or not that child is Dan Ferguson’s or Nelman Wing’s, and you have seen the child.
" Mr. Miner: I want all that taken down, and I except to it.
‘ ‘ Mr. Price : He has several times, during our deliberations here, disturbed us with his prattling; but he is entirely innocent, as Mr. Miner says, and entitled to just as much consideration as any of us. Notwithstanding the untoward circumstances that surrounded his birth, he may yet write his name higher upon the roll of honor than ever the name of Nelman F. Wing was yet written; and I pray God that he may. I pray God that good fortune may wait on that child at every turn, and that his cowardly father, who has turned his back upon him, and not only denied him his name, but has undertaken to drag in the dirt his mother, may yet live to regret the day that he turned his back upon that child. Gentlemen, that is all I have to say. . As I say, I wish I had more time to say more about this case. I appeal to you, do no wrong to that innocent child, do no wrong to womanhood, and do no wrong to your own manhood; and, if you do that, I have no fears about the outcome of this case.”

We gather from the record that there was no dispute as to the identity of the child, although counsel for the defendant says that it was not proved. The record does not show this, and we cannot assume it. No such point was made in the trial court. Mr. Price stated, without contradiction, that the child was in court, within view of the jury, and we must assume this to be true. In the case of People v. White, 53 Mich. 539, the unreliability of this kind of evidence is commented upon, but the court declined to reverse the cause because the jury were asked to consider the alleged resemblance. In other States the decisions are not harmonious, some holding that such comparisons are not permissible, others holding them permissible. Among the latter are the courts of Massachusetts, New Hampshire, North Carolina, New Jersey, Alabama, and perhaps others. When the race or color is involved, other States recognize the propriety of an exhibition of the child. A discussion of the subject will be found in 3 Am. & Eng. Enc. Law (2d Ed.), 885, 886, and notes, where the authorities are collected. The case of People v. White seems nearly on all fours, and, in our judgment, should rule this case.

Two points are made upon the order: (1) That it is uncertain, inasmuch as no definite amount is fixed; (2) that it subjects the defendant to imprisonment, not only until he shall furnish the bond required, but also until the further order of the court. In Cross v. People, 10 Mich. 24, the syllabus says that the order “should definitely point out and fix the liability of the defendant.” This language is stronger than the opinion warrants, perhaps, especially as the order in that case did not fix any definite sum that the father should pay, and provided only that he should pay, with the assistance of the mother, a certain sum monthly, until the further order of the court. This was held void for uncertainty, and we do not discover that the decision rested upon the ground that the period that such payments were to continue was not fixed. In State v. Eichmiller, 35 Minn. 241, such an order was held to be valid, in view of the uncertainty of the length of time that the welfare of the child might require it, and the opportunity for the defendant to move the court to terminate the obligation. In Mariner v. Dyer, 2 Me. 171, such an order was sustained. What the statute may have been upon which the Minnesota case rests we are not advised, but that of Maine is much like our own, and contains no express authority for such a practice. An English case, Rex v. Thomas, 2 Shower, 129, supports a contrary rule, as do two early Connecticut cases, — Cheesborough v. Baldwin, 1 Root, 229, and Benedict v. Roberts, 2 Root, 496. See, also, 3 Enc. Pl. & Prac. 308. We are of the opinion that the better doctrine is that the order should be definite, and fix a limit to the liability, and that it should not be left open for subsequent applications to the court. Such, seems to be tbe spirit of the Cross Case, supra, and the best policy would seem to justify it. We also think that the order should not have permitted the restraint of the defendant after furnishing the required bond, and its approval. The cause will be remanded, with direction to the court to vacate the order, and enter one in conformity to these views, — a practice which seems warranted by the case of Cross v. People, supra.

The other Justices concurred.