text:
    PEOPLE v. KIRK.
    1. Criminal Law — Assault—Evidence—Reputation op Person Assaulted — Admissibility.
    In a prosecution for assault with, intent to do great bodily harm, the quarrelsome disposition of the person assaulted and his reputation as such, not known to the respondent, are immaterial.
    2. Same — Appeal—Review—Exceptions—Necessity.
    Alleged error in the exclusion of testimony to which no exception was taken will not be reviewed.
    3. Same — Instructions — Intoxication — Support prom Testimony.
    On a prosecution for assault with intent to do great' bodily harm, evidence examined, and held, to furnish no support for a requested instruction absolving respondent from liability if he was so intoxicated at the time as to be unable to form a specific intent.
    4 Same — Appeal—Review—Findings—Conolusiveness.
    The recollection of the trial judge and his findings on a motion for new trial on the ground of improper remarks by the prosecuting attorney, will be accepted as to the facts set up in affidavits in support of the motion, the context of the alleged remarks not being set forth.
    5. Same — Argument op Prosecuting Attorney.
    For the prosecuting attorney to state that it is a fair inference from the evidence that the people’s witnesses are telling the truth, and that he believes from the evidence that unless a verdict of guilty is rendered the people will not have had their just dues, though not approved, is not reversible error.
    Error to Lenawee; Chester, J.
    Submitted January 23, 1908.
    (Docket No. 168.)
    Decided February 15, 1908.
    "Wesley Kirk was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for not less than 2 nor more than 10 years in the State prison at Jackson.
    Affirmed.

      James H. Baker, for appellant.

      Burton L. Hart, Prosecuting Attorney, for the people.
   Ostrander, J.

Respondent Wesley Kirk was convicted of assault with intent to do great bodily harm less than the crime of murder, and, after a motion for a new trial had been overruled, sentenced to the State prison at Jackson for a term of years. The errors assigned present the questions:

(1) Was testimony tending to show the quarrelsome disposition of the complaining witness (the injured man) improperly excluded ?

(2) Was testimony tending to show the motive of defendant in leaving the State, after the assault was committed, improperly excluded?

(3) Was it error to refuse an instruction to the jury upon the subject of respondent’s intoxication at the time the assault was committed ?

(4) Were certain remarks of the prosecuting attorney prejudicial ?

It appears that respondents Wesley and John Kirk were together informed against, that John had been tried, and that upon the trial of his brother Wesley he was a witness for the defense. Both fled the country and were taken in the State of Kansas, coming back, however, without a requisition. The complaining witness, John W. Sheperd, and the Kirk brothers were in a billiard room just off of a bar room in the city of Adrian on April 28, 1906, when an altercation took place between Sheperd and John Kirk, in the course of which Wesley Kirk struck Sheperd on the head with a billiard cue, fracturing his skull. Wesley was not sworn as a witness. John gave testimony tending to prove that he understood and believed Sheperd to be a quarrelsome man. On cross-examination of Sheperd, he was questioned at some length concerning alleged altercations participated in by himself. Counsel for respondent stated to the court that he had several witnesses by whom he desired to prove the quarrelsome disposition of Sheperd. The offer was excluded. We have read the record with care to learn if it anywhere appears, or was claimed, that the disposition of Sheperd, good or bad, was known to respondent, and have discovered nothing tending to prove that he had any acquaintance with Sheperd, or that he had ever heard his reputation for peaceable conduct or otherwise called in question. We do not, therefore, see how the reputation of the man he struck, or his disposition, except as manifested in his presence, could have in any manner influenced his conduct. See, upon this subject, People v. Farrell, 137 Mich. 127.

For the prosecution, a deputy sheriff testified to the flight of respondent, the place where the arrest was made, the statement of respondent concerning the various places he had visited. The witness John Kirk was asked by counsel for respondent:

“Q. Well, now, I ask you, Mr. Kirk, what was your motive, and, if you know, what was Wes’ motive, for leaving on that Sunday afternoon as you did ? ”

To this the objection was made that he could not know the motive of his brother except and only as his brother told him. The objection was sustained and no exception to the ruling was taken. On cross-examination, John Kirk testified that he went away because his brother did, and that he supposed his brother (respondent) was afraid of being arrested.

Counsel for respondent requested an instruction to the jury as follows:

“ There was testimony on the part of the people tending to show that respondent was in an intoxicated condition from the use of liquors at the time the alleged assault was committed. If you find from the evidence here presented that respondent was so far under the influence of intoxicating liquors at the time of the alleged assault as to be unable to form a specific intent, then you must acquit the defendant of the charge,” etc.

This was not given and no reference was made, in the charge, to the subject of respondent’s intoxication. No testimony was offered on the part of respondent tending to prove that he was not sober. John Kirk testified that at his invitation respondent took one drink. There is other testimony to the effect that respondent had taken one drink of whiskey and that John Kirk had drunk more than once. The complaining witness on his direct examination testified:

“Well, I don’t say that they were unconsciously drunk, or anything that way, but I say they was under the influence of intoxicating drinks; their appearance and actions showed that way some.”

And on cross-examination he testified:

“Well, my judgment was they had been drinking intoxicating drinks and they felt pretty gamey, or they looked as if they did. * * *

“Well, they.felt the booze they had; they had got about nerve enough to do— * * * Tli§y didn’t stagger. * * * I said they looked as though they had been drinking intoxicating liquors.

“Q. Well, would you say that they were drunk ?

“A. No.”

It will be noticed that the references in this testimony are to the brothers, and not. specifically to respondent. The testimony having been concluded, the court said: “Is there any defense here of intoxication?” to which counsel for respondent said, “Well, we ask a ruling upon that, from the people’s witnesses.” In denying a new trial, the court said:

“ I did not feel at that time, and I do not now feel, that the evidence here, the contention made from the evidence by the defense, raised the question of intoxication, and that’s the reason why that request was left out.”

It was one of the theories of the defense (I quote from the brief)—

“That the defendant struck the complaining witness over the head with a cue at a time when he had grave apprehensions that Sheperd, who was known to him and his brother to be not only of a quarrelsome nature but one who would resort to the use of deadly weapons, was in the act of doing his brother great bodily harm, if not to take his life, and struck Sheperd not with malice or with intent other than to save his brother from what appeared to him as imminent danger; basing his action upon his knowledge of the fighting propensities of Sheperd and what to him seemed immediate and imminent danger fraught with disastrous results to his brother.”

In stating to the jury the claim of the defense, the court said:

“ I think the defense admits here in his testimony that he did strike the blow; but it is the claim of the defense that he had no intent to do great bodily harm less than the crime of murder, and, as I understand, it is also the claim of the defense here that this defendant, Wesley Kirk, was justified in what he did there, that the circumstances were such that he felt that he should come to the rescue of his brother and defend him. It is the claim of the defense here that Mr. Sheperd had taken from the rack where they kept the pool balls, a pool ball or a billiard ball, and that he- had raised his hand in the act of throwing that ball at John Kirk. The defense claims at that time he made some remark or some threat as to what he would do, and it is the claim of the defense here that Wesley Kirk, this defendant, struck the blow in the defense of his brother.

“Now, in a brief way, I understand these to be the claims of the defendant. Is there anything else?”

No amendment was suggested by counsel. Attention is directed to the theory of the defense, outlined by counsel and by the court, not because respondent in a criminal case may not be entitled to go to the jury upon inconsistent theories, if there is testimony to support them, but for the purpose of stating the ground for an assumption, which is also otherwise supported by the record, that counsel for respondent did not in fact claim that his client was unable, by reason of intoxication, to form the specific intent with which he was charged. The testimony for the defense tends to prove that John Kirk called Sheperd to one side for the purpose of inquiring, and that he did inquire, why Sheperd had written a certain letter in which John Kirk was mentioned. That an altercation between John and Sheperd resulted, Sheperd grasping a billiard or pool ball in his hand in a threatening manner and, retreating from John, apparently with his back to respondent, towards respondent. Respondent who had engaged to play a game of pool was at some distance with a billiard cue in his hands. He struck Sheperd with the cue. Why he did it was matter of inference from such testimony as the jury should believe. It was, apparently, a murderous blow, and the record contains testimony supporting an inference that there was concert of action between the Kirk brothers. It is conceded that the rule of Roberts v. People, 19 Mich. 401, is the law of this State and the jury should have been instructed in accordance therewith if there was testimony which would warrant a jury in saying that the intoxication of respondent was of a degree which rendered him incapable of entertaining the intent charged. We have reached the conclusion that it should be said, as matter of law, there was no such testimony.

In his argument to the jury, the prosecuting attorney said, “These witnesses, who I believe are telling you this transaction just as it occurred on the day in question ” and was interrupted by an objection. He continued:

“ Inferring from the evidence, and I have a right to take the evidence and judge from it, and I say from the evidence it is a fair inference that these people who come in and testified for the people were telling you just as that injury occurred up there; * * * and I say to you, gentlemen of the jury, that unless that verdict is found here today, I do not believe that the people of the State of Michigan will have had their just dues in this matter, according to the testimony as I see it.”

Exception was here taken and the court remarked:

“ I think, Mr. Prosecutor, that you have to be pretty careful about your argument as to what you believe as prosecutor. * * * That should be omitted. * * * And the jurors should take nothing against the defendant from what expression the prosecutor may make as his belief.”

There are in the bill of exceptions, also, certain affidavits, in one of which counsel for respondent avers that during the argument of the prosecuting attorney, and while deponent was in the judge’s private room, and while the trial judge was employed in reading from a law book, the prosecuting attorney said to the jury, “ I believe this defendant is guilty of the greater offense, that is, the offense of assault with intent to do great bodily harm less than the crime of murder.”

Deponent says he hurried into the court-room, that the prosecuting attorney had then passed in his argument from the subject, and that no exception was taken to the remark. The prosecuting attorney deposes, in answer, that he remembers of making no statements as to his belief in the matter excepting the ones to which exceptions were taken. In denying the motion for a new trial, the court, in considering this matter as then presented, said:

“I must state that it is my recollection that at no time did he [the prosécuting attorney] express an opinion of his own, or a belief, excepting as he coupled that entirely with the statement that the evidence persuaded him to that belief; and I do not believe that where there is any evidence upon which a prosecuting attorney may base his argument that the Supreme Court would reverse it simply because he draws a conclusion that such and such things were true, and in so reaching a conclusion, expressing it as his belief.”

There is no occasion to review previous decisions of this court upon the question presented. They are somewhat numerous and the rule is, or should be, well understood. People v. Quick, 58 Mich. 321; People v. McGuire, 89 Mich. 64, in which the cases are collected; People v. Ecarius, 124 Mich. 616. We feel obliged to accept the finding and recollection of the circuit judge as to the fact in dispute, especially as the context of the alleged statement made by the prosecuting attorney is not given. Without approving the language employed by the prosecuting attorney, it is not such as, under our previous rulings, requires a reversal of the case. The charge was favorable to respondent, especially so upon the theory that he was protecting his brother from threatened injury.

We find none of the errors assigned well founded, and the conviction and sentence are sustained.

Grant, C. J., and Blair and Montgomery JJ., concurred. Carpenter, J., concurred in the result.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    EBERTS v. DETROIT, MT. CLEMENS & MARINE CITY RAILWAY.

    1. Carriers — Who Are Passengers — Persons Carried Gratuitously — Employes—Contract Limiting Liability.
    While in defendant’s employ at the place where he resided, plaintiff was ordered to work at another place, some miles distant, his wages to remain the same, but he was given a pass-book which enabled him to ride upon defendant’s railway between his home and place of work, and he used the pass-book for that purpose. Held, that it was inferable from the testimony that the pass-book was a part of the consideration for plaintiff’s services, whence he was riot being carried gratuitously when riding upon it, and an agreement thereon exempting defendant from liability for negligence was not binding.
    2. Appeal and Error — Review—Questions Considered — Questions Not Argued. '
    An error which, though complained of, is not argued, nor the grounds upon which it is based stated, in appellant’s brief, is not ground for reversal, it being appellant’s duty to state in his brief the “questions involved” (Supreme Court Rule40), and to point out at least in what it is claimed the error consists. ,

      3. Witnesses — Examination—Change oe Testimony — Materiality.
    Where plaintiff testified to facts from which the inference was deducible that a pass-book given him by defendant was a part of the consideration for his services, and that nothing was said in regard to his having transportation on defendant’s road, his testimony on rebuttal that defendant’s foreman said he should have a certain wage and tickets to go to and from home on was not a radical change in his testimony, and the court did not err in permitting it.
    Error to Macomb; Tappan, J., presiding.
    Submitted November 18, 1907.
    (Docket No. 100.)
    Decided February 15, 1908.
    Case by Charles Eberts against the Detroit, Mt. Clemens & Marine City Railway and others for personal injuries. There was judgment for plaintiff against defendant Detroit, Mt. Clemens & Marine City Railway, and it brings error.
    Affirmed.

      James G. Tucker (Brennan, Donnelly & Van De Mark, of counsel), for appellant.

      Franz C. Kuhn and John A. Weeks, for appellee.
    Defendant is a common carrier of passengers upon an electric railway between the city of Mt. Clemens, Macomb county, and the city of Marine City, St. Clair county. In the lower court plaintiff recovered a verdict and judgment for personal injuries sustained by him while riding on said railway. His injuries were caused by a collision between the car upon which he was riding — one of defendant’s regular passenger cars — and another car operated by defendant. The collision was caused by the negligence of defendant’s employés managing said cars. At the time of his injury, and for about a year prior thereto, plaintiff was employed by defendant as night car inspector at its barn in Marine City. He had finished his night’s work and was being carried to his home in Mt. Clemens upon a ticket taken from a pass-book furnished by defendant. This pass-book was marked “ Employé’s pass-book. Good only when presented by Charles Eberts.” It contained 100 tickets, each ‘entitling plaintiff: to ride between any two points on defendant’s railway. Upon the book was printed the following notice:
    “The person accepting this pass-book, in consideration thereof, assumes all risk of accident, and expressly agrees that the company shall not be liable under any circumstances, whether for negligence of their agents or otherwise, for any injury to the person or for any loss or injury to the property of the passenger using it.”
    Plaintiff knew of this notice and used the tickets with full understanding of its terms. Is this agreement valid ? That is the only question in this case.
    Plaintiff testified that he resides at Mt. Clemens and has resided there all his life; that when he first entered defendant’s employ he worked at Mt. Clemens, and that shortly thereafter he was told that he would be transferred to Marine City.
    “ Q. What was said about your wages ?

      “A. I was supposed to have the same wages, $1.75 per day.”
    He also testified that at this time he received a pass-book precisely like the one above mentioned; that nothing was said ‘ ‘ in regard to having transportation on the roadthat nothing was said “ about the pass-bookthat he never had any conversation about the pass-book with any officer of the company; that housed the pass-book “riding backward and forward to work” between Marine City and Mt. Clemens and elsewhere as occasion demanded; that when he used all the tickets in a pass-book he turned in the cover and received a new one, and that the one upon which he was riding at the time of his injury was thus received. This was the situation of plaintiff’s case at the time he rested. Defendant thereupon moved for a verdict upon the ground that as plaintiff was being carried gratuitously, his agreement was valid, and prevented recovery. This motion was denied and defendant excepted. Defendant thereupon introduced certain testimony — the details of which are unimportant — and rested. Plaintiff was recalled and testified that when he was directed to work at Marine City, defendant’s foreman, who gave the direction, said:
    “ He would give me a night job; $1.75 a day and tickets to go home and for use to go to work on. * * * I did ask him if that book was good to Marine City and back for my same wages and he said yes.”
    The trial court instructed the jury to render a verdict in plaintiff’s favor, leaving to them only the question of damages.

       Rehearing denied March 31, 1908.

   Carpenter, J.

(after stating the facts). The principal complaint of defendant is that the court erred in refusing to direct a verdict in its favor when plaintiff first rested his case. The ground of this complaint is that the testimony of plaintiff proved that he was being carried gratuitously, and it is insisted that a common carrier of passengers may lawfully contract to exempt itself from liability for the negligent injury of a passenger being carried gratuitously. Does the testimony of plaintiff prove that he was being carried gratuitously ? Defendant’s argument that it does rests in part upon the assumption that the furnishing of the pass-book had no relation to the plaintiff’s transfer from Mt. Clemens to Marine City. We think this assumption unfounded. We infer from plaintiff’s testimony that the pass-book was given him at the time the order of transfer was communicated., We summarize plaintiff’s testimony as follows: While in defendant’s employ in Mt. Clemens where he resided, he was ordered to work at Marine City, a town some distance away; his wages were to remain the same, but he was given a pass-book which enabled him to ride upon defendant’s railway between his home and his place of work, and he used said pass-book for that purpose.

We think from this testimony that it may be inferred that the pass-book was a part of the consideration "for plaintiff’s services. From what was said and what was done it may justly be inferred that both parties understood that as a consideration for his services at Marine City plaintiff should receive wages of $1.75 per day and transportation between his home and the place he worked. Under this view of the testimony, the pass-book was not furnished gratuitously and plaintiff was not being carried gratuitously.

Doyle v. Railroad Co., 166 Mass. 492 (33 L. R. A. 844), is a similar case and the decision is in harmony with these views. It was also held in that case — and this proposition I understand to be conceded by defendant— that the transportation not being gratuitous, a common carrier of passengers has no lawful right to enter into a contract exempting itself from liability for the negligence of its employés. See Weaver v. Railroad Co., 139 Mich. 590.

It is said in appellant’s brief that in any event the trial court erred in not submitting to the jury the question of plaintiff’s being carried gratuitously. This complaint is not argued, nor the ground upon which it is based stated, in appellant’s brief. We cannot say that this issue should have been submitted to the jury unless we decide either that the jury (a) had a right to discredit plaintiff’s testimony, or (6) that they had aright to infer from that testimony that he was being carried gratuitously. Neither of these questions are argued or even suggested in appellant’s brief. Neither are they argued in the brief of appellee. Under these circumstances, is it our duty to look through the record and decide them ? If it is, and if in consequence we reverse the judgment, we reverse it on a proposition upon which the appellee had no opportunity of being heard. We must therefore decline to consider them. It was appellant’s duty to state in. his brief the “questions involved” (Supreme Court Rule 40), and “to point out at least in what it is claimed the error consists.” Mason v. Partrick, 100 Mich. 577.

It is also contended that error was committed in permitting plaintiff when he was recalled, after defendant rested, to change his testimony in the manner he did. This contention rests upon the assumption that this change was radical. Under our view of his former testimony, as already appears, it was not radical. It amounted to this, that the parties expressly agreed to a provision which would otherwise be implied. We do not think the ruling under consideration erroneous.

We do not consider the proposition — elaborately and ably argued in appellant’s brief — that a carrier of passengers may lawfully contract that, it shall not be liable for the negligent injury of a passenger carried gratuitously. As shown by this opinion, that proposition is not presented in this case, and it would therefore be improper for us to decide it.

The judgment is affirmed.

Montgomery, Ostrander, Hooker, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    WILLIAMS v. OLSON.
    Appeal and Error— Appealable Orders — Finality — Order Denying Motion to Strike.
    An order denying a motion to strike a bill from the files is not a final order and is not appealable.
    Appeal from Iron; Stone, J.
    Submitted November 12, 1907.
    (Docket No. 157.)
    Decided February 15, 1908.
    Bill by George R. Williams against Mary E. Olson and others to set aside certain notices of tax sales, and to restrain trespasses upon land. From an order denying a motion to strike an amended bill from the files, defendants appeal.
    Dismissed, and record remanded.
    <7. F. Garey, for complainant.

      I. W. Byers, for defendants.
   McAlvay, J.

This case was before this court on an appeal by defendants from an order overruling their demurrer to the bill of complaint. This court sustained the demurrer and the cause was remanded to the circuit court with permission to complainant to amend his bill of complaint. Williams v. Olson, 141 Mich. 580. Reference is had to the opinion of the court for a statement of the case set forth by complainant, the grounds for demurrer, and the reasons of the court for sustaining the demurrer.

Complainant afterwards, on December 19, 1905, filed an amended bill in the circuit court by adding to the original bill an allegation that the tax deeds issued to defendant Mary E. Olson on which the tax notices were based had been prematurely issued; and also an allegation of a tender of a certain sum of money to the defendant Mary E. Olson. Exhibits were attached to said amended bill of complaint showing that tax notices for tax deeds held for the years 1893, 1894, 1895, 1897, 1898 were served upon Y. A. Goddard and George W. Tolbert, administrator and executor, respectively, of E. G. Goddard and James Tolbert on September 14 and October 5, 1901. It is admitted in defendants’ brief that the allegations thus set forth bring the tax deed alleged to be void clearly within the case of Monaghan v. Auditor General, 136 Mich. 247.

Defendants Olson demurred to this amended bill for the same reasons as alleged in the first demurrer, with the added reasons “that the sum of money required by statute was not paid or tendered to the said Mary E. Olson within the time in said statute provided; and that no suit to set aside said tax deed or deeds was commenced within the time provided by the statute.” This demurrer was sustained by the court and complainant given 20 days to amend his bill of complaint.

On August 7, 1906, complainant filed his Second amended bill of complaint, by which he added to the first amended bill, as exhibits, copies of the tax deeds issued to the defendant Mary E. Olson, upon the validity of which her title and defense in this suit depend. A motion was then made by defendants Olson to strike this second amended bill from the files for the reasons:

1. The prayer of the said bill was not divided into paragraphs and numbered consecutively.

2. That said bill contained no allegations of new facts.

The court denied this motion provided complainant correct the infirmity as to the prayer within five days, allowing defendants 15 days after service of such corrected prayer to plead, answer, or demur. Defendants appeal to this court from such order. The right to appeal from this order is challenged by complainant for the reason that it is not a final order. The case of Carpenter v. Auditor General, 144 Mich. 251, relied upon by defendants, is distinguishable from the case at bar. In that case the bill of complaint, on motion, was' stricken from the files, and such order determined complainants’ right to pursue her remedy, and was therefore a final disposition of the case. In the case at bar no such situation is presented. Puterbaugh’s Michigan Chancery (2d Ed.), p. 856.

This order was not a final order. The appealability of an order is determined by its effect upon the rights of the parties. An order to be final must dispose of some portion of the controversy. It must finally determine some right between the parties.

The appeal is dismissed, with costs to complainant, and the cause will be remanded to the circuit court for further proceedings.

Grant, C. J. and Blair, Moore, and Carpenter, JJ., concurred.


author: Hooker, J.

text:
    LANSING STATE SAVINGS BANK v. HARRINGTON.
    Fraudulent Conveyances —.Husband and Wipe — Consideration — Claim Against Husband.
    A conveyance made by a husband, through a third person, to himself and wife jointly, at a time when the husband is deeply involved and has made false statements regarding his property and has incumbered his personal property by chattel mortgages which were not recorded, the deeds effecting the conveyance being executed at night and indorsed “please do not publish,” before being recorded, and the claimed consideration for the transfer of an interest in the title to the wife being money earned by the wife and given to her husband from time to time as he. asked for it, is clearly fraudulent as to creditors.
    Appeal from Van Burén; Des Voignes, J.
    Submitted January 9, 1908.
    (Docket No. 22.)
    Decided February 15, 1908.
    Bill in aid of execution by the Lansing State Savings Bank against E. J. Harrington and others. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Anderson & Warner, for complainant.

      Thomas J. Cavanaugh, for defendants.
   Hooker, J.

As originally filed this was a creditors’ bill also asking relief in aid of execution. It was tried below upon the latter theory, the execution having been levied on 49 acres of land, deeded to defendant Harrington and wife, who claim to own by entireties. The complainant appealed from a decree dismissing the bill.

The only important questions are of fact and are in substance:

1. Whether defendant E. J. Harrington, who owned the premises, and his wife, were chargeable with an attempt to defraud creditors by causing it to be conveyed, through Earl Burhans, to themselves.

2. Whether it was a homestead.

We are convinced that the land was not a homestead. It is contended that the interest in the land was conveyed to Mrs. Harrington in payment of a loan. She testified that in the year 1892 her father, a postmaster, employed her as clerk at $5 per week. She claims to have given money to her husband from time to time when he asked for it. She made no charges against him and testified that she did not expect him to return it, but expected him to take the title to a home, which they hoped sometime to buy, in her name or jointly. She did not know how much money she let him have, but thought it about $900.

He bought the farm sometime before and took the title in his own name. He became involved to the amount of some $10,000 or $12,000. He made false statements regarding his property, and incumbered his personal property by chattel mortgages, which were not recorded. While in this situation he and his wife went to a law office one night, the lawyer called in Burhans and the conveyances were made. Each was indorsed “please do not publish,” before they were recorded. This impresses us as a clear case of fraud. Unlike some cases where conveyances to a wife have been sustained, the consideration was not money coming to the wife from her father’s estate, but from her wages which were lawfully her husband’s. Foster v. Whelpley, 123 Mich. 350.

The decree is reversed, and a decree will be entered for complainant against said E. J. Harrington for the amount due on complainant’s judgments and interest and setting aside the conveyances aforesaid, and subjecting said premises to the execution aforesaid as prayed — unless the same be paid, with costs of both courts.

Blair, Ostrander, Moore, and McAlvay, JJ., concurred.


text:
    TOWNSHIP OF CLARENCE v. DICKINSON.
    1. Constitutional Law — Statutes—Validity—Presumptions.
    That cases may arise to which a statute can have no constitutional application is no reason for declaring the statute unconstitutional, since it is to be presumed that the legislature intended to enact a constitutional statute and did not intend to exceed the constitutional limits of its authority.
    2. Drains — Establishment—Proceedings— Review — Statute— Application.
    Section 4346, 2 Comp. Laws, providing that the legality of a drain shall not be questioned in law or equity except by certiorari brought within the time therein prescribed, is constitutional in its application to a case in which it is claimed that the drain commissioner lacked jurisdiction because the application for the drain was not signed by a sufficient number of freeholders, the jurisdictional objection not being of a constitutional character.
    3. Same — Drain in Several Counties — Apportioning Cost— Mistake — Correction .
    It is immaterial to landowners assessed for the benefits of a drain traversing several counties that, after apportioning the cost between the counties interested, a mistake was made by the commissioners in entering the figures in the writing signed by them, which mistake was corrected before the suit to enjoin the construction of the drain was heard and before any steps were taken to construct the drain, since if the commissioners had any authority to make the correction complainants have no need of relief, and if they had none there is no ground upon which a court can direct them to make it.
    Appeal from Calhoun; North, J.
    Submitted January 15, 1908.
    (Docket No. 57.)
    Decided February 15, 1908.
    Bill by the township of Clarence and others against E. D. Dickinson, drain commissioner, and others to enjoin the construction of a drain. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Hatch & Page, for complainants.

      Elmer N. Peters, for defendants.
   Carpenter, J.

This is a suit in equity brought for the purpose of enjoining the construction of án alleged extension of Peacock drain, so-called, to Loomis Lake. The drain proposed to be constructed lies wholly within the county of Eaton. The assessment district extends into the township of Clarence, Calhoun county, and into the township of Springport, Jackson county. The complainants, other than the township of Clarence, own land in said township situated in said assessment district. The application for the drain described it with precision. It called it an extension of Peacock drain. It was signed by 18 petitioners, freeholders of the townships to be traversed by said drain, and it stated that three or more of them are owners of land liable to an assessment for benefits.

The ground upon which complainants seek relief is this, that the proposed drain is really a new drain; that the application should therefore have been signed by five persons liable to an assessment for benefits (see Act No. 272, Public Acts of 1899, chap. 3, § 1) and as it does not appear to be signed by that number the drain commissioner had no jurisdiction; the proceedings are a nullity andean be attacked collaterally. The final-order of determination of the drain commissioner was filed in the office of the county clerk, as required by law, December 5, 1906. No attempt was made to review these proceedings by certiorari and this suit was instituted January 3, 1907. In the circuit court a decree was rendered dismissing complainants’ bill. Complainants appeal.

Section 4346, 2 Comp. Laws, authorizes a review of the proceedings for establishing a drain by writ of certiorari. Ten days after the order of final determination is filed with the county clerk is given for the issuance of this writ, and it is distinctly provided:

“ If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity.”

Complainants are seeking to do what this law in express terms prohibits. They cannot succeed if the law is constitutional. Complainants’ claim of a right to disregard the law is an assertion of its unconstitutionality. Is the law unconstitutional ? I have no doubt cases may arisé to which this law can have no constitutional application. Such a case will be presented if the proceedings before the drain commissioner violate constitutional rights. The fact that such cases may arise is no reason for declaring the law unconstitutional. It is to be presumed that the legislature intended to enact a constitutional law and not an unconstitutional law (Cooley on Constitutional Limitations [7th Ed.], p. 255), and it should be construed in accordance with this intent. The language of the statute indicates that the legislature intended to go to the limit of its authority, but it is also to be presumed that it did not intend to exceed those limits. Within the limits of that authority, then, the statute has a constitutional application. Auditor General v. Bolt, 147 Mich. 283; Crandall v. McElheny, 146 Mich. 191; Grandchamp v. McCormick, 150 Mich. 232.

The question, then, and the only question, for our consideration is this: Can the statute have constitutional application to this case ? The only reason advanced for saying that it cannot, is this, viz., that equity can afford relief whenever, the drain commissioner lacks jurisdiction. It is apparent from the foregoing reasoning that the lack of jurisdiction which will warrant relief in equity must arise from a violation of the Constitution. The objection to the jurisdiction in such cases must be a valid constitutional objection. Such objection could be urged if no notice or opportunity of hearing was given to one whose property was to be taken for the construction of the drain, for he has a constitutional right to such notice, and if that right is disregarded, the proceedings are as to him a" nullity. If, on the other hand, the objections to the jurisdiction are not of a constitutional character, it is obvious that the legislature has a right to .say how they shall be raised, or, in its wisdom, deprive one altogether of the privilege of raising them.

The jurisdictional objection raised by complainant is not of a constitutional character. The Constitution does not require the petition to be signed by five property owners liable to assessments for benefits. That requirement is purely statutory. The legislature might have dispensed with it altogether. It therefore possessed ample constitutional authority to declare how objections to its non-observance should be made. It had authority to declare that objections not so raised should be disregarded. It exercised that authority by the statute under consideration. That statute is therefore constitutional in its application to this case and it prevents complainants maintaining this suit.

It is not to be inferred from this decision that complainants who are merely liable to be assessed for this drain could be heard in any court to question the legality of the proceedings for its establishment. The ground upon which we dispose of this case makes it unnecessary to determine that question, and we do not determine it.

Complainants also insist that after apportioning the cost of this drain between the three counties interested, a mistake was made by the commissioners in entering their figures in the writing signed by them. This is conceded and the mistake was corrected before this suit was heard, and before any steps were taken to construct the drain. The correction was favorable to complainants, but they contend that to make it valid it must be ordered by the decree of a court. If the commissioners had authority to make this correction — and we are cited to no decision which denies that authority — complainants have no need of relief. If they have not that authority we can see no ground upon which a court can direct them to make it.

The decree is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


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    BENNETT v. GREENWOOD.
    1. Evidence — Immaterial Evidence — Admission—Harmless Error.
    That a bundle of papers was introduced in evidence, some of which had no relation to any issue in the case, does not constitute reversible error where the irrelevant papers had no tendency to obscure the real issues in controversy or lead the jury to decide those issues erroneously.
    2. Saving Questions for Review — Trial —Argument —Statement as to Result of Previous Trial — Necessity of Exception.
    A statement on argument as to the result of a previous trial will not cause reversal where counsel took no exception to the remark or to the failure of the judge to instruct the jury not to pay any attention to it. '
    3. Contracts — Action—Instructions—Support from Evidence.
    In an aotion by an architect to recover for furnishing plans and specifications and supervising the construction of a building, testimony by plaintiff that defendant took upon himself the supervision of the building, and in effect directed the contractors to take their instructions from him rather than from the plaintiff, supports an instruction authorizing a verdict for plaintiff for the contract price, though he did not supervise the construction of the building, if he was prevented by defendant from doing so.
    4. Same.
    Testimony by plaintiff that the plans and specifications were completed before the buildings were started, and that defendant accepted them as satisfactory, supports an instruction authorizing a verdict for plaintiff if defendant entered upon the construction of the buildings with the plans substantially before him.
    5. Trial — Instructions—Burden of Proof.
    An- instruction that plaintiff has got to sustain the burden of proof, not necessarily in the number of witnesses, but must satisfy the jury by the testimony that he has the very right of the case, is not prejudicial to defendant..
    6. Same — Submitting Special Questions.
    In an action by an architect to recover for services rendered, defendant preferred a special question whether the agreement sued on was conditional upon the cost of the building. In submitting it the court said that the original agreement may have been modified, and that if defendant knew, or ought to have known,, before he began to build, that the building would cost more, and then used the plans, the jury would be justified in answering the question “No.” Held, that it was to be presumed that defendant propounded the question in order to get an answer which would be decisive of the controversy, and that the judge’s explanation was for the same purpose and was not open to the objection that it told the jury how to answer the question.
    Error to Wayne; Hosmer, J.
    Submitted January 16, 1908.
    (Docket No. 66.)
    Decided February 15, 1908.
    Assumpsit by Clarence H. Bennett against James H. Greenwood for services rendered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Devine & Snyder, for appellant.

      George B. Greening, for appellee.
   Carpenter, J.

Plaintiff is an architect. He brings this suit to recover for preparing and furnishing to defendant certain building plans and specifications and for supervising the construction of said building. The suit was brought in justice’s court and there plaintiff obtained judgment. Defendant appealed to the circuit court. On the trial in the circuit many questions arose, which, so far as material to this case, appear in that portion of the opinion relative to the charge of the court. The issue was submitted to the jury and a verdict rendered in plaintiff’s favor. Defendant asks a reversal of said judgment upon various grounds.

Objections to the introduction of testimony. Plaintiff’s counsel introduced in evidence a bundle of papers to show the amount bid for certain parts of the work. In this bundle were some papers having no relation to any issue in this case. It is contended that the introduction in evidence of. these last-mentioned papers constituted reversible error. It is quite clear that these papers should not have been admitted, but we do not think that defendant was prejudiced thereby. They had no tendency to obscure the real issues in controversy or to lead the jury to decide those issues erroneously. We therefore overrule the complaint of defendant under consideration.

Remarks of counsel. In his argument to the jury, plaintiff’s counsel said:

££ We got a verdict in justice’s court for—

££Defendant’s counsel: I object to that statement of counsel and ask that the court instruct the jury not to pay any attention to it.

££ Plaintiff’s counsel: I know I should not have said it, gentlemen; but I could not just help it at that time.”

It will be perceived that no exception was taken to the remark of counsel or to the failure of the trial judge to give the instruction referred to. Under these circumstances we decline to consider it. It is no ground for a reversal of the judgment.

Charge of the court, (a) Plaintiff’s contract obligated him to supervise the construction of the building. This obligation he did not perform. He himself testifies that he left the work when it was about half completed. Respecting his right to recover under these circumstances, the trial court charged the jury:

‘ ‘ If, as plaintiff says in this case, * * * you should find that he was prevented in the supervision of the building by the action of the defendant, and the contractors were instructed to take all instructions from the defendant and not from the plaintiff in the case, I think under these circumstances he would be justified in leaving at the time that he did.”

Defendant contends that this was erroneous—

“ Because there is absolutely no evidence in the case to show that the plaintiff was prevented in the '.supervision of the building by the defendant, or that the contractors were instructed to take all instructions from the defendant and not from the plaintiff.”

It is true no witnesses testify in express terms that defendant prevented plaintiff from supervising the construction of the building, or that the contractors were directed to take all instructions from the defendant. But the evidence in a case consists not only of what is expressly sworn to by witnesses, but it consists also of the inferences that may be drawn from such sworn statements. It is therefore a complete answer to defendant’s complaint to say that there was testimony from which the facts stated by the trial judge could be justly inferred. That testimony was furnished by plaintiff himself. He testified that defendant “took upon himself the letting of contracts;” that he ( defendant) thought “ his judgment better than an architect’s;” he “supervised this job;” his “capacity was practically that of supervising architect. He was there all the time bossing the construction and the men and the contractors.” If this testimony is true; if defendant took upon himself the supervision of the construction of this building, he certainly prevented plaintiff supervising it, and in effect directed the contractors to take their instructions from him rather than from the plaintiff.

(6) The trial court instructed the jury, at the request of defendant:

“ If you find from the evidence the plans made by the plaintiff were to be to the satisfaction of the defendant, and the evidence shows you that the defendant was not satisfied with the plans, * * * there can be no recovery.”

He then added:

“But if the plans and specifications were completed and presented to the defendant to act upon, it became his duty either to accept or reject the plans and specifications at that time, and if he entered upon the building upon the property with the plans and specifications substantially before him, then I do not think that he can afterwards be heard to say that after having used them that he did not like them.”

Complaint is made to this addition to the request for the reason that—

“There is absolutely no evidence in the ease to justify this instruction. Nowhere is there any evidence to show that when defendant entered upon the construction of these buildings he had the plans and specifications substantially before him.”

This complaint is also answered by the testimony of the plaintiff. He testified, “the plans and specifications were completed before the buildings were started.” Defendant “didaccept them as satisfactory.” It is true that defendant denies this and testifies that he did not have the specifications until a large portion of the work had been completed. But it is not true, as contended by defendant’s counsel, that ‘ ‘ this testimony is absolutely uncontradicted. ” It is contradicted by the testimony of the plaintiff above quoted.

(c) The trial court, after having given a request preferred by defendant to the effect that the burden of proof rested upon plaintiff, added:

“ But when I charge you that plaintiff has got to sustain the burden of proof, I do not necessarily mean the number of witnesses, but if from the testimony the plaintiff in this case has satisfied you of the very right of the case, he has sustained the burden of proof, and unless he has done that, gentlemen, of course, he has not.”

Defendant complains of this addition. His complaint is without merit. If there was any lack of legal exactness in this addition it was not prejudicial to defendant.

(d) The building cost $14,000. Defendant testified that plaintiff’s compensation was conditional upon its cost not exceeding $10,000. Plaintiff denied this. Defendant preferred this special question to the j ury: “Was the agreement * * * conditional upon the cost of the building ? ” In submitting it the trial court said:

“That the original agreement between the parties may have been modified * * * that is to say * * * that afterwards before he began to build he knew or ought to have known * * * that the buildings would have cost more, and then used the plans and specifications, then I think under those circumstances you would be justified in saying ‘ no ’ to the question.”

Defendant complains of this instruction upon the ground, as stated in his brief, that it tells the jury what answer they should make to the question. This objection is not well taken. It is to be presumed that defendant propounded this question in order to get an answer which would be decisive of the controversy. The learned trial judge so understood the question, and he undertook to so explain it as to make the answer decisive, and after so explaining it, he did not tell the jury how they should answer it.

During the oral argument of the case defendant’s counsel suggested that there was no evidence that defendant knew, or should have known, that the buildings would cost beyond the stipulated sum before he began to build. There is such evidence. The plaintiff testifies that all the talk between defendant and himself was that the buildings would cost from twelve to fourteen thousand dollars, and that after the plans were started he informed defendant that they would cost somewhere about twelve or fifteen thousand dollars.

Other objections are made to the charge. We have examined them. They are entirely lacking in merit, and, like most of those discussed, are answered by proper understanding of the record.

Complaint is made because the trial court denied defendant’s motion for a new trial. We think his decision was correct. A discussion of the questions involved would be of no service to the parties or to the profession.

The judgment is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


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    GODFREY LUMBER CO. v. COLE.
    Mechanics’ Liens — Prorating Liens — Cost of Building — Payments in Violation of Statute.
    In computing the cost of a building in order to prorate the contract price among lien claimants, payments made by the owner without requiring the statement mentioned in section 10713, 3 Comp. Laws, and actually paid to laborers and materialmen, are to be considered.
    Appeal from Kalamazoo; Adams, J.
    Submitted January 16, 1908.
    (Docket No. 39.)
    Decided February 15, 1908.
    Bill by the Godfrey Lumber Company against Philip A. Cole and others to enforce a mechanics’ lien. From a decree for complainant for less than the amount claimed, it appeals.
    Affirmed.

      Frost & Farrell, for complainant.

      H. Clair Jackson, for defendant Cole.
   Carpenter, J.

As subcontractor, complainant furnished material to the amount of $1,778.66 used in the construction of three houses for defendant Cole. Of this amount it was paid $800. It brings this suit in equity to enforce a mechanics’ lien for the balance of its claim, amounting to $978.66. The contract price of the houses was $3,500. They actually cost $4,478.66. (Included in this is $675 damages for defects and delay in construction.) Before the suit was instituted the owner had paid $2,825 (this together with the $675 damages amounts to $3,500, the full contract price), all of which had been used for “material and labor that went into the construction ” of said houses. He made these payments, however, without requiring the statement mentioned in section 10713, 3 Comp. Laws. From the money so paid all those who had furnished labor or material for said houses, excepting complainant, had been paid in full. The trial court held that complainant was entitled to such a proportion of its claim as the contract price was of the entire cost of the building. According to this percentage complainant was entitled to 1615.32, and a decree for that amount was rendered. Complainant appeals.

Its counsel insist that in computing the cost of the building the trial court should not have considered payments made contrary to the provisions of section 10713, 3 Comp. Laws. We have never discussed this question, but we have decided it. We have held that such payments for labor or material actually used in construction are proper items in determining the cost of the building. Delray Lumber Co. v. Keohane, 132 Mich. 17; Kotcher v. Perrin, 149 Mich. 690. See, also, Fairbairn v. Moody, 116 Mich. 61, and Smalley v. Gearing, 121 Mich. 190. See, also, Wilkinson on Mechanics’ Liens, §§ 100, 101. It is conceded that if the owner had paid nothing, and all those who contributed labor and material asserted liens, complainant would receive precisely what this decree gives him. We are unable to see why it should receive more because the claimants were paid and paid before they asserted their liens. This method of computation deprives the owner of credit for and compels him to lose all that he has paid to the various laborers and materialmen in excess of their pro rata share as required by Smalley v. Gearing, supra. As applied in this case it will compel defendant to pay $4,115.32 for houses which his contract entitled him to have for $3,500. Complainant as a lien claimant had a right to insist that the contract price be apportioned among the laborers and materialmen. Had such an apportionment been made it would have all that it was entitled to receive. Fairbairn v. Moody and Kotcher v. Perrin, supra. The decree appealed from gives complainant precisely what by such apportionment it is entitled to receive. This is equitable and legal and in accordance with our decisions. There is no merit in complainant’s contention.

Complainant insists that J. E. Greilick Co. v. Rogers, 144 Mich. 313, is opposed to these views. It was there claimed that the owner was entitled to recoup damages resulting from the default of the principal contractor. This involved the claim that he was entitled to credit for payments made in disregard of section 10713. We denied his right to such credit. It is possible that it might have been contended in that case that complainant’s claim should be reduced because the cost of the building exceeded the contract price. This claim was not in fact made and was not considered by this court, and it is a very different claim from the one which was made. If that claim had been made we would have been called upon to determine whether these payments were made for material or labor which was actually used in the building, and if we sustained the claim we would not have given credit for the entire payment — and this is what defendant asked — but would simply have reduced complainant’s claim in accordance with the percentage principle applied in this case. We did not, then, in that case, decide that such payments made for material or labor actually used in a building afforded no evidence of its cost. That question was not involved.

The truth is that two kinds of claims have been made in suits to enforce mechanics’ liens respecting payments made contrary to section 10713, 3 Comp. Laws. First, the claim has been made that the owner is entitled to credit for such payments; that is, that to. the extent of such payments his obligation is reduced. That claim was made in J. E. Greilick Co. v. Rogers, supra. Section 10713 in express terms required it be denied, and we so decided. Second, the claim has been made that such payments when made for labor or material actually used in the building furnish evidence of its cost. This claim has been uniformly upheld, as shown by the decisions heretofore cited. It is radically different from the first claim. To use such payments as evidence of the cost of the building is not to give the owner credit for them. In such a case he receives no credit for the payment. As heretofore stated, if the claim had not been paid it would have afforded evidence of the cost of the building. Surely, it affords no less evidence because it has been paid.

Other objections are urged. They need not be discussed, for they are answered by the reasoning of this opinion and by the authorities herein cited.

The decree is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


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    SHELDON v. MILLER.

    1. Appeal and Error— Review — Questions Considered — Matters not Suggested.
    Where both parties appeal from a decree granting partial relief on a bill for an accounting, a reason why complainant cannot claim certain of the funds involved, not advanced by defendant, cannot be considered for the purpose of reversing the decree, but may be considered for the purpose of answering complainant’s contention that the decree is too small.
    2. Equity — Laches—Fraudulent Conveyances.
    A delay of 28 years in attempting to enforce the rights of creditors to the proceeds of certain property conveyed without any attempt at concealment by their debtor to his wife, during which time the creditors, the debtor, and the wife have died, is such laches as to bar the maintenance of a bill.
    Cross-appeals from Washtenaw; Kinne, J.
    Submitted January 17, 1908.
    (Docket No. 81.)
    Decided February 15, 1908.
    Bill by Sarah M. Sheldon, administratrix of the estate of Obediah Priest, deceased, against Charles R. Miller, individually, and as administrator of the estate of Amanda M. Priest, deceased, for an accounting. From the decree rendered, both parties appeal.
    Reversed,-and bill dismissed.

      A. F. & F. M. Freeman, for complainant.

      A. J. Sawyer & Son, for defendant.

       Rehearing denied March 17, 1908.

   Carpenter, J.

Complainant is the daughter of Obediah Priest, deceased. She is also administratrix of his- estate, and she.brings this suit as such administratrix. Obediah Priest was a resident of Manchester, Washtenaw county, in this State. He died January 8, 1879, possessed of no property and owing a considerable indebtedness. His wife, Amanda M. Priest, had, however, a fund of 14,600 which she subsequently turned over to defendant, her brother, under an agreement that, during her life, it should be used for her support and maintenance, but on her death the balance was to go to his daughters. She died June 24, 1904. Complainant thereafter instituted this suit, claiming said fund to be the proceeds of property transferred by Obediah Priest to his wife for the purpose of defrauding creditors. This claim was sustained in the circuit court and a decree rendered granting complainant partial relief. From that decree both parties appeal, defendant contending that complainant is entitled to no relief; and complainant contending that she is entitled to more complete relief.

The fund in question is in part the proceeds of the sale of a certain farm situated near Manchester, called the Conklin farm, and in part the proceeds of the sale of a mill property known as the Southern Washtenaw Flouring Mill, located in Manchester.

The Conklin farm was deeded by one Conklin to Amanda M. Priest December 5, 1874, and the deed was at once recorded. It was sold by Amanda M. Priest to one Tor rey, March 8, 1878. This deed was also at once recorded. In each of these deeds the exact consideration was stated. The consideration for the purchase of this farm, except certain money that was borrowed and secured by a mortgage duly recorded, was furnished by Obediah Priest. A part of this consideration consisted of real estate transferred by Obediah Priest to Conklin. It is a fair inference from the testimony in this case that at the time this purchase was made Obediah Priest was insolvent. His only indebtedness, however,— at least, the only indebtedness of any magnitude, — was that arising from his becoming the surety for his son-in-law James S. Reynolds. This indebtedness was secured by a mortgage on the property of Reynolds and a partner. The mortgage was insufficient to pay the indebtedness, and as a result a deficiency decree for a large sum was rendered against said Obediah Priest sometime in the year 1878.

The Southern Washtenaw Flouring Mill was conveyed to Amanda M. Priest by Frances M. Reynolds, daughter of Obediah, February 5, 1878. Frances M. Reynolds was the wife of said James S. Reynolds, heretofore mentioned. No consideration was paid for this property. The conveyance was made, as stated by complainant’s counsel, “to secure Priest something for his losses in his dealings with Reynolds.” After the sale of the Conklin farm, which took place in March, 1878, said Obediah Priest entered into a partnership with complainant’s husband, Oscar F. Sheldon, fpr the purpose of carrying on the Southern Washtenaw Mill. The capital used in said business consisted in part of $2,000, which Amanda loaned Obediah. This $2,000 was a part of the proceeds of the sale of the Conklin farm, and left remaining in the hands of Amanda from the proceeds of said sale less than $1,500. The milling business was carried on for less than a year, when it was closed out and the mill sold. A part of the proceeds of said sale and of the prior sale of an engine in said mill went into the hands of Amanda, and this together with what she received from the proceeds of the sale of the Conklin farm constituted the $4,600 in controversy.

Upon the death of her husband, Amanda removed to Adrian taking with her this fund. There she was an inmate of the family of her brother, the defendant. From this time defendant seems to have had charge of this fund. He invested it and reinvested it for his sister. Most of these investments were made in his own name; some were in hers. About the year 1888 it would seem that they made an arrangement whereby she loaned to him the entire amount, and either then or subsequently an arrangement was made that his daughters should have whatever was left of said fund over and above what was needed for her support and maintenance during her life. It would seem that no effort was made to conceal the truth, for in the year 1888 defendant asked for a reduction in his assessment for taxation upon the ground of this indebtedness. The authorities reduced defendant’s assessment and directed the amount of his indebtedness to be assessed against his sister Amanda.

No attempt to administer the estate of Obediah Priest, deceased, — his death occurred in 1879, — was made until after the death of Amanda, in 1904. No claim was allowed against said estate except that represented by the deficiency decree upon the foreclosure of the Reynolds mortgage.

We can see no ground upon which the creditors can claim any part of the proceeds of the sale of the mill property. They had no claim upon that property when it stood in the name of Frances M. Reynolds. She was under no obligation to convey that property to her father because he had sustained losses by her husband’s conduct. She did not convey it to him. She conveyed it to his wife, Amanda, and it thereby became her property, not her husband’s, and in her hands it was no more subject to the claims of his creditors than it was before it was conveyed. It should be said, however, that this point was not made, and it would be improper for us to consider it for the purpose of reversing the decree. We may, however, properly consider it for the purpose of answering complainant’s contention that the decree is too small. J. E. Greilick Co. v. Rogers, 144 Mich. 313.

The principal ground relied upon by defendant for a reversal of the decree is that the creditors for whom this suit was instituted were guilty of laches. Their decree was rendered in 1878. This suit was commenced in 1906. During this interval of 28 years the creditors died, Obediah Priest died, and Amanda M. Priest died. Thus death has removed most of those who could have given testimony respecting the charge of fraud made in the bill, and that charge must now be proved, if proved it can be, by inferences to be drawn from records and by the testimony of complainant and her husband, who, if they are to be believed, actively participated in said fraud. It is altogether improbable that the purchase and sale of the Conklin farm escaped the scrutiny of these creditors at the time they obtained their deficiency decree. The records informed them that the property of Obediah Priest had been used in the purchase of this farm, the deed of which was taken in his wife’s name. The records informed them that that farm had just been sold and the price for which it was sold. Of course, the records did not inform them how the proceeds of the sale were disposed of, but there could be but one inference, those proceeds were either under the control of Amanda or of Obediah, who was at that very time carrying on a business of considerable magnitude upon property which stood in Amanda’s name. It is to be presumed that these creditors, or some one acting for them, scrutinized these transactions and their inaction proves that they decided either that there was no fraud, or that they would waive the fraud. If they decided to waive the fraud, neither their heirs nor their assigns can, after the lapse of 28 years, reconsider that decision. If they decided that there was no fraud, it is quite probable that there was no fraud, and that if we had the testimony of those who since that time have died, we too would so decide.

We can say of this case, as was said by the supreme court of Georgia of a similar case:

“ There is no principle of equity sounder, more conservative and more prolific in all the fruits of peace than this, that he who slumbers over his rights with no impediment to his asserting them, until the evidence upon which a counterclaim is founded may from lapse of time be presumed to be lost; until the generation cognizant of the transactions between the parties has passed away, and until the original actors are in their graves, and their affairs are left to representatives, the law, in the exercise of an equitable sovereignty, presumes it to be unjust, that under such circumstances a complainant should be heard; and in nine cases out of ten, it is unjust in fact, as well as in theory. It is presumed, and the presumption grows out of the principles of human nature, developed in universal experience, that men will use reasonable diligence to get "what rightfully belongs to them. Our observation of men teaches that they are more likely hurriedly to assert a false claim, than tardily to assert an equitable one. If the claim be equitable, and an adverse claim is acquiesced in, until the rights of third persons are involved, or until, from the obliterations of time, the proofs of the adverse claimant are lost, yet that equitable claim ought to yield to that general, social peace, upon which its exclusion is founded. Nor ought the demandant to complain, for, for long years the courts of justice were open to him — he might have entered, but would not. He loses his rights, because from stupidity, indifference, convenience, or some other cause, he has failed to assert them. His laches cannot be made available to him, through a visitation of wrong and disaster to hundreds of his fellows. The laws are not for the individual alone— they are also for the safety and peace of the whole State.” Akins v. Hill, 7 Ga. 573.

The decree is reversed, and the bill is dismissed.

Grant, O. J., and Blair, Moore, and McAlvay, JJ., concurred. .


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    DYKSTRA v. HOLDEN.
    1. Statutes — Amendments—Validity—Local Option.
    That a statute of local application provided that it should be submitted to the people before it became operative does not require that a statute amending or repealing it shall also be submitted to the people before becoming operative, where there is nothing in the amendatory act to indicate that submission is necessary, but, on the contrary, the legislative intent that it shall become a law in the usual manner is clearly indicated.
    2. Same — Subjects and Titles oe Acts — Primary Elections.
    The title of Act No. 326, Local Acts 1903, providing for the “nomination of candidates for elections by popular vote in Kent county,” is sufficiently broad to permit legislation regulating any primary election which may occur in Kent county, whether that primary election is held for the purpose of nominating county officers or municipal officers.
    3. Elections — Primary Elections — Grand Rapids — Repeal oe Statute.
    Act No. 471, Local Acts 1901, providing for primary elections in the city of Grand Rapids, was expressly repealed by Act No. 326, Local Acts 1903, providing for primary elections in Kent county, which in turn was repealed by Act No. 728, Local Acts 1907, covering the same subject but containing no provision applicable to the city of Grand Rapids, whence there is no local act regulating primary elections in the city of Grand Rapids.
    4. ’ Same — Legislative Intent.
    The legislative intent that nominations of city officers in the city of Grand Rapids shall be made by direct vote cannot be inferred from the general primary election law passed at the last special session of the legislature (Act No. 4, Extra Session 1907), since that act itself exempts Kent county from its provisions.
    5. Statutes — Repeal—Revival—Repeal oe Repealing Act.
    The rule that a statute once repealed is not revived by the repeal of the repealing act is not applicable to a case in which the original act is not in fact repealed, but merely discontinued in its operation with reference to a particular territory, in which, case the discontinuing act being repealed there is nothing to prevent the original act from again becoming operative in the exempted territory.
    Certiorari to the superior court of Grand Rapids; Stuart, J.
    Submitted February 20, 1908.
    (Calendar No. 22, 715.)
    Decided March 2, 1908.
    Mandamus by Ate Dykstra to compel Charles Holden, chairman of the republican city committee of Grand Rapids, to issue a call for a primary election in accordance with Act No. 135, Pub. Acts 1895. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      Joseph JEtenihan, for relator.

      Moses Taggart and B. M. Ferguson, for respondent.
   Carpenter, J.

Respondent is the chairman of the republican city committee of the city of Grand Rapids. By order of said committee respondent has made a call for a primary election for the nomination of city candidates at the coming spring municipal election by a direct vote of the republican electors of the city and in disregard of Act No. 135 of the Public Acts of 1895 (chapter 93, 1 Comp. Laws). These mandamus proceedings were instituted in the superior court of Grand Rapids to compel respondent to abandon the committee’s plan for a primary election and to make a call therefor in accordance with said Act No. 135 of the Public Acts of 1895. The motion was heard in the lower court and a mandamus issued in accordance with relator’s prayer. A writ of certiorari brings the proceedings before us for review.

Said Act No. 135 of the Public Acts of 1895 is a general act to provide for the holding of primaries in cities of not less than 15,000 inhabitants and not over 150,000 inhabitants. That act provides for nominating city officers, not by direct vote of the electors, but by a convention composed of delegates selected by the electors, and it did apply to the city of Grand Rapids from the time of its enactment until 1901, when the legislature by Act No. 471 of the Local Acts of that year passed a special law “ Providing for the selection of candidates for elections by popular vote and relating to primary elections in the city of Grand Rapids.” Act No. 471 of the Local Acts of 1901 was replaced by Act No. 326 of the Local Acts of 1903, entitled: “An act to provide for the nomination of candidates for election by popular vote and relating to primary- elections in Kent county.” Section 1 of this last-named act provided for the nomination of “all elective officers for the city of Grand Rapids except the elective members of the school board.” Said section 1 was amended by Act No. 728 of the Local Acts of 1907, and all reference to the city officers of the city of Grand Rapids omitted. We held in Ellis v. Boer, 150 Mich. 452, that in consequence of the amendment made in 1907 primary elections could no longer be held in Grand Rapids under Act No. 326 of the Local Acts of 1903.

One of the questions now raised relates to the correctness of this decision. Section 25 of Act No. 326 of the Local Acts of 1903 provides for the submission of that act to the people before it became operative. It is how insisted that this provision requires the amendatory act— Act No. 728 of the Local Acts of 1907 — to be submitted to the people, and as it was not so submitted the latter act never took effect, and, therefore, section 1 of Act No. 326 was never amended. We cannot approve this contention. There is nothing in said Act No. 728 to indicate that it was to be submitted to the people. On the contrary, the legislative intent that it should become a law in the usual manner is clearly indicated. As we stated in Ellis v. Boer, supra:

“ It is a distinct and direct amendment of the section by an orderly and constitutional legislative enactment, substituting the section as amended for the section as it stood in the law before this amendment.”

It is now contended that the nomination must be made under Act No. 471 of the Local Acts of 1901, because it is urged that that act was not repealed by Act No. 326 of the Local Acts of 1903. Act No. 326 of the Local Acts of 1903 does in terms (see section 24) repeal “ all acts or parts of acts in any wise contravening the provisions of this act,” and Act No. 471 of the Local Acts of 1901 does contravene that part of said Act No. 326 which provides for the nomination of elective officers for the city of Grand Rapids. It is contended, however, — and this is the ground, and the only ground, upon which it is claimed that Act No. 471 is not repealed — that that part of Act No. 326 of the Local Acts of 1903 which provides for the nomination of elective city officers transcends the title of the act and is therefore unconstitutional. We think this contention unsound. The title: “An act to provide for nomination of candidates for election by popular vote * * * in Kent county” is in our judgment sufficiently broad to permit legislation regulating any primary election which might occur within the limits of Kent county, whether that primary election is held for the purpose of nominating county officers or municipal officers, and as the city of Grand Rapids is situated within the county of Kent, the legislation under consideration was constitutional. Act No. 471 of the Local Acts of 1901 was therefore repealed by said Act No. 326 of the Local Acts of 1903. There is, therefore, no local act regulating primary elections in the city of Grand Rapids.

It is urged, however, that the legislative intent that nominations of city officers in the city of Grand Rapids shall be made by a direct vote of the electors and not by the convention system is to be inferred from the general primary election law passed at the last special session of the legislature. (See Act No. 4 of the Laws of the Extra Session, 1907.) We think this contention answered by the act itself. It states (see section 19):

“The provisions of this act shall not be construed to apply to or be operative in the counties of Alpena, Kent, Muskegon and Wayne, except where such counties or parts of counties form and constitute a part only of a congressional or legislative district * * * or parts of counties, relative to the nomination of party candidates for representative in Congress, State senator, or representative in the State legislature, and except in regard to the nomination of party candidates for governor, lieutenant-governor and United States senator.”

This language clearly indicates the, legislative intent that the nomination of elective city officers for Grand Rapids should not be conducted thereunder. Courts have no authority to say that they shall be conducted thereunder or to deduce a legislative intent in opposition to what is so plainly declared.

There remains for consideration this question, viz., Does the repeal of the local act relating to primary elections in the city of Grand Rapids make the general law — Act No. 135 of the Public Acts of 1895 — again operative in that city ? Respondent insists that it does not. He invokes the rule that a statute once repealed is not ‘c revived by the repeal of such subsequent repealing statute.” Section 51, 1 Comp. Laws. This rule is inapplicable. The local act did not repeal the general law. It merely exempted the city of Grand Rapids from the operation of said general law, and when the local act was repealed there was nothing to prevent the application of the general law, and it did apply.

It is said in 26 Am. & Eng. Enc. Law (2d Ed.), p. 761:

“And so, too, the statutory rule [the rule invoked by respondent] is inapplicable to cases where the original act has been modified only and not repealed by the later one, as where an act merely excepts a particular class of cases from the operation of a previously existing general law, which continues to be in force. By the repeal of the act creating the exception, the general statute which was in force all the time then becomes applicable to all cases, according to its terms.”

See, also, Mount v. Taylor, L. R. 3 C. P. 645; Bank for Savings v. Collector, 3 Wall. (U. S.) 495; Smith v. Hoyt, 14 Wis. 252; State v. Mines, 38 W. Va. 125.

It follows from this reasoning that the elective officers for the city of Grand Rapids should be nominated under Act No. 135 of the Public Acts of 1895 (chapter 93, 1 Comp. Laws) and that the order of the lower court should be affirmed.

Grant, O. J., and Blair, Montgomery, and Mc-Alvay, JJ., concurred.