text:
    BANDFIELD v. BANDFIELD.
    1. Married Women — Divorce—Torts—Action A&ainst Husband.
    A divorced woman, cannot maintain an action against her former husband for a personal tort committed upon her while they were living together as husband and wife.

    2. Statutes — Construction.
    A statute will not be extended by implication to abrogate plain and long-established rules of the common law.

      Error to Ionia; Davis, J.
    Submitted April 20, 1898.
    Decided May 17, 1898.
    Case by Emma S. Bandfield against Charles A. Band-field for personal injuries. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.
    Affirmed.
    The declaration alleges that plaintiff and defendant were married November 19, 1879, and lived and cohabited together as husband and wife continuously until April 29, 1896; that defendant then deserted her, and that on February 9, 1897, she procured a decree of divorce from him; that about the month of October, 1893, defendant incurred a loathsome and incurable venereal disease, and communicated the same to her. She has brought this suit at law for damages for such wrong.. The defendant interposed a demurrer, which was sustained.

      R. A. & W. E. Hawley, for appellant.

      F. C. Miller, for appellee.

       Actions between husband and wife under modern statutes is the subject of a note to McKendry v. McKendry, (Pa.) 6 L. R. A. 506.

   Grant, C. J.

(after stating the facts). The sole question is: Can a wife maintain suit against her husband for a personal tort, committed upon her while they were living together as husband and wife ? We answered this question in the negative in the case of Wagner v. Wayne Circuit Judge, decided November 17, 1897. In that case the husband had uttered a gross libel against his wife. She brought suit by capias ad respondendum, and the proceedings were quashed by the circuit judge, for the reason that the wife could not maintain the suit against her husband. The wife applied to this court for the writ of mandamus to compel the circuit judge to vacate that order. The writ was denied, and the order of the circuit judge sustained. No opinion was written. But the sole and identical question there involved is the same as is involved in this suit. The briefs there filed pursued the same line of argument and cited the same authorities as are now cited. Counsel cite the married woman’s act of this State as conferring this right. This act is found in 2 How. Stat. §§ 6295, 6297, which read as follows:

‘ ‘ The real and" personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female. * * *
‘ ‘ Actions may be brought by and against a married woman in relation to her sole property, in the same manner as if she were unmarried.”

In many decisions the courts of many of the States, notwithstanding the statutes conferring rights upon a married woman over her separate property not possessed at the common law, have thus far, without exception, denied the right of a wife to sue her husband for personal wrongs committed during coverture. No such right is conferred by our statute unless it be by implication. The legislature should speak in no uncertain manner when it •seeks to abrogate the plain and long-established rules of the common law. Courts should not be left to construction to sustain such bold innovations. The rule is thus stated in 9 Bac. Abr. tit. “Statute,” I (4), 245:

“In all doubtful matters, and where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law, farther or otherwise than the act expressly declares. Therefore, in all general matters the law presumes the act did not intend to make any alteration; for, if the parliament had had that design, they would have expressed it in the act. ”

The result of plaintiff’s contention would be another step to destroy the sacred relation of man and wife, and to open the door to lawsuits between them for every real and fancied wrong, — suits which the common law has refused on the ground of public policy.' This court has gone no further than to support the wife, under the married woman’s act, in protecting her in the management and control of her property. It has sustained her right to an action for assault and battery, for slander, and for alienation of her husband’s affections against others than her husband. Berger v. Jacobs, 21 Mich. 215; Leonard v. Pope, 27 Mich. 145; Rice v. Rice, 104 Mich. 371. At the same time, it has held that the wife could not enter into a partnership or other business with her husband, and thus become responsible for the contracts and debts of her husband. Artman v. Ferguson, 73 Mich. 146 (2 L. R. A. 343, 16 Am. St. Rep. 572); Edwards v. McEnhill, 51 Mich. 160. Personal wrongs inflicted upon her give her the right to a decree of separation or divorce from her husband, and our statutes have given the court of chancery exclusive jurisdiction over that subject. This court, clothed with the broad powers of equity, can do justice to her for the wrongs of her husband, so far as courts can do justice, and, in providing for her, will give her such amount of her husband’s property as the circumstances of both will justify, and, in so doing, may take into account the cruel and outrageous conduct inflicted upon her by him, and its effect upon her health and ability to labor. 2 Am. & Eng. Enc. Law (2d Ed.), 120; 2 How. Stat. § 6245. In the absence of an express statute, there is no right' to maintain an action at law for such wrong. We are cited to no authority holding the contrary. We cite a few sustaining the rule: Abbott v. Abbott, 67 Me. 304 (24 Am. Rep. 27); Freethy v. Freethy, 42 Barb. 641; Peters v. Peters, 42 Iowa, 182; Schultz v. Schultz, 89 N. Y. 644; Cooley, Torts, 228; Schouler, Dom. Rel. § 52; Newell, Defam. 366; Townsh. Sland. & L. § 300.

J udgment afflrmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    LILLIBRIDGE v. McCANN.
    1. Fires — Origin—Evidence—Question for Jury.
    In an action for negligently setting a fire, the evidence showed.' that, just before the fire originated, defendant lighted his pipe, and went into a barn, where the fire started, and lay down in the midst of combustible material, and went to sleep; and that he stated that his pipe must have sloped from his mouth while he was asleep. Held, that there was evidence from which the jury might find that the fire caught from the pipe.
    2. Same — Inference of Negligence.
    The jury may draw such inferences as common knowledge will suggest respecting negligence in lying down and going to sleep in a barn, upon hay or straw, with a lighted pipe in one’s mouth.

    3. Same — Effect of Spreading — Liability of Originator.
    One who negligently sets fire to his building is, in the absence’ of any efficient intervening cause, liable for the consequences of the fire’s spreading from his own building to that of another.
    4. Same — Intervening Cause — Existing Wind.
    A wind existing at the time á building is set on fire is not an intervening'cause of the burning of another building to which the fire is carried.
    Error to Ottawa; Padgham, J.
    Submitted April 20, 1898.
    Decided May 17, 1898.
    Case by William J. Lillibridge against Orlando B. Mc-Cann for negligently causing the destruction of plaintiff’s buildings by fire. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      George A. Farr, for appellant.

      Cutcheon & Swarthout, for appellee.

      The right of jurors to act on their own knowledge of the facts in issue or relevant thereto is the subject of annotation to the case of State v. Gaymon, (S. C.) 31 L. R. A. 489.

   Montgomery, J.

This is an action on the case for the •destruction of plaintiff’s house, barns, hay, and grain, orchard, and other property by fire claimed to have been •caused by the negligence of the defendant. The plaintiff and defendant were farmers living on opposite sides of a highway running east and west through the township of Wright, in Ottawa county. The proofs tend to show that' the defendant had a barn ppon his premises on the south side of the highway, and abutting upon it, which on the 27th day of July, 1894, was filled with straw, hay, and oth,er combustible material. Over the floor on the south side was a scaffold some 6 feet above the floor, with straw and other things upon it. Across the highway were the barns of the plaintiff, some 10 or 12 rods distant. The barns were filled with hay, and some 20 acres of wheat was stacked near them. The barns substantially joined. The dwelling was about 2 rods from the nearest bam. On the 27th day of July, 1894, the weather was very hot, and a drought had prevailed for some time. On that day the wind had risen with the sun, and had steadily blown from the direction of the sun, there being in the middle of the day quite a breeze. This had occurred regularly for several days prior to July 27th. At about 1 o’clock on the 27th, the wind came almost directly from the defendant’s barn to those of the plaintiff. After dinner, on the 27th day of July, 1894, and a little before 1 o’clock, the •defendant lit his pipe, went into his barn, and lay down on the hay or straw on the scaffold over the floor, smoN ing. He fell into a doze, the pipe fell into the straw, and, igniting it, set fire to the barn. This fire was rapidly communicated to the premises of plaintiff, and his barns, with hay, grain, dwelling house, furniture, orchard, shade trees, fences, and personal property, to the value of nearly $3,000, were destroyed. There was no contributory negligence on the part of the plaintiff.

When the plaintiff rested his case, counsel for the defendant moved that the court direct a verdict for the •defendant, for the reason that the plaintiff had not by his proofs shown a cause of action. Thereupon the court directed the jury to render a verdict for the defendant, for the reason that the negligence of the defendant was not the proximate cause of the injury.

It is argued in this court that there was no evidence that, the origin of the fire was the defendant’s pipe. The evidence does, however, show that the defendant admitted that he lighted his pipe, and went into the barn, and lay down in the midst of the combustible material, and went to sleep, and that he stated that he supposed that his pipe must have slipped from his mouth while-he was asleep. While it is true that this mere expression of opinion would not be conclusive, we think the facts shown were such as-' to require the submission of the origin of the fire to the jury.

It is also insisted that there was no evidence of negligence. It is said that there is no evidence of the danger of going into a barn with a pipe lighted or unlighted; that there is no evidence of communicating fire from a lighted tobacco pipe to oat straw; and counsel cite as a parallel case Wood v. Railway Co., 51 Wis. 196, in which the testimony was that a lamp was left burning in a building which took fire, and the court seems-to have expressed the opinion that the origin of the fire rested in mere conjecture, although the conclusion of the court apparently rests upon the ground that the leaving of a lighted lamp in a house is not negligence. Without discussing the soundness of that case, we think the distinction between leaving a lighted lamp in a house, and lying down to smoke in the midst of straw or other combustibles, is obvious, and that it was competent for the jury to draw such inferences from the proven facts as common knowledge would suggest.

The meritorious question is, Was the defendant liable-for the consequences of the fire spreading from his own building to that of the plaintiff, if the fire in defendant’s building be found to have originated in consequence of his negligence? In the absence of an intervening cause, it seems to us clear that the bare fact that the defendant may have suffered a loss of his own property through the same' negligent act does not render him any the less liable to the plaintiff for a loss ensuing to him through that neglect. Whatever may have at one time been held under the statute (6 Anne, chap. 31, § 6) which provided that no action should be maintained against any person in whose house or chamber any fire should accidentally begin, that statute is not applicable here. The subsequent statute (14 Geo. III. chap. 78, § 86), which enlarges the statute of Anne, had received no judicial construction prior to the Revolution. Since then, however, it has been construed in Filliter v. Phippard, 11 Q. B. 347, and it is held not to include fires set or induced by negligence. See, also, 1 Smith, Lead. Cas. (8th Ed.) 501, 502; Ray, Neg. Imp. Dut. (Personal) 641; 2 Shear. & R. Neg. § 665; McNally v. Colwell, 91 Mich. 532 (30 Am. St. Rep. 494).

Was the defendant’s negligence the proximate cause of; the injury to the plaintiff? The question is not different' than it would be if the building first fired through the defendant’s negligence had belonged to a third person or the plaintiff. The question is whether the owner of a building taking fire from another building, which is set on fire through the negligence of another, has an action against that other for the injury. This question has received consideration by this court. In Hoyt v. Jeffers, 30 Mich. 199, Mr. Justice Christiancy, speaking for the court, said:

“If such other buildings are satisfactorily shown to have been actually burned by the fire of the Sherman House, caused by the negligence of the defendant, and especially if this was, under the circumstances, the natural and probable, as well as the actual, result of the fire so caused, and without any contributory negligence of the plaintiff, I can see no sound principle which can make the defendant’s liability turn upon the question whether the buildings thus burned by the fire of the first were five, six, or fifty feet, or the one-hundredth part of an inch, from it. And though a building thus burned by the fire of the first might be at such a distance that its taking fire from the first might not, a priori, have seemed possible, yet if it be satisfactorily shown that it did in fact thus take fire, without any negligence of the owner, and without the fault of some third party, which could properly be recognized as the proximate cause, and for which he could be held liable, the principle of justice or sound logic, if there be any, is very obscure, which can exempt the party through whose negligence the first building was burned from equal liability for the burning of the second. If it be said that this extent of liability might prove ruinous to the party through whose negligence the buildings were burned, it may be said, in reply, that, under such circumstances, it is better, and more in accordance with the relative rights of others, that he should be ruined by his negligence than that he should be allowed to ruin others who are innocent of all negligence or wrong.”

See, also, Cooley, Torts, 590; Delaware, etc., R. Co. v. Salmon, 39 N. J. Law, 299 (23 Am. Rep. 214); Perley v. Railroad Co., 98 Mass. 414 (96 Am. Dec. 645); Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469.

Was the wind an intervening cause? The evidence tends to show that it was an existing condition at the very time the negligent act occurred, and did not constitute an intervening efficient cause. The fact that the consequences of the defendant’s negligent act were more serious than would have followed under other more favorable conditions of the atmosphere does not relieve the defendant. Hoyt v. Jeffers, supra; 1 Shear. & R. Neg. § 30; Fent v. Railway Co., 59 Ill. 349 (14 Am. Rep. 13); Perley v. Railroad Co., supra.

It was a question for the jury as to whether the consequences of the defendant’s negligent act ought to have been foreseen; and this is but another statement of the proposition that negligence is the absence of such care as persons of ordinary prudence are expected to exercise under like circumstances. Milwaukee, etc., R. Co. v. Kellogg, supra, Ross v. Township of Ionia, 104 Mich. 320.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    FOEGAN v. CARPENTER.
    Taxes — Infant under Guardianship — Sale .of Delinquent Lands — Cancellation.

      A. minor having a guardian, as well as a minor without a guardian, is within the protection of Act No. 206, Pub. Acts 1893, § 69, providing that, in case of the sale for delinquent taxes of lands belonging to “any infant,” if it appears that it is necessary, to protect his rights, to order such sale to be canceled, it may be so ordered.
    Appeal from Muskegon; Russell, J.
    Submitted April 20, 1898.
    Decided May 17, 1898
    Petition by Frank Foegan against George W. Carpenter and Roscoe D. Dix, Auditor General, to set aside a sale of land for delinquent taxes. From a decree for petitioner, defendant Carpenter appeals.
    Affirmed.

      Turner & Turner (C. W. Sessions, of counsel), for petitioner.

      Walter I. Lillie (Stephen H. Clink, of counsel), for appellant.
   Montgomery, J.

The lands in question were bid in by the State, and subsequently purchased by Mr, Carpenter. Before the deed was issued, the intervener applied to the auditor general for leave to redeem. The auditor general, believing that he had no discretion in the matter, declined to permit redemption without an order of the court. The intervener therefore applied to the circuit court in chancery by petition setting up that, at the time of the assessment of the taxes, the decree in the matter, and at the time of the purchase by Carpenter, the interwener was a minor; that he attained his majority on the 22d day of .February, 1897, and had not learned that the taxes were delinquent until a few days' prior thereto.. The petitioner asked for such relief as was equitable, and the court made an order that the intervener be permitted to redeem. From this order, the purchaser appeals.

The only question involved is as to what construction is. to be given the last clause of section 69, Act No. 206, Pub-Acts 1893, which reads:

“In case of the sale of lands belonging to any infant, idiots, minor heirs, insane or incompetent persons, if it shall appear to any court that it is necessary to protect the rights of such incompetent person to order any sale canceled or deferred, it may so order, and in such case all proceedings may be stopped, sale canceled, or action stayed until the proper proceedings can be had to protect the. rights and property of such incompetent person or persons.”

It is contended by the appellant that this language-should be construed as intended to be applied to infants and other incompetent persons not under guardianship, and. a plausible argument to sustain this view is built up by reference to the earlier provisions of the statute. We see-no good reason, however, why a strained construction should be placed on this language. This case is clearly within the words of the statute, and we think within its intent. There is no more equity in requiring the minor to suffer a loss of his property by reason of the neglect of his guardian than there is to divest one of his property who-has no guardian.

The order will be affirmed, with costs.

The other Justices concurred.


author: Long, J.

text:
    CARPENTER v. JONES.
    Tax Sale — Cancellation — Erroneous Certificate of Treasurer.
    An owner of land who receives a certificate from the county-treasurer that all taxes are paid thereon is entitled, where the lands are sold for taxes unpaid at the time the certificate was issued, to have the sale canceled upon payment of such taxes and interest.
    Appeal from Muskegon; Russell, J.
    Submitted April 21, 1898.
    Decided May 17, 1898.
    Petition by George W. Carpenter against Arthur Jones and wife for a writ of assistance to put him in possession of lands purchased of the State for delinquent taxes. Defendants filed a cross-petition for the cancellation of the auditor general’s deed, and decree was rendered thereon in their favor. Petitioner appeals.
    Affirmed.

      Stephen H. Clink, for petitioner.

      C. W. Sessions, for defendants.
   Long, J.

A petition in a tax proceeding was presented by George W. Carpenter to the circuit court, in chancery, of Muskegon county, for a writ of assistance to put him in possession of certain lands in that county. An answer and cross-petition were filed by Arthur Jones. It appeared that Mr. Carpenter applied to the auditor general in February, 1897, to purchase this property, which was held by the State under its bid for the unpaid taxes for the years 1891, 1892, and 1893. On July 27, 1897, the deed was issued to him by the auditor general. At the time of making the application for the purchase, he also paid to the auditor general th,e taxes and charges for the years 1894 and 1895. By the cross-petition of Mr. Jones, it appears that on April 3, 1894, he applied to the county treasurer of Muskegon county for a certificate as to the taxes on said property, and the treasurer signed and issued to him the following certificate:

“Office of County Treasurer, Muskegon County.
“I, the treasurer of said county, do hereby certify that no taxes are charged against lot 1 of block 123 of Durkee’s addition to the city of Muskegon, in said county, and that all taxes thereon are paid, as appears by the books in tins office.
“Dated Muskegon, Michigan, April 3, 1894.”

This certificate was made at a time when Mr. Jones was about to make a loan and give a mortgage upon the property; and, in the present proceeding, Mr. Jones testified that, to the best of his recollection, he had paid the taxes for the years 1891, 1892, and 1893, though he was unable to find the tax receipts. On October 23, 1897, Mr. Jones made application to the auditor general to have issued a certificate of error, and sent the auditor general, with such application, the certificate of the county treasurer heretofore set out. This application was denied. At the time of making this application, Mr. Jones redeemed the lands from the sale of 1894; and in his cross-petition he now asks that the sales for the former years be set aside, and he be permitted to pay the taxes on the lands for these years. Upon the hearing in the court below a rehearing was ordered. It was thereupon decreed that Mr. Jones might pay the taxes for the years 1891, 1892, 1893, and 1895 to Mr. Carpenter, with interest thereon from February 2, 1897; and the auditor general was directed to issue and deliver to Mr. 'Jones the certificate of error, canceling and setting aside the tax deed. From this decree, Mr. Carpenter appeals.

The case comes so squarely within the case of Hough v. Auditor General, 116 Mich. 663, that no comments need be made. The decree is affirmed, with costs against Mr. Carpenter, in favor of Mr. Jones, the cross-petitioner

The other Justices concurred.


text:
    MOWERS v. EVERS.
    1. Disputed Boundaries — Agreement on Line — Long Acquiescence — Estoppel.
    The grantee of one who, after acquiring title by adverse possession to a strip adjoining a parcel to which he held the record title, expressly disclaimed title to the strip, and permitted a purchaser, who had bought in reliance upon such disclaimer, to place a fence along the disputed boundary line, and acquiesced for 13 years in the line so established, cannot interfere with the purchaser’s occupancy of the disputed strip.
    2. Same — Pleading.
    Where the grantee, in ejectment by him, sought to establish title to the strip by adverse possession, evidence was properly admitted on behalf of defendant to show the action of the grantor in relation to the establishment of the line, although an estoppel was not specially pleaded.
    Error to Kalamazoo; Buck, J.
    Submitted April 20, 1898.
    Decided May 17, 1898.
    Ejectment by John H. Mowers against George M. Evers and Lucinda Evers, impleaded with Patrick H. Gilkey. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      D. O. French (Walter R. Taylor, of counsel), for appellant

      F. M. Irish, for appellees.
   Long, J.

This cause was heard before the court without a jury, and the following findings of fact and law made:

“1. On or about the 5th day of October, A. D. 1857, one Maranda J. Arrowsmith bought of John E. Powers a certain piece or parcel of land, situated in the township of Richland, in said county, and bounded and described as commencing twelve rods north of the southwest corner of section fourteen in said township, running thence.east ten rods, thence north six rods, thence west ten rods, thence south on section line six rods, to the place of beginning. Said land was duly conveyed to said Maranda J. Arrow-smith by said John E. Powers/by deed dated October 5, 1857, and duly recorded in the office of the register of deeds of said county.
“2. At some time prior to the conveyance of said land by said John E. Powers to said Maranda J. Arrowsmith, he, the said John E. Powers, built or caused to be built a fence along what he supposed to be the east line of said land, but, by mistake, said fence was built on a line two rods east of the true line of said land.
“3. On purchasing said land above described, said Maranda J. Arrowsmith went into possession of the same, and also into possession of a strip of land next adjoining thereto on the east side thereof, said strip of land being two rods in width east and west, and six rods in length north and south, and remained and continued in the possession and occupancy thereof until the fall of the year 1882, or the spring of the year 1883.
“4. In the month of September, A. D. 1881, the said Maranda J. Arrowsmith filed her bill of complaint in the circuit court for the county of Kalamazoo, in chancery, against said defendant George M. Evers, in which said bill of complaint she, the said Maranda J. Arrowsmith, expressly asserted that she never owned or had any title whatever to a portion of land in the southwest corner of the strip of land two rods wide and six rods long before mentioned; and, on the hearing of said cause, said Maranda J. Arrowsmith testified, under her oath, that she made no claim to any land except that which was covered by the deed, and that, if she was in possession of any land not included in her deed, she made no claim to it.
“5. On or about the 12th day of August, A. D. 1882, the said defendant George M. Evers, relying on the statements made by the said Maranda J. Arrowsmith in her said bill of complaint, and on her testimony given in said cause as aforesaid, purchased of the widow and heirs of Sylvester W. Mills the land in controversy in this suit, the said widow and heirs of Sylvester W. Mills conveying the same to said defendant by deed dated on said 12th day of August, A. D. 1882, the record title to said land being then in said Sylvester W. Mills, and the grantors in said deed being the widow and heirs and only heirs of said Sylvester W. Mills.
“6. Shortly after purchasing the land in controversy of the heirs of said Sylvester W. Mills, as aforesaid, the said ■defendant George M. Evers notified the said Maranda J. Arrowsmith that he had purchased said land, and requested her to vacate the same, to which said Maranda J. Arrowsmith expressed no objection to said defendant.
“7. In the spring of the year 1883, the said defendant ■George M. Evers entered into the possession of the land in ■ controversy, and built a fence on the line between the land in controversy and the land conveyed by said John E. Powers to said Maranda J. Arrowsmith, and removed ■certain buildings from said land in controversy and erected •other buildings thereon.- All this was done with the knowledge of said Maranda J. Arrowsmith, and without any objection by her to said defendant.
“8. The said defendant George M. Evers and his grantee, Lucinda Evers, remained and continued in the undisputed -possession .of said premises from the spring of the year 1883 until some time after November 8, 1895, with the full knowledge of said Maranda J. Arrowsmith, and without any objection by her to either said George M. Evers or Lucinda Evers, and with the apparent acquiescence of said Maranda J. Arrowsmith in such possession by said defendant George M. Evers and his said grantee.
“ 9. On or about November 8,1895, the said Maranda J. Arrowsmith executed and delivered a quitclaim deed of the premises in question to the plaintiff in this case, and said plaintiff afterwards attempted to take possession of said premises, but was not allowed by said defendants George M. Evers and Lucinda Evers to do so.
“10. The defendants George M. Evers and Lucinda Evers were in possession of said premises when the declaration in this cause was filed, and the defendant Patrick H. Gilkey was also in possession of the ice-house on said premises jointly with said defendant George M. Evers.
“I find from the foregoing facts the following conclusions of law:
“1. The plaintiff’s grantor, Maranda J. Arrowsmith, by her bill of complaint against said George M. Evers, expressly disclaimed all right and title to a part of the land of which she was in possession by reason of a mistake in the boundary of the land conveyed to her by said •John E. Powers.
“2. The plaintiff’s grantor, Maranda J. Arrowsmith, by her testimony in the case against said Evers, expressly disclaimed all her right and interest in the land not described in her deed from said Powers.
“3. The defendant in this case, George M. Evers, having purchased the premises in controversy in reliance on the disclaimer of said Maranda J. Arrowsmith of any interest in said premises, and said Maranda J. Arrowsmith having allowed said Evers to take possession thereof without objection to him by said Maranda J. Arrowsmith, and having allowed said Evers and his grantee to remain in possession of said premises for about 13 years, and to make improvements thereon, without objection to said Evers or his grantee by said Maranda J. Arrowsmith, she, the said Maranda J. Arrowsmith, would be estopped from claiming said land in controversy of said Evers or his grantee.
“4. From the facts above recited, the said Maranda J. Arrowsmith must be held-to have consented to the placing of the fence by said Evers on the true line between the land conveyed to her by said Powers and the land conveyed to said Evers by the heirs of Sylvester W. Mills, and to have acquiesced in said boundary established by said fence for nearly 13 years; and neither she nor her grantee can now claim any rights which might otherwise have belonged to her under her former possession of said land.
“5. The defendants are not guilty of unlawfully detaining the possession of the land in question from the plaintiff, and judgment should be entered for the defendants.”

Plaintiff brings error. It is claimed by counsel (1) that plaintiff’s grantor had acquired the title to this strip of land by adverse possession, and that the mere fact that she was mistaken in supposing that the land was included in her deed would not defeat her title so adversely acquired; (2) that the statements in the bill in chancery'were inadmissible in evidence; (3) that the estoppel should have been specially pleaded.

If it be conceded that plaintiff’s grantor had acquired title to this strip by adverse possession, yet, we think, the plaintiff was not entitled to recover. The testimony shows, and the court found from the conduct of plaintiff’s grantor, that she not only disclaimed title to this strip,. but that she consented to the placing o£ the fence along this disputed boundary line, and fixed that line as the true line between her premises and the defendants’. She had acquiesced in that as the true line for nearly 13 years before the- plaintiff purchased from her. The case is ruled by Manistee Manfg. Co. v. Cogswell, 103 Mich. 602.

The claim that such an estoppel must be pleaded has no force. The defendants were not seeking to establish their title by estoppel. They were permitted to show the actions of the plaintiff’s grantor in relation to the establishment of the true boundary line between the premises. It was admissible for this purpose.

We find no error in the record, and the judgment below must be affirmed.

The other Justices concurred


author: Per Curiam.

text:
    KNAPP v. PERRY.
    Bill of Review — Appeal.
    The action of the circuit judge in denying complainant’s petition for leave to file a bill of review was affirmed.
    Appeal from Midland; Dodds, J.
    Submitted April 21, 1898.
    Decided May 17, 1898.
    Bill by Sophia Knapp against Judson M. Perry and others to reform a deed and mortgage. Complainant appeals from an order denying her petition for leave to file a bill of review.
    Affirmed.

      Floyd L. Post, for complainant.

      Henry Hart (Ray Hart, of counsel), for defendants.
   Per Curiam.

The complainant filed the bill in this cause to reform a deed and mortgage. Upon the hearing, the relief prayed was denied; but the decree granted an extension of time within which she might redeem from the sale of the premises upon foreclosure of said mortgage. A petition for leave to file a bill of review was filed, and the complainant has appealed from a denial of the same. In our opinion, the action of the learned circuit judge is justified by the record, and it is affirmed, with costs.


text:
    DENISON v. ALPENA LOAN & BUILDING ASSOCIATION.
    1. Building and Loan Associations — Withdrawal of Stock.
    That installments are due and unx^aid on shares of stock in a building and loan association does not take away the member’s right to withdraw the stock under 3 How. Stat. § 3981/, providing that any stockholder wishing to withdraw shall have power to do so by giving a specified notice, unless the stock is “held in pledge for security,” as such limitation applies only to a borrowing member who has pledged his stock as security for the loan.

      .2. Same — Defenses.
    The question as to the personal liability of a withdrawing member of a building and loan association for embezzlement by the secretary while such withdrawing member was a member of the auditing committee, though not a director, of the association, and accepted the reports of the secretary as correct, cannot be litigated in an action by such member to recover the amount due him.
    3. Same — Assignment of Stock — Record of Transfer.
    A building and loan association cannot defeat an action by a withdrawing member for the amount due him on the ground that he had acquired the stock by assignment, and no transfer had been made on the books of the association, where he was a member of the association at the time of the transfer, andthe association recognized him as the owner of such stock after the transfer to him:
    Error to Alpena; Kelley, J.
    Submitted April 20, 1898.
    Decided May 17, 1898.

      Assumpsit by William E. Denison against the Alpena Loan & Building Association to recover an amount due plaintiff as a withdrawing stockholder of defendant corporation. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      J. D. Turnbull, for appellant.

      Dafoe & Gustin, for appellee.

       Withdrawals from building and loan associations is the subject of annotation to the case of Engelhardt v. Fifth Ward, etc., Loan Ass’n, (N. Y.) 35 L. R. A. 289.

   Long, J.

This action is brought to recover from defendant association the amount claimed to be due plaintiff as a withdrawal stockholder upon 30 shares of the first series of defendant’s capital stock, and for amount due William R. Hyatt as a withdrawal stockholder upon two shares of the same series, which were sold and transferred to plaintiff January 16, 1897, and after Hyatt had filed his notice of withdrawal. Defendant pleaded the general issue, and gave notice that it would show that defendant had no funds on hand to pay the plaintiff’s claim. It also gave notice that a former secretary had converted and appropriated some of its funds, and that said appropriation and loss were accomplished through the connivance or gross carelessness of plaintiff, he being one of the auditors or special agents of the defendant. The court directed a verdict for plaintiff of $2,088.61.

The defendant association was organized under Act No. 50, Pub. Acts 1887 (3 How. Stat. chap. 119a). Section 6 of this act (3 How. Stat. § 3981/) provides:

“Any stockholder wishing to withdraw from the corporation shall have the power to do so by giving 30 days’ notice in writing at a stated meeting of his intention to withdraw, when he shall be entitled to receive the amount paid in by him, and such interest thereon, or such proportion of the profits thereon, as the by-laws may determine, less all fines and other charges; but payments of the stock so withdrawn shall only be due when the funds applicable to the demand of withdrawing stockholders are sufficient to meet and liquidate the same, and then only in the order of the respective times of presentation of the notices of such withdrawal: Provided, that at no time shall more than one-half of the funds of the treasury of the corporation be applicable to the demands of withdrawing stockholders without the consent of the board of directors, and that no stockholder shall be entitled to withdraw whose stock is held in pledge for security.”

Section 1 of article 15 of the by-laws provides

‘ ‘ All members desiring to withdraw from the association, as provided in section 6 of the act under which this association is organized, shall, after 30 days’ notice, be entitled to receive the amount paid in by them (except membership fee), and 6 per cent, per annum, except on advanced payments; but no member shall be entitled to interest until he has been a member 6 months.”

It appears that plaintiff first took, by assignment, 10 shares of the stock December ?, 1889, and these shares were surrendered, and new certificates issued to him by defendant. On May 13, 1891, he took, by assignment, another 10 shares, and, on the same day, also another 10 shares. This last 20 shares so assigned were held by plaintiff, and no new certificates were issued to him thereon; but he paid to the association all the dues and installments thereon up to the time of the withdrawal notice, except for the months of April, May, and June, 1896. Mr. Hyatt had paid all installments due before his notice of withdrawal, and before the assignment to plaintiff. At the time plaintiff and Hyatt filed their withdrawal notices and surrendered their stock to defendant, the defendant’s secretary indorsed on plaintiff’s notice as follows:

Books Nos. 35, 41, and 143, 10 shares, 1st Series, Each.

Installments paid in_____________________________$1,455'00

Interest........r................................ 606 25

Total......-...............................--$2,061 25

On Hyatt’s notice was indorsed:

Installments paid in________________________________$95 00

Interest_________ 89 58

Total_______________________ $134 58

The court found the amount less than this,' — -that is, to be $2,138.99, — and deducted from this sum the penalties and the unpaid installments for the months of April, May, and June, of $50.38, and therefore directed the verdict at $2,088.61.

It is the contention of counsel for defendant that the plaintiff had no right under the statute to withdraw, for the reason that’there were three installments due and unpaid upon his shares of stock; that the correct interpretation of the statute is that, where such installments remain unpaid, the association has a lien upon the stock for unpaid installments, the same as if it were pledged for security. We think the court below was. not in error in holding that there was no evidence in the case showing that “this stock was pledged or put up as security by the plaintiff.” By the provisions of section 6, above quoted, where the stock is pledged for security, the stockholder is not permitted to withdraw; but this section of the act does not prohibit a withdrawal simply for the reason that installments remain unpaid. What the statute means is that a stockholder who has borrowed from the. corporation, and pledged his stock as security, cannot withdraw until he has redeemed his stock by the payment of the loan or an unconditional tender of it. Anderson Building, etc., Ass’n v. Thompson, 88 Ind. 405 (4 Am. & Eng. Corp. Cas. 196).

It is further contended that there were no available funds in the treasury to meet this demand. The secretary of the association testified that there was only one withdrawal notice ahead of the plaintiff, and that was for only $500. He also stated that during the months from July, 1896, to December, 1896, inclusive, there was paid into the treasury the sum of $24,745.02. Plaintiff’s application to withdraw was made to the association on July 10, 1896. When the demand was finally made and refused, there was in the treasury nearly $7,000 applicable to this withdrawal. We find nothing in the record in any.manner contradicting this.

Counsel for defendant asked the court to charge the jury:

“Second. From the evidence in this case, the defendant is entitled to verdict for all losses that occurred to defendant through the plaintiff’s neglect in not properly auditing Secretary Partridge’s accounts, which were referred to plaintiff and .others to look over and audit.
“Third. Defendant is entitled to a verdict of at least $3,100.06, the amount embezzled or taken by Partridge during the time that plaintiff acted as one of the auditors of defendant.
“Fourth. It was the duty of plaintiff, while acting as auditor of the defendant, to examine the books and accounts of defendant kept by Partridge, and to have reported to defendant any and all defalcations appearing from said books or accounts; and having failed to do this, either from neglect of duty or from design, the law will not permit him to recover in this suit, or recover at all, until the other shareholders receive their pay.
“Fifth. The plaintiff, as one of the defendant’s auditors, having reported to defendant that its shares were worth so much per share, which included all of these defalcations as being oil hand, the plaintiff therefore made false reports to defendant, which makes him liable to defendant for all damages or losses occasioned by said false reports, and it makes no difference whether he did this designedly or negligently. ”

. These requests were refused, and, we think, very properly. It appears conclusively that the plaintiff was never a director of the association. He acted as one of the auditing committee, and it appears that, during a portion of the time in which he so acted, the secretary of the association embezzled certain of the funds. The court held that if the defendant could show that, at the time the notices of these withdrawals were filed, the defendant association was insolvent, the plaintiff could not recover. The defendant failed to show this; but, on the contrary, it appeared that, after deducting these defalcations, the association was perfectly solvent. It also appears that, when the secretary’s defalcations were suspected, an expert accountant was employed, who acted with the auditing committee; and then, for the first time, it was learned that a shortage in his accounts actually existed.

Counsel for defendant offered to show that the defendant association accepted reports from the auditing committee as correct, and paid out withdrawals to parties, taking these reports as a basis, and was injured thereby* It was said by the court:

“I do not think it competent in this action. I do not see how you can make that defense in this action. The defendant might have an action against Mr. Denison, if he is guilty of any improper conduct in making reports; but you cannot litigate it here.”

Section 5 of the act under which defendant was incorporated (3 How. Stat. § 3981e) provides:

“The corporate powers shall be exercised by a board of directors. * * * The officers of the corporation must be members of the board of directors, and shall consist of a president, vice-president, secretary, and treasurer. * * * The secretary and treasurer shall give bonds and security, to be approved by the board of directors.”

We think the court very properly held that the defendant could not litigate that question in the present case. Section 6 of the act under which the defendant was organized provides the conditions upon which payments shall be made upon withdrawal notices. These conditions existed at the time plaintiff attempted to withdraw; that is, a sufficient fund was on hand to meet the payments, and the stock was not held as security. Under such circum-. stances, he had the right to withdraw his funds. Heinbokel v. National Savings, etc., Ass’n, 58 Minn. 340 (49 Am. St. Rep. 519). It appeared that a proportionate share of the losses from the defalcations of the secretary had been charged by the defendant company itself to the plaintiff before this suit was brought, and that there was left a large surplus in the treasury applicable to payments under withdrawal notices.

It is also contended that the plaintiff could not recover upon stock which had not been transferred to him upon the books of the company. It has been seen that all this stock came to plaintiff by assignment, and that only the first 10 shares purchased had been transferred upon the company’s books. At this time he had become a member of the association, by signing the charter and by-laws. It would have been an idle ceremony for him to sign again in order to become a member. The company treated him as a member thereafter, and as the holder and owner of the other shares. It also collected from him from time to time the installments due upon the other shares, and thus recognized him as the holder and owner thereof. When his withdrawal notice was sent to the secretary, he treated him as such holder and owner of the entire 30 shares, and indorsed on the notice the amount of the installments paid on all.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    BOLTON v. JEWETT.
    Land Contract — Vendor’s Lien — Tender.
    Although a contract for the sale of land, consisting of two writings, one executed by the purchaser and left with the vendor, providing that the latter, on payment in full of the purchase price, shall give “a deed of all his interest” in the land, the other executed by the vendor and left with the purchaser, requiring the execution of a “ warranty deed ” by the vendor, entitles the purchaser to a warranty deed, an assignee of the vendor, who has no knowledge of the terms of the Writing signed by the latter, does not lose his lien on the land, or his right to after-accruing interest, by refusing a tender of the purchase money on condition that he deliver a warranty deed.
    Appeal from Alpena; Kelley, J.
    Submitted April 20, 1898.
    Decided May 17, 1898.
    Bill by Henry Bolton against Solomon S. Jewett and Burt E. Jewett to foreclose a vendor’s lien. From a decree for complainant, defendants appeal.
    Affirmed.

      James McNamara, for complainant.

      Frank Emerick, for defendants.
   Hooker, J.

On May 1, 1881, Fletcher and the Jewetts executed the following writings, each party accepting and keeping that signed by the other:

“Alpena, May 1, ’81.
“We agree to pay Gr. N. Fletcher one dollar and twenty-five cents per acre for the E. i of S. E. i section 21, and the E. $ of N. E. ‡ section 28, 31, 5, within four years, with interest, provided the said Fletcher shall decide to pay all the back taxes on said land; and, if not, then the $25 this day paid shall be in full for all his rights in the same, and he shall, at the end of four years, give us a deed of all his interest in the same.
“S. S. Jewett.
“Burt E. Jewett.”
“Alpena, May 1, 1881.
“For a consideration of twenty-five dollars, this day paid me by S. S. Jewett and Burt E. Jewett, his son, I sell them all my interest in the east half of the southeast quarter of section 21, and the east half of the northeast quarter of section 28, all in town 31 north, range 5 east; and for the further sum of one dollar and twenty-five cents per acre, provided the taxes shall hereafter be canceled, or if I shall choose to pay the same up to this time; if not, then said Jewetts shall receive from me a deed of all my interest, within four years, they paying-all taxes from this time. Interest to be paid me by them from this time, if I pay the taxes or they are canceled. The $25 now paid shall be in part.
“ George N. Fletcher.
“If in case I take the $1.25 per acre for the above, I will give them a warranty deed of the same.
“George N. Fletcher.”

On November 8, 1881, Fletcher conveyed the land described in the writings to the complainant and his partner, Donald McRae, subject to the Jewett contract, which Fletcher at the. same time assigned and delivered to them. Subsequently McRae transferred his interest to the complainant. In November, 1883, complainant paid the taxes mentioned in the writings, and became entitled to. receive $1.25 per acre for the land, which, under the terms of the contract, was to be payable four years from its date. The defendants afterwards tendered to the complainant $250, and demanded a warranty deed of the premises. The complainant refused to give a warranty deed of the premises, but offered to receive the money, and give to the defendants a deed of all of the interest he had received from Fletcher; but this they declined, and refused to pay the money without receiving a warranty deed. This bill is filed to enforce the complainant’s lien, and a decree was entered in favor of the complainant, providing for a sale of the premises in case the defendants should fail to pay the amount of the decree; and providing, further, that, in case of such payment, the complainant should execute and deliver to said defendants a “deed of the premises, with the usual covenants of warranty, except as to acts and incumbrances affecting said lands, caused by or through the defendants, subsequent to May 1, 1881.” The defendants have appealed.

It is not disputed that the defendants owe for the land, having never paid for it; but they insist that the tender discharged the lien, or, if it did not, it should have the effect to stop interest. We are satisfied that a proper construction of the two instruments constituting the contract entitled the defendants to a warranty deed, in case Fletcher, the vendor, should pay the taxes, and thereby become entitled to receive $1.25 per acre. This right was not lost by reason of the sale to the complainant, who took the land subject to the defendants’ rights. But, while this is true, we are not convinced that the complainant acted in bad faith in refusing to receive the tender upon condition that he deliver a warranty deed. While he knew that the defendants claimed the right to such a deed, it does not appear that they gave him any information concerning the writing held by them. He distinctly denied it in his testimony, and stated that he had no knowledge of such a paper until the trial, and that he supposed that the writing in his possession correctly stated the nature of the deed that the defendants were entitled to. We are of the opinion that his conduct was not such as to justify the forfeiture of his lien or the stoppage of interest. The defendants have had the use of the land and the money, and we think should pay the amount due upon the contract. Renard v. Clink, 91 Mich. 1 (30 Am. St. Rep. 458); Post v. Springsted, 49 Mich. 90; Sager v. Tupper, 35 Mich. 134.

The learned circuit judge, who saw the witnesses, took this view of the case. His decree is affirmed, with costs.

The other Justices concurred.-


text:
    BEECHER v. FERRIS.
    1. Adverse Possession — Ejectment — Locus in Quo — Instructions.
    In ejectment by the owner of lot 5 against the owner of the adjoining lot 6 to recover a strip of land described in the declaration as a part of lot 5, the court stated in his charge that the action was brought to recover a part of lot 6. The truth of such statement was not determinable from the proofs. The only issue, however, was whether plaintiff had acquired title to the strip by adverse possession, and the locus in quo was made clear to the jury. Held, that plaintiff was not injured by the instruction.
    2. Same — Requisites to Title.
    The mere inelosure of land by a fence, followed by a claim of ownership for the statutory period, will not constitute adverse possession, which involves uninterrupted occupancy as well as claim of title.
    3. Same — Burden oe Proof.
    In ejectment, where proof of occupancy is the only evidence of title in either party, it is not incumbent upon defendant to show that his occupancy of the land has been exclusive for the statutory period, but the burden is on the plaintiff to . show title in himself.
    4. Same — Instructions Unsupported by Evidence.
    Where plaintiff in ejectment claimed title by adverse possession to a strip of land which defendant had used for a footpath, it was reversible error to give an instruction, unsupported by the evidence, to the effect that defendant had paid the taxes on the land for a specified year, since such fact, if true, would tend to show that the user of the strip by defendant was accompanied by a claim of title, and was therefore not in subordination to, or acquiescence in, plaintiff’s claim.
    Error to Wayne; Lillibridge, J.
    Submitted April 20, 1898.
    Decided May 17, 1898.
    Ejectment by George L. Beecher against Alfred Eerris, •impleaded with Osman B. Oanney. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Henry M. Cheever, for appellant.

      John Galloway and H. M. Dubois, for appellees.
   Hooker, J.

The plaintiff’s premises adjoin those of the defendant upon the east. A fence which the defendant had built some years before was taken up and moved by him two feet to the east of its previous location. Thereupon the plaintiff brought ejectment for the strip of land which the defendant included within his inclosure by the moving of the fence.

The plaintiff relied upon adverse possession to support his claim, and, as there was testimony upon both sides of that question, it was proper for the court to leave it to the jury.

In his charge, the court stated that the action was brought to recover a strip of land two feet wide on the easterly side of lot 6. Counsel for the plaintiff claims that this was not true, that his declaration stated it to be upon lot 5, and that the effect of the charge was to prejudice the jury, by stating at the outset that the land was in fact a part of defendant’s lot 6, instead of plaintiff’s lot 5. Whether this strip was actually a part of the platted lot 6, or of lot 5, is not settled by plaintiff’s claim, or his declaration, and we do not discover that it is determinable from the proof. Indeed, there is nothing to show any title in either party to either lot, but proof of occupancy. But the locus in quo seems to have been well enough understood as being a strip of land 2 feet wide by 115 feet long, lying between the present and previous locations of the defendant’s fence. This the jury must have understood, especially as the judge followed the statement complained of by saying that the only question in the case was one of occupation or possession, and that it made no difference where the original line between lots 5 and 6 was, and that they had nothing to do with that. We are of the opinion, therefore, that the plaintiff was not injured by the statement, which may or may not have been true. This strip of land does not become a part of lot 5 by a mere claim in a declaration; and, on the other hand, the plaintiff’s title to the locus in quo does not depend upon its being upon one or the other side of the original line between lots 5 and 6, as the judge told the jury.

Counsel for the plaintiff requested the court to charge that:

‘ ‘ If you find that the testimony of George Beecher is true, — that more than 15 years ago, after Ferris built his fence between himself and Beecher, Beecher extended his fences on the alley and street up to the Ferris fence, and after that Luther Beecher claimed to own this property down to the time of his death, and George Beecher had ince claimed to own it, as the heir of Luther Beecher,— shen your verdict must be for the plaintiff.”

The court correctly refused this request, as the mere fact that Beecher built fences, and afterwards claimed ownership, is not enough to constitute adverse possession, which involves uninterrupted occupancy as well as a claim of ownership.

Complaint is made that the court refused to give the plaintiff’s fifth and thirteenth requests; but we think that the former was covered by the charge, and that the latter should not have been given, for the reason that it was not incumbent upon the defendant to prove his own adverse possession. It was the plaintiff’s adverse possession that was in dispute, and it was not necessary that the defendant’s occupancy should have been exclusive, to defeat it.

In his charge, the court said:

“There is evidence that the taxes for the year 1880 were paid by Ferris. I charge you that that, of itself, is not necessarily controlling in the case. It is only important to help you to determine whether Ferris claimed to own that land in 1880.”

It is asserted, and not denied, that there was no such evidence. We do not find it in the record, which purports to contain .all of the testimony. This alleged evidence went to the jury, in connection with the defendant’s claim that he was using the strip for a path. If true, it ■tended to show that his user of the strip was accompanied by a claim of title, and therefore not in subordination • to, or acquiescence in, any possession or claim of title by the plaintiff. We are therefore constrained to reverse the judgment. A new trial is directed.

The other Justices concurred.


author: Moore, J.

text:
    PILUCKI v. DETROIT STEEL & SPRING WORKS.
    Injury to Employé — Liability or Master.
    Plaintiff, while employed about defendant’s yard, was struck by a brick which fell, presumably, from the top of a chimney which had been injured in a ñre a few weeks previously. The chimney was cased with iron and lined with fire brick. No bricks were visible to any one at the top of the chimney, and no one knew that any were loose or in danger of falling. Plaintiff had all the knowledge of the danger that any one possessed. Held, that he had no cause of action.
    Error to Wayne; Frazer, J.
    Submitted April 20, 1898.
    Decided May 17, 1898.
    Case by Jacob Pilucki against the Detroit Steel & Spring Works for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.'

      James D. May and E. J. Jeffries (Henry M. Cheever, of counsel), for appellant.

      Wells, Angell, Boynton & McMillan, for appellee.
   Moore, J.

In June, 1896, plaintiff commenced this suit to recover damages for injuries received by him in July, 1890. The circuit judge directed a verdict for the defendant. Plaintiff brings the case here by writ of error.

Plaintiff had been in the employ of defendant for some years. A few weeks before the accident, the workshops of defendant were destroyed by fire. The upper part of a tall chimney, cased with iron and lined with fire brick, fell over, leaving 20 or 30 feet standing. The plaintiff was employed about the yard, gathering scrap iron, when he was requested by the foreman to bring a ladder to where the foreman was at the gas generator, which was a brick structure near the chimney, and against which a ladder was standing. The plaintiff procured a ladder, and, going part of the way up the ladder which was leaning against the gas generator, attempted to hand the one he had brought to the foreman, when a brick fell, presumably from the top of the chimney, and struck him on the head and in the face. The witnesses are all agreed that no bricks were visible to any one at the top of the chimney, or that any one knew any of them were loose or in danger of falling. There is nothing to indicate that plaintiff did not have all the knowledge of any danger that any one possessed. Without going into the testimony in detail, it is sufficient to say that the record does not disclose a cause of action on the part of the plaintiff against the defendant.

Judgment is affirmed.

The other Justices concurred.


text:
    INGLES v. BRYANT.
    Bill or Review — Laches.
    The announcement by the Supreme Court of this State of a decision contrary to that rendered by the court of another State upon a like issue will not entitle one who, in reliance upon the decision of such other court, has consented to the taking of a decree against him, to leave to file a bill of review; at least, not where he delays filing his petition for 20 months after the final decision in this court.
    Appeal from Berrien; Buck, J., presiding.
    Submitted April 21, 1898.
    Decided May 17, 1898.
    Bill by Charles H. Ingles and others against Andrew J. Bryant and others to determine the right to the possession of church property. A consent decree was entered for complainants, and defendants thereafter petitioned for leave to file a bill of review. From an order denying the petition, defendants appeal.
    Affirmed.

      A. A. Worthington, for complainants.

      Edward Bacon, for defendants.
   Moore, J.

January 19, 1892, complainants filed their bill of complaint against the defendants. The appearance of defendants, by their solicitors, was entered in February of the same year. In June, 1893, a stipulation was signed by the solicitors for the taking of the testimony, the submission of the case, and the taking of a decree. June 12, 1893,. a decree was entered in said cause. In March, 1896, defendants filed a petition asking for leave to file a bill of review. This application was denied by the circuit judge, and the case is appealed to this court by the defendants.

The record shows the litigation to be in relation to which faction of the church of the United Brethren is entitled to hold the church property of the Olive Branch Church at Galien. Between the filing of the bill of complaint and the making of the stipulation, a decision had been rendered in Ohio and one in Indiana which tended to sustain the claim of complainants, and it was doubtless to save further litigation and costs that defendants consented that a decree might be taken in favor of complainants, but without costs against defendants. In December, 1893, the case of Bear v. Heasley, 98 Mich. 279, was decided in this court. In July, 1894, application for rehearing in that case was denied. It is now claimed by defendants that the decree entered in this cause is contrary to Bear v. Heasley, and therefore the decree made in 1893 by consent ought to be set aside. It will be noticed that this petition for leave to file a bill of review was not filed until 20 months after the final disposition of Bear v. Heasley. There is no claim that any fraud was practiced in procuring the decree, and no adequate excuse is shown for the delay in filing this petition. The time for taking an appeal had long since expired. The parties to the controversy knew all ábout the taking of the decree, and for three years were apparently satisfied with it. We can see no better reason for disturbing this decree than would exist for setting aside judgments taken and acquiesced in by the parties thereto, because, in some opinion rendered later by the Supreme Court, the law might be announced in like cases contrary to what the learned counsel employed in the case and the parties thereto supposed it to be when they consented that judgment might be entered.

We think the learned judge properly'denied the prayer of the petitioners.

The other Justices concurred.


text:
    ALLEN v. DUBOIS.
    Pledge — Corporate Stock — Conversion.
    A x>ledgor of corporate stock may treat a sale by the pledgee of such stock as a conversion, although the pledgee has at all times a sufficient number of shares of the same stock to meet the pledge, where the stock pledged can be identified.
    Error to Monroe; Kinne, J.
    Submitted April 28, 1898.
    Decided May 17, 1898.

      Assumpsit by Richard W. Allen against Louis Dubois upon a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Oliarles A. Golden and Willis Baldwin, for appellant.

      E. R. Gilday and H. A. Lockwood, for appellee.
   Long, J.

Plaintiff brought suit upon a promissory note given by defendant. Defendant gave notice of set-off for the alleged conversion of certain certificates of stock of 100 shares each in the Iron Silver Mining Company, which were pledged with plaintiff as collateral security for the note sued upon. It appears that the plaintiff tendered back to .the defendant certificates of shares of stock in the same company, but not the identical certificates received as such collateral. It was shown that the plaintiff sold from time to time certain of the shares of stock so deposited with him by defendant, and received certain moneys therefor. The record contains the admissions of the parties made during the trial, as follows:

‘ ‘ Defendant admits that, if the plaintiff is not chargeable with the amounts received by him on the sale of the certificates of stock deposited with him by defendant, evidenced by certificates A14,664, A14,665, A14,666, sold by him October 16, 1889, and certificate A8,608, sold by him January 14,' 1890, and certificate A13,639, sold by him July 18, 1892, there is due plaintiff the sum of $787.75.
“Plaintiff admits that, if he is chargeable with the amount received by him upon the sale of said stock above mentioned, there is due to the defendant the sum of $867.20.”

The court below directed the verdict in favor of defendant for $867.20. Plaintiff brings error.

The only question raised here is whether the plaintiff is bound to return the identical shares of stock he received from the defendant. It appears that the plaintiff had on hand at all times^ a sufficient number of shares of the same stock to meet the pledge. It is contended by counsel for plaintiff that, inasmuch as one share was exactly like every other share of the stock, the defendant did not and could not suffer any damage by having returned to him other certificates of stock than those deposited, and therefore no action would lie. It appeared in the case that the five certificates for which the defendant was allowed a set-off against the note were fully identified. It is not contended that these certificates ever became the property of the plaintiff. He never had authority to sell them, and yet he did sell them at the price for which the defendant was permitted to recover in this action. These (certificates were indorsed in blank, but several of them stood upon the books of the company in the name of the defendant. The others stood on the books in the names of the parties from whom defendant received them. They passed from hand to hand, and any holder could have them entered on the books of the company in his own name. It has been held by this court that, where a party wrongfully sells a certificate of shares of stock in a corporation under such circumstances as to make him liable in trover, it is the shares of stock he is to be considered as having converted, and not merely the paper certificate which represents those shares; and that an action for the conversion will lie. Morton v. Preston, 18 Mich. 60 (100 Am. Dec. 146). That trover will lie for shares of stock) was held also in Daggett v. Davis, 53 Mich. 36 (51 Am. Rep. 91).

The shares being identified in the present case, so that the defendant .could state specifically what shares were deposited, we think it is well settled that he is entitled to have the identical shares returned, and that, if not returned, the plaintiff would be liable for their value. It is/ true that, in. the absence of any such designation, the law will presume that the shares so on hand from time to time were the shares deposited, because the parties have not reduced the shares to any more certainty. Allen v. Dykers, 3 Hill, 598. It was held in Fay v. Gray, 124 Mass. 500, that, if' a certificate of stock in a corporation pledged as collateral security is transferred by the pledgee to a creditor of his own, the pledgor may treat this as a conversion, and the fact that the pledgee has a greater number of shares standing to his own credit on the books of the corporation is immaterial. In Atkins v. Gamble, 42 Cal. 86 (10 Am. Rep. 282), the other view was taken, and it was held that the identical shares need not be returned ; but we think the great weight of authority is the other .way. Counsel seem to think that the numerous cases are conflicting; but we think it will be found upon /" examination that where the stock pledged as collateral can be identified, and separated from the other stock, the pledgor is entitled to have a return of his identical shares.f In .many of the cases cited, the courts were treating of the rights between a broker who buys stock, and holds it as security for moneys advanced, and the parties for whom he purchases. In that class of cases it is held that the broker may satisfy his contract by turning over any shares he holds, and the only requirement is that he keep a sufficient amount on hand in his own name, and subject to his absolute control, to enable him to restore the shares purchased for the customer. But when stock is pledged as collateral,.security,....and... the stock is identified, the pledgor is entitled to a return of the shares pledged, Any _ other rule than this would be at variance with the settled rule in this State that trover will lie for the conversion of such certificates of shares.

The court below very properly directed verdict in favor of defendant. The judgment must be affirmed.

The other Justices concurred.


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    CITIZENS’ SAVINGS BANK v. KOCK.
    Constables — Foreclosure—Lien por Fees.
    The lien of a constable upon the chattels of a corporation for his services in foreclosing a mortgage thereon is lost by the surrender of the property to the purchaser, and no allowance therefor should be made to him in a subsequent proceeding for the appointment of a receiver for the corporation.
    Appeal from Wayne; Donovan, J.
    Submitted April 21, 1898.
    Decided May 17, 1898.
    Bill by the Citizens’ Savings Bank against Jacob Kock and the American Brass & Metal Works for the appointment of a receiver. After the appointment of a receiver, David W. Fox intervened, and asked for an allowance for services as constable. From a decree granting the same, complainant appeals.
    Reversed.

      Barbour & Rexford, for complainant.

      George B. Greening, for intervener.
   Per Curiam.

The defendant corporation executed two chattel mortgages, — one to defendant Kock, and the other to complainant. Kock foreclosed his mortgage. Intervener, Fox, was a constable, and, at the direction of Kock, and under his chattel mortgage, took possession of all the property, including the factory and plant, advertised them for sale, sold them to Kock, and, after the sale, delivered to him the keys and possession of all the properly. Afterwards complainant filed a bill in equity against Kock and the corporation, and asked for the appointment of a receiver. A receiver was appointed, and then Fox filed his petition, praying that he be allowed $100 for his services in foreclosing for Kock, and it was allowed.

If Fox has any claim for his services, it is against Kock, who alone employed him. He chose to surrender the property without claiming his fees. In so doing, he abandoned his lien, and relied upon the personal liability of Kock. He rendered no services to complainant, or creditors generally.

Decree reversed, with costs, and petition dismissed.


author: Grant, C. J.

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    DEVEREAUX v. HUBBARD.
    1. Husband and Wife — Homestead—Fraud—Action for Damages.
    Whether a husband, when his wife owns the title to a homestead, has, by virtue of the marital relation, such an interest as entitles him to damages when she has by fraud been induced to part with it, — qucere.
    2. Same — Parties.
    Tn any event, the wife is a necessary party to an action to recover such damages.
    3. Same — Fraud Against Wife.
    A husband cannot recover damages because, “through his impaired mental condition,” he was “induced and persuaded to cause and procure his wife to trade and sell her land for certain other lands,” the right of action, if any, being in the wife.
    4. Mental Capacity — Overreaching — Insufficient Declaration.
    A declaration which alleges that plaintiff, when incapable of “reasonably and properly managing and conducting bis own business affairs, ” was induced to sell his land to defendant, but avers no false representations, does not state a cause of action.
    Error to Clinton; Daboll, J.
    Submitted April 8, 1898.
    Decided May 17, 1898.
    Case by George W. Devereaux against William A. Hubbard and Addie J. Hubbard for fraudulently inducing plaintiff to sell and exchange certain lands. From-a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The declaration alleges that plaintiff was, on May 11, 1896, the owner of certain described lands, of the value of $4,500, subject to an incumbrance of $1,000; that his wife owned a certain other described piece of land, which they occupied as a homestead, of the value of $1,500, in which he had a homestead right; that he also owned a livery stock in Owosso, of the value of $1,500; that he was then mentally incompetent to manage his own business affairs; that his said incompetency was well known to defendants; that said defendants falsely and fraudulently persuaded and induced said plaintiff to sell and exchange his said lands, and also induced and persuaded him to cause and procure his wife to trade and sell her land, for certain other described lands, of the value of $4,000, which were subject to an incumbrance of $2,500, and certain personal property of the value of $250; and claims damages of $10,000. Defendants pleaded the general issue. Upon the trial they objected to the introduction of any evidence, upon the ground that the declaration did not set forth a cause of action. The court so ruled, and directed a verdict for the defendants. It was conceded that the deeds had been executed, that plaintiff had not offered to redeed, that his wife owned the homestead, and that she had not offered to redeed.

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

      High & Everett, for appellees.
   Grant, C. J.

(after stating the facts). Plaintiff’s wife is not before the court complaining of the transaction. It is. obvious that he cannot recover in his own right for any damages she may have suffered in parting with her property. He had no homestead right apart from hers, and cannot maintain a separate action for damages, even if she had been fraudulently induced to sell the homestead. Whether a husband, when his wife owns the title to a homestead, has, by virtue of the marital relation, such an interest as entitles him to damages when she has by fraud been induced to part with it, — quaere. But, if he has, both must join in the suit to recover the damages. It would seem that the sole remedy ought to be in the one who owns the title. In any event, the law does not tolerate a suit by each. Under plaintiff’s own theory his wife was a necessary party.

The proposition that a husband is entitled to damages because, through his “impaired mental condition,” he was “induced and persuaded to cause and procure his wife to trade and sell her land for certain other lands,” does not merit discussion. She alone is interested in such a transaction, and entitled to damages on account of any fraud.

Plaintiff had not been adjudged incompetent at the time of this transaction, nor has he yet, for this suit is brought in his own name. The declaration does not allege any fraudulent representations. It does not allege such incompetency as is recognized by the statute of this -State as a cause for the appointment of a guardian. The ■statute requires that he should be “mentally incompetent to have the charge and management of his property.” 2 How. Stat. § 6314. The allegation in the declaration is that plaintiff was “ mentally incapable of reasonably and properly managing and conducting his own business affairs.” Many men lack business ability, judgment, and discernment, but their contracts cannot, for that reason, be set aside. In order to avoid a deed, the party must show that the grantor had not sufficient capacity to understand the nature and consequences of his own act. Jones,, Real Prop. § 48. Were plaintiff before a court of chancery, seeking to set his deed aside, and offering to place the defendants in statu quo, relief would not be granted him by showing that he was “mentally incapable of reasonably and properly managing and conducting his business affairs.” When he seeks in a court of law to ratify his deed and contract, keep what he has, and have a court or jury decide how much more he ought to have had, he must hoth allege and show, in the absence of fraudulent representations, that his mental incompetency was such as would avoid a deed. No such degree of incompetency is alleged.

The judgment is affirmed.

The other Justices concurred,


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    STRAWBERRY POINT BANK v. LEE.
    1. Promissory Notes — Negotiability.
    A promissory note is rendered non-negotiable, under the law of this State, by a stipulation therein for the payment of attorney’s fees in case suit is brought upon the note.
    2. Same — Coneliot op Laws.
    The law of the place where a note or bill of exchange is made and delivered will govern, in the absence of the designation of any other place as the place of payment.
    3. Same — Plage op Delivery — Presumption.
    The presumption is that a note executed by residents of Michigan, and dated and signed in this State, was delivered in Michigan.

      4. Same — Residence of Payee.
    Adding to the name of the payee in a note made and delivered in this State his place of residence in another State is descriptive merely, and therefore insufficient to render the note a contract of such other State.
    Error to Clinton; Daboll, J.
    Submitted April 26, 1898.
    Decided May 17, 1898.

      Assumpsit by the Strawberry Point Bank against E. C. Lee and others upon a promissory note. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Edwin H. Lyon, for appellant.

      Charles Snelling and Fedewa & Walbridge, for appellees.
   Grant, C. J.

Plaintiff, a corporation of Iowa, brought suit upon a note executed by the defendants for $1,600, payable to “A. B. Holbert, or order, of Greeley, Iowa.” The note also contained the following',provision:

“Interest payable annually, and interest at the rate aforesaid upon such interest after the- same becomes due, until paid; and we agree, if this note is not paid when due, and the holder sues the same, to pay a reasonable sum as attorney’s fees, to be assessed by the court, and taxed as a part of the cost, in any suit brought thereon.”

The defense was that the note was obtained by fraud. Plaintiff claimed to be a bona fide purchaser, before due. If the note was payable in Michigan, it was not negotiable, and was therefore open to the defense set up and proven. Cayuga County Nat. Bank v. Purdy, 56 Mich. 6; Altman v. Rittershofer, 68 Mich. 287 (13 Am. St. Rep. 341). If it was payable in Iowa, it became an Iowa contract, and was negotiable, under the decisions of that State. Sperry v. Horr, 32 Iowa, 184; Shenandoah Nat. Bank v. Marsh, 89 Iowa, 273 (48 Am. St. Rep. 381).

It is unnecessary to cite authorities to show that the law of the place where a promissory note or bill of exchange is made and delivered controls, in the absence of the designation of any other place; and, if any other place is designated, the law of that place controls. This is elementary. Plaintiff insists that the expression in the note, “ We promise to pay A. B. Holhert, or order, of Greeley, Iowa,” fixes the place of payment. There is no direct evidence as to where or when the note was delivered. It was dated in Michigan, signed in Michigan, and defendants resided in Michigan. The presumption therefore is that it was delivered in Michigan. The note fixes no place for payment, unless the fact that the note stated that the residence of the payee was in Iowa fixes the place. No authorities are cited sustaining this contention. The name of the payee in a mortgage is usually stated, but this does not make it a contract to be executed in the State where the mortgagee resides. Adding- the place of residence of the payee is merely descriptive. If a resident of Australia were the payee of a note executed and delivered in Michigan by residents of Michigan, it certainly would not follow that the contract was to be performed in Australia because his residence was inserted after his name. Counsel appears to rely mainly upon Cox v. National Bank, 100 U. S. 704. That was a case of a bill of exchange drawn on “C. & C., New York, N. Y.” It was held that the bill was, in law, payable at that city. The liability of the indorsers alone was involved. The subject is very ably discussed in that opinion. The true rule is there stated on page 712, as follows:

’ “Where no place of payment is expressed in a bill or note, the general rule, in the absence of any agreement or circumstances fixing or indicating a different intention, is that the place of presentment is the place where the acceptor or maker resides, or at their usual place of business. Circumstances, however, may control the usual inference arising from the want of any such expression in the instrument, which may warrant a very different conclusion. Thus, if a bill were drawn upon a merchant when abroad, and should be addressed to him ‘at Paris or at London,’ the place of payment would be the place where he accepted the instrument, whether Paris or London, and not the place of his residence when the bill was drawn or at its maturity. 1 Daniel, Neg. Inst. § 90. Provided no place is designated or agreed or indicated in the form of the address or the terms of the acceptance, the rule then is that the presentment for payment must be made at the home or domicile of the acceptor or maker, or at their, usual place of business, during business hours. Id. § 635.”

There are no circumstances shown in this case to take it out of the above rule.

The judgment is affirmed.

The other Justices concurred.


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    CHRISTOPHERSON v. COMMON COUNCIL OF MANISTEE.
    Elections — Ballots—Marking.
    A ballot marked with two parallel horizontal lines across the circle at the head of one of the party tickets cannot be counted, the statute requiring a cross as the designation of the voter’s intent.

      Mandamus by Emil Christopherson to compel the common council of the city of Manistee, acting as a board of canvassers, to issue to relator a certificate of election to the office of supervisor.
    Submitted April 27, 1898.
    Writ granted May 17, 1898.

      Frank L. Fowler, for relator.

      Dovel & Smith, for respondent.
   Hooker, J.

The relator and one Reynolds were opposing candidates for the office of supervisor of one of the wards in the city of Manistee at the last election, held in April of the present year. The inspectors of election determined that the relator had received 187 votes, and his competitor 186 votes, and that the relator was elected. Upon a recount had at the instance of Reynolds, the common council determined that each candidate received 186 votes, and against the protest of the relator, who refused to take any part in the proceedings, determined by lot that Reynolds was elected. The relator now asks a mandamus to compel said council (which is the lawful board of canvassers) to issue a certificate of election to him.

The result hinges upon two ballots, — one which the council counted for Reynolds, and one which it refused to count for the relator. The only marks upon the former consisted of two parallel horizontal lines across the circle at the head of the Citizens’ ticket. A similar ballot was held unlawful in the case of Attorney General v. Glaser, 102 Mich. 405. As the effect of a rejection of this ballot would,have given the relator a majority, it is unnecessary to consider the propriety of the rejection of the other ballot. The writ should issue, but without costs. As the old council is functus officio, the certificate may issue by the present council.

The other Justices concurred.


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    JACKSON v. SLOMAN.
    1. Taxes — Description of Lands — Sufficiency.
    A description of lands which would he sufficient in a conveyance between individuals is not necessarily so in proceedings for the levy and collection of taxes.
    3. Same.
    An assessment of lots included in a recorded plat of the “F. & P. M. Park subdivision of part ” of a designated fractional section of land is void for discrepancy of description, where they are assessed as part of the “F. & P. M. subdivision of part of N. E. \ of ” such fractional section.

      Certiorari by Alfred Jackson to review the action of the auditor general in issuing certain certificates of error upon the application of Eugene H. Sloman.
    Submitted April 6, 1898.
    Affirmed May 17, 1898.

      Cyrus A. Hovey, for petitioner.

      Fred A. Maynard, Attorney General, and Sloman & Groesbeck, for respondent.
   Hooker, J.

Sloman was the owner of certain lots in the city of Detroit, which were assessed as “lots numbered 3, 4, 35 [and many others, whose numbers were given] of the P. & P. M. subdivision of part of N. E. £ of fractional section 17, T. 2 S., R. 11 E., lying south of and adjoining Chicago road, according to plat thereof, township of Springwells, county of Wayne, and State of Michigan.” The recorded plat of which these lots are a portion is the “E. & P. M. Park subdivision of part of fractional section 17, T. 2 S., R. 11 E.,” as appears from the return. These lots were sold for the taxes of 1893. Subsequently they were sold and deeded by the auditor general to Jackson. This occurred on March 20, 1897. On. his attention being called to the discrepancy between the description in the deeds and that of the plat, by the county treasurer, who requested a cancellation of the deeds to Jackson, the auditor general wrote a letter to the county treasurer, saying that the records in his department showed that the land had been sold and deeded, and that it did not seem that there was a material difference in the way it was returned and the recorded plat. On being informed of this letter, Sloman wrote to the auditor general, under date of March 22, 1897, whereupon the auditor general determined that the descriptions were erroneous, and issued certificates of error, and notified Jackson of the facts; offering to return the purchase price.

We are cited to section 25 of Act No. 206 of the Public Acts of 1893 for the requirements of the law.in the matter of description of land in assessment rolls and other tax proceedings. Subdivision 4 of said section permits description of city property by reference to the plat thereof, and by the number of the lot. Subdivision 6 provides that “lands may be designated by any description by which they may be known.” So far as appears from this record,, the description under consideration complies with neither of these provisions; and if it be said that the description is one that is sufficiently definite to afford means of ascertaining the lands intended, and therefore good as between private parties, it may be replied 'that we cannot know this from the record, which expressly shows that no evidence was offered upon the subject. We should, however, note a distinction between cases upon conveyances between private persons, arising out of a sale and intentional transfer, and those where title is sought to be divested through tax proceedings. The requirements as to the description in tax proceedings are not only aimed at securing an identification of the property that will be certain, but are designed to afford notice to the owner that proceedings affecting his property are pending. The description should therefore be such as not to mislead him, if it departs from strict accuracy as stated by statutory rules. This was indicated in the recent case of Auditor General v. Sparrow, 116 Mich. 574. Mr. Black, in his treatise on Tax Titles, at page 141 (§ 112), says:

“Again, the opinion has been advanced that a description which would be sufficient in a conveyance of land between individuals will be sufficient in a tax assessment, and that it is in accordance with the requirement of certainty if it is capable of being rendered certain; parol evidence being admissible in aid of identification. But, as Judge Cooley very justly observes, ‘it is possible for cases to arise in which such a criterion would be an unsafe one to apply. In a deed which one executes for the purpose of conveying a particular description of land, if errors •of description occur they may well be rejected, and the deed sustained, if, after rejecting them, a sufficient description remains to identify the land intended, because the erroneous- circumstances which yrere added could not have misled the party conveying, who all the time had in mind a particular parcel which the erroneous particulars did not fit. But the same errors in a description prepared by another might very likely mislead the owner, who would be informed of no error, and who must, from the description alone, discover what land was intended. The same may be said of any imperfection in the description. The owner, if it has been prepared by himself, will read it in connection with his own knowledge of those surrounding circumstances in the light of which he has framed it; but an equally imperfect description, prepared by another, and unaccompanied by any such circumstances, would fail to convey to his mind any idea that his own land was intended. It certainly would be much less likely to do so than where he himself had formulated it.’” Cooley, Tax’n, 404.

Again, in Jones v. Pelham, 84 Ala. 208, it was saidr

“In a conveyance between individuals, where the purpose is to explain and give operation to the intention of the parties, certainty may be imparted to the deed by parol evidence that the particular land was designated, and that the grantee was put into possession. But this rule does not apply to tax titles, with which the owner has nothing to do, and there being no intention to which operation can be given. The assessment is the foundation of all subsequent proceedings, and, in order to impart certainty and validity to them, the description of the land in the assessment must be sufficiently definite and certain as not to require resort to extrinsic proof of the character above mentioned.”

See, also, People v. Mahoney, 55 Cal. 286.

We are aware that there is great diversity of opinion upon this subject, the decisions of some of the States being very strict, and others liberal, in their constructions of statutes prescribing the descriptions in tax proceedings; but in our opinion the rule stated above is a reasonable one, and the action of the auditor general was fully warranted, under the facts stated.

The proceedings are affirmed, with costs.

The other Justices concurred.