text:
    Agnes Doyle v. The Detroit Omnibus Line Company, Limited.

      Negligence— Pleading — Variance—Amendment—Runaway horses— Evidence,

    1. The declaration in a case brought to recover for injuries received by being run over by the defendant’s runaway team averred in one count that defendant carelessly and negligently allowed its team to be insecurely fastened, and in the second count that the horses were left unguarded and improperly fastened. No objection was made to the testimony of the plaintiff tending to show that the horses were left unhitched, the question of variance being raised for the first time by an assignment of error. And it is held that, had the question been raised on the trial, an amendment, if necessary, would have been granted, and the assignment cannot be sustained.
    2. The testimony of the .driver of the team, and that of other witnesses, was positive that the team was hitched by means; of a strap and a weight. The plaintiff testified on direct examination that she passed by the team while they were standing by the depot platform, and that they were not fastened. - On cross-examination she testified that the only reason why she knew they were not hitched was because the horses stood with their faces towards her; that she meant that they were not hitched to some post or object, and her reason for so stating was that she did not see any post or object to which the horses could have been hitched. And it is held that plaintiff was in a position to see, and that her testimony elicited upon cross-examination is not such as to justify the Court in holding that there was no evidence to show that the team was unhitched.
    3. To leave a horse unhitched is to be judged as negligence by considering the temper of the horse, and the particular circumstances under which he was left, and' the question is for the jury.
    Error to Wayne. (Frazer, J.)
    Argued April 3, 1895.
    Decided April 30, 1895.
    Negligence case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Moore & Moore (Sidney T. Miller, of counsel), for appellant.

      James E. Pound (John E. Powell, of counsel), for plaintiff.
   Grant, J.

One of the teams of the defendant attached to a wagon or larry was driven to the depot of the Michigan Central Railroad with some merchandise. One of the customary methods of hitching a team is by a strap about 10 feet long, with one end attached to the bit, and a weight of about 25 pounds at the other end. The weight is thrown upon the sidewalk or platform when the team is stopped. Alongside the depot is a platform between three and four feet in height. The driver testified that upon stopping alongside the platform he placed the weight upon it, and was removing the merchandise into the depot. The defendant’s barn was a short distance away. While the driver was within the depot, the horses started for some reason, and ran to the barn. Haintiff was walking along tbe street some distance ahead of the horses. Looking back, and seeing them running towárds her, she ran for refuge into the stable. The horses reached there about the same time, and ran over and injured her.

The declaration contains two counts. In the first count it is alleged that “defendant carelessly and negligently allowed a team of its horses to be insecurely fastened,” and in the second count that the horses were “left unguarded and improperly fastened.”

It is urged that the declaration negatives the proposition that the horses were unhitched, and that, therefore, no recovery can be had for negligence in leaving them unhitched. No objection was made to the testimony upon this ground, nor does the record show that the question of variance was raised upon the trial. Had it been then raised, an amendment, if necessary, would have been granted by the court. This assignment of error cannot, therefore, be sustained.

It is next urged that there was no testimony to sustain the proposition that the horses were unhitched. While the testimony of the driver and others is positive that the team was hitched by means of the strap and weight, yet the plaintiff testified that she passed by the team while they were standing there, and that they were not fastened. On cross-examination she testified:

“Q. You didn’t notice whether they were hitched or not?
“A. Yes, sir; they were not hitched, and 1 know they were not hitched because the team stood with their faces towards me. That is the only reason.
“Q. You mean they were not hitched to some post or object?
“A. Yes, sir.
“Q. And the reason why you know they were not hitched to a post or other object is that there was no post or object to which they could be?
“A. I didn’t see any.”

She was in a position to see, and her testimony elicited upon cross-examination is not such as to justify a court in holding that there was no evidence to show that the team was unhitched.

The court, at the request of the defendant, instructed the jury that there was no evidence that the horses were “vicious, runaway, wild, and unmanageable.” There was evidence that they had run away once before, but the court held that this was not sufficient to establish the fact of their runaway character. The court further instructed the jury that it was negligence per se to leave such a team unhitched. In this we think the court was in error. This fact should have been left to the jury to determine, under all the circumstances of the case, the surroundings, and character of the horses. Griggs v. Fleckenstein, 14 Minn. 81; Park v. O’Brien, 23 Conn. 339; Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29. Counsel for the plaintiff correctly state the rule in their brief as follows:

“To leave a horse unhitched is to be judged as negligence by considering the temper of the horse, and the particular circumstances under which he was left.”

The following authorities they cite sustain the rule: Kearns v. Sowden, 104 Mass. 63; McCahill v. Kipp, 2 E. D. Smith, 413; Moulton v. Aldrich, 28 Kan. 300; and in these the question was left to the jury.

Judgment reversed, and a new trial ordered.

McG-rath, C. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Aaltje Jansen v. John McQueen.
    [See 99 Mich. 436.]

      Fraudulent conveyances — Husband and wife — Sale—Change of possession — Evidence—Instructions to jury — Deed—Estoppel.
    1. An instruction in an action of trover brought by a wife for property attached by her husband’s creditors five days after he had executed to her a bill of sale of the property, that if there was no immediate delivery of the property, and no actual and continued change of possession, the burden of proof was upon the plaintiff to show that the sale was made in good faith, and without intent to defraud creditors, is not open to the objection that the jury must have understood that what was meant by the expression “immediate delivery” was “instantaneous delivery;” the testimony tending to show that, for two days after the execution of the bill of sale, the husband continued to care for the property, and on the third day left for another state, leaving his son in charge of the property, and that on the third day, while the son was using the property for his father in his business, a portion of the indebtedness for which the property was attached was contracted, under circumstances tending strongly to show that the husband could not reasonably have expected to pay for the goods thus obtained.
    2. A wife sued in trover for property which had been attached by her husband’s creditors. For the purpose of showdng title, she sought to establish the fact that she had in her own right real estate from which she received a revenue’ sufficient to enable her to make certain loans to her husband, in part extinguishment of which the bill of sale to her of the attached property was, as she claimed, given. Her testimony tended to show that she furnished the money used in the purchase of said lands; that the title was taken in her husband’s name, she supposing that it should be so taken; that some years later, on learning that a married woman could hold property in her own name, at her request, her husband conveyed the land to her. And it is held that the jury should have been instructed as requested by the plaintiff:

      «--That if the deed from the husband was given without any intent to defraud his creditors, and in fact did not defraud them at the time it was executed, it conveyed the entire right and title of the husband in and to the land to the wife, whether the land had been purchased originally with her money or not.
    6 — That if the jury should find that said land was purchased with the plaintiff’s money, and the title placed in the name of her husband, and that he, in recognition of her right to the ownership of the land, deeded the same to her at her request, such deed would convey the entire right and title of her husband in said land acquired by such original conveyance to him, and his subsequent creditors could not object to or attack the validity of said deed.
    3. One parcel of land was purchased from an administrator, who conveyed it to the husband, and he conveyed it by warranty deed to plaintiff. A second deed was afterwards executed to the husband by the administrator under proceedings taken to cure a defect in the first deed, growing out of the want of proper proceedings upon which to base it. And it is held that the plaintiff was entitled, as a matter of right, to an instruction that the title acquired by the husband by reason of the second deed inured to the benefit of the plaintiff.
    Error to Kent. (Grove, J.)
    Argued April 4, 1895.
    Decided April 30, 1895.
    Trover. Plaintiff brings error.
    Keversed.
    The facts are stated in the opinion.

      Dodge é Eastman, for appellant.

      Wolcott & Ward, for'defendant.
   Montgomery, J.

This is an action of trover to recover damages for the alleged conversion of four horses, two double harnesses, etc., levied upon and sold bj the defendant, acting as sheriff, under an execution against Daniel M. Jansen, plaintiff’s husband. Mr. Jansen had been engaged in business as a string butcher, and from time to time made purchases of Nelson Morris & Co., who were engaged as wholesale dealers in meat. On the 14th day of May, 1892, Jansen, for the stated consideration of $700, made a bill of sale of the property in question to plaintiff. There was testimony tending to show that plaintiff owned the bam in which the horses were kept, and leased the same to her husband; that, after the execution of the bill of sale, Daniel M. continued to care for the horses during that day and the next, which was Sunday, and that the following Monday he left home, and went to Milwaukee, but that he left hi's son in charge of the business, and that he (the son) .used the horses in such business, and that, while he was using them for his father, a portion of the indebtedness to Nelson Morris & Co. was contracted, under circumstances which tend very strongly to show that Daniel M. could not reasonably have expected to pay for the goods obtained.

The circuit judge charged the jury, in effect, that if there was no immediate delivery of the property, and no actual and continued change of possession, then, by the terms of How. Stat. § 6190, the burden of proof rested upon the plaintiff to show that the sale was made in good faith, and without intent to defraud creditors. It is contended that this instruction was misleading, as the jury must have understood that what was meant by the expression “immediate delivery” was instantaneous delivery, and it is contended that this was too literal an intrepretation of the statute. We think,' however, that the jury could hardly have so understood this • instruction, nor do we think the true import could have been well misunderstood, as applied to the facts of this case. If there was in fact no change in the indicia of ownership, and if, in consequence of this fact, Nelson Morris & Oo. were induced to extend credit on Monday, when they would not otherwise have done so, it is clear that the immediate delivery contemplated and made necessary by the statute did not take place. Kipp v. Lamoreaux, 81 Mich. 299. We do not mean to intimate that» a brief delay in the delivery of property sold, when there ] has been no change in the situation of creditors or of the parties to be considered, will have the effect to shift the burden of proof under this statute. But such is not this case as made by the defendant.

For the purpose of showing title, the plaintiff went at length into the dealings between herself and husband, by which means she sought to establish the fact that she had in her own right property from which she received a revenue sufficient to enable her to make certain loans to her husband, in part extinguishment of which the bill of sale in question was claimed by her to have -been given. She gave testimony tending to show that she brought with her from the old country quite a sum of money, and that as early as 1878 she made a purchase of real estate in the city'of Grand Rapids, and bought other pieces of real estate from time to time; that, when she bought this real estate, she supposed the title should be in the name of her husband, and the deeds were accordingly taken in his name, but that in 1885 she learned that she was mistaken in this, and thereupon^ requested him to deed the property to her, which he did; that among the pieces of property was one lot in conveying which an error had been made in the deed running to Daniel M.. Jansen, made in 1884; that, without discovery of this error, this property was deeded by a warranty deed to the plaintiff, on November 16, 1885; that subsequently the mistake was discovered, and in 1887 the title perfected by a deed running to Daniel M. Jansen; and that the title remained in this state until May 4, 1892, when Daniel M. Jansen executed a deed to the plaintiff. The defendant offered testimony tending to show that Mr. Jansen had exercised acts of ownership •over the real estate; that he had employed a man to put in a well on the property, and had listed some of it with a real estate agent for sale, as his own property.

The plaintiff requested the court to charge the jury as follows:

“If you find from the evidence in this case that the warranty deed of November 16, 1885, of tbe lot known in the evidence in this case as ‘lot No. 5/ from Daniel M. Jansen to Aaltje Jansen, was given without any intention of defrauding the creditors of the said Daniel M. Jansen, and in fact did not defraud such creditors at that time, you are instructed that such deed would convey the entire right and title of the said Daniel M. Jansen in and to the said lot 5 to Aaltje Jansen, whether the same had been purchased originally with her money or not, as, under such circumstances, he had a right to' make his wife a gift of said property, and subsequent creditors have no right to complain of the same.”

And also another request, as follows:

“If you should find that said lot 5 was purchased by Aaltje Jansen with her money, and the title to the saíne was placed in the name of her husband, Daniel M. Jansen, at that time, and that he afterwards, in recognition of her right to the ownership of the lot, executed a warranty deed of the same to her at her request, you are instructed that such deed would convey the entire right and title in said lot of the said Daniel M. Jansen, acquired by such original conveyance to him, and subsequent ■creditors of the said Daniel M. Jansen cannot object to or attack the validity of such deed.”

And, also:

“By the execution and delivery of the warranty deed from Daniel M. Jansen to Aaltje Jansen, November 16, 1885, of lot 5, all title of said lot which he afterwards acquired by reason of the administrator’s deed of 1887 inured to the benefit of the said Aaltje Jansen.”

These requests the court refused to give, but charged "the jury as follows:

“The title to the property — the real estate — is not involved in this suit, but the title merely to the horses, harness, and the bundle of straps; but the whole relations of the parties to each other during their whole married life, nearly, and their handling of property, have been admitted in evidence in. this case, not for the purpose of determining their title to the realty, but. as bearing upon the question of whether or not the fraud has been perpetrated with reference to this suit; and all of these facts and circumstances are to he considered only in so far as they tend to a solution of the question here involved, — whether or not the property was the property of Mr. Jansen, and whether or not it was fraudulently conveyed.”

We think this instruction was misleading, and that the requests preferred should have been given. It is true that the title to the real estate was not the principal question in the case, but it was one question; for, clearly, if the jury found that the plaintiff’s claim to ownership of the real estate was ill founded, there was no source from which she could have derived the moneys to make the advances. As this question was made a material one by the course which the testimony took on both sides, it was quite essential that the jury should not be left to grope in the dark in determining, as a preliminary inquiry, who owned the real estate. We might be able to say that, so far as the question of fact involved as to the ownership is concerned, the jury would have felt authorized to consider that, under the instruction given. But the effect of the deed of lot 5, made November 16. 1885, was a legal question, upon which an instruction from the court was not only appropriate, but, if asked for by counsel, a matter of right.

There are other objections urged, which we do not deem it necessary to consider, as they are not likely to arise upon another trial of the case:

Judgment reversed, and new trial ordered.

McGrath, O. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.


author: Long, J.

text:
    Aultman, Miller & Company v. Henry Knapp.

      Sale — Warranty—Acceptance.
    Defendant 'gave plaintiff an order for a mowing machine, which plaintiff warranted to be well made and of good material. When the machine was delivered to the defendant he refused to accept it on the ground that it was defective, and in a suit to recover the purchase price offered evidence tending to establish that fact. And it is held that, if the jury believed the testimony of the defendant, it would have been their duty, under a charge to that effect, to return a verdict in his favor, as he could not be compelled to accept and pay for an imperfect machine, and one which did not comply with the contract.
    Error to Grand Traverse. (Corbett, J.)
    Argued April 5, 1895.
    Decided April 30, 1895.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      XJmlor <£ Pulsipher, for appellant.

      Pratt é Davis, for defendant.
   Long, J.

Defendant purchased a mowing machine of plaintiff through its agent, Mr. Dobson. The order given for the machine contained the following warranty and agreement, signed by plaintiff:

“The Buckeye machine, for which the within order is given, is warranted to be well made, of good material, and, if properly managed, to do good work. The purchaser shall have one day in the harvest field to give it a fair trial, and agrees to see that the machine is properly managed. In case the machine does not do good work, the purchaser is to give written notice, both to the agent from whom he received the machine, and to Aultman, Miller & Co., Akron, Ohio, stating wherein it fails, and shall allow reasonable time to get to it and remedy the defects, if any; and the purchaser shall render necessary and friendly assistance to the person sent to look after the machine, and shall furnish-a suitable team for making further test of the machine, and, if it cannot be made to do good work, he shall return it to the place where he received it, free of charge, in as good condition as when received, excepting natural wear, and a new machine will be given in its place, or the money will be refunded. Continued possession of the machine, or failure to give notice as above, shall be conclusive evidence that the machine fills the warranty; and no one has any authority to change this warranty in any manner whatever.”

Plaintiff gave evidence tending to show that the defendant received the machine at Kingsley station, ■ took it home, and set it up, and that a few days thereafter plaintiff’s agent went to his place, and further assisted him in putting it up. At that time the defendant noticed a crack in the casting that regulates the tilting, and called Mr. Dobson’s attention to it, who replied that it was not sufficient to injure the machine in any way; that he should go on and use it, and, if it ever broke or troubled him, to let him (Dobson) know, and he would replace it with a new one. It appears that the defendant tried it for one day, and, as defendant admits, found it to work well, except that it was broken. He then set it aside, and never used it again. This was in June.

Defendant gave testimony upon the trial tending to show that, at the time Dobson came to put the machine in order, he told him he could not accept it as it was. Defendant testified:

“I told him I would not accept the machine until it was made right. He stated: ‘You go on and use it, and, if it ever bothers you, I will replace any piece.’ I says: ‘That won’t do. If I go to the field with the hands to work, it will trouble me more than the whole thing is worth. I will not accept it till it is fixed at once.’ 1 tried the machine a day. She satisfied me on the work part, hut not on the breakage.’’

No new piece was ever furnished for the machine in place of the broken part. Mr. Dobson called on the defendant in September to have him sign notes for the machine, but this was never done.

' The court instructed the jury substantially that if the machine was well made, and of good material, and, when properly managed, did good work, they should find a verdict for the plaintiff; but if it was not a perfect machine, and did not come within the waranty, but was cracked and defective, the plaintiff could not recover till it had delivered within a reasonable time a perfect machine, or had remedied the defect. The jury returned a verdict in favor of defendant.

It is insisted by plaintiff:

1. That the defendant, under the plea of the general issue, could not show a breach of the warranty.
2. That, because the defendant accepted and gave the machine a trial after calling the attention of Mr. Dobson to the defect, by so doing he lost his right to refuse.to take the machine because of the breach of the warranty, and that he is therefore liable for the purchase price.
3. That the defendant should have notified the plaintiff or its agent within a reasonable time after testing the machine, stating wherein the machine failed to work, and of his refusal to accept it.
4. That defendant failed to return the machine, and that he cannot retain the possession, and then set up the breach of the warranty in an action to recover the price.

There might be some force in these contentions if there had ever been an acceptance of the machine under the order, and in-reliance upon the warranty. But it appears that, when the machine was delivered to the defendant, it was defective. The attention of plaintiff’s agent, it is admitted, was called to this defect. Plaintiff contends that the defendant was to use the machine, and, if the defective part gave out, it would furnish a new piece in its place, and that this amounted to an acceptance. It appears that the plaintiff’s agent went to the defendant’s place in September, and there learned that the defendant refused to take the machine or use it. He attempted to make a settlement and get the defendant’s notes, and admits that defendant refused to settle. He also admits that thereafter the plaintiff company sent him a new piece to supply the defective part, but that he never tendered it to the defendant, or advised him that he had it, but commenced suit to enforce payment for the machine. On the other hand, defendant contends that he never accepted the machine, because it was defective, and that, when the plaintiff’s agent came to him first, he told him he would not accept it. The defendant, on the trial, was not relying upon the warranty as a defense to the action. He was relying upon the contract to have delivered to him a perfect machine before he was compelled to accept, and, not having accepted it, he was not compelled to receive and pay for it until it was made perfect. In this view of the case, the charge was more favorable to the plaintiff than it was entitled to under the defendant’s theory, for it appeared conclusively that no effort had. ever been made to remedy the defect. If the jury believed the testimony of the defendant that he refused to accept the machine, it would have been their duty, under a charge to that effect, to return a verdict in his favor, as he could not be compelled to accept and pay for an article confessed to.be imperfect and not in compliance with the contract. The questions raised by counsel for the plaintiff were therefore wholly immaterial to the case; and, under the facts presented and the theory upon which the case was tried, need not be considered here.

The judgment must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    Orin Hart v. The Board of Supervisors of Genesee County.

      Counties — Expense of fish ehutes.

    The reasonable expense incurred by the owner of a dam in constructing a fish chute or ladder, as provided by 3 How. Stat. § 2155, must be borne by the county in. which the dam is situated.

      Certiorari to Genesee. (Wisner, J.)
    Argued April 16, 1895.
    Decided April 30, 1895.
    Relator applied to the circuit court for mandamus to compel respondent to audit his account for building a fish chute in his dam. Respondent brings certiorari to review order granting the writ.
    Affirmed.
    The facts are stated in the opinion.

      Durand & Carton, for relator.

      George F. Brown; for respondent.
   Hooker, J.

Relator was the owner of a dam at Flushing, upon the Flint river. Upon the petition of a requisite number of resident tax-payers and freeholders, the respondent, at its October session, 1893, adopted the following resolution:

“Whereas, the dams in the Flint river known as the Flushing dam, the F. R. Lewis dams in Flint township and the Fourth ward, and the Hamilton dam, of this city, were swept away by the flood last April, and the owners of said dams having been duly and legally notified to put. in fish chutes in said dams when the same were being built:
“Therefore, he it resolved, that the prayer of the petitioners be granted, and the prosecuting attorney be instructed to enforce the law regulating the construction and maintenance of fish chutes in streams in the State of Michigan.”

In 1894 the relator filed his claim for $263.63 for .material and labor in constructing a fish chute in said dam, and, the same being disallowed, he filed his petition in the circuit court, praying a mandamus against respondent to compel payment, and, upon its being ordered, the proceeding was brought to this Court by certiorari. Respondent’s answer admits the petition by fourteen freeholders and the order that the chute be constructed, that said chute was built by the relator, and that respondent refused to allow his claim therefor. It states that the spring freshet of 1893 carried off the dam, and that, while the dam was out, and before the relator commenced to rebuild it, notice was served upon him by the prosecuting attorney and the supervisor of Flushing that when he rebuilt the dam he must place a fish chute therein, but that he rebuilt the dam without the chute, and that in June, 1894, he was arrested for obstructing the river by a dam without building a chute, and taken before a justice, by whom he" was discharged, upon his agreeing to pay the costs and build.the chute. After building the chute, relator filed this claim.

3 How. Stat. § 2155, provides:

“The supervisor of each township is hereby made inspector of dams in his township during his term of office, and it shall be his duty, upon the application of 12 freeholders in his township, to lay their application before the board of supervisors at their next regular meeting, and, upon the approval of said board, he shall cause to be constructed by the owner of said dam a fish chute or ladder, as provided by the terms of this act, the expense thereof to be audited and allowed by said board of supervisors, and paid out of the general or contingent fund of said county.' It shall be the duty of the supervisor to prosecute, in the name of the people, with the aid of the prosecuting attorney of his county, in all cases where this law is not complied with. The supervisor shall be paid out of the contingent fund of the county the sum of $2 for every day actually spent in the inspection of dams in his township, or while actually employed or engaged in the prosecution of any suit under this act, to be allowed and paid by the board of supervisors.”

It is argued on behalf of the respondent that this section does not impose upon the public the burden of paying the expense of building the chute, but only the compensation of the inspector of dams; but we think the statute clearly indicates that the board should audit and allow the reasonable expense of building the chute.

The order of the circuit judge must be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    Steven S. Hulbert v. James Henry.

      Justices of the peace — Terms of office.

    Under a charter which provides for the election of justices of the peace, and for their qualification, within five days after receiving notice of their election, by taking the constitutional oath and giving security in the same manner as is required by law of justices of the peace of townships, but which fixes no time for their term of office to begin or end, the terms of office of such justices are controlled by How. Stat. § 719, which provides that the terms of justices of the peace shall commence on the 4th of July next succeeding their election.

      Mandamus.

    Submitted April 16, 1895.
    Denied April 30, 1895.
    Eelator, who owned a certain judgment rendered by respondent as justice of the peace, and was desirous that execution issue thereon, applied for mandamus to compel respondent to turn over to his successor the books and papers belonging to such office. The facts are stated in the opinion.

      HuTbert & Mecliem, for relator.

      O. Scott Glarh, for respondent.
   Grant, J.

At the annual election in the city of Battle Creek, held the first Monday in April, 1891, the respondent was elected -a justice of the peace for the full term of four years. At the annual election of 1895 one Harry P. Lewis was elected justice of the peace to succeed respondent. He qualified within five days after the election. The respondent refused to turn over to Lewis the books and papers of his office, claiming that his term of office did not expire until July 4, 1895, and this presents the sole question in the case.

Section 4 of the charter provides for the election of city officers, among whom are four justices of the peace, •one to be elected annually, who shall hold their offices for four years. Section 6 of the charter provides that on the Thursday following the election the common council shall meet and decide who are elected; that the recorder shall immediately notify each of the officers, so •elected; that each shall within five days thereafter take and subscribe the constitutional oath of office; and that all justices of the peace shall also qualify within five days by filing their oaths and giving security in the same manner as is required by law of justices of the peace in townships. The above are the only provisions of the charter in relation to the election and term of office of a justice of the peace. The charter fixes no time for the term of the justice to begin or end. The language of the charter providing for the election of justices of the peace is identical with that of the Constitution. Const. art. 6, § 17. How. Stat. § 719, provides that the terms of justices of the peace shall commence upon the 4th of July next succeeding their election. It is important that the terms of judicial officers should be fixed, so that they may have time to dispose of the business pending before them before the expiration of their terms. We think the Legislature contemplated, in passing this charter, that the terms of office of justices of the peace should be controlled by the general statute. It follows that the term of office does not expire till July 4,1895.

Writ denied.

The other Justices concurred.

      . Act No. 428, Local Acts of 1887.


text:
    Charles Germaine v. The City of Muskegon.

      Municipal corporations — Defective sidewalks — Pleading—Notice— Presentation of claim to council — Contributory negligence — Instructions to jury — Special questions.

    1. A declaration in a personal injury case which avers that the defendant city well knew, or by the exercise of reasonable care ought to have known, of the dangerous and unsafe condition of the sidewalk upon which the plaintiff was injured, in the absence of a demurrer, must be held to aver sufficiently that the defect had existed for such a length of time before the accident as to justify a presumption of notice, which takes the place of actual notice.
    2. A city charter provided that it should be a sufficient defense to any action or proceeding for the collection of any demand or claim against the city of any description whatever that it had never been presented to the common council for allowance, or that it had been presented without the required affidavit, and rejected for that reason. A personal injury claim was presented to the council, verified before one of the attorneys who afterwards brought suit for the collection of the claim, but was not rejected because thus verified. And it is held that it is unnecessary to decide whether the affidavit was within the prohibition of How. Stat. § 637, which prohibits attorneys from administering oaths in causes in which they may be professionally engaged, as, by not rejecting the claim for that reason, the alleged defect was waived.
    3. The accident occurred on the evening of December 10. It was ndt claimed that the city had actual notice of the defect in the walk. And it is held that the court should have instructed the jury, as requested by the defendant, that if the plank, the removal of which caused the accident, was in place on December 8 or 9, their verdict should be for the defendant; but as the' jury found, in answer to a special question, that the plank was not in place on either of the days named, the error thus committed was without prejudice.
    4. It was not error to instruct the jury, under the facts of the case, that the plaintiff had a right to travel on the sidewalk, and that the mere fact that he did so travel, even with knowledge that there was a hole in the walk, was of itself no evidence of negligence on his part, unless the place was so dangerous that a prudent man would not have traveled on the walk.

    5. The court, after stating to the jury the rule of presumptive notice, said that it appeared that the defendant had men whose duty it was to inspect the walks, and to use reasonable care and diligence to find out whether they were in a reasonably safe condition; that if they used such care and diligence, and were unable to find the defect, or did not find it, the defendant did not then have knowledge of said defect, and plaintiff could not recover; but that, if they neglected to perform said duties, the defendant would be liable for the defect. And it is held that the contention of the defendant that the jury were permitted to base a verdict upon a failure to inspect the sidewalk, an act of negligence not charged in the declaration, is untenable; that the instruction meant no more than that the failure to inspect the walk, or to inspect it properly, did not prevent the application of the rule of presumptive notice.
    6. A statement by the court to the jury that it was very important that the special questions submitted to them should be so answered as to correspond with their general verdict, for the reason that their answers to said questions would control said verdict if it was not in accordance with said answers, did not amount to a direction that the answers to said questions must correspond with the general verdict, but amounted merely to a statement that it was important that the two should agree; and while, as said in People v. Murray, 52 Mich. 291, it is not good practice to make such statements to the jury, the language above given is no stronger than that used in the case cited, which is therefore controlling.

    7. A special question in a suit to recover damages for personal injuries sustained by stepping into a hole in a sidewalk existing by reason of the displacement of a plank, namely, “Do you find that the plank was in and out of its place at various times immediately before the accident,” is Improper, as its answer could have no controlling effect upon the general verdict
    8. It is not error for the court, in the absence of a request therefor, to fail to give the jury a definition of the term “contributory negligence,” as used in the charge in a personal injury ease.
    Error to Muskegon. (Russell, J.)
    Argued April 17, 1895.
    Decided April 30, 1895.
    Negligence case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Broion & Lovelace, for appellant.

      Jones & Oldrk, for plaintiff.

       The accident occurred at about 10 o’clock in the evening. The plaintiff testified that a little over a month before the accident he passed over the walk; that an apple rolled off the basket which he was carrying, into the hole in the walk; that he picked it out, and in so doing saw that the plank was out; that this was the first time he discovered the hole; that he remembered seeing it a couple of times after that, and before the accident; that he did not know the holp was there the night of the accident; that he was not thinking of it; that there was no snow to amount to anything on the walk; that there had been a slight fall of rain, and the walk was slippery in places; that it was somewhat down hill in the direction in which he was walking; that he happened to put his foot right above the hole; that, when he came to make a step, his foot glanced or slipped, went into the,hole, and he fell and broke his arm.

       For cases bearing upon the construction of 3 How. Stat. § 7606, which provides for the submission of special questions to the jury, see Cousins v. Railway Co., 96 Mich. 386, and note; Brassel v. Railway Co., 101 Id. 5.

   Grant, J.

A sidewalk in the defendant city was constructed of plank two by four inches laid crosswise. Plaintiff’s case was that one of these planks had been removed; that he stepped into the hole on the night of December 10, 1893, fell, and broke his arm. For this injury he recovered verdict and judgment.

Defendant objected to the admission of any testimony under the declaration, claiming that it did not state a cause of action. The precise objection is that the declaration does not ailege that the defect existed for such a length of time before the accident as will justify a presumption of notice, which takes the place of actual notice. The objection is not good. The declaration alleges that the defendant well knew, or by the exercise of reasonable care ought to have known, of the existence 'of the defect. Good pleading might perhaps require a more definite allegation, but, in the absence of a demurrer, the declaration must be held good.

The charter of the defendant city prevents the institution of suits against it until a claim duly verified has been presented to the common council. Plaintiff’s claim was presented and verified by oath administered by Mr. Glark, one of the plaintiff’s attorneys. It is insisted that under How. Stat. § 637, Mr. Clark was prohibited as a notary public from administering the oath. This statute prohibits attorneys from administering oaths “in causes in which they may be professionally engaged.’’. Jones & Clark had at that time been engaged by the plaintiff to prosecute his claim, but no suit had been instituted. We need not decide whether the affidavit is within the prohibition of the statute. The charter further provides that if the claim is presented without an affidavit, and rejected for that reason, it shall be a sufficient defense in any court to any action or. proceeding f.or the collection of the claim. This claim was not. rejected for that reason, and the defect was therefore waived.

Error is alleged in. the refusal of the court to instruct the jury that, if the plank was in its place on the 8th or 9th of December, the verdict should he for the defendant. This instruction should have been given, but the jury, in*reply to a special question, found that it was not in place on either of those days. The error, therefore, was one without prejudice.

It was not error to instruct the jury, under the facts of this case, that the plaintiff had a right to travel on the sidewalk, and that the mere fact that he did so traveb even with the knowledge that there was a hole in the walk, was of itself no evidence of negligence on his part, unless the place was so dangerous that a prudent man would not have traveled on the walk. Sidewalks are intended for the use' of pedestrians, and they are entitled to walk upon them, and are entitled to do so even if they have knowledge of a defect like the one in question.

It is argued that, under the charge of the court, the jury were permitted to base a verdict upon a failure to inspect the sidewalk, — an act of negligence not set forth in the declaration. What the court said upon this subject had a direct reference to the knowledge or notice of the defect. After stating to the jury the rule of presumptive notice, the court said that it appeared that the defendant had men whose duty it was to inspect the walks, and whose duty it was to use reasonable diligence and care to find out whether they were in a reasonably safe condition, and that if they used such care and diligence, and were unable to find the defect, or did not find it, the defendant did not then have knowledge, and the plaintiff could not recover, but, if they neglected to perform these duties, defendant would be liable for the defect. The instruction meant no more than this: that the failure to inspect, or to inspect properly, did not prevent the application of the rule of presumptive notice.

The jury, after being absent for a time, returned into court near the close of the day’s session, and stated that they were unable to agree. The judge was proceeding to direct them to bring in a sealed verdict, but, on account of the submission to them of certain special questions, he changed his mind, saying:.

“I don’t think I will give you any instructions with reference to bringing in a sealed verdict,' though, on account of those questions, because it is very important that the questions that you are asked to answer be answered so that they correspond with your other verdict, because the written questions that you answer would control your other verdict, if it was not in accordance with the written questions, and I will give you an opportunity to deliberate again.”

Counsel for defendant insist that this language is within the rule laid down in Mechanics’ Bank v. Barnes, 86 Mich. 632, and the cases there cited. Clearly, this statement of the circuit judge does not amount to a direction to the jury that their answers to special questions must correspond with their general verdict. It is merely a statement that it is important that the two should agree. We do not think it good practice to make such statements to the jury, and this Court so said in People v. Murray, 52 Mich. 291. The language in this case is no stronger than the language used in that. That case, therefore, controls in this.

The third special question submitted to the jury at the request of the defendant reads as follows:

“Do you find that the plank was in and out of its place at various times immediately before the accident?”

It is unnecessary to discuss the error assigned, because the question itself was improper. Its answer could have no controlling effect upon the general verdict. If answered “Yes,” as defendant claimed it should be under the evidence, it would have made no difference with a verdict against the defendant. Besides, what would the jury understand by “immediately?” If answered “Yes,” no one could have told whether they understood it to mean half a day, one day, two days, or more.

Error is alleged in that the court failed to give the jury a definition of “contributory negligence.” If counsel for the defendant were of the opinion that the jury did not possess sufficient intelligence to understand the meaning of the term, they should have requested such instruction, as they desired. Having failed to do this, they cannot now be heard to complain.

Judgment affirmed.

The other Justices concurred.


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    Frederick W. Kittermaster, Executor, etc., v. Hubert Brossard and Annie Brossard.

      Mortgage — Chancery foreclosure — Solicitor’s fees.

    1. Provisions for attorney’s and solicitor’s fees in mortgages, except where expressly sanctioned by statute, are void.

    2. The equity court has no power to enforce an agreement in a mortgage for the payment, in case of foreclosure in that court, of a specified sum of money as a reasonable solicitor’s or attorney’s fee therefor, in addition to all other legal costs.

      3. How. Stat. § 6623, authorizes the Supreme Court to establish: rules of practice for the circuit courts in chancery with a view, among other things, to the diminishing of costs; and Chancery Rule No. 90 regulates the imposition of costs, and restricts the power of'the circuit courts within the limits set .forth in the rule.
    Appeal from Wayne. (Frazer, J.)
    Submitted on briefs April 17, 1895.
    Decided April 30, 1895.
    Bill to foreclose a mortgage. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Walker é Walker, for complainant.

       3 How. Stat. § 8515a, provides that in all cases of foreclosure of a mortgage upon real estate by advertisement, where an attorney and counselor at law is employed to foreclose the same, an attorney’s fee, not exceeding the amount provided for, if any, in the mortgage being foreclosed, may be included as a part of the costs, as follows: For all sums of $500 or less, $15; for all sums over $500, and not exceeding $1,000, $25; for all sums over $1,000, $35, — which sums shall include the principal and interest due on said mortgage; that if payment is made after foreclosure proceedings are commenced, and before sale is made, one half of such attorney’s fee shall be collected.
      For cases bearing upon the question, see Wilkinson v. Estate of Baxter, 97 Mich. 536, and note.

   Hooker, J.

Complainant appeals from a pro confesso decree of foreclosure, and the only question raised by the record is his right to have the decree increased by including a fee of $40, provided for by the following clause in the mortgage:

“And it is further expressly agreed that as often as any proceeding is taken to foreclose this mortgage, either by virtue of the power of sale herein contained or in chancery, or in any other manner provided by law, said first parties shall pay said second party forty dollars, as a reasonable solicitor or attorney fee therefor, in addition to all other legal costs, and will keep said mortgaged premises insured, for the benefit of said second party.”

It seems to be the settled law of Michigan that provisions for attorney’s fees in instruments are void, except where expressly sanctioned by statute. This rule is asserted in cases of stipulated attorney’s fees in promissory notes in the case of Bullock v. Taylor, 39 Mich. 137, where such provisions were held void, as a stipulation for a penalty, and opposed to the policy of our laws as to attorney’s fees. See, also, Wright v. Traver, 73 Mich. 495. Numerous cases support the rule as applied to stipulations for attorney’s and solicitor’s fees in mortgages. Van Marter v. McMillan, 39 Mich. 304; Myer v. Mart, 40 Id. 517; Canfield v. Conkling, 41 Id. 371; Parks v. Allen, 42 Id. 482; Vosburgh v. Lay, 45 Id. 455; Millard v. Truax, 47 Id. 251, 50 Id. 343; Kennedy v Brown, 50 Id. 336; Sage v. Riggs, 12 Id. 313; Hardwick v. Bassett, 29 Id. 17; Damon v. Deeves, 62 Id. 465; Louder v. Burch, 47 Id. 111; Botsford v. Botsford, 49 Id. 31.

It is contended that a court of equity may impose a reasonable solicitor’s fee, as has been done by this Court in cases cited. How. Stat. § 6623, authorizes the Supreme Court to establish rules of practice for the circuit courts in chancery with a view to “the diminishing of costs,” among other things. Such rules have been made, and Chancery Rule No. 90 regulates the imposition of costs, and restricts the power of the circuit courts. Several of the cases cited deny the validity of agreements, by parties, for larger costs than those provided by law. We think that the cases cited clearly settle the law of this State upon the subject before us, and that the complainant was not entitled to the fee claimed. The United States Supreme Court has taken the same view of the Michigan cases. See Bendey v. Townsend, 109 U. S. 665.

The decree of the circuit court must be affirmed.

The other Justices concurred.

       See Perrin v. Lepper, 72 Mich. 454; Barnes v. Marshall, 102 Id. 248.


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    Flavia M. T. Pendill et al. v. The Lucy Mining Company et al.

      Lease — Surrender—Removal of fixtures — Lion-payment of royalties

    Provision was made in a mining lease for its termination 60 days after the delivery by the lessee to the lessor of a written surrender thereof, and the payment of all royalties due thereon. The lease further provided that upon the performance of such conditions the lessee might remove the buildings, machinery, and other fixtures which he had. placed on the land. The assignee of the lease sent to- the' lessor the required surrender. The lessor wrote the assignee acknowledging its receipt, and stating that it had been recorded, and that it disposed of the lease. Subsequently an arrangement was made between the lessor and the assignee whereby the latter used the pumps for a week, and the charges therefor were paid by the lessor. Without having paid the royalties due on the lease the assignee removed the buildings, machinery, etc., from the land, after which it made such payment. The lessor sued in trover for’the value of the machinery, claiming that there had never been a surrender of the lease, owing to the non-payment of the royalties; that, if it should be held that the surrender was effected by the subsequent payment of said royalties, at- the time the assignee removed the machinery sued for no right of removal existed, as said royalties had not then been paid. And it is held that the action of the lessor in assuring the assignee that the surrender ended the lease, the subsequent receipt for the royalties, and the payment for using the pumps, amounted to a ratification of the surrender, and that as the payment of the royalty, which should have been made prior to or-concurrently with the removal of the machinery, was subsequently made, the damage to the lessor was nominal; citing Haven v. Manufacturing Co., 40 Mich. 287.
    Error to Marquette. (Stone, J.)
    Argued April 5, 1895.
    Decided April 30, 1895.
    Trover. Plaintiffs bring error.
    Affirmed.
    The facts are stated in the opinion.

      Clark & Pearl, for appellants. .

      Eayden & Young, for defendants.
   Montgomery, J.

Plaintiffs are owners of the fee of a mine in Negaunee, Marquette county-. On the 21st of December, 1886, they made a lease to one Don EL- Bacon, for the term of 99 years, subject to be determined as hereinafter stated, which lease was subsequently assigned to defendant the Lucy Mining Company... The -provisions of the lease, as far as material to the questions raised in the present case, were the following:

“The party of the second part may erect buildings, put in engines and machinery, build roads, make excavations, and do such other things on said lands proper and expedient for carrying on exploring and mining; all such engines, buildings, machinery, and other improvements shall form part of the realty when put up and erected: Provided that, on the terminiftion of this lease, the party of the second part, by paying all rents, royalties, taxes, and assessments that may be due or owing according to the terms hereof, may, within sixty days after such termination, remove such buildings, engines, tramways, machinery, and rails on any track owned by said party of the second part, but not otherwise.”

It was further provided that:

“The party of the second part majr at any time surrender and terminate this lease by executing and delivering to each of said parties of the first part, at their business office or residence, a written surrender or release thereof, in proper form for recording in the office of the register of deeds, and by paying up all arrearages of rent, royalty, or taxes that may be due or owing up to the time such surrender takes effect. This lease shall cease and determine 60 days after the delivery of such written surrender, and the payment of such royalties and taxes as aforesaid.”

The lease further provided that,—

“Whenever this lease is terminated, the party of the second part, his successors, heirs, and assigns, shall and will peaceably and quietly leave, surrender, and yield up the said premises unto said parties of the first part, their successors and assigns.”

On the 17th of July, 1893, the defendant company executed a written surrender of the lease, and forwarded the same to the plaintiffs, with a letter which, among other things, contained the following:

“We, however, are still operating the pumps, and will continue to do so for four days after this surrender is delivered to you, to enable you to make such examination in the meantime as you choose to make, and to decide upon and inform us of any disposition you desire to be made of the property thereafter, so far as we may be able in justice to accommodate you. We therefore invite you, before withdrawing the pumps, to inspect the property, and advise you that we will be willing to make any fair arrangement whereby the plant may be continued upon the property for use by you, either during the coming sixty days or thereafter, as we may be able to agree.”

It appears that the business between the defendants and the plaintiffs had been conducted on the part of the plaintiffs by James Pendill, in the main; but at the time these notices were sent he was away from home, and Frank Pendill looked after the interests of the plaintiffs. James Pendill testifies that most of his business was looked after by his brother Frank in his absence, and, while it does not clearly appear that Frank had authority to act for the other owners of the mine in the first instance, such authority is perhaps fairly inferable. However this may be, it will be seen later on that his acts in this matter were subsequently ratified. On receipt of the notice, and under date of July 18,. Frank Pendill wrote defendant’s manager as follows:

“Yours of 17th, containing surrender of Lucy Mine lease, to hand this a. m., and same has been put on record, which disposes of lease. I write James P. by this mail. He is on his way to Detroit from the East, and will arrive there, he said in last letter I had from him, on Thursday, 20th. Still it may be a day or two later. I write him to wire me upon his arrival there. If I do not see you in this city by Thursday a. m., I will go to Negaunee and call on you.”

Subsequently, Frank Pendill made an arrangement with the superintendent of defendant to run the pumps for a week, which was done, and an account was subsequently rendered to James Pendill, who, representing all the plaintiffs, adjusted the account, and allowed a credit for the charge of $111.27 for that service. On the 2d of October the defendant rendered a report of shipments in'August and September, but, as there was a claim of-a slight discrepancy in previous, months, the: royalty was not then paid. This report was subsequently, corrected by paying the items claimed by the Pendills,.. and a receipt was given as follows :•

“Received from Lucy Mining Company three thousand ■ two hundred eighty 70-100 dollars ($3,280.70-100), being the balance due as royalty on ore shipped from Lucyi Mine from the beginning of their lease to above date.
“Jambs Pendill.
“All of the other members of the family agree that above is correct. J. P.”

Before this payment was made, the defendants removed the machinery placed upon the property by them, and this action was instituted both after the machinery had been removed and the payment made, to recover in trover the. value of the machinery.

It is claimed by the plaintiffs that there has never been a surrender of the lease, for the reason that the defendants had not fully complied with the provisions relating to the surrender, by making payment of royalties; and, second, if it be held that such a surrender has now been effected and completed, that, at the time the defendants,; removed the machinery from the premises, no such right' existed, they not having then paid the royalty.

As to the first question, the letter of Frank Pendill, assuring defendant, as it did, that the surrender ended the lease, and the subsequent receipt for royalty, and thei adjustment of the account, including a charge for pumping, are only consistent with an intent on the part of the Pendills to ratify the surrender; for, unless there was a' surrender, the charge for pumping was not justified, and no objection whatever appears to have been made to it. The inference is irresistible that all the parties regarded the lease as at an end.

As to the second contention of plaintiffs, it may be conceded that the payment, of royalty and the removal of the machinery should have been simultaneous, or that the removal should not have preceded the payment of the royalty due. It cannot be doubted that at the time the removal was made the right to remove existed, depending only upon the condition that plaintiffs should be pr,id the royalty then- accrued. How much were the plaintiffs damaged by the failure of defendants to observe the proper order of proceeding? It is plain that, as the payment which should have been made prior to or concurrently with the removal was subsequently made, the damage to plaintiffs could not have been'more than nominal. We think the case is ruled by Haven v. Manufacturing Co., 40 Mich. 287.

Judgment will be affirmed, with costs.

McGrath, G. J., Long and Hooker, JJ., concurred. Grant, J., did not sit.


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    Sigmund Simon and Isaac Mendelson v. William Leland, Sheriff of Clinton County.

      Chattel mortgage — Trust—Cross replevin.

    1. Whether the mortgagee in a trust chattel mortgage securing’ several of the creditors of the mortgagor can assign to one of the creditors his interest in the mortgage, — quaere.
    2. A debtor mortgaged bis stock of goods to a creditor in- his individual capacity and as trustee for other creditors, and then sold the goods to a stranger to the mortgage. Certain of. the unsecured creditors of the mortgagor replevied a portion of the goods, joining the mortgagor, the mortgagee, and the vendee as defendants, after which certain of the secured creditors, having received from the mortgagee an assignment of their interest in the mortgage, replevied the goods from the sheriff. And it is held that the latter action was a cross replevin.

      Error to Clinton. (Daboll, J.)
    Argued April 18, 1895.
    Decided April 30, 1895.
    Replevin. Plaintiffs bring error.
    Affirmed.
    The facts are stated in the opinion.

      Watson c6 Chapman, for appellants.

      Lyon <G DoolAng, for defendant.
   Hooker, J.

Bryson, a clothing dealer, gave a chattel mortgage to High, in his individual capacity and as trustee, purporting to secure to High $1,000, to the First. National Bank of Ovid $1,000, to the Oakland County Savings Bank $2,000, and to Sigmund Simon and Isaac Mendelson, the appellants, $1,437.95. This mortgage was dated September 9, 1893, and soon after Bryson gave a bill of sale of his stock to Estey. On September 15, Rosenblatt Bros, replevied from High, Estey, and Bryson a portion of the stock which Bryson had purchased from them; and, while yet in the hands of the sheriff, Simon and Mendelson replevied the same goods from him, High having assigned to Simon and Mendelson their interest in the mortgage. These facts appearing upon the trial of the latter action, the court directed a verdict in favor of the defendant for the value of the property, upon the ground that it was a cross replevin.

The following is the only assignment of error, viz.:

“And now come the above-named plaintiffs, by H. M. High, Fedewa & Walbridge, Watson & Chapman, their attorneys, and say there is manifest error in the trial of said cause in the circuit court in the.county of Clinton, in that the circuit judge instructed the jury in his general charge as follows: ‘I think the parties in interest in this suit were all before the court in the other replevin case,— the Rosenblatt case. That being so, and the property having been replevied in that case, and held by the sheriff in custody under the replevin process, it is not proper for the parties in interest in that to bring the action of replevin against the officer, when he holds the goods in that capacity. So, by direction of the court, you will return a verdict in' favor of tlie defendant. He having waived a return of the goods, and asked a judgment for the value, in the sum of $394.30, you will so render your verdict.’ ”

It includes substantially. all of the charge. Two: points are urged under it: First, that the evidence did not show the action to be a cross replevin, within the statute; second, that the court refused to submit to the jury the question of the respective interests in the property held by plaintiffs and defendant.

If this can be held to be a valid assignment of error, it must be upon the theory that there was evidence tending to show that the plaintiffs were entitled to a verdict. It does not properlyraise any question in relation to the subject of damages or return. Furthermore, the record fails to show that the court refused to allow the jury to consider the respective interests in the property. The question was not raised, and no objection was raised, nor was any suggestion made by counsel, when the defendant’s attorney said that the defendant would waive a return, and take the value of the property. The case, therefore/.; turns upon the question of plaintiffs’ right to bring the • action; in other words, was it a cross replevin? The plaintiffs’ claim was identical with that, of High, from, whom it was received,, if it was a claim which High could assign, which we need not decide. It was based upon the-chattel mortgage. Had High brought the action, it would have been a cross replevin, beyond dispute. It was brought by persons in privity with him, and is open to the. same objection. See Fisher v. Busch, 64 Mich. 180; First National Bank v. Crowley, 24 Id. 492; Steere v. Vanderberg, 90 Id. 187; Whitney v. Hyde, 91 Id. 15; Shinn, PI. & Prac. § 165.

The judgment must be affirmed.

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


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    John Orris v. Lester Kempton.

      Justices’ courts — Trespass—Highways—Title to lands — Pleading Certifying case to circuit.

    1. The declaration in an action of trespass in justice’s court averred that the defendant, with force and arms, the lands and premises of the plaintiff (describing them) broke and entered, and carted and hauled away from said land a quantity of earth or sand, being the property of the plaintiff, etc. And it is held that the declaration failed.to aver that the title to the land was in the plaintiff, and that the giving of the description of the land only tended to identify the place where the alleged trespass was committed.
    2. The plaintiff, to prove his cause of. action, testified that he was the owner of the land described in the declaration, and had been in actual possession thereof for 16 years; that said land abutted on a public highway; that the alleged trespass consisted in removing, from that half of said highway adjoining said land, a load of dirt, by direction of the highway commissioner. And it is held that the plaintiff was not iff the actual possession of the land where, the trespass was committed, it being part of a public highway, and that he could only recover by showing title to the adjoining land, and, having sought to make such proof of title, and the defendant not admitting it, the case should have been certified to the circuit court.
    Error to Berrien. (Coolidge, J.)
    Submitted on briefs April 18, 1895.
    Decided April 30, 1895.
    Trespass. Plaintiff brings error.
    Affirmed.
    The facts are stated in tbe opinion.

      George W. Skinner, for appellant.

      O. M. Yan Riper, for defendant.
   Hooker, J.

Plaintiff brought trespass quare elaitsum in justice’s court. The declaration was in writing, and charged that the defendant,—

“With force and arms, the lands and premises of the said plaintiff, situated,” etc., “and known as the northwest quarter of the north-east quarter of section eleven,” etc., “broke and entered,” etc.

The defendant pleaded the general issue. To prove his cause of action, the plaintiff testified that he was the owner of the land described, and had been in actual possession of the same for 16 years; that there was a highway on the north boundary line of said premises; that the trespass consisted in defendant’s drawing a load of dirt, by direction of the highway commissioner, from within the limits of the public highway upon said premises. The defendant then asked the justice to certify the case to the circuit court upon the ground that title to land was brought in question by the plaintiff. Judgment for the plaintiff was reversed upon certiorari by the circuit court, and the plaintiff brings it to this Court by writ of error.

It seems to be conceded that the dirt was taken from an existing public highway. Under the case of Ostrom v. Potter, 71 Mich. 44, plaintiff was not in the actual possession of the land where the trespass was committed, and could only recover by showing that he had title to the premises. Plaintiff’s answer to this is that the declaration averred title, but we think there is no force in this. It nowhere states that he was owner of the premises, in fee or otherwise. It might as well have followed the usual form, by stating that defendant broke and entered the close, as to have used the term Hands and premises,” while giving the description only tended to identify the place. The plaintiff, realizing the necessity, sought to prove title in himself, and, defendant not admitting it, the case should have been certified to the circuit court.

The judgment of the circuit court must be affirmed.

The other Justices concurred.


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    Aaron Hathaway and John A. Lindsley v. Frank Judie.
    [See 95 Mich. 241.]

      Sale — (Question for jury.

    A question of fact only is involved in this case, and, the same having been submitted to the jury under a fair charge, the judgment is affirmed.
    Error to Cass. (Coolidge, J.)
    Argued April 19, 1895.
    Decided April 30, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion, and in 95 Mich. 241.

      F. J. Atwell, for appellant.

      Charles E. Sweet, for plaintiffs.
   Montgomery, J.

This cáse was once before the Court, and the facts as they occurred are set out in the opinion reported in 95 Mich. 241. It was there held that the question of whether the defendant was in fact the purchaser of the lumber sued for was a question for the jury. On the second trial substantially the same facts- were made to appear on the part of the plaintiffs, but defendant took the stand, and denied having made any arrangement with the plaintiffs for the purchase of the lumber, and was to some extent corroborated by other witnesses. There was, however, a direct issue of fact. This testimony offered by the defense did not change the legal aspect of the case. Plaintiffs still had the right to take the verdict of the jury. The court submitted the question to the jury under a fair charge, and a verdict was found sustaining the plaintiffs’ claim.

No error was committed, and the judgment will be affirmed, with costs.

The other Justices concurred.


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    Jessie McKenzie v. James H. Vandecar.

      Sale — Fraud—Eoidenee.
    1. Testimony competent for one purpose' cannot be excluded because incompetent for another purpose.
    2:, Where, .in an action by a mother to recover the purchase price of a stock of goods which she claims to have sold to the defendant through her son as her agent, the defense is that the goods were bought of the son as his property, it is competent for the defendant to show, in support of said defense, that plaintiff paid nothing for the goods, and that, whatever the arrangements were between plaintiff and her son, they ■ were only a cover to conceal the property from the creditors of the son, who was the real owner of the goods. ■
    Error to Lapeer. (Moore, J.)
    Argued April 19, 1895.
    Decided April 30, 1895.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Stielcney <£ Hatpin and Charles F. Gates, for appellant.

      Geer & Williams, for defendant.
   Grant, J.

This suit was brought to recover the purchase price of a stock of goods, which plaintiff asserted she sold to defendant, through her son, as her agent. Defendant asserted that he did not know the plaintiff in the transaction, but that he bought them from her son as his property, and that his contract of purchase was with the son,'and not the plaintiff. After the purchase, the defendant ha.d been garnished by the creditors of the son.

The error assigned is the admission of testimony showing that plaintiff paid nothing for the goods, and that, whatever the arrangements were between her and her son, they were only a cover to conceal the property from the creditors of the son, the real owner. The testimony offered tended to show that plaintiff was not the owner. It is no objection to its admission that it also tended to show that the transaction between her and her son was fraudulent as to creditors. Testimony competent for one purpose cannot be excluded because it is incompetent for another purpose. This case is not ruled by Hosley v. Scott, 59 Mich. 420. In that case Hosley bought the property of. Mrs. Scott as the owner. The relation of vendor and vendee existed. In the present case, under defendant’s evidence, he made no contract with plaintiff, but with another party, and he therefore had the fight to contest her title, and introduce any testimony legitimately tending to show that it was in the person from whom he purchased, and not in her. The testimony was competent for that purpose.

Judgment affirmed.

Long, Montgomery, and Hooker, JJ., concurred. McG-rath, O. J.. did not sit


author: Per Curiam.

text:
    George W. Stone, Receiver, etc., v. Rollin H. Person, Circuit Judge of Ingham County.

      Equity practice — Intervention by claimant — Nunc pro tunc order.

    1. A creditor of an insolvent banking corporation organized under the State law, for which a receiver has been appointed, should apply to the court in which the proceedings are pending for leave to intervene, before filing his petition therein as a claimant; citing Bank v. Circuit Judge, 98 Mich. 173.
    2. While the practice is not to be encouraged, it is competent, generally, for said court, by a nunc pro tunc order, to authorize and validate such unauthorized intervention by said claimant.
    3. An order sustaining the demurrer of the petitioner to the plea in abatement “filed by the receiver to said petition, and a subsequent order denying the application of the receiver to strike said petition from the files, are equivalent in all respects to such nunc pro tunc order.

      ■Mandamus.

    Submitted March 19, 1895.
    Order to show cause denied May 7, 1895.
    Relator was appointed receiver of the Central Michigan Savings Bank, upon bill filed by the Banking Commissioner. Thereafter one Addie F. Buck, without applying for leave to intervene, filed her petition in said suit for an order requiring relator to pay „an alleged claim held by her against the bank, to which petition relator interposed a plea in abatement.
    A demurrer to said plea was sustained, and relator’s motion to dismiss the petition of the intervener denied;
    whereupon relator applied for mandamus to compel the relief desired.

      M. Y. & R. A. Montgomery, for relator.
   Per Curiam.

The voluntary intervention by Mrs. Buck, and the filing of her petition in the pending chancery suit of Sherwood, Commissioner, v. Central Michigan Savings Banh, without having first obtained leave to do so, were undoubtedly irregular and unauthorized. The correct practice is pointed out in Citizens’ Savings Bank v. Circuit Judge, 98 Mich. 173. The circuit judge might, and perhaps should, have dismissed or stricken from the files her petition. But he declined to do so, and the question now is, shall this Court by mandamus compel it to be done? If Mrs. Buck had applied for leave to intervene and to file her petition, such leave could, and probably would, have been granted. That course should have been pursued. But, while the practice is not to be encouraged, it is undoubtedly competent, generally, for the chancery court, by order nunc pro tunc, to authorize and validate the intervention and the filing of such petition by a claimant. We are satisfied that the order of the circuit court for the county of Ingham, in chancery, sustaining petitioner’s demurrer, and the subsequent order of March 16 last, denying the application to strike the petition of Mrs. Buck from the files, should be treated as equivalent in all respects to such order nunc pro' tunc.

It follows that the mandamus prayed for cannot issue. Belator’s application, therefore, for an order to show . cause, must be denied.


author: Pbr Curiam.

text:
    In the Matter of Albert L. Chandler.

      Ikttorneys — Disbarment.
    In disbarment proceedings, the court should examine the testimony taken, notwithstanding the statement by the counsél for the petitioners that, in his opinion, the charges have not been sustained; tbe respondent being entitled*to an authoritative determination’of the question.
    The circuit judge for Shiawassee county, Hon. C. H. Wisner, upon information furnished him under oath, filed in the Supreme Court ’ certain charges against respondent, an attorney at law, praying that a hearing be •had thereon, and, if such charges be substantiated, that respondent be disbarred.
    The testimony taken was submitted to the Court April 30, 1895.
    Proceedings dismissed May 7, 1895.

      Fred A. Maynard, Attorney General, and Frank H. Watson, Prosecuting Attorney, for the people.

      William, M. Kilpatrick and G. R. Lyon, for .respondent.
   Pbr Curiam.

The respondent is an attorney, licensed to practice in this Court, and the'present proceeding .is based upon information furnished to the judge of the circuit court for the county of Shiawassee.' The nature df the charges was such that the circuit judge could not have done less than to direct an examination. into the facts alleged.- This has been had. The case was referred to a circuit court commissioner of Shiawassee county to take testimony, and on the coming in of the report the Attorney General states that, after an examination of the case, he is satisfied that the charges are not sustained by the proofs. We have, however, deemed it due both to the Court and to Mr. Chandler that the testimony should be examined by the Court. The reputation of an attorney for integrity and fidelity to the interests of his client constitute his capital in business, and where such reputation .■ is assailéd it is his right that an authoritative determination of the question fact be made by the court. After a careful exiamination of the testimony, we are convinced .that Mr. Chandler should be fully acquitted of the charges. • • ...

The proceedings will be dismissed.