text:
      In re MORGAN’S ESTATE. MORGAN v. MORGAN.
    1. Executors and Administrators — Widow’s Right oe Priority to be Administratrix — Statutes.
    Under 3 Comp. Laws 1815, § 13820, the widow of one dying intestate leaving an estate in this State to be administered is not only given the right of priority among relatives to be appointed administratrix, but this right of priority extends amongst those who may request the appointment of some other person.
    On right of first entitled to letters of administration to nominate a third person, to exclusion of those next entitled thereto, see note in 22 L. R. A. (N. S.) 1161.

      2. Samé — Time of Petition — Intervening Rights.
    Where a son filed a petition for appointment as administrator within five days of the death of intestate, and about three months later the widow filed a cross-petition for her own appointment, she did not lose her right to appointment because her petition was not filed within 30 days, no rights of third parties having intervened, and no one being misled as to the issue.
    3. Same — Presumptions—Statutes.
    All presumptions are in favor of the person to whom the statute gives preference.
    4. Same — Competency of Widow — Evidence—Burden of Proof.
    The widow being presumed under her statutory right to be competent and suitable, the burden of proof rests upon those contending to the contrary.'
    5. Same — Competency of Widow — Test.
    A widow’s right to appointment as administratrix of her husband’s estate is not barred because another is by comparison better qualified and more capable than she; a good mind and sound judgment, a knowledge of the values of property, and of the practical business transactions of life being sufficient to satisfy the requirements of the statute.
    6. Same — Discretion of Probate Court to Appoint Widow.
    Where no issue of fact was raised in the probate court as to the widow’s competency to be appointed administratrix of her husband’s estate, the probate judge had no discretion, and her appointment should have followed as a matter of right.
    7. Appeal and Error — Writ of Error — Review—Common Law.
    A writ of error is only allowable to review cases involving proceedings or issues according to the course of the common law.
    8. Same — Certiorari to Review Proceedings of Inferior Courts —Questions of Law.
    It is permissible, where other remedies are not provided, to review by common-law certiorari, judicial proceedings of inferior tribunals not according to the course of the common law, and such review by certiorari not only applies to jurisdiction to act but extends to the manner in which the jurisdiction of the inferior court was exercised, when a question of law with no issue of fact is involved.
    9. Same — Writ of Error Treated as Certiorari to Review Question of Law.
    While a writ of error operates as does a writ of certiorari to remove the record, to the appellate court, yet when technically not the appropriate remedy it does not become a mandate compelling the court of review to act; but where it presents a pure question of law proper for review by certiorari, which has been fully argued and submitted, the Supreme Court may, in its discretion, regard the writ as fairly such in import and to all intents, or in technical compliance with the rule allow the writ of certiorari in form nunc pro tunc, and reverse or affirm accordingly.
    10. Same — Executors and Administrators — Probate Appeal — 'Review — Certiorari.
    Where the probate judge erroneously refused to appoint the widow as administratrix of her husband’s estate, and appointed a son, there being no issue as to her fitness under the statute (3 Comp. Laws 1915, § 13820), which order was affirmed on appeal to the circuit court on the ground that there was no abuse of discretion, the Supreme Court will Teview and reverse the- order, although the case was removed to this court- by writ of error instead of by certiorari.
    Error to Calhoun; North (Walter H.), J.
    Submitted January 21, 1920.
    (Docket No. 19.)
    Decided February 27, 1920.
    Elizabeth Morgan appealed from an order of the probate court of Calhoun county appointing Frank B. Morgan administrator of the estate of Benjamin F. Morgan, deceased. From a judgment affirming the probate order, appellant brings error.
    Reversed.

      Henry F. Jacobs and Burritt Hamilton, for appellant.

      John W. Bailey and Walter S. Powers, for appellee.
   Steere, J.

On November 22, 1917, Benjamin F. Morgan, then over 80 years of age, died intestate at his home in Emmet township, Calhoun county, survived by his widow, Elizabeth Morgan, and four children by a former wife, — John C., William T., Frank B. Morgan and Lucy Johnson, all adults past middle life. He left an estate inventoried in the probate court at $69,631.45, consisting chiefly of over 1,200 acres of farm lands in Calhoun county, inventoried at $65,450, with conceded debts amounting to $30,100, most of which consisted of mortgages upon his real estate and disputed claims against the estate by certain of his heirs. His widow, Elizabeth Morgan, had resided with him upon his farm in Emmet township since their marriage some 12 years before his death.

On November 27, 1917, five days after his father’s death, John C. Morgan filed a petition in the probate court of Calhoun county praying that his brother, Frank B. Morgan, or some other suitable person, be appointed administrator of deceased’s estate, alleging that the widow, Elizabeth Morgan, was not a competent person for such appointment.

On January 16, 1918, Frank B. Morgan filed a petition praying for his own appointment, or that of some other suitable person, as administrator of said estate, averring in said petition that he was—

“one of the largest creditors of said deceased; that the estate of said deceased owes me many thousands of dollars; that said estate is indebted to my brother, Will T. Morgan, in practically the same amount that it is indebted to me. We two are by far the largest unsecured creditors of said deceased. . * * *
“The widow, Elizabeth Morgan, has had nothing to do with the carrying on of deceased’s business and is not competent to do so and it would be detrimental to the best interests of the estate to have her take charge of the business of said deceased, and detrimental to the best of all creditors, including myself.”

On February 26, 1918, Elizabeth Morgan filed a cross-petition in the probate court setting up that she as widow of deceased was entitled by law to appointment as administratrix, alleging business experience and competency to administer said estate, that she was familiar with the business affairs of deceased, having assisted him and been his business confidant during the 12 years of their married life.

On March 8, 1918, she filed in the probate court objections to the appointment of Frank B. Morgan as administrator, on the ground that she as widow of deceased was a competent person and entitled to the first right of appointment; that Frank B. was disqualified to impartially administer said estate because he and his brother, William T., were making large personal claims against it, the validity of which was denied; that Frank B. Morgan and one or more of his brothers had operated certain farms of deceased for years and now claim they were at the time of his death in partnership with deceased, with whom no accounting of their partnership business had ever been had, and in relation to which they claim an accounting is necessary, and Frank B. Morgan if appointed administrator would be in the position of accounting as administrator with himself as a personal claimant against the estate.

On March 12, 1918, she filed a further objection that Frank B. Morgan, for the purpose of making it appear that the interest of the widow was less than was the fact, did not as special administrator file a true inventory of the estate; that deceased’s daughter, Lucy Johnson, claimed ownership of 96 acres, the title of which stood in deceased at the time of his death, and that Frank B. Morgan favors and supports her claim, adverse to the rights of the widow and to the estate.

On March 12, 1918, hearing was had before the probate court and Frank B. Morgan was appointed administrator. On March 20, 1918, notice of appeal was filed and served by the widow on substantially the same grounds as already stated. On December 12, 1918, the appeal was heard before the circuit court of Calhoun county without a jury and the appointment by the probate, court of Frank B. Morgan as administrator was affirmed.

In making the appointment of Frank B..the probate court' held, and said in part—

“that he' [Frank B. Morgan], as between the two contestants for said appointment, is found to be entitled to the appointment as administrator for said estate, and that the widow, Elizabeth Morgan, is not so entitled under the showing made in her behalf, and that in pursuance of the foregoing findings of said court, by reason of the statute in such case made and provided, it is ordered that said Frank B. Morgan be, and he is hereby appointed, administrator of said estate.”

In the opinioxi of the circuit court affirming the probate court it is said in 'part:

“I can readily understand how the character of this trust and the extent of the property might well have brought the probate court to the conclusion that Frank Morgan was really better qualified than the widow and perhaps even better qualified than an outsider to go on and continue to conduct the farming interests and dairy interests, etc., involved here, as I understand from the record, and tp ultimately close up and dispose of the estate. And finally it is not a question whether or not Mr. Frank Morgan would have been the choice appointee of this court if the matter had been originally here, but the question is, whether or not the circuit court should find that the probate judge in. making this appointment abused his discretion by appointing a man who is not suitable and who is not competent to discharge this trust. I think the record in this case does not justify such a finding.”

These excerpts indicate, and the record does not disclose to the contrary, that in making the appointment the probate court did not find that the widow, considered individually, was an incompetent, unfit or unsuitable person to act as administratrix of her husband’s estate, but adopted a rule of comparison, making the selection by comparing her- qualifications with those of the party appointed, and the circuit court took the controlling question on appeal to be whether the probate judge “abused his discretion in appointing a man who is not suitable and who is not competent to discharge this trust.”

Though not set out in any findings or order of the probate court, it is evident from the issue made by the pleadings and the opinion of the circuit court that the probate court in applying the adopted comparative method of test, selected the appointee on the ground that he knew more about the dairy and farming business, and deceased’s method of carrying it on, than did the widow. If the widow’s statutory right to appointment as administratrix of the estate of her deceased husband depended upon her superior knowledge of the business or profession in which he was engaged as compared with that of some competent person actively engaged in such calling, it would seem to be of doubtful value.

Whatever efforts were made by his children, or widow, to induce deceased during his lifetime to dispose of his estate either by conveyance or will, he, in fact, did neither, but left it.to be distributed after his death as the law provides and died intestate. The applicable statute in such case, section 13820, 3 Comp. Laws 1915, provides:

“Sec. 2. Administration of the estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled to the same in the following order:
“1. The widow, husband or next of kin, or a grantee of the interest of one or more of them, or such of them as the judge of probate may think proper, or such person or persons as the widow, husband, next of kin or grantee may request to have appointed, if suitable and competent to discharge the trust.
“2. If the widow, husband, next of kin or grantee, or the person selected by them shall be unsuitable or incompetent, or if the widow, husband, next of kin or grantee shall neglect for thirty days after the death of the intestate to apply for administration, or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it.
“3. If there be no such creditor competent and willing to take administration, the same may be committed to such other person or persons as the judge of probate may think proper.”

This provision of the probate law has long been upon our statute books without material change in form and from the beginning has, in harmony with statutory provisions in most other jurisdictions, recognized the preferred right of a widow or husband to letters of administration for the estate of a deceased spouse. This statute gives to the widow not only priority amongst relatives who may be appointed but also priority amongst those who may request the appointment of some other person. Whenever the question has arisen this court has emphasized that right.

In an opinion written by Justice Campbell, Breen v. Pangborn, 51 Mich. 29, the court said:

“Without passing upon any of these questions of procedure, which could only become important by the application of some authorized person for the granting of letters, it is sufficient to say that under our statutes administration can only be granted to or on application of one or more of the persons specified in the statute itself, and as among them can only be granted in the order and under the contingency specified.”

Speaking through Chief Justice Cooley, the court said in Lloyd v. Wayne Circuit Judge, 56 Mich. 236:

“But there are some rights which the wife would have as widow, but which the husband might take away by will, which clearly give her a standing in court on the ground of interest. One of these is the first right to administer upon the estate. This is an important and substantial right, and is given to the widow for that reason.”

“Respondent [the widow], under 3 Comp. Laws [1897], § 9324, was entitled to first right of appointment as administratrix.” McFarlan v. McFarlan, 155 Mich. 652.

“It is the law that the widow of one dying intestate, leaving an estate in this State to be administered, may be appointed, or may nominate, the administrator of the estate. * * * The probate court is advised to enter an order appointing the nominee of appellant [the widow] administrator of the estate.” In re Dettman’s Estate, 195 Mich. 231.

It is urged for appellee that whatever may have been the widow’s right to appointment had she made timely application therefor, that right was lost by her failure to petition for appointment within 30 days after the death of her husband. The provision as to 30 days is in paragraph 2 of the section quoted, and relates to the right of creditors to institute proceedings to probate the estate and legally establish their claims against it where the other interested parties mentioned in paragraph 1 have failed to take any steps towards probation which would give them opportunity to do so. The creditors have no right to move for probation until after the expiration of 30 days, and not then if any one of the relatives mentioned in paragraph 1 has instituted proper proceedings, except upon the remote contingency that all those mentioned in paragraph 1 should ultimately be found unsuitable or incompetent. Whether the widow would have' a right to insist on her appointment after the creditors had properly instituted probate proceedings in compliance with paragraph 2 is not involved here. The contest in the instant case is between the widow and a son, following a petition filed by an heir within five days after the death of the intestate which directly challenged her right to appointment. She joined issue upon that challenge, asked for her own appointment, their conflicting counterclaims for that position filed in the probate court logically went to hearing as one proceeding and were so heard by a court having jurisdiction of the parties and subject-matter, no rights of third parties intervened and no one was misled as to the issue.

The circuit court disposed of the appeal on the theory that the probate court in making the appointment was .exercising a discretionary power as to which it could not be said there was an abuse of discretion. This as applied to the widow’s “important and substantial right” of preference suggests the question of what discretion exists in such cases and its limit. All presumptions are in favor of the person to whom the statute gives preference. Ex parte Small, 69 S. C. 48 (48 S. E. 40). The widow is presumed under her statutory right to be competent and suitable, and is presumptively entitled to her choice as to who should administer her' husband’s estate. Grece v. Helm, 91 Mich. 450. It follows that the burden of proof rests on those contending to the contrary. That some discretion rests in the probate court there can be no doubt. If a fair issue of fact was raised by the evidence of those denying the widow’s competency because of unsound mind, lack of normal understanding or average intelligence, intemperance, dishonesty or want of integrity, dissolute habits or other disqualifying moral delinquencies, the discretion of the probate court can readily be conceded. No such questions are raised here.

The limit of appellee’s claim here is that the widow should be barred from her right because another is by comparison better qualified and more capable than she. Such is not the test. The words “suitable and competent” in the connection used in the statute do not, as applied to the widow’s right, mean- by comparison with the business knowledge and ability of some one else, or that she must be skilled in her husband’s calling and familiar with the details of his business. In preserving that right to her it has been held in other jurisdictions that old age, physical infirmity, poverty, lack of business education, or illiteracy do not per se bar the widow of her right. Matter of Berrien, 3 Demarest (N. Y.), 263; Nusz v. Grove, 27 Md. 391; Bowersox’s Appeal, 100 Pa. St. 434. In the last cited case it is said:

“A good mind and sound judgment, a knowledge of the values of property, and of the practical business transactions of life, are sufficient to satisfy the requirements of the statute.”

When the case came on for trial in the circuit court defendant’s counsel objected to a jury being called on the grounds “that there is an issue of law and not of fact involved,” and in any event the finding of the jury would not be binding on the court if called and stated, in answer to the courts inquiry, it was their claim that the widow had absolute right to appointment under the statute and, if not, there was an abuse of discretion in appointing the son for various reasons stated, which were in substance those set out in the claim of appeal, and that the burden of proof in the case was upon appellee. Opposing counsel made no objection to the proposition as to burden of proof and proposed several questions of fact in writing which it was requested should be determined by a jury. These related to the competency and suitableness of the widow and Frank B. Morgan to. administer the estate of deceased. The court declined to call a jury. Counsel for appellee then stated that if on the face of the papers, showing Elizabeth Morgan widow and Frank Morgan next of kin, she was entitled to the appointment under the law “regardless of any proof of discretion or fitness based on evidence,” there was no use offering any testimony. After some discussion appellant’s counsel with permission of the court proceeded to introduce the records of the probate court and call witnesses, and appellee’s counsel objected to any testimony as to the competency or fitness of either Frank Morgan or the widow of deceased. The court allowed the testimony to proceed, subject to the objection, but framed no issue beyond acquiescing in the suggestion of appellee’s counsel that appellant’s testimony should be confined to the reasons stated in her pleadings. Appellee’s counsel offered no testimony, but when appellant rested moved for affirmance of the probate court on the ground there was no showing of abuse of discretion or other ground to warrant a different judgment. The court affirmed the order of the probate court on the ground already stated.

The testimony did show, in confirmation of the presumption as to competency which the law implied, that appellant was an educated woman of intelligence and ability, 48 years of age, a trained nurse who had for years, followed that calling and held positions of trust and responsibility in the Battle Creek sanitarium, at times in charge of from 85 to 50 nurses, had grown to womanhood upon a farm and after her marriage lived upon a farm keeping house for and assisting deceased in his business affairs during the 12 years of their married life. Much of the testimony offered by appellant was directed against' the suitability of the appointee under the circumstances shown and the claim of abuse of discretion should the court find the widow not entitled to the appointment under the statute as a matter of right, ■ and complaint is made of rulings curtailing the inquiry along that line. These we regard as immaterial to the question of the widow’s competency.

A somewhat troublesome question is raised by appellee’s contention that a writ of error is not the proper method to bring this case here for review. In support of that objection counsel cite numerous cases and particularly emphasize Brinsmade’s Appeal, 52 Mich. 537; Woolley v. Crane, 86 Mich. 360. Those cases and others to the same effect turn upon the proposition that a writ of error is only allowable to review cases involving proceedings or issues according to the course of the common law. In the Brinsmade Case which involved the appointment of an administrator it is said, after stating the general rule,—

“There was no question presented on which the intervention of a jury could have been a matter of right, and no common-law issue whatever.”

In the Woolley Case, also involving the appointment of an administrator, it is said, citing and quoting from the Brinsmade Case:

“The appointment of an administrator, and the questions involved in such contest, cannot be said to be a proceeding according to the course of the common law.”

As indicating a modification or recognized exception to that rule counsel for appellant cite Carpenter v. Wood, 131 Mich. 314, In re Dettman’s Estate, 195 Mich. 231, involving probate proceedings not according to the course of the common law, and brought to this court on exceptions to rulings. It is pointed out those cases were disposed of on their merits and urged that appellant should be accorded the same consideration and protection against hostile administration as was given the widow in those cases. The Carpenter Case was reviewed on a case-made and the Dettman Case on writ of error. An examination of the original records in both of those cases shows that no objection was interposed to the method of removing them to this court for review. The often and recently-repeated rule upon that subject has not been changed. Hartz v. Wayne Circuit Judge, 164 Mich. 231; Township of Custer v. Dawson, 178 Mich. 367; In re Erdman’s Estate, 179 Mich. 567.

It is, however, permissible, where other remedies are not provided, to review by common-law certiorari, judicial proceedings of inferior tribunals not according to the course of the common law, and such review by certiorari not only applies to jurisdiction to act but extends to the manner in which the jurisdiction of the inferior court was exercised, when a question of law with no issue of fact is involved. While a writ of error operates as does a writ of certiorari to remove the record to the appellate court, yet when technically not the appropriate remedy it does not become a mandate compelling the court of review to act, and reverse or affirm the case; but where the writ of error squarely presents a pure questión of law proper for review by certiorari which has been fully argued and submitted, it is the opinion of this court that it may, in its discretion, regard the writ as fairly such in import and to all intents, or in technical compliance with the'.rule allow the writ of certiorari in form nunc pro tunc, and reverse or affirm accordingly. Such course is recognized as proper in some other jurisdictions (Welsh v. Brown, 42 N. J. Law, 323), and is not altogether without precedent in this State. In Attorney General v. Marx, 203 Mich. 331, this court heard and disposed of a certiorari proceeding to review mandamus although noting quo warranto and not mandamus was the proper remedy. In Township of Custer v. Dawson, supra, where it was held that technically a writ of error was the proper method to review the case, ^he writ of certiorari by which it was appealed was treated as if it were a writ of error and judgment of reversal entered.

It is the conclusion of this court that we may, and, under the circumstances of this case should, pursue that course. Only a question of law as applied to undisputed facts is involved. Under the statute and attendant presumptions the widow is entitled to letters of administration. The order of the probate court exceeded the limits of its jurisdiction to exercise a discretion under the statute.

The order of the circuit court affirming the same is therefore reversed, but without costs to either party.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: FelloWs, J.

license: Public Domain

text:
    MAXIM v. SHOTWELL.
    1. Interpleader — Right to Maintain Bill.

      In order to maintain a bill of interpleader, plaintiff must be an indifferent stakeholder, have no interest in the fund, and. no matter of his own to litigate with the defendants.
    2. Same — Bill in Nature of Interpleader — Equity.
    A bill in the nature of a bill of interpleader cannot be maintained unless the relief sought is equitable relief.
    3. Same — Personal Interest to Litigate Bab to Bill.
    Where plaintiff had taken 10 sheep to double in four years, be could not maintain a strict bill of interpleader to settle his liability therefor with two defendants who both claimed them, where he claimed the sheep were worth $160 and both defendants insisted they were worth $300.

      i. Same — Bill in Nature of Interpleader — Equitable Relief.
    Nor could said bill be maintained as a bill in the nature of a bill of interpleader, since plaintiff sets up no eguitable cause of action, the only thing sought outside of the interpleader of the defendants being the fixing of the value of the sheep.
    Appeal from Kent; Perkins (Willis B.), J.
    Submitted January 8, 1920.
    (Docket No. 29.)
    Decided February 27, 1920.
    Bill of interpleader by Dewitt C. Maxim against David S. Shotwell and Angie L. Williams, individually and as special administratrix of the estate of* Martha E. Shotwell, deceased, to enjoin an action at law and to determine the value of certain sheep. From an order denying a motion to dismiss, defendant' Shot-well appeals.
    Reversed, and bill dismissed.

      Smedley & Linsey, for plaintiff.

      Griswold & Cook, for appellant.
    By his bill filed in this case the plaintiff sets up the following facts: That on or about November 1, 1914, one Martha E. Shotwell had in her possession 10 sheep which she desired him to take and keep and double in four years; that it was agreed between them that 5 of the sheep belonged to said Martha, and 5 to her daughter, Angie L. Smith; that on that day he signed the following paper writing:
    “November 1, 1914.
    “This writing to show that D. C. Maxim has taken 10 ewe sheep for four years to double. If I should sell the place you are to take the sheep back at any time.
    (Signed) “D. C. Maxim.”

      The bill further alleges the taking by him of the sheep, that he kept them for the four years, the death of Mrs. Shotwell, and alleges that after the four years had expired defendant David S. Shotwell, husband of Martha, demanded the sheep or the value thereof, claiming them to be worth $300; plaintiff denies the sheep were worth that amount. The daughter Angie L. (now Angie L. Williams, the other defendant) also demanded said sheep or the value thereof in the sum of $300, claiming 10 of them in her own right and 10 of them as special administratrix of her mother’s estate. Plaintiff refused both demands but offered to pay the value of the sheep if defendants would agree between themselves upon a division of the money or who should have it. Defendant Shotwell has brought suit to recover the value of the sheep and defendant Williams has served written demand for the sheep or their value. He alleges in his bill:
    “Your orator, therefore, shows that he is in between two fires; that he cannot with safety pay either one of said claimants, and therefore, he files this bill of interpleader and avers that said sheep were at this date $8 per head, and that would make the value of the 20 sheep only $160; but that whatever the court finds the value of the sheep to be, your orator stands ready and willing to pay that amount into court, or to the party lawfully entitled to the same.”
    And in the prayer of the bill prays:
    “(c) That a decree be rendered stating to whom and how much your orator shall pay for the value of said 20 sheep.”
    Plaintiff nowhere in his bill offers to deliver the sheep to whomsoever the court may determine to be the owner thereof. Defendant Shotwell filed a motion to- dismiss the bill in the nature of a demurrer which was overruled. To review the order overruling this motion, we allowed this appeal.
   FelloWs, J.

{after stating the facts). We shall only consider one of the objections discussed in defendant’s brief as it disposes of the case. This objection is:

“That there is a controversy between the plaintiff and all the defendants as to the value of the sheep and the amount of his liability.’’

In the consideration of the case we must determine whether the bill may be maintained (1) as a- strict bill of interpleader, (2) as a bill in the nature of a bill of interpleader.

1. May this bill be maintained as a strict bill of interpleader? It. was regarded as such a bill when it was filed and it asks that defendants be required to interplead. While bills of interpleader were not unknown to the common law of England, they were of very limited application. By statutes in England and in some of the States, and by the application of equitable principles their scope has been extended and the jurisdiction of courts of equity to compel &n inter-pleader has been applied. In 2 Story’s Equity Jurisprudence (14th Ed.), § 1116, it is said:

“It is properly applied to eases where two or more persons severally claim the same thing under different titles or in separate interests from another person, who not claiming any title or interest therein himself, and not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. He therefore applies to a court of equity to protect him, not only from being compelled to pay or deliver the thing claimed to both the claimants, but also from the vexation attending upon the suits which are or possibly may be instituted against him.”

In Hoggart v. Cutts, 1 Craig & Phil. 197, it was said by the Lord Chancellor:

“The definition of interpleader is not, and cannot, now, be disputed. It is where the plaintiff says, T have a fund in my possession in which I claim no personal interest, and to which you, the defendants, set up conflicting claims; pay me my costs, and I will bring the fund into court, and you shall contest it between yourselves.’ ”

That the party must be an indifferent stakeholder, have no interest in the fund, no matter of his own to litigate with the defendants, in order to maintain a bill of interpleader, is settled by the unbroken trend of authority: We again quote from Story (§ 1117):

“So if the party himself seeking the aid of the court by bill of interpleader claims an interest in the subject-matter as well as the other parties, there is no foundation for the exercise of the jurisdiction; for in such a case he has other appropriate remedies. And besides a bill of interpleader always supposes that the plaintiff is the mere holder of a stake which is equally contested by the other parties, and as to which the plaintiff stands wholly indifferent between them, so that when their respective rights are settled nothing further remains in controversy. But that can never be truly said to be the case when the plaintiff asserts a personal right or claim which remains to be settled between him and the other parties, or the plaintiff seeks relief in the premises against either of them.”

In the case of Bridesburg Manfg. Company’s Appeal, 106 Pa. St. 275, the party bringing the bill sought to have litigated the question of whether he should pay interest. The court adopted the opinion of the trial judge wherein it was said:

“But whenever it appears that there is a substantial controversy between the plaintiff and defendants in regard to the extent of the liability of the former, or the amount of his indebtedness, the plaintiff’s right to this remedy is at once determined, for he cannot bring the defendants' into equity to settle a dispute with himself under the pretense of compelling them to settle one between themselves.”

So, also, it was. said in Glasner v. Weisberg, 43 Mo. App. 214:

“The rule is that when a question is raised as to the amount which is the subject of the interpleader such question prevents, the right of the interpleader. The mere fact of there being a dispute as to the amount of the fund is always fatal to the bill.”

And in Chamberlain v. O’Connor, 8 How. Pr. (N. Y.) 45, it was said:

“It has nowhere been allowed for a party who disputed the amount of his liability, to substitute another person to bear the expense of the litigation. If the amount is not beyond dispute no interpleader can be allowed.”

We quote from the syllabus of Baltimore & Ohio R. Co. v. Arthur, 90 N. Y. 234:

“The amount due from a plaintiff cannot be the subject of controversy in an action of interpleader; the action can only be maintained when plaintiff admits liability, for the full amount claimed, to one or the other of the claimants.”

See, also, Mitchell v. Hayne, 2 Sim. & Stu. 63; Jackson v. Athletic Club, 49 App. Div. 107 (62 N. Y. Supp. 1109); Cogswell v. Armstrong, 77 Ill. 139; Hely v. Lee, 108 Tenn. 715 (69 S. W. 273) ; Crass v. Railroad Co., 96 Ala. 447 (11 South. 480) ; Patterson v. Perry, 14 How. Pr. (N. Y.) 505; 11 Enc. Pl. & Prac. p. 455; 15 R. C. L. p. 226.

These authorities and many others which might be cited demonstrate beyond question that a bill of inter-pleader may not be maintained where the party bringing it seeks to litigate with the defendants his liability or the substantial amount of it. In the instant case both defendants insist the sheep were worth $300; plaintiff insists they were only worth $160; he asks, the court to fix their value, to determine what he shall pay. He cannot in interpleader litigate this question with the defendants. The bill cannot be maintained as a strict bill of interpleader.

2. May this bill be maintained as a bill in the nature of a bill of interpleader? In 4 Pomeroy’s Equity Jurisprudence (4th Ed.), § 1481, it is said:

“A bill in the nature of a bill of interpleader is one in which the complainant seeks some relief of an equitable nature concerning the fund or other subject-matter in dispute, in addition to the interpleader of conflicting claimants. The complainant is not required, as in strict interpleader, to be an indifferent stakeholder, without interest in the subject-matter. It is essential, however, that the facts on which he relies entitle him to equitable, as distinguished from legal, relief; he is not permitted, under the guise of a bill in equity, to litigate a purely legal claim or interest in the subject-matter.”

In 28 Cyc. p. 29, is found the following:

“A bill in the nature of a bill of interpleader is distinguished from a bill of interpleader proper in that there are grounds of equitable jurisdiction other than the mere right to compel defendants to interplead, and the complainant may seek some affirmative equitable relief.”

That the party bringing a bill of this character must be entitled to equitable relief, that the jurisdiction of the court of equity may be invoked to enforce only equitable rights by a bill of this nature is demonstrated by the adjudicated cases. Thus it was held by the Supreme Court of the United States in Killian v. Ebbinghaus, 110 U. S. 568 [4 Sup. Ct. Rep. 232], (we quote from the syllabus):

“A bill in the nature of a bill of interpleader cannot be maintained unless the relief sought is equitable relief.”

And the supreme court of Mississippi in Blue v. Watson, 59 Miss. 619, said:

“The only distinction between a bill of interpleader, and one in the nature of a bill of interpleader, is, that in the former class the complainant only asks to be permitted to pay the money into court, and thereupon to- be discharged from liability to the adverse claimants, while in the other he claims some independent other relief, to which he will be entitled upon the payment of the money. In no, case have we been able to find that the plaintiff claimed any interest in the fund itself. It is only in cases in which the plaintiff is entitled to come into court upon some other ground of equitable jurisdiction, that he may, for the purpose of obtaining full relief, make defendants to his bill all parties claiming an interest in the money due by him.”

In Orr Water Ditch Co. v. Larcombe, 14 Nev. 53, the court clearly recognized that the relief sought must be equitable relief. It was there said:

“It seems to have been the intention of plaintiff’s counsel to prepare a bill of interpleader; but as soon as'objections are made to it as such, he admits its insufficiency and then claims that he is entitled to have it sustained as a bill in the nature of an interpleader.
“One of the distinguishing features in bills in the nature of an interpleader seems to be that the complainant may seek some relief against the respective claimants to the property. In order to maintain a bill in the nature of an interpleader, where the plaintiff is entitled to equitable relief against the owner of the property,' it must also appear that the legal title thereto' is in dispute between two or more persons, and that plaintiff cannot ascertain to which of said parties it actually belongs.”

In New England Mut. Life Ins. Co. v. Odell, 50 Hun (N. Y.), 279, it was said, quoting from the court at general term:

. “The fact (which is conceded by the respondents) that the sum which the plaintiff is willing to pay is not the sum which the defendants and appellants claim is fatal to the maintenance 'of this action. (Baltimore & Ohio R. Co. v. Arthur, 90 N. Y. 234.) In this case the principle is distinctly enunciated that, in an action of interpleader the amount due from a plaintiff cannot be the subject of controversy, and this seems to be simply restating a rule which appears always to have prevailed.
“It is urged, in answer to this objection, that because the appellants claim more than the plaintiff admits to be due, the case is thereby turned into an action in the nature of an interpleader. We have failed to find any such principle laid down in the cases stating the distinctions between strict actions of inter-pleader and actions in the nature of interpleader. In strict actions of interpleader legal rights are only enforced, in actions in the nature of interpleader equitable relief in addition is sometimes given, and that seems to be the whole of the distinction.”

See, also, Stephenson v. Burdett, 56 W. Va. 109 (48 S. E. 846); Mohawk & Hudson R. Co. v. Clute, 4 Paige (N. Y.), 384.

The case of Van Winkle v. Owen, 54 N. J. Eq. 253 (34 Atl. 400), cited and relied upon by plaintiff is not out of accord with the doctrine of the authorities cited. In that case decedent Owen had recovered judgment in a New York court against the complainant; upon that judgment defendant Wehle claimed a lien which had been assigned to defendant Smith. Plaintiff had turned over to Owen certain securities and papers, some of which had been realized on, but plaintiff did not know how much. Judgment was recovered in New Jersey upon the New York judgment. The complainant was ready to pay, but desired a cancellation not only of the New Jersey judgment but also of the New York judgment, and an accounting. The jurisdiction of the court was therefore invoked upon equitable grounds; and it was sustained on equitable grounds as a careful reading will disclose. Under such circumstances, the court having jurisdiction of the equitable cause of action could treat the bill as a bill in the nature of a bill of interpleader and determine to whom the money should be paid. That the New J ersey court recognized the rule above referred to is evidenced by the fact that the opinion cites the earlier case of Aleck v. Jackson, 49 N. J. Eq. 507 (23 Atl. 760), wherein the court said:

“In a bill, in the nature of a bill of interpleader, the complainant seeks some relief for himself, but the facts on which he relies for such relief must be such as to entitle him to it in a court of equity — the case as made must be one of equity jurisdiction.”

In the case of Bedell v. Hoffman, 2 Paige (N. Y.), 199, the bill was a bill to redeem, but there were conflicting claimants; the relief sought was equitable and the bill sustained as a bill in the nature of a bill of interpleader. A similar situation in Koppinger v. O’Donnell, 16 R. I. 417 (16 Atl. 714), sustained a bill as a bill in the nature of a bill of interpleader. A mortgagor sought an accounting, a decree of redemption, and a determination between adverse claimants. The relief asked for and granted was equitable relief. The bill was sustained. In Board of Sup’rs of Saratoga Co. v. Deyoe, 77 N. Y. 219, the board sought the cancellation of bonds issued by the treasurer of the county in excess of his authority and the interpleader of numerous claimants, many of whom had brought suits on bonds held by them; again the relief sought —the cancellation of the bonds — was equitable and the bill was sustained.

It is unnecessary to discuss the authorities further. The universal trend of decisions is disclosed by those considered. Where there are several claimants to the same fund and the moving .party has an equitable cause of action and an interest in the subject-matter, such claimants may be brought in and required to interplead among themselves, and the bill may be sustained as a bill in the nature of a bill of interpleader. In the instant case plaintiff has no equitable cause of action; he has set up no grounds for equitable relief. Outside of the interpleader of the defendants the only thing sought is the fixing of the value of the sheep. Manifestly the interposition of a court of equity is not inquired to find the value of the 20 sheep. The bill cannot be sustained as a bill in the nature of a bill of interpleader.

The order must be reversed. A decree will be here entered dismissing the bill. Defendant Shotwell will recover his costs.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe JJ., concurred.


author: Fellows, J.

text:
    PORTH v. CADILLAC MOTOR CAR CO.
    1. Appeal and Error — Directed Verdict.
    On. a motion for a directed verdict for defendant, the testimony most favorable to plaintiff must be accepted.
    2. Master and Servant — Personal Injuries — Negligence—Fellow Servant — Alter Ego.
    In an action for personal injuries received by an employee as tbe result of tbe falling of a scaffold due to tbe absence of a bolt in a steel beam on which the platform rested, testimony that the employee in charge of the work was superintending the same and was the only one in charge, field, sufficient to justify the jury in finding that he was the representative of the master and not a fellow-servant of plaintiff, although he may have received orders from some superior.
    3. Same — Res Judicata — Safe Place — Assumption of Risk.

      Held, that the doctrine of safe place, as applied to construetion. work, and the question of assumption of risk, were determined in the former decision of this case by this court (198 Mich. 501).
    Í. Sake — Contributory Negligence — Notice of Defect — No Duty on Employee to Inspect.
    Where plaintiff was not at work near the point where the bolt was missing, and knew nothing of the defect, it cannot be said that he was guilty of contributory negligence, as a matter of lav/, because he'failed to inspect the work before going upon the platform; there being no duty upon plaintiff to inspect under the facts of the case.
    5. Appeal and Error — Action — Pleading — Assumpsit—Tort— Harmless Error.
    Where, upon the record, it is a reasonably close question as to whether the declaration should be in assumpsit in- . stead of tort, and the question of damages was submitted to the jury in accordance with the request and insistence of defendant’s counsel, and it is not pointed out wherein defendant was in any way prejudiced, the judgment for plaintiff will not therefor be reversed.
    6. Action — Splitting Cause of Action — Damages Subsequent to Date of Settlement.
    By accepting compensation for one year for personal injuries, plaintiff is not thereby precluded, on the ground of splitting his cause of action, from bringing an action for his damages, where there was an understanding that if he had not recovered at the expiration of the year he would in the future be paid reasonable compensation, or the question of further compensation beyond that period should be left open.
    7. Damages — Measure of Damages — Deduction of Interest on Former Payment — Res Judicata.
    The former decision of the • Supreme Court that if, on the new trial, the damages found by the jury exceeded the total amount previously paid, those payments, with interest at 5 per cent., should be deducted, became the law of the case and should have been applied by the trial judge.
    8. Same — Conditional Judgment.
    Where the trial court deducted the principal payment but not the interest, the judgment will be modified in this court by deducting the interest and affirmed conditionally.

      S. New Triar — Great Weight or the Evidence.
    The Supreme Court does not try the facts, and that a different result might have been reached on the evidence is insufficient for reversal unless the verdict is clearly. and manifestly against the great weight of the evidence.
    10. Same.

      Held, that the evidence is not so clearly and overwhelmingly in favor of defendant as to justify setting aside verdict for plaintiff.
    Error to Wayne; Hart (Ray), J., presiding.
    Submitted January 6, 1920.
    (Docket No. 7.)
    Decided February 27, 1920.
    Case by William Porth against the Cadillac Motor Car Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed, conditionally.

      Keena, Lightner, Oxtoby & Hanley, for appellant.

      Dohany & Dohany (William G. Fitzpatrick, of counsel), for appellee.
   Fellows, J.

This case is before us for a second time. See Porth v. Cadillac Motor Car Co., 198 Mich. 501. The facts, which are not in legal effect materially different upon this record than upon the former one, are fully stated in the former opinion and need not be here repeated. It should be stated, however,’ preliminary to a consideration of the questions raised, that the accident occurred on September 18,1911, prior to the enactment of the workmen’s compensation act (2 Comp. Laws 1915, § 5423 et seq.), and that the common-law defenses are available to the defendant. Upon the second trial plaintiff had judgment which the defendant reviews upon this writ of error. The grounds upon which reversal is sought, briefly stated, are as follows:

(1) That Butler was a fellow-servant of plaintiff, and the negligence was that of a fellow-servant.

(2) That in construction work the master is not required to furnish a safe place.

(3) That defendant assumed the risk of using the channel iron as a support for the scaffold as it was only required to be strong enough for the purpose for which it was intended.

(4) That plaintiff assumed the risk of the scaffold falling and the negligence of his fellow-employees.

(5) That plaintiff was guilty of contributory negligence.

(6) That plaintiff’s cause of action was merged in a contract, and that he cannot recover in a declaration for tort.

(7) That the court erred in not crediting defendant with interest on the $2,500 paid to plaintiff.

(8) That the verdict is against the overwhelming weight of the evidence.

We will consider these questions in their order, having in mind the well settled rule that the former decision of this court settled the law of the case in so far as the questions were raised and disposed of in that decision. Culver v. Railroad Co., 144 Mich. 254; Curtiss v. Curtiss, 143 Mich. 676; Quirk v. Railway, 137 Mich. 493; Pierce v. Underwood, 112 Mich. 186.

1. While this question was not raised and argued upon the former hearing it was necessarily involved. We there said:

“So far as the record discloses Butler was the only representative of defendant on the premises in authority. He was in charge of and superintending the work it was doing; notice could only be given to this corporation by notice to its authorized representative or agent in the line of that to which the notice related. The testimony tends to show that his position was such that notice to him of this defect in the steel work was notice to defendant.”

If this question is now open to defendant under the circumstances we are satisfied that sufficient appears. upon this record to establish both the authority of Butler and notice to him of the defect. The testimony of plaintiff and other workmen and of Butler himself, if believed, establishes that he was the representative of the master, the one, and the only one, in charge of and superintending, the work it was doing. The fact that he had superiors does appear. But upon a motion to direct a verdict for the defendant, the manner in which the question is here raised, the testimony most favorable to the plaintiff must be accepted; and even though Butler may have received orders from some superior, the work in hand had been committed to his charge and in the performance of the work he was the representative of the master and not the fellow-workman of the plaintiff.

2, 3, 4, 5. We will consider these grounds together. We think it may be stated that the doctrine of safe place as applied to construction work, and the question of assumption of risk, were fairly before the court and were determined when the case was here before; we have also pointed out that if plaintiff’s testimony and that of his witnesses was believed, Butler was not the fellow-servant of the plaintiff but was the representative of the master. At this point it should be stated that it is the claim of the plaintiff that he was below the level of where the scaffold was being laid, and that he handed the plank up to others; he was not at work and was not near the' point where the beam or channel iron was insecurely fastened — where the bolt was missing — and knew nothing of the defect. After the scaffold was laid, he came up from below, went upon it, when it fell. Unless we hold that it was his duty to inspect the channel iron and the manner in which it was bolted we do not perceive how we can say ás matter of law that plaintiff was guilty of contributory negligence. We think the duty to inspect did not rest upon plaintiff under the facts in this case.

6. The claims of the respective parties as to the terms of the settlement and as to what was settled are fully stated in the former opinion. They need not be here repeated; a reference to pages 505, 506, and 507 of the former opinion will disclose them. Defendant’s counsel insists that if plaintiff’s version is correct his cause of action was merged into a contract, an agreement to pay the damages occasioned plaintiff, and that the declaration should therefore be in assumpsit instead of in tort. It is a reasonably close question upon the present record whether it may not be said that the testimony upon the question of settlement leaves it open to two constructions or inferences, viz.: (1) that it was agreed that if plaintiff had not recovered at the end of a year, reasonable compensation for his damages beyond that period would be paid; (2) that if he did not recover in a year the question of his future damages was left open. If the first construction should obtain, an action of assumpsit would be appropriate; if the second'should obtain, an action in tort would be proper. But it is not pointed out wherein defendant was in any way prejudiced upon the trial by the form of the declaration. It is not pointed out that the measure of damages would be different for a breach of contract to pay for such damages as plaintiff suffered, and the amount of such damages in an action of tort, and, as we shall presently see, the manner in which the question of damages was submitted to the jury, the way the jury should compute them, if they found for the plaintiff, was in accordance with the request and insistence of defendant’s counsel. It has long been the practice of this court in civil eases not to reverse cases for errors which do not prejudice the complaining party.

But it is insisted that the doctrine of splitting causes of action should be applied; that plaintiff cannot split his cause of action; and that under his claim such is the instant case. We cannot follow counsel in-his contention. While this court has on occasion held that a single cause of action cannot be split into numerous causes of action and successive suits brought for the constituent parts, it does not follow that by accepting compensation for one year he is precluded from bringing an action for his damages when there was an understanding that if he had not recovered at the expiration of that period he would in the future be paid reasonable compensation,, or if the question of further compensation beyond that period was left open. Under the facts as to the settlement as claimed by plaintiff the rule preventing the splitting of causes of action does not apply.

7. After the proofs were in it was insisted by defendant’s counsel that the case should be submitted as the ordinary negligence case is submitted; that the jury if they found for the plaintiff should determine the amount’of the damages; that if a verdict was rendered for plaintiff the court should deduct from such verdict the amount defendant should be credited with and enter judgment for the balance. After some discussion this procedure was agreed to. The jury rendered a verdict for $8,000. The trial judge from this amount deducted the sum of $2,500 paid plaintiff January 27, 1912, nine monthly payments of $45 each, $405, interest on the last named sum $110.92, but declined to also deduct interest on the sum of $2,500, and directed the entry of judgment for $4,984.08. Defendant’s counsel cannot and does not question the propriety of this procedure; what he does assign error upon is the action of the trial judge in refusing to allow interest on the $2,500 paid plaintiff before and on January 27, 1912. Plaintiff’s counsel seek to sustain this action of the trial judge on the theory that this court held when the case was here before that tender of this sum to defendant was not necessary. What this court held was that tender of this sum to the defendant was not necessary as a condition to bringing the action. When the case was here before we expressly stated:

“If his version of the agreement and significance of the subsequent payments made to him prevailed, those payments with interest at 5 per cent, per annum should be deducted in ease the damages found by the jury exceeded the total amount previously paid him.”

Under the procedure adopted the jury found the amount the plaintiff was that day entitled to recover from the defendant, and all that he was entitled that day to receive. Manifestly if he had been paid a portion of that amount many years before, defendant was entitled to interest on the sum so advanced and paid. We so held when the case was here before. It is the law of the case; it should have been applied.

8. When the case was here before the question of whether the verdict was against the great weight of the evidence was raised. The case was reversed for other reasons and the question was not discussed. Counsel for defendant has made a most ingenious argument which might be persuasive if we were the triers of the facts. But we can reverse on this ground only when the verdict is clearly and manifestly against the weight of the evidence; we cannot reverse on this ground solely because we would have reached a different result. We should not overlook the fact that two juries have found the facts to be as claimed by the plaintiff, nor the further fact that two trial judges who saw the witnesses and heard their testimony have declined to disturb the verdicts. We have read this ample record consisting of 492 pages with this assignment of error in view and are not persuaded that the evidence so clearly and overwhelmingly preponderates in favor of the defendant as to justify us in setting aside this verdict.

From what has been said it follows that the judgment should be reduced by the interest on $2,500 from January 27, 1912, to November 26, 1918, the date of the judgment. Upon remitting that amount the judgment will be affirmed; otherwise it will be reversed. Defendant will recover costs of this court in either event.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    TAYLOR v. ISABELLA CIRCUIT JUDGE.
    1. Mandamus — Discretionary Writ.
    The writ of mandamus being a discretionary one, its issuance should not be directed unless there is a clear legal duty upon the part of defendant, and a clear legal right in plaintiff to the discharge of that duty.
    2. Statutes — Construction.
    It is a well recognized rule of statutory construction that
    . effect should be given to all parts of the act if possible.
    3. Intoxicating Liquors — Criminal Law — Acquittal — Return of Liquor Seized — Statutes.
    Where plaintiff was acquitted of a charge of illegal sale of liquor, in violation of the provisions of Act No. 338, Pub. Acts 1917, and no new complaint was' made against him, he was entitled, under section 29 of said act, to the return of liquors which he had bought when he had a lawful right so to do, which had been seized under a legal search warrant.

      4. Mandamus — Return of Iaquor Seized After Acquittal.
    Mandamus will issue to compel the return of liquor seized under legal search warrant where the lawful owner has been acquitted of the charge of illegal'sale thereof, and petition for return of same has been denied.
    Mandamus by P. Corey Taylor to compel Ray Hart, circuit judge of Isabella county, to vacate an order denying a petition for the return of certain intoxicating liquor.
    Submitted January 20, 1920.
    (Calendar No. 28,960.)
    Writ granted February 27, 1920.

      F. H. Dusenbury, F. McNamara, and H. A. Sanford, for plaintiff.

      Alex. J. Groesbeck, Attorney General, James A. Greene, Assistant Attorney General, and ‘Virgil Mc-Glintic, Prosecuting Attorney, for defendant.
    For over 25 years plaintiff has conducted a drug store in the city of Mt. Pleasant. He is and has been a registered pharmacist. April 14, 1918, he made application to the dairy and food commissioner under sections 14 and 15 of Act No. 338 of the Public Acts of 1917 for a permit to sell liquors on prescription or application as provided by the act. Not hearing from the commissioner, on April 27th, he again wrote him with reference to the permit. No reply was received by him until May 15th when, he received a letter saying the permit had been refused. On May 11th, upon a proper complaint to a justice of the peace a search warrant was issued and plaintiff’s drug store was searched and certain liquors were there found. No question of .regularity of these proceedings is involved. Thereupon two complaints for violating the provisions of the act were made against plaintiff and he was held for trial upon both of them. February 21, 1919, he was acquitted by á jury upon the trial of one of the charges and on March 17th the other case against him was dismissed. No new complaint has been made against him. On March 8, 1919, plaintiff filed a petition in the circuit court for the county of Isabella praying that an order be entered for the return of the liquors seized on the search warrant. This petition was not heard until. July 22d when defendant made an order denying the prayer of the petition, basing such denial on the ground that to grant it would in effect violate sections 37 and 57 of the act in question.
   Fellows, J.

(after stating the facts). While the petition for the return of the liquor was made before the order of dismissal of the second case had been formally entered, this was not the ground upon which defendant refused the order (see Clapp v. Titus, 138 Mich. 41), and when the order was made by defendant-there was no criminal prosecution pending against plaintiff and had not been for over four months. We recognize the rule contended for by defendant's counsel that the writ of mandamus is a discretionary writ, and we should not direct its issuance except there is a clear legal duty upon the part of defendant and a clear legal right in plaintiff to the discharge of that duty. Auditor General v. Tuscola County Treasurer, 73 Mich. 28; Webster v. Newell, 66 Mich. 503. Was there a, clear legal duty resting on defendant when he made the order of July 22d, and was there a clear legal right on the part of plaintiff to have that duty performed? The answer involves the consideration of certain provisions of the act. The question is a public one and should be disposed of on its merits.

The provisions of the act in question which are of importance are as follows:

_ “Sec. 29. When liquors, vessels, implements or furniture are seized as provided in the preceding section, the officer who made such seizure shall, upon his return upon the warrant, make a statement setting forth their seizure by him and their place of detention, and they shall be held by said officer subject to the order of the court. Upon final judgment of the court upon the complaint provided for in section twenty-six such intoxicating liquors shall be returned to their lawful owner in case of acquittal, or destroyed, according to the order of the court, in case of conviction. When liquors, vessels, implements or furniture shall have been seized by virtue of any warrant, said warrant shall not be held void, nor such liquors, vessels, implements or furniture returned to any person claiming the same by reason of an alleged insufficiency of the description in the complaint or warrant: Provided, That a new complaint or warrant shall be issued within twenty-four hours.”
“Sec. 37. It shall be unlawful for any person to deliver or leave any intoxicating liquors at any place within this State except to those persons herein authorized to receive them.”
“Sec. 57. No intoxicating liquors shall be sold, purchased, received or possessed for medicinal, mechanical, chemical, scientific or sacramental*purposes except as in this act provided.”

It is conceded that plaintiff purchased the liquor before the act in question took effect. He bought it when and where he had a lawful right so to do. He became its lawful owner. It was taken from his possession by the sheriff under a legal search warrant; under the provisions of section 29 the sheriff was commanded to hold it subject to the order of the court. In case of conviction, upon order of the court, it could be destroyed, upon acquittal it should be returned to the owner. While section 29 was re-written in Act No. 53, Pub. Acts 1919, so far as the question here presented, it was not materially changed.

It is a well recognized rule of statutory construction that effect should be given to all parts of the act if possible. If sections 37 and 57 stood alone there would be much force to defendant’s contention, but these sections, general in their character, cannot be given the force contended for unless we disregard the specific provisions found in section 29. Indeed these specific provisions for return of the liquor in case of acquittal have little or no place in the act if the contention of defendant prevails. If we construe these general provisions of sections 37 and 57 to be of general application and the specific provisions of section 29 to be of specific application where the liquor is seized on a search warrant, force and effect is given to all these provisions of the act, it is made workable, and the legislature has not done a meaningless thing. If sections 37 and 57 are held to declare the owner who has been acquitted of any violation of the law an unlawful owner and deprive him of the express provisions of section 29, then a portion, and that portion a portion of general provisions, supersedes the specific portions and the legislation becomes, at least in part, of no effect and meaningless, and the rule of statutory construction that all parts of the act are to be given force if possible inapplicable to cases of this character. Such a construction would impute to the legislature a want of understanding of plain rules of statutory construction. By the provisions of the act the sheriff can only destroy the liquor in case of conviction upon the order of the court. If the construction claimed by defendant is to obtain the sheriff who seizes liquor on a search warrant may not destroy the liquor in case of acquittal but has a right to the liquor superior to the man who bought it and paid for it when he had a lawful right so to do and who has been acquitted of any violation of the law. Such a construction is untenable.

The plaintiff should not be relegated to the action of replevin; the liquor was in the custody of the sheriff, an officer of the court, by the statute commanded to hold it subject to the order of the court. When the prosecutions were ended and the people had failed to secure a conviction, and'no new complaint was filed within 24 hours, it was the plain -duty of defendant to order it returned to plaintiff. We do not determine the question of whether that duty should be discharged in the absence of a petition; obviously we would not by mandamus compel its discharge where it had not in some form been requested, but when defendant made, the order of July 22d such duty did rest upon the court and the plaintiff had the clear right to its performance.

The writ will issue as prayed, but without costs.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    PEOPLE v. ALLEN.
    1. Criminal Law — Cemeteries—Destroying Pence.
    In a prosecution for cutting a wire fence inclosing a cemetery in violation of 3 Comp. Laws 1915, § 15485, defendant’s contention that the prosecution would not lie because the fence was on the line between the cemetery lands and those of defendant is untenable.
    2. Same — Res Judicata — Good Paite.
    The decision of the Supreme Court in a case between the township and defendant determining defendant’s right to the use of the way to the cemetery for purposes not inconsistent with the rights of the owner of the easement, held, not res judicata of defendant’s rights in a criminal prosecution for cutting a wire fence inclosing said cernetery in violation of 3 Comp. Laws 1915, . § 15485, but it might be admissible as bearing upon his good faith.
    3. Eminent Domain — Fee Acquired — Statutes.
    By the express terms of the statute (1 Comp. Laws 1915, § 5130) the title in fee is acquired by condemnation proceedings.
    4. Appeal and Error — Trial—Requests to Charge Covered in General Charge.
    It is not error to refuse to give the requests to charge in their exact language, if the charge as a whole correctly states the law and covers the subject to which the requests are directed.
    5. Trial — Instructions—Good Faith.

      Held, that the trial judge in his charge fairly submitted the question of defendant’s good faith to the jury.
    S. Appeal and Error — Argument of Counsel — Criminal Law.
    Argument which might well have been made to the jury in the condemnation case, and to the trial judge upon the matter of what sentence should be imposed in the penal case, are not proper for consideration by the Supreme Court on exceptions before judgment in the penal case.
    Exceptions before judgment from Eaton; Smith (Clement), J.
    Submitted January 15, 1920.
    (Docket No. 81.)
    Decided February 27, 1920.
    Charles G. Allen was convicted of cutting a wire fence in violation of section 15485, 3 Comp. Laws 1915.
    Affirmed.

      Henry J. Patterson, for appellant.

      Harry H. Partlow, Prosecuting Attorney, for the people.
   Fellows, J.

At an early date, presumably prior to 1841, the then owner of lands on section 26 of the township of Oneida in Eaton county, said to be one Nixon, dedicated a portion thereof for cemetery purposes. The lands dedicated were back from a north and south highway and a way to them from such highway was also dedicated. The defendant has been for upwards bf 20 years the owner of the Nixon land. In the case of Township of Oneida v. Allen, 137 Mich. 224, this court sustained the right of Mr. Allen to use the way for purposes not inconsistent with the rights of the owner of the easement. In 1916 the board of health of the township condemned lands adjacent to the old cemetery grounds, including in the condemnation proceedings the right of way and a strip 12 feet wide at the west end of the lands originally dedicated. Mr. Allen was allowed $275 for his damages, and this sum was paid to and accepted by him. In 1917 the township board erected a fence around the cemetery grounds. It appears to have been built on the line recognized by Mr. Allen as the true and correct line between his land and the cemetery. After its erection a portion of it was cut by Mr. Allen and he was prosecuted and convicted for the violation of the provisions of section 15485, 3 Comp. Laws 1915.

.It was insisted that the prosecution would not lie because the fence was upon the line between the cemetery lands and those of defendant; that to justify a prosecution the fence must be erected wholly upon cemetery lands. The statute itself completely answers this contention. It provides:

“If any person shall wilfully destroy, mutilate, deface, injure or remove any tomb, monument, gravestone or other structure or thing placed or designed for a memorial of the dead, or any fence, railing, curb or other thing intended for the protection or for the ornament of any tomb, monument, gravestone or other structure before mentioned, or of any inclosure for the burial of the dead, or shall wilfully destroy, mutilate, remove, cut, break or injure any tree, shrub or plant, placed or being within any such enclosure, the person so offending shall be punished by fine not exceeding five hundred dollars, nor less than ten dollars, or by imprisonment in the county jail not more than one year.”

While the defendant was permitted to fully testify to the proceedings in the case above referred to which was finally decided by this court and testified to what he understood his rights were under that decision, it is urged that the trial court .erred in not receiving in evidence the record and files in that case. It is urged that the decision in that case is res adjudicaba, and that defendant’s rights were fixed by it and that his act in cutting the fence was within his rights as determined in that case. Counsel overlooks the fact that the case referred to was a case between the township and the defendant while this is a criminal prosecution brought by the people for the violation of a penal statute. While it might be proper as bearing upon defendant’s good faith to permit him to testify to his belief as to his rights under the decision of this court, such decision is not res adjudicaba in this case. Since that case was decided the condemnation proceedings have been had and defendant has been paid for a small amount of land including his title to the lands dedicated as a way and all lands owned by him adjacent to it. Counsel says this did not take from him the fee. Again the statute answers the contention. By the express terms of the statute the title in fee was acquired by the condemnation proceedings. 1 Comp. Laws 1915, § 5130.

There is a claim made that the way from the north and south highway back to old cemetery was a public one. This cannot avail the defendant as matter of law as he could not reach it except by trespassing on the cemetery lands. And while defendant was permitted to testify to his understanding of the facts and his rights thereunder, such testimony was receivable only for the purpose of showing that his act was not wilful and was done in good faith. Under the undisputed facts he had no right to cut the fence surrounding the cemetery grounds although he seems to claim that he lost no rights by the condemnation proceedings. The'trial court was very liberal in permitting defendant to fully testify to his claimed understanding of what his rights were and his own justification for the act charged. We do not perceive that he was hampered in presenting his theory fully to the jury. The facts we have alluded to and about which defendant testified at length bore upon his good faith but they did not justify his act as matter of law.

The trial judge in his charge fairly submitted the' question of defendant’s good faith to the jury. We have repeatedly held that it is not error to refuse to give the requests of counsel in their exact language if the charge as a whole correctly states the law and covers the subject to which the requests are directed. We are unable to discover reversible error upon this record. Much of the argument indulged in might well be directed to the jury in the condemnation case and to the trial judge upon the matter of what sentence should be imposed. We entertain no doubt that such argument has received and will receive due consideration at the hands of those by whom such matters are determined. They are not for our consideration.

The conviction must be affirmed.

Moore, C. J., and Steere, Brooke, Stone, Clark,\ Bird, and Sharpe, JJ., concurred.


text:
    LAMBERT v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    Railroads — Negligence— Statutory Signal — Evidence — Sufficiency.
    In an action against a railroad company for the death of plaintiff’s decedent caused by a collision between an automobile in which decedent was a passenger and defendant’s train at a highway crossing, where the negligence relied upon was failure to give the statutory crossing signal, testimony by plaintiff’s witnesses, that they did not hear the signal given, where it does not appear that they were listening or giving any heed or attention to the train, held, insufficient to take the case to the jury in the face of positive testimony that the signal was given.
    Error to Delta; Flannigan (Richard C.), J.
    Submitted January 20, 1920.
    (Docket No. 12.)
    Decided February 27, 1920.
    Case by Adam Lambert, administrator of the estate of John Sigatagon, deceased, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant non obstante veredicto. Plaintiff brings error.
    Affirmed.

      H. R. Dotsch (T. J. Riley, of counsel), for appellant.

      G. R. Empson, for appellee.
   Fellows, J.

The Gladstone Auto Sales Company was engaged in carrying passengers for hire between Gladstone and Rapid River in Delta county. In the conduct of this business it used a seven-passenger Hudson car. The car had inclosing curtains but there were openings around the doors large enough “to stick' your finger through.” There were chains on the wheels. The highway traveled in making the trip crosses the line of defendant about 5 miles from Gladstone. For upwards of 2,000 feet before reaching the crossing the highway and railroad run parallel and adjoining. Where the curve begins in the highway to cross the track is about 150 feet from the track. The whistling post is 1,320 feet west of the crossing. About noon on December 29, 1917, the automobile of the Gladstone Auto Sales Company left Gladstone on its regular trip to Rapid River. It was around zero weather. Plaintiff’s decedent was a passenger. With him in the car when it left Gladstone was a man named Segerstine and a stranger. One Lewis was the driver. A short distance out of Gladstone, a'Mrs. McDonald and her young son became passengers. At the crossing above referred to the automobile collided with a fast passenger train of defendant and plaintiff’s decedent was so seriously injured that he died within a. few hours. The only negligence relied upon was failure to give the statutory crossing whistle, and the only question here presented is whether there was any evidence of probative force against the positive testimony that such signal was given so as to take that question to the jury.

The engineer of defendant testified to giving the usual crossing whistle, two short and two long blasts before coming to the whistling post, and to repeating the signals before reaching the crossing upon discovering that the automobile was not slowing up. Three other employees testified to the giving of the signals on both occasions. A young man named Chalkline who was entirely disinterested and who was walking along the highway in a westerly direction also testified to the giving of the usual crossing signals around the whistling post and again when near the crossing. Plaintiff called Mrs. McDonald and Mr. Segerstine as witnesses. Both, testified that they heard the whistle when the train was near the crossing but that they did not hear any other signals. Neither testified to listening for the signals or paying any attention to the railroad. It does not appear that either of them knew the highway crossed the track. Plaintiff also called Lewis, the driver of the machine. He testified that he looked up the track when about 125 feet west of the curve in the highway and to seeing no train although the track ran straight for about a mile. He testified that he listened after he turned the curve but he does not testify that he listened before, or that his mind was on the coming of a train until he rounded the curve in the highway. The testimony of plaintiff’s witnesses is convincing that as the automobile rounded the curve in the highway, the second signals were given, their attention was then challenged to the train which was then about 475 feet west of the crossing; that up to that time no one of them had been listening for a train or attentive to the subject of whether one was coming. The testimony shows that the train was making from 47 to 48 miles per hour and the automobile from 18 to 15 miles per hour. The mathematical calculation will demonstrate that when the train was 475 feet west of the crossing, and this is where plaintiff claims it was when the signals wese given which were heard by his witnesses, the automobile was about rounding the curve. Up to that point so far as the record discloses none of the witnesses had been listening for a train or its whistle, none of them had heard its rumbling although it was practically upon them. Under these circumstances may it be said that testimony of witnesses that they did not hear the signals given takes the case to the jury where positive testimony that the signals were given is in the case? Counsel for the plaintiff relies on the following cases: Tietz v. Railway Co., 166 Mich. 205; Lonis v. Railway Co., 111 Mich. 458; McDuffie v. Railway Co., 98 Mich. 356; Crane v. Railroad Co., 107 Mich. 511; Cinadar v. Railway Co., 193 Mich. 38; Garland v. Railroad Co., 196 Mich. 695; Nichols v. Railway Co., 203 Mich. 372; Hinkley v. Railway Co., 162 Mich. 546. Counsel for defendant relies on the following cases: Stewart v. Railroad Co., 119 Mich. 91; Britton v. Railroad Co., 122 Mich. 359; Tuttle v. Briscoe Manfg. Co., 190 Mich. 22; Bond v. Railway Co., 128 Mich. 577.

A consideration of these cases, and the measure of proof in each of them will be helpful, not only to demonstrate that there is no want of harmony in them, but to determine into which class the instant case falls. All of the cases except the Tuttle Case were railroad crossing cases. We cannot without making the opinion of unnecessary length fully detail all the facts in each of these cases; what we shall aim to do is to point out the character of the proof in each case for the purpose of comparison with the proof in the instant case so that we may know into which line of authorities this case upon the record submitted must fall.

In the case of Tietz v. Railway Co., supra, the plaintiff testified that he stopped when 150 feet from the track and that he stopped again when the horse was 8 or 10 feet from the track and looked and listened, and that all he had on his mind was that he was going to cross the track. He heard no signals. His testimony was that he listened and was attentive to the matter of the railroad. One of plaintiff’s witnesses heard the rumbling of the train and got up from bed, went to the window and observed the train, he testified that he was listening for the signals and heard none, and that he “was listening real closely”; another witness was quite positive he heard no bell or whistle although he heard the noise of the train and went to the window and watched it. There was other corroborative testimony. It was held that this testimony took the case to the jury. Each of the witnesses testified, it will be noted to listening and that their minds were on the train.

In the case of McDuffie v. Railway Co., supra, the plaintiff introduced witnesses who testified that they were giving attention to the approach of the engine and listening for the whistle but no whistle was sounded or bell rung. It was there said:

“This testimony is not negative in its character, but is positive and certain, and, if believed by the jury, warranted them in finding that the signals were not given.”

The case of Lonis v. Railway Co., supra, grew out of the same accident, the proof was the same and the same result was reached by this court.

In the case of Crane v. Railroad Co., supra, witnesses who were so located as to see the approaching train and who were watching it testified that they heard no whistle and did not see the escape of steam which usually attends the blowing of the whistle. It was held that this testimony took the case to the jury. The witnesses had their attention attracted to the train.

While the opinion in Cinadar v. Railway Co., supra, does not quote the testimony because too voluminous, an examination of the record discloses that the witnesses who testified they did not hear the signals had their attention attracted to the train; some of them testified they heard its rumblings but heard no signals, while others were attentive to its coming because it was due 15 minutes before quitting time and was notice that their day’s work was near an end and they were therefore attentive to its approach.

Garland v. Railroad Co., supra, was affirmed upon an equal division of the court. An examination of the record discloses that several witnesses were sworn who were giving attention to the train, who heard the whistle blown, but did not hear the ringing of the bell, and one witness, who expected his wife would return on that train from Detroit, testified that he was paying special attention to the train, heard the whistle but did not hear any ringing of the bell.

In Nichols v. Railway Co., supra, there were at least two witnesses who gave positive testimony that the signals were not given.

In Hinkley v. Railway Co., supra, the carriage was stopped some distance from the track, and from that point on the occupants of the carriage continued to look and listen for a train. In this case, however, the only question raised was that of contributory negligence.

Let us now consider the line of cases relied upon by counsel for defendant. In the case of Stewart v. Railroad Co., supra, the members of the train crew and disinterested witnesses testified to the giving of the signals. One witness, testified to hearing the warning signal but did not hear the crossing signals given. Another witness testified that he did not hear the signals given. Both were reasonably near the accident but neither was listening for the signals nor attentive to the train. In addition to this there was somewhat confusing testimony from a young girl 11 years old. It was held that the testimony was not sufficient to take the case to the jury.

In the case of Britton v. Railroad Co., supra, the members of the train crew testified to the giving of the signals. In addition to this a disinterested witness who watched the train coming and saw the accident also testified to giving the signals. It was held that, as against the positive testimony of six witnesses that the signals were given, the testimony of the plaintiff and his companion, who were in an inclosed vehicle and not in a situation to hear the signals, if given, that the signals were not given, did not arise to the dignity of evidence sufficient to take the case to the jury.

In Bond v. Railway Co., supra, there was testimony of seven witnesses that the signals were given. As against this was the testimony of plaintiff alone. She was partially deaf and her testimony in several regards was in conflict with that given upon a former trial. It was held that the verdict was against the weight of the evidence and should have been set aside and a new trial granted.

In Tuttle v. Briscoe Manfg. Co., supra, the witnesses testified they did not hear the driver of the truck blow his horn. The driver testified that he blew it. Upon the authority of the cases considered it was held that there was no legal testimony that the horn was not blown.

This analysis of the cases shows that in those relied upon by the plaintiff it was held that where the witnesses testified that they were listening, their attention was upon the train, its coming was upon their minds and. they were paying heed to it, that then their testimony makes a case for the jury. This upon the theory that if they were listening, giving the train heed and attention, the probabilities are they would have heard the signals if they had been given. On the other hand the cases relied upon by the defendant’s counsel hold that where the testimony does not show either that the witness was listening or otherwise giving heed and attention to the train, then testimony that he did not hear the signals does not take the case to the jury against positive testimony that the signals were given. This is upon the theory that it cannot be said that there is a probability that one not listening or giving any heed or attention to the train would have heard the signals if given. In the Stewart Case we cited with approval the case of Culhane v. Railroad Co., 60 N. Y. 133. We again quote from that case:

“It is proved by the positive oath of the two individuals on the engine, one of whom rang it, and by two others , who witnessed the occurrence and heard the ringing of the bell. The two witnesses for the plaintiff merely say they did not hear the bell, but they do not say that they listened or gave heed to the presence or absence of that signal. The judge, in his charge, says they listened, but the statement is not borne out by the evidence. As against positive, affirmative evidence by credible witnesses to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it, to authorize the submission of the question to the jury. It must appear that they were looking, watching and listening for it, that their attention was directed to the fact, so that the evidence will tend to some extent to prove the negative.”

In the instant case the witnesses were seated in this inclosed car; there is no testimony that any of them listened or were giving any heed or attention to the train or the track until the automobile rounded the curve in the highway. This was after the train had passed the whistling post and was about 475 feet from the crossing. The automobile was two years old as the testimony discloses, had chains on its rear tires, was driven on a rutty road covered with snow and ice with the usual noise accompanying its progress. Under such circumstances it cannot be said that there is a probability that the signals would have been heard if given, raising the negative testimony to the dignity of evidence sufficient to take the case to the jury against the positive testimony that the signals were given. The case falls within the line of cases cited by defendant’s counsel.

The trial judge reserved the question of directing a verdict under the Empson act (Act No. 217, Pub. Acts 1915 [3 Comp. Laws 1915, § 14568]) and in a carefully prepared opinion in which he reviewed at length the testimony and authorities concluded it was his duty to direct a judgment for the defendant notwithstanding the verdict for the plaintiff. With his conclusion we agree.

The judgment will be affirmed.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    DURSUM v. BENEDICT.
    Corporations — “Blur Sky Law” — Sale of Stock by Owner— “Dealer.”
    Under 3 Comp. Laws 1915, § 11954, the sale of stock in a corporation by the owner, although some of it stood in the names of members of his family, without securing a license under the provisions of the “blue sky law” (3 Comp. Laws 1915, § 11945 et seq.), was not in violation thereof, since he was not a “dealer" within the terms of said section.
    Appeal from Kent; Perkins (Willis B.), J.
    Submitted January 15, 1920.
    (Docket No. 37.)
    Decided February 27, 1920.
    Bill by William A. L. Dursum and another against Laurance D. Benedict for an accounting, and to enjoin the collection of certain promissory notes. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Grant Sims, for plaintiffs.

      Hatch, McAllister & Raymond, for defendant.
   Fellows, J.

Plaintiff Clinton> E. Lincoln and one James R. Morrill were partners, doing business as the Universal Humidifier Company of Grand Rapids. • Defendant, a mechanic by trade, was superintendent of a manufacturing plant, earning $50 a week besides a bonus which was paid by the company. The partnership was manufacturing and selling a humidifier. Its assets aggregated about $600 and Lincoln had applications pending for patents. The parties' entered into an agreement which contemplated the organization of a corporation to take over the business of the partnership. Defendant agreed to put in $6,000. Of this sum Lincoln and Morrill were each to have $500, and the balance was to be used by the corporation for the purposes of the business. Defendant was to have a salary of $50 per week and Lincoln one of $35 per week. A reputable attorney was employed to prepare the articles of association and perfect the organization. On June 29, 1918, the articles of association were signed. The requirements of the “blue sky law,” so-called (3 Comp. Laws 1915, § 11945 et seq.), were not complied with. Notwithstanding this fact treasury stock of the company was sold by both Lincoln and defendant. It also appears that 50 shares of defendant’s stock was sold by him to one Clemens and the money turned over to Lincoln and that 50 shares of. his stock was turned back into the treasury. The record does not make this transaction as clear as. it might have been made.

While the record, we think, discloses that these parties supposed the attorney had taken all the steps necessary to entitle them to sell the stock, such sales of treasury stock were in violation of the law. But such sales of treasury stock are not the sales here involved. Although defendant participated in such unlawful sales he is not liable in this action unless the transaction out of which this case arose was an unlawful sale.

It seems to be the claim of the plaintiffs that defendant’s. salary made the overhead expenses heavy and it is to be inferred that the business had not been as successful as all parties anticipated. The plaintiffs and defendant entered into an agreement on December 31, 1918, by the terms of which defendant agreed to sell-his stock to plaintiffs and also bound himself not to engage in the manufacture, sale or handling of humidifiers for domestic or commercial purposes I for a period of three years. The consideration of this agreement was the sum of $1,500, $500 paid down and four notes of $250 each signed by the plaintiffs. Defendant had placed some of his stock in the names, of members of his family, but it is undisputed that it was still his stock, and it was so treated by all the parties including these plaintiffs; they paid him the $500 and executed four notes payable to him for the sum of $250 each, paid one of them to Mm and allowed judgment to pass against them in his favor upon two others. When defendant sold this stock and entered into the agreement not to engage in the business for three years he sold his own stock; he was acting for himself and not as agent or broker for the members of his family.

After tÉ.e decision of this court in Edward v. Ioor, 205 Mich. 617, was handed down, plaintiffs filed this bill asking that defendant be required to account to them for the money already paid Mm for the stock and his agreement not to engage in the business, to restrain enforcement of the judgments on the two notes, and to require the giving up and cancellation of the remaining note for $250. The position of plaintiff’s counsel appears from the following colloquy:

“The Court: Well, I understand, Mr. Sims, to be brief about it—
“Mr. Sims: Yes.
“The Court: That your chief contention is that Benedict had no right to sell his individual stock to these plaintiffs and take back in payment therefor these notes which he has sued upon?
“Mr. Sims: Yes.
“The Court: And that he was a dealer in stocks under the ‘blue sky law/ so-called, and that he should have received authority from the securities. commission to sell his own stock?
“Mr. Sims: Yes, but he didn’t.
“The Court: I say ‘that he should have had.’
“Mr. Sims: Fes.
“The Court: All right, that is the meat in the cocoanut.
“Mr. Sims: That is the meat in the cocoanut, your honor. I want to get at that. I want to show that in this record. It is material; the whole surrounding circumstance of this entire transaction will then become material as bearing upon the question of whether or not this man is one that should be termed a ‘dealer’ or whether he is one who makes an isolated sale, a singular transaction, which, under the ‘blue sky law’ he is empowered to do. It is a question of whether a person selling his own stock and not making repeated sales comes under the statute and I am seeking to determine an isolated sale under this ‘blue sky statute.’ ”

—and it is here insisted that in the sale by defendant of his own stock he was a dealer, and not having been licensed as such the sale was in violation of the statute, therefore void, and plaintiffs are entitled to recover what they have paid on such void contract and to have their obligations cancelled.

We have already pointed out that defendant, in this transaction sold only his own stock, and that the fact that some of it stood in the names, of members of his family did not ehapge that fact. The isolated sale to Clemens, the proceeds of which went to plaintiff Lincoln, bore no resemblance to the present transaction. Very clearly the transaction here involved was not a sale made in the course of continued and successive transactions of a similar nature. The act itself in section 10 (3 Comp. Laws 1915, § 11954) defines the term “dealer”- and provides:

“The term ‘dealer’ shall not include an owner, not issuer, of such securities so owned by him when such sale is not made in the course of continued and successive transactions of a similar nature.”

In the. case of Edward v. Ioor, supra, after quoting this provision of the statute we said:

“This provision was thought important by the framers of this act to remove the question of unconstitutional taint, and preserve the constitutional right of the individual to sell his own stock, but by prohibiting ‘continued and successive transactions of a similar nature’ prevent the abuse of that right and its exercise in a manner contrary to the spirit of the act. Mr. loor had the right to sell this stock to plaintiff. He did not by continued and successive transactions of a similar nature become a dealer. • 'He was acting within his constitutional rights and by this sale to plaintiff did not violate the act. No liability can be predicated on this transaction.”

In that case we definitely held the defendants liable upon such sales as were in violation of the act in question, and as definitely held that the sale by an owner of his own stock when not in the course of continued and successive transactions of a similar nature was not in violation of the statute. That case must control the instant one. The trial judge found that the sale by the defendant of his own stock to these plaintiffs, not being in the course of continued and successive transactions of a similar nature, did not offend the act in question and was not void, tie therefore dismissed the plaintiffs’ bill. We agree fully with him and affirm the decree. Defendant will have his costs in this court.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.