text:
    JOHNSON ELECTRIC-SERVICE CO. v. DETROIT CHAMBER OF COMMERCE.

    Chamber oe Commerce — Member’s Liability — By-Laws—Annual Dues — Bill to Compel Levy.
    A by-law giving the board of directors of a chamber of commerce authority to fix a certain amount as annual dues, to be assessed against members for the purposes of the association, affords no ground for compelling the directors, at the suit of a judgment creditor, to levy an assessment to raise funds to pay complainant’s claim, where the capital stock and all voluntary assessments have been paid in full by the members.
    Appeal from Wayne; Carpenter, J.
    Submitted April 10, 1900.
    Decided May 15, 1900.
    Bill by the Johnson Electric-Service Company against the Detroit Chamber of Commerce and others to enforce the collection of a judgment. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Tarsney & Fitzpatrick, for complainant.

      Warner, Codd & Warner, F. A. Baker, Wells, Angelí, Boynton & McMillan, and Mussel & Campbell, for defendants.

       Rehearing denied September 24, 1900.

   Moore, J.

The defendant corporation is organized under chapter 108, 1 How. Stat., entitled “Boards of Trade and Chambers of Commerce,” under the name of the Detroit Chamber of Commerce. The act provides (section 3802) that:

‘ ‘ Any number of persons, not less than twenty, * * * may associate themselves together as a board of trade, and assemble at any time and place upon which a majority of the members so associatiñg together may agree, and elect a president, one or more vice-presidents, and such other officers as may be determined upon, adopt a name, constitution, and by-laws such as they may agree upon, and shall thereupon become a body corporate and politic, in fact and in name, by the name, style, or title which they have adopted.”

A constitution and code of by-laws were adopted. In the by-laws it is provided under the title “Membership:”

“Upon signing an agreement to be governed by the charter, rules, and by-laws of the association, and paying the annual or other assessment then due, * * * such applicant shall become a member of the Detroit Chamber of Commerce.”

It is provided that any person shall be eligible to membership, and shall be admitted, on payment of $100, by a. majority vote of the board of directors. A certificate of membership shall be issued to each member, showing the payment of the membership fee, and said membership shall be transferable only on the books of the company. Under the heading ‘ ‘ Annual Dues: ”

“In addition to the price of membership, there shall be paid on each membership (carrying voting power) such sum as may be fixed by the board of directors, payable, annually.”

It is also provided that the board of directors shall, annually, soon after their election, fix the amount that shall be levied and assessed on each member for the purposes of the association for the year. Another section makes it the duty of the board of directors to report the full amount, assessed upon each member within at least one week after the assessment has been made, and no member of the association shall be entitled to vote at the annual election unless he shall have paid such assessment.

The record shows the board of directors fixed the annual dues at the sum of $10. The capital stock of the corporation consisted of 1,000 shares, of $100 each. It was all taken. A site for a building was bought, and an arrangement 'for putting up an -expensive building, by issuing bonds secured by a mortgage upon the building and site, was made. The building was erected. The mortgage was afterwards foreclosed.

The complainant obtained a judgment against defendant corporation for upwards of $10,000 for appliances put in at the time of the construction of the building, and filed this bill of complaint to enforce its judgment against the individual stockholders of the corporation by having a court of equity compel the directors to levy an assessment upon its members for that purpose. The record discloses that all the shareholders paid in full for their stock, and also paid the annual dues fixed by the board of directors; but it is claimed that, by reason of the provision of the by-laws we have already quoted, the stockholders are personally liable for the debts of the corporation.

The learned circuit judge, in a written opinion dismissing the bill, used the following language:

“ If it is the duty of the defendants to make said levy, it is their duty to make a levy in all similar cases which may arise; that is, it is their duty to make a levy to pay all debts against the defendant corporation. If there is such a duty, it arises from the by-laws above quoted, and it exists because the members have thereby made an agreement to pay the debts of the defendant corporation. The determination of this case, then, depends upon whether the members have made any such agreement. When they agreed to pay annually such sums as the board of directors, elected by themselves, should determine, did they thereby agree to pay all the debts of the corporation, regardless of the determination of said board of directors ? To ask this question is to answer it. According to both reason and authority, one must be held according to the terms of his promise, or not held at all. If I agree to contribute to an enterprise such sums as one designated by me may determine, I do not agree to contribute what a court, or jury, or any other body or person may say are needed for that enterprise.

“But it is said that creditors had a right to look at this obligation as an asset in the nature of capital stock, which would be used to pay debts, and that complainant can now insist upon that right. In my judgment, the agreement in question is in no sense an agreement to contribute to the capital stock. Each member has paid what he agreed to contribute to that. This is an agreement to pay something additional, which the members and every one else looking at the agreement would naturally call ‘ annual dues.’ If a creditor had any right to expect these annual dues to be applied to pay his debt, he had no right to expect them to be fixed in any other manner than as agreed. If he enforces the agreement, he can only enforce it according to its meaning. It does not mean that the members will pay all the debts of the corporation.”

We agree with what is here said by the circuit judge. Port Huron, etc., R. Co. v. St. Clair Circuit Judge, 31 Mich. 456; 17 Am. & Eng. Enc. Law, 91, and cases cited.

In addition to the reason given by the learned judge in dismissing the bill of complaint, there are several reasons why the complainant cannot maintain this bill.- It is evident there was no thought on the part of the corporation or of the shareholders that the latter, by reason of the bylaws, incurred any liability except for the annual dues, to be fixed by the directors, to be used to pay the current expenses incident to' the purposes of the organization. We think it equally clear, from reading the articles of association and the by-laws, that the liability incurred because of the adoption of the by-law related solely to the annual dues, which should be fixed by the board of directors for the current ex¡Denses incident to the purposes of the organization. These dues were fixed by the board of directors at the sum of $10 annually, thereby placing a limit upon the extent of the liability. The dues were paid by the shareholders, and the liability for the annual dues so fixed was discharged. This by-law was not designed to impose a general liability upon the stockholders, and did not have that effect. 1 Beach, Priv. Corp. §§ 143, 322; Peck v. Elliott, 24 C. C. A. 425 (79 Fed. 10, 38 L. R. A. 616); Trustees of Schools v. Flint, 13 Metc. (Mass.) 539; Flint v. Pierce, 99 Mass. 68 (96 Am. Dec. 691); Reid v. Manufacturing Co., 40 Ga. 98 (2 Am. Rep. 563).

It is also clear from the record that complainant did not extend the credit in reliance upon the liability of any shareholder by reason of the by-law, but the credit was extended to the corporation as a corporation. 1 Mor. Priv. Corp. § 500; Flint v. Pierce, 99 Mass. 68 (96 Am. Dec. 691); 1 Beach, Priv. Corp. § 322.

It would be anomalous, indeed, if, under the head of “capitalization,” the member is made liable only for the capital stock subscribed by him, but, under the head of annual dues, may be made liable for the entire indebtedness of the corporation. Complainant’s counsel rely upon the case of Omaha Law Library Ass’n v. Connell, 55 Neb. 396 (75 N. W. 837); but we think that case, instead of favoring their position, is against it. Mr. Connell paid in full for his share of stock. The directors fixed the annual dues of members at $15. Mr. Connell denied their authority to require him to pay anything more after he had paid for his stock. The court held, while the board were not expressly authorized, in the articles of association, to provide for annual dues, they were by implication given that authority, and that Mr. Connell was liable for them. The court used this language:

“ Now, what was the purpose for which this by-law in controversy was enacted ? While this association is a de jure corporation, still it is not a corporation for trade or profit; it is not engaged in any commercial enterprise; but, as its charter declares, it is organized for the purpose of establishing and maintaining a law library for the use of its stockholders. It must have been apparent to the organizers of this corporation that, after it was organized, certain current expenses would have to be met; books would have to be purchased from time to time, to keep up the library; rent and taxes would have to be paid; there would be the expense of light and fuel, a janitor, and a librarian to be provided for; and, with these thoughts in mind, we think the promoters of this corporation, by its articles of association, authorized its board of 'directors to enact just such a by-law as the one in controversy, namely, one to meet the current expenses of maintaining the library.”

There is no suggestion here that the board of directors, by means of a by-law, could make a shareholder liable for the debts of the company generally, though the case does hold that, by means of a by-law, the shareholder might be required to pay annual dues for the purpose of meeting the current expenses of the library association. It was for just such a purpose as this that the by-law in question was enacted, and it was given that interpretation by the directors and shareholders alike.

The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    LAWRENCE v. COMSTOCK.
    Chattel Mortgage — Assignment—Construction—Parol Evidence.
    The mortgagee in a chattel mortgage on “all lumber or building material” in or about a certain building assigned the mortgage, together with all her title to all “the lumber” in such mortgage mentioned; and the mortgagor, in the- same instrument of assignment, assigned all his title to “said lumber.” Held, that parol evidence was inadmissible to show the parties’ intentions and their talk at the time of the assignment, to the effect that a quantity of rough boards of uniform length and selected widths, located in a dry kiln in the basement of the building, and designed for use for finish-' ing purposes, should not be included in the assignment.
    Error to Kent; Grove, J.
    Submitted April 10, 1900.
    Decided May 15, 1900.
    Replevin by John S. Lawrence, trustee, against Daniel F. Comstock and Jennie M. Milner. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      Smedley & Conoin, for appellants.

      Knappen & Kleinhans, for appellee.
   Hooker, J.

Comstock, being indebted to Mrs. Milner in the sum of $7,000, gave to her a note therefor, secured by chattel mortgage on “all lumber or building material in or about the Comstock Block,” etc. Subsequently Mrs. Milner and Comstock made and delivered to Caldwell, as trustee for the benefit of the creditors and depositors of the Big Bapids National Bank, an assignment of—

“A certain chattel mortgage, and the note therein mentioned and secured thereby, executed by Daniel F. Com-stock to me under date of October 30th, 1896, for $7,000, together with all of my right, title, and interest in and to all of the lumber in said mortgage mentioned.

“And I, Daniel F. Comstock, owner of the said property in said mortgage mentioned, for and in consideration of the sum of one dollar and other valuable considerations, to me in hand paid by the said George B. Caldwell, and for the purpose of securing and paying over to the creditors and depositors of and in said Big Rapids National Bank whatever may be found due them, do hereby sell, assign, transfer, and set over unto the said George B. Caldwell, as such trustee as aforesaid, all of said lumber, and all of my right, title, and interest in and to the same, hereby expressly authorizing and empowering the said George B. Caldwell, as trustee as aforesaid, to take immediate possession of said lumber, sell and dispose of the same for the best price and prices that can be obtained therefor, and from the proceeds arising therefrom to first deduct the costé and charges of such sale and handling of said lumber and converting same into money, and with the residue to pay and discharge in full or pro rata, as the case may be, the several claims as they shall hereafter be proven up of the creditors and depositors of said Big Rapids National Bank.

“Any provisions in said mortgage contained in conflict with any provisions herein inserted are hereby expressly waived; the purpose of this instrument being to convert said lumber into money as speedily as possible, and to apply the proceeds in the manner aforesaid towards the payment in full or pro rata, as the case may be, of the claims of the creditors and depositors against the said Big Rapids National Bank.”

Afterwards, by the decree of the circuit court of Kent county, Lawrence was substituted for Caldwell as trustee. At the time the mortgage was made, Comstock had in a dry kiln in the basement of said building a quantity of finishing lumber, cut to required lengths, designed for the completion of said building. This the defendants refused to deliver up to Lawrence, who demanded it under the assignment, and it was replevied in this action. The plaintiff claims that it passed under the assignment. The defendants assert that such was not the intention, and testimony was offered to show that the words “building material ” were left out of the assignment for the reason, understood and talked about at the time, that the term “lumber” was not intended to include the building material mentioned. The court excluded this testimony, and, the plaintiff having recovered, the defendants have brought error.

The assignment seems to have had a double object, viz.: First, to assign Mrs. Milner’s interest in the mortgage; second, to assign Mr. Comstock’s equity of redemption in the whole or a portion of the property. There can be no question that the mortgage covered the lumber in controversy, because it covers both lumber and building material in the Comstock Block. We understand this to be conceded. It is equally clear that Mrs. Milner’s assignment of the note and mortgage conveyed to Caldwell, and through him to Lawrence, all her interest in both lumber and building material. Therefore Lawrence had a right to foreclose the mortgage on both, and for that purpose might lawfully demand and take possession of it, at a proper time, for such purpose. The assignment of Mr. Comstock’s interest gave a right to immediate possession of all covered by it, but is said to have limited the right to “such lumber;” meaning such lumber as was referred to in the assignment of the chattel mortgage.

Parol evidence may be resorted to for the purpose of identifying the subject-matter of a contract, but it must not contradict or vary the plain terms of the writing. If this chattel mortgage plainly shows that the property in dispute, which can hardly be mentioned except by the use of the term “lumber,”, was referred to by the term “lumber,” the parties should not be permitted to contradict the writing by testifying that such was not the intent. As well might it be said to be proper to show that a chattel mortgage covering all horses owned by the mortgagor was not intended to cover old horses, or young horses, or mares. What force there is in defendants’ contention arises from the use of the words “building material” in the mortgage; for it might be said that if the words “building material,” as contradistinguished from the broad term “lumber,” could only be applied to the lumber which had been selected and cut up into the requisite lengths for a specific purpose connected with the building, by reason of the fact of there being no other building material upon the premises, the use of the words “building material ” would be superfluous unless they were designed to distinguish between this stuff and lumber in general. But we cannot suppose that such was the design. In the first place, it is not improbable that the term was used to cover other material besides lumber, such as lime, brick, sand, nails, lath, hair, and other supplies and articles designed for building. If, however, there were no such articles, we cannot assume that the words were designed to make the distinction mentioned, because, as the mortgage clearly and unqualifiedly covers all lumber and all building material, there could be no useful purpose in such distinction. Again, the words used in the mortgage are not “all lumber and all building material,” but “all lumber or building material;” plainly indicating an intention to cover everything, whether it be called “lumber” or “building material.” When Mrs. Milner assigned her claims, she unqualifiedly assigned the mortgage, together with all her right, title, and interest in and to all of the lumber therein mentioned. This cannot be said to cover only a portion of it, but all of it, of every kind, and Comstock assigned his interest in said lumber.

We think this contract clear and unequivocal, and that there is no latent ambiguity shown which calls for explanation. The testimony offered was that of the parties to show their intentions, and to show their talk at the time to the effect that this stuff was not to be included in the assignment, because it was heeded to finish the building. Counsel offered to prove that the agreement was made that this should not be included in the assignment. This talk was merged in the writing, and was not admissible, because a plain contradiction of the writing. Counsel sought to show that lumber cut and partially prepared for use is not usually called “lumber.” This was rough lumber. It was sawed the proper widths and lengths (viz., 14 feet) for certain work. We think the court properly held that rough boards 14 feet long, although selected or cut of certain widths, and put in the kiln to dry for a specific purpose, were included in the term “lumber,” and that any testimony of a contrary intention was inconsistent with the writing and inadmissible.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    ROHRABACHER v. WOODARD.
    Master and Servant — Dangerous Machinery — Assumption oe Risk — Reliance on Superior.’
    An experienced servant of mature years cannot continue to operate a machine which he knows is dangerous, without assuming the risk, simply because the employer has assured him that it is safe, when the servant has just as much knowledge of the danger arising from its operation as the employer.
    Error to Shiawassee; Dodds, J., presiding.
    Submitted April 11, 1900.
    Decided May 15, 1900.
    Case by Edward M. Rohrabacher against Lyman E. Woodard for personal injuries. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Watson & Chapman, for appellant. .

      Van Banst Pond, for appellee.
   Moore, J.

The plaintiff brought this action against defendant to recover for injuries received by him while operating a surface wood-planing machine. The case was tried by a jury, who rendered a verdict in favor of the defendant. The plaintiff brings the case here by writ of error.

The plaintiff is 45 years old. Prior to January, 1896, he had worked for defendant 18 or 19 months, operating a wood planer. In January, 1896, a new planer was put in operation in the place of the old one. It was a surface planer, about three feet wide and six or seven feet long. A little more than half way back from the front of the machine, its surface was divided into two parts by a throat, which extended entirely across the width of the machine. Just below this throat was a square shaft, which made about 4,000 revolutions a minute. Attached to the shaft were two knives. When the shaft and knives were revolved, they made a diameter of about five inches. The edges of the knives came to the same height as the rear portion of the surface or bed of the machine, but would project above the front portion of the bed the thickness of the shaving it was proposed to take off from the piece of wood which was to be planed. If the shaving was to be thin, the front portion would be lifted, narrowing the throat of the machine. If the shaving was to be thicker, the front bed would be lowered, and, because of the diameter of the circle made by the knives, the throat of the machine would be widened. This machine was used for planing pieces of wood of various lengths, widths, and thicknesses. The article to be planed was placed in front of the revolving knives, upon the front portion of the bed of the machine. It was held down with one hand, and with the other hand was pushed back against the knives, which revolved against the lower side of the article, planing the lower surface as the article passed over the knives and upon the rear portion of the surface of the machine. The machine was not at all complicated, and its construction and method of operation would be very quickly apparent to an operator of ordinary intelligence. Soon after the machine was placed in position, the plaintiff commenced work upon it, and, according to his testimony, he observed within a day or two thereafter that to plane short pieces of wood was a dangerous operation. He says he called the attention of the defendant to that fact, and was assured by him that it was entirely safe to plane such pieces of wood upon the machine, and that, relying upon said assurance, he continued to work with the machine until about Thanksgiving, when he again had a similar talk with defendant. He says that, relying upon this assurance, his fears were allayed until the 7th of December, 1896, when, planing a short board, the board kicked, and his hand was thrown into the throat of the machine, and was very severely injured.

The position of counsel, as stated in their brief, is: “If the plaintiff complained to defendant of what he thought was dangerous, and was commanded by defendant to 'go on with his work, and was given the assurance that it was safe, defendant will not he heard to say after-wards, and when an injury has resulted from the very, defect complained of, ‘You assumed the risk; you were guilty of contributory negligence in doing what I commanded you to do,’”—citing Schlacker v. Mining Co., 89 Mich. 253 (50 N. W. 839); Lake Superior Iron Co. v. Erickson, 39 Mich. 492 (33 Am. Rep. 423); Burnside v. Manufacturing Co., 121 Mich. 115 (79 N. W. 1108). Counsel say the court erred in his charge to the jury, and the case ought to be reversed.

We do not think the above statement of counsel is a proper statement of the law, and the cases cited do not so indicate. One cannot continue to operate a machine which he knows is dangerous, simply upon the assurance of his employer that it is not, if he has just as much knowledge of the danger arising from the operation of the machine as his principal has. Taking plaintiff’s own version of the situation, speaking for myself, I think the court would have been justified in directing a verdict for the defendant. The plaintiff was a man of mature years, acquainted, by actual operation, with machinery. He was put at work upon a new machine of simple construction. He had as much knowledge of its operation within a few days after he began work, and of its dangers, as any one. He says he learned of the danger of planing short pieces with the machine within a day or two after he commenced to work with it, and, after obtaining that knowledge, without any promise of any change in the machine or its conditions, he continued to work upon it for the period of 11 months, when he was hurt. If, under such circumstances, the employer is liable, it is difficult to conceive of a case where an accident occurred that liability would not attach. See Kean v. Rolling Mills, 66 Mich. 277 (33 N. W. 395, 11 Am. St. Rep. 492), and the many cases there cited; Fisher v. Railway Co., 77 Mich. 546 (43 N. W. 926); Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Breig v. Railway Co., 98 Mich. 222 (57 N. W. 118); Hayball v. Railroad Co., 114 Mich. 135 (72 N. W. 145), and the cases there cited.

The judge, however, did not see fit to direct a verdict in favor of defendant, but submitted the case to the jury with a charge of exceptional clearness, and which was much more favorable to the plaintiff than he was entitled to have given.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    MORLEY v. VILLAGE OF BUCHANAN.
    Municipal Corporations — Grade of Street — Changing Course of Water — Damages.
    Where, pending the erection of plaintiff’s foundry building, defendant village caused to be constructed along the adjacent street a gutter wall, by which the water accumulating in the street was carried away, the village was liable for damages resulting from its subsequent action in destroying the gutter, and so changing the grade of the street that the water theretofore carried away by the gutter was precipitated through the windows into the molding-room of the foundry.
    Error to Berrien; Coolidge, J.
    Submitted April 11, 1900.
    Decided May 15, 1900.
    Case by Burton T. Mor ley against the village of Buchanan for damages caused by a change of street grade and the destruction of a gutter. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Edward Bacon, for appellant.

      Alison O. Roe, for appellee.
   Long, J.

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

It appears that the plaintiff has been for many years the owner of a building, used for a foundry, facing .upon North Portage street, in defendant village. This building was of brick, and was constructed by plaintiff in the year 1875. It had a frontage on North Portage street of about 60 feet. It being intended for foundry purposes, it was excavated to the depth of about 3 feet below the surface of the street, with the bottom of the windows nearly on a level with the street surface. It is alleged in the declaration that, while this building was being erected, the defendant village—

“Caused to be constructed along and a short distance west of the eastern boundary of said North Portage street, including the part opposite to said brick building, a gutter wall, formed of stone, of considerable breadth, to wit, of the breadth of 6 feet, and having a descent to the north, towards McCoy’s creek, near by; that the surface of the street sloped downward from the wall of said brick building to said gutter; that said gutter was so constructed as to receive and properly carry away all water from the roof of said building, and thereby all the water from said building, when completed, was naturally carried into said gutter, and all water that by any means was likely to enter said gutter was also carried away.”

It is also averred that the water was so continuously carried off until the year 1893, when the defendant changed and raised the grade of that street about 3 feet along the whole of the front of the plaintiff’s building, and caused the grade, for some 12 feet in width, of the said street, to slope to and against the plaintiff’s windows, thereby destroying the gutter which had theretofore carried off the water, so that, as now constructed, the waters are precipitated against said building, and into and through the windows and into the molding-room of plaintiff’s foundry.

Some testimony was given tending to support the averments of the declaration. The court below instructed the jury that the declaration stated no cause of action, and that the evidence failed to disclose any liability on the part of the village, and therefore directed the verdict in favor of defendant.

We think the court was in error in these instructions. The declaration stated a cause of action, and there was some evidence to support the allegations. The village had the undoubted right to change the grade of the street, and would not be liable to adjacent owners of property if by that means the surface water was thereby cast upon their premises. The declaration, however, avers, and the proofs show, that before that time a gutter was there placed and kept, which carried the waters there accumulating away from the plaintiff’s building and into McCoy’s creek. The acts complained of by the plaintiff are the destruction of this gutter, and so changing the grade of the street that the waters that had theretofore been carried off by this gutter were thus precipitated upon his premises.

It is the claim of counsel for defendant that, under the village act, the village had authority to determine and establish the grade of streets, and to grade and otherwise improve and repair the same, and' to establish and construct sewers and drains whenever and wherever necessary, and of such dimensions and materials as might be thought proper. 1 How. Stat. §§ 2861, 2870. It was, however, held in Defer v. City of Detroit, 67 Mich. 346 (34 N. W. 680), that, when the plan adopted by a municipal corporation in constructing a public improvement must necessarily cause an injury to private property equivalent to some appropriation of the enjoyment thereof to which the owner is entitled, the municipality is liable. In that case the act complained of was in raising the grade at which the Franklin-street sewer entered and connected with Riopelle-street sewer, by means of which the waters in the sewer were set back upon plaintiff’s premises. It was held in that case that the declaration stated a cause of action. In Rice v. City of Flint, 67 Mich. 401 (34 N. W. 719), the declaration charged, in substance, that the city raised the grade of a street so as to dam up and set back the water in the gutter in front of plaintiff’s property, causing the water to overflow and discharge into and upon his premises, to his injury. It was held that the declaration stated a cause of actionable negligence, and it was said, “A city has no more right to invade or cause the invasion of private property than an individual. ” See the cases there cited. We do not mean to hold that plaintiff could recover damages occasioned from water flowing from his own premises.

The judgment below must be reversed, and a new trial granted.

The other, Justices concurred.


text:
    MORGAN v. SPRAGUE.
    Garnishment — Judgment—Appeal.
    There being evidence to sustain the finding of the jury that the garnishee liad property or effects in her hands, belonging to the principal defendant, sufficient to pay plaintiff’s judgment, the judgment establishing her liability was affirmed.
    Error to Calhoun; Smith, J.
    Submitted April 11, 1900.
    Decided May 15, 1900.
    Garnishment proceedings by Frank B. Morgan against Maria Sprague, as garnishee of Ffliott Sprague. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Williams & Lockton, for appellant.

      Hatch & North, for appellee.
   Long, J.

Plaintiff: recovered judgment in the Calhoun circuit court against Elliott Sprague, husband of Maria Sprague, on December 13, 1897, for $263.92. The judgment not being paid, he sued out a writ of garnishment against Maria Sprague. On service of the writ she filed a disclosure denying-all liability. Plaintiff then filed and served upon her written interrogatories. To these interrogatories Mrs. Sprague filed answers. The plaintiff then served notice of the framing of statutory issues in garnishment, and the cause was tried upon those issues, resulting in verdict and judgment for plaintiff for $263.92, being the amount of the judgment against the principal defendant. Defendant brings error.

The plaintiff on the trial introduced testimony tending to show that for several years, and up to 1890, Elliott Sprague had been the owner of the undivided*two-thirds interest in a farm worth from $9,000 to $10,000. Before 1890 it appears that he bought a herd of cattle of one George Perry, agreeing to pay $3,000 therefor. A note was given for this amount, which fell due about March 20,1890. On March 21st Sprague filed a bill against Perry, his attorney, Radford, and collecting agent, Davis, and the owner of the note, William D. Johnson, in the Calhoun circuit court, in chancery, to restrain them from taking any proceedings to collect the note. The defendants secured an order removing the case to the United States court on April 30th following. On April 1, 1890, Sprague made a deed conveying all his real estate to his wife, Maria Sprague. The deed was not recorded until June 13, 1890. There was considerable personal property on the farm, which the garnishee defendant also claims.

The plaintiff’s case was tried upon the theory that the fa.rm and personal property were conveyed to Mrs. Sprague to defraud creditors. It is not necessary to set forth the evidence given on the trial by the plaintiff. It is sufficient to say that it had a strong tendency to establish the fact that Mrs. Sprague had property and effects in her hands belonging to her husband. On the trial, the plaintiff called Mrs. Sprague as a witness. An objection was interposed on the part of the husband that the wife could not testify without the consent of the husband, and this objection was sustained. It was also contended that the husband could not testify without the consent of the wife, and in consequence of this the husband was not sworn. Both Mr. and Mrs. Sprague were present during the trial, and neither was sworn, nor did they offer any testimony in the case. The court, in its charge to the jury, stated that the disclosures made by Mrs. Sprague should be taken as true by the jury, except as overcome by the plaintiff’s evidence. The only question of fact submitted by the court to the jury was whether the garnishee defendant had property or effects in her hands belonging to her husband sufficient to pay this judgment, and the jury determined by their verdict that she had.

Under the facts shown by this record, we think the defendant has no right to complain of this verdict. Some special questions were submitted to the jury, but we think they do not affect the general verdict. We have examined' the case with care, and find no errors which call for a reversal.

The judgment must be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    COREY v. CITY OF ANN ARBOR.
    Municipal Corporations — Ice on Sidewalk — Citizen’s Negligence — Notice.
    No recovery can be had against a city for injuries due to slipping on an icy sidewalk on other than a business street, where such condition resulted from the leaking of a citizen’s hydrant, and had existed not more than three days, the defendant having no actual notice of such condition, and it not being shown that any officer of defendant had been along the street during such time, or that such condition was a matter of public talk.

    Error to Washtenaw; Kinne, J.
    Submitted April 12, 1900.
    Decided May 15, 1900.
    Case by Ratie E. Corey against the city of Ann Arbor for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff slipped upon an icy sidewalk on Williams street, in the city of Ann Arbor, in the evening of February 4, 1898, and received serious injuries. The ice was opposite the premises of one Rockwell, who had a hydrant in his yard. It is claimed that the pen-stock either leaked or was left partly open, so that the water ran from it across the lawn to the sidewalk; that it extended quite a distance down the walk, and froze. The ice was smooth, and formed no ridge. There were several inches of snow upon the ground, and the weather for several days previous had been very cold. The sidewalks were covered with snow, which was packed very hard, all over the city, and were more or less slippery. Plaintiff gave testimony tending to show that this water flowed from the hydrant on Tuesday preceding the accident, which was on Friday following. Defendant gave evidence tending to show that the water flowed from the hydrant on the night preceding the accident. Plaintiff was a dressmaker, and lived, with her parents, upon the lot adjoining Mr. Eockwell’s. She testified that she went out on Thursday evening, but had not been out of the house since Monday previous until the night she was injured. She is unable to locate the spot where she was injured, and there is some doubt, even from her own statement, whether she fell upon the ice formed by the water from the hydrant. The defendant requested the court to direct a verdict for it upon the ground that no liability was shown. The learned circuit judge stated that, if the case was “to end in his court, he might take a different course about it, but that there was a sort of lingering doubt in his mind that the Supreme Court might hold there was a liability, and he would, therefore, give the plaintiff the benefit of the doubt.” Plaintiff recovered verdict and judgment.

      O. E. ■Butterfield (John E. Lawrence, of counsel), for appellant.

      Lehman Bros. & Stivers, for appellee.

       As to the liability of municipal corporations for ice on sidewalks, see note to Hausmann v. Madison, (Wis.) 21 L. R. A. 263.

   Grant, J.

(after stating the facts). It is conceded that the sidewalk itself was properly constructed, and was in a safe condition for public travel. It was only made unsafe by the ice caused by the water flowing from a private hydrant. Counsel for defendant contend that the statute does not cover this case. Counsel for the plaintiff contend that, since the icy condition was not caused by the elements, the city is liable for the condition. It is unnecessary to determine this question, since there is another fatal objection tó the plaintiff’s right to recover.

It is conceded that the defendant city had no actual notice. Under plaintiff’s own evidence, the ice had been there but three days before the accident. It is not shown that any officer of the city, charged with the duty to see that the sidewalks were kept in safe condition for public travel, had been along this street during that time, or that its condition was a matter of public talk. Nothing had occurred to call the attention of an officer there any more than to any other part of the city. The city officials had the right to assume that no citizen would be guilty of so careless an act as to leave his hydrant open, and let the water flow over the sidewalk. Neither the plaintiff herself, nor any member of her household, though they lived within a few feet, appears to have known anything about its condition. If neither she nor they knew anything about it, why should the officers of the city be presumed to have known it from the fact of its existence for three days ? There had been a snow the night before, and covered it up. The city might lawfully assume that this sidewalk would remain in good condition, and that no private citizen would do any act to render it unsafe. The city was under no legal obligation to eihploy men to patrol the streets to see that such things were not done, or to remedy them when done. The record utterly fails to show a condition of affairs so notorious that a jury might infer notice to the corporation. There are many miles of sidewalk in the city of Ann Arbor. In support of their contention that the city should have known it, counsel for plaintiff say, “The place of the accident was but a few blocks from the business portion of the city.” What do they mean by “a few blocks,”- — -three, four, or five? For all that appears upon this record, it might have been a half mile from the principal business streets of the city. But this cannot make any difference. It was off the business streets, and there was no occasion for any officer of the .city to go there until in some manner notified of the condition. Moon v. City of Ionia, 81 Mich. 635, 642 (46 N. W. 25), is directly in point, and controls this case. The defendant in that case claimed that the walk was repaired August 15th. Plaintiff was injured on the 18th. It was held that, if this was so, actual notice of the defect was necessary. See, also, Smith v. City of Brooklyn, 36 Hun, 224.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    REAUME v. NEWCOMB.
    Master and Servant — Scope of Authority — Liability for Negligence.
    Defendants, dry-goods merchants, employed boys to drive their delivery wagons; the horses and wagons being in the care of the owner óf a boarding stable. The employment of the boys * lasted only from the time they received their horses and wagons at the stable until they delivered them back again into the possession of the stable keeper. One of the boys, after he had made his delivery, rode one of the horses, at the instance of the stable keeper, for the purpose of exercising him, and, while so riding the horse, collided with plaintiff on his bicycle. Held, that, as the boy was not in the employ of defendants at the time of the accident, and as what he did was, in any event, entirely outside the scope of his authority, defendants were not liable.
    Error to Wayne; Carpenter, J.
    Submitted April 13, 1900.
    Decided May 15, 1900.
    Case by Frank C. Reaume against Cyrenius A. New-comb and others, copartners as Newcomb, Endicott & Co., for personal injuries. From a judgment for plaintiff, defendants bring error.
    Reversed.
    The defendants are dry-goods merchants, forming a copartnership under the firm name of Newcomb, Endicott & Co. They employ in their business eight delivery wagons, each drawn by a single horse. The drivers are boys, each boy having his own wagon and particular horse. The horses were' stabled by one Charles Pierce, who kept a public boarding and sale stable, situated upon the alley between Sproat and Bagg streets, and on the, west side of the street. Pierce had stabled these horses for about five years. By the contract, he had the entire charge and control of the horses, — stabled and took care of them for $18 per month for each horse. Any serious illness Pierce would report to defendants, but one Cooper, who was superintendent of deliveries, was expected to look after ordinary ailments. Cooper’s business was to direct the boys at the barn about starting; see that they leave on time and get down in time to make the deliveries; to arrange about the horses going to the blacksmith shop, — keep track of that; and to attend to all the details of the wagons, in connection with the horses, that are not of sufficient importance to report to the 6ffi.ce. He has general supervision of the boys. The boys had nothing to do with the care of the horses, except when they were driving them. There were three deliveries a day, — one at 9 o’clock, one at 11, and another at 3. The boys 'went to the stable for their wagons so as to have them at the store at 9 o’clock. The horses Were harnessed and ready for use. On their return at noon or at night the boys drove into the alley in front of the stable, cried out, “Horse,” and left. From that time the horses were entirely in the control of Pierce until they were harnessed and delivered to the boys again in the afternoon or morning. The boys usually had the horses back to the stable from a quarter to half past 12. They were employed for the sole purpose of driving these wagons through the streets in delivering goods. After they returned the horses to the stable, and until they returned for them for the next delivery, their time was their own, and they were accustomed then to do work for other parties. Sometimes they went home, and sometimes they had their dinner at the barn.
    Among these boys was one námed Westcott, who was accustomed to take care of another man’s horse and buggy when not employed by defendants as above stateid. Among the horses owned by the defendants. was one named “Chub,” about 20 years old. A day or two previous to the accident, Pierce, thinking the horse was not well, gave him a “ball,” which means a physic. On May 3d, at noon, after Westcott had delivered his horse and wagon at the stable, Pierce thought it best, that the horse Chub should be given some exercise. He asked one of the boys, named Dee, to ride him. Dee declined, saying that he could not ride. Westcott offered to ride him, to which Pierce replied, “All right.” Westcott mounted the horse, rode him down the alley, finally getting him into a canter, and rode out of the alley bn Bagg street, and passed a building known as the “Alhambra Flats.” The alley is 15 feet 3 inches wide. From the Alhambra Flats to the curb line of Bagg street is 17 feet 10£ inches. The horse shied at a puddle of water alongside the Alhambra Flats, and started ahead. At the same time plaintiff was riding west on a bicycle, on the north side of Bagg street, and about 5 feet from the curb. The horse and bicycle collided, resulting in serious injury to the plaintiff. He brought-suit against the defendants on the ground that the boy, Westcott, was negligent in riding the horse, that he was an employé of defendants, and that for his negligence they were liable. He recovered a verdict and judgment.
    Bowen, Douglas & Whiting (Harrison Geer, of counsel), for appellants.

      G. H. Freeman (G: D. Joslyn, of counsel), for appellee.
   Grant, J.

(after stating the facts). The court should have directed a verdict for the defendants. Westcott was not in the employ of the defendants at the time of the accident, and what he did was entirely outside the scope of his authority. His employment lasted only from the time that he received his horse and wagon at the stable until he had delivered him back again at the stable into the possession, control, and care of Mr. Pierce, the stable keeper. The horse which was ridden was not the one he drove. Pierce alone was responsible for the boy’s act in riding the horse. Defendants did not authorize or permit him to employ the drivers for any such purpose. Hundrecls and thousands of men are employed to work a portion of the day for one employer, and are at liberty to work the balance of the time for others or for themselves. If this boy had been permitted by Pierce to take the horse and wagon on business for himself or for Pierce outside of the delivery hours, defendants would not be liable for any negligence of the boy, because it would be without the scope of the authority of either Pierce or Westcott. That the act to be done by the boy might possibly result, or was intended to result, in benefit to defendants, is not the test of authority. The act must be within the scope of his employment, in order to render his employer liable. The rule as stated by text writers is as follows:

“The act causing the injury must have been one within the scope of the authority which the servant had from the master, or which the master gave the servant reasonable cause to believe that he had, or which servants employed in the same capacity usually have, or which third persons have a right to infer from the nature and circumstances of the employment.” 1 Shear. & R. Neg. (4th Ed.) § 148.

Complaint is made that counsel for the plaintiff, in their argument to the jury, used language not justified by the record, and prejudicial to the rights of the defendants. If the case were not reversed upon the principal question in the case, we should be compelled to consider these remarks. We think they were unjustifiable. But, inasmuch as they are not liable to occur upon a new trial, should one be had, we refrain from their discussion.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    GRENELL v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Accident at Crossing — Infants—Contributory Negligence — Evidence—Question for Jury.
    Plaintiff, a boy 13 years old, while driving across defendant’s track, was struck by a freight train, which, according to his testimony, was following so close behind a regular passenger train that the noise of the latter interfered with his ability to hear the former. His witnesses testified that the freight train gave no signals for the crossing. The testimony further tended to show that he stopped his horses at the top of a hill, from which the road sloped through a cut to the track, and that he started down the hill as soon as the passenger train had passed, and, when he saw his peril, did all that he could to hold back the team. Held, that the evidence did not show contributory negligence as a matter of. law.
    2. Same — Statutory Signals — Conflicting 'Testimony.
    In an action for personal injuries received at a railroad crossing, the testimony of witnesses who swear, not merely that they did not hear the statutory signals, but positively that 'none were given, when contradicted by the equally positive testimony of the trainmen that the whistle was blown for the crossing, raises a question proper to be left to the jury.
    3. Same — Time of Accident.
    Although the testimony of a train crew as to the time of an accident is the only direct testimony upon that subject, and if true, when taken in connection with the train-sheets showing the movements of trains, renders it impossible that two trains were running in immediate proximity, as claimed by plaintiff, it is not necessarily conclusive, where other witnesses who saw the trains testify in support of plaintiff’s theory.
    4. Same — Witnesses—Reason for Recollection.
    Where a witness testified that a train did not whistle for a crossing, it was competent, for the purpose of showing his reason for recollecting it, to show that the fact was a subject of conversation at the time.
    5. Personal Injuries — Infant Plaintiff — Contributory Negligence — Instructions.
    An instruction, in an action by a 13-year-old boy for personal injuries, to the effect that plaintiff was required to exercise only the care and prudence of the average person of his age, is not open to objection on the ground that the declaration contains no averment that plaintiff was not bound to exercise the same degree of caution as an adult.
    6. Railroads — Accident at Crossing — Proximity op Trains— Instructions.
    Where plaintiff was injured at a dangerous crossing by a train closely following another, and the issue was whether defendant kept its trains a sufficient distance apart, an instruction that, if extra danger existed, the defendant, as well as the plaintiff, was bound to use extra precaution, and if the defendant ran its trains so close together when they crossed the highway that the noise of the first would drown the sound of the whistle on the second, and thus render unavailing the statutory warning, this would make it the duty of defendant to approach the crossing with its rear train with a greater degree of care than if there were nothing to prevent the signal from being heard, was not objectionable
    Error to Cass; Smith, J.
    Submitted April 13, 1900.
    Decided May 15, 1900.

    Case by Leon Grenell, an infant, by Frank Grenell, his next friend, against the Michigan Central Railroad Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, a boy 13 years of age, while driving a load of wood, drawn by two horses, across the defendant’s track, was struck by the engine of an extra freight train, and seriously injured. The land on both sides of the track is considerably higher than the track. The highway approaches the track from each side through a cut. The grades are quite steep. The accident occurred December 31st. The ground was hard and frozen. When at the top of the hill, plaintiff was 12 rods from the crossing. The employes of the railroad company testified that the crossing was a very dangerous one. A regular passenger train was about due. The plaintiff’s father was cutting wood near by, 'and after he completed the load he instructed the boy to drive it to the house. The father told him that it was about time for the passenger train, and to look out for it when he got to the top of the hill, and, if he heard it whistle, to stop until it went by. The boy stopped at the top of the hill until it went by. He then started to drive down the hill, and was struck just as he got upon the track. Another freight train was following this one. Several witnesses testified to seeing the passenger train go by, and that the first freight train came along from 2 to 4 minutes afterwards. Plaintiff’s testimony showed that the train ran about half a mile after the whistle for “down brakes.” The negligence charged is the failure to give the statutory signals, and the failure to keep the trains a sufficient distance from, each other so that the sight and sound of one would not mislead the plaintiff and put him off his guard. Defendant claims that the passenger train had passed this point 21 minutes before the accident, and was then 12 miles distant from the crossing ; that the signals were given; and that plaintiff was guilty of contributory negligence.

      Hulbert & Mechem {Henry Bussell of counsel), for appellant.

      M. L. Hoiuell, for appellee.
   Grant, J.

(after stating the facts). We think the question of contributory negligence belonged to the jury. The boy was so injured that he remembered but little of what occurred. There was evidence that he was seen doing his best to hold the team back, that it was very difficult to stop a team going down the hill, and that it could only be done by running into the bank. The boy had stopped at the top of the hill. It is a very unusual occurrence, and contrary to the rules of the company, for one train to follow another so closely as plaintiff’s testimony shows was done in this case. The rules of the company require that trains going in the same direction shall keep 10 minutes apart. The noise of the passenger train might interfere with the ability to hear the freight train.

The testimony on the part of the plaintiff as to the statutory signals was not of a mere negative character. It was not the testimony of those who said that they were paying no attention and did not hear. On the contrary, their testimony is positive that the whistle was not blown. The testimony on the part of the trainmen was positive that it was blown. The question was therefore properly left to the jury.

Counsel insist that the accident occurred at 2:53 p. m., and that the passenger train was then at Daily, 12 miles from the place of the accident. It was conceded upon the trial that the passenger train reached Cassopolis at 2:44. The train-sheet shows, and the train dispatcher testified, that it was at Daily, 4.3 miles west of Cassopolis, at 2:54. Some of the freight trainmen testify positively that the time of the accident was 2:53. If these witnesses were uncontradicted, the plaintiff’s case would fail, because the passenger train would then have been out of sight and hearing before plaintiff approached the crossing, or had reached the top of the hill. While the witnesses for plaintiff do not testify as to the exact time, they do positively testify that they saw the passenger train pass, and the freight train approach within 3 or 4 minutes after-wards. To hold with the defendant upon this point, we should be compelled to ignore the testimony of plaintiff’s witnesses as to the immediate proximity of the two trains, and as to seeing three trains. tJnder this conflict of evidence, this question was properly submitted to the jury.

One of the witnesses for the plaintiff, who had testified that the freight train did not whistle for the crossing, was permitted to state that he and his brother conversed about it at the time. The conversation was not given. The purpose of it was to show that the witness’ attention Was called to the fact at the time. We think this was competent, within Cole v. Railway Co., 105 Mich. 549 (63 N. W. 647), and authorities there cited.

Error is assigned upon the refusal of the court to instruct the jury, “The plaintiff is, on his own showing, to be charged by, with, and under the same rule of contributory negligence as an adult would be.” This was part of a request; the other part being, in substance, that the declaration is based upon the theory that he is chargeable with the same degree of care as an adult would have been, and that his proofs proceed upon the same theory. Plaintiff was not required, in his declaration, to assert that he was not bound to exercise the same degree of caution as an adult. The declaration sets forth his age, and that he was in the exercise of due care and caution. The proofs as to his age, experience, and manner of driving, and his conduct, were all placed before the jury. The proofs would not have been different, no matter what his age. The declaration and proofs were. sufficient to justify the court in instructing the jury that the degree of care and caution he was required to observe was such as an ordinary boy of similar age, intelligence, and experience would exercise under the same circumstances. Practically, counsel demurred to the declaration and the proofs as insufficient to justify an instruction that plaintiff was only bound to exercise the care and prudence of the average person of his age. The question whether a railroad company is entitled to the exercise, on the part of all travelers upon the highway, of the care and prudence of the average adult, is net before us.

Error is assigned upon the refusal of the court to charge, ‘ ‘ In this case the railroad company was not negligent in the speed of its train; for trains are not limited in the rate of speed they may run in the country and across the public highways, where the travel is limited.” The request states a correct proposition of law, as we have repeatedly held, but it was not applicable to the facts of this case. The court instructed the jury that, if extra danger existed, the defendant, as well as the plaintiff, was bound to use extra precaution. There are single sentences in the instruction given which, taken alone, may be erroneous, but, read in connection with the entire charge, they mean that, the greater the speed, the greater should be the care in giving warning when approaching a crossing ; that its speed should not be so great as to render unavailing the warning of its whistle when given. The «.court then added:

“Ordinarily the giving of the statutory signals is sufficient to protect travelers upon the highway who desire to ■cross the railroad track; but if obstructions intervene between the train and the public highway where it crosses the track, which obstruct the view, and which would be liable to cut off the sound of the whistle or bell from those ■about to cross the track, such circumstances would impose an increased duty upon the railroad company to exercise ■additional caution in approaching the crossing. And if the company runs its trains so close together, as they cross the highway, that the noise of the first train will ■drown the sound of the whistle and bell on the second train, and thus render unavailing the statutory warning, this would likewise make it the duty of the company to approach the crossing with its rear train with a greater degree of care than though there was nothing to prevent the signals from being heard. ”

We see no error in these instructions, applied to the facts of this case.

Judgment affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    FRENCH v. NEWBERRY.
    1. Fraudulent Conveyances —Right, to Complain — Instructions.
    Where a creditor levies on property of his debtor, which the evidence shows was in reality purchased and used by the debtor, although the receipt was made out in the name of his brother, and the brother seeks to replevy the goods, an instruction in the replevin suit that the creditor must have had knowledge of his debtor’s ownership of the property, and extended credit to him on the strength of it, before he can complain of the transfer, is erroneous.
    2. Same — Remedy—Sale of Chattels — Title—Parol Evidence to Contradict Writing.
    Although real estate purchased by a debtor in the name of a third person is not subject to levy on execution, and can only be reached by a creditor’s bill, a purchase of specific chattels, the receipted bill for which is rendered to a third person, rests on a different basis, and a levy in the latter case may be sustained on parol proof that the debtor paid the consideration and actually owns the goods.
    .Error to Wayne; Donovan, J.
    Submitted April 13, 1900.
    Decided May 15, 1900.
    Replevin by Cassius M. French against Edward H. Newberry. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Frank T. Lodge, for appellant.

      T. E. Tarsney, D. B. Hayes, B. I. Lawson, and W. G. Fitzpatrick, for appellee.
   Montgomery, C. J.

Defendant, a constable, under an execution upon a judgment in favor of Frank T. Lodge against Lester B. French, levied upon some horses, harness, and a phaeton, as the property of French.- At the time of the levy, the property was in possession of Manchester, a livery-stable keeper, who pointed out to the constable the property levied upon as Mr. French’s property. After the levy, defendant left it with Manchester, taking a receipt therefor in the usual form, and was proceeding to advertise and sell when plaintiff, a brother of Lester B. French, began the present suit in replevin.

The testimony tended to show that the property was purchased by Lester B. French, the consideration paid by him, and a receipted bill rendered in the name of Cassius M. French, and an order given'to Mr. Manchester, in whose possession the property was, to deliver the same to Cassius M. French. The evidence also showed that Lester B. French used the property most of the time. The theory of the defendant was that Lester B. French made the purchase ostensibly in the name of plaintiff, but with the purpose of circumventing his (Lester’s) creditors; that, as a matter of fact, the property was really his from the first.

The circuit judge charged the jury, on plaintiff’s request, as follows:

“It is left to the jury to say if there is any evidence in the case to show that Mr. Lodge extended ci’edit to Lester B. French on the strength of this property, or to show that he knew of this property at the time this claim arose; and if he did not, and did not rely upon it, he could not complain of the transfer of the property.”

This was error. 2 Bigelow, Fraud, 327.

It is contended on the part of the plaintiff that this error was without prejudice, for the reason that, where the title to the property was never in the debtor, it is not subject to levy on execution, but the creditor must seek his remedy by creditor’s bill. This is the rule as to real estate established in this State. Maynard v. Hoskins, 9 Mich. 485. In many of the States, however, the creditor may reach real estate so transferred by direct levy. 14 Am. & Eng. Enc. Law (2d Ed.), 313; Bump, Fraud. Conv. §§ 217, 531. But in Maine, where it is held that the creditor can only reach real estate purchased by the debtor in the name of another by resort to a creditor’s bill (Davis v. Tibbetts, 39 Me. 279), it is held that personal property purchased by the debtor under a bill of sale running to a third person may be seized on execution, on the ground that g, bill of sale is not essential to the transfer of the property, and may be controlled by testimony. Godding v. Brackett, 34 Me. 27. In the present case the written memorandum was nothing more than a receipt. • We think it was competent to show that the purchase was really made by Lester B. French.

Counsel cite Kinter v. Pickard, 67 Mich. 125 (34 N. W. 535). In that case the goods in question were bought in part on the credit of the plaintiff. It was sought to maintain a levy on the ground that the debtor had furnished funds to the plaintiff, with which plaintiff had started in business. The attempt was not to seize the identical goods fraudulently purchased. The case does not sustain the plaintiff’s contention.

The judgment will be reversed, with costs, and a new trial ordered.

The other Justices concurred.


text:
    KOSTER v. GELLEN.
    1. Wills — Devise to Wipe — Election—Waiver op Dower.
    Under 3 Comp. Laws 1897, § 8936, providing that, when a widow shall he entitled to elect whether to take under the will or be endowed of the lands of her husband, she shall be deemed to have elected to take under the will, unless, within one year after the husband’s death, she shall commence proceedings for the assignment or recovery of her dower, a widow, by failing to commence such proceedings within one year after her husband’s death, and by petitioning the probate court to proceed under the will, and allow her a reasonable sum instead of her dower, in accordance with the terms of the will, waives her right to dower.

      2. Same — Homestead—Estoppel To Claim.
    Where a widow, without children, elects to take under the will, which provides for a sale of the real estate, and a payment to her- in cash in lieu of dower, and petitions the court to pro*ceed under the will, which is done, she is not estopped from setting up the lxomestea'd interest granted by Const, art. 16, § 4, providing that, if the owner of a homestead die, leaving a widow, but no children, the same shall be exempt, and the rents and profits thereof shall accrue to her benefit during widowhood, unless she be the owner of a homestead in her own right.
    3. Homestead — Solvency of Estate — Rights of Widow.
    Under the constitutional provision cited, the homestead right attaches, irrespective of whether the estate is solvent or otherwise.
    Case made from Kent; Adsit-, J.
    Submitted April 13, 1900.
    Decided May 15, 1900.
    Ejectment by Anna Koster against Catherine Gellen. There was a judgment for defendant, and plaintiff assigns error.
    Affirmed.

      Smeclley & Corwin, for appellant.

      Stuart & Barker, for appellee.
   Long, J.

This is an action of ejectment. The premises in controversy belonged to John Gellen in his lifetime, and were occupied as a homestead by him and his wife, the defendant. He died in October, 1895, leaving a last will and testament, which was duly probated. By the will Peter Braun was appointed executor of the estate. The will directed that the executor should sell and dispose of all the real estate of the deceased, and that the executor should pay out of the estate all the debts of the deceased, and should also pay the widow of the deceased such sum or amount as might be agreed upon between the executor and the widow in lieu of her dower interest, ‘ ‘ and, in case of disagreement, such sum or amount as the court may direct.” It appears that the executor and the widow could not agree upon the amount the widow should receive in lieu of her dower interest, and thereupon the executor filed a petition in the probate court, asking the court to fix the amount he should pay said widow in lieu of her dower right, according to the terms of said will. At the same time the widow petitioned the probate court for the same purpose. The prayer of her petition reads as follows:

“Your petitioner therefore asks the court to proceed under the provisions of the will above cited, and allow your petitioner a reasonable sum out of said estate, instead of her dower interest, but to be in lieu thereof.”

The probate court heard both petitions as one, and made a decree which provides:

“That said Catherine Gellen be allowed the sum of one hundred and ninety-six and forty-three hundredths dollars in lieu of her dower interest in the real estate of said deceased, and that the executor pay the same to her accordingly.” '

The executor tendered her the amount fixed by the decree, which she refused to accept, claiming that it was not enough for her dower interest. No appeal, however, was taken from this decree. The executor, after advertising according to law, sold the premises in controversy here at public sale by virtue of the power given him by the will, and the plaintiff became the purchaser thereof, and received the executor’s deed therefor. Written demand was served by the plaintiff upon defendant for possession of the premises before suit was commenced. The defendant has occupied the premises ever since the death of her husband as her homestead, and still occupies and claims them as such, and avers that she has no other homestead. December 14, 1896, plaintiff commenced proceedings against defendant before a circuit court commissioner, under 3 Comp. Laws 1897, § 11164 et seq., for the purpose of obtaining possession of these premises and other lands. The defendant, in her plea before the-commissioner, claimed the premises as her homestead. The commissioner decided that the plaintiff was entitled to that part of the premises not occupied by defendant as a homestead, but was not entitled to a judgment for that part which was occupied by defendant as her homestead. No appeal was taken by either party from this judgment. The widow took no proceedings for the assignment or recovery of her dower, as provided by 3 Comp. Laws 1897, §§ 8935, 8936. On these facts the court below found, as a conclusion of law, that the defendant was entitled to the premises as and for a homestead so long as she remained the widow of John Gellen. Plaintiff assigns error.

It is now contended by counsel for plaintiff:

1. That the defendant, by failing to commence proceedings for the assignment or recovery of her dower within one year after the death of her husband, as provided by statute, and by petitioning the probate court to proceed under the provisions of the will, and allow her a reasonable sum out of the estate, instead of her dower interest, in lieu thereof, has waived her right to dower under the statute, and has elected to take under the will. In this, we think, counsel for plaintiff are correct. In re Smith’s Estate, 60 Mich. 142 (27 N. W. 80); In re Bloss’ Estate, 114 Mich. 204 (72 N. W. 148). The statute provides:

‘ ‘ If any lands be devised to a woman, or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised or the provision so made, or whether she will be endowed of the lands of her husband; but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.” 3 Comp. Laws 1897, § 8935.

“When a widow shall be entitled to an election under either of' the two last preceding sections, she shall be deemed to have elected to take such jointure, devise, or other provision, unless, within one year after the death of her husband, she shall commence proceedings for the assignment or recovery of her dower.” Id. § 8936.

2. It is contended that, the estate being solvent, no homestead right attached in favor of the widow in this piece of land. The .argument of counsel is that the widow has elected to take under the will, and the will provides for a sale of the premises, and a payment to her in cash in lieu of her dower; that the executor has proceeded under the power of sale contained in the will, and sold the premises, and the purchaser is seeking to obtain possession of the property in an action of ejectment under the executor’s deed; that the estate was solvent, and all the debts paid before the executor sold the land; that the executor did not sell the land in order to pay debts, but sold it in pursuance of the provisions of the will, which directed him to sell and dispose of all the real estate of said deceased; that defendant now seeks to hold possession of the house and lot in.question as a homestead. It is the contention that, under such circumstances, no homestead right attaches in favor of the widow in'the piece of land. Counsel cite in support of this contention: Zoellner v. Zoellner, 53 Mich. 624 (19 N. W. 556); Patterson v. Patterson, 49 Mich. 176 (13 N. W. 504); Robinson v. Baker, 47 Mich. 619 (11 N. W. 410).

The constitutional provisions relative to homestead rights (article 16, §§ 2-4) are as follows:

“Sec. 2. Every homestead of not exceeding forty acres of land, and the dwelling-house thereon, and the appurtenances, to be selected by the owner thereof, and not included in any town plat, city, or village, or instead thereof, at the option of the owner, any lot in any city, village, or recorded town plat, or such parts of lots as shall be equal thereto, and the dwelling-house thereon, and its appurtenances, owned and occupied by any resident of the State, not exceeding in value fifteen hunched dollars, shall be exempt from forced sale on execution, or any other final process from a court, for any debt contracted after the adoption of this Constitution. Such exemption shall not extend to any mortgage thereon lawfully obtained; but sfich mortgage or other alienation of such land, by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.

“Sec. 3. The homestead of a family, after the death of the owner thereof, shall be exempt from the payment of his debts contracted after the adoption of this Constitution, in all cases, during the minority of his children.

“Sec. 4. If the owner of a homestead die, leaving a widow, but no children, the same shall be exempt, and the rents and profits thereof shall accrue to her benefit during the time of her widowhood, unless she be the owner' of a homestead in her own right.”

In each of the above cases cited by counsel for plaintiff there were children having interests in the. property in. controversy. In Robinson v. Baker, supra, a bill was filed for partition by one who had purchased the interest of one of -the children. The deceased owner of the land left a widow and three children surviving him. The land in question consisted of a quarter section and two village lots. One of the village lots was occupied by the deceased as a homestead prior to his death, and the widow continued to occupy it as a homestead. It was held that the statutes and constitutional provisions did not preclude proceedings for partition as between the heirs at law or their assigns; that in making such partition, where there is a homestead and also other lands, if there is a widow with a right of dower, she should have her dower and homestead right saved to her in the homestead land whenever it can be done consistently with justice. In Patterson v. Patterson, supra, it appeared that Patterson died, leaving surviving him two adult children and three infant children, besides his widow, who was the mother of two of the infant children. The widow was occupying the dwelling-house upon the farm, and claimed a homestead in the dwelling-house and 40 acres of land, of which she was in possession with her children. It appeared that one of the adult children'had harvested and carried off the crop from this land claimed as a homestead. The widow sued in trespass. It was held that the constitutional provisions which protect homestead rights ia Michigan are strictly exemptions, and give the right only as against the creditors, and that the statutes have not enlarged it. It was also held that adult heirs residing away from home cannot disturb an existing possession in the widow while the estate is in process of settlement; that the heirs can claim no distinct part until partition actually made. In Zoellner v. Zoellner, supra, the bill was filed by the two minor children for pai’tition. It was said:

'‘ The case presents some novel questions. Unless there are creditors at the time the owner of a homestead dies, and the estate, aside from such homestead, is insolvent, no homestead right attaches in favor of the widow or children, and the premises pass at once to the heirsj subject to the widow’s right of dower. Here the widow claims a homestead. She is the only creditor. Were it not for her claim as a creditor of the estate, it would descend immediately to the heirs of the deceased.”

It will be seen that none of these cases comes within the provisions of section 4, art. 16, of the Constitution, above quoted. In that section provision is made for the widow when no children are left surviving the deceased. Our statutes in case of intestacy have also made better provision for the widow in such cases than where children are left surviving. In case no children are living at the death of the intestate, then of the lands the widow takes one-half in fee in lieu of dower.

As we have seen, the widow has elected to take under the will, and therefore the question of her dower interest is disposed of; but she also had a homestead interest in this property, which is described as the N. £ of the E. $ of lots 5 and 7, Jefferson street, Scribner’s addition to the city of Grand Rapids, being 66 feet wide and 66 feet deep, with the dwelling-house thereon. The widow had a dower interest in these premises as above described. She also had a homestead interest in them, which was in no manner affected by the disposition made of her dower interest. Under section 4, art. 16, of the Constitution, she is entitled to this homestead interest so long as she remains the widow of the testator, as it appears that she has no other homestead. The petition for the sale of the dower interest cannot estop her from setting up a claim to the homestead interest. In Showers v. Robinson, 43 Mich. 502 (5 N. W. 988), it was held that a widow is not estopped frpm claiming a homestead in land by the fact that she desired its sale for the payment of debts, and requested a party to buy the land, and received from the proceeds the amount of a claim allowed in her favor; that it must be presumed that the sale the widow desired was a sale subject to the homestead. We think, in the present case, neither the widow, nor any one else connected with the property, expected her homestead interest was to be sold; nor is it claimed that it was sold, but the claim is that, under the circumstances, she is estopped from setting it up. We think not. The property was valued at $1,400, and it was sold by the executor for $975; yet all the widow received from it was $196.43. Under the statute she was entitled to one-half of it in fee, aside from her homestead interest in the whole.

The court found from these facts that the plaintiff was not entitled to recover. The other questions need not be considered. The judgment must be affirmed.

The other Justices concurred.


text:
    CASSERLY v. WAYNE CIRCUIT JUDGE.
    1. Mechanics’ Liens — Proceedings to Enforce — When Begun.
    3 Comp. Laws 1897, §§ 10718, 10719, provide that a mechanic’s lien shall continue for one year after the statement of lien is filed, and no longer, unless proceedings are begun to enforce the same, and require that the proceedings shall be by bill and notice of Us pendens, and that all persons having rights in the property, or holding like liens so filed, or having filed notice of intention to claim a lien, shall be made parties. Held, that proceedings were begun, within such statute, when the bill was filed, and the fact that the principal contractor was not made a party until after the year had expired could not affect the rights of complainant.
    2. Same — Amendment op Bill — Introduction of New Depend-ant.
    Where, in proceedings to enforce a mechanic’s lien, the contractor is introduced as a party by amendment to the bill made after the statutory time for bringing suit has expired, he alone can raise the question that there was error in permitting the amendment.
    3. Equity Pleading — Amendment of Bill — Right to File New Answer.
    A purely formal amendment to a bill adding a new party defendant after an answer has been put in, and in no way-changing or affecting the rights of the answering defendant, does not authorize the latter to file an answer to the amended bill; his original answer having covered the particular defenses to the original bill.

      Mandamus by Patrick Casserly to compel Byron S. Waite, circuit judge of Wayne county, to vacate an order striking an amended answer from the files.
    Submitted April 24, 1900.
    Writ denied May 15, 1900.

      Bacon & Yerkes, for relator.

      Russel & Campbell, for respondent.
   Long, J.

Relator applies for a writ of mandamus to compel respondent to vacate an order striking the answer of the relator from the files in a cause pending in the Wayne circuit court, in chancery, wherein the Union Trust Company is complainant and the relator and others are defendants. The respondent has made return to an order to show cause.

It appears that the bill of complaint in the cause in which the order complained of was entered was filed September 3, 1897, for the purpose of foreclosing a mechanic’s lien upon property owned by relator. Relator and the other defendants answered the bill, and on November 4, 1898, the cause was heard upon pleadings and proofs taken in open court. Several objections to the proceedings were made at and during the hearing, and, among others, that the principal contractor was a necessary party to the suit, and, as he had not been made a party, the bill should be dismissed. At the close of the testimony, the court (Frazer, J.) said:

“I think the principal contractor in the case should have been made a party defendant. If the complainant desires to be heard on this question, I will hear him. If not, a decree may be entered dismissing the bill of complaint. I think all other objections to the bill are not tenable.”

Application was thereupon made to amend the bill, and due notice thereof given. An order was made permitting said amendment, and the amendment was made, making the principal contractor a party. Subpoena was served xipon him, and the bill was taken as confessed against him for want of answer. After the bill had been taken as confessed by the principal contractor, and on January 24, 1900, the relator herein, the owner of the property, filed an entire new answer to the amended bill, which answer contained all the statements of the original answer, and in addition thereto introduced some new matters of defense, and on January 27th filed a further amendment to paragraphs 11 and 12 of the said answer, wherein additional new matter of defense was set up. On January 30th complainant made a motion to strike the amended answer and the amendment thereto from the files. The motion was granted, and the relator now asks that the order be set aside.

It appears that the original answer .and the amendment thereto, filed by relator before the case was heard, alleged the following matters in defense to the suit:

1. That the times when the first of the lumber and materials were furnished and when the last of the lumber and materials were furnished are not correctly stated.

2. That the lumber was never accepted, and that it was not used in the building.

3. That there was nothing due to the complainant for lumber and materials furnished for the construction of the building upon relator’s property.

It also appears that, in addition to the defenses set up in the answer, relator at the hearing made the following objections to the proceedings:

(а) That the bill was not properly sworn to and signed.

(б) That the lumber did not go into the building.

(c) That relator was not the owner of the property at the time the contract was made.

(d) That the account of the Union Trust Company, receiver, with the principal contractor, was so mingled that the amount due for lumber and materials for this particular building could not be determined.

(e) That the principal contractor was a necessary party.

(/) That the statement of the claim for lien was not in accordance with the statute.

That these objections were made and considered by the •court appears from the written opinion of Judge Frazer, .attached to the return now before us. All these objections were finally determined by the court at that time. It was there said, “I think all the other objections to the hill are not tenable.” This had reference to the objections above set forth.

An examination of the new answer and the amendment thereto discloses the following defenses:

1. That the statement in the bill of complaint as to the time when the first of the lumber was furnished and when the last was furnished is not correct.

2. That the lumber was not accepted, and that there is nothing due.

3. That no correct statement of the claim was ever served upon relator, or filed with the register of deeds.

It is seen that these are the identical defenses disclosed by the original answer, and were all disposed of by Judge Frazer in his opinion set forth above.

The new answer and the amendment allege the following new matters of defense:

1. That the suit is barred by the statute of limitations.

2. That the complainant had no right to amend its bill by making the principal contractor a party.

3. That relator has paid the principal contractor in full, and that therefore there can be no lien.

4. That the mechanic’s lien law is unconstitutional.

It is the claim of relator that the order of the court striking the amended answer and the amendment thereto from the files has prevented the, relator from availing himself of the defense that the said complainant is barred from proceeding under its amended bill of complaint because of not having made the original contractor a party defendant within the time required by the statute for enforcing mechanics’ liens; that this defense could not be interposed by relator until after complainant had filed its amended bill.

It appears, as we have seen, that, when the matter was on argument before Judge Frazer, the objection was made by relator that the contractor was not made a party to the bill. The court thereupon permitted the complainant to amend its bill by making him a party. The statute provides (3 Comp. Laws 189?, § 10718) that:

“The several liens herein provided for shall continue for one year after such statement or account is filed in the office of the register of deeds, and no longer, unless proceedings are begun to enforce the same as hereinafter provided; and such liens shall take priority as follows: ifc * * )>

Section 10719 provides:

“Proceedings to enforce such lien shall be by bill in chancery, under oath, and notice of lis pendens filed for record in the office of the register of deeds shall have the effect to continue such lien pending such proceedings. And in such proceedings the complainant shall make all persons having rights in said property affected or to be affected by such liens so filed in the office of the register of deeds, and all persons holding like liens so filed, and those having filed notice of intention to claim a lien, parties to such action. * * * Intervening or cross bills shall be on oath, and all bills sworn to shall be evidence of the matters therein charged, unless denied by answer under oath.”

We think, under this statute, the fact that the principal contractor was not made a party to the bill until after the year had expired- cannot affect the rights of complainant. The proceedings must be begun within one year, and such proceedings are begun when the bill is filed. Additional necessary parties may be brought in thereafter. In Sheridan v. Cameron, 65 Mich. 680 (32 N. W. 894), the bill was filed to enforce a mechanic’s lien, and it was said, “We think the filing of a bill or petition is the beginning of the suit, and that the service of process is only a step in the cause.” Amendments of this character have generally been allowed. Rugg v. Bassett, 101 Mich. 441 (59 N. W. 645); Kerns v. Flynn, 51 Mich. 573 (17 N. W. 62). See, also, Hannah & Lay Mercantile Co. v. Mosser, 105 Mich. 18 (62 N. W. 1120).

But we think the rule is well settled that the new defendant, only, could take advantage of the fact that he was not made a party within the year, even if such a defense could be made by any one. Boisot, Mech. Liens, § 577, and cases there cited; Phil. Mech. Liens, § 431, and cases there cited. We are aware that the case of Bombeck v. Devorss, 19 Mo. App. 38, cited by counsel for relator, holds that in such case the principal contractor must be made a party within the time limited for filing the bill. We think that case is not in harmony with the general rule. In Green v. Clifford, 94 Cal. 49 (29 Pac. 331), a contractor was brought in by amendment after the statutory time to bring suit had expired. The court allowed the judgment made after this amendment to stand, and say, “The appellant [the owner of the property] could not be prejudiced by this amendment, although made after the statutory time for commencing the action.”

It is also contended by relator that, complainant having amended its bill, even by bringing in the contractor as a party defendant, relator had the right to file an answer to the amended bill setting up new defenses, or contradictory defenses to those contained in the answer to the original bill. On the other hand, it is contended by counsel for respondent that where a bill is amended, the answer having already been put in, the defendant, if he answers, should answer only as to new matters introduced by the amendment. In this we think counsel for respondent are correct. The amendment to the bill by adding a new party defendant in no way changed the cause of action as stated in the bill, and in no way affected defendant’s rights. The amendment was purely formal. It introduced no new matter into the bill, and there was therefore nothing in the amendment requiring a further answer by defendant. The case had already been heard on proofs taken in open court, and, as said by counsel for respondent, “The defendant, by his new answer, is endeavoring to try over again issues which have already been decided against him.”

Puter. Mich. Ch. (3d Ed.) 118, lays down the rule that:

“In answering an amended bill, the defendant, if he has answered the original bill, should answer only those matters which have been introduced by the amendments. In fact, the answer to an amended bill constitutes, together with the answer to the original bill, but on© record.”

The same rule is laid down in Jenn. Ch. Prac. 89. See, also, 1 Barb. Ch. Prac. 159, and 1 Daniell, Ch. Pl. & Prac. 729

In Salisbury v. Miller, 14 Mich. 160, it was said:

“It is claimed that it was irregular to proceed to a hearing after the bill was amended, without a further answer from Miller or a default. Had any new matter been introduced into the bill, he would have had a right to answer further; but, where nothing but the name of a new defendant was introduced, no such step was required, as it in no way changed the aspect of the suit as against Miller.”

See, also, Munch v. Shabel, 37 Mich. 166.

But counsel for relator cite 1 Daniell, Ch. Pl. & Prac. 409, as follows:

‘ ‘Any amendment of a bill, however trivial and unimportant, authorizes a defendant, though not required to answer, to put in an answer making an entirely new defense, and contradicting his former answer.”

It is contended by counsel for respondent that this rule laid down by Daniell is in conflict with the rule already stated by the same author; that it is broader than the authorities cited for it warrant; and that, giving it the most favorable construction possible, it cannot be held to apply to cases like the one at bar. We are satisfied that the rule laid down by Daniell could not be applied tó a case like the present, even if it is, the rule applied in some cases. The only change in the bill was in making the contractor a party defendant, and, as we have said, it in no way changed or affected the rights of the defendant. In such a case we think no further answer was required, as was held in Salisbury v. Miller, supra, and that defendant, in answering, had no right to include new’ matter in the answer. The original answer covered the particular defenses to the original bill, and the court was not, therefore, in error in striking the amended answer from the files.

The writ must be denied.

The other Justices concurred.


text:
    PEOPLE v. JAMIESON.
    -1. Bastardy — Evidence.
    In bastardy proceedings, acts of intercourse and undue familiarity both before and after the alleged act resulting in conception are admissible, as bearing upon the probability of the intercourse at the time stated in the complaint.
    3. Same — Objections—Appeal.
    In bastardy proceedings, an objection to the admissibility of evidence of an aot of intercourse subsequent to the one charged in the complaint is not sufficient, standing alone, to entitle respondent to urge on appeal that his conviction was erroneous because based on proof of the later act.
    3. Same — Complaint—Amendments.
    Upon the trial of a prosecution for bastardy, the circuit judge may allow the complaint to be amended to conform to the proofs with respect to the date on which the act resulting in
    . conception is alleged to have been committed.
    4. Same — Order of Maintenance — Indefiniteness.
    An order of maintenance in bastardy proceedings, requiring the father to pay a specified sum per month towards the support of the child “until the further order of the court,” is erroneous, as not placing any limit on.the liability.
    5. Appeal — Typewritten Record — Prolixity.
    An order permitting an appeal to be heard on typewritten record does not relieve counsel of the duty of submitting a record which is no longer than is necessary to present the questions in controversy.
    6. Same — Citation of Cases — Official Report.
    Counsel, in referring in their briefs to decisions of this court, are expected, whenever possible, to make citations to the Michigan Reports, rather than to unofficial publications.

      Certiorari to Ottawa; Padgham, J.
    Submitted May 1, 1900.
    Decided May 15, 1900.
    William Jamieson was convicted of bastardy.
    Conviction affirmed and record remanded.

      Walter I. Lillie, for appellant.

      P. H. McBride, Prosecuting Attorney, for the people.
   Grant, J.

Respondent was convicted of bastardy. Complaint was made March 9, 1899, in which the complaining witness alleged that she was begotten with child by the respondent on or about the 2d day of September, 1898. Respondent waived examination, and was bound over to the circuit court for trial. The case rested until the child was delivered, July 13, 1899.

Upon the trial respondent’s counsel objected to the introduction of testimony showing acts of sexual intercourse about the 1st of October following. Respondent absolutely denied any sexual intercourse with the complainant. Acts of intercourse and undue familiarity both before and after the alleged act resulting in conception are admissible, as bearing upon the probability of the intercourse at the time stated in the complaint. People v. Schilling, 110 Mich. 412 (68 N. W. 233), and authorities cited; Mathews v. Detroit Journal Co., 123 Mich. 608 (82 N. W. 243). It was not error, therefore, to admit this testimony. Inasmuch as the sole objection raised and argued by counsel for the respondent is upon its admissibility, it follows that no error was committed. Counsel made no request of the court to instruct the jury that the respondent could not be convicted if the child were conceived in October; neither has he made any complaint in his brief of the instruction of the court. Therefore the question decided in Hull v. People, 41 Mich. 167 (2 N. W. 175), and in People v. Schilling, 110 Mich. 412 (68 N. W. 233), is not before us. If the attention of the court had been challenged to this point, probably an amendment would have been allowed. People v. Cole, 113 Mich. 83 (71 N. W. 455).

The order of the court is that respondent pay a certain amount per month until the further order of the court. This order is void, under People v. Wing, 115 Mich. 698 (74 N. W. 179). The case, therefore, will be remanded for correction in accordance with this opinion.

Application was made to this court to dispense with the printing of the record, and to hear it upon the typewritten record, on account of the poverty of the respondent. As a result of this order, the entire proceedings upon the trial, covering over 100 pages, are submitted to this court for an examination. Even if it were to be submitted upon the unprinted record, that record need not have been to exceed 10 pages in length, to raise all the questions presented. This practice is unjustifiable, and involves unnecessary labor for us.

Respondent’s counsel cites decisions of this court from the Detroit Legal News, which have been published in our Reports, but does not cite them. In our decisions we refer to the Michigan Reports, and insist that counsel cite them in their briefs.

The other Justices concurred.