text:
    BOYER v. SOWLES.
    l. Pleading—Demurrer—'Waiver oe Right to Trial on Merits.
    A defendant who, on his demurrer to a declaration being overruled, elects to stand upon such demurrer, waives his right to a trial on the merits.
    3. Same—Bonds—Sufficiency of Declaration.
    A demurrer to a declaration upon a bond conditioned to prosecute an appeal to effect, on the ground that such declaration fails to set up the facts necessary to make such bond effectual under the statute, is properly overruled, where the averments are sufficient at least to show a good common-law bond.
    8. Same—Averment op Delivery.
    In a declaration upon a bond, it is not necessary to aver delivery, especially if profert is made.
    4. Same—Special Defenses—Want of Consideration.
    The defense, in an action upon a bond, that the instrument was without sufficient consideration, is unavailable, under 3 How. Stat. § 7531, unless notice thereof is given with the plea - of the general issue.
    Error to Eaton; Smith, J.
    Submitted April 22, 1896.
    Decided May 26, 1896.
    Debt by Deloren W. Boyer, administrator of the estate of Peter Boyer, deceased, against Nathaniel Sowles as principal, and Caleb Wolpert and Lucius H. Wilcox as sureties, upon an appeal bond. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      John Nichol and A. A. Ellis, for appellants.

      Powers & Stine and L. H. McCall, for appellee.
   Montgomery, J.

This is an action on a bond which reads as follows:

“Know all men by these presents, that Nathaniel Sowles, as principal, and Caleb Wolpert and Lucius H. Wilcox, as sureties, are held and firmly bound unto Peter Boyer in the sum of four thousand dollars, lawful money of the United States of America, to be paid to the said Peter Boyer, or to his certain attorney, heirs, executors, and administrators or assigns, to which payment, well and truly to be made, we bind ourselves, heirs, executors, and administrators, and each and every of them, firmly by these presents.
“Sealed with our seals, dated the seventh day of June, one thousand eight hundred and ninety-three.
“The condition of this obligation is such that, whereas, judgment has been rendered in the circuit court for the county of Eaton in favor of said Peter Boyer against the said Nathaniel Sowles for three thousand fifty-nine and sixty-six. one-hundredths dollars and costs of suit to be taxed; in which judgment and proceedings the said Nathaniel Sowles complains that there is error in substance, and to be relieved therefrom intends to obtain a writ of error from the Supreme Court to remove the same to the said Supreme Court, to the end that the errors made therein may be corrected: Now, therefore, if the said Nathaniel Sowles shall with all proper diligence obtain said writ of error, and prosecute the same to effect in said Supreme Court, and, in case said judgment of said circuit court is not set aside or reversed by said Supreme Court, shall pay such judgment of said circuit court, then this obligation to be void; otherwise to remain in full force and virtue.
< i Nathaniel Sowles. seal]
U Caleb Wolpert. seal]
a Lucius H. Wilcox. ’seal]”

The action was originally brought in the name of the obligee, Peter Boyer, and his death has been suggested of record since the entry of judgment.

The defense interposed a demurrer to the declaration, and, on the demurrer being overruled, elected to stand upon their demurrer, and interposed no further defense. The question is, therefore, whether the declaration states a cause of action, or whether it is subject to the objections urged. Defendants’ counsel ask that, if the court are of the opinion that the demurrer was properly overruled, the case be remanded with leave to plead; but such is not the practice. Were such a course open, intolerable delay would result. The defense, having refused to accept an offer of trial on the merits, must be held to have waived the right.

The declaration is in debt, and consists of two counts. In the first count profert of the bond is made, and it is averred that the defendants, by their certain writing obligatory, sealed with their seals, acknowledged themselves to be held and firmly bound unto said plaintiff, and recites the conditions of the bond, and avers as breaches that a writ of error was sued out of the Supreme Court, and that the judgment of the circuit court was affirmed, and has not been paid. The second count is similar, except that a copy of the bond is given. The grounds of demurrer are stated as follows:

“First. That in none of the counts of said declaration is it alleged or claimed that the said writing obligatory was ever delivered to the said plaintiff, or to any other person or persons for said plaintiff.
“ Second. In neither of the counts of said declaration is it alleged, claimed, or set forth that the said writing obligatory was ever filed with the county clerk of the county of Eaton, in manner and form as provided by the statutes of this State.
Third,. It is not alleged in either of the counts of the said declaration that the said writing obligatory was ordered, required, or directed by the circuit court for the county of Eaton, or any other court of competent jurisdiction, or that the said writing obligatory was in any manner approved by the circuit court for the county of Eaton, or the circuit judge thereof, or by any officer of said court.
‘ ‘ Fourth. It is not alleged or set forth in said declaration, or in. the pretended copy of the alleged writing obligatory, that it contains any of the conditions provided by the statutes of this State; that is to say, the said writing obligatory was not given under and by virtue of section 8681, 2 How Stat., of this State, because it is not claimed or alleged in the said declaration, or any count thereof, that the said writing obligatory was filed in the office of the clerk of the circuit court for the county of Eaton at the time of the service of the writ of error on such clerk, or at any other time; and it is not alleged in said declaration, or any count thereof, that the said writing obligatory was given for the purpose of moving for a new trial, or settling a bill of exceptions, as provided in section 7621c of 3 How. Stat.
“Fifth. That the said declaration, nor any count thereof, does not allege, that the said bond or writing obligatory was given for the purpose of staying any execution, or the settling of a bill of exceptions, or the moving for a new trial, and is not such a bond as is required by section 7621c of 3 How. Stat.
“Sixth. It is not alleged in the said declaration, nor any count thereof, that the said bond or writing obligatory was ever delivered to the county clerk of the county of Eaton, where the said alleged judgment is said to have been obtained, at the time of the service of the writ of error, nor that the said bond or writing obligatory was so filed with said clerk at any other time.
“Seventh. It is not alleged in the said declaration, or any count thereof, that the said bond was of any force or effect in said cause, or that execution was stayed by reason thereof, or that said bond was made the basis for moving for a new trial, or settling a bill of exceptions, or for removing the case to the Supreme Court.”

It is urged in support of the demurrer that the declaration does not show that the bond was executed in such sum, or filed with the clerk in such manner, as to have made it effectual as a stay of proceedings under the statute; second, that no delivery is averred; and, third, that there is no consideration averred.

It is not contended that the averments are sufficient to show that the bond was an effective statutory bond for a stay of proceedings, but it is contended that the aver-meats of the declaration are sufficient to show a good common-law bond. If this contention is sustained,' there is no error. The fact that the bond given is conditioned to pay a judgment of a court or to prosecute an appeal to effect does not militate against its validity as a common-law bond. Healy v. Newton, 96 Mich. 231, and cases cited. This being so, we are not at liberty to speculate as to whether the circumstances under which it was given were such that there was no consideration for its execution, if the declaration is sufficient in its averments. If it was sought to raise questions of this character, defendants should have pleaded.

It is not necessary, in declaring on a bond, to aver delivery; particularly where profert is made. 1 Chit. PI. (16th Am. Ed.) pp. 477, 479.

Nor is it usually essential to aver a consideration passing to defendant. Id. A seal imports a consideration; and while, under section 7520, 2 How. Stat., such seal is only presumptive evidence of a sufficient consideration, section 7521 expressly provides that the defense of a want of consideration shall not be made unless the defendant shall have given notice thereof with his plea of the general issue.

Judgment affirmed.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    WALTON v. MASON.
    1. Deeds—Compromise—Bills and Notes—Failure op Consideration.
    A party who, in order to remove a cloud from his title, procures a quitclaim deed from one whom he believes to have a valid claim, cannot resist an action upon a promissory note, given in part consideration for the deed, upon the ground that his grantor had in fact no title, where the purchase was not induced by any fraud or deception on the part of the grantor.
    2. Same—Evidence—Deceit.
    In an action upon a promissory note given by the grantee in a quitclaim deed in part consideration therefor, where the defense interposed is that the grantor had no title to convey, evidence that no representation was made as to the nature of the title at the time the deed was given is admissible to show that the grantor practiced no deceit.
    Error to Muskegon; Russell, J.
    Submitted April 22, 1896.
    Decided May 26, 1896.

      Assumpsit by Martin C. Walton against Lyman G. Mason upon promissory notes. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      H. L. Delano, for appellant.

      William E. Hoyt, for appellee.
   Montgomery, J.

This was an action on three promis-

sory notes, of $150 each, made by defendant to D. D. Erwin, May 27, 1893. The defense was failure of consideration, and that the defendant was induced to make the notes by means of a fraud of plaintiff. The defendant held title to certain lands in Muskegon of great value, the lands with the improvements being valued at $200,000. It appears that one Louis P. Baddeaux was the patentee to these lands, and, prior to 1842, gave a mortgage to one Amos Eoberts. In June, 1842, an appraisement was made, and the mortgagee elected" to take the lands. Whatever title the mortgagee obtained by these proceedings was, as to an undivided one-fourth, subsequently vested in Nelson C. Walton. Thereafter this title was apparently vested in defendant through a conveyance •made by George W. Walton, as attorney in fact of Nelson C. Walton, under a purported power of attorney, placed of record. The defendant also held the Baddeaux title. In 1890 Nelson C. Walton placed of record a declaration that the purported power of attorney to George W. Walton was a forgery. The consideration for the notes in suit was a quitclaim deed of the Walton title, so called, to defendant. Defendant contended that the notes were given upon the understanding by him that, if the power of attorney was in fact a forgery, Nelson C. Walton actually had a one-fourth interest in the fee, and claimed that Mr. Erwin, as the agent of Walton, so represented, whereas, in fact, he had no title, even though the power of attorney was a forgery.

Defendant admitted, on the stand, that he did not believe that the power of attorney was a forgery, but stated that he did not know whether it was or not, and preferred to pay this sum rather than take his chances, but that this action was based upon the supposition that, if the power of attorney was shown to be a forgery, Nelson O. Walton had title to an undivided one-fourth. If this was his belief, and it was induced by plaintiff’s agent, it would constitute a defense; and the circuit judge so held, and submitted the case to the jury on that theory. But the defendant contends that the evidence upon this question was all one way, and that the circuit judge should have directed a verdict. We are unable to adopt this view. The plaintiff’s testimony tended to show that no representations were made by plaintiff’s agent when the deed was made, and that the defendant claimed that the Walton claim appeared upon Ms abstract, and that he wanted to clear it off. It is^true that defendant testified that, some two years before this, Mr. Erwin, on the occasion of a meeting of owners of property at his law office, had stated that, if the power of attorney was a forgery, Nelson C. Walton had a one-fourth interest in the lands; but Mr. Erwin testified that this was before the claim was taken into the office of Smith, Nims, Hoyt & Erwin, and it was a question for the jury as to whether defendant knew what he was buying.

It was not strictly correct to say that the Walton claim was entirely without appearance of validity. The foreclosure proceeding was not, indeed, complete, but perhaps not so entirely irregular as to be incapable of being supple mented by parol proof. The foreclosure was in 1842, and under sections 3 and 6 of Act No. 88 of the Laws of 1842 The proceedmgs under this statute are a curiosity at this day, and it is unnecessary to decide either whether the proceedings were regular or whether the act in question was constitutional. It is enough that the conveyance was a cloud on defendant’s title, and that, if he bought his peace against this claim, without fraud or deception on the part of the plaintiff or his agent, he cannot repudiate his bargain, although not a good one. If the rule were otherwise, there would never be a settlement of a disputed claim which could not be avoided later by showing that the party paying the consideration would, in a trial at law, have had the best of the dispute. The law favors compromises of such disputes as to title, as well as of all controversies.

The circuit judge charged the jury as follows:

“If Mr. Erwin made a statement to Mr. Mason, in substance, that this party claimed title, and that he would convey that title to him for $450, and did assume to do that, and gave him that deed with that in view, and Mr. Mason supposed he was getting a title or an interest in these lands, and that title absolutely failed, why your verdict will be for the defendant.”

This'was a fair statement of the law applied to the case.

We think it was competent to show by Mr. Erwin that no representation was made by him as to the nature of the Walton title at the time the deed was given. If the defendant, with the abs tract in his possession, saw fit to negotiate for the Walton title, he could restore himself to his former position by showing that he was deceived by some act of plaintiff or his agent; and it was competent to show that Mr. Erwin, who negotiated the sale of the Walton title, practiced no deceit.

The judgment is affirmed.

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


text:
    WALTER A. WOOD MOWING & REAPING MACHINE CO. v. VANDERBILT.
    1. Justices of the Peace—Adjournment—Abuse of Discretion.
    Where there is an express understanding between the parties to an action in justice’s court that the cause will be heard upon a certain day, to which an adjournment is taken, and the plaintiff procures witnesses to be then present from a distance, the refusal of the justice to further adjourn the cause is not such an abuse of discretion as amounts to legal error, although security for costs is not entered until the adjourned day, if it does not appear that the defendant was prevented from preparing his defense on account of such delay; especially where the defendant, upon the return day, with knowledge of the facts, procured the adjournment without insisting that security for costs be previously entered.
    2 Same.
    Nor is it error to refuse such adjournment, although a bill of particulars was not served until two days prior to the adjourned day, where it was contemplated by the parties that plaintiff should have some time for its preparation, and no time was fixed for the service thereof, and where it further appears that defendant knew before the service of the sainé who were to be his witnesses, and no affidavit of merits is filed.
    Error to Bay; Maxwell, J.
    Submitted April 23, 1896.
    Decided May 26, 1896.

      Assumpsit by the Walter A. Wood Mowing & Reaping Machine Company against Louis Vanderbilt for goods sold and delivered. A judgment for plaintiff in justice’s court was reversed on certiorari, and plaintiff brings error.
    Reversed.

      Van Kleeck & Anneke, for appellant.

      L. McHugh, for appellee.
   Montgomery, J.

Plaintiff recovered a judgment of $196 and costs against the defendant in an action of assumpsit before a justice of the peace, which was reversed on certiorari, and plaintiff brings error.

The action before the justice was instituted by summons returnable September 28, 1895, at 9 a. m. On the return day both parties appeared by attorney. The plaintiff declared on the common counts in assumpsit and for goods sold and delivered. Defendant asked for security for costs, and demanded a bill of particulars of its account. The case was, in this state, adjourned, on motion of defendant, to October 12th at 9 a. m. It also appears by the affidavit for certiorari that a bill of particulars was served on him on the 10th or 11th of October. On the adjourned day defendant filed his plea, and asked for a further adjournment, which was refused, and this refusal is the error alleged in various forms in the affidavit for certiorari.

The errors assigned in the affidavit are as follows:

. “1. That said justice erred in overruling said motion for an adjournment, for the reason that issue was not joined in said cause until after the parties appeared on said day, and the said defendant filed his plea and notice, and because the said defendant could not know whether he could safely proceed to the trial of said cause or not, and be secure in the collection of the costs which he would necessarily incur in making preparation for said trial, until the said plaintiff had filed said security for costs.
“2. That said justice erred in refusing to grant said adjournment on the evidence of the witness who was examined on oath on the part of the defendant as to the necessity of an adjournment of said cause to enable said defendant to secure the attendance of witnesses at the trial of said cause, whose evidence would be necessary and material to the defense of this deponent in said cause.
“3. The said justice erred in not granting the said adjournment upon the affidavit of L. McHugh, filed in said cause on behalf of the defendant, a copy of which is inserted herein, and marked Exhibit A;’ there being no testimony of any kind offered by the said plaintiff tending to show that it would be inconvenienced by the adjournment of said cause, or that it would be inconvenient for the said plaintiff to try said cause on a day to which same might be adjourned on the showing made by the said defendant.
“4. That the justice erred in overruling said motion for the reason that said defendant could not be compelled to go to trial, or. to incur the expense of preparing for trial and procuring the attendance of witnesses, until security for costs was filed by said plaintiff.”

The return of the justice shows that on the forenoon of the adjourned day the defendant’s attorney asked an adjournment of two- weeks; that the plaintiff’s attorney objected on the ground that he had three witnesses in court who had traveled, respectively, 50 to 180 miles for the purpose of giving evidence; that the defendant’s attorney was sworn, and later filed an affidavit, and thereupon the case was adjourned until 1 o’clock of the same day, at which time the plaintiff filed four counter affidavits; and that thereupon he (the justice) signified his willingness to hold the case open until evening, in order that the defendant might have time to prepare, but the defendant refused to accept this. Thereupon the trial proceeded, the defendant refusing to take any part in the proceedings. The justice further returned that he became satisfied that the defendant had made no showing of diligence, and-that the plaintiff had witnesses in court from Detroit, Kalamazoo, and near Port Huron, and that on the occasion of the first adjournment it was expressly understood that the case was to be tried on the 12th of October. A further return shows that the security for costs was not entered upon the docket until the 12th of October, but that it was entered upon that day, and before any witnesses were sworn.

It does not appear that the defendant was prevented from or delayed in making preparation for his defense on account of the delay in filing security for costs. On the contrary, the affidavit shows that on the 8th of October he called on the justice, and ascertained that the bill of particulars had not been filed, and this is impliedly stated as the reason for not preparing for the trial. It appears that it was known to defendant that security was not filed on the commencement of suit, and that the case was adjourned on his motion without insisting that the security for costs be previously entered; and, if the delay in entering such security was the cause of defendant’s failure to make preparation, he studiously concealed that fact from the justice, and assigned another reason.

As to the plaintiff’s delay in furnishing a bill of particulars, it is to’ be borne in mind that the affidavit for certiorari shows clearly that it was expected that the plaintiff should take some time for that purpose, as it states that the plea was to be withheld until the bill of particulars was served. No time was fixed, and the bill was filed on the 9th and served on the 10th. A significant fact is that, before the bill of particulars was served, defendant knew who were to be his witnesses, and informed his attorney. It is also a significant fact that there was no affidavit of merits, so far as the record shows. Under these circumstances,—limiting our inquiry to the facts shown by the return of the justice, as we are bound to do, —we think there was no such abuse of discretion by the justice in refusing an adjournment as amounts to legal error. The case should be very plain indeed which justifies resort to certiorari to review the rulings of the justice on such a question.

The judgment of the circuit court is reversed, and that of the justice affirmed, with costs of all the courts.

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


author: Grant, J.

text:
    PEOPLE v. ELMER.
    1. Criminal Law—Disorderly Conduct—Fortune Telling.
    One who professes to possess a power to foretell future events, and who offers his services to the public in that capacity by advertisement in the newspapers, is subject to prosecution as a disorderly person, under 3 How. Stat. § 1997a, for “pretending to tell fortunes.”
    2. Trial—Directing Yerdiot in Criminal Case.
    Where, upon a prosecution for a misdemeanor, the facts~are admitted or undisputed, and the only question is one of law as to whether the" facts proved constitute the offense charged, the court may properly direct the verdict.
    3. Criminal Law—Continuing Offense—Election of Charges.
    Where a respondent is charged with pretending to tell fortunes as a continuing offense, and several instances of such disorderly conduct are shown upon the trial, the prosecution cannot be compelled to elect upon which of these specific acts conviction is asked, all being admissible under the general charge.
    Exceptions before judgment from Ionia; Davis, J.
    Submitted May 1, 1896.
    Decided May 26, 1896.
    Arthur Elmer was convicted of being a disorderly person, in that he pretended to tell fortunes.
    Affirmed.
    The respondent was convicted of being a disorderly person, within the meaning of section 1, chap. 51, 3 How. Stat., in that he pretended to tell fortunes. The complaint described the offense as a continuing one, and alleged it to have been committed on July 25, 1895, and for 10 days next preceding. The court was of the opinion that the undisputed facts established the offense, and so charged the jury, and directed them to find a verdict of guilty.
    On July 23d the respondent caused to be published in one of the papers of Ionia a long advertisement, the material parts of which are as follows:
    “Will Arrive at Ionia, Mich., July 23, 1895.—A modern day seer is now in the city, and can be consulted on all conceivable affairs of life and human destiny. This strange gift, which he only uses to the advantage of the human race, excites the wonder and admiration of the most skeptical, and will drive doubt from your mind, and slay skepticism on the threshold of the interview. Being born with this marvelous power, and thoroughly conversant with the occult science, his revelations are truly wonderful, and acknowledged to be of the highest order. It has been said of him: ‘ Never in the annals of clairvoyancy have future events been so truthfully foretold.’ He permits you a peep through the keyhole of the mysterious future, by which you may obtain the key of your future life and success. Advises you with a strange certainty as to the proper course to pursue in life. If business affairs concern you, he gives advice on business transactions, lawsuits, wills, mortgages, speculations, pension claims, and other financial difficulties. If affairs of the heart or emotions of love interest you, he gives some astonishing revelations of courtship, marriage, divorce, and domestic troubles. Restores lost affection, peace, and confidence to lovers and discordant families, on a positive guaranty. Tells the name of your future husband or wife, and date of marriage. Locates lost, stolen, and buried property and treasures, on positive guaranty. No money taken until goods are in your possession. Also locates friends and relatives. No charge until you find them. Psychometry, or soul reading. Doctor gives delineations of character, and tells what you are best adapted for.”
    The same paper contained another notice, which reads as follows:

      “Will Arrive at Ionia, Mich., July 33, 1895.— A Modern Day Seer, the Noted Dr. Arthur Elmer, Clairvoyant, Trance Medium, and Healer. Calls you by name; tells you what you called for; can give you your age, even the day and hour you were born; tells your mother’s maiden name ; date of your marriage; how many children you have; gives the full names of your friends, both in life and beyond the grave; the name of the street and the number of the house in which you live; gives number of your watch, check, bank note, etc.; tells how much money you have in your pocket; will even tell you what you have eaten within the last twenty-four hours.”
    The respondent also advertised himself as a “magnetic healer ” and ' ‘ clairvoyant physician. ” This advertisement was accompanied by several letters from those who claimed to have been treated by him and cured. Several witnesses testified that they went to the respondent; that he pretended to go into a trance, and "that, either while in it, or after he came out of it, he told them what would happen to them in the future. One witness testified: “He said the reason he went into a trance was to tell the future and the past.” The justice of the peace before whom the respondent was tried testified that the respondent was a witness for himself upon the trial in justice’s court; that he there testified that he had advised Mrs. Webber, a witness for the people, “to leave her husband; that he had been in a trance, and had seen her husband in the act of killing her; that he called his business ‘prognosticating,’ ‘looking into the future;’ not ‘telling fortunes.’ ” The only testimony offered on the part of the defense was that the respondent informed the witnesses whom he proposed to call that he could not tell fortunes. This offer of testimony was rejected by the court, upon the ground that it did not tend to contradict the case made by the people, and that it was immaterial what name the respondent applied to his acts.

      Chaddock & Scully and A. A. Ellis, for appellant.

      B. A. Hawley, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts).

The undisputed facts in this case established the commission of the offense. It is idle to attempt to draw distinctions between professing to possess a power and pretending to exercise that power. This respondent did both. The precise point is decided in Penny v. Hanson, 16 Cox, Cr. Cas. 173. The English statute, under which conviction was had, provided that “every person pretending or professing to tell fortunes * * * shall be deemed a rogue and a vagabond.” 5 Geo. IV. chap. 83, § 4. The circular upon which the respondent was convicted stated that, “by the positions of the planets in the nativity, and their aspects to each other,” he was enabled to forecast future events. This circular had been issued in response to an advertisement as follows: “Wanted—Every one to have their own nativity cast yearly. Advice given, and astrological questions answered.” The court, in deciding the case, said: “No person who was not a lunatic could believe he [the respondent] possessed such power. * * * The advertisement and circular amounted to a pretending and profession to tell fortunes.” This language is especially applicable to this case. No sane, intelligent juror could come to any other conclusion than that reached by the circuit judge.

No intent was involved. The offense was a misdemeanor. In such cases, when the facts are admitted or are undisputed, it is the duty of courts to instruct juries that the facts proven constitute the offense. There was no question of fact for the jury to pass upon. The conclusion is one of law, and not of fact. Guilt follows, as a matter of law, when the facts are undisputed. This point is ruled by People v. Neumann, 85 Mich. 98, where this court said, speaking through Justice Morse :

“In this State, where a judge has directed a verdict of guilty, and the jury have followed such direction, and the facts are admitted or undisputed, and the only question is one of law, applied to such facts, a new trial will not be granted if the judge was right in his application of the law.”

As already stated, witnesses for the people had testified to specific acts of pretending to tell fortunes, for which some of them had paid. The defense requested the court to compel the prosecution to elect upon which one ■of these conviction was asked. The court refused. The ruling was correct. The offense was a continuing one, and any acts to sustain the general charge were admissible. But, if this were not so, the respondent was not prejudiced, because, aside from these specific acts, the advertisement itself constituted the offense.

The conviction is affirmed.

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


author: Hooker, J.

text:
    PACKARD v. KINGMAN.
    1. Trusts and Trustees—Power to Execute Negotiable Paper —Construction of Will.
    Executors under a will whereby the testator devised and bequeathed all of his estate to his executors in trust for a term of years, with full power to sell and mortgage, “in order that his estate might be kept together until his various business interests could be closed up advantageously,” have power, for the benefit of the estate, to execute negotiable paper, to mature within the time limited for the continuance of the trust, in extension or renewal of obligations upon which the deceased was liable at the time of his death, and to borrow money in the usual course of business to meet such obligations, and to bind the estate thereby and therefor.
    ®. Same—Personal Liability of Trustee.
    A trustee, having power to bind the trust estate, may so contract on its behalf as to exclude his personal liability.

      Appeal from Calhoun; Smith, J.
    Submitted May 19, 1896.
    Decided May 26, 1896.
    Bill by Mitchell N. Packard and others, executors, against Caroline B. Kingman and others, to construe the will of Richmond Kingman, deceased. From a decree for complainants, defendants appeal!
    Affirmed.

      Hulbert & Mechem, for complainants.

      L. E. Clawson, for defendants.
   Hooker, J.

The complainants are executors of the estate of Richmond Kingman, and file the bill in this cause, asking a construction of his will that shall settle their power to make, execute, and deliver negotiable paper and pledges of the property of said estate that shall be binding upon said estate, for the purpose of extending indebtedness secured by such paper made by the testator, and also for the purpose of obtaining money wherewith to pay such maturing paper. All persons interested in said estate are adults, and all are made parties defendant, except Howard R. Kingman, who is the son of the testator, and one of said executors, and who joins as complainant. All of the four persons named in the will as executors qualified as such, but one resigned, and another died, and their places were filled by appointment by the probate court. All of the allegations of the bill are admitted by the defendants, who all appeared and answered. The answer, however, contains the following paragraphs, viz.:

“11. These defendants jointly and severally state to the court that they are respectively each possessed of a separate and independent estate assigned and apart from and in addition to such estate as may come to them, and to which they are respectively entitled, under the said will of said Richmond Kingman, deceased, and do not desire in any improper way to create or add to the perplexities which the complainants are meeting in the administration of said estate; but that, nevertheless, these defendants, each and every one, stand strictly on their legal rights under said will, according to the phraseology thereof, and the true intent and meaning thereof, as set forth by said instrument itself, and not otherwise, and state and represent to the court that if the effect of said instrument is, in law and under the facts which are in said bill alleged and by these pleadings admitted, to give to the complainants herein the power which they claim under the eleventh clause of said bill, these defendants will willingly submit to and abide by such construction and adjudication; but that these defendants have declined, and do decline, to commit themselves to any construction of said will except such as the court of competent jurisdiction may determine and announce.
“12 These defendants, further answering, admit that complainants are entitled to a construction of said will, and join in the request for a construction of said will as prayed for, and pray that their reasonable costs and charges in this behalf may be borne by and paid out of said estate, and not by them individually.”

The question in this case is whether the power claimed is confided, by the will, to the complainants.

The following is a copy of said will, except the formal parts:

“First. After the payment of my just debts and funeral expenses, I give, devise, and bequeath unto Roldon P. Kingman, Howard R. Kingman, and Fred M. Wadleigh, all of Calhoun county, Michigan, and Mitchell N. Packard, of the city, county, and State of New York (the executors of this, my will, hereinafter named), and to the survivors and survivor of them, or to such of them as may from time to time qualify as such executors, and to their successors and assigns, all of my estate and property, real, personal, and mixed, of whatsoever kind and description, and wheresoever situate, in trust, nevertheless, for the uses and purposes following and herein stated, and no other, that is to say: That my said executors take possession of all my said estate and property as aforesaid, and to hold the same, and to collect the rents and profits thereof arising from my said estate and property during all the time they hold the same; and to sell and dispose of my said estate and property, or of so much and such parts thereof as they may deem for the best interests of my estate; and to invest my said estate and any of the income thereof in such manner as they shall deem judicious, and in such securities as they may see fit; and to reinvest the same so often as may be necessary; and that such securities may be other than those prescribed by statute or law for the investment of trust estates, any statute or law to the contrary notwithstanding. And I do hereby give to my said executors, or to such of them as may from time to time qualify as such executors, and to their successors and assigns, full power and authority to grant, alien, bargain, sell, convey, mortgage, lease, and .assure all or any of my said estate, real, personal, and mixed, to any person or persons, and their heirs and assigns, forever, by all and every such lawful ways and means in law as to them and their counsel learned in the law shall seem fit or necessary. And in case of sale of any part of my said estate, whether real or personal, I direct that it may be either at public or private sale, as to my said executors may seem best and most judicious; and in carrying out the provisions of this, my will, I hereby authorize and empower my said executors to make, execute, and deliver all necessary deeds, mortgages, leases, releases, and other papers (provided that nothing herein contained shall authorize my said executors to lease any of my real estate beyond the time herein fixed for the termination of this trust). Out of the interests, incomes, and profits which shall accrue from my estate so held in trust as aforesaid, I will and direct the following sums to be paid to my wife and children, in semiannual payments, during the continuance of the trust herein, and I give, devise, and bequeath to my said wife and children out of said interests, incomes, and profits as follows, to wit: To my wife, Caroline B. Kingman, the sum of five thousand dollars per year; to my daughter, Emily K. Taft, the sum of sixteen hundred and sixty-six dollars and sixty-six cents per year; to my son Howard R. Kingman, the sum of sixteen hundred and sixty-six dollars and sixty-six cents per year; and to my son Richmond T. Kingman, the sum of sixteen hundred and sixty-six dollars and sixty-six cents per year. Should my said wife or any of my said children die during the continuance of this trust, her or his portion or share of said interests, incomes, and profits shall be paid to her or his heirs and assigns. The trust herein and hereby created in this clause of my will shall terminate five years from the date of the probating of my will in the county of which I may die a resident; and my object in creating the aforesaid trust is in order that my estate may be kept together in the manner herein provided until my various business interests can be closed up advantageously to my said estate, and administered upon by my executors and trustees for the best interests of my wife and children, and judging that that length of time will be necessary so to do.
Second. Upon the termination of the trust created in the preceding clause of this, my will, I hereby direct my executors and their successors, and their successors, and the survivor and survivors of them, or such of them as may from time to time qualify, and to their successors, to divide my said estate and property into four equal portions. And I hereby give, bequeath, and devise the first part or portion thereof to my said wife, Caroline B. King-man, and her heirs and assigns, forever; and the second part or portion thereof to my daughter, Emily K. Taft, and to her heirs and assigns, forever; and the third part or portion thereof to my son Howard R. Kingman, and to his heirs and assigns, forever; and 'the fourth or remaining part or portion thereof to my son Richmond T. King-man, and to his heirs and assigns, forever.
“Third. The legacies and bequests hereinbefore made to my said wife, Caroline B. Kingman, are made to her, and are to be by her received, in lieu of all rights of dower, homestead, and support.
“Fourth. I hereby nominate and appoint Roldon P. Kingman, Howard R. Kingman, and Ered M. Wadleigh, all of said county of Calhoun, Michigan, and Mitchell N. Packard, of the city, county, and State of New York, and the survivors of them, or such of them as shall at any time qualify, to be the executors of this, my will, and trustees of my estate, as herein provided; and it is my wish and will that my said executors shall not be required to execute any bond or security for the faithful performance of their duties as executors or trustees, and they shall not be held liable for any losses to my estate except by their own willful default.”

It is asserted that this will should be construed in the light of the circumstances surrounding its execution; and the following facts appear, both by admissions contained in the answer and by the depositions of witnesses acquainted with, the facts: Richmond Kingman died January 26, 1895, and his will was admitted to probate February 28, 1895. All of the executors qualified. Wadleigh, one of the executors, resigned September 24, 1895; and R. P. Kingman, another of said executors, died December 17, 1895. The probate court appointed, as their respective successors, S. S. Hulbert, October 8, 1895, and Brainard T. Skinner, February 7, 1896; and letters testamentary were duly issued. Subsequently, upon petition to the circuit court in chancery, the four executors were appointed executors and trustees, upon an ex parte application by them, and such action was certified to the probate court. Richmond Kingman had a large estate, including farms in North Dakota aggregating $100,000. Among his assets was $50,000 of stock in the Pneumatic Torpedo & Construction Company, a corporation of the State of New York, engaged in the production of the ‘‘ Zalinski Dynamite Gun.” He also had bonds of said corporation to the amount of $32,500. He also held stock to the amount of $46,000 in the Duplex Printing-Press Company, a Michigan corporation, at Battle Creek, Mich. He was active in the management of both of these concerns, and lent his name and credit to them. At the time the will was made, in July, 1894, and at his. death, his name was upon large amounts of negotiable paper, for money loaned by banks and private capitalists to said Duplex Printing-Press Company, said'Pneumatic Torpedo & Construction Company, and for his other various business interests; in some cases as sole and original maker, in some cases as joint maker with others, but in the majority of cases, and to the largest amounts, as indorser with other stockholders of said Duplex Printing-Press Company and said Pneumatic Torpedo & Construction Company, and paper principally made by said respective companies for money used and to be used by said respective companies in their legitimate and chartered business.

The bill alleges, and it is admitted as well as proved, that said Richmond Kingman, deceased, well knew that said paper upon which his said name was, as aforesaid, was and would he falling due from time to time in various sums and amounts, in the hands of the said various banks, money lenders, and private capitalists; that a prime and primary object of said Richmond Kingman, deceased, in so creating said five-years trust, was to enable his executors and trustees to pledge, bind, and charge the credit, resources, and assets of his estate, real and personal, in extending and renewing, as well as paying, obligations and evidences of debt outstanding as aforesaid, upon which his name was as aforesaid, and in giving new evidences of debt therefor, and in raising new funds with which to carry on, develop, and bring to completion his various enterprises, all within the five-years limit, and all within the discretion of his said executors and trustees; that in spite of the intention of said Richmond Kingman, deceased, and the terms of said will, the sundry money lenders and capitalists who hold the paper upon which the name of said Richmond Kingman, deceased, was at the time of his death, decline to accept renewals of negotiable paper and promises to pay which bore the name of said Richmond Kingman, deceased, and decline to loan new funds when complainants offered and tendered promises to pay and negotiable paper made by complainants, as executors, administrators, and trustees, to bind and charge the assets of said estate in extensions, renewals, or in the making of new paper and the borrowing of new funds, while still other banks and money lenders are willing to. take the signatures of complainants as binding and charging said estate for the purposes aforesaid; but complainants, by reason of the doubts which have been expressed in regard to their power and authority under said trust and said will, are afraid to sign their names in the capacities aforesaid, upon promises to pay, for fear that it might be held that, under the language of the will, they would not have the authority and power to bind said estate, and that the result of such acts upon their part would be to only bind and charge themselves, personally and individually, for matters in which they would have no personal interest whatever; that they are in great doubt and perplexity as to the proper course which they should pursue, lest, on the one hand, they may be held recfeant to their trust, in not carrying on said enterprises, and enhancing the value of the assets of said estate, if the proper construction of the will be such as to give them authority to renew, extend, and borrow new funds, as aforesaid, if in their discretion they see fit so to do, and, on the other hand, lest, if they should make and put out such promises to pay, they might involve themselves and the estate in expensive and protracted litigation by reason of the will’s being held not to give to complainants the power to so charge the estate as aforesaid, and that the result of such acts would be to only bind themselves; that, so far as the administration of said estate has progressed, occurrences have repeatedly arisen, and now exist, and are confronting the executors, where, if they have the power under said will to act as aforesaid, it would most manifestly and clearly be for the best interest of said estate to extend and renew obligations as aforesaid, and in some instances to borrow new funds as aforesaid; and that the executors can readily obtain all necessary extensions and renewals and new funds if they be held to have the power and authority to charge said estate therefor and therewith.

The bill prayed that—

“The court consider said will, and define and make plain to your orators their power and authority as executors and administrators with the will annexed, and trustees, to, in their discretion, and subject to the rules of law as to abuse of discretion, sign, execute, deliver, negotiate, and put out negotiable instruments and promises to pay, singly or jointly with others, in extension or renewal of the obligations upon which said Richmond Kingman, deceased, was at the time of his death, and, within their discretion as aforesaid, to borrow new funds as aforesaid, and to bind, pledge, and charge the estate and assets of said Richmond Kingman, deceased, and not themselves, your orators, by their said acts; and ask that said Caroline B. Kingman, Emily K. Taft, and Richmond T. Kingman, defendants herein, may appear and answer this bill without oath, their answer under oath being hereby expressly waived; and pray the court to settle the controversy aforesaid, and construe said will, and declare its legal effect in the matters aforesaid, and determine the power of your orators in the premises, and relieve your orators from their perplexity.”

The circuit court made a decree in substantial conformity to the prayer of the bill, except as to the binding effect upon the trustees personally, and an appeal has been taken by the defendants.

Provisions in wills may be such that a trust is necessary to carry out and enforce them, and the general rule that “the form of the instrument by which a trust is sought to be created is immaterial, and that no technical words are necessary,” applies to wills, and no arbitrary rule exists for determining whether or not a trust has be'en created by a will; each case being determined according to the language and in accordance with the apparent intention, the trust being enforced where it was intended, provided it is sufficiently definite, certain, and complete. Negroes Chase v. Plummer, 17 Md. 165; Smith v. Bell, 6 Pet. 75; Hess v. Singler, 114 Mass. 56; Warner v. Bates, 98 Mass. 274; Spooner v. Lovejoy, 108 Mass. 529; Carr v. Richardson, 157 Mass. 576. In the latter case it was held that the intent of the testator must govern, and that no trust was created, notwithstanding the use of the words “in trust.” See, also, In re Hawley, 104 N. Y. 250; Rowe v. Rand, 111 Ind. 206. In Ward v. Ward, 105 N. Y. 68, it is held that “although a will contains no words creating a trust, if, from the will and a codicil thereto, it can be implied that it was the testator’s intent to establish a trust in the executors, for objects declared and set forth in the will, it is sufficient.” See, also, Earle v. Earle, 48 N. Y. Super. Ct. 18; Walker v. Whiting, 23 Pick. 313; Fay v. Taft, 12 Cush. 448; Hoxie v. Hoxie, 7 Paige, 187; Robert v. Corning, 89 N. Y. 225; Forsyth v. Rathbone, 34 Barb. 388; Downing v. Marshall, 23 N. Y. 366 (80 Am. Dec. 290); Ellis v. Secor, 31 Mich. 185; Chadwick v. Chadwick, 59 Mich. 87; Loring v. Palmer, 118 U. S. 321; Rock River Paper Co. v. Fisk, 47 Mich. 221; King v. Merritt, 67 Mich. 194.

The will in question, in terms, creates a trust beyond that for mere settlement and distribution by the ordinary methods. Its first paragraph gives and devises all of the testator’s property to certain named executors, and their successors and assigns, in trust, for uses and purposes to be stated. It gives full power to dispose of property, and to mortgage it. The trust is limited to five years, and testator’s object in creating it is said to have been “that his estate might be kept together until his various business interests could be closed up advantageously to his estate.” The testator appears to have been careful to provide that the trust might be executed by others than those named as executors, if occasion should require. Under the will and the facts shown, we are convinced that it was the intention of the testator to provide for the conduct and care by his executors of his business interests, until they could be realized upon, within the limit that he set; and while we do not mean to imply that his trustees might enlarge his obligations already existing, by furnishing new and additional financial aid to the corporations mentioned in the bill, we are of the opinion that they might properly, and where it should appear for the best interests of the estate, extend or renew existing obligations of the estate, or borrow money in the usual course of business to meet obligations when due. It is competent for a testator to provide for the continuance of his business, and he may, if he deems it best, subject all of his property to such purpose, as he seems to have done in this case. Ferry v. Laible, 31 N. J. Eq. 567; Mason v. Pomeroy, 151 Mass. 164; Hewitt v. Phelps, 105 U. S. 393; Burwell v. Cawood, 2 How. 560; Willis v. Sharp, 113 N. Y. 586, and cases cited; Printup v. Trammel, 25 Ga. 243.

While we hold that it is within the power of the executors to perforin the acts mentioned, and, therefore, that the estate would be bound thereby, we do not overlook the rule that the effect of such contracts is usually to bind the trustee personally, and that the other contracting party must pursue his remedy against the trustee. This doctrine is established by a list of cases, long and general^ uniform. Short v. Porter, 44 Miss. 535; Woods v. Ridley, 27 Miss. 119; Bloom v. Wolfe, 50 Iowa, 286; Norton v. Phelps, 54 Miss. 471, 105 U. S. 393; Clopton v. Gholson, 53 Miss. 471, and cases cited; Mason v. Pomeroy, 151 Mass. 166. In some cases it is held that, where the estate has had the benefit of the contract, the creditors may resort to the trust fund, if the trustees are insolvent or beyond seas, subject, however, to the rules of equity applicable to the case. See Mason v. Pomeroy, 151 Mass. 167; Odd Fellows Hall Association v. McAllister, 153 Mass. 292. There are cases, however, which hold that a trustee, having power to bind the estate, may so contract as to exclude a right to recover against him. The case going the furthest, so far as we have found, is Printup v. Trammel, 25 Ga. 243; and that goes so far that we think it at variance with the rule above stated, i. e., that “usually the trustee, and not the estate, is bound.” Bloom v. Wolfe, 50 Iowa, 288, impliedly recognizes the right of the trustee to exclude his personal liability, if he so make his contract. Glenn v. Allison, 58 Md. 527, is to the same effect; also, Thayer v. Wendell, 1 Gall. 37. See, also, Day v. Brown, 2 Ohio, 345, and other cases cited therein. So far as examined, these cases mentioned are cases arising upon covenants contained in mortgages executed by the trustee, but we think the rule is not necessarily limited to such cases. See, also, Fowler v. Insurance Co., 28 Hun, 195. Where the parties expressly contract that no personal liability shall attach to the trustee, the creditor would necessarily depend upon such liability as might lawfully be created against the estate, and it is possible that his remedy might be limited to a suit in equity.

It will therefore be decreed that under the will of Richmond Kingman, deceased, set forth in the bill herein, his executors, administrators with the will annexed, and trustees, and their several successors in office, have authority and power, as such executors, administrators, and trustees, to, in their discretion, and subject to the rules of law as to abuse of such discretion, sign, execute, deliver, negotiate, and put out negotiable instruments and promises to pay, in extension or renewal of obligations upon which said Richmond Kingman, deceased, was liable at the time of his death, and the same to re-extend and renew within their discretion as aforesaid, and to thereby bind, pledge, and charge the estate and assets of said Richmond Kingman, deceased; and that said executors, administrators, and trustees, as such, within their discretion, and subject to the rules of law as to the abuse of such discretion, have power and authority to borrow new funds, and to bind and pledge the estate and assets of said Richmond Kingman, deceased, thereby and therefor; all such renewals and borrowings to be for the benefit of said estate, and to mature within the five-year limit of the trust estate specified in said will.

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


text:
    LA FLAMME v. DETROIT & MACKINAW RAILWAY CO.
    1. Railroad Companies—Cattle Guards—Sufficiency — Approval by Railroad Commissioner.
    Under 3 How. Stat. § 3377, providing that any cattle guard which shall have the written approval of the railroad commissioner shall he a legal cattle guard, a railroad company is protected in the use of a guard whjch has been approved by the commissioner either by name or by definite description.
    2. Same—Liability for Killing Stock—Contributory Negligence.
    The statutory liability of a railroad company for stock killed upon its track by reason of its failure to maintain a sufficient cattle guard is not affected by the contributory negligence of the owner of the stock.
    Error to Alcona; Simpson, J.
    Submitted April 29, 1896.
    Decided May 26, 1896.
    Case by Joseph La Flamme and another against the Detroit & Mackinaw Railway Company to recover the value of a horse killed on defendant’s right of way. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Albert E. Sharpe, for appellant.

      Henry & Pugh, for appellees.
   Hooker, J.

Plaintiffs’ horse walked over a cattle guard upon the defendant’s railroad track, and was killed. The defendant appeals from a verdict for its value. The cattle guard was a patent one, known as the “National Surface Cattle Guard,” and it appeared that cattle were in the habit of walking over it, and that the plaintiffs’ tenant turned their horse into the road with the knowledge that he had crossed said cattle guard.

Counsel for the defendant contends that the cattle guard was sufficient, and that, therefore, there could be no recovery. The claim was based upon a printed paper over the name of a former railroad commissioner of this State, approving that kind of cattle guard (which was a patented article, having a definite name), and authorizing its use upon another railroad. This certificate of approval rests upon section 3377, 3 How. Stat., which, after requiring the construction of cattle guards, contains the following, viz.:

“Provided, that any fence or cattle guard which shall have the written approval and indorsement of the commissioner of railroads of this State, and which fencé is not less than four and one-half feet in height, and is otherwise equal in durability, strength, and sufficiency to turn animals and stock to the fences herein described, shall be a legal railroad fence or cattle guard.”

The court instructed the jury that—

“The defendant has put in evidence here a certain paper from the commissioner of railroads showing that the cattle guard, the kind of cattle guard, that they did put in there, was one approved by the commissioner. Now, gentlemen of the jury, that is evidence to show what kind of cattle guard it was. We have a statute that says that a cattle guard approved by the commissioner of railroads shall be deemed sufficient; but I am inclined to construe 'that law to mean that it shall only make it positively such a one as shall stand, and be a defense only where the commissioner has approved it after it is established. I think that the statute referring to fences and cattle guards that the commissioner shall approve of must be cattle guards that are already established and fences that are already made, and that he sees and approves of; but yet, gentlemen of the jury, the fact that the commissioner approved, of this kind of cattle guard as being in compliance with the law would be proof that the cattle guard in and of itself was a proper one. The commissioner has stated in his certificate that this kind of cattle guards are such as the law requires; but, of course, as to whether it was put in, in shape and condition, as it should be, and whether or not it was out o£ repair or anything of that kind, that is a question for you to settle.”

In this, we think, the court was in error. It would he next to a physical impossibility for the railroad commissioner’ to inspect and in writing approve every cattle guard and every foot of fence upon the various railroads; and we think the plain intent of the statute is complied with when he describes the fence or cattle guard which he approves, or where he mentions it by name, where such name applies to a cattle guard of definite and fixed description. The defendant was therefore entitled to the instruction that this was a legal cattle guard, if properly erected and in repair.

Counsel for the defendant requested the court to instruct the jury that—

“If St. Peter, the tenant of plaintiffs’ farm, knew that this horse was in the habit of going upon the defexidant’s right of way by passing over this cattle guard, and had himself driven him out of this fenced right of way, and then voluntarily turned the horse out to run on the street near this crossing, the plaintiffs cannot recover.”

The request should have been given, unless the statute forbids. Robinson v. Railroad Co., 79 Mich. 323. But it is urged that the statute imposes a liability upon the railroad where animals get upon the track from the highway, and are killed, where a lawful cattle guard has not been provided. We think the case, falls within the rule stated in Flint & P. M. R. Co. v. Lull, 28 Mich. 515.

The judgment is reversed, and a new trial ordered.

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


text:
    RUNNELLS v. VILLAGE OF PENTWATER.
    1. Appeal—Evidence—Harmless Error.
    A judgment will not be reversed for error in the admission of testimony which was so limited in its purpose that it could not have prejudiced the appellant.
    2. Same—Trial—Motion to Strike Out Testimony.
    An exception to the refusal of a motion to strike out tes- „ timony will not be considered, where the\ testimony was originally admitted without objection, and no reason for the motion was given.
    3. Trespass—Damages—Instructions.
    The use of the word “willfully,” instead of “intentionally,” in an instruction that the neglect of the plaintiff to take such measures as were within his power to recover and secure a scow after defendant had willfully unfastened it and cast it adrift would not mitigate the damages, is not prejudicial to the defendant, where the recovery is expressly limited to the actual damages sustained.
    4. Appeal—Refusal op Requests to Charge —Failure to Except.
    Errors assigned upon the refusal of requests to charge will not be considered where no exceptions to such refusal were taken in the lower court.
    5. Trespass—Instructions—Title to Lands.
    Where, in an action of trespass against a village for cutting loose a ferry boat, the result depended upon whether the ferry slip was in the street or on private property, an instruction that, if plaintiff was on his own land, defendant had no right to go there, or to interfere with his property, was correct, though title to the land was not in issue.
    Error to Oceana; Russell, J.
    Submitted April 29, 1896.
    Decided May 26, 1896.
    Trespass de bonis by Henry Runnells against the village of Pent water. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      The plaintiff had been engaged for four years preceding April 1, 1895, during the season of navigation, in running a ferry scow across a stream which runs through the defendant village, under yearly contracts with the defendant. The village authorities had been in the habit of letting this privilege to the highest bidder. He did not bid for the privilege in 1895, but claimed that the ferry slips in. the defendant village were not in the public street, but were owned by private parties, from whom he had leased them. He thereupon commenced to run a ferry in the spring of 1895, and was so engaged when the alleged trespass in this case was committed. The defendant village claimed that the ferry slips were in a public street, gave plaintiff notice to remove therefrom, and, upon his neglect to do so, cut the wire rope, and took possession of the slip. He thereupon brought this suit for trespass to personal property, and recovered verdict and judgment for $75.

      Hartwick & Foote, for appellant.

      Evans & Gale, for appellee.
   Grant, J.

(after stating the facts).

Error is assigned upon the introduction of a receipt for $43.75, dated May 4, 1895, and signed by the village clerk, and accompanied with an application for a license to run a ferry. It also certified that, at the time of receiving the money and application from plaintiff, the common council had not drawn any contract setting forth the rules governing the running of the ferry, or designating the amount of the bond to be given by the applicant. It is urged that this receipt did not tend to establish the right in which he claimed to be disturbed, since he claimed no license. Counsel for the plaintiff stated that their object in introducing it was to show that the common council had not provided any bond or contract to rule and govern the operation of the ferry. Limited to this purpose, we do not see how its admission could have prejudiced the defendant.

Plaintiff gave testimony as to the location of the ferry slips, and testified that he knew the location, ‘ ‘ because he had Mr. Grant sui-vey it, and saw him drive a stake, and Mr. Mears and Mr. Russell showed him where the corner of the block was.” This testimony was received without objection, and afterwards the defendant’s counsel made a motion to strike it out, which was refused. No reason was given for the motion, and it cannot, therefore, now be considered, under the rule in Rivard v. Rivard, 109 Mich. 98, and authorities there cited.

The court instructed the jury that “damages will not be mitigated or lessened by proof that the owner of the scow, after it was willfully unfastened and cast adrift, had neglected to take such measures as were in his power to recover and secure it.” It is claimed that there is nothing in the record to show that the scow was willfully unfastened and cast adrift, and the case of Montgomery v. Booming Co., 88 Mich. 644, is cited to support the contention. In that case nothing was done with the evident purpose of accomplishing the result which followed. In this case the act was done deliberately and intentionally. Probably, it would have been more accurate to use the word “intentionally,” but, inasmuch as the instruction limited the recovery to the actual damage sustained, it could not have prejudiced the jury.

The fifth error assigned is that the court refused to give each and every of defendant’s requests numbered 3, 7, 8, 10, and 12. These cannot be considered, because no exception to the refusal was taken. Thorn v. Maurer, 85 Mich. 569.

Error is assigned upon that portion of the general charge wherein the court stated to the jury that, if the plaintiff was on his own land, the defendant had ho right to go there, or to interfere with his property. It is true that the ownership of land was not in issue, but the result depended entirely upon the question whether the land was a part of the street, or was private property. The instruction was therefore correct.

We find no error, and the judgment is affirmed.

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


text:
    FIRST NATIONAL BANK OF ATHENS, OHIO, v. GARLAND.
    •1. Judgment—Validity—Identification of Parties.
    A judgment entry is not invalid because it designates the defendants only by reference to the title of the cause.
    2. Same—Warrant op Attorney—Extent op Authority Conferred.
    A warrant of attorney, purporting to authorize “any attorney at law” to confess judgment on a note in “any court of record,” is sufficient to sustain a judgment entered in a court of the State in which the warrant was executed, on confession of an attorney of such court, even though the warrant could be given no extraterritorial effect.
    3. Same—Issue of Process.
    A judgment entered on a warrant of attorney which expressly permits it without process is not within the provisions of the Ohio statute requiring the issue of summons as a condition precedent to the taking of judgment
    Error to Bay; Maxwell, J.
    Submitted April 23, 1896.
    Decided May 26, 1896.

      Assumpsit by the First National Bank of Athens, Ohio, against Michael Garland and others, upon a foreign judgment. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Van Kleeck & Anneke, for appellant.

      Simonson, Gillett & Oourtright {G. L. Collins, of counsel), for appellee Garland.
   Hooker, J.

This action was brought upon a judgment, rendered in favor of the plaintiff and against the defendants in the common pleas court for the county of Athens, in the State of Ohio, by confession of attorney, upon a note reading as follows:

“$5,000. Chillicothe, 0., May 29, 1894.
“Four months after date, we jointly and severally promise to pay to the order of George F. Hunter five thousand dollars, for value received, with interest at the rate of eight per cent, per annjim after maturity. And we hereby jointly and severally authorize and empower any attorney at law, in any court of record, at any time after the above note becomes due, to appear for us, or either of us, without process, in court, and confess judgment for the said amount, interest, and costs, in favor of the payee, legal holder, indorsee, or assignee hereof, and release all errors which may accrue in the rendition of such judgment.
“And we also release the right of appeal, the stay of execution, and the power and privilege to hold exempt from execution any personal or real property belonging to us, or either of us, at and after the date of such judgment ; and our said attorney is hereby authorized to enter such release in such judgment.
“National Cotton Seed Oil & Huller Co., “Per G. W. Washburn, Pt.,
“JohnW. Barger, Secy.
“John D. Milburn.
“T. H. Milburn,
“G. W. Washburn.
“R. T. Hough.
“John W. Corwin.
“John W. Washburn.
“M. Garland.
“A. J. Deiterich.
“Demand, notice, and protest waived.”
Indorsement: “George F. Hunter.”

A verdict was directed in behalf of the defendants, and the plaintiff has appealed.

In the circuit court the case turned upon the failure of the judgment entry to include the names of the several defendants, they being designated as ‘ ‘ said defendants ” by reference to the title of the cause. It is a general rule that an obscure judgment entry may be construed with reference to the pleadings and record. Foot v. Glover, 4 Blackf. 313; Fowler v. Doyle, 16 Iowa, 534; Bell v. Massey, 14 La. Ann. 831. In New Orleans, etc., R. Co. v. City of New Orleans, 14 Fed. 373, it was held that a judgment might be construed in the light of the opinion rendered. Numerous cases hold that a judgment for or against plaintiffs or defendants generally, the names being omitted, may be explained by a reference to the caption, record, or pleadings. McCartey v. Kittrell, 55 Miss. 253; Smith v. Chenault, 48 Tex. 455; Collins v. Hyslop, 11 Ala. 508; Finnagan V. Manchester, 12 Iowa, 521; Rood v. School District, 1 Doug. (Mich.) 502; Overall v. Pero, 7 Mich. 315.

Counsel for defendants claim that the Ohio judgment was void, and that the direction of the circuit judge was correct for that reason. As grounds for this it is asserted :

1. That the warrant of attorney was void, because too comprehensive, in that it attempted to confer the power to confess judgment upon any attorney in any court in the world.

2. That no valid judgment could be rendered in Ohio without process being issued.

We are cited to two cases in support of the first contention, viz.: Carlin v. Taylor, 75 Tenn. 667; Davis v. Packer, 8 Ohio Cir. Ct. R. 107. In the former of these, an action was brought in term upon a judgment by confession, rendered in Ohio, upon a warrant of attorney executed in Pennsylvania. This warrant empowered an attorney of record, “within the United States, or elsewhere,” to confess judgment, and it was said to be “void for its comprehensive uncertainty.” This was going further than the necessities of the occasion required, and the language quoted was qualified by the following:

“ As we have seen, the note and power of attorney was made in Pennsylvania. Giving to the law of that State its fullest operation, and conceding that, under it, the power to confess judgment might have been exercised within the lines of the State, that power will certainly not be extended to any State in which the holder may see fit to carry or transmit the paper, and have it there construed as constructive and effective notice of proceedings.for its enforcement by recovery of judgment for the amount stipulated in its terms to be paid. Otherwise, one State might, by its legislation, affect all the citizens of other States equally with its own, and require of these other States the application of its statutory laws to citizens of such other States, and who could not be brought within the jurisdiction of its courts. Such recognition would confer upon one State the power to prescribe rules of practice for all others. The Ohio court seems to have recognized such right, but, as we think, without authority of law, and without such purpose on the part of Pennsylvania.”

The Ohio case was one where the instrument was made in Chicago, and made payable there. An appeal was taken from a judgment entered in Ohio, and the question was whether the instrument authorized it. Like the instrument in the Tennessee case, the warrant contained no limitation as to where the judgment might be taken, the language being, “in any court of record.” The court said:

“It seems to us as bordering on the absurd to suppose that the parties to these instruments intended that judgments might be rendered on them in any court of the United States, or any court in the world. The note is made payable at a particular place in the city of Chicago, in the State of Illinois. It would seem strange that, after providing particularly as to place of payment, they had provided that judgment might be taken in any court of the world.”

Not only did the court not follow the suggestion of the court of Tennessee, that the provision was void, but it quoted with, approval the following language of Mr. Freeman, viz.:

“Mr. Freeman, in his work on Judgments, says, at section 545: ‘ While a warrant of attorney may doubtless be so drawn as to authorize a confession in another State, yet the intention to give authority to act beyond the State is not presumed; and, though some of the words used are sufficiently comprehensive to justify the attorney in acting in any State or country, yet, if there are words which appear to limit the authority to the State in which the warrant was executed, they will prevail.’ ”

It was held that the Ohio common pleas had no jurisdiction of the case.

In our opinion, it is unnecessary to go the length of holding warrants of attorney void because they purport to give authority to confess judgments in courts beyond the limit of the State where the instrument is executed. The authorities upon the subject are not all in accord with the case cited, and we see no reason why such instruments could not be held valid as to judgments confessed within the State where the warrant was executed. See Teel v. Vost, (N. Y. App.) 13 L. R. A. 796, and notes. In the case before us, the instrument purports to have been executed within the State of Ohio, and, though counsel for the defendants state that one of the makers executed it in Michigan, we are not advised that the record shows it. The judgment was rendered by a court of record of that State, within the terms of the warrant, upon confession of an attorney of that court, as appears by the judgment. The case, therefore, is not one presenting the question actually decided in either of the cases mentioned, and, in our opinion, the warrant of attorney was such as to confer necessary jurisdiction.

We think there is no merit in the other point. It is urged that the Ohio statute (sections] 5035 and 5060) precludes a judgment except upon the filing of a verified petition and issue of summons. We are of the opinion that these sections should not apply to a case where the warrant expressly permits judgment without process, as in this case. Section 5321 et seq. authorizes judgments by confession. A petition duly verified was filed, as the record shows.

The Ohio judgment being valid, the judgment is reversed, and a new trial ordered.

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


text:
    BOUGA v. TOWNSHIP OF WEARE.
    Highways—Knowledge of Defects—Contributory Negligence —Question for Jury.
    Whether one who was injured while driving along the highway at night was guilty of contributory negligence in forgetting a defect which he had noticed the morning before is a question for the jury, and the case should not be permitted to turn solely upon the question whether he in fact did or did not remember the defect.
    Error to Oceana; Russell, J.
    Submitted April 29, 1896.
    Decided May 26, 1896.
    Case by John Bouga against the township of Weare for damages sustained by reason of a defective highway. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Hartwick & Foote, for appellant.

      Evans & Gale, for appellee.
   Hooker, J.

The defendant, a township, appeals from a judgment in an action of negligence. Several questions are raised, but we think it necessary to discuss but one. The plaintiff was a liveryman, acquainted with the defect in the way, which consisted of a broken culvert with a board sticking up from it; yet he failed to caution the driver, his son, against it. The son and his companions noticed the defect, and drove around it, which was easily done, in the morning of the day of the accident. On their return in the evening, which was dark, they drove rapidly, and ran into it, and the vehicle was overturned and broken.

The court refused the following requests of defendant:

1 ‘ 12. Contributory negligence is such negligence on the part of the plaintiff as contributed to the accident. If this culvert was in a dangerous condition, and if these boys knew of its dangerous condition, such as would lead a prudent man to be on his guard when passing the culvert, and yet carelessly forgot that there was such a defect, and drove along at the rate of six to seven and a half miles an hour, on a dark night, until reaching the culvert, where they met with the accident, then they contributed to the accident, and your verdict will be for the defendant.
“13. If you find that, by slow and careful driving, the culvert could have been passed in safety, but that the accident was due in any way to the inattention and carelessness of these boys, and a knowledge of this defective culvert would have led a prudent man to be careful when passing this point, and that the driving of this team was not careful, under all the circumstances of the case, then there was contributory negligence, and the defendant is not liable.”

The instruction given was as follows:

“It is claimed here, and the evidence tends to show, —the evidence does show,—that this young man, who was driving the team, knew of this defect in the bridge, in the culvert. He knew it in the morning. Now, gentlemen, it is not necessary for a man traveling on the highways to spend his time in thinking that here is a culvert that I am going to tumble into, or there is one that I must look out for, or something of that kind; but, if this boy had this culvert in his mind, so, at that present time, he had knowledge of it, and then proceeded, why, he would be negligent, and, if that be the case, or if, under all the circumstances, he ought to have exercised more care than he did exercise to keep from running into it, why the plaintiff cannot recover at all, because, if his negligence in any manner contributed to this injury, why the plaintiff is not entitled to recover at all, because it is necessary that he should be diligent, as well as the officers on the other side.
“There has been some evidence given here with reference to the three tracks on this highway. Upon that point, gentlemen, you will take into consideration the width of the road,—the fact that the evidence tends to' show (and you will determine whether it does show) that this road was graded up in the middle,—the length of time that this culvert has been in the highway, and then say as to where a person exercising due care and caution ought to have traveled; and, if you find that that was the proper place, he had a right to travel on it.

After considering the case for a time, the jury returned, and the following occurred: The judge asked:

“Is there any part of the testimony that you desire read, or anything of that kind?
“Juror: No, we understood everything all right, but some thought that you in the charge,—some disagreed.
The Court: What point is there?
Juror: Whether you, in your charge,—whether you did or not say the boys, from the fact that they knew the condition of the culvert on their way to Ludington—
The Court: I think I know what you mean. I stated this: That the mere fact that they had knowledge that there was a defect there in that culvert, and that they drove back and got into it, that would not preclude them from recovering,—the mere knowledge. It is not necessary that a party driving along the road should keep their mind upon the spot where there is a defect. It is true that if, when he came along there, he was thinking of it, and knew of the defect at that time, and happened to think there was one there, and then continued to proceed and run into .it, of course, he would be negligent; but, if he was doing something else, and at the time did not think of it, but still was exercising due care, why he would be entitled to recover for all that. In other words, it is not necessary for parties driving along a street or road, simply because there is a defect in it and they have knowledge of it,—it is not necessary for them to keep their minds on that defect all the time for the purpose of keeping out of it.’
“Juror: Then I think, perhaps, that we might deliberate a little.
‘ ‘ The Court: Is there anything else, gentlemen ?
“A Juror: There is one point that I think is troubling some of us. It seems to be a sticker, right on that line, in regard to this speed which the boys were driving. There comes a matter of whether they were using due caution,— the darkness of the night and the speed. It is right on that point where this whole thing hinges.
The Court: That would be a question of fact, of course. I cannot assist you with reference to a question of fact. Ordinarily, a man driving on the road has a right to trot, or walk, or go as he may see fit to go. Of course, the fact that it was dark, as is well known to everybody, is a matter that should be taken into consideration by everybody who is driving; and that is purely a question of fact for you, gentlemen, to determine,— whether he was exercising due care or not.”

We think that the circumstances required that it be left to the jury to say whether it was negligent to forget this defect. The charge seems to leave the question of contributory negligence to rest upon the fact of the boy’s having the defect in mind, thereby leaving the jury to infer that it was not negligent to omit to bear the defect in mind. Certainly, one who should pass a broken bridge by a ford, in the morning, might be expected to remember the fact until night, and act upon such recollection. Whether or not it would be negligent to forget it, and drive upon the bridge, might depend upon circumstances, which would be for the jury to pass upon. It should not, in such case, necessarily turn upon whether he did or did not remember. The danger of a misapprehension of the charge in this particular was, perhaps, increased by what was said upon the return of the jury. We therefore feel constrained to reverse the judgment.

Ordered accordingly.

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


author: Long, C. J.

text:
    JENKINSON v. WINANS.

    1. Summary Proceedings—Landlord and Tenant—Extinguishment oe Title—Attornment.
    While a tenant cannot, during the continuance of the tenancy, dispute the title under which he obtained possession, he may show, in summary proceedings to obtain possession of the leased premises, that his landlord’s title has been extinguished by a sale of the land for taxes, and that he has attorned to the purchaser at such sale.
    2. Same—Jurisdiction—Question of Title.
    A circuit court commissioner should dismiss a summary proceeding brought before him to recover the possession of leased premises when a question of title is raised by defendant’s offer to show a sale of the land for taxes to a third party, to whom defendant claims to have attorned.
    Error to St. Clair; Vance, J.
    Submitted February 18, 1896.
    Decided June 2, 1896.
    Summary proceedings by John Jenkinson against Bert E. Winans to recover the possession of leased \premises. The commissioner found for the claimant, and from a judgment of the circuit court, affirming the decision, defendant brings error.
    Reversed.

      Cyrus A. Hovey, for appellant.

      Frank Whipple, for appellee.

       Rehearing denied July 8, 1896.

   Long, C. J.

This proceeding was commenced before a circuit court commissioner to recover possession of certain premises which the claimant claimed to own in fee. The commissioner found in favor of the claimant. The defendant thereupon removed the cause to the circuit court by writ of certiorari, where the findings of the commissioner were affirmed. The cause comes to this court by writ of error. _

It appeared before the commissioner that the claimant was the owner in fee of the land, and leased the same to the defendant at a rental of $9 per month. The defendant paid the rent to claimant for a time under his lease, when in June, 1895, he refused to pay any further rent, and claimed that he was holding the premises under one Laurence E. O’Neill, from whom he then rented the premises at the rate of $5 per month. It appeared, further, that O’Neill, in 1893, bid in the premises at a tax sale of that year for the taxes of 1891; that, after the sale to him, and while defendant was in possession under claimant, he filed a petition in the circuit court for the county of St. Clair, in chancery, where the lands where situate, for a writ of assistance. The petition for the writ, together with the auditor general’s deed for the premises, and the decree of the court ordering the sale, and also a written demand for the possession of the premises, were served upon Winans, whereupon Winans entered into a lease from O’Neill, and thereafter the petition was withdrawn, and the proceedings for the writ of assistance were dismissed. From the return of the commissioner it appears that the defense sought to be made by Winans there was that O’Neill had a paramount title, and that, by reason of his (O’Neill’s) demand for possession, defendant had the right to treat the demand as an ouster, and thereafter attorn to O’Neill, and that, being in possession, by reason thereof, under the lease from O’Neill, the claimant could not recover possession from him. That position is sought to be sustained in this court.

The general rule is stated in Byrne v. Beeson, 1 Doug. 179, as follows: “ A tenant cannot dispute the title of his landlord, nor, by his own act merely, change the tenure so as to enable himself to hold against his landlord. He cannot, during the continuance of the lease or tenancy, make a valid attornment to a third person.” This doctrine has been reiterated by this court many times since. Lee v. Payne, 4 Mich. 106; Blanchard v. Tyler, 13 Mich. 339; Ryerson v. Eldred, 18 Mich. 13; Fuller v. Sweet, 30 Mich. 337; Bertram v. Cook, 33 Mich. 518; Perrin v. Lepper, 34 Mich. 393; Nims v. Sherman, 43 Mich. 45. In the case last cited it was said by Mr. Justice Cooley: “ One who is a tenant in fact, it is justly held, shall not dispute the title under which he has obtained possession, even though he has since acquired a better title; but, when he has surrendered the possession obtained by means of the tenancy, he may at once turn about and try titles with his late landlord. ” Though the tenant cannot show that the lessor had no title to the premises when the tenancy commenced, he may show that the lands have been sold at tax sales, and the landlord’s title thereby extinguished. The estoppel extends only to the title which the landlord had at the time of leasing. If that title has been extinguished, it may be shown; for then the landlord has no right to the possession. As was said in McGuffie v. Carter, 43 Mich. 497:

“The rule is familiar that both tenants and those in privity, either in blood or estate, are estopped from disputing the title of the landlord, or the title of anyone who suceeeds to his rights, so long as they hold the possession originally derived from him. But this principle does not forbid the tenant from showing that the landlord’s title has expired, or has been extinguished by his own act or by operation of law,”—citing Lamson v. Clarkson, 113 Mass. 348 (18 Am. Rep. 498); Fuller v. Sweet, 30 Mich. 337; Hilbourn v. Fogg, 99 Mass. 11; Despard v. Walbridge, 15 N. Y. 374; Mountnoy v. Collier, 1 El. & Bl. 630, 16 Eng. Law & Eq. 333.

But in this case the commissioner, while excluding the evidence that would tend to show title in the defendant, continued to take cognizance of the case, and to try and determine the rights of the parties, and awarded restitution to claimant. When the question of title arose by the proofs offered, the commissioner should have dismissed the proceedings, as he had no jurisdiction to try the question of title. Butler v. Bertrand, 97 Mich. 61, and cases there cited.

The proceedings before the commissioner must be quashed, and the judgment of the circuit court reversed, with costs of both courts in favor of defendant.

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