text:
    MAINS v. HOMER STEEL-FENCE CO.
    1. Plea in Equity — Requisites.
    A plea to a bill in equity must reduce the cause to a single point.
    3. Same.
    This is properly done by averring facts not appearing on the face of the bill, or by denying specifically facts stated in the bill; a general denial of particular averments being insufficient.
    3. Same — Objections for Want of Equity — Demurrer.
    Objections to the equity of complainant’s claim as stated in the bill should be taken by demurrer, and not by plea.
    4. Same — Duplicity.
    A plea to a bill for an accounting and for a receiver, which raises the question of jurisdiction on two distinct grounds, and alleges that the charge of defendant’s insolvency is false, and also contains a general denial of all the material averments of the bill, is bad for duplicity.
    Appeal from Jackson; Peck, J.
    Submitted November 6, 189?.
    Decided April 5, 1898.
    Bill by John Mains against the Homer Steel-Fence Company, Charles R. Mains, and Horace V. Swartwout for an accounting and for other equitable relief. From a decree dismissing the bill on pleas in bar thereto, complainant appeals.
    Reversed.

      Frederick Mains, for complainant.

      Mains & Cavanagh, for defendants.
   Montgomery, J.

This is an appeal from a decree entered in favor of defendants on two several pleas, the one interposed by the individual defendants, Mains and Swartwout, and the. other by the defendant corporation. The question to be determined is the sufficiency of these pleas; but, for the proper understanding of this question, it is necessary to state somewhat at length the ■charges contained in the bill of complaint.

The bill alleges that on January 11, 1894, complainant, one George A. Aldrich, and the two individual defendants, Mains and Swartwout, formed a copartnership, to be known as the “Homer Steel-Fence Company,” and agreed that each member of the firm should contribute $1,050 to the capital stock; that complainant and Aldrich each paid a portion of their contributions to the capital stock, viz., two-thirds thereof, or $700 each, and complainant stood ready to contribute the balance of his share; .but that defendants and Aldrich, at the suggestion of defendant Charles R. Mains, “in violation of said agreement, and without the knowledge and consent of complainant, and without first requesting complainant to contribute the balance of his share,” borrowed, upon the credit of the copartnership (which credit is alleged to have been largely, if not wholly, due to the financial responsibility of complainant), the sum of $1,500, and that Charles R. Mains gave a writing to Aldrich, purporting to discharge him from his obligation to pay the balance of his share of the capital stock; and charges that neither of the defendants has contributed to the capital stock, except the sum of $7Q0 contributed by Aldrich, as before stated. The bill further alleges that Charles R. Mains is an attorney at law, a son of the complainant, and has for several years past been the regularly-employed counsel and attorney of complainant; that complainant was induced to enter into the copartnership agreement, relying upon representations of Charles R. Mains that Aldrich and Swartwout (particularly the former) were men of good business ability, and that they, as well as the said Charles R. Mains, were responsible financially, and relying on the promise of Charles R. Mains that the company would be kept free from debt, and that no other or further capital than that provided to be contributed would be necessary in carrying on said business, and that complainant would be incurring no financial risk in entering into said agreement. The bill further alleges that — ■

“The copartnership business was entered upon immediately, and was continued by Aldrich, as manager, until June 9, 1894, when, owing to a dispute and irreconcilable difference which had arisen between the said defendants and the said Aldrich in relation to the management of the business by the said Aldrich, and because, as your orator charges upon information and belief, of the desired purpose on the part of the said Charles R. Mains to secure the exclusive control and management of the said business and the financial affairs of said company, the defendants Charles R. Mains and Swartwout, without consulting your orator, and without his knowledge and consent, and in violation of the rights and wishes of your oiator and the said' Aldrich, assumed exclusive possession and control, as against said Aldrich, of the books, correspondence, office, business, and property of the said copartnership. Your orator shows that as a result of such action on the part of said defendants, and because thereof, the said Aldrich withdrew from said copartnership, selling his interest therein to the remaining copartners. Your orator shows that the treatment of the said Aldrich, as aforesaid, was wholly in violation of the desire and purpose of your orator, and that his final withdrawal from said company and the continuation of the business thereafter was only with the forced acquiescence of your orator; that your orator never agreed that the said remaining copartners, the said defendants and your orator, would pay the said Aldrich to exceed the sum of $2,000 for his interest as aforesaid, but, notwithstanding this fact, the said defendants Charles R. Mains and Swartwout caused to be executed and delivered to the said Aldrich, in payment of his said interest, the promissory notes of the said company in the aggregate sum of $2,150, payable to the order of the said Aldrich, and the same were soon after by him negotiated.
“Your orator further represents that, prior to the withdrawal of Aldrich, Charles R. Mains had frequently represented that the affairs of the company were in a prosperous condition; that he assured complainant that he would keep the finances of the company well in hand, and that in the future the business would pay its own way, and asked complainant to trust him (Charles R. Mains) to keep the company out of debt, assuring complainant that he was no more in favor of the company getting into debt than complainant; that, at such time and afterwards, complainant acquiesced in the continuing of the business, relying upon the representations made as aforesaid; that from June 9, 1894, to April 8, 1896, Charles R. Mains continued in possession and exclusive control and management of the business; that, soon after Charles R. Mains assumed the management of said business, the company became and was hopelessly insolvent, and that, during the nine months immediately following the formation of the copartnership, defendants and Aldrich borrowed at least $?,000, in addition to the $1,500 before referred to, on the credit of the firm; that upon learning of this indebtedness, and then learning for the first time that he might be held personally liable therefor, complainant protested, and was informed by Charles R. Mains that the defendants had deemed it necessary to contract the indebtedness, and that the money realized had been used in the business, but assured complainant that in the future it would be unnecessary to contract any further indebtedness; but that, notwithstanding this assurance, said defendants continued to contract further debts, and, upon the maturity of the debts previously contracted, secured an extension of time, and that still later complainant was obliged to extend his own individual credit by signing paper of said company in order to save the company from financial wreck-
“Your orator further shows that the company became more and more embarrassed, and its liabilities continually increased, and have continuously been far in excess of its assets; that owing to the unsatisfactory condition of the company, and the aforesaid mismanagement of the same, complainant made various attempts to sever his connection with the same; that he offered to transfer his entire interest to Charles R. Mains upon his (Charles R. ’s) promise to pay $700, and agreeing to save complainant harmless as regards debts, and also tried to get defendants to contribute each $1,000 (offering to do the same himself) to increase the capital stock, but defendants declined and circumvented complainant’s proposition by all manner of dilatory excuses, plausible pretensions, and fraudulent representations that the said company was in good financial condition, and that it would soon be free from debt.
“Tour orator further represents that at various times Charles R. Mains expressed a desire to incorporate the firm, and held out to complainant that, in subscribing to the stock, he (complainant) would incur no personal liability, and that the corporation would assume the payment of the partnership debts, and that, upon the debts being paid, complainant would be free from liability because of his connection with the copartnership; that in the month of August, 1895, complainant expressed a willingness to carry out the proposed arrangement in relation to incorporating the company, but that steps for the incorporation were delayed until February, 1896, when articles were prepared, and finally, on the 8th of April, 1896, complainant and defendants Mains and Swartwout signed the articles of association.”

These articles, state the amount of capital stock actually paid in at $100,000. The articles were recorded in the offices of the secretary of state and the county clerk of Calhoun county.

The bill further alleges that subsequently, on July 18, 1896, an agreement was executed between the parties (complainant still relying on the representations of Charles R. Mains) by which the copartnership transferred to the corporation all of its property, including patents, and the corporation assumed the payment of all the debts of the copartnership due and owing, or that might become due and owing, to John Mains, and accounts due Charles R. Mains for services, and further providing that any sum that the said John Mains should pay, growing out of the breach of the undertaking of the corporation to pay debts of the copartnership, should he payable forthwith, and draw interest at 7 per cent. This agreement is signed by the corporation, by “Charles R. Mains, Manager,” and by'the complainant, and by the individual defendants, comprising the corporation and the copartnership as well.

The bill further alleges that the complainant, relying on the supposed incorporation of the said copartnership, and the binding and legal effect of the agreement last above recited, and supposing that it was sufficient to bind the corporation to pay all the debts of the copartnership, and not simply the debts owing to the complainant, sold and transferred his one-third interest in the stock of the corporation to Charles R. Mains for $700, accepting the note of Charles R. Mains therefor, which note complainant still has, and is willing to return to defendant if the court shall so order or decree. The bill further alleges that, at the time of the incorporation, complainant requested of defendant Charles R. Mains that actual notice be given to persons with whom the copartnership had been dealing of the incorporation, but defendant Charles R. Mains assured him that it would be unnecessary, and that the record of the articles of association would he sufficient; that, however, Charles R. Mains promised to change the letter-heads and other stationery so as to plainly indicate thereon the incorporation of said company, but this, it is charged on information and belief, the defendant Charles R. Mains has persistently and fraudulently neglected to do, and that the defendants have studiously and fraudulently neglected to give any notice of the attempted transfer of stock by the complainant, and that complainant had attempted to sever his connection with the said Homer Steel-Fence Company, but, on the contrary, the said defendants have, by artifice and deceit, expressly and by implication conveyed the impression to creditors and others that complainant was still a member of said firm; that defendant Swartwout has recently stated to complainant that he claims, as matter of law and fact, that said attempted incorporation of said company was a mere nullity, and that complainant and defendants were still liable as copartners for the obligations and contracts since the attempted incorporation.

The 'bill further alleges that no meeting of the stockholders was ever assembled; that the subscribers to the stock never met and appointed any one to act as the agent or representative of the corporation; that no by-laws were ever adopted; that no seal has been adopted; that no record was ever made of any proceedings of the corporation -r that Charles R. Mains still neglects to give actual notice of tbe attempted incorporation of said company, alleging as an excuse therefor that it might result in said Homer Steel-Fence Company being obliged to pay certain corporation taxes or fees for the privilege of doing business in other States; that, since the attempted incorporation, the business has been done by Charles R. Mains, assuming to act as manager, and that he, as such, signs the name of the Homer Steel-Fence Company to negotiable promissory notes, but without indicating whether such obligations are those of the copartnership or corporation, except by appending in some instances the term ‘£ Manager ” to his name; that, so far as the complainant has acquiesced or assented to the conduct of said defendants since the incorporation, it has been because of his reliance on the advice, counsel, and representation of the said defendants, and particularly Charles R. Mains, and in further reliance that the transactions relative to such incorporation were legal, and that not until recently did complainant learn that the legality of such transactions was questionable. Tbe bill further alleges the indebtedness of the Homer Steel-Fence Company to compláinant and others, aggregating $17,000;. alleges that the assets, aside from patents, amount to $12,-820, and that this latter sum includes the accumulated bad debts of the concern; that suit has been brought against the corporation; that on learning of the questionable legality of the attempted incorporation, and of said attempted transfer of stock, complainant applied to Charles R. Mains to be permitted to participate in the prosecution of the business of said company, and that complainant be restored to his rights as copartner, but this was denied; that complainant protested against signing said articles of incorporation, because of the large amount of capital stock designated in said articles as paid-in stock, but was finally induced by said Charles R. Mains to sign the same, he claiming and representing to complainant, and advising him, that he would incur no personal liability, and that the assets of the copartnership to be turned over to the corporation were well worth $100,000.

The prayer of the bill is as follows:

“That an account may be taken of all and every one of the partnership dealings and transactions, from the time of the commencement thereof (up to the time of the formation of said attempted incorporation), and also an account of all the moneys received and paid by your orator and the said defendants, or either of them, respectively, in regard thereto, your orator being ready and willing and hereby offering to so account; and that the said partnership may be dissolved, and its affairs wound up, and its assets devoted first to the payment of its creditors, and balance remaining distributed among the several partners, as their interests may appear; and if it shall appear to the court that a corporation was legally organized, by virtue of the acts and proceedings hereinbefore set forth, then that the said corporation be dissolved by reason of its insolvency and fraudulent inception and practices, as hereinbefore set forth, and its assets and business and affairs committed to a receiver, to carry on the business thereof, for the purpose of winding up its affairs, and paying the indebtedness of said partnership under the agreement hereinbefore set forth, and its own indebtedness; and that, in case it shall appear to the court that no corporation de facto or otherwise exists, then that there be a partnership accounting of the entire business of said partnership, as hereinbefore prayed; and that in the meantime the said defendants may be restrained, by the order and injunction of this honorable court, from collecting or receiving any partnership debts or other moneys; and that some proper person may be appointed to collect and receive the same.”

This is followed by a prayer for injunction restraining defendants from receiving any moneys due, or from selling any property except in the usual course of trade, and by prayer for subpoena. The bill also contains a prayer for general relief.

It will be seen from this extended synopsis of the bill that complainant’s equities, if he has any, grow out of transactions arising after the attempted incorporation, or out of alleged imperfections in the incorporation, or fraud practiced upon him in connection with the incorporation. The previous history of the copartnership dealings is unimportant, except as that history bears upon these questions, as it is not alleged that the complainant was uninformed as to the condition of the company and its indebtedness when the articles of incorporation were signed by him.

The following is the plea of the defendant corporation:

“The plea of the Homer Steel-Fence Company, a corporation, to the bill of complaint of John Mains, complainant: This defendant, by protestation, not confessing or acknowledging any or all of the matters or things in the complainant’s said bill mentioned to be true in such manner and form as the same are therein and thereby set forth and alleged, doth plead thereunto, and for plea says: That by the transfer of the interest of the partners and the copartnership heretofore existing between said John Mains, Charles R. Mains, and Horace Y. Swartwout, the said Homer Steel-Fence Company, as a copartnership, the Homer Steel-Fence Company, as such corporation, became possessed of, and is now the owner of, and by virtue of the said transaction claims all the right, title, and interest in, any and all of the property theretofore owned by said co-partnership; and included in said assets so transferred to it (said corporation) by said copartnership are certain lands and real estate lying in the city of Battle Creek, county of Calhoun, State of Michigan, and the tenements and hereditaments situated thereon, including-factory building, which land is described' as follows, to wit: ‘City lots 171, 172, 173, and the east half of lot 174, of A. C. Hamlin’s addition to the city of Battle Creek, as appears by the plat of said addition, recorded in the office of register of deeds of the county of Calhoun,’ — which said land, with the buildings thereon, is of great value, to wit, valued at $2,500, and of which land the said Homer Steel-Fence Company, a corporation, would be the legal and equitable owner; and this defendant pleads in bar of this, to wit, that owing to the fact that the title and ownership of said land is involved, and in the determination of this case would be disposed of, and it would not be possible to dispose of the case on any theory of it without disposing of the right, title, and ownership of said land as between said copartners and said corporation, or by the disposing of the land in the winding up of the affairs of this corporation, and because thereof, defendant alleges, in bar of this suit, that, for said reason, this court has not, and under the law of this State cannot acquire any, jurisdiction to dispose' of and determine this case and the issues involved in it; that, the issues involving the.title of said land, and to dispose of it, being local, the said Battle Creek being the home office of said corporation, and it being a resident of said city, under the law of this State, the circuit court for the county of Calhoun, in chancery, is the only court possessed of and entitled to entertain jurisdiction of the subject-matter of this suit. The transfer of said property (land) to this defendant having been made in good faith and for a valuable consideration, and without any fraud, concealment, or deception, the title to said land is legally and equitably vested in this defendant; and defendant denies in this connection any and all charges of wrongdoing, fraud, misrepresentation, or other wrong alleged in complainant’s bill, which could or might entitle him in a proper court to equitable relief and consideration.
' ‘ And for answer to the remainder of complainant’s said bill, this defendant says that, in justice and equity, the complainant is not entitled to any relief, and hereby expressly denies each and every one of the material allegations of complainant’s bill that would in any manner entitle him to equitable relief, or the right to maintain this case; and the defendant alleges that the charge of insolvency is absolutely untrue and false, as this defendant can maintain and prove; and said bill should be dismissed, and this defendant discharged, with its reasonable costs in and about the defense of this suit sustained. Therefore this defendant doth plead the same in bar to the entire action of the complainant, and to the entire relief prayed in the complainant’s bill, and prays the judgment of this honorable court whether it should be compelled to make any further answer to the whole or any part of said bill, and prays to be hence dismissed, with its costs and charges in this behalf most wrongfully sustained. ”

The plea of defendants Mains and Swartwout is as follows:

“The plea of Charles R. Mains and Horace V. Swartwout to the bill of complaint of John Mains, complainant: These defendants, by protestation, not confessing or acknowledging the matters or things in and by said bill set forth and alleged to be true in such manner and form as the same are thereby and therein set forth and alleged, for plea to the whole of said bill, say: That for a valuable consideration to these defendants and said complainant, John Mains, duly paid by the Homer Steel-Fence Company, a corporation, these defendants and the said John Mains, then and there composing the Homer Steel-Fence Company, a copartnership, then and there, and for said consideration, as aforesaid, by an agreement dated on the 1st day of May, 1896, freely and in good faith executed and delivered to the said corporation, said Homer Steel-Fence Company, the contract and agreement set out in complainant’s bill of complaint, and thereby, and for such consideration, then and there transferred all right, title, and interest of these defendants and said complainant, comprising the said Homer Steel-Fence Company, a copartnership, to the said Homer Steel-Fence Company, a corporation, and the said complainant and defendants then and thereby transferred any and all interest of every name and nature in and to all the property, real, personal, and mixed, of said copartnership, and thereby divested themselves of all title thereto > and because thereof said Homer Steel-Fence Company, a corporation, became and then was invested with all of the right, title, and interest thereto, and these defendants and complainant, as said copartners, lost all right and authority over and to the title and possession of said property, and complainant and each of these defendants thereby lost and parted with all right to demand of or from any person possession or an accounting for said property, or any part of it, the amount or extent thereof, and the right to demand an accounting in relation to said property thereby became invested in the Homer Steel-Fence Company as a corporation, and any and all other persons thereby were divested of said right.
“Defendants say and allege that said transfer was made in good faith, without any fraud or concealment, for a valuable consideration, and for the mutual benefit and best interest of all concerned therewith; and because of such transaction, the good faith and valuable consideration upon which it is based, the said complainant, these defendants, and every one connected therewith, is denied the right to, and should be estopped from, setting up any right, title, or interest in any of said property as against the Homer Steel-Fence Company, a corporation, and should be estopped from denying the legal existence of said corporation; at the date of such transfer, these defendants and complainant knowing each and every one of the facts as they existed then, and are existing now.
“In answering said bill, these defendants expressly deny each and every one of the allegations of fraud, misrepresentation, and other wrong charged in complainant’s bill of complaint, and every allegation that would in any manner, under any circumstance, and any theory in this case, entitle the complainant to relief, equitable or otherwise, in this court.
“And defendants allege that complainant has parted with all his title, right, and interest that would have enabled him otherwise to have maintained this suit for a partnership accounting, and that these defendants, as individuals, are not interested in any other matter in litigation in this suit; they being improperly joined as defendants if complainant claims to have filed this bill as a creditor, under the statute, asking for the winding up of the affairs of said corporation; they, as individuals, not being interested as individuals, could not legally be joined.
“And, further answering, these defendants allege that said corporation claims to be the legal and equitable owner, and is the legal and equitable owner, of all of the copartnership assets owned by said copartners before the making of said agreement before mentioned, and that a part of said assets consists of land described as lying and being in the city of Battle Creek, county of Calhoun, State of Michigan, and specifically described as lots 171, 172, 173, and the east half of lot 174, according to the plat of A. C. Hamlin’s addition to the city of Battle Creek, of great value, to wit, the value of $2,500, and that the home office of said corporation is at the city of Battle Creek, aforesaid, and that it is a resident of said city; and these defendants, in answer, allege that the circuit court of the county of Calhoun, in chancery, is the proper court and has jurisdiction to settle and dispose of the matters and controversy in complainant’s bill mentioned, and that this court has no jurisdiction. Therefore these defendants do plead the same in bar to so much of said complainant’s bill as is hereinbefore in particular mentioned, and pray the judgment of this honoraole court whether they should be compelled to make any further answer to said bill as is hereinbefore pleaded to, and pray to be hence dismissed, with their costs and charges in this behalf most wrongfully sustained.”

Are these pleas double? The rule is well settled, that a plea to a bill in equity must reduce the cause to a single point. 6 Am. & Eng. Enc. Law, 791; Story, Eq. PI. § 652; Albany City Bank v. Dorr, Walk. Ch. 317. This is properly done by averring facts not appearing on the face of the bill, or by denying specifically facts stated in the bill, — that is, stating that a certain fact is not as stated in the bill, — when the effect of such denial is to reduce the caseto a single point in bar. Farley v Kittson, 120 U. S. 303. If this be attempted, the defendant is required to deny the specific facts alleged in the bill, and may not content himself by a general denial of particular averments. Goodrich v. Pendleton, 3 Johns. Ch. 384. Nor are objections to the equity of complainant’s claim as stated by the bill to be taken by plea. This must be done by demurrer. Farley v. Kittson, supra. If this bill be taken as true, complainant occupies the position of creditor of the corporation, and, as such, is entitled to take proceedings, under sections 8150 and 8152, 2 How. Stat.

This bill asks for a receiver, and also an injunction. The plea of the corporation seeks to raise two questions: (1) The question of jurisdiction, resting on two grounds, and (2) the question of insolvency of the corporation,— and also contains a genei’al denial of complainant’s averments. The plea of the other defendants sets up estoppel, the question of jurisdiction, and also certain sweeping denials of complainant’s averments. The pleas are each double, and should be overruled.

The case may be remanded to the circuit for further proceedings.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    BUTTS v. CITY OF EATON RAPIDS.
    1. Defective Sidewalks — Evidence—Instructions.
    ■Where the plaintiff, in an action for injuries sustained by falling upon a defective sidewalk, testified that the place where she fell was only three or four feet west of a certain private walk, and her husband testified that he found the walk broken, and the boards and. stringers rotted, at such point, and defendant’s witnesses claimed that the defect which caused the injury was located some 13 feet west of the private walk, and consisted of a board which had been broken only a short time before the accident by a heavily-loaded wagon passing over it, but which was otherwise comparatively sound, — the court properly refused to charge that the “undisputed evidence” showed the facts to be in accord with defendant’s theory.
    3. Same — Notice—General Condition — Inadequate Repairs.
    Evidence that a walk in front of certain premises had been, for its full length, in a rotten and loose condition for some six months previous to an accident thereon, is admissible on the question of notice, even though it appears that some repairs were made upon the walk two months before the accident, where there is testimony tending to show that the general condition of - the walk was not improved by the repairs.
    3. Personal Injuries — Evidence—Exclamations of Pain.
    Former decisions of the court upon the admissibility of evidence of exclamations of pain by a plaintiff suing for personal injuries are referred to with approval.

      Error to Eaton; Smith, J.
    Submitted January 4, 1898.
    Decided April 5, 1898.
    Case by Mary E. Butts against the city of Eaton Rapids for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. O. Markham and John M. Corbin, for appellant.

      J. B. Hondee and Garry (7.. Fox, for appellee.
   Long, J.

This action is brought to recover damages for injuries sustained by plaintiff which she claims to have received by stepping upon a broken board, or by catching her foot in a broken plank, causing her to fall. The place where the accident is claimed to have occurred is described as being upon the north side of East Hamlin street, in front of property owned by D. B. Hosier. The declaration charges that this walk in front of these premises had been for six months in a broken, dangerous, and unsafe condition, the planks rotten, broken, loosened, and displaced ; that the stringers had become rotten and decayed, and the nails rusted and broken; that the city had due notice and knowledge of the dangerous condition of the walk, and, after such notice and knowledge, had sufficient time to put the same in repair prior to the time of the injury complained of.

It appears that the plaintiff, in company with one Mrs. Lavilla Boatman, was going along this walk on the morning of October 14, 1895, when she claims the injury occurred. She testified:

“We were going to our work. I stepped on a board, and the board went down with me, and I tried to save myself, and in some manner, I don’t know, I think my toe on the left foot caught, and it threw me, and I stumbled. I tried to save himself, and it threw me very hard against the edge of the walk.”

She describes the place where she fell as being about three or four feet west of the walk that leads up to the Hosier house. Mrs. Boatman was called as a witness for plaintiff, and testified that the place where plaintiff fell was 11 or 12 feet west of the walk that leads to the house; that she saw plaintiff fall, but could not describe, how she fell; that before the fall she had seen no broken board, but that after the fall she saw a broken board, and she and plaintiff threw it out of the walk; that the board was not broken straight across; that she visited the premises after the accident, with Mr. Butts, Mr. Hendee, and her husband, and pointed out the place, fixing it 11 or 12 • feet west of the walk leading to the house. Plaintiff’s husband testified that he went to the place of the accident with Mrs. Boatman and her husband. He says that he found the broken board, and a part of it thrown out, about the width of the walk west of the walk leading up to the Hosier house; that he examined this board, and found it rotten on the underside, and the stringer under it very much decayed; that this board was broken diagonally across; that he laid it down in the place it had apparently come out, and this place was where the plaintiff described the injury as having occurred. He also testified that he found other boards west of these that were loose, and tipped backward and forward when they were stepped on. There was also other testimony tending to corroborate the plaintiff in reference to the general bad condition of the walk, and which will be spoken of later.

The defendant introduced testimony tending to show that on October 12th, two days before the injury, some man whose name was unknown drove a wagon loaded with wood across this walk at the point where Mrs. Boatman testified that the accident occurred. Mrs. Hatfield, who lived in a part of the Hosier house, testified that she saw this man drive the load of wood across the walk, at about 12 feet west of the walk that leads to the Hosier house, on Saturday afternoon before the injury, about 4 o’clock. She told the man not to drive across there, as he would break the walk. When he drove across she heard the boards crack. Mr. John Hatfield testified that he was over this walk 10 or 15 minutes after the plaintiff was injured. He saw the broken board at the point testified to by Mrs. Boatman, and saw the tracks indicating that a narrow-tired wagon had recently crossed the walk at that point; that he put in a new board there on the next day. Alderman Jenne testified that the next day after the injury he visited the place with Aldermen Miller and Crawford; that they saw where the new board had been put in; saw the wagon tracks, which were yet fresh, across the walk; and that there were no other broken boards in the walk west of the Hosier house. Mr. Boatman viewed the premises within a few minutes after the injury. He went with his wife, Mr. Hendee, and Mr. Butts. He saw the fresh wagon tracks about 11 or 12 feet west of the walk, saw tbe broken board there, and found no other defect. Edward Britton, the former city marshal, testified that he heard of the injury to plaintiff, and soon- thereafter went over to the place; that he found the board out at the place testified to by Mrs. Boatman; that he fixed it up temporarily; that he saw the fresh wagon tracks there of a narrow-tired wagon. None of these witnesses found, as they claim, any other board out of the walk, or any defect in the walk, except at this place. It appears from the testimony that the city, in the August preceding, had notified Mr. Hosier to repair this portion of the walk, and that he had repaired it then, and that the walk was accepted by the city.

The court charged the jury that, if they found the injury occurred on account of a defect in the walk made by the passing over it of a team and loaded wagon on Saturday afternoon or evening previous to the injury, and that the city did not have actual notice or knowledge of such defect, and reasonable time after such notice or knowledge to repair it, then it would not be liable. Counsel for defendant had asked the court to charge that the undisputed evidence showed that plaintiff was injured by stepping on the plank that was broken the Saturday previous, and that, it being in an outlying portion of the city, plaintiff could not recover. This was refused. After verdict and judgment in favor of plaintiff, a motion for new trial was made upon the ground, among others, that the verdict was against the evidence. This was denied. Claim is now made that the court should have granted a new trial for the reason above given.

We are not prepared to say that the court erred in this. There was evidence tending to show that the plaintiff was injured at a place east of the point where the wagon passed over. The plaintiff testified to it, and her husband corroborated .her testimony. He also testified that the board he found was rotten, while the other witnesses testified that the board which the wagon passed over was comparatively sound. We think the court very properly .submitted that question to the jury under the evidence produced upon the trial.

The court permitted the plaintiff to give evidence of the condition of this walk in front of the Hosier place during the fall, summer, and spring previous to the injury. It is claimed that, inasmuch as the city had caused the walk to be repaired in August previous to the injury, this testimony was misleading to the jury. There would be some force in this contention if it had not appeared by the testimony of witnesses that the walk continued to be in about the same condition after the claimed repairs were made. The witnesses testified that this walk, during the fall, summer, and spring previous to the injury, was in bad condition its entire length in front of the Hosier premises; that the boards were rotten and loose, and would rock under the foot while walking over them; that the sleepers were rotten; that the walk was built in 1882 or 1883. Testimony was then given tending to show that, while Mr. Hosier made some repairs by putting in a new board where one was badly broken, yet the general condition of the walk remained about the same when the injury was received. One of the witnesses said:

“In a few places they mended the boards where the horses went over. They put in some second-rate lumber, and repaired that. * * * They would nail down a place, and maybe in a day or two you would find that same place would roll with your feet, and, when you would go to walk, would catch your toes. You could pick up the board maybe, and turn it around. I have picked up boards, and tried to fasten them in, so I could get over carefully.
“Q. This continued up to the time of the accident?
“A. Yes, sir.”

The only purpose of this testimony was to show negligence and notice to the city. The court confined it to that, and we think there was no error in permitting the plaintiff to go back over a period of six or eight months to show the walk’s general bad condition.

It was not error to allow the plaintiff to show that the whole length' of the walk in front of the Hosier premises was out of repair during this time. Those were the premises described in the declaration, and the claim was made that the general bad condition of the whole walk was such that the city should have found and repaired the place where the plaintiff was injured. The entire walk was all built about the same time, some 12 or 13 years before the accident. This rule is supported by Campbell v. City of Kalamazoo, 80 Mich. 660, and other cases in this court.

It is contended that the court was in error in permitting certain testimony as to exclamations of pain by the plaintiff. The injury seems to have been a very severe one. The plaintiff was confined to her house and bed for a considerable length of time. She was attended by physicians, and consented on the trial that her own physician might testify to her condition, such as he found it from his examinations. He testified to certain exclamations of pain. Other witnesses also testified to such exclamations. Many of the questions relative to this testimony were objected to on the ground that the time was too remote. We have carefully examined the whole case in reference to this testimony, and find no error in admitting it. These questions have all been passed upon heretofore, and need m> discussion here. In McKormick v. City of West Bay City, 110 Mich. 265, the general rule is laid down as to what is admissible in such cases, and need not be repeated here. See, also, Strudgeon v. Village of Band Beach, 107 Mich. 496. We find nothing in the testimony as to such exclamations but what comes within the rule there stated. We think no other questions need be discussed.

The judgment is affirmed.

The other Justices concurred.


text:
    SHERIDAN v. PENINSULAR SAVINGS BANK.

    1. Breach oe Contract — Chancery Appeal — Evidence.
    So much of a decree as awarded damages to complainant, based upon a finding that, as a part of the contract between the parties, defendants were to make certain advances to aid in its performance, which they failed to do, was reversed, as not warranted by the evidence.
    2. Vendor and Purchaser — Insurance—Right to Fund.
    A vendee in a land contract requiring him to keep the premises insured, who takes out insurance payable to himself as his interest may appear, is entitled to the proceeds of the policy, as between himself and the vendor, where the damage sustained is repaired by him at his own expense.
    Appeal from Kent; Adsit, J.
    Submitted January 5, 1898.
    Decided April 5, 1898.
    Bill by Thomas J. Sheridan against the Peninsular Savings Bank of Detroit, and others, for the cancellation of a contract and for other relief. From a decree for complainant, defendants appeal.
    Modified.

      Tbe following is the contract referred to in the opinion:
    “Memorandum of agreement, made this 24th day of March, 1896, between Thomas J. Sheridan, of Grand Rapids, Kent county, Michigan, party of the first part, and Charles I. Farrell and Frank Howard, of Detroit, Michigan, and S. H. Lasley, of Muskegon, Michigan (constituting a committee heretofore appointed to bid in and sell the Whitehall Lumber Company’s sawmill property at Cheboygan, Michigan, in the foreclosure suit of S. H. Lasley, Trustee, v. The Whitehall Lumber Company and I. M. Weston, of Grand Rapids, Michigan), parties of the second part, witnesseth that—
    “ Whereas, the said first party has heretofore made a proposition to purchase the property of the said Whitehall Lumber Company, and to make certain improvements thereon, which is hereby deemed a part hereof, and is desirous of obtaining immediate possession for the purpose of making such improvements, and in order to close contracts for the sawing and manufacturing of lumber, as well as other purposes; and—

      “Whereas, the parties of the second part are desirous, in case said Whitehall. Lumber Company’s property be bid in by them, or by anybody in their behalf and interest, of selling the same to the said party of the first part, and are therefore willing that said party of the first part should have immediate possession of said property for the purpose of making the improvements contemplated, and running and operating said plant until said foreclosure sale; and—
    ‘ ‘ Whereas, in order to effect said sale, the property will have to be hereafter advertised, thereby necessitating a delay until on or about July 1st next, at which time it will be too late to make the repairs contemplated, or to obtain contracts for sawing and manufacturing lumber for the season of 1896:
    “Therefore it is hereby mutually agreed as follows:
    “ (1) That the said party of the first part hereby agrees to purchase said property, known as the ‘ Whitehall Lumber Company’s Property,’ consisting, generally, of mill, land, booms, machinery, appurtenances, water rights, privileges, easements, and advantages, intending to constitute the entire plant and outfit of the said Whitehall Lumber Company at Cheboygan, Michigan, from the said parties of the second part, in case it be sold to them, or anybody in their behalf and interest, and to pay therefor the sum of twenty-nine thousand ($29,000) dollars over and above the improvements to be placed thereon, which payment shall be made as follows: Twenty-five thous- and ($25,000) dollars thereof to the said parties of the second part, or to whomsoever they shall direct, and four thousand ($4,000) dollars thereof to Thomas F. McGarry, of Grand Rapids, Michigan, or to whomsoever he shall direct, — which payment shall be made as follows: Twenty (20) per cent, two (2) years from date hereof, twenty (20) per cent, three (3) years from date hereof, thirty (30) per cent, four (4) years from date hereof, and the balance five (5) years from the date hereof, with interest thereon at the rate of six (6) per cent, per annum upon all sums unpaid, payable semi-annually.
    “(2) And the said party of the first part further agrees, in consideration of the premises aforesaid, to improve and place improvements upon said property during the year 1896 in manner and form satisfactory to said party of the first part, not less than three thousand ($3,000) dollars, nor exceeding in amount the sum of six thousand ($6,000) dollars, and to immediately, upon obtaining possession, commence making such improvements; also, to pay all taxes on said property from the date hereof, and to keep the said property insured in amount of fifteen thousand ($15,000) dollars in good board insurance companies, which amount may be decreased in proportion as the principal is reduced by payment.
    “(3) And the said parties of the second part hereby agree, in consideration of the premises aforesaid, in case they purchase or bid in said mill at said foreclosure sale, or in case the same be bid in or purchased by any person or persons in their behalf and interest, they will immediately close contract with said party of the first part for the sale and purchase thereof, retaining the title in themselves until paid for, upon the terms and conditions above set forth. And it is further agreed that the said party of the first part may take immediate possession of said sawmill property for the purpose of making the necessary repairs and improvements, as well as for doing any other business during the coming sawing season, and may operate said mill until said foreclosure sale is made.
    “(4) And it is further agreed that, in case the said second parties, or any one in their behalf or interest, should not become the purchaser or purchasers at said sale, and said property should be sold to some third or outside party, who will not carry out the above-mentioned contract, then, in that event, the said party of the first part shall be entitled to have refunded from proceeds of sales of the property to him, from the avails of said property, from the said parties of the second part, all moneys expended for repairs and improvements, insurance and taxes, and any other necessary expenditures or disbursements, together with ten ($10) dollars a day for his time spent in or about said business, and to be relieved and saved harmless from any contracts for repairs, betterments, or improvements which may not at any time be fully consummated or concluded, as well as to be indemnified and saved harmless from any and all sawing contracts for the sawing or manufacture of lumber, at not less than two ($2) dollars, which said party of the first part may prior to that time enter into, said party of the first part paying ten ($10) dollars per day rental for the use of said mill and property for each and every day that same shall have been operated; which payment to said first party by said second parties shall be made within a reasonable time after such sale, the said first party retaining possession of said mill and operating the same until said payment shall be made.
    ‘ ‘ In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.
    “ C. I. Farrell.
    “Frank Howard.
    “Thomas J. Sheridan.
    “S. H. Lasley.”

      Uhl, Hyde & Earle, for complainant.
    Brennan, Donnelly & Van De Mark, for defendants Peninsular Savings Bank of Detroit and Frank Howard.

      U. Grant Race, for defendants Home Savings Bank of Detroit and Charles I. Farrell.

      Kingsley & Kleinhans, for defendants Whitehall State Savings Bank and S. Henry Lasley.

      George W. Bell, for defendants First National Bank of Cheboygan and W. J. Stewart, Jr.

      George W. Radford, for defendant First National Bank of Chicago.

       Rehearing denied June 28, 1898.

   Long, J.

This bill is filed to cancel a certain contract and for an accounting. It appears that the -Whitehall Lumber Company, in January, 1893, owned a sawmill plant at Cheboygan, this State. It had become largely indebted, and to secure that indebtedness made a trust mortgage for about $54,000. The Whitehall State Savings Bank was the principal secured creditor, holding about 60 per cent, of the indebtedness. The other defendant banks and defendant Stewart were the other beneficiaries. S. Henry Lasley was named as trustee. Isaac M. Weston was president of the Whitehall Lumber Company, and indorser upon a large amount of the paper secured by the trust mortgage. The pxuperty was to be sold under this mortgage, when, on March 12,1896, the following written authority to act was xnade:

“We agree that Charles I. Farrell and Frank Howard, of Detroit, and S. H. Lasley, of Muskegon, Michigan, shall be a committee representing the creditors under a mortgage to S. H. Lasley, trustee, covering the Whitehall Lumber Company’s sawmill px-operty at Cheboygan, Michigan, which is soon to be sold under said mortgage, to bid in said property, in the name of some person to be selected by them, in behalf of said creditors, for $25,000, unless a better bid is made; and said committee shall have power and authority to resell the said property to the best advantage at a price not less than $25,000, or they may operate or lease said sawmill property in case it cannot be resold.”

This agreement was signed by .all the bank defendants and by defendants Weston and Stewart. The property was purchased in at the foreclosure sale on June 5, 1896, in the name of Mr. Farrell, and a deed subsequently given on such sale.

The complainant’s claim is that in January, 1896, and before Mr. Farrell took title to this property, one Charles F. Cobb, of Grand Rapids, claiming to have this property for sale, made representations to him of its great value, and offered to sell it for $35,000; that, upon a written statement made by Mr. Weston, which Cobb produced, he went to Cheboygan, and looked the property over; that on his return he wrote Cobb, if the owners would put in a new battery of boilers and smokestack, he would take the property at the price named; that, after this letter was written, complainant had an interview with defendants McGarry and Weston, who complainant now claims represented the mortgage creditors at that time, and then made the same proposition to them which he had made in his letter to Cobb; that Mr. Weston refused to submit this proposition; that he then submitted to Weston the proposition that the owners furnish $3,000, as he estimated it would require,about $7,000 to complete the necessary repairs. In this proposition complainant proposed, if the owners would furnish that amount:

“I will give them security on my block on Kent street, this city, for same, and purchase the mill at the price named, — I to get credit for the $7,000 needed to repair the mill; I to pay the $3,000 loan advanced on my block within 20 months from date of contract.”

Complainant claims that this proposition was objected to by Mr. Weston on the ground that, if a battery of boilers not paid for was put in, and the complainant failed to pay, it would be taken out of the mill, and leave it unfit to run; that a new proposition in writing was then submitted to obviate that objection, in which the old boilers were to be left in and repaired, and certain other improvements made, which complainant claimed would give 75 additional horse,power. This writing then stated:

“This, although not giving us the necessary horse power for a double band mill, will give us about 60 horse power more than there is at present, and, with the Allis hog, which I intend to put in for cutting up edgings and other refuse to mix with the sawdust for fuel, will give a much better and steadier fire, and consequently the old battery should furnish more steam than it has heretofore. In regard to payments on the mill, as I have no stock of logs on hand, I would not want to pay more than the interest, taxes of the current year, and improvements the first year,” etc.

On February 3, 1896, a new proposition was submitted, in writing, which recites the condition of the mill, the needed improvements and repairs, that it would take about $7,000 to make them, that complainant would make them if the owners would loan him $3,000 on his Kent-street property, and that he would take the mill at the price named, and would pay the loan within 20 months. ' It also mentioned the same mode and terms of payment as the other proposition. Complainant contends that this proposition was satisfactory to Mr. Weston, who then said he wanted but two things more, and he would go to Detroit and see the banks: First, a statement of complainant’s reputed worth; and, second, an estimate of the cost of these repairs; that the estimates as to cost of repairs were furnished, and also a statement showing that complainant was a man of considerable means, but had no ready money; and that Mr. Weston took these propositions to Detroit, and, on returning, said the parties were satisfied.

It is further claimed that Mr. Weston told the Detroit creditors that the complainant had made a proposition to purchase, but to make no cash payment, — the improvements to stand as first payment. It is further claimed that Mr. Haass, who represented the Detroit creditors, did not inquire whether this proposition was in writing or not, but that he afterwards came to Grand Rapids, and met complainant, Weston, McGarry, and Cobb; that an understanding was had before that between McGarry, Weston, and Cobb that they were to have $4,000 as commissions on the sale to complainant; that, while Haass was in Grand Rapids, McGarry finally agreed to raise the $3,000 on the Eent-street property in consideration thereof, and Haass was informed that McGarry would raise the money; that complainant made a deed of the property, with defeasance back, so that McGarry could raise the money; that on March 14th complainant prepared a statement as to what he should require in the way of a preliminary contract, stipulating that the contract should be “executed in accordance with, my proposition of February 3, 1896; ” that the parties met in Detroit on March 24th to arrange for this contract; and that before that time Mr. Weston told Mr. Haass and other Detroit creditors, and Mr. Lasley, of Muskegon, that McGarry was going to raise this $3,000, and had made arrangements with Ionia parties for it.

It is further claimed that, after reaching Detroit, and before meeting with the Detroit creditors, Mr. McGarry drafted a contract, which was thereafter submitted to the committee of the creditors, consisting of Farrell and Howard and Mr. Weston, acting for Mr. Lasley; that Mr. Haass was also present, and suggested that the contract be submitted to the attorneys of the creditors; that this was agreed to, and the contract, after being so submitted, and signed by Farrell and Howard, was to be forwarded next day to complainant. In this connection, it is contended that Farrell and Howard stated that the contract was satisfactory, and that Farrell asked complainant if it was satisfactory to him, and that he responded that it was if the $3,000 was furnished as soon as the 'contract was signed, and that he proposed to secure the advance of the $3,000 on his ICent-street property, which they could examine. Three copies of the contract drawn by McGarry were made, and complainant signed one of them, and left it with the committee, who, it is claimed, agreed to sign next day, and return it to complainant. Before this contract was finally signed, and on April 3d following, the committee wired McGarry that the complainant would be required to give a bond to secure the outlay of $2,000 or more within 40 days from the date of delivery of contract. This bond was given, and the contract finally signed, on April 11, 1896. A copy of this contract will be found in the statement. It appears that McGarry failed to arrange for the money. The complainant entered upon the contract, got the mill ready, and commenced operations on June 2d. It is contended by complainant that he was unable to raise this money, and, consequently, he was unable to increase the power of the mill, which resulted in a serious loss to him of from $30 to $50 per day while the mill was running.

Complainant procured insurance, as provided in the contract, on the property,' for $3,500, — loss, if any, payable to himself as his interest might appear, — and on July 25th the docks connected with the mill were burned. The complainant at once notified the committee of the loss, and asked that money be advanced by it to enable him to rebuild the docks; and it is claimed that Mr. Haass, for the committee, promised that it should be advanced. The docks were reconstructed by complainant’s.brother for the $3,500. No moneys were furnished for the payment of this amount, and the committee refused to allow the insurance money to be paid to complainant. The claim is that by reason of the failure of the committee to raise this $3,000, and the withholding of the insurance money, the complainant was unable to meet his obligations, and was compelled to shut down the mill. The bill is filed to obtain a cancellation of the contract, for an accounting for the moneys expended by the complainant in the repair of the mill, for damages caused by a breach of the contract, and to recover the insurance money or the cost of rebuilding the docks, and to restrain the payment of the insurance money to Mr. Farrell. . All of the defendants answered the bill, except defendant Stewart.

It will be noticed that the theory of the bill is that this committee was fully authorized by this power of attorney to enter into this contract, including in it a promise to advance the $3,000, and that under the arrangement defendants became bound to advance that sum. It is also insisted that the testimony introduced showed clearly that the preamble in the contract, when taken in connection with the propositions made by complainant, meant that the defendants should furnish the $3,000, and that testimony was properly received to explain the preamble. It is also claimed that Cobb, Weston, and McGarry were the agents of the sellers, and that the arrangements made by them in reference to the $3,000 are binding upon the defendants, who were represented by this committee.

We find nothing in the record showing that those parties were the agents of the sellers. It appears that an arrangement was made between the parties by which they were to have a commission of $4,000. It was specified in the contract that the purchase price should be $29,000, and out of this McGarry, Cobb, and Weston were to receive their cornmission of $4,000. These parties were never employed to sell these lands. Mr. Cobb, learning that the lands were for sale, approached complainant, and asked him to buy. Weston and McGarry were let into the arrangement, and McGarry was to raise the $3,000 on the Kent-street property with which to make the improvements. The improvements were expected to cost about $7,000; but, as the contract was finally drawn (and it was drawn by McGarry in presence of complainant), complainant was to put on improvements of not less than $3,000, and possibly $6,000, if necessary. Mr. Haass testified that, while at Grand Rapids, he told complainant he would not advance any money for repairs, and that complainant must arrange the matter in Grand Rapids, and that McGarry thought he could get the money from Ionia parties, taking security on complainant’s Kent-street property. The committee who were authorized to make the sale had never been notified that they were expected to advance the $3,000. Two days before going to Detroit, Weston wrote to Haass that the parties were coming, and that complainant had arranged to raise the $3,000. But complainant testified that he told Farrell, in Detroit, at the time the contract was drawn, that he expected the committee to raise the $3,000. This is denied by Farrell and Howard; and they say that they asked complainant how he was going to get the money, and he said that he had his arrangements all made to raise it on his Grand Rapids property. When we take into consideration the letter written by Weston that complainant had so arranged, and the fact that McGarry expected so to arrange it, we are satisfied that Farrell and Howard were right in saying that they were not to advance the money. Even as late as August 5th, complainant wrote Mr. Lasley, asking friendly assistance, and in that letter no claim is made that the committee was to furnish this money, and no complaint that it was not so furnished. Another circumstance that tells strongly against the complainant is that he started up the mill on June 2d without asking the committee for the money, though he had been informed, the latter part of May, that McGarry could not raise it. It also appears that, while complainant, Weston, and McGarry were on the train from Grand Rapids to Detroit, Mr. Weston drew up another proposition, which Weston testifies the complainant looked over and assented to. This, Mr. Weston testified, was the only proposition which he submitted to the committee, and it contained no provision for advancing to complainant $3,000 for repairs.

The court below made a decree finding that the proposition of February 3, 1896, was a part of the contract; that complainant sustained damages by its breach to the amount of $6,824.87; and that complainant recover from the defendants, except McGarry, Weston, and the Globe Insurance Company, the said damages. This part of the decree must be reversed. The court also made a decree disposing of the insurance money, which had been paid into court, providing that, after payment to the insurance company of its costs, etc., the balance be paid over to complainant’s solicitors, and then directed the disposition which should be made of the fund by them; that is, in the payment of the labor bills for the construction of the trams and docks and other improvements. We do not think this part of the decree should be disturbed, as the insurance money was to be paid to complainant as his interest might appear. He rebuilt the docks, costing about the amount of the insurance. Defendants will recover their costs of this court.

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


author: Moore, J.

text:
    PEOPLE v. FOGLESONG.
    1. Criminal Law — Jurors—Challenge for Cause.
    It is not error, upon a prosecution for murder by poisoning, to refuse to excuse for cause a juror who testifies upon his voir dire that he has heard that poison was found at the inquest upon the body of the deceased, and that, from what he has heard, it is his impression that the deceased died from the effects of poison, and that he does not know but it would take evidence to remove such impression, where he further testifies that he has no impression as to the guilt or innocence of the respondent, and that he has no such fixed opinion as to the poisoning as would prevent him from giving the respondent a fair and impartial trial.
    2. Same — Expert Witnesses — Hypothetical Questions.
    It is not essential that a hypothetical question propounded by the people to an expert witness should embrace all the . proofs in the case, but it may be based solely on those adduced by the prosecution.
    3. Same — Objections—Definiteness.
    To lay the foundation for an exception to the form of a hypothetical question, the particulars wherein the question leaves out anything that ought to be embraced within it, or embraces anything that ought to be excluded, should be clearly pointed out.
    4. Evidence — Witnesses—Impeachment.
    Evidence that a witness had expressed an opinion that his brother and a certain woman were guilty of improper conduct is not admissible to impeach his testimony that he had never seen anything improper in their relations.
    5. Same — Instructions—Prejudicial Error.
    The admission of such evidence upon the trial of the brother for murder is reversible error, where the prosecution are proceeding upon the theory that the alleged improper relations furnished the motive for the crime; and the error is emphasized by the refusal of the circuit judge to charge that the evidence of the statements previously made by the witness can be used, if at all, only for the purpose of impeachment.

      6. Same — Testimony of Physician — Condition of Patient.
    Upon a prosecution for murder by poisoning, a physician whom the deceased consulted about a month before her death may, testify as to what she told him about her condition at the time of the consultation, but not as to her statements concerning previous symptoms.
    Error to Hillsdale; Lane, J.
    Submitted January 28, 1898.
    Decided April 5, 1898.
    Myron P. Foglesong was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.
    Reversed.

      Stone & Twiss and O. A. Janes, for appellant.

      Fred A. Maynard, Attorney General, and S. D. Bishopp, Acting Prosecuting Attorney (F. A. Lyon, of counsel), for the people.
   Moore, J.

The respondent was convicted of murder, and sentenced to state’s prison for life. It is claimed that error was committed in not excusing jurors for cause, One of the proposed jurors testified, in substance, that he had heard the facts talked about, but that, from what he had heard, he did not have an impression regarding them; that he had heard about their claiming poison was found at the inquest upon the body, and that, from what he had heard, it was his impression that the wife of respondent died from the effects of poison; that that was his opinion then; that he did not know but it would take evidence to remove it. He testified that he had no impression as to the guilt or innocence of the respondent, and that he had no such fixed opinion as to the death from poisoning that he could not give the respondent a fair and impartial trial. It is said that this juror should have been excused for cause. It is the contention of counsel that three things must be shown by the people before a conviction can be had: First, death by poisoning; second, that the poison was administered by the accused; third, that it was given for an unlawful purpose; and it is argued that, if the juror begins the trial with an opinion 'as to either of these material things, it cannot be said that the juror is unbiased and impartial. Counsel rely upon the recent case of People v. Thacker, 108 Mich. 652. It must be conceded that there is language used in that case which tends very strongly to support the contention of counsel. An examination of the case of People v. Thacker will show that the juror had conversed with a member of the coroner’s jury, and with others, and that from what he had heard he had formed an opinion, not only that Mrs. Thacker had been poisoned, but had formed an opinion as to the guilt of the respondent, based upon what he had heard, and the supposition that what the member of the coroner’s jury had told him was true, and that, at the time he was examined, he said it would require testimony to remove the opinion he had formed. In the disposition of that case, it was not necessary to use the following language found in the opinion:

“This fact, if it was a fact, that poison was found in the stomach of Mrs. Thacker, was one of the most important things in the case for the people to establish. A juror who believed that fact to exist cannot be said to be in a condition to act fairly, candidly, and impartially.”

This language is not in harmony with previous decisions of this court. See Stewart v. People, 23 Mich. 63 (9 Am. Rep. 78), where it was held that a belief on the part of the juror that the crime charged had been committed by some one did not disqualify the juror if he had no opinion as to whether the respondent committed the offense. See, also, Cargen v. People, 39 Mich. 549, where it was held that, though the juror had a positive opinion that the deceased was murdered, this did not disqualify him if he had no opinion of the guilt or innocence of the respondent. See, also, a collation of cases in note to Smith v. Eames, 36 Am. Dec. 530 (4 Ill. 76); also, State v. Thompson, 9 Iowa, 188 (74 Am. Dec. 342). We are satisfied with the ruling in the case of People v. Thacker, supra, but think the language before quoted is not a correct statement of the law. In this case the proposed juror stated that he had no opinion as to the guilt or innocence of the accused, and we do not think he was disqualified. It is not possible for a murder to be committed without it being the subject of wide-spread comment, and it becomes the subject of many newspaper articles, so that wideawake and intelligent men, who read newspapers, are almost sure to learn something of what is claimed in relation to whether a crime has been committed or not, and who committed it. It is not desirable that the rule in relation to the competency of jurors should be so fixed that only the ignorant and unfit can do jury service in these important cases. On the other hand, the accused is entitled to be tried by jurors who are not biased, and who do not have such fixed opinions of his guilt as will preclude them from acting impartially in his case. In addition to the cases cited, see Holt v. People, 13 Mich. 224; People v. Barker, 60 Mich. 277 (1 Am. St. Rep. 501). We do not think the court erred in overruling the challenges to the proposed jurors.

Complaint is made of certain hypothetical questions which were propounded by the people to the expert witnesses. The respondent was not represented in the trial of the case by the attorneys who present the case here, but he was represented by very able counsel. When they interposed the objection to the questions, they were asked by the trial judge to indicate wherein the question left out anything which ought to be embraced in it, or wherein it included anything which ought not to be included. Counsel were either unable or unwilling to indicate to the court in what particular the question was wrong. A careful examination of the record has not disclosed to us that any of the essential things shown by the testimony on the part of the people to exist were omitted from the question, or that there was embraced in it any essential element in relation to which there was no proof offered on the part of the people. It is now claimed that there should have been embraced in this question, not only tbe proof offered upon tbe part of the people, but that which was offered upon the part of the respondent. It is said that it is the duty of the prosecuting officer to lay all the facts before the expert; citing People v. Vanderhoof, 71 Mich. 177.

In the second edition of Rogers on Expert Testimony (section 37), the rule is stated as follows:

“Counsel, in framing the hypothetical question, may base it upon the hypothesis of the truth of all the evidence, or on an hypothesis especially framed on certain facts assumed to be proved for the purpose of the inquiry. The question is not improper simply because it includes only a part of the facts in evidence. And, if framed on the assumption of certain facts, counsel may assume the facts in accordance with his theory of them, it not being essential that he should state the facts as they actually exist. ‘The claim is,’ says Chief Justice Folger in Cowley v. People, 83 N. Y. 470 (38 Am. Rep. 464), ‘that a hypothetical question may not be put to an expert unless it states the facts as they exist. It is manifest, if this is the rule, that in a trial where there is a dispute as to the facts, which can be settled only by the jury, there would be no room for a hypothetical question. The very meaning of the word is that it supposes — assumes—something for the time being. Each side, in an issue of fact, has its theory of what is the true state of the facts, and assumes that it can prove it to be so to the satisfaction of the jury, and, so assuming, shapes hypothetical questions to experts accordingly. And such is the correct practice.’
“ It is therefore the privilege of counsel to assume any state of facts which there is any evidence tending to prove, and to have the opinion of the expert based on the facts assumed. The fact that counsel make an error in their assumption does not render the question objectionable, if it is within the possible or probable range of the evidence. But the testimony should tend to establish the facts embraced in the question. A court, however, has no right to reject a question which counsel claims embraces facts which the evidence tends to prove, simply because, in its opinion, the facts assumed are not established by a preponderance of the evidence. The question should be allowed if there is any evidence tending to prove the facts assumed; for what facts are proved in a case, when there is ahy evidence tending to prove them, is a matter for the jury, and not for the court. But, if the hypothetical question is clearly exaggerated and unwarranted by any testimony in the case, an objection to it will be sustained. To allow on th.e direct examination an hypothetical question to be put which assumes a state of facts not warranted by the testimony is error, and counsel will never be permitted on the direct examination to embrace in an hypothetical question anything which the testimony does not either prove or tend to prove. * * * A question based on an assumption which the evidence neither proves nor tends to prove is misleading.
“But, to lay the foundation for exceptions on the ground that the hypothetical question embraces facts not in evidence, the attention of the trial judge should be called to the specific objection, in order that he may determine, as he must in the first instance, whether there is sufficient evidence tending to prove the facts stated to authorize the question. For the rule is a general one that objections to testimony should be specifically stated to the trial court, and that only such objections as are so stated can be considered on appeal.”

And see Turnbull v. Richardson, 69 Mich. 413.

We do not think any error was committed in relation to the hypothetical questions.

The respondent is a physician. It was the theory of the people that the wife of the respondent was taken ill upon her return from a visit to the brother of respondent, and that the respondent administered hypodermic injections of strychnine to his wife, for the purpose of killing her, and continued the treatment until it resulted in her death. It is also claimed that his motive in poisoning his wife grew out of his intimacy with one Mrs. C. It was the claim of the respondent that his wife was ill of heart trouble and with brain trouble, and that the strychnine was properly administered as a medicine, and without any unlawful purpose. To show the illness of Mrs. Foglesong, the brother of the respondent was sworn on the part of the respondent, and testified that, while the wife of the respondent was visiting him, she was ill, and was ill when she returned home, and he described her illness in detail. No allusion was made in his direct testimony to the relations of the respondent with Mrs. C. In answer to questions put to him by the people on cross-examination, he stated when and where he had seen Mrs. C. and the respondent together, and said he had never seen anything improper between them. He then identified a letter he had written to Mrs. Gray in September following the death of Mrs. Foglesong, and, against objections, portions of that letter were received in evidence. He wrote Mrs. Gray that he was sorry she honored Mrs. O. enough to go to her house, and stated that they tried their best to get that on him, but that he frankly said, “No. I did not notice that [using an epithet that indicated Mrs. C. was a bad woman], or speak to her.” He also wrote:

‘ ‘ I had to go back Tuesday morning, to attend court, and in it I made application to have a guardian appointed for Myron; and, when I came to Bronson, he gave me fits, but he has a guardian just the same. * * * I don’t think he is as crazy as he is devilish.”

He testified that, when he wrote of Myron, he referred to the respondent. He was also required on cross-examination to testify to expressions of opinion he had made to Mrs. Gray and others concerning the relations of the respondent and Mrs. C., and to his having on one occasion prayed that his brother might mend his ways with Mrs. C., and other statements of that character. If this cross-examination had related to any statements the witness had made to others of anything he had seen between respondent and Mrs. C., it might be urged with a good deal of force that it was testimony of an impeaching character ; but, at most, these statements were but expressions of opinion of the witness, not based upon anything he knew; and the respondent should not be held responsible for any ill opinion which his brother might at one time have entertained of him. These expressions did not contradict any statement the witness had previously made of the relations between the respondent and Mrs. C. They had no tendency to impeach the witness. They were well calculated to prejudice the jury against both Mrs. C. and the respondent, and ought not to have been received in evidence.

The court was requested to charge the jury that these statements could he used only for the purpose of impeaching the witness, but declined to do so, and made no allusion to the subject in his general charge. As already stated, this testimony was not competent, but, if it was to be received at all, the jury ought to have been clearly instructed as to the purpose for which it could be used, and it was error not to do so. It can easily be seen that these statements made by a brother of the accused were well calculated to prejudice the jury, and work great harm to the respondent.

To show the state of health of Mrs. Foglesong during the month previous to her death, which occurred August 9, 1891, Dr. Sayles was called as a witness by the respondent. He testified that Mrs. Foglesong, on the 18th day of July, called on him for treatment for brain trouble, and other ailments which the doctor described. He was then" asked what Mrs. Foglesong told him about vomiting before coming to see him. This testimony was excluded, and its exclusion is said to be error. The court allowed the witness to state fully what Mrs. Foglesong had told him about her present condition, and the excluded testimony referred to her statements of what her experience had been before she came to see him the last time. "We do not think the ruling of the court was error. Kelley v. Railroad Co., 80 Mich. 237 (20 Am. St. Rep. 514).

We do not deem it necessary to discuss the other assignments of error. Some of them are not well taken. The others relate to matters which are not likely to occur in a new trial. For the errors above stated, the judgment of the court below is reversed, and a new trial ordered.

The other Justices concurred.


text:
    CITY OF DETROIT v. GLEASON.
    Landlord and Tenant — Holding Over — Rent.
    A tenant of a city in possession of a stall in a market, who continues in possession after the adoption of an ordinance discontinuing the market, is liable thereafter only for the reasonable worth of the premises, without regard to the rent provided for in the lease.
    Error to Wayne; Aldrich, J., presiding.
    Submitted February 1, 1898.
    Decided April 5, 1898.

      Assumpsit by the city of Detroit against Marcellus Gleason for rent. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      William S. Sheer an {F. A. Baker, of counsel), for appellant.

      O. D. Joslyn, for appellee.
   Moore, J.

Prior to 1892, defendant had been in possession of a stall in the old Central Market in Detroit at a rental of $35 a month. The rents were collected by the market clerk. In April, 1892, the council passed a resolution that the stalls should be rented for a year; the rent to be paid monthly in advance; the leases to be given with the express condition that they could be terminated upon one month’s written notice. In May, 1892, the council directed the controller to notify defendant of the termination of the lease, which was done. On the 5th of July, 1892, the council adopted an ordinance discontinuing the market, and providing that the building should be torn down, and the ground should be used as a park; the ordinance to take effect July 1, 1892. The defendant paid rent up to July 1, 1892, but paid none afterwards. He continued to occupy the building for 19 months after that date. Prior to July, 1892, the city warmed and lighted the building, and hired janitors to take care of it, and to remove the garbage and care for the property.- Farmers’ and market gardeners’ wagons were allowed about the building, and it was a busy, central market, doing the business incident to a large market. After July 1st the city did not care for the building and remove the garbage; it did not light and heat the building; it did not allow farmers and market gardeners to congregate about the building. On the contrary, it caused the heating apparatus to b broken, and the farmers and market gardeners to be kept away from the building, and the occupants of the stalls did but little business. The defendant, with others, attempted to prevent the city from putting them out of the market, and for that purpose commenced a legal proceeding, which finally found its way to this court, in the case of Petz v. City of Detroit, 95 Mich. 169. After July 1, 1892, the market building was warmed, lighted, and cleaned at the expense of the occupants of the building-

In this case the city sued the defendant to recover rent for the 19 months defendant used the building without paying rent. The court directed the jury to find a verdict for the city at the rate of $35 a month, less 40 per cent, for expenses in heating, lighting, and caring for the building (which per cent, was agreed upon as the reasonable cost of doing so). The defendant claimed that as the city did not recognize him as its tenant after July 1, 1892, it could not treat the lease as in force, and oblige him to pay the rent fixed in the lease, but that he should pay only what the use of the premises was reasonably worth. One cannot read the record without seeing that the city did not consent to the occupancy of the premises by defendant after July, 1892. The court found in the case of Petz v. City of Detroit that the defendant had no right to continue in possession after July, 1892, and the court said: “In order to make the holding over of a tenant effective as creating a new tenancy, there must be either the express consent of the lessor, or some act from which his consent may be implied. * * * Complainants’ tenancy, whether from year to year or from month to month, was subject to the exercise by the common council of the power of removal vested in that body,” — and decided against the right of the occupants of the stalls to hold them after July 1, 1892.

After the action taken by the city to terminate the tenancy of the defendant, we do .not think it can be said the defendant was a tenant at will. Neither the city nor the defendant was bound by the terms fixed in the lease, in deciding what compensation should be paid by the defendant. Suppose the rental value had been many times greater after July 1, 1892, than it had been before; could it be said that the city could not recover what the use of the premises was reasonably worth? Under the opinion of the court in Hogsett v. Ellis, 17 Mich. 367, we think the jury should have been instructed to return a verdict in favor of the city for what the use of the premises was reasonably worth during the time they were occupied by the defendant.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


text:
    DEFOE v. BAY CIRCUIT JUDGE.
    1. Appeals from Probate Court — Condemnation Proceedings— Conflicting Claims — Disposition of Fund.
    An order of the probate judge determining who is entitled to moneys paid into court under 1 How. Stat. § 3338, as compensation for lands condemned for railroad purposes, is appeal-able, under 2 How. Stat. § 6779, providing for appeals from probate coiu-t in cases “not otherwise provided for.”
    2. Same — Statutes.
    A statute requiring judicial action by the probate judge, and the entry of a final order or decree, passed subsequent to 2 How. Stat. § 6779, will be presumed to have been framed with reference to the provisions of the existing statute, where there is nothing in the later statute to indicate that the legislature deemed an appeal from the order inexpedient.
    3. Same — Stay of Proceedings.
    It cannot be successfully urged that a probate order is not appealable because no provision is made in the statute re- • relating thereto for a stay of proceedings in case of an appeal, as 2 How. Stat. § 6788, provides for such stay “after an appeal is claimed” from any order of the probate court.
    4. Same — Notice of Appeal.
    The circuit court has jurisdiction to entertain an appeal from probate court, although notice thereof was not given to all of the adverse parties, if the appellant has complied with 2 How. Stat. § 6781, which provides that notice shall be given in such manner as the probate court shall direct; it being within the power of the circuit judge to require notice to be served upon any other necessary parties.

      Mandamus by Joseph Defoe to compel Andrew C. Maxwell, circuit judge of Bay county, to vacate an order dismissing an appeal from probate court.
    Submitted February 23, 1898.
    Writ granted April 5, 1898.

      Simonson, G-illett & OourtrigM, for relator.

      U. B. Loranger, for respondent.
   Moore, J.

In 1896 the Detroit & Mackinac Railway-Company condemned, by proceedings in probate court, certain lands formerly owned by Francis Defoe, who is now dead. These lands were found in the proceedings to be worth $890. A dispute arose about who was entitled to this fund. The relator claimed it belonged to him, except the widow’s right of dower therein; while the heirs at law of Francis Defoe, deceased, claimed it belonged to the administrator of his estate. The probate 'court, acting under the provisions of section 3338, 1 How. Stat., after setting aside a portion of the fund as dower to the widow of Francis Defoe, directed that the balance be paid over to the administrator of his estate. The relator, within the time allowed by the statute providing for appeals from probate court, appealed his case to the circuit court, giving such notice to the adverse party, and such bond, as he was directed to give by the probate judge. The case was noticed for trial at two terms, when a motion was made to dismiss the appeal upon the ground that no appeal would lie from the finding of the probate court in relation to the disposition of the fund. The appeal was dismissed by'the circuit judge, and this is a proceeding to have the appeal reinstated.

The important question is, Will an appeal lie from the action taken by the probate court, acting under the provisions of 1 How. Stat. § 3338 ? It is conceded that, by the terms of the act under which the condemnation proceedings are conducted, no provision is made for an appeal from the action of the probate court in deciding who is entitled to the fund which has been paid into court. It is claimed on the part of the respondent that no appeal will lie from its action; citing Clark v. Raymond, 26 Mich. 415; Smith v. Superintendents of Poor, 34 Mich. 58; Sparrow v. Ingham Circuit Judge, 109 Mich. 272; and other cases. Unfortunately, this feature of the statute has never been construed, and none of the cases cited relate to its provisions. On the other hand, it is said that the order made by the probate court is final; that it is judicial in its character $ that it is not ancillary; that it is not a discretionary order; that there is no reason why an appeal should be inexpedient; and that appeal from it would not prevent the execution of the principal purpose of the statute. It is insisted that the case comes within section 6779, 2 How. Stat., which provides for appeals from probate courts to the circuit courts in certain cases. We think it very clear that the appeal ought not to be defeated on the ground that it is inexpedient, and would defeat the purpose of the legislation, and that the Sparrow Case has no application to this one. It is also true that the action of the court in making the order is judicial, and the order is final, so that the cases cited by counsel for respondent do not apply. For cases holding in favor of a right of appeal, though not specially authorized by statute, see Goss v. Stone, 63 Mich. 319; First Nat. Bank of Detroit v. E. T. Barnurn Wire & Iron Works, 58 Mich. 315; Hart v. Shiawassee Circuit Judge, 56 Mich. 592.

It is claimed that 2 How. Stat. § 6779, does not allow the relator to appeal, for the reason that it was in existence long before the legislature had provided for the condemnation of lands for railroad purposes. We think this argument is answered by saying that, when the legislature passed the act providing for condemnation proceedings, they knew of the existence of section 6779, and, while they were careful to provide in section 3337 for an appeal which should be heard in a speedy way, because of the necessities of the case, from the appraisal or report of the commissioners or jury, they did not deem it necessary to provide for an appeal from the acts authorized by section 3338 in relation to the payment by the railroad company of the money into court, and in cases of doubt had authorized the court to determine who was entitled to the money. We think it entirely improbable that they intended the action of the court in that respect to be unappealable, but, on the contrary, it can well be assumed that the legislature presumed that, as a speedy hearing as to the disposition of the fund was not so essential as the other portions of the proceeding, the proceedings on appeal could well be left to the provisions of section 6779, relating to appeals. We can see no reason why a party aggrieved by a final order in any proceeding should have an appeal which does not apply with equal force here. It was the claim, of the relator that he was entitled, as owner of the land, to the fund which was paid into court, less the amount which was conceded to belong to the widow as dower. His claim was denied, and the probate court made an order that the fund,did not belong to the relator, but belonged to his father’s estate. This was a final disposition of the fund. It was a judicial finding. It related not to the necessity of taking the land, or to the appraised value thereof, but related solely to the question as to who was entitled to the fund.

It is urged that this cannot be an appealable order, because no provision is made for a stay of proceedings in case of an appeal. We think this a mistaken view, as 2 How. Stat. § 6788, provides, after an appeal is claimed, for a stay of proceedings.

It is also urged that the appeal must fail because notice was not given to all of the adverse parties. 2 How. Stat. § 6781, provides that notice shall be given to the adverse party in such manner as the probate court shall direct. This was done, and we think the court obtained jurisdiction to entertain the appeal. If there are other persons who are necessary parties, — and upon that question we ex*press no opinion, — the court can require notice to be given to them. Strang v. Hillsdale Circuit Judge, 108 Mich. 227.

We think the order was an appealable one, that the court had obtained jurisdiction, and that the appeal should , not have been dismissed. The writ will issue as prayed.

The other Justices concurred.


author: Montgomery, J.

text:
    GRAHAM v. MUSKEGON COUNTY CLERK.
    1. Religious Sooieties — Statutes—Repeal.
    Act No. 110, Pub. Acts 1895, entitled “An act for the organization of corporate Methodist Episcopal Churches,” was superseded by Act No. 209, Pub. Acts 1897, entitled “An act to revise, amend, and consolidate the laws for the incorporation of ecclesiastical bodies.”
    2. Same — Constitutional Law — Sueeioibnoy oe Title.
    Act No. 209, Pub. Acts 1897, entitled “An act to revise, amend, and consolidate the laws for the incorporation of ecclesiastical bodies,” is constitutional, so far as it affects churches, whether or not the provisions embodied therein relative to “societies for the diffusion of moral or religious knowledge ” are within the title.

      Mandamus by John Graham and others to compel R. Andrew Fleming, clerk of the county of Muskegon, to record the articles of association of the Moorland Methodist Episcopal Church, preferred under Act No. 110, Pub. Acts 1895.
    Submitted February 15,. 1898.
    Writ denied April 5, 1898.

      Outcheon & Swarthout, for relators.

      Fred A. Maynard, Attorney General, and Drury & Strong, for respondent.
   Montgomery, J.

Petitioners allege, in the first four paragraphs of their petition, that they are all members of the Methodist Episcopal Church, and that John Graham is the presiding elder of the Grand Rapids district, within whose bounds the proposed Moorland Methodist Episcopal Church is to be located; that it has been agreed by the proper church authorities, that the said church shall be organized at Moorland; that on January 7,1898, petitioners executed articles of association under Act No. 110, Pub. Acts 1895, entitled “An act for the organization of corporate Methodist Episcopal Churches;” that on January 17,1898, they presented their said articles, drawn up and certified properly under said statute, to the Muskegon county clerk, for record in his office pursuant to said act; that said clerk refused to record the articles, on the ground that Act No. 209, Pub. Acts 1897, entitled “An act to revise, amend, and consolidate the laws for the incorporation of ecclesiastical bodies,” provides, in section 10, that “all churches, religious societies, Sunday schools, or other societies for the purpose of diffusing moral or religious knowledge, hereafter incorporated, shall be incorporated under this act.” The answer admits all of the above allegations. The petitioners aver that the said refusal is illegal upon two general grounds: (1) That the act of 1897 does not repeal or supersede, expressly or by implication, the Methodist Church act of 1895; and (2) that the act of 1897 is unconstitutional. The answer denies both these propositions. Relators ask a mandamus directing respondent to file their articles of association preferred under the law of 1895.

1. Does the act of 1897 supersede, as to churches to be organized after the act took effect, the Methodist Church act of 1895? We think this question,must be answered in the affirmative. The title of the act of 1897 is most comprehensive. It is “to revise, amend, and consolidate the laws for the incorporation of ecclesiastical bodies.” The plain purpose of this enactment, as expressed in the .title, was to collect such provisions as were essential to the incorporation of ecclesiastical bodies and embody them in one law. Any other construction would do violence to the language employed. An analogous question was discussed in both opinions in Attorney General v. Parsell, 100 Mich. 170, and little need be added. In the opinion in that case the writer said: “The use of the word ‘consolidate’ indicates very clearly that the purpose of the legislature was to collect in one act the law relating to the subject.” See, also, Tafoya v. Garcia, 1 N. M. 480; Roberts’ Case, 51 Mich. 548. That a later act which covers the whole subject repeals prior acts repugnant thereto is established doctrine. Shannon v. People, 5 Mich. 85; Feige, v. Railroad Co., 62 Mich. 1; Attorney General v. Parsell, supra, and cases cited.

2. It is contended that, the act conflicts with article 4, § 20, of the Constitution, which provides that no law shall embrace more than one subject, which shall be expressed in its title. Section 1 of the act provides that it shall be lawful for any five or more persons of full age to become incorporated as a church, religious society, Sunday school, or other society for the purpose of diffusing moral or religious knowledge, by complying with the following conditions. Section 10 provides that all churches, religious societies, Sunday schools, or other societies for the purpose of diffusing moral or religious knowledge, here after incorporated, shall be incorporated under this act. It is not contended but that church societies fall within the express terms of the act. This being so, it is not essential, for a determination of this case, to decide whether societies for the diffusion of moral and religious knowledge maybe properly designated as “ecclesiastical bodies.” The rule is that if, by striking from an act all that relates to an object not indicated by the title, that which is left is complete in itself, and sensible, and wholly independent of that which is'rejected, it must be sustained as constitutional. Cooley, Const. Lim. (6th Ed.) 177. Thus, under a title, “An act concerning promissory notes and bills of exchange,” provisions were incorporated affecting alike bills of exchange, promissory notes, and other written instruments. The act was sustained so far as it affected promissory notes and bills of exchange, and declared invalid in so far as it attempted to affect other written instruments. Mewherter v. Price, 11 Ind. 199. It must be held that the act in question is valid, at least to the extent that it affects churches.

We do not think the act is subject to the other objections urged against it. If its provisions are not found well suited to meet the churcb polity of the Methodist Episcopal Church, this fact is proper to be considered by the legislature, but does not justify us in declaring the act unconstitutional..

The writ of mandamus will be denied.

The other Justices concurred.