author: Long, C. J.

text:
    LEVY v. O’LEARY.
    Trial — Stipulation to Discontinue — Pleading—Evidence—Instructions.
    A stipulation for the discontinuance of an action upon a promissory note against an indorser recited that the suit had been compromised and settled in full. Plaintiff thereafter instituted a new action upon the note, setting up in a special count that he had stipulated to discontinue the former case upon defendant’s promise to give him a new note, and that the promise had never been fulfilled. Defendant, upon the trial, claimed that the note sued upon was turned over by him in payment of plaintiff’s claim, and that it was never protested, so as to hold him as an indorser; that the agreement to discontinue the former suit was unconditional, except as shown by the stipulation itself. Plaintiff’s testimony tended to show that the note w*as taken merely as collateral security, and that the conditions of the discontinuance of the former suit were as set up in his declaration. The jury were instructed that plaintiff could not recover if the note was taken in payment, or if the controversy had been settled by stipulation ; but that if a fraud was practiced upon the plaintiff in the settlement, and the note was taken as collateral security merely, he should recover. Held, that the case was fairly submitted under the pleadings and the evidence.
    Error to Wayne; Frazer, J.
    Submitted June 8, 1897.
    Decided June 28, 1897.

      Assumpsit by Julius J. Levy against Michael O’Leary upon a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The stipulation referred to in the opinion was in the following language:
    ‘ ‘ This case having been this day compromised and settled in full, it is hereby stipulated and agreed between the parties that the same may be and hereby is discontinued, without further costs or expenses to either party; each party paying his own costs and expenses to date, if any.”

      Charles C. Stewart (William L. January, of counsel), for appellant.

      Franklin L. Lord, for appellee.
   Long, C. J.

This cause was commenced in justice’s court. The declaration was upon the common counts in assumpsit, with a copy of a note attached, dated April 15, 1893, for $90, due in six months, with interest at 6 per cent., signed by Oliver M. Dicks, and indorsed by Michael O’Leary. There was also a special count, setting up the fact that a previous suit had been commenced on the note in justice’s court, that judgment had been rendered in favor of the plaintiff, from which an appeal had been taken by the defendant to the circuit court, and that there an agreement and stipulation had been entered into to discontinue said suit, on condition that the defendant give to the plaintiff a new note of $90, with good indorsement, payable in four months; that such stipulation was signed and discontinuance entered; but that defendant had wholly failed to give such new note, though often requested. Defendant pleaded the general issue, with notice of former suit and settlement thereof. On the trial before a jury, plaintiff had verdict and judgment.

On the trial, plaintiff introduced testimony tending to show that he received the note from the defendant; that at that time defendant owed him $45 on a note; that in taking the $90 note, signed by Dicks, he returned the defendant his note, and gave him $45 worth of goods; that he told defendant he was not willing to take the note as payment, bnt would take it until it was due as security; that he did not know Dicks, and that he would hold defendant for the payment; that defendant indorsed the note; that it was never protested for nonpayment; that, the note not being paid, he brought suit upon it; that, after this suit was appealed to the circuit, he entered into an agreement to discontinue it, the condition being that the defendant should give him a new note of $90; that, after signing the stipulation to discontinue, the defendant refused to give the new note. The defendant claims that the Dicks note was given in payment; that it was never protested, so as to hold him as an indorser; that he never ■agreed to give a new note as a condition to a discontinuance of the former suit, but that the whole agreement was contained in the stipulation. At the close of the trial, the defendant asked the court to charge substantially:

1. That the defendant was not liable as indorser upon the note.
2. That, if the defendant turned the note over to plaintiff in payment, the plaintiff could not recover.
3. That, if the settlement was deliberately made between the parties, it was binding upon them.

The court charged that, if the note was taken as payment, the-plaintiff could not recover; that, if the parties settled their controversies, that must end the case; but that if the jury found that a fraud was practiced upon the plaintiff in this settlement, and the note was taken as collateral security merely, and not as payment, the plaintiff should recover.

It is contended that the court permitted the case to go to the jury upon an entirely different theory than that -claimed in the declaration. We think not. The second or special count of the declaration sets up the second theory of the plaintiff’s claim; that is, that the defendant agreed to give a new note upon the discontinuance of the case. The jury evidently found that the original note was taken as collateral security, and that the defendant agreed to give the new note upon a settlement and discontinuance of the original suit, and held the defendant liable for the payment which he agreed to make. Wo think there was evidence to sustain this contention, and that the case was fairly submitted upon this theory.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    FARMERS’ FIRE INSURANCE CO. v. JOHNSTON.
    1. Equity — Collection of Judgment —Injunction—Res Judicata.
    An insurance company which has unsuccessfully defended an action upon a policy, payable to a mortgagee as his interest may appear, upon the ground of misrepresentation with reference to the ownership of the mortgage, cannot have the question retried in equity upon a bill to enjoin the collection of the judgment.
    2. Same — Pleadings—Amendment.
    The fact that the company was not allowed in the action at law to put in all of its proof, because of the condition of its pleadings, cannot be urged in support of the equitable remedy, where it does not appear that it asked leave to amend its pleadings so as to render such proof admissible.
    3. Cost's on Appeal — Solicitor’s Fee — Several Defendants.
    Upon affirmance in the Supreme Court of a decree dismissing a bill to enjoin the collection of a judgment, the defendants in which represented different interests, costs, including separate solicitor’s fees, were awarded to each against the surety on the appeal bond as well as against the complainant.
    Appeal from Wayne; Carpenter, J.
    Submitted June 8, 1897.
    Decided June 28, 1897.

      Bill by the Farmers’ Fire Insurance Company against Cyrus Johnston and others to enjoin the collection of a judgment upon a policy of insurance. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      E. T. Wood and Willis G. Clarke, for complainant.

      S. E. Engle, for defendants Johnston and Dehn.

      William Stacey, for defendants Cartwright.
   Moore, J.

Complainant commenced this proceeding by filing a bill in chancery. Defendants demurred to the bill, Judge Carpenter sustained the demurrer, and complainant appeals. In disposing of the demurrer, Judge Carpenter made a statement of the questions involved in this proceeding:

“Complainant insured defendants Cartwright Bros, against loss by fire on a stock of goods, with loss payable to defendant Johnston as his mortgage interest might appear. This stock of -drugs burned. Johnston, as assignee of the Cartwrights, brought suit against complainant and recovered judgment. The Supreme Court affirmed that judgment. 106 Mich. 96. Subsequently Johnston and the Cartwrights differed as to their respective interests in the judgment, and the Cartwrights commenced a suit on the equity side of this court against Johnston and complainant to determine their differences, and to compel complainant to pay according to that determination. Complainant thereupon filed an answer, claiming the benefit of a cross-bill, praying that the judgment against it be declared void. The other parties to this suit demurred to that bill. The demurrer was sustained both in this court and the Supreme Court. 110 Mich. 312. The Supreme Court decided that a decree made before complainant had appeared, adjudging to defendants Cartwright $424.23, and to defendant Johnston the balance of said judgment, operated as a discontinuance, and that complainant was left to pursue such remedy as it deemed advisable by independent suit.
“Complainant thereupon commenced this suit, charging that, about two weeks before the insurance in question was effected, defendant William A. „Dehn sold to said Cartwright Bros, the stock subsequently insured; that said Dehn deceived them as to its value; that the property was not worth over |500, while the Cartwrights paid $500 in cash, and gave Dehn their note for $1,500, and, secured its payment by a chattel mortgage on the property; that the title to this note and the beneficial interest therein always remained in said Dehn; that this fact was well known to Johnston, and both of the Cartwrights knew that said note and mortgage had been given to Dehn; that, when the insurance was applied for, defendants Johnston and John O. Cartwright stated to the complainant that the title to said note and mortgage was in defendant Johnston, and no mention whatever was made of defendant Dehn’s name; that defendant Dehn had not a good reputation, and, if his connection with the property had been known, complainant would not have insured the property; that the true ownership of said note and mortgage was known only to defendants Johnston and Dehn and their counsel, and was not discovered by complainant until the suit in chancery heretofore referred to was commenced by the Cartwrights against Johnston and the. insurance company. All matters appearing of record in • the two former suits are made a part of the bill.
“Thebill prays for a decree subrogating complainant to' all the rights of the Cartwrights against Johnston and Dehn, and adjudging the note, chattel mortgage, and insurance policy and judgment void. Defendants demur, and the question is whether the case made by . the bill entitles complainant to relief. It is claimed that the insurance policy and judgment are void because Dehn held the note and mortgage when the insurance was effected; that the note and mortgage are void because of the fraud practiced by Dehn on the Cartwrights. We will consider separately:
“1. Can the judgment be avoided because the title to the note and mortgage was in Dehn ? In my opinion filed March 17, 1896, in the suit of Cartwright v. Johnston, I stated my reasons for the conclusion that the policy was not void if the Cartwrights named the one whom they believed . owned the mortgage on their property. I still adhere to that opinion. It is not averred in this bill that the Cartwrights did not believe that Johnston owned the mortgage. On the contrary, it is therein distinctly averred that, so far as this complainant could learn, the true ownership of said note and chattel mortgage was known only to said Cyrus Johnston and to said William Dehn and their counsel. If it be argued that the Cartwrights failed in their duty, in not informing complainant that the note and mortgage had been given to Dehn, or that the circumstances indicate that they believed Dehn- the owner when this insurance was effected, it is a sufficient answer to say that all these facts upon which either of these claims can be based appeared on the trial of the lawsuit on the insurance policy, and an opportunity was thereby afforded to use them as a defense.
“2. Can the note and mortgage be set aside, or the amount evidenced thereby reduced, because Dehn deceived the Cartwrights as to the value of the insured property ? It is alleged that, two weeks before the insurance was effected, Dehn sold the property to the Cartwrights for $2,000, when it was worth but $500. The Cartwrights do not complain of this fraud. It is claimed, however, that complainant should be subrogated to the rights of the Cartwrights, and be permitted to complain of it. In an opinion filed April 9, 1896, in Cartwright v. Johnston, I stated that the Cartwrights had elected to affirm their contract, and, if complainant were subrogated to their rights, it would be bound by this election. The principle announced in that, whether or not it was abstractly correct, was not decisive of the case. It assumed that, if the Cartwrights had waived their right to rescind, they had no remedy for the fraud. Clearly, they would still have the right to recover in an action on the case the amount they were damaged by the fraud. We are bound, then, to consider the question, Can complainant be subrogated to the Cartwrights’ right to complain of Dehn’s fraud ? The right of subrogation is given in order that a loss may be transferred to the party whom equity deems primarily liable. In no sense is Dehn primarily liable for the loss sustained by complainant. The representations of Dehn to the Cartwrights had no effect on any of complainant’s rights. Those representations had nothing to do with the contract of insurance. The only representations of value of which complainant can complain are those upon which it effected the insurance, and in the suit at law, when these representations were investigated, it was judicially determined that the property was worth $2,000. The authorities holding that an insurance company may be subrogated, in case of loss of the insured property, to the insured’s right of action against the person whose misconduct or negligence caused the loss, are clearly inapplicable.
“My opinion that the right of subrogation does not exist in this case is very much strengthened by the fact that the able and industrious counsel of complainant fail, in my judgment, to find any authority supporting their position. Of the cases they cite, Hibernia Ins. Co. v. St. Louis, etc., Transp. Co., 10 Fed. 596, 13 Fed. 516, and 17 Fed. 478, is nearest in point. Respecting that case, I quote from the brief of complainant’s counsel the following clear and concise statement: ‘ In this case it was held that an insurance company, upon payment of insurance, might be subrogated to the rights of the insured against a transportation company for negligence, and might, before recovering judgment on the claim for negligence, file a bill against the transportation company to set aside a transfer of its property for fraud. The fraud consisted in this: The transportation company, against which the insurance company’s claim existed, reorganized under another name, with substantially the same parties in interest as stockholders. The old company transferred all its property to the new, with intent to defeat the claim of the insurance company.’ That case is clearly distinguishable from this. There the fraud attacked was fraud towards complainant, — not, as in this case, as already shown, fraud towards a third person. The right to complain of Dehn’s fraud was the personal right of the Cartwrights, which they could not assign (Smith v. Thompson, 94 Mich. 385), and which, in my judgment, equity would not assign for them.
“I do not think the bill makes a case, and the demurrer must be sustained.”

Many of the questions involved in this litigation have been in this court twice before. Johnston v. Insurance Co., 106 Mich. 96; Cartwright v. Johnston, 110 Mich. 312. The complainant’s bill makes the records in these cases part thereof, so that it becomes necessary, in disposing of this proceeding, to take notice of what was done in those cases. In the law case the question was left to the jury to determine the value of the property which was insured, and they found it to be worth at least $2,000. An inspection of the law record also shows that it was then the claim of counsel for the insurance company that the chattel-mortgage interest of $1,500 was in Dehn, and not in Johnston, and for that reason Johnston could not recover. The counsel for the insurance company prepared a request to charge which reads as follows:

“The evidence discloses that W. A. Dehn has a chattel-mortgage interest of $1,500 in the insured property, which was represented by the insured to belong to Cyrus Johnston, which is a misrepresentation, within lines 7 and 8 of the policy, and is in violation of the provisions of line 18 of the policy, and therefore avoids the policy, and the verdict of the jury should be for the defendant.”

Another request reads as follows:

‘ ‘ The declaration avers a chattel-mortgage interest of $1,500 in C. Johnston. The evidence discloses a chattel-mortgage interest of $1,500 in W. A. Dehn, which is a variance. Therefore the verdict of the jury should be for the defendant. ”

This would indicate that, as early as during the trial of the law case, the defendant company had knowledge that Dehn claimed an interest in the chattel mortgage, and that the defendant company sought to defeat Johnston’s recovery for that reason. The company, through its attorneys, now says that it did not, at the time of the law trial, suspect Dehn’s interest; that the testimony left the chattel mortgage in Dehn, but the insurance company never deemed it true, but sought to take advantage of it to compel the putting of these very men on the stand. They also say that it was not their claim that the showing that the title to the chattel mortgage was in Dehn was a fraud upon the company, but simply that it was a variance between the pleadings and proofs. We do not think a reading of the requests prepared by counsel will sustain any such contention. It was the claim of the defendant that a misrepresentation had been practiced upon the company, in relation to this chattel mortgage, sufficient, to avoid the policy; so that we think the question of fraud was raised as early as the trial of the law case, which case was tried in November, 1894. It is certain that evidence appeared in that contention to put defendant upon inquiry, and that, having raised the question at that time, it was bound to go into it fully.

In Gray v. Barton, 62 Mich. 196, it is said:

“ Equity will not relieve a party against a judgment at law, on the ground of its being contrary to justice, unless the defendant was ignorant of his defense pending the suit, or facts could not be received as a defense at law, dr unless, without any neglect or default on his part, he was prevented by fraud or accident, or the act of the opposite party, from availing himself of his defense.”

It is urged by complainant that it was not allowed by the judge, in the suit at law, to put in all its proof, upon the ground that its pleadings were not in condition to permit it to do so. There is nothing in the record to indicate that it asked to amend its pleadings so that it might put in such testimony as it had at hand, nor does the record disclose that it used such diligence as it ought after the knowledge came to it that Dehn claimed an interest in the chattel mortgage.

We do not think a mere allegation by the complainant that a fraud has been committed, and that it can now establish the fraud upon a retrial, when it appears from the record that the question of the same fraud was raised in the former trial, will authorize a court of equity to interfere, after the judgment against the complainant in the court of law has been affirmed by the highest tribunal. To do so would open the way for another contest in equity of nearly every suit at law where the defeated party insists that his defeat was brought about by improper methods. In Miller v. Morse, 23 Mich. 368, it is said:

“Generally courts of equity do not permit';cases to be retried therein which have already been disposed of in the courts of law upon the very point made by the bill. To do so would be to assume an appellate jurisdiction, which by the law is not conferred upon them. Simpson v. Hart, 1 Johns. Ch. 95. The jurisdiction to grant new trials is exercised only when the judgment recovered is against conscience, and when the applicant had no opportunity to make defense, or was prevented by accident from so doing, or by the fraud or improper conduct of the opposite party, and without fault on his own part.”

We do not think the case stated by the bill, constiued in connection with the records in the two cases which have been here before, which are made a part of said bill, calls for any interference by the court of equity.

The interests of Cartwright and Cartwright, who appear by one solicitor, and Dehn and Johnston, who appear by another solicitor, are not identical, and they will be decreed costs of both courts; each of said solicitors for said defendants to have a solicitor’s fee. Costs are awarded against the surety on the appeal bond as well as against the complainant.

The decree is affirmed.

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


author: Montgomery, J.

text:
    JONES v. MERRILL.
    1. Service of Process — Acceptance—Jurisdiction.
    An admission of “due personal service” of subpoena by a defendant in another State is sufficient to confer jurisdiction upon a court of this State.
    2. Same.
    It seems that the bare admission of the fact of service beyond the territorial jurisdiction of the court would not be deemed sufficient.
    3. Ejectment — Betterments—Sufficiency of Occupancy.
    A defendent in ejectment who, before the commencement of the action, entered upon the premises in good faith under color of title, painted the exterior of the house, shingled a portion of the roof, and moved some things into the house, is within 3 How. Stat. § 7836, providing for compensation for improvements made by defendants in ejectment who shall have “occupied” the premises for a less time than six years under color of title and in good faith.

      4. Same — Good Faith — Question eor Jury.
    Where the circumstances are such as to throw doubt upon defendant’s good faith, the question is one for the jury.
    Error to Muskegon; Russell, J.
    Submitted. June 8, 1897.
    Decided June 28, 1897.
    Ejectment by Susan L. Jones against Esther E. Merrill. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Philip W. Niskern, for appellant.

      Chamberlain & Cross, for appellee.
   Montgomery, J.

Ejectment for a house and lot in the city of Muskegon. Plaintiff claims title under a foreclosure in e'quity of a mortgage executed by Melissa C. Livermore. Defendant claimed, at the time of the entry hereinafter referred to, under a commissioner’s deed executed in pursuance of a sale under certain chancery proceedings, the nature of which is not very clearly shown in the record. Defendant also filed a claim for compensation for improvements made upon the premises. Two questions are presented: First, whether the foreclosure under which plaintiff derives title was valid; and, second, whether the defendant had such possession when the improvements were made upon the land as entitled her to recover the increased value of the premises by reason of such improvements, or, more accurately, whether there was evidence for the jury tending to show such occupancy and the good faith of defendant.

The validity of the foreclosure proceeding depends wholly upon the question of whether the court obtained jurisdiction by an acceptance of service signed by the defendant in that proceeding in Montana^ The language of the acceptance indorsed upon the subpoena was as follows :

“I hereby admit due personal service upon me of the within subpoena this 11th day of September, 1894.
“Melissa C. Livermore.”

We had occasion to refer to this subject in Allured v. Voller, 107 Mich. 476. In that case it appeared that there was an acceptance beyond the jurisdiction of the court, in which acceptance there was also a waiver of formal service by an officer, and a permission to the plaintiff to proceed with the case the same as though service had been' made as commanded in said summons. As was said in that case, the authorities are not harmonious upon the subject of a mere acceptance of the service of a writ beyond the jurisdiction of the court. It became unnecessary for us to determine the effect of such acceptance in that case, as we deemed that there was an express waiver and authority in writing conferred upon the plaintiff to proceed with the case. In the present case it is unnecessary to determine the effect of a mere acceptance of a service shown upon its face to be beyond the jurisdiction of the court. In this case the acceptance purports to be an acceptance of due personal service, which means a service which will confer jurisdiction upon the court. The case of Cheney v. Harding, 21 Neb. 65, goes further than is necessary to sustain the holding of the circuit judge in this case. In that case the admission of service showed upon its face that the service was made at the residence of the party, in another State. Yet the court held that the defendant was bound by such acknowledgment or acceptance of service, even though outside the territorial jurisdiction of the court to which it was returnable.

In the early case of Dunn v. Dunn, 4 Paige, 430, Chancellor Walworth said-:

“In all cases where the court has jurisdiction over the subject-matter of the suit, if the defendant, who is beyond the limits of the State, thinks proper to waive that objection by a voluntary appearance, or by consenting to accept as l'egular the service of process upon him at the place where he resides or is found, he cannot afterwards .object to the regularity of the proceedings against him, founded on such service. ” ■

In the case of Vermont Farm-Machine Co. v. Marble, 20 Fed. 117, it appeared that the defendant accepted service of the subpoena, “to have the same effect as if duly served on him by a proper officer.”. It was held that in so accepting service the defendant subjected himself to the jurisdiction of a court sitting in a district of which he was not a resident. See, 'also, Ex parte Schollenberger, 96 U. S. 369; Laramore v. Chastian, 25 Ga. 592; Shaw v. National State Bank, 49 Iowa, 179. The case of Weatherbee v. Weatherbee, 20 Wis. 499, distinctly holds the opposite doctrine. But that case is in conflict with our own holding in Allured v. Voller, and an attempt was made to distinguish it in Keeler v. Keeler, 24 Wis. 522. We think it an entirely safe rule that a party may \waive service of process by any act clearly evidencing an intention to do so. The bare admission of the fact oF) service beyond the territorial jurisdiction of the court should not be deemed a waiver. But an admission of service so worded as to clearly evidence an intent to waive further service should be held to amount to a waiver. Such intent is clear in the present case. ^

The defendant offered evidence to show that, before the commencement of the action of ejectment, she entered upon the premises, painted the exterior of the house, shingled a portion of the roof, and moved some things into the house. • She sought to recover for these improvements. The circuit judge was of the opinion that she had not shown such occupancy as is contemplated by section 7836, 3 How. Stat., which provides for compensation for improvements made by defendants in ejectment who shall have been in the actual, peaceable occupation of the premises for six years before the commencement of the action, or who shall have occupied for a less time than six years under a color of title and in good faith. We think by this term “ occupancy” is meant such an occupancy as, under the rules of the common law, would entitle one to acquire a title by adverse possession. It must be actual, open, and peaceable. But this does not necessarily imply that the claimants shall have actually lived and made their home upon the disputed property. If it were constantly worked year after year, if cropped, or if shrubs and trees were planted and cared for, and such attention given as they required, or if fences were built, such an occupancy is actual, rather than constructive, and is such an occupancy as the statute contemplates.

It is doubtless true that there is enough in this record to throw some doubt upon the defendant’s good faith, but this would be a question for the jury. Miller v. Clark, 56 Mich. 344.

We think there was error in excluding the evidence of defendant upon this branch of the case, and that for this error the judgment should be reversed and a new trial ordered.

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


author: Grant, J.

text:
    DESMOND v. MYERS.
    Trusts — Fraudulent Conveyances — Consideration.
    Property taken by a husband in the, name of his wife under a verbal agreement that such conveyances should thereafter be made as he should be advised would vest title in them jointly, and subsequently deeded to a third person to be re-conveyed to the husband and wife, will not be subjected to the claims of creditors of the wife, who levy thereon after the agreement has been carried out in good faith, merely because the wife, under 2 How. Stat. § 5569, providing that no trust shall result in favor of a person furnishing the consideration for a conveyance to another, was at liberty to refuse to carry out the parol agreement.
    Appeal from Wayne; Lillibridge, J.
    Submitted June 8, 1897.
    Decided June 28, 1897.

      Bill by Frank C. Desmond against Lucy A. Myers and Jefferson P. Myers in aid of execution. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    The following finding by the court is a good and sufficient statement of the case, and we adopt it:
    “This is a bill in aid of execution. The complainant obtained a judgment for $227 against the defendant Lucy Myers, and he has levied to satisfy that judgment upon a certain lot described in the bill of complaint. Now, the levy was made on the 13th day of May, 1896. Prior to the 20th day of December, 1895, that lot stood in the name of Lucy Myers. On the 20th day of December, 1895, Lucy Myers, in pursuance of an agreement or arrangement between herself and her husband, which the testimony shows was contemporaneous with the taking of that title in herself, conveyed that property to one Smith, and Smith, in pursuance of the same arrangement, deeded it to Mrs. Myers and Mr. Myers. The’testimony is uncontradicted here that, when this lot 13 was bought, Jefferson Myers furnished the consideration for it, — the entire consideration; and that he took that deed in the name of his wife with the intention of creating a homestead, and ultimately taking title in the name of himself and wife as joint tenants. Now, while it is true that section 5569 of the statute provides that Jefferson Myers might not have had an action against his wife which he could enforce against that property, yet it is established, as I think, by the cases which have been cited from the Michigan Reports, that such an arrangement or understanding or agreement between a husband and wife is valid, and that, if the conveyance is made subsequently in pursuance of that, it is not a fraud against creditors. Now, I see no reason to doubt the testimony of Mr. Myers in the case. In fact, I believe it, — that he did furnish the consideration for this property, and Mrs. Myers furnished no money for it, and that he took the title as he states, with the intentions stated by him. It appears that this arrangement was carried out the 20th of December, 1895, and that judgment in this case against the defendant was rendered May 1, 1896, so that I do not perceive any actual or legal fraud in the transfer of this property to Jefferson Myers and his wife.”

      Charles C. Stewart, for complainant.

      Jonas B. Houck, for defendants.
   Grant, J.

(after stating the facts). Mr. Myers had no enforceable trust in this land. 2 How. Stat. § 5569:

“When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.”

But 'Mrs. Myers recognized her moral obligation to carry out the parol trust reposed in her by her husband. She executed it by deeding the land before complainant had obtained any lien upon it. Such a trustee is entitled, in both law and morals, to recognize the trust, ■and to convey to his cestui que trust at any time before a valid lien has been placed upon the land. Where such a transaction is, as in this case, stamped with honesty, the creditors of the trustee have no rights superior to those of the party who paid for the land, and to whom it had been conveyed before any lien has attached. Why should one keep for his creditors property which in honor belongs to another? Popendick v. Frobenius, 66 Mich. 317; Cottrell v. Smith, 63 Iowa, 181; Patton v. Chamberlain, 44 Mich. 5. When the trust, though not enforceable by reason of the statute, has been carried out, the question under the statute of frauds has been eliminated, and becomes immaterial. Sackett v. Spencer, 65 Pa. St. 89; Barber v. Milner, 43 Mich. 248; Moore v. Crawford, 130 U. S. 122. In the last case, at page 129, the court say:

“There is no rule of law which prevents a party from performing a promise which could not be legally enforced, or which will permit a party, morally, but not legally, hound to do a certain act or thing, upon the act or thing being done, to recall it, to the prejudice of the promisee, on the plea that the promise, while still executory, could not, by reason of some technical rule of law, have been enforced by action.”

We, of course, are not passing upon a case where there is actual fraud, or where credit has been extended by the creditor upon the faith that his debtor owns the land.

Decree affirmed, with costs.

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


text:
    FORD v. CHEEVER.

    1. Trial — Jurors—Voir Dire.
    The trial judge may limit, reasonably, the extent of the voir dire examination of jurors.
    2. Same — Remarks oe Counsel-tAppeal.
    The Supreme Court declined to reverse a judgment because of objectionable remarks of counsel, made in the course of the examination of witnesses and the argument to the jury, where the trial court promptly informed counsel that the remarks were improper and should not have been made.
    Error to Lenawee; Lane, J.
    Submitted June 8, 1897.
    Decided June 28, 1897.
    Case by Emma Ford against Jacob Cheever under the civil-damage law. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Walter C. Burridge and Watts, Bean & Smith, for appellant.

      J. C. Winne, for appellee.

       Rehearing denied November 23, 1897.

   Moore, J.

This case has been here before, and is reported in 105 Mich. 679. A reference to that case will show many of the questions involved here.

The first errors assigned relate to the voir dire examination of the jurors. An examination of the record shows that, while the trial judge sustained the objection to some of the questions put to the jurors, he also gave counsel so wide a latitude in the examination of the jurors that the rights of the defendant could not have been .prejudiced. The trial judge must be allowed to place some limit upon the extent of the examination. The jurors to whom the questions were put were excused peremptorily by the defense, and, without examining other jurors, the counsel for the defendant announced themselves as satisfied with the jury.

It is also said that it was error to admit the deposition of Orrin T. Lane. It is sufficient to say that this objection was disposed of when the case was here before, and must be treated as res judicata.

It is insisted that the remark of plaintiff’s counsel to John Lucas, who had just sworn he was a bartender, “You are ashamed of it, are you?” is prejudicial error. The record shows the court at once stated that the objectionable remark ought not to have been made. If a case is to be reversed every time counsel, in the heat of a trial, puts an objectionable question, even though the court properly and promptly corrects him, there will he no end of litigation. Error is also assigned to remarks made by counsel in his argument to the jury. Some of these remarks were objectionable, and the trial judge promptly so determined, and so informed the counsel. What we have just said as to the remark made by counsel to the witness will apply to these remarks.

It is claimed there is no substantial evidence that appellant furnished plaintiff’s husband with liquor during the time mentioned in her hill of particulars. In view of the testimony of Mr. Lane that he had often seen Ford drunk, and had drunk often with him at J acob Cheever’s: “We drank liquor together there from the same bottle from the early fall of 1891, right along, while I lived there. We drank together at Cheever’s very often, till I told Cheever of a conversation I overheard one night, and notified him not to sell Ford any more liquor. That was in October or November, 1891, I should think. I told Cheever that night that I heard two men talking just outside his door, about Ford’s being drunk again. They said Ford had sold his pork, and was getting drunk on the money; that no other saloon keeper except Cheever would sell him liquor; that Cheever had better be careful, or he would have trouble. I told him the two men had made these remarks. I did not know them myself, but I described them so that he knew them. He thanked me for telling him, and we both had a drink together. Ford was then in his saloon very drunk, and I tried to have him go home, but could not get him started,” — this contention cannot be sustained. There was other testimony that tended to show appellant furnished Ford with liquor. The case was a proper one to be submitted to the jury.

The other assignments of error have had consideration, but we do not deem it necessary to discuss them further than to say that we do not deem any of them well taken. The record and assignments of error are presented in a very unsatisfactory way, and their examination has been attended with much more trouble than if they had been properly prepared.

The judgment is affirmed.

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


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    SOPER v. PONTIAC, OXFORD & NORTHERN RAILROAD CO.
    Carriers — Damage to Stock — Bill of Lading — Waiver of Conditions.
    Evidence that a carrier received an unverified claim for damages from a shipper of stock, with a promise to give the matter prompt attention as soon as certain discrepancies were explained, and without any other objection than that the amount claimed was unreasonable, justifies the finding of a waiver of the requirement of its bill of lading that, in order to maintain a claim for damages to stock, a verified statement thereof must be served within five days after the removal of the stock from the cars.
    Error to Huron; Beach, J.
    Submitted June 8, 1897.
    Decided June 28, 1897.
    Case by Leander Soper against the Pontiac, Oxford & Northern Railroad Company for injuries to stock shipped over defendant’s road. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Aug. C. Baldivin, for appellant.

      George W. Clark ( W. T. Bope, of counsel), for appellee.
   Moore, J.

Plaintiff shipped cattle and sheep over defendant’s road. • Part of the train containing the stock was thrown from the track, some of the animals were killed, and it was claimed others were injured. Plaintiff sued to recover for the value of the.stock killed and the injury done to the others. He recovered a verdict of $133. The defendant appeals.

The only point open to discussion under the exceptions and assignments of error is whether the trial court erred in its disposition of the question of waiver. It is the claim of the defendant that, because of the conditions attached to the bill of lading, the plaintiff was bound to serve upon the defendant a verified statement of his claim within five days after the removal of the stock from the cars, and that, as he did not do this, he could not recover. The plaintiff claimed that this condition was waived by the letters, acts, and conduct of the defendant. The trial judge instructed the jury, in substance, that the condition attached to the bill of lading was a valid one, and that the plaintiff would be bound by it, unless the conditions had been waived by the defendant; and left it to the jury to say whether the conditions had been waived or not.

The record shows that the plaintiff’s claim was put into the hands of his attorney within two or three days after the stock was removed from the cars, who at once made out the claim of the plaintiff, and delivered it to the station agent at Bad Axe. It was forwarded to Mr. Rosevear, who forwarded it to Mr. Sanford, the general superintendent of the defendant road. The claim was not verified.- Correspondence then occurred between Mr. Sanford and Mr. Rosevear, and Mr. Sanford and the attorney for the plaintiff, Mr. Clark. Some of these letters could not be found at the time of the trial, but two of them were found, and received in evidence. They read as follows:

“Pontiac, Mich., Dec. 18, 1895.
“W. R. Rosevear, Esq.,
“G. F.' & P. A., S., T. & H. R. R.,
“Saginaw, Mich.
“Dear Sir: Referring to the claim of L. Soper, your number 313, for damage sustained on account of the wreck of our stock train at Inilay City, November 23d, Mr. Soper claims that he suffered a loss of $133, but fails to specify just how the figures are made up, excepting the item of one heifer killed, $20, and seven sheep killed, $28. The balance of the amount is made up by the item of shrinkage on sheep, $35, and shrinkage on cattle, $50. Please request Mr. Soper to send me a detailed statement showing how he arrives at these figures, and particularly to state the number and initials of the. cars the stock was loaded in on which he claims the damage. It is not my intention to seek to evade any just claim, but it seems to me that the amount claimed by Mr. Soper is unreasonable; hence my desire to learn precisely how the figures are arrived at.
“Yours truly,
[Signed] “W. C. Sanford, Gen’l Supt.”
“Pontiac, Mich., January 6, 1896. “Geo. W. Clark, Esq.,
“Bad Axe, Mich.
“Dear Sir: Replying to your favor of the 4th inst., the papers in Mr. L. Soper’s claim for damages on account of the wreck of stock train on our line November 23d are needed just now to complete our investigations, but will return them in a few days if desired. In the meantime the following are the items included in his bill: One heifer killed, $20; seven sheep killed, $28; shrinkage on sheep, $35; shrinkage on cattle, $50; total, $133. Attached to this claim are shipping bills for M. C. car 40,231, ‘ 34 cattle,’ and M. C. car 40,222, ‘60 sheep and 21 calves.’ The last-named car, 40,222, was not in the wreck, but went forward, and reached Buffalo at the usual time, Sunday afternoon, without any delay whatever, ■ as far as this company is concerned; and as there were no sheep in car 40,231, I am at a loss to understand why Mr. Soper claims loss and damage on sheep. I will also state for your infermation that none of the stock in car 40,231 was killed or otherwise injured. We have an exact record of every car.that was in the wreck, and the number of head of stock in each car. As soon as these discrepancies in Mr. Soper’s claims are explained, I will arrange to give the matter prompt attention.
“Yours truly,
[Signed] “W. O. Sanford, Gen’l Supt.”

It will be noticed that Mr. Sanford does not seek to resist the claim upon the ground that a verified statement of the claim was not furnished in time, and there is nothing in the record to show that this defense was ever interposed until the time of the trial. On the contrary, the superintendent wrote: “It is not my intention to seek to evade any just claim, but it seems to me that the amount claimed by Mr. Soper is unreasonable; hence my desire to learn precisely how the figures are arrived at.” “As soon as these discrepancies in Mr. Soper’s claims are explained, I will arrange to give the matter prompt attention.” It is not at all certain, in view of the statements contained in these letters, that the trial judge would not have been justified in instructing the jury as a matter of law that the defendant had waived its right to insist upon a verified statement of the claim. Marthinson v. Insurance Co., 64 Mich. 372; Cobbs v. Fire Ass’n, 68 Mich. 465; Towle v. Insurance Co., 91 Mich. 226. The question, however, was submitted to the jury, and we do not think there is any ground for complaint upon the part of the defendant. Hibernia Ins. Co. v. O’Connor, 29 Mich. 241; Cobbs v. Fire Ass’n, 68 Mich. 463; International, etc., Ass’n v. Walker, 88 Mich. 62.

Judgment is affirmed.

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


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    KELLY v. BOWERMAN.
    1. Assignment of Rents — Mortgages.
    An assignment of rents of mortgaged property, to be received by the mortgagee and applied upon the mortgage, is valid.
    2. Same — Attornment.
    Where a lessor assigns the lease, the lessee is under legal obli gation to pay the rent to the assignee; no formal act of attornment being necessary.
    3. Same — Power of Attorney — Revocation.
    An instrument purporting to be a power of attorney, authorizing the attorney to collect the rents from mortgaged premises and apply them upon the mortgage, and assigning the rents, not only from the leases then in existence, but from those thereafter to be made, as security for the mortgage debt until it should be fully paid, is not revoked by the death of the mortgagor.

      4. Mortgages — Consent Deoree — Admissions—Administrators.
    A decree entered by consent in a foreclosure suit, adjudging that the mortgagee “has been and is in possession, and is entitled to the possession and control, of the premises, * * * and empowered.to collect all rents,” is a concession by the mortgagor that the mortgagee is entitled to the rents, which is binding upon the mortgagor’s administrator.
    Error to Wayne; Lillibridge, J.
    Submitted June 9, 1897.
    Decided June 28, 1897. .

      Assumpsit by John Kelly, Jr., against William J. Bowerman and another for rent. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.
    This is a suit brought by plaintiff in justice’s court, February 9, 1885, as assignee of a lease executed by one Catherine Brennan to the defendants on May 16, 1894. Plaintiff recovered judgment in both justice’s and circuit courts.
    Mrs. Brennan was the owner of the property, and on August 24, 1895, borrowed of plaintiff $7,284, and gave him a mortgage to secure the same upon the real estate described in the lease. That mortgage contained the following provision:
    “And it is hereby expressly stipulated and agreed upon, by and between the parties hereto, and as a condition precedent to the consummation of this loan, and as a part of the consideration of the same, that the said first party hereto assign, sell, and turn over unto said second party, or his authorized attorney, all the. rents and profits of said premises; and the said first party, as an additional collateral security for the moneys hereby secured, does hereby sell, assign, and transfer to said second party, his agent or attorney, all the rents, issues, and profits of the said premises, — said second party being hereby authorized and empowered to collect the said rents and profits, and to receipt for the same, as fully as would the first party herein. Said rents and profits shall be applied on the debt herein secured, and this assignment shall continue, a,nd be and remain in full force and effect, until all moneys secured hereby be fully paid, with all interest and expenses. This mortgage is made to ■ secure all notes made by said first party to said second party, in addition to the above amount, at any time.”
    Plaintiff resided' in New York, and his brother, Ronald Kelly, an attorney in Detroit, attended to the business. Under this mortgage, possession was given to the'plaintiff through his brother, Ronald, who, until the time of the execution of the lease to defendants, had collected the rents, amounting to $2,872.75, and applied them upon the mortgage. After the execution of the lease to defendants, Mrs. Brennan delivered the lease to Ronald Kelly, and he permitted her and her daughter, who for some reason unexplained executed the lease with her mother, to receive six months’ rent. On May 5, 1887, Mrs. Brennan executed to Ronald Kelly,a power of attorney, authorizing him to collect all the rents from these premises, and to apply the same upon the mortgage to the plaintiff. This power of attorney also contained a clause assigning all the rents from said premises as security for the interest and principal of the mortgage given to plaintiff, until they were fully paid. On February 2, 1895, plaintiff filed his bill in chancery for the foreclosure of this mortgage. Decree was rendered February 10, 189C, for $10,-387.25. The solicitors for the defendants, who are now attorneys for the defendants here, consented to the decree. The decree contains the following provision:
    “And it is further ordered, adjudged, and decreed that the said complainant has been and is in possession, and is entitled to the possession and control, of said premises, and to rent and lease the same, and to collect the rents of said premises, and to receipt for the same, and to apply said rents upon the debt secured by said mortgage, until all of the moneys due upon said note and mortgage be' fully paid, and that the injunction heretofore granted by this court, restraining said defendants and their agents, etc., is hereby continued, and to be and remain in full force and effect until the further order of this court, or until after the,sale of said premises by virtue of this decree, and said complainant is entitled to and empowered to collect all rents now due or to become due from said premises, and apply them on tbe debt herein found due.”
    The court directed a verdict for the plaintiff.

      Fraser & Gates, for appellants.

      Ronald Kelly (W. F. Atkinson, of counsel), for appellee.
   Grant, J.

{after stating the facts). The assignment of rents of mortgaged property, to be received by the mortgagee and applied upon the mortgage, is valid. Michigan Trust Co. v. Lansing Lumber Co., 103 Mich. 402; Reading v. Waterman, 46 Mich. 109; Morse v. Byam, 55 Mich. 598; Byers v. Byers, 65 Mich. 600.

No formal act of attornment was necessary. Where the lessor assigns the lease, the lessee is under legal obligation to pay the rent to the assignee. Perrin v. Lepper, 34 Mich. 292.

The paper executed and delivered to Ronald Kelly for the plaintiff was something more than a power of attorney. If it were a mere power of attorney, the rule invoked by the defendants, that this power is revoked by death, might apply. But it also assigned the rents, and covered, not only the lease or leases then in existence, but also all that might thereafter be made. From the date of the mortgage to the death of Mrs. Brennan, she surrendered to the plaintiff the control of this property in accordance with the terms of the mortgage.

While the records and decree in the chancery case might have been excluded, we do not think it was error to admit them. The administrator is defending this suit. That decree is an acknowledgment that plaintiff “has been and is in, and is entitled to, possession and control of the premises, and to collect the rents.” This is a concession of the plaintiff’s right to the rents, and is binding upon the administrator.

The court was correct in directing a verdict for the. plaintiff.

Judgment affirmed.

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


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    GRIMES v. WILLIAMS’ ESTATE.
    Attachment — Wrongful Levy — Judgment—Bar.
    The recovery and collection of damages against a creditor for the seizure of property under a writ of attachment wrongfully sued out is a bar to the prosecution of a suit for the identical wrong against the estate of another creditor, whose attachment was in the officer’s hands at the time of the levy for which recovery was had, and was levied upon the same property immediately thereafter.
    Error to Ingham; Person, J.
    Submitted June 9, 1897.
    Decided June 28, 1897.
    John Grimes presented a claim against the estate of James M. Williams, deceased, which was disallowed by the commissioners, and claimant appealed to the circuit court. From a j udgment for defendant on verdict directed by the court, claimant brings error.
    Affirmed.

      Atkinson & Wiest, for appellant.

      JB. D. York ( Otto Kirchner, of counsel), for appellee.
   Moore, J.

Appellant filed a claim before the commissioners on claims in probate court, which was disallowed? An appeal was taken to the circuit court, where, by direction of the court, the claim was also disallowed by the jury. Claimant appeals.

It is contended for the claimant that he suffered damages by reason of having levies made upon his property under writs of attachment wrongfully sued out. The •only items of the claim discussed in the briefs of counsel for appellant are: ‘ ‘ Share of wheat at Wygant’s, $234.50; share of wheat at Plunkett’s, $376; damage to real estate, $60,810.” So we may assume no claim is made as to the •other items. The record discloses that attachment suits were commenced, in one of which Mr. Williams, the deceased, was plaintiff. In another of these suits Mr. Bowerman was plaintiff. With these writs of attachment in his hands, the sheriff levied on claimant’s real estate, and upon the wheat in question. The Bowerman attachment was levied first. The wheat was afterwards taken under an attachment at the suit of Mr. Thoman against Mr. Grimes, and sold to satisfy an execution issued in the last-named attachment suit. The record also shows that the claimant afterwards sued Mr. Bowerman to recover damages for the wrongful levies. The declaration in that case was broad enough to cover the taking ■of the same property mentioned in the claim against the Williams estate. Mr. Grimes recovered a judgment •against Mr. Bowerman in that action, and afterwards collected his judgment.

A great many questions are raised by counsel which it will not be necessary to discuss. It was the view of the trial court that, inasmuch as Mr. Grimes had recovered a judgment against Mr. Bowerman, which he had collected, for the identical wrong for which he now presents a claim against the estate of Mr. Williams, he cannot now recover from Mr. Williams. We think he was right in his interpretation of the law. Stone v. Dickinson, 5 Allen, 29 (81 Am. Dec. 727); Boardman v. Acer, 13 Mich. 77. See Kenyon v. Woodruff, 33 Mich. 315.

Judgment is affirmed.

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


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    McKENZIE v. A. P. COOK CO.

    1. Equity Pleading — Cross-Bill.
    The defendant in a bill to quiet title, involving a determination of the question of title between the parties, may assert his legal title by a cross-bill.
    3. Limitation of Actions — Statutes.
    The period in which title to land will become absolute by limitation depends upon the statute in force at the time the right of action accrues to the owner.
    3. Laches — Abandonment of Suit.
    In the absence of evidence of an actual intent on the part of a plaintiff in ejectment to abandon his suit, mere delay, though long continued, in bringing the case to trial, will not be construed as an abandonment; at least where there has been no motion to dismiss for failure to prosecute.
    4. Ejectment — Conveyance by Plaintiff — Effect Upon Suit.
    A conveyance of the land by the plaintiff in ejectment does not operate to abate the suit, but it may still be prosecuted by the plaintiff or his representative, and a judgment in his favor will inure to the benefit of the grantee.
    5. Same — Death of Plaintiff.
    The death of the plaintiff in ejectment does not abate the suit.
    6. Same — Death of Defendant — Abatement—Limitations.
    The death of the defendant in ejectment abates the suit; but the statute of limitations does not run during the pendency of the suit, and under 2 How. Stat. § 8707, plaintiff may bring an action for the same cause at any time within one year after the suit is thus abated.
    7. Same — Injunction Bill — Election of Remedies.
    A defendant in ejectment who files a bill in equity to enjoin the prosecution of the suit, plaintiff consenting by his answer that the question of whose is the superior title may be transferred to that forum, cannot invoke the doctrine of election of remedies to defeat plaintiff’s right to a decree.
    8. Same — Improvements—Owner’s Option.
    The owner of land is entitled, upon establishing his claim as against one who has held the land under color of title for a number of years, and has made improvements thereon, to his election as to whether he will take the land, and pay the increased value due to the improvements, or abandon the land to defendant, upon payment by him of the value it would have had if no improvements had been made.
    Appeal from Monroe; Kinne, J.
    Submitted June 9, 1897.
    Decided June 28, 1897.
    Bill to quiet title by Amanda A. McKenzie and others against the A. P. Cook Company, Limited, and others. Defendants filed an answer in the nature of a cross-bill. From a decree for complainants, defendants appeal.
    Reversed, and decree entered on the cross-bill for defendants.

      George W. Radford, for complainants.

      Taggart, Knappen & Denison, for defendants.

       Rehearing denied November 33, 1897.

   Montgomery, J.

The original bill in this case was filed by Clark H. B. McKenzie in 1893. The land involved is an 80-acre farm in Monroe county, which was patented by the United States to Theron Skeel, July 1, 1835. Addison P. Cook acquired the Skeel title, October 16, 1848. The land was sold as delinquent for the taxes of 1854, 1856, 1858, and 1861. Three of these tax titles were vested in John S. Gregory, who took possession of the lands in 1862, and who continued in possession until he conveyed to McKenzie, in 1864. In 1878, Addison P. Cook commenced a suit in ejectment against McKenzie, who appeared and pleaded the general issue, and gave notice of his tax titles, and of a claim for improvements. In December, 1888, Addison P. Cook conveyed the land to the A. P. Cook Company, Limited. Mr. Cook died in 1889. In 1893, Percy T. Cook, as administrator of A. P. Cook, proceeded to revive the ejectment suit. Thereupon the original bill in this case was filed, for the purpose of quieting title to the land, McKenzie setting up his tax titles and adverse possession, averring that the ejectment suit had been abandoned, and that its revival by the administrator ought not to be permitted, and praying that defendants be enjoined from prosecuting the ejectment suit, and from selling or advertising the lands for sale. Defendants filed their answer in the nature of a cross-bill, alleging that the A. P. Cook Company, Limited, by a conveyance from A. P. Cook, held a perfect title to the land in question, and asking that its own title be quieted, and that the questions at issue in the ejectment suit be adjudicated. Complainant replied to the answer, and answered the cross-bill. Some depositions were taken, but, before the hearing was had, complainant, Clark H. B. McKenzie, died. The cause has been revived, and his wife and heirs at law have been brought in. The decree of the court below was in favor of the complainants, on the ground that the McKenzie title had become absolute by the statute of limitations.

A question is raised as to whether the defendant company can assert its legal title by cross-bill. We think it is open to the defendant to do so. The scope of complainant’s bill was such as to call for a determination of the question of title between these parties. This being so, the defendant had a right to interpose by way of cross-bill, and ask the relief to which it was entitled in case the court should find against the complainants’ title. Griffin v. Griffin, 112 Mich. 87; Shields v. Barrow, 17 How. 130; Greenwalt v. Duncan, 16 Fed. 35; Watts v. Sweeney, 127 Ind. 116; Jones v. Thacker, 61 Ga. 335; Remer v. McKay, 38 Fed. 164; Logan v. McMillan, 5 Dana, 484; Hall v. Edrington, 8 B. Mon. 47; 2 Daniell, Ch. Pl. & Prac. 1549.

The possession of McKenzie and those under whom he claimed began in 1862, and between that date and the commencement of the ejectment suit 16 years had elapsed. But, at the time of entry, the period of limitations was 20 years. The act of 1863, providing for a 10-year limitation when the land was held under tax title, did not take effect until January 1, 1864. As Mr. Cook’s right'to bring ejectment accrued in 1862, the period of limitations depended upon the act in force at that date. See Stambaugh v. Snoblin, 32 Mich. 296; McKisson v. Davenport, 83 Mich. 211. So that, if the complainants must rely upon an adverse possession which had ripened into title before the institution of the ejectment suit, their claim must fail. But their contention is that there can be added to the period, before the institution of the ejectment suit, the long period of time which has since elapsed, for the reason- — First, that the ejectment suit had been abandoned before the equity suit was instituted; and, second, that, by the death of McKenzie, the ejectment suit abated, and that the effect of this abatement is to leave the parties as though no suit had been instituted.

After the ejectment suit was planted and was at issue, it was within the power of either party to bring the case on for hearing. Neither the plaintiff nor defendant saw fit to do so. The evidence does not show any actual intent on the part of Mr. Cook to abandon the prosecution of the case. It is true, there was a long delay, but no steps were taken to press the case to a hearing, and no motion in the case itself has been made to dismiss the suit for a failure to prosecute. If such practice is admissible in ejectmént, — a point which we do not decide, — a motion should hhVe been made in the case, while the court could fix sucHatferms as might be reasonable. See 2 Shinn, Pl. & Prac. § 945; Hill v. Webber, 50 Mich. 142.

T-He conveyance by Addison P. Cook to the A. P. Cook Company, Limited, did not operate to abate the ejectment suit. Such suit might still be prosecuted by Cook or his representatives, and the judgment, if in his favor, would inure to the benefit of his grantee. Michigan Central R. Co. v. McNaughton, 45 Mich. 87; Snyder v. Hemmingway, 47 Mich. 549.

The death of plaintiff did not operate to abate the ejectment suit. 5 Enc. PI. & Prac. 803.

The case must turn upon the question of the effect of the death of Clark H. B. McKenzie upon the action of ejectment, as it affected the running of the statute of limitations. Undoubtedly, the death of McKenzie abated the action. 5 Enc. Pl. & Prac. 825; Hoffman v. St. Clair Circuit Judge, 40 Mich. 351. The circuit judge was of the opinion that, upon the abatement of the ejectment suit by the death of McKenzie, the sole remedy of the Cooks was to institute a fresh ejectment suit, and that upon their doing so, if the period fixed by the statute of limitations had elapsed after the entry by McKenzie, and before the institution of such new suit, the plaintiff would be barred; Such a rule of law, it is evident, would work manifest injustice in many cases. The plaintiff in ejectment might have a perfect action today, and title to property; tomorrow, by the death' of the defendant, his right would be cut off. The court should hesitate to lay down a rule which would lead to such consequences. Section 8707, 2 How. Stat., provides that—

“If any action of which the commencement is limited by this chapter shall be abated by the death of any party thereto, * * * the demandant or plaintiff, or any person claiming from, by, or under him, may bring an action for the same cause at any time within one year after the determination of the original action.”

“The same cause” means, of course, the sajpe entry. We think it clear that the statute of limitatiopgr$vas not running during the pendency of the ejectme^spit, and that, the complainants themselves having resq-rtgd to a court of equity, equity should follow the law, and that it should be held that the Cook title has not been barred by the statute. Clark H. B. McKenzie, it appears, died May 19, 1895. Within the year fixed by section 8707, the defendants might have instituted a new action of ejectment, as we have seen. Instead of that, they did, within the same period, cause the present cause, in which the same issue was presented for determination, to be revived.

It is urged by complainants that A. P. Cook elected to press the remedy of ejectment, which is an action at law, and that this election was ratified by his administrator in 1893, and that defendants are bound by this election, and that it results that, when the ejectment suit is abated, the widow and heirs of McKenzie have a perfect title by adverse possession. We perhaps fail to understand the force of complainants’ contention. The ejectment suit was certainly no waiver of defendants’ claim of title. On the other hand, it was an assertion of it. Complainants sought another forum. Defendants .consented that the question of which title was superior might he tried in that forum. We think the doctrine of election has no pertinence.

It not being contended that the tax titles were valid, and the proofs showing their invalidity, it follows from what has been said that the defendants are entitled to a decree. In settling the decree, the practice pursued in Sherman v. A. P. Cook Co., 98 Mich. 61, will be followed. The defendants will be entitled to elect as to whether they will take the land, and pay the increased value of the land, by reason of the improvements, or abandon the land to complainants, upon payment by them of the value which it would have had no improvements been made or placed upon the property.

The defendants’ witness Rousseau testified that the value •of the land, in the condition it would have been in had no improvements been made upon it by McKenzie, would he $20 an acre, and its value in its present condition, with the improvements upon it, $40 an acre. We are disposed to adopt these figures, although there is testimony by one witness that he thinks the land would sell for $25 or $30 an acre if it were in the condition in which it was when McKenzie took it. But he based this upon the reason that “men do not have money to put in to buy improved farms, and they think they can improve it themselves, with the help of their boys, and work out a home from it.” We think this partakes somewhat of conjecture, and are disposed to adopt the figures given by the witness Rousseau.

The decree will be reversed, and a decree entered in this court in accordance with this opinion.

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


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    CURTIS v. CLARKE.
    Vendor’s Lien — Succession—Waiver.
    A wife, as executrix and sole legatee of lier deceased husband, may enforce a vendor’s lien upon real estate conveyed by him in his lifetime, although she has, for convenience, exchanged the notes originally given to him for the purchase price for new notes of like date and amount, payable to herself.
    Appeal from Lenawee; Lane, J.
    Submitted June 9,, 189?.
    Decided June 28, 1897.
    Bill by Frances A. Curtis, as executrix of the last will and testament of George Curtis, deceased, against Helen J. Clarke, to enforce a vendor’s lien. From a decree for complainant, defendant appeals.
    Affirmed.

      Watts, Bean & Smith, for complainant.

      James W. Wightman (Lester H. Salsbury, of counsel), for defendant.
   Moore, J.

Complainant filed a bill in chancery, asking that a vendor’s lien might be decreed against certain real estate for the purchase price thereof. . A decree was-granted as prayed. Defendant appeals.

The testimony is conflicting, but we think it is established, by a clear preponderance of the evidence, that the real estate in controversy was, in June, 1886, deeded by the complainant and her husband to the defendant and her husband. At the same time, and as a part of the same transaction, the defendant and her husband gave their notes for the full amount of the purchase price. Mr. Curtis, soon after this, died, leaving a last will and testament, in which he made his wife his sole legatee. Soon after the death of Mr. Curtis, simply for her convenience, the notes which had been given by the defendant and her husband were surrendered, and notes of like number and amounts, but with Mrs. Curtis named as payee, were signed by Mrs. Clarke and her husband, and delivered to Mrs. Curtis. These notes were dated back, so as to bear the same date as the notes originally given. There were seven of these notes, each being for $100. Two of them have been paid. Mr. Clarke afterwards died. His widow failed to pay the notes, and declined to secure them upon the real estate conveyed, and this action was brought.

The title to the real estate is in Mrs. Clarke, placed there by the complainant and her husband. Mrs. Clarke has known from the commencement that Mr. Curtis was not paid for the real estate. Mrs, Curtis now, as executrix and legatee under the will, stands in the place which Mr. Curtis would occupy if he were living. There is nothing in the record to show that either Mr. Curtis or Mrs. Curtis has, either expressly or impliedly, waived or discharged the vendor’s lien which equity gives the vendor of real estate for its purchase price. See Carroll v. Van Rensselaer, Har. Ch. 225; Appeal of Palmer, 1 Doug. (Mich.) 422; Converse v. Blumrich, 14 Mich. 124 (90 Am. Dec. 230); Dunton v. Outhouse, 64 Mich. 419; 1 Perry, Trusts, §§ 238, 239.

The decree is affirmed, with costs of both courts.

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


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    CORNELL v. CRANE.

    1. Assumpsit — Money Had and Received — Assignment of Mortgage — Rescission.
    One who takes an assignment of a mortgage in reliance upon the representation of the assignor that it is a first mortgage may rescind the agreement upon discovering the falsity of the representation, and recover back the amount paid for the assignment in an action for money had and received.
    2. Fraud — Estoppel.
    An assignor of a mortgage who falsely represents that it is a first mortgage, and that the property is good security, upon which representations he knows that the assignee relies in taking the assignment, cannot claim that the latter is not entitled to relief because he might have discovered the facts by an examination of the abstract of title.
    8. iSame — Laches—Question por Jury.
    Whether an assignee of a mortgage was guilty of such laches as would prevent a rescission for false representations was a question for the jury, where it appeared that formal notice of rescission was served six months after the falsity of the representations was first ascertained, and that the intermediate period was largely occupied in obtaining information as to the facts, for' which delay the assignor was in part responsible.
    Error to Kalamazoo; Buck, J.
    Submitted June 9, 1897.
    Decided June 28, 1897.

      Assumpsit by Hannah L. Cornell against Edgar A. Crane for money had and received. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      IS. M. Irish and Alfred J. Mills, for appellant.

      A. M. Stearns (Dallas Boudeman, of counsel), for appellee.

       Rehearing denied September 15, 1897.

   Montgomery, J.

This is an action for money had and received. Although the record is voluminous, the real issues determined by the jury were simple, the facts are not much complicated, and the rules of law governing the case are well understood. The case, as made by plaintiff, was that in March, 1893, defendant held a mortgage of $2,200 on 160 acres of land in Van Burén county, which he represented was a first mortgage, and that the property was good security; that he at the time furnished to plaintiff a statement in writing, setting forth the facts in regard to the value of the land, in which appeared a statement that it was assessed for $3,000 for the year 1892, that its real value was $5,000, and its value at forced sale $4,000; that in December, 1894, Mr. Breck, of Paw Paw, who, it would appear, had been concerned in the matter of making this loan, died, and defendant sent word to plaintiff to bring in to him any Van Burén county mortgages which she had taken of him, as he was going to look matters up; that the assignment from defendant to plaintiff had not been recorded; that defendant took the assignment, saying it ought to be recorded; that a few days later he sent word to plaintiff to come again to see him, and then informed her that there was a prior mortgage on this property, which mortgage amounted to $2,237.90 on the face of it. At this time plaintiff charged defendant with representing at the time of the purchase that her mortgage was the first mortgage. Defendant denied this, and charged whatever fault there was in the matter to Mr. Breck, and disclaimed responsibility on his own part. Plaintiff testified that she returned to her home, examined the papers, and wrote a note to defendant, stating that the mortgage in question was assigned by defendant to her, and that Mr. Breck’s name did not appear in the transaction, and she was unable to see how he (Breck) could be responsible under the assertion that the mortgage was the first mortgage. She testified that in these conversations the defendant did not inform her who held the prior mortgage, and that he stated to her that a part of the prior mortgage had. been paid, but that he did not know-how much. She also testified that defendant told her that he thought the property was sufficient to pay both mortgages.

Plaintiff, on the 13th of March, 1895, wrote to the mortgagor, stating that the interest was due March 6th, and, as she had not heard from him (the mortgagor), she wrote to remind him of it; further stating that she took the mortgage as a first mortgage, but found that she was deceived in the matter, and asking for information as to who then held the first mortgage, and as to how much was due upon it. In response to this, the mortgagor visited plaintiff at her home- in Kalamazoo, and stated that he could never pay the two mortgages. She then took him to the office of her counsel. Plaintiff further offered testimony to show. that from this on her counsel, Mr. Stearns, endeavored to see the defendant and adjust the matter with him; that he was told by defendant that he had papers in his possession which would show that plaintiff knew that the mortgage was not a first mortgage when she received it, and that negotiations for a compromise took place between the parties; that he had difficulty in finding defendant at first, but that finally, on the 29th of June, he served notice upon the defendant of a rescission of the contract, tendered back the interest which plaintiff had received upon the mortgage, and demanded a refunding of the money which she had paid. It was also claimed that the plaintiff asserted that the property was not in other respects ás represented by the written statement, in that it was not of the value stated; that it was farther from a school-house than stated; and that there was not as much improved land as stated. It further appeared that there had been paid upon the original mortgage, at different times, namely, in May, 1893, and March, 1894, $1,039.

It is contended that the plaintiff cannot maintain this action upon the common counts in assumpsit. This proposition was not urged upon the hearing, and it is ■without force. See Johnson v. Seymour, 79 Mich. 156; Coon v. Anderson, 101 Mich. 295.

It is contended that the plaintiff had within her power' the means of knowing that the mortgage in question was not a first mortgage, as an abstract of title was in possession of defendant, and furnished her when the transaction was closed. She testified, however, that she made no examination of the abstract of title, relying upon the defendant’s representations; that, had she examined it, she would have known no more about it than before the examination was made. There is enough to show that defendant knew that plaintiff was relying upon the representations which he made, and, under such circumstances, it does not lie with him to charge plaintiff with negligence in ascertaining the true state of facts.

The point most urged is that the plaintiff did not act promptly in rescinding the contract, after ascertaining the facts. The general rule is that a party defrauded, who seeks to rescind, must act with reasonable promptness ■after discovering the facts. Wylie v. Gamble, 95 Mich. 564; Western Electric Co. v. Hart, 103 Mich. 483; Condon v. Hughes, 92 Mich. 367. But it is equally true that what is a reasonable time must depend upon the circumstances of each particular case, and what would be reasonable under one state of facts might not be under another. Gridley v. Tobacco Co., 71 Mich. 532. And it has also been held that laches are not imputed during the time the parties are negotiating for a settlement. Seymour v. Rolling Mills, 56 Mich. 117. In this case there was evidence tending to show that the plaintiff had not, prior to the time that she placed the matter in the hands of her counsel, in March, 1895, full information as to the situation. She might well have preferred, if she should find that the prior mortgage had been paid in large part, and that the land was of the value represented, and was in fact good.security for both mortgages, to have elected to redeem from'the prior mortgage, or to have suffered the loss of a portion, of her claim. According to her testimony, the representations made by defendant were that the property was sufficient to cover both mortgages, and that a portion of the prior mortgage had been paid. She had not the means of ascertaining what portion of the prior mortgage had been paid, as she did not know who held the mortgage, and it is certain that she did not know in fact how much remained unpaid upon the first mortgage. We think it was a question for the jury as to whether she acted with reasonable promptness in ascertaining these facts, and that it was not error to submit that question to-the jury, under the circumstances of this case.

The jury were instructed, at the request of defendant, that a person who claims to have been defrauded must act promptly, and, if he would rescind the contract complained of, he must do nothing in affirmance of it after he ascertains the facts; and that if plaintiff, after being informed that-there was a prior mortgage on this land, still preferred to look to Henry Kroegel, the mortgagor, for her interest money, she could not after that tender back the mortgage to Mr. Crane, and legally demand of him the money she had paid for the assignment. The jury were further instructed that if they found that plaintiff did not know of the first mortgage (at the time she purchased the mortgage in question), but, after learning of its existence, unreasonably delayed to rescind the contract, and elected to look to Mr. Kroegel for the payment of the mortgage, she would not be entitled to recover; and that if, after being informed of the facts, plaintiff still relied on getting the money from Mr. Kroegel, and endeavored to collect the interest from him, then she made her election that way, and could not afterwards resort to-a rescission of the contract in order to get the money of defendant. We think these instructions sufficiently favorable to defendant, in view of the special circumstances of the case, which tended to show that plaintiff had not fulL information of the facts until March, 1895. We think the rule is not so rigid as to impose upon a party occupying the position of this plaintiff the duty to elect, so long as she did not know definitely what her election would imply, and particularly where the jury might well have found that the delay was occasioned by assurances, given by defendant, that the property was sufficient to cover both mortgages, and that a portion of the first mortgage had been paid, but that how much was not known.

Some criticism is made upon the manner of examination of defendant by plaintiff’s counsel. We discover nothing in the record which we think would justify the court in either reversing the case upon this ground or passing criticism upon the conduct of counsel for plaintiff. We are not impressed that there was any purpose of violating the proper rules of procedure, or that any injustice was done to defendant by the course of examination.

We discover no error in the proceedings.

The judgment will be affirmed.

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


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    STARK v. MILLER.
    Public Lands — Riparian Rights.
    A grant by the government of a fractional quarter section of land does not give the grantee any right as a riparian owner to lands in an adjoining section, where the land granted does not border upon any lake or stream.
    Error to Calhoun; Smith, J.
    Submitted June 9, 1897.
    Decided June 28, 1897.
    Trespass quare clausum fregit by Herman Stark against German Miller and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed,

      Plat showing S. part Sec. 23, N. part Sec. 26, S W. 4 Sec. 24, and N. W. 4 of Sec. 25, T. 1 S., R. 4 W., Calhoun Co., Mich.

    Explanation:
    Section lines:----------
    Meander: - - - - - - - - - - - - - -
    Heavy lines inclose land owned by Herman Stark.

      Adelbert Culver (A. M. Culver, of counsel), for appellant.

      Powers & Stine, for appellees.
   Moore, J.

The defendants cut and carried away a quantity of wild marsh grass, which grew on the S. E. ¿ of section 23, in the township of Clarence, Calhoun county, Mich. The plaintiff sued them in an action of trespass. ■ The trial judge directed a verdict in favor of the defendants. The plaintiff appeals.

The accompanying plat will aid in understanding the situation.

The plaintiff has-the record title to the N. E. {: of section 26, which is a fractional quarter section, containing, according to the government survey, a little less than 32 acres. The balance of the quarter section was wild marsh land. The United States has never granted the title to the S. E. J of section 23 to any one. The N. E. £ of section 26 does not touch the shore of any lake or stream. So far as the record discloses, the land where the trespass was committed was uninclosed wild land. The only act of which complaint is made is the cutting and carrying away of wild grass growing in its natural state.

The plaintiff claims he has some rights as riparian owner, because the land adjoined the N. E. J of section 26, to which he had record title. He was wrong in this contention. Palmer v. Dodd, 64 Mich. 474.

The plaintiff now complains that he was not allowed to show title to the land by possession. The record does not show that he made his offer in such a manner, or took such exceptions, as entitle him to have the action of the court in that respect reviewed.

Judgment is affirmed.

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


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      In re FRIEDRICH.
    Bail Bond — Validity—Clerical Mistake.
    A defect in a bond given by one arrested on a capias ad satisfaciendum,, in stating that the principal was in custody by virtue of a “capias ad respondendum,” does not entitle the principal to a discharge from custody when surrendered by his bondsmen, where the mistake was due to the attorney of such principal, and was corrected, with the consent of all parties interested, as soon as it was discovered, and the bond treated as a valid one.

      Certiorari to Kent; Adsit, J.
    Submitted June 10, 1897.
    Decided June 28, 1897.

      Certiorari by Charles Prange to review the action of the circuit court in discharging Paul W. Friedrich on a writ of habeas corpus.

    Reversed.
    One Charles Prange recovered a judgment against Paul W. Friedrich in an action of tort for the fraudulent conversion of money. The action was commenced by a capias ad respondendum. A fi. fa. was issued, and returned nulla bona. A capias ad satisfaciendum was then issued March 8, 1892, upon which Friedrich was arrested by the sheriff, and gave a bond for the jail limits. On the following day the sheriff showed the bond to Prange’s counsel, who objected to it on the-ground that it recited that Friedrich was in custody by virtue of a capias ad respondendum. This bond was prepared by Fried-rich’s counsel, who, on being shown the bond, stated that it was a clerical error, and wrote upon the back of the bond the following: “The capias described in the within bond having by mistake of the scrivener been misnamed, we hereby consent that the wording of the said bond be changed to read ‘ capias ad satisfaciendumf where it now reads ‘ capias ad respondendum. ’ ” This consent was signed by both Friedrich and his bondsmen, and the sheriff changed the face of the bond to correspond. Friedrich remained within the jail limits, believing that he was a prisoner, until September 6, 1895, when* he was surrendered by his sureties. He thereupon gave another bond, with other sureties, and remained within the jail limits until January 29, 1897, when these last bondsmen surrendered him to the sheriff. He thereupon sued out the writ of habeas corpus, and upon the hearing was discharged from custody.

      Birney Hoyt, for appellant, Prange.

      Nathan P. Allen, for Friedrich.
   Grant, J.

(after stating the facts). This case is brought to this court upon the writ of certiorari to review the action of the circuit court in discharging Fried-rich from custody. The return states the facts, but gives no reason for the discharge of the prisoner. Counsel for petitioner, Prange, states that the court held that the first bond for the jail limits was void, and that therefore the imprisonment was illegal. The bond was not void. The scrivener, who was Friedrich’s own attorney, made a clerical mistake in drawing it. This mistake was at once corrected, by the consent of all the parties interested, and they all treated it as a valid bond. Gunn v. Geary, 44 Mich. 616, has no application to the facts of this case. A mere clerical mistake was made by Friedrich himself, through his attorney, and was, at his request and for his benefit, immediately corrected. Such worthless technicalities cannot be invoked to defeat the ends of justice.

The order of the circuit court is reversed, and the prisoner remanded to the custody of the sheriff.

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


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    DETROIT BASEBALL CLUB v. PRESTON NATIONAL BANK.
    Appeal prom Justice’s Court — Evidence—Death op Witness.
    Where a witness in justice’s court dies pending an appeal, evidence of what he testified to before the justice is admissible upon the trial at the circuit.
    Error to Wayne; Donovan, J.
    Submitted June 9, 1897.
    Decided June 28, 1897.

      Assumpsit by the Detroit Baseball Club against the Preston National Bank to recover a balance of deposit. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      J. G. Dickinson, for appellant.

      Gray & Gray, for appellee.
   Long, C. J.

The Detroit Baseball Club had been for some years engaged in giving exhibitions of baseball games, and in the fall of 1888, deciding to go out of business, made arrangements to wind up its affairs. James L. Edson was treasurer and Robert H. Leadley the secretary. The club’s banking was transacted with the Preston National Bank. The moneys in bank were deposited in the name of the club, and checks against the deposit were signed by Mr. Edson. The check book was kept at the office of Mr. Leadley, and he filled out the checks, whereupon the check book was taken to Mr. Edson, and the checks signed by him and then issued by Mr. Leadley. There was more or less detail in the winding up of affairs, and not until December, 1889, was the club quite ready to close all matters. At a directors’ meeting held in that month, a statement was made showing that there was on hand $7,176.32. A dividend of $17.50 a share .($7,000 in all) was declared. This left $176.32 in bank, as claimed by plaintiff.

In 1889, Mr. Leadley became secretary of the Detroit Baseball Association, a new organization, which also kept its account at the Preston National Bank. He remained in that capacity until July 11, 1890, when the association retired from business, and he was employed by the Cleveland Club, whose duties kept him away from Detroit during 1890 and 1891. Some time in 1890 or 1891, Mr. Leadley took the plaintiff’s pass book to the bank for balancing. It remained there some time. When, later, he called for the book, the bookkeeper said he could not return it, as some of the vouchers were missing, but stated that the balance was $76.32. Mr. Leadley at once replied that there was a mistake, as his books showed a balance of $176.32. Mr. .Gray, who was acting as attorney for the plaintiff, testified that in the spring of 1892 he first learned of the discrepancy, and then went and asked Mr. Lerch, the bookkeeper, what the trouble was; he replied that the book was not written up because certain vouchers could not be found; that, later on, Lerch said he thought the vouchers would be found when the bank moved into the Moffat Block. Both Mr. Leadley and Mr. Gray swear positively that the bank, up to the fall of 1892, made no claim of vouchers returned or account rendered, and that objection was made to the $100 item as sopn as attention was called to it.

The first suit was begun against the bank in September; 1892. On account of the serious illness of one of the bank’s witnesses, that case, after repeated adjournments, was permitted to go down. Some time elapsed before the institution of the present suit, on account of the absence in Europe of Mr. Edson. In the fall of 1892, shortly after the commencement of 'the first suit, Mr. Lerch requested permission to examine the books and papers of the club. These records, and also those of the baseball association, were stored in a box at Mr. Leadley’s house; and one evening the bank officers opened the box, and found among the papers eight of the missing checks, but not the $100 one in dispute. The explanation of Mr. Leadley as to these checks is that, after the breaking up of the association, its pass book and checks were returned to him, but he did not examine them, as he knew the association had no balance, and so no necessity existed for verifying the account; that the pass books and checks and other papers and records of both corporations were thrown into the box together, and that possibly the club checks found there were returned with the association checks and pass book; at any rate, he had no actual knowledge of the return of any until that evening. An account stated was made between the parties on January 1, 1890, at which time it was agreed that there was a balance of $648.82 to plaintiff’s credit. Sixteen dividend checks drawn in December, and aggregating $472.50,- were then unpresented, but were subsequently paid. The bank book was never, later, written up. When, in 1892, the bank began to write it up, only one check ($52.50, paid January 23,1891) could be found in the bank’s possession.

There was no dispute but that the bank paid a $100 check at the time claimed, but Mr. Leadley and Mr. Edson testify such check was not drawn by the Detroit Baseball Club, and that there was no occasion for drawing it, as all the debts had been paid. On the other hand, the bookkeeper of the bank, Mr. Lerch, testified that the check was signed by Mr. Edson. This question was submitted to the jury, and they found that Edson did not sign the check. This must dispose of that question, as there was some evidence to go to the jury upon it. But the bank further contends in its defense that there was an account stated. Mr. Edson and Mr. Leadley both testify that no account was rendered. This question was submitted to the jury under requests tendered by the defendant.

Some special questions are raised by the defense. It is contended that the testimony of Mr. Gray was incompetent, as to what Mr. Edson had testified to. It appears that Mr. Edson was examined as a witness in justice’s court. Before the trial in the circuit he died, and Mr. Gray was called to show what Mr. Edson there testified to. This was properly permitted, and the testimony by Mr. Gray was positive that Mr. Edson there testified that lie did not sign the $100 check, and that no account was -ever rendered him by the bank showing the payment of the $100 check.

We have carefully examined this record, and are unable to find any error. The judgment must be affirmed.

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


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    SLIGH FURNITURE CO. v. SHANNON.
    Actions — Assumpsit or Trover — Election.
    A justice’s summons recited that the action was “ in a plea of trespass on the case upon promises, to plaintiff’s damage $100 or under.” The bill of particulars read: “The following is the plaintiff’s bill of particulars for the recovery of which action is brought: * * * One bedroom suit * * * $53.” A statement of account filed showed defendant’s indebtedness to plaintiff to be $53, attached to which account was an affidavit that defendant was indebted in said amount, and that the consideration therefor was furniture. The declaration was in trover for the conversion of one bedroom suit, of the value of $53, and claimed damages in the sum of $100. After defendant had pleaded the general issue, plaintiff discontinued, and brought another action in trover. The defense proceeded upon the theory that plaintiff had elected to sue in assumpsit. Held, that the intention to sue in trover in the former suit was sufficiently indicated by the limiting of the ad damnum clause in the summons, the language of the bill of particulars, and the style of the declaration. Thomas v. Watt, 104 Mich. 201, distinguished.
    Error to Alpena; Kelley, J.
    Submitted June 10, 1897.
    Decided June 28, 1897.

      Trover by the Sligh Furniture Company against George A. Shannon. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      I. S. Canfield, for appellant.

      James McNamara, for appellee.
   Moore, J.

This is an action of trover, brought for the conversion of a suit of furniture. Verdict was rendered in favor of the plaintiff by direction of the court. The defendant appeals, and assigns as error that the plaintiff, before the commencement of this suit, brought suit against the same defendant, relating to the same subject-matter, in an action of assumpsit, and that by bringing said action it had elected its remedy, and could not now bring this action; counsel citing Thomas v. Watt, 104 Mich. 201, and the cases there cited.

Some controversy arose over the admission of docket entries and verbal testimony, which testimony was excluded by the court; but the summons, the bill of particulars, and the affidavit attached thereto, and the declaration, filed in what is claimed to be the assumpsit case, were all admitted in evidence, and are made a part of the bill of exceptions. The summons is a justice’s summons, in the form contained in the printed blanks, reciting the action to be “ in a plea of trespass on the case upon .promises, to its damage $100 or under.” The material part of the bill of particulars reads:

“The following is the plaintiff’s bill of particulars for the recovery of which said action is brought:

August 25, 1892. One bedroom suit, No. 557 __1_______852”

There was filed with the justice a statement showing:

"G. A. Shannon, Alpena, Mich.,
To Slight Furniture Company, Dr.
August 25, 1892, ne't 60 days................-.........§52”

Attached to this was an affidavit to the effect that Shannon was indebted to the furniture company in the sum of $52, that the consideration therefor was furniture, etc. The declaration filed in the cause was a declaration in trover for the conversion of one bedroom suit, No. 557, of the value of $52, and claimed damages in the sum of $100. The plea was the general issue. After a short adjournment, this case was discontinued by the plaintiff, and on the same day the present suit was commenced, and, when the pleadings were put in, the same declaration was used in this case that had been filed in the case which is called an “assumpsit case.”

While the statement of account, and the affidavit attached thereto, and some of the language used in the summons, used in the first case, would be what you would expect in an assumpsit case, the Jimit of the acl damnum clause in the- summons to $100, the bill of particulars filed, and the declaration in trover which was filed, all indicate that it was not the intention of the plaintiff to commence an action in assumpsit, but that it was its intention to commence an action in trover; so that the case of Thomas v. Watt does not apply. As there is no dispute about the facts in the case, and the defense depended upon the theory that the first suit commenced was in assumpsit, we think the court did not err in directing a verdict in favor of the plaintiff.

Judgment is affirmed.

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