text:
    GOLDEN v. BARTLETT ILLUMINATING CO.
    Accord and Satisfaction — Receipt in Full — Duress.
    An employé who is paid semi-monthly in checks, each of which recites that the payment is “in full for services to date,” and who, upon the termination of his employment, accepts a check similarly worded for the balance of his salary, giving therefor his receipt in full, cannot avoid the effect of the settlement, and recover for alleged extra services, by showing that he signed such receipt without reading it, on being told that, if he did not sign it, he would get nothing at all.
    Error to Saginaw; Wilber, J.
    Submitted October 7, 1897.
    Decided October 25, 1897.

      Assumpsit by Joseph Golden against the Bartlett Illuminating Company for work and labor performed. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Van Kleeck & Anneke, for appellant.

      Weadock & Purcell, for appellee.
   Moore, J.

This action was brought to recover $10 a month for 26 months, during which time the plaintiff was at work for the defendant. The circuit judge directed a verdict in favor of defendant. Plaintiff appeals.

The plaintiff testified that he was an expert electrician in the employ of defendant company, at $60 a month; that in 1893 the collector of the company quit work, and it was agreed that plaintiff, in addition to the work he was then doing, was to do the work of the collector, and was to receive $10 a month therefor; and that he worked under that contract 27 months, or until October 22, 1895. He testified that he was paid by the company $60 a month during all of this time, and was paid the extra $10 for the first month after the contract was entered upon, but had never been paid the extra $10 a month for the other 26 months; that he asked the superintendent for his pay at the end of the second month, and was told that he would have to pay for the bicycle he was using; that, after some words, plaintiff decided he “would pay a reasonable price for the wheel, and then demand the $10 again;” that he let it run along three months; “and I asked him again, and he laughed at me, and said I did not have the wheel paid for, and walked away;” that'he asked him two or three times for it, “but he never agreed to pay me afterwards. He never said he would agree to give it to me or would not give it to me, but he would laugh at me, and walk away. Said I did not have the wheel paid for, or something, and walk away, until I quit; and then he said he did not owe me anything. * * * At the time I quit, I had some words.

Q. You had some words?
“A. Oh, we settled up.
Q. When you settled, you gave a receipt, did you?
“A. Yes.
“ Q. Under what circumstances did you give that receipt ?
“A. It was forced upon me; you might as well say it was. One man held the checks, and the other two stood back and forth, and walked up and down, and said I would sign a receipt, or he wouldn’t give me a damn cent; and, of course, I was excited, and I signed the receipt. I did not read either the receipt or the checks when handed to me.
Q. Who was walking up and down?
“A. Mr. Lempke.
Q. At the time you signed the receipt, do you say you read it or not ?
“A. No, sir; I did not.
Q. Was it read to you ?
“A. No, sir.
Q. Who told you it was a receipt?
“A. Well, I supposed it was a receipt.
“ Q. When did you first learn the amount of the money given you ?
“A. After I got home.
Q. At that time, was there any talk about this extra $10 for the collecting ?
“A. No, sir; because I was in a hurry to get out of the office, because I knew there was three men to one, and I knew, if there was any trouble, he would probably get at my neck; so I got out of the office as quick as I could.”

The pay-day of the company was every other Monday. Payments were not always made on those days, but the record shows that, on an average, two checks payable to the order of the plaintiff were each month delivered to the plaintiff for his wages; that upon the face of each check, above the signature of the maker of the check, were the words, “in full for services to date.” The plaintiff indorsed these checks, and obtained the money upon them. There were nearly 50 of the checks. When plaintiff quit work, two checks, amounting'to $166.07, payable to his order, and reciting that they were in full for services to date, were delivered to him; and at the same time he gave a receipt to the defendant for the amount of the money paid, stating it was in full for services to date. These checks and receipts were offered in evidence, but no witnesses were sworn by the defendant. On the cross-examination, the plaintiff testified he made two demands for the extra compensation, once after the first check, and the other time two, three, or four months later; that he thought he made a demand when he gave the last receipt; that he was then told that, if he did not sign the receipt, he would not get a cent; that he then signed the receipt, and the checks were delivered to him; that he took them home, and afterwards had them cashed.

It is claimed'now that plaintiff was forced into giving the receipts; that they were given under duress; and that there was a question to be submitted to the jury of the amount due the plaintiff, — counsel citing Vyne v. Glenn, 41 Mich. 112; McAllister v. Engle, 52 Mich. 56; Brooks v. White, 2 Metc. (Mass.) 285 (37 Am. Dec. 95); Fitch v. Sutton, 5 East, 230; Hayes v. Insurance Co., 125 Ill. 626. These cases are not applicable to this case. The case comes clearly within the reasoning of the case of Tanner v. Merrill, 108 Mich. 58, where there is so full and complete a discussion of the effect of giving receipts under such circumstances as surrounded the acceptance of the checks and the giving of the receipts in this case' that it is not necessary to restate the law applicable to-the case here. We do not think the court erred in his disposition of the case. See Bartlett v. Railway Co., 82 Mich. 658.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BRINKERHOFF v. PEEK.
    1. Witnesses — Attorney and Client — Privilege.
    An attorney in whose hands notes against the same person have been placed for collection by both plaintiff and defendant may testify to a sale of plaintiff’s note to defendant, where he further testifies that he acted in the transaction as attorney for the plaintiff, and not the defendant, and the latter denies that any sale of the note was made, but claims that it was indorsed to him merely for the purposes of suit.
    2. Pleading — Admissions—Notice of Defense.
    Defendant in an action to recover the purchase price of a • promissory note cannot claim that the note was not delivered, where he pleads the general issue, and gives notice that he did not purchase the note from plaintiff, but received it for collection, and now holds it as an interest in a judgment rendered in his favor against the maker of the note.,
    Error to Grand Traverse; Corbett, J.
    Submitted October 6, 1897.
    Decided October 25, 1897.

      Assumpsit by Peter S. Brinkerhoff against George W. Peek to recover the purchase price of a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Undemoood & Umlor, for appellant.

      Patchin & Orotser, for appellee.
   Moore, J.

Plaintiff recovered a judgment against defendant, from which judgment defendant appeals.

Prior to the making of the note in controversy, the defendant borrowed of plaintiff a sum of money. At the time, he informed the plaintiff that one Saylor wanted to borrow $150, and was told by plaintiff that, if defendant would sign the note with Saylor, he would let him have the money. This was done. The note was not paid at maturity, but Saylor made payments of interest from time to time. The note was placed by the plaintiff in the hands of Umlor & Pulcipher for collection. The defendant had a note of $85 against Saylor, which he placed in the hands of the same firm for collection. It is the claim of the plaintiff that an arrangement was made by which he sold the note owned by him to the defendant, and indorsed it over to him. Mr. Peek sued Saylor for the $150 note and the $85 note, in the circuit court, and obtained judgment against him. An execution was issued upon that judgment, which was returned unsatisfied-Mr. Peek afterwards filed a sworn bill in aid of this execution, and to set aside a conveyance of real estate by Mr. Saylor to his wife.

It is the claim of Mr. Peek that he never purchased the note of plaintiff, but that it was indorsed to him to enable suit to be brought upon both notes in one proceeding, at less expense, and for collection only, and that he never had any other interest in the note. The testimony is very conflicting, and the trial judge charged the jury, in the plainest of language, that, if defendant bought this note, he was liable; that, if he did not buy it, he was not liable; and the jury found he did buy it.

The defendant was a resident of New York. It is the claim of the plaintiff that the sale of the note was made by his attorney, Mr. Pulcipher, to Mr. Peek. Mr. Pulcipher testified to the transaction. Objection was made to Mr. Pulcipher’s testifying, upon the ground that he was acting as the attorney for Mr. Peek; but Mr. Pulcipher testified that he was not acting for Mr. Peek in the sale to him, but was acting for Mr. Brinkerhoff, while Mr. Peek denied that any sale had ever been made to him. Taking the record as it stands, we think it was competent for Mr. Pulcipher to testify.

It is the claim of the defendant that as the amount to be paid for the note was $150, and the note never, passed into the actual possession of the defendant, the transaction came within the statute of frauds, and was void. In this suit the defendant pleaded the general issue, and gave notice that he did not purchase the note from the plaintiff, “but received the same for collection, with other of defendant’s claims, against one John Saylor, and now holds the same as an interest in a certain judgment rendered by the said court against said John Saylor, and in favor of this defendant.” The circuit judge held that, in view of the pleadings, defendant could not now say that the note had not been delivered to him, and that the question for the jury to decide was whether the note was •delivered because it was sold to defendant, as plaintiff claimed, or whether it was delivered for the purpose of collection, as defendant claimed. We do not think this was error.

Judgment is affirmed.

The other Justices concurred.


text:
    MARX v. BELLEL.

    Married Women — Promissory Note — Consideration.
    Defendant, who wished to obtain a loan for carrying on her husband’s business, made a promissory note for the amount required, due in one year, and secured the same by a chattel mortgage upon her separate property. Upon its appearing that the payee, plaintiff’s agent, would be unable to discount the one-year note, defendant’s husband gave his three-months , note, and the money was obtained on this note upon plaintiff’s indorsement. Defendant’s note and mortgage were delivered to plaintiff as security. Thereafter defendant gave her note in renewal of-the one on which the loan had been secured, and the security in plaintiff’s hands was canceled. Held, that defendant, by mortgaging her separat e property to secure the indebtedness, became liable for the debt, and was therefore liable on the renewal note.
    Error to Wayne; Erazer, J.
    Submitted October 7, 1897.
    Decided October 25, 1897.

      Assumpsit by Maria Marx against Elizabeth Bellel upon a promissory note. Erom a judgment for plaintiff, defendant brings error.
    Af&rmed.
    Flowers, May & Moloney, for appellant.

      W. F. Baubie, for appellee.

       Rehearing denied December 21, 1897.

   Moore, J.

Plaintiff recovered a judgment against defendant, from which defendant appeals. •

Prior to June, 1895, Prank Bellel had been engaged in keeping a saloon and restaurant, and had business relations with the Wyandotte Brewing Company, through Prank Marx, who was one of its stockholders, and is the son of the plaintiff. It is the claim of the plaintiff that in June Mr. Bellel was sick, and it was evident he could not go on with the business, and that he soon afterwards died; that his wife desired to go on with the business, with the assistance of her son. It is also claimed that Mrs. Bellel desired Frank Marx to find $500 for her, with which to pay the tax upon the business,' and agreed that, if he would do so, she would secure him by giving a mortgage upon her piano; that Frank Marx learned he could get the money with the assistance of his mother, and so informed Mrs. Bellel; that, on the 27th of June, Mrs. Bellel made her note for $417, payable July 1, 1896, to Frank Marx, and secured the same by executing to him a chattel mortgage for a like amount upon her piano; that, by direction of Mrs. Bellel, Mr. Bellel brought the note and mortgage to Mr. Marx, at Wyandotte, where it was expected the money would be procured at the bank. When application was made at the bank for the money, it declined to furnish it, on the ground that the note ran too long. It is claimed that an arrangement was then made by which a note of $400, due in three months, was given by Frank Bellel to Mrs. Marx, the plaintiff, which was indorsed by her. This note was discounted at the bank, the money delivered to Mr. Bellel, the plaintiff claims, for his wife, and the note and chattel mortgage signed by Mrs. Bellel were delivered to secure Mrs. Marx for her indorsement. The chattel mortgage was duly filed. It is also claimed that Mrs. Bellel told Mr. Marx that she received the money all right, and approved of the transaction. The note, signed by Frank Bellel and indorsed by Mrs. Marx, was not paid at maturity, but a like note was given in renewal thereof. A renewal note was also given October 2, 1895, due in two months. This note was not paid, and it is claimed by the plaintiff that an arrangement was then made with the defendant by which she gave her note, dated December 5, 1895, to Mrs. Marx, for $400, due in two months; and the note of Frank Bellel was thereupon canceled, and the note of Mrs. Bellel and the chattel mortgage upon Mrs. Bellel’s piano, dated June 27, 1895, were canceled, and the lien upon the piano was released.

This action is brought upon the note of December 5, 1895. It is the claim of defendant that the note was not given for her benefit; that she did not conduct the business ; that the piano belonged to her husband and herself; that, when the note sued upon was given, she was a married woman; that the note was not given in relation to her estate, but was given to take the place of a note given by her husband, and was void. The testimony was very conflicting. The trial judge submitted the question to the jury, who found in favor of the plaintiff. A great many assignments of error are made, but those necessary to be discussed relate to the charge of the court.

The circuit judge, in a very full charge to the jury in relation to the liability of a married woman, made use of this language:

“In other words, if she has property of her own, she may mortgage it for the purpose of securing money for her husband’s benefit, because, under the law, a debt of that kind would be the debt of herself in relation to her sole property; therefore she might, by mortgaging her own property, become liable for the debt of her husband.”

Defendant claims this is error, and cites Schmidt v. Spencer, 87 Mich. 121; Emery v. Lord, 26 Mich. 431, 434; West v. Laraway, 28 Mich. 464; Ross v. Walker, 31 Mich. 120, 125, 126; Kitchell v. Mudgett, 37 Mich. 84; Jenne v. Marble, Id. 321, 322; Johnson v. Sutherland, 39 Mich. 579, 581. An inspection of these cases will show that they do not support the construction claimed by counsel. They relate to the personal liability of the wife for the debt of her husband, and not to her ability to create a lien upon her estate for his debt. For more than 30 years it has been the law in this State that “there is no legal objection to the making by a wife of a mortgage to secure her husband’s debts.” Watson v. Thurber, 11 Mich. 457; Burdeno v. Amperse, 14 Mich. 97 (90 Am. Dec. 229); De Vries v. Conklin, 22 Mich. 258.

The other assignments of error in relation to the charge relate to isolated sentences, which, while objectionable standing alone, when taken in connection with the entire charge, could not have misled the jury.

We discover no reversible error in the record.

Judgment is affirmed.

The other Justices concurred.


text:
    SATTERLEE v. CRONKHITE.
    Land Contracts — Default—Forfeiture of Payments.
    A vendee in a land contract which authorizes the vendor to declare a forfeiture for nonpayment of installments, and provides that, in such case, all payments previously made shall be forfeited to the vendor, cannot recover from the latter any payments made upon the contract, notwithstanding a sale of the land by the vendor to a third party, where the conveyance was made expressly subject to the rights of the vendee, who was in default at the time, and did not intend to make any further payments, nor- offer to make any when a forfeiture was subsequently declared by the grantee.
    Error to Kent; Adsit, J.
    Submitted October 7, 1897.
    Decided October 25, 1897.

      Assumpsit by Ophelia Satterlee against Woolsey Cronkhite to recover payments made upon a land contract. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Stuart & Barker, for appellant.

      C. O. Smedley (John W. Powers, of counsel), for appellee.
   Moore, J.

Plaintiff, by the direction of the court to the jury, recovered' a judgment for money paid upon a land contract, from which judgment defendant appeals.

October 10, 1892, the plaintiff and her sister made a contract with defendant for the purchase of certain real estate for the sum of $4,000, $250 to be paid upon delivery of the contract, and $20 a month thereafter. This contract had a forfeiture clause in case of default, which provided:

“Should such default continue for 30 days, then, that is to say, after the lapse of said 30 days, said party of the first part may declare this contract forfeited, and immediately re-enter and take possession of said premises, or, if necessary, maintain proceedings to recover the possession of the same, without giving any notice to said parties of the second part; and said parties of the second part waive notice to quit in case this contract is declared forfeited, and agree to vacate and deliver possession of said premises to said party of thé first part immediately. In case of such forfeiture, all payments on this contract, and all buildings and improvements on said premises, shall be forfeited to said party of the first part. If the party of the first part so elect, he may enforce the payments due*on this contract at law, and make conveyance as aforesaid.”

Plaintiff afterwards acquired the interest of her sister, and made the payments required, until April 22, 1895, when she ceased to make payments, and made none after that date. July 26, 1895, Mr. Cronkhite deeded the premises in question to his wife, Mary L. Cronkhite, the deed containing this provision: “To have and to hold, all and singular, the said premises, together with the appurtenances, unto the said party of the second part, and to her heirs and assigns, forever, subject to all contracts, leases, or other papers now outstanding.” September 13, 1895, Mrs. Cronkhite, by her attorney, Mr. Miller, notified Miss Satterlee that the premises had been deeded to her, subject to the land contract, and its terms; that default had been made in said contract for more than 30 days; that, by the terms of the contract, there was due $3,200, — and requesting immediate possession of the premises, according to the terms of the contract. Miss Satterlee made no offer to pay the payments in arrear, or any other sum, upon the contract, but in November moved out of the house, and sent the key of the house to the attorney of Mrs. Cronkhite.

On the cross-examination, Miss Satterlee testified:

“I stopped paying, because I found I was not able to keep up the payments. I had some correspondence with Mr. Cronkhite in regard to the matter, and he offered to release me from the payment of interest for a year or two, if interest were paid on unpaid interest, and in all the correspondence he desired me to keep the property. Soon after making the April payment, — the latter part of April, —I determined fully to make no other payments, and I paid nothing after that, and made no effort to, and did not intend to, and I came to that conclusion before receiving the notice from Mr. Miller that he served on me; and about the latter part of April, — I think just about that time, — I received notice that sewer connections would have to be made, and a new sidewalk put down.”

fhe circuit judge instructed the jury that the only question for them was the amount due Miss Satterlee; that she was entitled to recover, the amount paid by her upon the contract, and for taxes, with interest, less the rental value of the premises.

We think this was wrong. According to her own showing, Miss Satterlee has no standing in court. She had defaulted in her payments, and decided never to make any more, and in her correspondence with Mr. Cronkhite he offered to modify the contract, to enable her to go on with it. In the deed made by him, Mr. Cronkhite had taken care of the interest of Miss Satterlee. She was in default four payments before any effort was made to forfeit the contract for want of payments. Before any effort was made to obtain possession of the premises, written notice was served upon her, according to the terms of the contract. It is clear from the record that her failure to perform her contract was not because she was prevented from doing so by any act of Mr. Cronkhite, or his grantee, but because she had, as early as in April, decided not to go on with it. The defendant was entitled to have judgment directed in his favor. Lowrie v. Gourlay, 112 Mich. 641.

Judgment is reversed, and no new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    ANDERSON v. COLE.
    Appeal — Default Judgment — Irregularity—Reversal—Practice.
    On appeal from a default judgment in a suit begun by declaration, it appeared that no proof showing service was on file at the time default was entered, and that a return subsequently made failed to show service of notice of the rule to plead. Defendant asked that, on reversal, judgment he entered in his favor. Plaintiff asked that the record be remanded to allow him to apply for leave to file an amended return. Held, that reversal and remand was the proper practice.
    Error to Clinton; Daboll, J.
    Submitted October 8, 1897.
    Decided October 25, 1897.

      Assumpsit by James C. Anderson against Ezra Al Cole, impleaded with Bradley B. Bennett, upon promissory notes. From a default judgment for plaintiff, defendant brings error.
    Reversed.

      Almond G. Shepard and Edwin H. Lyon, for appellant.

      High & Everett (Wi}l H. Brunson, of counsel), for appellee.
   Montgomery, J.

The writ of error in this case brings up the record only, no bill of exceptions having been settled. Suit was instituted by filing a declaration, and entering a rule to plead, on February 28, 1896. Default was entered on the 23d of November, 1896. At this date no proof was on file showing service upon the defendant. It is conceded that this was an irregularity for which judgment should be set aside. Johnson v. Delbridge, 35 Mich. 436. A return was subsequently (December 1, 1896) made, but this return failed to show service of notice of the rule to plead. It is contended by defendant’s counsel that there was a.failure to .obtain jurisdiction, and that we should, in addition to reversing the judgment, enter a judgment in this court for defendant. The plaintiff has entered a motion to remand the record, for the purpose of having an amended return filed; stating, however, that if the court reverses the judgment, and remands the record, this will be satisfactory, as the plaintiff will then have an opportunity of presenting his application to the court below. This course will be taken. The motion will be denied, without costs, the judgment reversed on defendant’s appeal, and the record remanded for such proceedings as may be advised.

The other Justices concurred.


author: Per Curiam.

text:
    GRAND RAPIDS SAVINGS BANK v. WIDDICOMB.
    1. Judgment Debtors — Discovery or Assets — Validity or Statute.
    The validity of the statute providing for proceedings at law to compel a discovery of the assets of a judgment debtor (2 How. Stat. chap. 278) was reaffirmed.
    2. Judgments — Mistake in Entry — Amendment.
    A mistake of the clerk in entering a judgment as if taken on default, where issue had been duly joined, and no defense was interposed, defendant consenting to judgment, may be corrected by an amendment nunc pro• tunc, under 2 How. Stat. §§ 7633, 7635.

      Certiorari to Gerrit H. 'Albers, circuit court commissioner of Kent county.
    Submitted October 8, 1897.
    Decided October 25, 1897.
    The Grand Rapids Savings Bank recovered a judgment against John Widdicomb. Execution having been returned unsatisfied, plaintiff applied to a commissioner for an order requiring defendant to appear and make discovery of his assets, under 2 How. Stat. chap. 278. The order was granted, and defendant removed the proceedings to this court by certiorari.

    Affirmed.

      Fletcher & Wanty, for appellant.

      Butterfield & Keeney, for appellee.
   Per Curiam.

The proceedings in this case, and the main questions involved, are like those in Berles v. Comstock, 104 Mich. 129. The learned counsel for appellant concede that that decision is adverse to their contention, but ask us to overrule it, as well as the case of Lee v. Kalamazoo Circuit Judge, 101 Mich. 406. The validity of the statute was fully discussed in those cases, and we see no reason for overruling them.

Plaintiff brought suit in the circuit court on a promissory note executed by the defendant. Issue was duly joined, and, upon the inquest under the rule, no defense was interposed, but defendant consented to judgment, and the costs were taxed by consent in open court. By mistake, the clerk entered the judgment as if taken upon default. After the execution was returned unsatisfied, and this proceeding was commenced, the mistake was discovered. Thereupon the court, upon proper motion, amended the judgment entry nunc pro tunc. The amendment was authorized by sections 7633 and 7635, £ How. Stat. The mistake in no sense prejudiced defendant, or affected the validity of the proceedings under the execution.

Judgment affirmed.


author: Long, C. J.

text:
    PORTER v. EDWARDS.
    Statutes — Amendment and Repeal — Indigent Insane Persons— Commitment to Asylum.
    The provision of Act No. 62, Pub. Acts 1887, amendatory of section 25 of Act No. 185, Pub. Acts 1885, which permitted “any person” found to be insane and in indigent circumstances, who had not gained a settlement in any county of the State, to be committed to an asylum, and supported at the expense of the State, was repealed by Act No. 44, Pub. Acts 1897, amendatory of section 28 of the act of 1885, providing for the commitment as a State charge of any indigent insane person who has no legal settlement in any county of the State, if such person “is a citizen of the State.”

      Mandamus by Frank S. Porter, probate judge of Ingham county, to compel William- M. Edwards, medical superintendent of the Michigan Asylum for the Insane at Kalamazoo, to receive an indigent insane person as a State charge.
    Submitted October 12, 1897.
    Writ denied October 25, 1897.

      Frank 8. Porter, in pro. per.

      Henry E. Chase, Deputy Attorney General, for respondent.
   Long, C. J.

One J. Welinder was adjudicated an indigent insane person by the relator on September 30, 1897, and it was further adjudged that he had not gained a settlement in Ingham county, and that his legal residence was unknown. Upon this adjudication and determination the proper certificate was made by the relator, directing that the said J. Welinder be conveyed to the insane asylum at Kalamazoo, there to be supported at the expense of this State until cured, or until otherwise further ordered. The respondent refused to receive him into said asylum, and this application was made for a mandamus to compel the respondent to receive him. A return has been made to an order to show cause, in which the respondent insists that he is not authorized by the statute of this State to receive him, as he is not a citizen of the State, or a resident herein, but is an alien.

Section 25 of Act No. 135, Pub. Acts 1885, as amended by Act No. 62, Pub. Acts 1887, after making provision for the disposition of indigent insane persons who have not gained a settlement in the county where the hearing takes place, but have gained a settlement in some other county of the State, and for the settlement of controversies arising respecting the liability of two or more counties for the. maintenance of such insane persons, further provides that:

‘ ‘ Whenever the judge of probate of any county shall find that any pauper or indigent insane person brought before him has not acquired a legal settlement in any county in this State, he shall thereupon make an order to admit such insane person into an. asylum for the insane, there to be kept and maintained at the expense of the State, and shall, at the same time, certify his finding upon the question of such settlement to the secretary of state and to the medical superintendent of the asylum to which said insane person has been sent, and the State shall become responsible for the maintaining of said insane person as for other State patients.” 3 How. Stat. § 1930c4.'

Section 23 of said Act No. 135, Pub. Acts 1885, as amended by Act No. 44, Pub. Acts 1897, after providing the manner of hearing in cases of indigent insane, further provides:

“ The judge of probate, on such hearing, shall determine the question of insanity, and also the question of indigence; * * * and if the judge of probate, after such nearing, shall certify that satisfactory proof has been adduced showing that such person is insane, and his estate insufficient to support him and his family, or, if he has no family, himself, under the visitation of insanity, on his certificate, under seal of the probate court of said county, he shall be admitted into the asylum, and supported therein at the expense of the county to which he belongs, until he shall be restored to soundness of mind, if effected within two years, or until otherwise ordered; or at the expense of the State, if the judge of probate shall find that such insane person has no legal settlement in any county of this State, or is unable to find from the evidence where that settlement is, provided the said insane person is a citizen of. the State. * * * If the probate judge shall find such' indigent insane person a State charge, as hereinbefore provided, he shall certify his finding upon the question of settlement to the secretary of state and to the medical superintendent of the asylum to which said insane person has been sent, and the State shall become responsible for the maintaining of said insane person.”

The provisions of these two sections as amended, providing for the commitment of indigent insane persons into asylums as State charges, are alike, except that by section 23 of Act No. 44, Pub. Acts 1897, they must be citizens of the State to be so committed, while under section 25 of Act No. 62, Pub. Acts 1887, any person who was found to be insane and in indigent circumstances, who had not gained a settlement in any county of the State, could be committed to an asylum, and there supported at the expense of the State. It will be seen that the amendment of 1897 does not, in terms, purport to amend the act of 1887; but the amendatory act of 1897 covers substantially all the provisions of the amendatory act of 1887, and provides further that the insane person may be admitted into the asylum if a citizen of this State. We regret that we are forced to the conclusion that the act of 1887 was so repealed. Heretofore the insane asylums have been open for the reception of all insane persons in this State, whether citizens or not; the object being to so care for them that the lives and property of the citizens might not be put in jeopardy by such persons being allowed to roam at large until some offense should be committed, and the person be classed among the criminal insane. But this matter is entirely under the control of the legislative department of the State government. These asylums were built at- State expense, and the legislature alone can provide who may and who may not be there confined. The rule is well settled that a new statute covering the same ground as the former act supersedes it for all further cases, without the necessity of repealing words. People v. Hobson, 48 Mich. 27. A statute is repealed by a later one in so far as its provisions are inconsistent with it, or are covered by it. Attorney General v. Amos, 60 Mich. 372. It is said by relator that the legislature did not use the word “citizen,” in the act of 1897, in any other sense than that of “resident.” But, even with this interpretation of the word, the asylum authorities were correct in refusing the admission of the insane person, for the answer states that that person is not a resident of the State; and the answer must be taken as true.

There is no alternative under these statutes but to deny the writ. It is therefore denied, without costs.

The other Justices concurred.


text:
    HILLYER v. TOWNSHIP OF JONESFIELD.
    Drain Taxes — Payment Under Protest — Liability op Township.
    The provision of section 6, chap. 6, of the drain law, as amended by Act No. 203, Pub. Acts 1893, that, "if such tax shall be paid under protest, the reasons therefor shall be specified, and the same procedure observed as is or may be required by the general tax law,” has reference to the protest and the action of the officer to Whom the money is paid, and was not intended to change the law so as to permit suit to be brought against the township to recover a drain tax paid to its treasurer.
    Error to Saginaw; Wilber, J.
    Submitted October 12, 1897.
    Decided October 25, 1897.

      Assumpsit by Eugene H. Hillyer against the township of Jonesfield to recover drain taxes paid under protest. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.
    Affirmed.

      Trash & Smith and Crane & Crane, for appellant.

      George W. Davis, for appellee.
   Montgomery, J.

Plaintiff sued to recover a drain tax paid to the treasurer of defendant township under protest, claiming that the tax was invalid, for the reason stated in the protest.

This court has held, in a number of cases, that the township, as a township, is not concerned in the levy and collection of a drain tax, and that an action could not be maintained against the township to recover a drain tax paid to the treasurer. See Dawson v. Township of Aurelius, 49 Mich. 480; Taylor v. Township of Avon, 73 Mich. 604; Camp v. Township of Algansee, 50 Mich. 4. Plaintiff’s counsel concede that such was the rule of law prior to 1893, but contend that by the amended drain law (section 6, chap. 6, Act No. 203, Pub. Acts 1893) such a liability was created. The provisions added at that time read as follows:

“In all cases where suit is brought against the collector arising out of the collection of any drain tax, the township or county, according as the tax shall be for a township or county drain, shall defend such officer in the same manner that he has now the right to be defended in the collection of general taxes. No suit shall be instituted to recover any drain tax, or money paid or property sold therefor, or for damages on account thereof, unless brought within 30 days from the time of payment of such money to, or sale of such property by, the collecting officer; and, if such tax shall be paid under protest, the reasons therefor shall be specified, and the same procedure observed as is or may be required by the general tax law."

The general tax law' provides that a person may pay any tax, whether levied on personal or real property, under protest, to the treasurer, specifying at the time, in writing signed by him, the grounds of such protest, and the treasurer is required to minute the fact of such protest on the tax roll and in the receipt given. The same section further provides that “the person paying under such protest may, within 30 days, and not afterwards, sue the township for the.amount paid,” etc. The contention of the plaintiff is certainly not without plausibility, and yet we think the circuit judge was right in holding that it was not the intention of the amendment of the drain law in 1893 to work so radical a change. The levy and collection of drain taxes has never been regarded as a township matter. The treasurer does not receive or hold the money for the township. Camp v. Township of Algansee, supra. Under the drain law, in case of county drains, the money is disbursed by the county treasurer, and, in case of township drains, it is disbursed by the township treasurer. In case of money received, whether under protest or not, and actually disbursed by either officer, the township would be without remedy to reimburse itself. No machinery is provided for charging this money to the county or any assessment district, and the absence of such safeguard raises the presumption that it could not have been intended to impose this obligation upon the township.

The language employed in the amendment to the drain law, above quoted, to wit, “if such tax shall be paid under protest, the reasons therefor shall be specified, and the same procedure obseryed as is or may be required by the general tax law,” should be construed as having reference to the protest and the action of the officer to whom the money is paid, and not as intended to give a right of action against the township.

Judgment will be affirmed.

The other Justices concurred.


text:
    McGILL v. BEITNER.
    Security eor Costs — Dismissal op Suit.
    A case should not be dismissed for failure to file security for costs within the precise time allowed by an order therefor, where proper security has been filed before the motion to dismiss is made.
    Error to Grand Traverse; Corbett, J.
    Submitted October 14, 1897.
    Decided October 25, 1897.
    Case by Lizzie McGill, an infant, by her next friend, against August Beitner and others, under the civil-damage act. From a judgment dismissing the suit for failure to file security for costs, plaintiff brings error.
    Reversed.

      Underwood & Umlor, for appellant.

      Pratt & Davis, for appellees.
   Per Curiam.

The writ of error was sued out in this case to obtain the review of an order dismissing the plaintiff’s case for a failure to file security for costs. On the 19th of April, 1897, an order was entered by the circuit court requiring plaintiff to file security for costs within 60 days, or show cause why such security should not be filed. The next that appears of record is an undertaking to secure costs, signed, “George P. Geiger,” and filed June 28,1897. This was not in the form prescribed by section 8992, 2 How. Stat. On the 30th day of June plaintiff filed another undertaking in the form of a bond which complied with the statute. Notice of this was given to defendants’ attórneys June 30th. On the 2d of July a motion was filed to dismiss the case on the ground that plaintiff had failed to comply with the order. This motion was granted.

"We think the failure to comply with the order at the precise time fixed ought not to be visited with the penalty of dismissal. Parks v. Goodwin, 1 Doug. (Mich.) 56.

Order reversed, and case remanded for further proceedings.


text:
    WARREN v. WINTERSTEIN.
    Attachment — Copartners—Validity of Writ.
    A judgment against partners in an attachment suit will not be vacated, and the writ of attachment quashed, at the instance of one of the defendants, against whom the writ was good, on the ground that it was erroneously issued against the other defendants.
    Error to Sanilac; Beach, J.
    Submitted October 14, 1897.
    Decided October 25, 1897.
    Attachment proceedings by Joseph Warren against Warren Winterstein and others. From a judgment for plaintiff, defendant Winterstein brings error.
    Affirmed.

      Gates & Morris, for appellant.

      F. E. Burton, for appellee.
   Per Curiam.

This suit was commenced by attachment against the defendants as copartners. The affidavit alleged the partnership, and, as a basis for the attachment, alleged certain fraudulent acts against defendant Winterstein. The writ of attachment was issued, commanding the sheriff to seize under it any property of the defendants. What, if anything, was done under the attachment, does not appear. All the defendants were duly summoned. Judgment ]vas taken against Winterstein by default, and against the other defendants by consent in open court. After the judgment, Winterstein made a motion to quash the writ and to vacate the judgment, because the attachment was erroneously issued against his co-defendants, and did not comply with section 8015, 2 How. Stat. The sufficient reply to this is that the writ was good as to Winterstein. His copartners were the only ones injured, and the only ones who could take advantage of the error.

Judgment affirmed.


author: Grant, J.

text:
    POPPE v. POPPE.
    1. Fraudulent Conveyances — Reconveyanoe—Equity.
    Where one conveys away his property for the purpose of avoiding anticipated claims against him, he is not in position to invoke the aid of a court of equity to obtain a reconveyance.

      2. Statute of Frauds — Parol Promise to Reconvey Land.
    A parol promise by a grantee of land to reconvey the same is void under the statute of frauds.
    S. Same — Answer in Equity — Admission of Trust — Fraud.
    That the grantee, in his answer to a bill to compel a reconveyance, admits a parol promise to reconvey, will not avail the complainant, where the conveyance was made for the avowed purpose of placing the property beyond the reach of prospective creditors.
    Appeal from Muskegon; Russell, J.
    Submitted October 13, 1897.
    Decided October 25, 1897.
    Bill by Lawrence Poppe against Anna Poppe and Catherina Grevy to set aside certain deeds. Prom a decree dismissing tbe bill, complainant appeals.
    Affirmed.
    The purpose of this suit is to set aside two deeds, one made by complainant to defendant Grevy, and the other made by Mrs. Grevy to defendant Anna Poppe, the wife of complainant. Complainant alleges that he was threatened with an action for damages, which arose from a conspiracy to injure and defraud him, and that, in consequence of the threatened action, he was in danger of incurring heavy expenses, in the way of attorney fees, costs, and litigation, and in danger of a judgment against him. He had made criminal complaint against one "Wooten for stabbing him. Wooten was convicted. His attorneys had made a motion for a new trial. While this motion was pending, complainant claims that he was entrapped to the house of Mrs. Wooten, and while there was, for the purpose of blackmail, threatened with a criminal prosecution on account of his relations with Mrs. Wooten. The testimony establishes the facts that Mrs. Wooten sent her daughter, one evening, to ask complainant to come to her house; that, while there, one of Wooten’s-attorneys and a deputy sheriff, who were secreted in the house, suddenly appeared upon the scene and made charges against him; that he went with the attorney to his office; and that there threats were made for the purpose of extorting money from him. He'then went home, informed his wife what had happened, and secretly left the place, being absent several days. During his absence, and by his advice, Mrs. Poppe had settled with Wooten’s- attorneys, and paid them $210 to hush the matter up, and under a promise that they would abandon the motion for a new trial for Wooten. Complainant, on his return home, executed a deed to Mrs. G-revy, who was used as a mere conduit for conveying the title to his wife, on her promise, as he claims, to reconvey to him when the trouble had blown over'. Wooten’s attorneys, however, pressed the motion for a new trial, which was granted, the new trial had, and Wooten again convicted and sentenced to prison. The deeds were executed January 13, 1893. Subsequently he demanded a reconveyance from his wife, which she refused, and on August 4, 1896, he1 filed this bill. Issue Was duly joined, proofs taken in open court, and the bill dismissed. '

      Jones <& Kennedy, for complainant.

      Mapdonald & Marr, for defendants.
   Grant, J.

(after stating the facts). Mrs. Poppe was not a party to the alleged conspiracy, and knew only what her husband told her about it. She was guilty of no false or fraudulent representations. The conveyance was his own voluntary act. Her promise to reconvey, if made, rested in parol, and was void, under the statute of frauds. The case of Pierson v. Conley, 95 Mich. 619, is similar in. its facts, and rules this case against the complainant. When one conveys his property to another for the purpose of avoiding anticipated claims against him, he is not in position to invoke the aid of a court of equity to obtain a reconveyance. He does not come into court with clean hands, and equity leaves him to lie in the bed of his own making.

It is, however, insisted that defendant Poppe, in her answer, admitted that she promised to reconvey, and that this takes the case out of the statute. It is true that an answer in chancery admitting the trust is a sufficient compliance with the statute. Patton v. Chamberlain, 44 Mich. 5, and cases there cited. But this rule applies to cases not tainted with fraud, and where the conveyance is made for an honest and legitimate purpose. That case is a good illustration. C.’s wife had conveyed to him land on an oral promise to hold it for their infant daughter. C. became embarrassed, and exchanged this land for other land; the latter being conveyed to J. on an oral promise to hold it for the daughter. In a suit by C.’s creditors against J., she answered, avowing the trust. This was held to answer the requirements of the statute. A similar case is McVay v. McVay, 43 N. J. Eq. 47. But no case is cited holding that equity will assist one who has voluntarily conveyed his property for the avowed purpose of placing it beyond the reach of creditors, either present or prospective. It is therefore unnecessary to determine whether the answer admits a contemporaneous promise which would satisfy the statute, and bind the conscience of the court in a clean and honest transaction.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    PEOPLE, ex rel. OATMAN v. FOX.

    1. Elections — Candidates—Names not on Ballot — Pasting Slips — Failure to Make Cross.
    Act No. 202, Pub. Acts 1893, § 26, provides that, if an elector wishes to vote for a candidate not on any ticket, he must write or paste the name of such candidate on his ticket, opposite the name of the office, and make a cross in the circle under the party name, in which case the- name so written shall be counted one vote for the person so mentioned, whether the original name on the party ticket is erased or not, unless there is a cross in the square before the name of some opposing candidate on some other party ticket; that, if no cross is placed in the circle under the party name, a cross in the square before the name of any candidate shall be deemed a vote for such candidate, except in cases where the elector votes for more candidates for the same office than are to be elected. Held, that the pasting of a name, which did not appear on any ticket, over the name of one of the candidates, without designating by a cross the party ticket or the candidate sought to be voted for, and without erasing the name of a third candidate for the same office, was not a compliance with the law.
    2. Same — Instructions to Voters — Provisions Construed Together.
    The provisions above quoted are not modified, so as to make the mere pasting of the name a sufficient indication of the voter’s choice, by the printed instructions appended to ballots, in the form provided by statute, that, 1 ‘ if you wish to vote for a candidate not on any ticket, write or place the name of such candidate on your ticket, opposite the name of the office,” since the instructions contain the further direction: “In all cases stamp a cross in the circle under the name of your party, at the head of the ballot.”
    Error to St. Clair; Vance, J.
    Submitted October 15, 189?.
    Decided October 25, 1897.

      Quo warranto by the people, on the relation of George Oatman, against Patrick Fox, to determine the title to the office of supervisor of the township of Greenwood. From a judgment of ouster, respondent brings error.
    Affirmed.

      Harvey Tappan, P. H. Phillips, Lincoln Avery, and JEJ. F. Lato, for appellant.

      Stevens & Graham, for appellee.
   Montgomery, J.

The relator and respondent both received votes as candidates for the office of supervisor of Greenwood township, St. Clair county; and it is conceded that the relator was elected, unless there shall be counted for the respondent 26 ballots upon which the name of respondent appeared on a printed slip. The name of the relator appeared on the regular ticket under/the head of the “Greenwood Republican Ticket.” The name of George Zuelch appeared on the Union . ticket. On the ballots in question the name of George Oatman was covered by slips containing the name of respondent. There was no mark in the circle at the head of either the Union or the Republican ticket, and no erasure of the name of George Zuelch on the Union ticket, nor was there a cross opposite the name of respondent. It should be stated that the name of respondent did not appear on any ticket to be voted for at the election. The statute (section 26, Act No. 202, Pub. Acts 1893) provides that:

“ If the elector wishes to vote for a candidate not on any ticket, he must write or paste the name of such candidate on his ticket, opposite the name of the office, and make a cross in the circle under the party name. * * * ■ If the name of any person who is not a candidate on any ticket is written or placed on the party ticket opposite the name of the office, and there is a cross in the circle under the party name, the name so written shall be counted one vote for the person so mentioned, whether the original name on the party ticket is erased or not, except in cases where there is a cross in the square before the name of some opposing candidate on some other party ticket. If no cross is placed in the circle under the party name, a cross in the square before the name of any candidate shall be deemed a vote for such candidate, except in cases where the elector votes for more candidates for the same office than are to be elected.”

It is suggested that this provision is modified by the instructions appended to the ticket in the form provided by-statute, which reads, “If you wish to vote for a candidate not on any ticket, write or place the name of such candidate on your ticket, opposite the name of the office.” But in the same instructions appears the following: “In all cases stamp a cross in the circle under the name of your party, at the head of the ballot.” We think it clear that full compliance with the statute requires that the name not appearing on the ballot be pasted or written in the proper place, and also that it be marked with a cross. The voters did not, in the use of these ballots, express an intention to vote for respondent in the manner prescribed by statute. It is true, we held in Johnson v. Board of Canvassers of Casnovia, 101 Mich. 187, that where a ticket was voted without any cross being stamped, and where the name of but one candidate appeared upon the ticket for each office, the intent of the voter was too clearly manifested to admit of question, but in the present case such is not the fact. In People v. Cicott, 16 Mich. 283 (97 Am. Dec. 141), it was held that, where a slip is so pasted on a ticket as to leave on it two distinct candidates for the same office, the ballot is rendered bad, as to that office, for duplicity. That case should rule the present.

The judgment of ouster is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    OSBORN v. CHARLEVOIX CIRCUIT JUDGE.
    1. Statutes — Title—Germane Provisions.
    The title of Act No. 151, Pub. Acts 1897, “An act to regulate the catching of fish * * * by the use of * * * nets * * * and other apparatus,” sufficiently covers provisions prohibiting the taking of fish during a portion of the year, and prescribing means whereby the law may be enforced.
    2. Same — Fishing Regulations — Size oe Nets.
    Act No. 151, Pub. Acts 1897, § 1, prescribes the minimum extension measure of the meshes of nets to be used in the waters of the State, and forbids the use of any but those prescribed, after April 1, 1900. Section 2 makes it unlawful to market or have in possession any sturgeon or rock sturgeon weighing less than 15 pounds, or any whitefish weighing less than 2 pounds; with an exception as to fish caught in gill nets of lawful size. Section 5 provides that all nets bought after the passage of the act shall be of the size prescribed. Held, that the sections, construed together, establish the following as the intent of the legislature: (1) Any net which conforms to the pre-existing law at the time the act took effect may be used by its then owner until April 1, 1900. (2) All other nets must conform to the new regulations. (3) All fish of the description and size mentioned in section 2 must be returned to the water, in whatever net taken, except where taken in gill nets of lawful size.
    3. Same — Interpretation Consistent With Constitutionality-Discrimination.
    The statute is not open to the objection that it discriminates in favor of those fishermen owning gill nets, at the time of the passage of the act, with a mesh of a less extension than that prescribed therein, since the presumption in favor of the constitutionality of legislation authorizes an interpretation that the term “lawful size,” as used in the exception to section 2, means the size prescribed in the statute itself.
    4. Same.
    The fact that, even with such a construction, the gill-net fish, erman is allowed to retain fish which others must return to the water, does not make the legislation discriminatory, since the use of gill nets of lawful size is open to all fishermen.

      5. Same — Time op Taking Eppect.
    The legislature may give immediate effect to part of an act, and postpone the operation of the remainder; and, where such an intent is fairly deducible from the act, there is no presumption against it.
    6. Same — Class Legislation.
    An act regulating the catching of fish in the waters of the State is not void as class legislation because the close season is shorter in the waters adjoining a particular county than elsewhere.
    7. Same — State Pish Warden — Authority to Institute Prosecutions.
    Under Act No. 110, Pub. Acts 1893, § 2, authorizing the game and fish warden to enforce all laws for the protection of fish, “now in force or hereafter enacted,” and to bring suit for the violation of such laws, the warden may institute prosecutions before a justice of the peace under Act No. 151, Pub. Acts 1897, regulating the taking of fish with nets, and making infractions of such act misdemeanors.
    8. Same — Seizure op Nets —Due Process op Law — Police Power.
    Act No. 110, Pub. Acts 1893, §§ 3, 3, authorizing the state fish warden to seize all nets “found in use in violation of the law,” and providing that all fish or nets seized shall be disposed of in such manner as may be directed by the court before which the offense is tried, and that the warden shall not be liable in damages for the seizure or destruction of nets “in accordance with the provisions of this act,” is not within the inhibition against deprivation of property without due process of law, since the right to seize is a valid exercise of police power, and the act requires a judicial determination of illegal use before the property can be destroyed.
    9. Courts — Enjoining Criminal Proceedings.
    Courts of chancery should not enjoin criminal prosecutions on the theory that the law under which they are brought is unconstitutional, as such fact is available at law by way of defense to the criminal charge.

      Mandamus by Chase S. Osborn, state game and fish warden, to compel Roscoe L. Corbett, circuit judge of Charlevoix county, to dissolve a temporary injunction restraining the enforcement of certain laws regulating the taking of fish.
    Submitted November 5, 1897.
    Writ granted November 12, 1897.

      Fred A. Maynard, Attorney General, and Roger I. Wykes, for relator.

      Fred W. Mayne, A. D. Gruickshank, and J. D. Turn-bull, for respondent.
   Hooker, J.

Late in October last a bill of complaint was filéd by one O’Neill against the relator, who is game and fish warden, praying that” he be restrained from enforcing the provisions of Act No. 151 of the Public Acts of 1897, entitled “An act to regulate the catching of fish in the waters of this State, by the use of pound or trap nets, gill nets, seines, and other apparatus,” and Act No. 110 of the Public Acts of 1893, which provides for the seizure of such apparatus when used in violation of law, upon the ground that said Act No. 151 was unconstitutional, or, if not unconstitutional, that it did not become operative until April 1,1900, and that the provisions of Act No. 110, alluded to, were unconstitutional, in that they authorize the taking of private property without due process of law. A temporary injunction was allowed, dissolution of which was refused. Thereupon the relator obtained an order requiring the respondent to show cause why said injunction should not be dissolved, and the question is before us upon respondent’s return.

It is obvious that the proceedings have been brought for the purpose of determining whether the provision of Act No. 151 prohibiting the taking of fish during a portion of the year is valid, and whether it has effect before the year 1900. The alleged unconstitutionality of Act No. 151 is ascribed to a defective title, in that it prohibits, during a portion of the year, while it professes to regulate, the taking of fish. It is said that this prohibition is not mentioned in the title, and, again, that prescribing certain methods and apparatus is a regulation, which is the only object stated in the title.

We may reasonably conclude that the object of this, like other fish laws, is to preserve the industry of fishing, and a valuable food product, by protecting fish during certain' seasons, and preventing the taking of young fish that have not reached a proper size. Any provision that tends to these ends, which recognizes a reasonable exercise, of the right to take fish, and prescribes rules under which it may or may not be done, is within the term “regulation.” This rule has been so' frequently applied that we think it unnecessary to indulge in an extended discussion of the subject. There is such a thing as making a title unnecessarily restrictive, whereby the act is limited to certain methods of regulation; but a better practice is to provide a broad title, as in this case, when it will cover any legislation that can fairly be said to tend to the accomplishment of the object. The designation of a season for taking fish is a regulation, as much as a limitation upon methods, and provisions looking to the enforcement of the law through punishment for the prohibited acts are also within such titles. See People v. Brooks, 101 Mich. 98, where some of the authorities are cited.

The more troublesome question is one of construction. Section 5 of the act provides that all nets bought after the date of the passage of the act shall be of the size prescribed. We cannot hold that this provision became effective before the act became a law under the Constitution, but, on the other hand, it is clear that it was not intended that it was to take effect in the year 1900. The language is unequivocal, and excludes any such theory. We may start, then, with the proposition that the legislature sought to prevent the purchase of nets, having meshes smaller than those required by the act, from the time that the act became a law, viz., three months after adjournment. Section 1 of the act forbids the use of any nets but those prescribed, after the year 1900. Inferentially, at least, the two sections, taken together, recognize the right of owners of existing nets to use them until 1900, although they do not conform to the new regulations. It may be said that here is an unjust discrimination, which permits one man to use a net with a mesh of less than four inches extension, while it forbids another from doing so. There might be force in this if the former were permitted to profit by such use, but, if the law requires him to return to the lake all fish which would escape the larger mesh, then the law, if it be discriminatory at all, discriminates in his favor by permitting him to utilize the nets that he has on hand, thereby taking small fish of varieties not protected, while it denies to those not owning nets the privilege of using nets having a smaller mesh. Section 2 appears to disclose this intent, making it unlawful to market or have in possession any sturgeon or rock sturgeon weighing less than 15 pounds, or any whitefish weighing less than 2 pounds: Provided, however, that it shall not be unlawful to market or have-in possession any such fish caught in gill nets of lawful size. The effect of this provision is to prevent those who use the old net with the smaller mesh from using or marketing these fish, and therefore implies that they must allow to escape, or return to the water, all fish taken below the prescribed size. Added force is given to this implication by the requirement as to sturgeon. We may doubt if' a 15-pound sturgeon would escape from a net with four-inch meshes, and, if not, it must follow that they cannot be utilized if taken in such nets. All, therefore, regardless of the net used, are forbidden to take such fish, except those who use “ gill nets of the láwful size.” The exception may be ascribed to the fact — if it be a fact— that the gill net is usually fatal to fish that are caught in it, and it would be a wanton waste to throw away such fish. Under this construction of the sections, the following summary may be useful:

1. Any net which conforms to the pre-existing law at the time Act No. 151 took effect may be used by its then owner until April 1, 1900.
2. All other nets must conform to the new regulations.
3. All fish of the description and size mentioned in section 2 must be returned to the water, in whatever net taken, except where taken in gill nets of lawful size.

We have said that under section 1 all existing nets may be used until the year 1900. This includes gill nets, and it therefore follows that if all fish taken in such gill nets may be marketed, while all caught in other nets of the same mesh may not, the practical operation of the law would bé to permit the gill-net fishermen to profit from fish which others must return to the water. There would be an inducement to use such nets as long as possible, and the remedy intended by the law would be retarded thereby, and a discrimination would be practiced under the law. But in dealing with statutes we must give them such a construction as will avoid such results, if possible. There is always a presumption in favor of constitutionality, and this presumption justifies a construction which is rather against the natural interpretation of the language used, if necessary to sustain the law. See 23 Am. & Eng. Enc. Law, 349, where a long list of cases is cited. A presumption nearly or quite as strong prevails in favor of a construction which will not do injustice. Id. 358, 359, and notes. If we shall construe the proviso to have reference to gill nets having meshes of the size prescribed in the act, viz., 4-J- inches (i. e., if that be what is meant by the term “lawful size”), we avoid this difficulty; for then those who use gill nets of smaller mesh may not market these fish, and the only possible discrimination remaining is the right to use and market such fish as may happen to get caught in a net of 4^ inch mesh. We have already indicated that, where the use of either kind of net is open to all on equal terms, there is no discrimination. Under the law, the use of gill nets of smaller mesh than 47} inches is not open to all, because only those in existence at the time the law took effect can lawfully be used, except as provided by section 1, which permits the use of a smaller mesh for all nets, where used for the purpose of taking any fish except whitefish, lake trout, and black bass, in places where it can be shown that the annual catch does not contain to exceed 10 per cent, of whitefish or trout; but here all persons are upon an equality, for all who wish may have gill nets in such places, — hence no discrimination, though he who uses the gill net lawfully (i. e., as prescribed in Act No. 151) may retain small fish, and others may not.

We are of the opinion that there is nothing in the discussion thus far that is inconsistent with the contention that this law is now operative, and that section 1, prohibiting the use of existing nets, or those different from the nets prescribed therein, after the year 1900, does not necessarily imply that none of the provisions of the act can become operative until that time. We have seen that section 5 expressly shows the contrary, and we have endeavored to show that none of the provisions discussed are necessarily inconsistent with its earlier operation. Another provision should, perhaps, be referred to in this connection, viz., a provision in section 4, which says^ “Provided, further, that nothing contained in this act shall be construed so as to permit fishing with nets and other appliances contrary to 'the provisions of the present laws prior to the said 1st day of April, 1900.” We are not advised that any net or apparatus permitted by this act is excluded by pre-existing laws. If it were, it might be an argument in favor of respondent’s contention. As it is, we may suppose the proviso was intended to preclude any possible failure of this act to maintain existing regulations until it should become fully operative. There is nothing to prevent the legislature giving immediate effect to a portion of an act, and postponing the operation of the remainder; and there is no presumption against it, where such intent is fairly deducible from the act. Plummer v. Jones, 84 Me. 58; Workman v. City of Worcester, 118 Mass. 168; Stone v. City of Charlestown, 114 Mass. 214.

Thus far we have not discussed section 3, — which is the section providing for the “close season,” — with reference to the question of construction, for the reason that it contains nothing that tends to support respondent’s contention. It is perhaps as consistent with one theory as the other. This section prohibits fishing from October 30th to December 15th with any kind of a net, with certain exceptions. We have no doubt of the authority of the legislature over this subject. People v. Brooks, supra; Lawton v. Steele, 152 U. S. 133, 136.

It is urged further that the act is unconstitutional for the reason that the close season is shorter in the waters adjoining the county oPMonroe than elsewhere, and that, therefore, this is class legislation. We have no means of determining why the legislature made an exception of this portion of the Lakes. We must presume that it had adequate reason therefor, and we cannot declare the law void upon that account unless it clearly infringes the Constitution. It cannot be called class legislation, for any citizen is at liberty to fish there during the open season.

From what has been said it will be rightly inferred that we consider Act No. 151 valid legislation, and that its provision for a close season is now in effect. It would follow that the injunction restraining the prosecution of persons .for infractions of this law was without warrant of law, and improvidently allowed.

Act No. 110 is yet to be considered, as the injunction restrains the seizure and destruction of nets and apparatus for fishing, which the bill charges the defendant with threatening. This act amends certain sections of Act No. 28 of the Public Acts of 1887, being “An act to provide for the appointment of a game and fish warden, and to prescribe his powers and duties.” Section 2 provides that:

“ It shall be the duty of said game and fish warden to seize all nets of illegal mesh found in use in the waters of this State, and all nets and other fishing apparatus or appliances found in use in violation of the laws of this State, and to enforce the statutes of this State for-the preservation of moose, * * * and fish, and to enforce all other laws of this State for the protection of * * * fish, now in force or hereafter enacted, and to bring or cause to be brought, and to prosecute or cause to be prosecuted, actions and proceedings, in the name of the people of this State, to. punish any parties for the violation of said statutes and laws. Such actions and proceedings may be brought in the name of the people, in the like cases, in the same courts, and under the same circumstances as they may now or at any time hereafter be brought by any individual, or by the prosecuting attorneys of the several counties, under and by virtue of any laws now existing or hereafter enacted.”

Under this provision it is competent for- the game and fish warden to institute prosecutions under section 4 of Act No. 151 (which makes infractions of that act misdemeanors ) before justices of the peace.

Section 2 of Act No. 110, already quoted, authorizes the seizure of all nets, etc., found in use in violation of the lawj and section 3 of that act, without expressly authorizing the destruction of such articles, provides that—

“All * * * fish or nets, or fishing appliances or apparatus,- seized by the said game and fish warden, shall be disposed of in such manner as may be directed hy the court before whom the offense is tried, or by any court of competent jurisdiction. Said game and fish warden shall not be liable for damages on account of any search, examination, or seizure, or the destruction of any nets or fishing apparatus of any kind, in accordance with the provisions of this act.”

It is clear that this act permits the seizure of nets and apparatus, but only when the same are found in actual and unlawful use. It is also plain that the warden has no right to destroy the same until ordered by the court before whom the “.offense is tried,” and by this we understand is meant the court before whom the person offending is tried for the unlawful use for which the apparatus is seized; and it is implied- that the disposition of the property is to be determined in that proceeding, to which the offender is a necessary party, and in which he has a right to be heard. The words, “or court of competent jurisdiction,” must be held to be without meaning, as there is no other court having general jurisdiction in such cases, and the law does not designate any, except as stated. The law does not declare that property found in illegal use shall be forfeited. Therefore the usual proceedings to enforce a forfeiture are not contemplated. But it does impliedly authorize destruction of such property, within the discretion of the justice who tries the offender. This manifestly requires a judicial determination by him of the illegal use, and a discretion as to the disposition of the property.

By such a construction effect can be given to these provisions of the law. Are they constitutional? The summary seizure and destruction of property designed and used for unlawful purposes, or in an unlawful manner, where authorized, depends for its validity upon the police power. It is resorted to in a variety of instances, where the public health, safety, and morals demand, and in cases where the general public interest, irrespective of class, requires it. In the language of Mr. Justice Brown in Lawton v. Steele, supra:

“The police power is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the State may order the destruction of a house falling to decay, or otherwise endangering the lives of passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination of children; the confinement of the insane, or those afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill fame; and the prohibition of gambling houses, and places where intoxicating liquors are sold.”

There is no doubt of the power of the Federal or State governments to declare forfeited, and to destroy or sell, articles found in use by the owner for the perpetration of crime. There is probably no civilized country or state that does not enforce such laws. The Canadian government condemns foreign vessels unlawfully fishing in her waters of these same Lakes; the United States government summarily seizes and destroys vessels unlawfully engaged in sealing; and the States bordering the ocean enforce rigorous measures to protect the oyster. In the State of New York a law provided that—

“Any net * * * or device for taking * * * fish, or whereby they may be taken, * * * set, put, floated, had, found, or maintained in or upon any of the waters of this State, or upon the shores, * * * in violation of any existing or hereafter enacted statutes or laws for the protection of fish, is hereby declared to be and is a public nuisance, and may be abated and summarily destroyed by any person, and it shall be the duty of * * * every game constable to seize and remove, and forthwith destroy, the same.”

This section was attacked, and alleged to be unconstitutional, as depriving a citizen of his property without due process of law, but the act was sustained. Lawton v. Steele, 119 N. Y. 226 (16 Am. St. Rep. 813). The case was reviewed by the Supreme Court of the United States, and the validity of the law affirmed. Lawton v. Steele, 152 U. S. 133. In both courts the important question discussed was the summary destruction of the nets without judicial warrant, and judicial intervention was held unnecessary. In the federal decision it was said:

“It is not easy to draw the line between cases where’ property illegally used may be destroyed summarily, and where judicial proceedings are necessary for its condemnation. If the property were of great value, — as, for instance, if it were a vessel employéd for smuggling or other illegal purposes, — it would be putting a dangerous power in the hands of a custom officer to permit him to sell or destroy it as a public nuisance; and the owner would have good reason to complain of such act, as depriving him of his property without due process of law. • But where the property is of trifling value, and its destruction is necessary to effect the object of a certain statute, we think it is within the power of the legislature to order its summary abatement. For instance, if the legislature should prohibit the killing of fish by explosive shells, and should order the cartridges so used to be destroyed, it would seem like belittling tbe dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. The same remark might be made of the cards, chips, and dice of a gambling room. * * * It is evident that the efficacy of this statute would be very seriously impaired by requiring every net illegally used to be carefully taken from the water, carried before a court or magistrate, notice of the seizure to be given by publication, and regular judicial proceedings to be instituted for its condemnation.”

See, also, Attorney General v. Jochim, 99 Mich. 371, where the meaning of “due process of law” is discussed.

But here there is no right or claim of right to destroy (though there is to seize) without judicial authority. We do not understand that it is seriously contended that a complaint must be made and a warrant issued before one engaged in unlawful fishing can be arrested, and his nets and apparatus seized and taken before a magistrate. It is a general rule that an officer clothed with proper authority may arrest and take before a magistrate any person who is committing a misdemeanor within view of such officer; and we have no doubt of the authority of the legislature to require the seizure of apparatus while being unlawfully used, the same to be held subject to disposi-. tion by the courts. Such taking and disposition of property are not without due process of law. We need not at this time determine that in all cases all property made use of in fishing may be ordered destroyed, or that it may not. It will be time enough to consider that question when relief is asked against such order. Stress is laid upon the value of complainant’s property, which is said to include steam vessels, which evidently could be used for other purposes. We cannot think that there is such danger of summary destruction under judicial sanction as to prevent a review of an order for the destruction of such ■ property.

It is a general rule that criminal prosecutions cannot be restrained by injunction. Once have it understood that they may be, and the public would labor under additional embarrassment to the already great obstacles to the prevention of crime. There is no excuse, upon reason or authority, for enjoining the prosecution of the complainant for violations of the law providing for a close season. If the law were unconstitutional, it would be available by way of defense to the criminal charge, and therefore no occasion for chancery to take jurisdiction for the want of an adequate remedy at law. See Mechem, Pub. Off. § 992, and cases cited. It has never been found necessary or expedient that the validity and construction of criminal laws should be determined in chancery, for the guidance of courts of criminal jurisdiction.

The injunction issued restrains the relator from—

“Seizing, without due process of law, the steam tugs, nets of lawful-sized mesh, and all other paraphernalia and apparatus, employed by said John O’Neill in fishing in the waters of Lake Michigan; also, the fish taken by him from said waters; also, from in any way interfering with said John O’Neill in his business of fishing between the 31st day of October, 1897, and the 15th day of December, 1897, while said business is carried on with nets of lawful-sized mesh, by reason of any alleged violation of Act No. 151 of the Public Acts of the State of Michigan for the year 1897.”

We think the learned circuit judge took an erroneous view of the acts in question, and that he had no authority to issue this injunction, upon the facts of the case.

The writ of mandamus will he granted.

The other Justices concurred.


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    EDDY v. BAY CIRCUIT JUDGE.
    Discovery — Documents Held as Trustee — Courts — Common-Law Powers — Corporate Books.
    Courts have the right, under their common-law jurisdiction, to compel one of the parties to a cause to produce for the inspection of the adverse party books and papers which he holds as trustee of the latter; as where both parties are stockholders in a corporation, and one of them has possession of the corporate books, an examination of which is essential to the other’s case.

      Mandamus by John F. Eddy and others to compel Andrew C. Maxwell, circuit judge of Bay county, to set aside an order requiring relators to produce certain books and papers for inspection.
    Submitted November 9, 1897.
    Writ denied November 12, 1897.

      C. L. Collins (A. P. Lyon, of counsel), for relators.

      Pales & Kelley, for respondent.
   Montgomery, J.

Mandamus is sought to compel the vacation of an order requiring relators to produce certain books and papers for the inspection of the attorneys of Edwin T. Bennett in a suit instituted by said Bennett against relators for malicious prosecution. It is contended that, as no rules are now in force relating to the production of books and papers (those formerly in force Cir. Ct. Rules Nos. 40 to 43 having been omitted in the revision), no such right now exists. It is true, there is no statute or rule governing the case, but, at the common law, production of books and papers can be compelled' where a trust relation exists. 1 Whart. Ev. § 743; 19 Am. & Eng. Enc. Law, 243. In this case the books ordered produced belonged to a corporation in which the defendants are stockholders. The custodians of these books are, in a sense, trustees of plaintiff, and, under the circumstances of the case stated, the order of the circuit judge was justified. The case is clearly distinguishable from Cummer v. Kent Circuit Judge, 38 Mich. 351, and Grow v. Bay Circuit Judge (June 2, 1894), unreported. In neither of these cases was there a trust relation.

The writ will be denied.

The other Justices concurred.


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    PATEK v. WAPLES.
    Discontinuance oe Suit — Stipulation—Parol Evidence — Costs.
    A stipulation discontinuing a pending suit “without costs to either party,” but not purporting to embody the terms of the settlement between the parties, does not preclude the introduction of parol evidence to show that, as a condition to the discontinuance, one of the parties was to pay the counsel fees of the other.
    Error to Gogebic; Haire, J.
    Submitted October 5, 1897.
    Decided November 17, 1897.

      Assumpsit by Julius J. Patek against Belmont Waples for professional services. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Buck & Waples (Fred A. Maynard, of counsel), for appellant.

      Julius J. Batek (C. F. Button, of counsel), in pro. per.

   Long, C. J.

This action of assumpsit was brought in justice’s court, where defendant had judgment. On appeal to the circuit court, the cause was tried before a jury, and the plaintiff had verdict and judgment. The parties are attorneys at law. On the trial it appeared that there was pending in the circuit court for Glogebic county, in chancery, an injunction suit, and also proceedings for contempt, the plaintiff here representing the complainant, and the firm of which defendant is a member the defendants. On June 30,1896, the parties signed discontinuances of the chancery suit, and, with the assent of the circuit judge, of the proceedings in contempt. The subject-matter of these proceedings had been amicably adjusted, and two stipulations were signed by the parties discontinuing the cases. In one stipulation it was recited that the suit was discontinued “without costs to either party,” and in the other “without costs.”

On the present trial it was claimed by the plaintiff that, prior to the signing of those stipulations, an agreement was entered into by which the defendant was to pay counsel for the plaintiff his personal charges. This action was brought to recover for such charges. The plaintiff testified that such an agreement was made, and that that was one of the conditions upon which the suits were settled. This was denied by the defendant. At the close of the testimony, the defendant asked the court to direct the verdict in his favor. This was refused, and the question was submitted to the jury to determine whether such an agreement had been entered into; and the court instructed the jury that, if they found such an agreement was made, the plaintiff should recover.

It is now contended that the court was in error in refusing to take the case from the jury, as requested by the defendant, for the reason that parol evidence was not competent to contradict or vary the terms of the written stipulations ; that, by the terms of the stipulations, the causes were to be discontinued without ¡costs to either party; and that any parol agreement made prior to or at the time of signing the stipulations was merged in the written agreement. This contention cannot be sustained. The stipulations themselves do not purport to embody the agreement between the parties. A settlement preceded them. What that, settlement was, or how much was to be paid, is not set out in the stipulations. They were executed to get the matters there involved off! the record, — to wind up the litigation, so far as it appeared of record, and to discontinue the suits. Whatever the agreement of settlement was, rested in parol, and it appears that a part of the agreement was the payment of the fees of counsel. The case does not come within the rule sought to be invoked by defendant, and the court very properly left the question as one of fact for the consideration of the jury.

The judgment must be affirmed, with costs.

The other Justices concurred.


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    GILSON v. MUNSON.
    1. Division Fences — Fence Viewers — Adjudication—Notice of Meeting — Statutes.
    3 How. Stat. § 799, providing for an adjudication by fence viewers of the amount due to a land owner from an adjoining proprietor for constructing or repairing a line fence, is not invalid for failure to provide that notice shall be given to the interested parties of the meeting of the viewers, since the requirement of notice is incident to the conclusive character of their findings, and is annexed to the statute by reasonable and necessary implication.
    2. Same — Collection oe Award — Taxation—Police Powers.
    The provision of the statute declaring the sum awarded by the fence viewers a lien on the land where the fence was built or repaired, and providing for the collection thereof as a tax, is a legitimate exercise of the police power inherent in the State.

      Certiorari to Lenawee; Lane, J.
    Submitted October 5, 1897.
    Decided November 17, 1897.

      Mandamus by Edwin Gilson, administrator of the estate of Cornelius Gilson, deceased, to compel Dale Munson, supervisor of the township of Deerfield, to spread upon the tax roll against the lands of Adolph Knipping an amount awarded by the fence viewers as relator’s damages for building a finé fence. From an order granting the writ, respondent brings certiorari.

    Affirmed.
    The following is a correct statement of the case taken from respondent’s brief:
    ' “Cornelius Gilson, the relator, and Adolph Knipping, own and occupy farms in the township of Deerfield. Their farms have been separated for many years by the Chicago & Canada Southern Railroad. Several years ago the Lake Shore & Michigan Southern Railway Company leased the tracks of the Canada Southern, west of Trenton. After it passed into the control of the Lake Shore Company, this part of the fine was made no use of, save to store cars, and the courts declared a forfeiture of the right of way. After the forfeiture took place, relator, Gilson, wanted to establish a new fine between him and Knipping, and have a fence erected. Trouble arose between them as to where the division fine should be located, and Gilson called out the fence viewers. They made a division fine, and ordered Knipping to build the part assigned to him within a given time. He failed to construct it within the time limited, so complainant constructed it for him. After completing it, Gilson called upon the fence viewers to appraise the damages. They did so, and complainant demanded of Knipping the amount of damages as found by the overseers. Knipping resisted payment, and the amount was certified to the supervisor, to spread upon the tax roll against the lands of Knipping. The supervisor refused to spread the tax, and relator applied to the circuit court for a writ of mandamus to compel him to spread the tax; and, after a hearing thereof, the circuit court granted the mandamus as prayed. This court granted a writ of certiorari to review the proceedings, upon the application of respondent.”
    The law under which this proceeding was had reads as follows: '
    ‘ ‘ When any deficient fence built up or repaired by any complainant, as provided in the preceding section, shall be adjudged sufficient by two or more of the fence viewers, and the value of such repairing or building up, together with their fees, shall be ascertained by a certificate under their hands, the complainant shall have a right to demand, either of the occupant or owner of the land where the fence was deficient, the sum so ascertained. And in case of neglect or refusal to pay the sum so due on or before the first day of the next succeeding October after demand thereof is made, the sum so due shall become a lien on the said land, and the fence viewers aforesaid shall report the same to the supervisor of the township on or before the first day of November next thereafter, who shall cause the same to be spread upon the assessment roll, in a separate column for that purpose, opposite the description of the land owned or occupied by the person or persons neglecting to pay the same, the said tax to be collected in the same manner that other taxes are collected, and paid over to the complainant upon the order of the township board.” 3 How. Stat. § 799.

      Westermcm & Westerman, for relator.

      John E. Bird, for respondent.
   Grant, J.

(after stating the facts). Counsel for respondent attacks the constitutionality of the law for two reasons:

1. It deprives a man of his property without due process of law.
2. The State has no power to tax except for public purposes.

The sole ground of attack under the first reason is that the statute does not provide for notice to be given of the meeting of the fence viewers to assess the cost of the fence. While it is true that the statute does not expressly provide for notice, yet it does so provide by implication. The decision of fence viewers under this and similar statutes is conclusive. McKeever v. Jenks, 59 Iowa, 300; Oxborough v. Boesser, 30 Minn. 1. Courts will assume that the legislature did not intend to deprive parties of their day in court where they might appear to protect their rights. The legislature undoubtedly understood that these officers would give necessary and reasonable notice of their meetings, and that it was unnecessary to provide for it in the act. The statutes of Maine and Massachusetts are similar in this respect to that of this State. They do not expressly provide for notice, and yet the courts of both States hold that they do by reasonable and necessary implication. Scott v. Dickinson, 14 Pick. 276; Harris v. Sturdivant, 29 Me. 366. See, also, 7 Am. & Eng. Enc. Law, 903.

The second reason .is not sound. The statute makes the amount of the award a lien upon the land, and provides an inexpensive method to enforce the lien and collect the amount. Obviously, this is not a public tax, and other provisions might have been made for its enforcement. The authority of the legislature over this subject is an exercise of the police power inherent in the State. This method of collecting the award of the officers is authorized under the principle stated by Mr. Justice Cooley in his work on Taxation (p. 586, 2d Ed.):

“There are some cases in which levies are made and collected under the general designation of taxes, or under some term employed in revenue laws to indicate a particular class of taxes, where the imposition of the burden may fairly be referred to some other authority than to that branch of the sovereign power of the State under which the public revenues are apportioned and collected. The reason is that the imposition has not for its object the raising of revenue, but looks rather to the regulation of relative rights, privileges, and duties as between individuals, to the conservation of order in the political society, to the encouragement of industry, and the discouragement of pernicious employments. Legislation for these purposes it would seem proper to look upon as being made in the exercise of that authority which is inherent in every sovereignty to make all such rules and regulations as are needful to secure'and preserve the public order, and to protect each individual in the enjoyment of his own rights and privileges, by requiring the observance of rules of order, fairness, and good neighborhood by all around him.”

The judgment is affirmed, and the respondent directed to proceed. Relator will recover the costs of both courts.

The other Justices concurred.


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    DALLAVO v. MORSE.
    Replevin — Title to Support Action — Execution Sale — Evidence.
    Plaintiff brought replevin for 20,000 feet of hemlock lumber, to which he claimed title through one who had purchased at an execution sale. The indorsement of levy and notice of sale described the property as “75,000 feet of lumber, in 45 piles, consisting of birch, ash, elm, maple, pine, and oak lumber, piled and situated on the mill yard of H. [the execution debt- or] . ” There were six or seven other piles of lumber in the yard at the time of the levy. Before the sale, defendant bought of the execution debtor the hemlock lumber in controversy. Plaintiff claimed that the hemlock was intermingled in the 45 piles of lumber levied upon and advertised for sale, but the record on appeal failed to disclose that such was proved to be the case. Held, that plaintiff did not show himself entitled to maintain the action.
    Error to Montcalm; Daboll, J., presiding.
    Submitted October 5, 189?.
    Decided November 17, 1897.
    Replevin by John Dállavo against Bert Morse. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      F. A. Miller and Me Garry & Nichols, for appellant.

      V. H. & H. H. Smith, for appellee.
   Moore, J.

Plaintiff brought replevin to recover 20,000 feet of hemlock lumber, which he purchased from one Douglas, who got his title through an execution sale. The execution was issued in a suit wherein said Douglas obtained a judgment against one Hatinger. The execution was delivered to the sheriff, who proceeded to make a levy upon certain lumber in the yard of Hatinger. The sheriff made no indorsement upon the execution of his levy, but says he did make an indorsement of the levy on another paper, which indorsement was similar to the notices of sale which were posted. The paper was lost, and its contents not proven except as just stated. ' The notice of sale read as follows:

“Sheriff’s Sale.
“Notice is hereby given that by virtue of a writ of fieri facias issued out of the circuit court for the county of Montcalm, dated August 8, 1895, in favor of George Douglas, as plaintiff, against the goods and chattels and real estate of Jacob J. Hatinger, as defendant, in said county, to me directed and delivered, I have this day levied on and taken the following goods and chattels, that is to say: 75,000 feet of lumber, in 45 piles, consisting of birch, ash, elm, maple, pine, and oak lumber, and now piled and situated on the mill yard of the said Jacob J. Hatinger, near Kirby Lake, in the township of Home, in the county of Montcalm and State of Michigan, all of which I shall expose for sale and sell at public vendue to the highest bidder at the mill yard of the said Jacob J. Hatinger, near Kirby Lake, in the township of Home, in the county of Montcalm, Michigan, on the 22d day of August next, A. D. 1895, at 10 o’clock in the forenoon of said day.
“Charles M. King, Sheriff.”

There were 6 or 7 other piles of lumber in the yard at the time of the levy. At the sheriff’s sale, Mr. Douglas "bought the lumber. Before the sheriff’s sale, defendant, Morse, bought the hemlock lumber in controversy from Mr. Hatinger, and Mr. Dallavo knew he claimed to be the owner of the lumber before he purchased from Douglas. The circuit judge held that the notice of sale was not simply irregular or defective, but that there was no notice of a sale of hemlock lumber. Plaintiff offered to show by parol that the hemlock was intermingled in the 45 piles of lumber; but the record does not disclose that the court excluded the testimony, or that any exceptions were taken, so that we must take the record just as it stands. The record does not disclose that any levy was made upon the hemlock lumber, nor does the notice of sale indicate that any hemlock lumber was levied upon or was advertised for sale. We think the trial judge entirely right in holding that plaintiff did not' get such a title, by virtue of the levy and execution sale, as would entitle him to maintain this action.

Judgment is affirmed.

The other Justices concurred.