author: Long, C. J.

text:
    GROESBECK v. BENNETT.
    Cancellation oe Pledge—Overreaching.
    Complainant, being indebted to defendants, gave them a note largely in excess of the amount owing, and secured it by pledge of a mortgage of much greater value than the amount of the note, with power to sell without notice. IJpon a bill to canoel the pledge and foreclose the mortgage, a decree was entered that the pledge note be canceled, the mortgage foreclosed, and out of the proceeds defendants be paid the actual amount due them. Held, that the decree was proper, it appearing that the complainant was ignorant and unaccustomed to business, and that he was evidently overreached by the defendants, who were men of large business experience.
    Appeal from Macomb; Eldredge, J.
    Submitted January 29, 1896.
    Decided March 31, 1896.
    Bill by Henry C. Groesbeck against William C. Bennett .and others to set aside and cancel a pledge of a certain mortgage, and to foreclose the same. From a decree for complainant, defendants Jay S. Bennett and Ira B. Bennett appeal.
    Affirmed.

      Sloman, Groesbeck & Bobinson, for complainant.

      Byron B. Erskine, for appellants.
   Long, C. J.

This bill was filed to foreclose a mortgage upon certain real estate situate in Macomb county, and to set aside and cancel a certain pledge of the same mortgage. The proofs were taken in open court, and a decree of foreclosure entered, together with an order setting aside the pledge. From this decree Jay S. Bennett and Ira B. Bennett, who were the pledgees named in the pledge, appeal.

The court below made findings of fact, with which the parties appealing seem, in the main, to be satisfied, but contend that the court was in error in setting aside the pledge, and in finding too small an amount due to the pledgees therein. The facts as found by the court are, substantially, that on December 12,1892, the complainant, being the owner of about 107 acres of land, entered into an agreement with John H. Barnes to sell the same to him at the price of $125 per acre. This agreement was duly recorded, and by its terms $10 was paid down at the time of its execution, $1,000 was to be paid as soon as perfect abstract should be delivered, with a warranty deed, and the balance in 7 years, with privilege of making payments in sums of not less than $100. On January 14th, complainant was paid $100, and he thereupon executed a receipt which recited that $100 was to be paid February 18, 1893, $100 on March 18th, and $100 on April 18th, following. On January 14, 1893, Barnes entered into a written agreement of sale of the premises to the defendant William C. Bennett. The price, of the land was fixed in this contract at $175 per acre. Two hundred dollars was paid down, and payments were to be made, $200 in 30 days, $4,000 in 60 days, when a deed was to be given, and a mortgage taken back for the balance of the purchase money, payable, $5,000 on or before 3 years, and the balance on or before 5 years, with interest at 6 per cent, annually. On February 18th this contract was modified, and the purchase price of the lands reduced to $150 per acre. 'This appears to have been in consideration of a payment of $500 by Bennett. In this agreement reference was made to the contract of Barnes with complainant, and it was agreed that, on payment of $2,275 by Bennett to Barnes, it was to be assigned to Bennett, and Barnes was to pay the $100 due the complainant March 18, 1893. This agreement between Barnes' and Bennett was subsequently changed, and he agreed to accept $1,500 in lieu of exacting $2,275. In April, 1893, Barnes advised the complainant that he had sold the land to Bennett, and notified him to meet with them for the purpose of preparing the deed. Bennett, at this meeting, was prepared to pay the complainant the unpaid part of the $1,000 payment, to wit, $690, and to pay Barnes the $1,500 going to him. At this meeting it appeared that the lands were incumbered by mortgages then held by defendants Chapoton and Crittenden, upon which was unpaid $3,425; and it was then arranged that complainant and Bennett should go to Mt; Clemens, and see Chapoton and Crittenden, and arrange to remove such incumbrances. Barnes at that time indorsed an assignment of his contract with complainant to Bennett, and Bennett deposited a certified check in favor of Barnes in the bank in escrow to await the result of the interview with Chapoton and Crittenden. The complainant then made a deed of the lands to Bennett, with full covenants of warranty, and, among other things, that the lands were free from all incumbrances whatever; the consideration being stated in the deed to be $16,050, and the number of acres 115. A mortgage at the same time was drawn from Bennett to the complainant for $12,375, to be paid on or before seven years from date, with interest at 6 per cent., payable annually. With these two papers the complainant and Bennett went to Mt. Clemens, and it was there arranged with Chapoton and Crittenden that complainant should pay interest upon the amount due to them to March 14, 1893, and give them his notes for the amount of their claim, to draw interest from March 14, 1893, and to assign them the mortgage taken from Bennett of $12,375 as collateral security to his notes. This arrangement was carried out, and complainant gave Chapoton one note for $1,525, due in six months, and one for $1,200, due in one year, and also gave Crittenden one note for $700, due in six months, —all drawing interest at 7 per cent, from March 14, 1893; and delivered to them the assignment of the mortgage made by Bennett as collateral security. Bennett paid to the complainant at that time, by check, $690, and from which complainant paid to Chapoton and Crittenden the interest on the amount their due to March 14, 1893.

Complainant claimed in the court below that under this arrangement he was not carrying out the contract with Barnes, but was selling to William C. Bennett pursuant to a new arrangement, made on their way to Mt. Clemens, by which Bennett was to pay him at the rate of $150 per acre; that he gave the notes to Chapoton and Crittenden and assigned the $12,375 mortgage really to accommodate Bennett, who, he claimed, was to pay the notes given to Chapoton and Crittenden as a part of the purchase price of the land, and that Bennett so promised. The court found against the complainant upon that proposition, saying:

“ It is hardly possible that W. C. Bennett would have paid Barnes the amount he did,—some $2,200,—and yet pay complainant $690, and give a mortgage of $12,375, and pay to Chapoton and Crittenden $3,425, aggregating $18,690. * * * Complainant at that time must have understood that he was to deed free from all incumbrances, and consequently was bound to provide for the release of the Chapoton and Crittenden mortgages.”

The conclusion reached by the court below on this question was that the parties were carrying out the contract as it then existed between the complainant and Barnes,—that is, the land was called 107 acres, and the purchase price $125 per acre,—and that Chapoton and Crittenden released their mortgages, and took the mortgage given by Bennett as collateral security to complainant’s notes, for the purpose of clearing the premises of those incumbrances. As the complainant did not appeal, we need not discuss this finding, as the defendants themselves are satisfied with it.

Some time after this arrangement was made, William C. Bennett gave to his sons, Jay S. and Ira B. Bennett, doing business as Bennett Bros., three mortgages, each to secure his note for $8,000. One of these mortgages was given on this land. It is claimed by Bennett Bros, that "William O. Bennett was indebted to them from $16,000 to $18,000, and that he was receiving advances from them; that these mortgages were given as blanket mortgages, to cover whatever debt he might incur to them. The court below found this to he the fact.

Some time later, the Ohapoton and Crittenden notes not being paid, and just before their maturity, Bennett Bros, purchased them, and they were indorsed over from Chapoton and Crittenden to Bennett Bros., without recourse. The mortgage of $12,375 was also assigned to them. Defendants Bennett Bros, claimed that this was done to protect their interest as mortgagees in the $8,000 mortgage given them by William C. Bennett. After Bennett Bros, had acquired the claims of Chapoton and Crittenden, William C. Bennett commenced suit in the Wayne circuit court against the complainant upon these notes. This suit Bennett Bros, afterwards discontinued, claiming that William C. Bennett had no authority to commence it. They then notified the complainant that he must take care of these notes. William C. Bennett appears to have interested himself for Bennett Bros, to induce the complainant to take care of them, and was informed by the complainant that he could not do so, as at that time he had been arrested for carrying on a saloon business without paying a license in Detroit, and he needed $300 to pay the license. A meeting was then arranged between the complainant and Bennett Bros, and William C. Bennett. A blank form of pledge note had been procured by Bennett Bros, previous to this, and the complainant was induced to sign such pledge note, which reads as follows:

“$4,095.40. Detroit, Mich., June 8, 1894.
“ Six months after date, I promise to pay to Jay S. Bennett and Ira B. Bennett, or order, four thousand and ninety-five and 40-100 dollars, with interest at 8 per cent, per annum. Value received.
[Sig.] “Henry C. Groesbeck._
“And have deposited or pledged with them a certain real-estate mortgage, dated April 8, 1893, executed by William C. Bennett, of Detroit, Michigan, to me, and recorded in the register’s office of Macomb county, said State, on the same day, in Liber 81 of Mortgages, at page 175, as security hereto; and I hereby authorize and empower the said Jay S. Bennett and Ira B. Bennett, in the event of the non-performance of this agreement, to sell said mortgage at public or private sale or otherwise, at their option, and without further notice to me.
[Sig.] “Henry C. Groesbeck.
“Witness: [Sig.] Nelson K. Riddle.”

The court below found that this pledge was for a sum considerably more than the amount due on the Chapoton and Crittenden notes with the $300 added which Bennett Bros, advanced that day to complainant, and the court says:

“This, on the hearing, is claimed to have been made up of unpaid taxes on the land, and of some $49 and $25 advanced by W. C. Bennett. The rate of interest in the pledge note is fixed at 8 per cent. Complainant claims that, at the time, the rate read to him was 7 per cent., and he contends that the subscription to the note was not fully read to him.”

The court, after commenting upon the manner in which this pledge was procured, with interest at 8 per cent., and the amounts that were added to make it $4,095.40, concludes that undue advantage was taken by Bennett Bros., and by the decree canceled and set aside the pledge note, awarding sale of the premises under the mortgage, but directing that the commissioner, out of the proceeds of such sale, pay to Bennett Bros, the amount paid by them to Chapoton and Crittenden for the notes, with interest at 7 per cent, to the time of payment over to them of the moneys by the commissioner, and also awarding to them the $300 advanced to the complainant, with interest at 7 per cent., and making these moneys and the interest thereon a hen upon the mortgage.

The only contention made by the defendants Bennett Bros, is that the court was in error in setting aside and canceling this pledge note, and refusing to give them the full amount thereof. It would not profit any one to set out the testimony in full, which led the court to that conclusion. The testimony was taken in open court, and that court had an opportunity to see the witnesses, and judge of their truthfulness or untruthfulness, and, under the circumstances, was as able to judge of the merits of the controversy as are we. We have carefully examined the testimony, and from it and the surrounding circumstances, and the situation of the parties, are led to the conclusion that the court below was correct. The complainant was a man of but little education, somewhat improvident, and unaccustomed to business transactions. The property had come to him from his father, and he seems wholly incompetent to take care of and protect his own interests. We feel he was overreached in giving this pledge note. The defendants Bennett Bros, were apparently men of large business experience, and, with the defendant William C. Bennett, were able to get into their possession this pledge note, by the terms of which they had a right to sell at public or private sale this mortgage of $12,375, which was well secured, without any notice whatever to complainant. It is apparent that they had added a large amount to these notes over and above the amount actually their due.

The decree of the lower court will be affirmed, with costs of both courts to the complainant.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    PEOPLE v. ISHAM.
    1. Adultery—Preliminary Examination —Complaint—Jurisdiction—Admission of Respondent.
    ■ A justice of the peace may acquire jurisdiction for the preliminary examination of a male respondent charged with adultery, under a complaint and warrant which do not allege that the complainant is the wife of the respondent; and he is justified in acting upon an admission made by the respondent’s counsel, during the examination, that a marriage ceremony had been performed.
    2. Criminal Law—Witnesses—Indorsement on Information.
    It is within the discretion of the circuit judge to permit the indorsement on an information of the name of a material witness for the people, and to receive his testimony at the trial, where the affidavit of the prosecuting attorney, filed 13 days before the trial, shows a sufficient reason why the indorsement was not made before, and states that notice was immediately given to respondent’s attorney.
    3. Adultery—Evidence—Marriage Certificate.
    In a prosecution for adultery,-a marriage certificate is admissible, when accompanied by proof of the identity of the parties.
    4. Same—Extra-Judicial Confession.
    An extra-judicial confession by a respondent, charged with adultery, of a marriage with the complaining witness, is not alone sufficient to establish the marriage.
    5. Same—Husband and Wife—Competency as Witnesses.
    In a prosecution for adultery, the husband of respondent’s paramour may testify to his marriage to her.
    6. Same.
    A wife who is the complainant in a prosecution of her husband for adultery is incompetent to show her marriage to the respondent, under 2 How. Stat. § 7546, providing that, in any action or proceeding instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify.

      Exceptions before judgment from Ionia; Davis, J.
    Submitted January 31, 1896.
    Decided March 31, 1896.
    James W. Isham was convicted of adultery.
    Reversed.
    The affidavit referred to in the opinion, entitled in the cause, was as follows:
    “ County of Ionia—ss.: Royal A. Hawley, of said county, being duly sworn, deposes and says that he is the prosecuting attorney of said county; that the above-entitled cause is on the calendar for trial at the present term of this court; that Hampton Rich and Charles Dolson, of the city of Ionia, in said county, are necessary and material witnesses on the trial of said cause, in behalf of said people; that this deponent was not advised of the names of said witnesses, nor of the character of their testimony in said cause, until the afternoon of November 26, 1895; and that on the morning of November 27,1895, this deponent caused the names of said persons to be communicated to A. A. Ellis, attorney for said respondent Emma Leonard, and John Nichol, attorney for said respondent James W. Isham; that this deponent therefore asks that the names of said persons may be indorsed on the information filed herein.”

      John Nichol {A. A. Ellis, of counsel), for appellant.

      B. A. Haioley, Prosecuting Attorney, for the people..
   Hooker, J.

The defendant, Isham, was charged, together with one Emma Leonard, his alleged paramour, with the offense of adultery, upon complaint of one Elizabeth J. Isham.

Neither the complaint, warrant, nor information alleged that the complainant was the wife of the defendant. A preliminary examination was had, and the testimony was reduced to writing, subscribed by the witnesses, and returned by the justice. It is contended that this shows that there was no evidence of such marriage. Appended to the return was the following, over the signature of the examining magistrate:

“It is hereby admitted by Mr. Nichol that Mr. Isham went through a marriage ceremony with the complaining witness in this case, for the purpose of this case.
“T. M. Nesbitt, J. P.”

A plea of not guilty was withdrawn by leave of court, and a motion to quash was made, based upon several grounds, principal among which was the claim that there was no allegation or proof of the marriage of complainant and defendant. This motion was supported by the affidavit of counsel, denying that he had authority to admit, or intended to admit, such marriage. This was supplemented by an affidavit of the justice to the effect that, upon the argument before him, counsel for defendant contended that there was no evidence of such marriage, and that thereupon both the prosecuting attorney and the justice claimed that defendant’s counsel had admitted the fact, or that a ceremony had in fact been performed between them, for the purposes of the examination, and defendant’s counsel then and there denied it, and declined to be bound by it. The court denied the motion to quash. A plea of not guilty was thereupon entered by direction of the court, defendant standing mute, and a trial resulted in conviction.

Upon the trial the court permitted the prosecuting attorney to indorse the name of the witness Dolson upon the information, upon an affidavit dated some 13 days before the trial.

Mr. Leonard, the husband of defendant’s alleged paramour, was sworn on behalf of the people, and testified to his marital relations with Mrs. Leonard; and Elizabeth J. Isham was permitted to testify that she was the wife of the defendant; that they were married June 26, 1881, at Plymouth, Wayne county, by one James Carroll, a Baptist minister; that only his wife was present as a witness; and that the defendant and this witness, Mrs. Isham, after-wards cohabited until July, 1895. The marriage certificate of the marriage between Leonard and wife was admitted against objection. Dolson testified that the defendant procured from him a mutual benefit certificate of insurance, payable to Elizabeth Isham, upon the representation that she was his wife. It does not appear that there was any evidence in the case tending to dispute either of said marriages.

The complaint, warrant, and information were valid, unless it was necessary that they contain the allegation that the complainant was the wife of the defendant.

The statute (2 How. Stat. § 7546) provides:

‘ ‘ A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent, except in cases where the husband or wife shall be a party to the record in a suit, action, or proceeding where the title to the separate property of the husband or wife so called or offered as a witness, or where the title to property derived from, through, or under the husband or wife so called or offered as a witness, shall be the subject-matter in controversy or litigation in such suit, action, or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action, or proceeding; and, in all such cases, such husband or wife who makes such claim of title, or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title thereto, without the consent of said husband or wife who is a party to the record in such suit, action, or proceeding, as though such marriage relation did not exist; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage ; but in any action or proceeding instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify.”

The complaint required by statute is not an element of the offense, but it is a condition to its prosecution; and, where a code required that an indictment must show on its face that the offense which it charges is triable in the court to which it is returnable, it has been held necessary to set up the relation between the complainant and defendant. State v. Mahan, 81 Iowa, 121. A later case decided by the same court holds, however, that proof of the fact may be introduced, though no averment of the fact is found in the indictment. State v. Maas, 83 Iowa, 469, and see cases cited in the opinion; State v. Andrews, 95 Iowa, 451.

We are of the opinion that the justice acquired jurisdiction of the defendant through the complaint and warrant, and we are also of the opinion that he was justified in acting upon the admission made by the defendant’s counsel that a marriage ceremony had been performed. In this connection we disavow any implication that the trial court, upon a motion to quash, may be asked to re-' view the magistrate’s examination, to ascertain whether a prima facie case has been made out. Here we must presume that the admission occurred in the presence of the accused, and was binding upon him for the purpose of the examination, and justified the magistrate in committing the defendant for trial.

We think the testimony of Dolson was properly received, it being within the proper exercise of the discretion of the trial court to permit the indorsement of his name, under the facts shown by the affidavit of the prosecuting officer, which was filed on the day after it was made.

The only evidence tending to establish the marriage of Mrs. Leonard was that of her husband and the marriage certificate, while all that was shown in relation to the defendant’s marriage was the testimony of Mrs. Isham that she was his wife, and the testimony of Dolson that the defendant acknowledged her as such in the transaction mentioned. In the case of People v. Lambert, 5 Mich. 349, it was held in a case of bigamy that the first marriage could not be established by the confession of the defendant alone, and that the marriage certificate was not admissible to prove it. The marriage certificate mentioned in that case was a foreign certificate, and there were several objections to its admissibility. The admissibility of marriage certificates generally, where accompanied by proof of the identity of the parties, is recognized in the case of People v. Broughton, 49 Mich. 339. See Cameron v. State, 48 Am. Dec. 111 (14 Ala. 546), and cases cited in note, page 116 As to the marriage of the defendant, the rule seems' well settled that an extra-judicial confession alone will not support a conviction. People v. Lambert, 5 Mich. 366; People v. Lane, 49 Mich. 340; People v. Hess, 85 Mich. 128. The testimony of Leonard, if offered to prove the fact of adultery, might be of doubtful admissibility, under the case of People v. Fowler, 104 Mich. 449; but his testimony does not fall within that class of cases which forbids the introduction of evidence tending to show misconduct of a spouse, having been offered merely to prove the marriage. We think the testimony was admissible. The testimony of Mrs. Isham was clearly inadmissible, under the statute (2 How. Stat. § 7546).

We must therefore set aside the verdict, and direct a new trial. Ordered accordingly.

The other Justices concurred.


author: Moore, J.

text:
    GRAFF v. DETROIT CITIZENS’ STREET RAILWAY CO.
    Street Railways—Contributory Negligence.
    One who, without taking ordinary precautions, attempts to drive across an electric-railway track in front of a rapidly approaching car, and, on finding that he is unable to do so, attempts to turn in the same direction the car is going, but, because of the slipping of his horse, collides with a car coming from the other direction, by which he is thrown from the wagon under the first car, is guilty of such contributory negligence as will prevent a recovery for the injury, where the drivers of both cars did everything in their power to stop after discovering his dangerous position.
    Error to Wayne; Hosmer, J.
    Submitted February 18, 1896.
    Decided March 31, 1896.

      Case by William J. Graff against tbe Detroit Citizens’ Street Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Thomas Hislop and R. C. Barnes, for appellant.

      A. C. Angelí, for appellee.
   Moore, J.

The plaintiff sued defendant for injuries done to himself and his horse and other property in a collision with defendant’s cars, which occurred September 30, 1893, at the intersection of Holden and Palmer avenues with Woodward Avenue. After the plaintiff’s testimony was all in, defendant’s counsel moved to take the case from the jury. At the noon hour the trial judge visited the place of the accident. When the court convened in the afternoon, the judge directed a verdict in favor of the defendant. Plaintiff appealed the case to this court.

The record discloses that about 4 o’clock upon a rainy afternoon, September 30, 1893, the plaintiff drove east on Holden avenue, and áttempted to cross Woodward avenue, which runs north and south, to Palmer avenue. He was driving a horse that would weigh about 1,200 pounds. This horse was hitched to a wagon which had a wagon box about 10 feet long and 32 inches deep. Miss Hall was in the rear of the box. Graff was standing up, and one Wick was on his right-hand side, carrying an umbrella. As Graff approached Woodward avenue, he ■heard a gong sounded from an electric car coming south at great speed. When he got to the asphalt pavement, he saw an electric car about a block away, coming north. When the plaintiff came into Woodward avenue, his horse was on a trot. The plaintiff testified:

“I tried to check the horse, pull off to the right, and avoid the car going south. As I got, it might be, as far as the curb, I saw I could not turn around, and I held back on the lines, and pulled the horse back, and I could not stop sufficient to avoid colliding with the car. The horse collided with the car. He put his head alongside, and his breast struck on the car. The motorman coming north saw my condition. When he saw my condition,—that I could not stop my horse, and was trying to avoid him,—he stopped his car almost instantly- * * * I was attempting to avoid this car by turning south on Woodward avenue. I was partly turning that way,-—■ going towards Palmer avenue,—but I was trying to avoid this car going south. As I got as far as the curb, or thereabouts, seeing I could not turn sharp enough, I pulled on my horse, but I could not stop my horse sufficiently to avoid colliding with the north-bound car. The horse ran against that car, and struck with his breast. * * * The motorman on the north-bound car, when he saw my condition,—when he saw I was trying to avoid his car,—took in the situation at a glance. He put on his brakes, and stopped his car almost instantly. And I pulled back after I had struck the side of the car. I might have pulled back two feet or- so. Anyway, I pulled back. Then I heard the horse’s feet striking on the asphalt pavement, and slipping somewhat, and that called my attention to it. I had the lines on the horse, and his front parts went down. I saw his hind parts going down, and the next moment I was tipping over. We all went off on the asphalt pavement. I could not jump out, my feet were so close to the end of the box. First I lay on the flat of my stomach, when I fell out. As I was getting up, I was just in about a position on my knees, and getting up again, when I got a crack on the back from the south-bound car that knocked me down again, and I saw the car was over me. I have a pain in my breast yet. Expected never to get out alive again. * * * When .the horse’s shoulders struck the northbound car, I could not say what she was doing. She was going at an ordinary gait,—ordinary speed; not overgoing speed. The car stopped just about the time I reached it. The shafts went up,—the shafts raised up,—but I could not say whether a window was broken or not. They said there was. My horse slipped on his knees after he had struck the north-bound car. I was thrown clear from the wagon. I was lying on the asphalt pavement, sliding along.
Q. After this had all happened, you say that the south-bound car came onto you ?
“A. I did not see the south-bound car at all until I got struck by it,—not after I took my eyes off the car; but I saw it up yonder. * * * The north-bound car stopped my progress. The north-bound car was on the east track. I was going at an ordinary trot, as I approached Woodward avenue, and the horse’s head was from 80 to 100 feet from the westerly curb line, when I saw the south-bound car above. I had a good view from Woodward avenue to the north, but could not say how the view was to the south, and could not say how the building was situated at the south. There were some trees there. I saw the north-bound car coming up just as I got to the asphalt paving, or thereabout. I heard the gong on the south-bound'car. * * * I saw nothing of the north-bound car until just as I got to the pavement; that is, about the turn-off. I was trying to turn south, and could not do it, as I explained before. I heard one gong, and that was all. She was over a block away. That called my attention to the south-bound car. At the time I was looking straight ahead, until I got to the crossing, and was about to turn, and I saw the other car, apparently going north; and I tried to turn south, and some way or other I could not govern the horse,—could not turn short enough, as I explained before,—and I tried to stop the horse, and could not stop him sufficiently to avoid his colliding with the north-bound car. The horse ran into it, anyhow. The gong was not ringing on the north-bound car. I first saw the car when I got to the asphalt pavement. * * * Iwasjustabouton the asphalt pavement when I saw the north-bound car coming up. I could not say if there was anything to prevent my seeing it before reaching the asphalt pavement, unless there were some trees. If I had turned south, as I tried to do, I would have been all right, but I could not do it, on account of my horse slipping. At the time that I was just coming to the asphalt pavement, I was looking straight ahead; and just as I took my eyes from that car, and got just about to the asphalt paving, I was about to turn, and I saw the other, the north-bound car. I tried to turn south by that car. The north-bound car was not straight ahead of me. It was from 40 to 60 feet from me, going up. * * * I was sitting in the front part of the wagon box, or rather standing against the side. * * * Fred Wick was on my right, sitting on a stove further back from the front. The hearth of the stove was at the front, and he was sitting about the mid-die, and I was up against the end of the box, facing south. It was an ordinary cook stove, and the legs were off. Miss Hall was sitting in the rear,—sitting on a box or something,—facing north, about 10 feet from me. The horse kept the same rate until I reached the asphalt, and, if any, it decreased somewhat as I was trying to stop it, but I could not do it. * * * It was raining a fine sort of rain,—not heavy.”

On the cross-examination he testified:

“I had driven across Woodward avenue, on Holden, before, 400 or 500 different times. I certainly knew electric cars were running on that street very rapidly and frequently, in both directions. I was 100 feet, perhaps less, from the asphalt when I first noticed the south-bound car. That is my estimate of it. I did not measure it. I had a perfectly clear view of the south-bound car. The asphalt' on Woodward avenue goes in on Holden about as far as the depth of the cross-walk,-—about to the inside line of the sidewalk. I heard the gong first, then looked and saw the south-bound car beyond Hendrie avenue, the next street north of Palmer, east of Woodward. Prom Palmer to Hendrie is about 350 feet. Could not say how fast it was coming. I could hear it hum. I paid no attention to the car at all. She was a good distance off. Having seen where it was, I paid no attention, but drove along. I guess I did not hasten my speed.
“ Q. Yon did not stop him, or try to stop him, until after he had got out on the asphalt pavement, and you saw the north-bound’ car. Is that right?
“A. Yes, sir; about got to the asphalt pavement, and saw the north-bound car. I seen I could not turn south. I tried to stop, and got about as far as the curb, or thereabouts, and I tried to hold back, when I saw I could not turn. I sawed on the horse’s mouth with the lines, and tried very hard to stop him, and in spite of that I ran into the front part of the north-bound car. * * *
“ Q. So this whole thing, after you passed the curb line until you were struck by the south-bound car, all took place very quickly; it was all done in a very short time?
“A. It was not very long, that is sure. I had no whip at all. Wick did not have a very big umbrella. He was not keeping the rain off me with it. Our feet were together. He had the umbrella over him, and not over me. He sat right close to me, as I have described, on my right side. He was sitting on the stove. I seen that north-bound car as soon as I got to the asphalt paving. I was trying to turn off when I got to the curb line, and, when I saw I could not turn short enough, I tried to stop my horse and pull him back.
“Q. Before that you had not seen it, until you got that far?
“A. There [was no necessity for looking at it before that.”

Mr. "Wick and Miss Hall were also witnesses. Their testimony did not differ from Mr. Graff’s.

Mr. Ostrich, a witness for plaintiff, testified:

“I had the second seat from the front, on the west side, in the car going north, at the time this collision occurred. I first saw Mr. Graff going east on Holden, trying to cross Woodward avenue, about 100 feet west of the track, going east on Holden, driving at an ordinary trot. When I saw him coming, and the speed we were going on the car, I thought to myself there might be a collision, and I had no more thought so than his horse got about on the west side of the track; and at the same time, before he struck the track, he hustled to turn his horse with the line, and some way the horse kind of slipped, and the car struck him. All in one moment it took place. He was just about the west curb of Woodward avenue when he began to pull his lines. He evidently saw the danger coming, and he pulled on the lines quick, and as he pulled the horse obeyed his line, and he slipped a little, and by slipping it did not gain headway fastas if it hadn’t slipped, and by that time tire car struck the horse’s'neck, and the horse went down. He tried to get up, but the force of the car kind of held him down again, and, before he could get up, the south-bound car, coming from the north, struck the whole rig, and ran over the horse and wagon. I guess the car struck square in the center of the whole rig. I don’t remember whether the south-bound car was affected in its position on the track. It was not thrown off the track. I thought it was a very heavy collision, the way it jerked us around in the car, and the sudden stop. The northbound car struck the horse’s neck. The neck struck on the west side of the car,—the round iron,—the window in front. When I first saw the rig on Holden, coming across, the car I was on was between 50 and 100 feet from Palmer or Holden. The conductor probably saw the rig, and began to slacken up. The north-bound car, to the best of my judgment, was going about 15 to 20 miles an hour, and it stopped within 50 feet after the brakes were applied. When I first saw the south-bound car, it was between Palmer and the next street, Hendrie. I should judge it was about 200 feet away. I kept my eyes on it. When the horse’s shoulders came in contact with the north-bound car, I say the south-bound car was about 200 feet away. I saw Mr. Wick and Mr. Graff in their wagon. I can’t say whether the north-bound car or the south-bound car threw them out of their wagon,—it took place so quickly. I think the south-bound car killed the horse and smashed their wagon. The horse was dead before the car was backed up. The front platform was on top of the horse.”

Cross-examination:

“ Mr. Graff was about 100 feet west of the track, on Holden, and was trotting along, when I first saw him. I could see him distinctly. The house on the south-west corner is back all of 40 or 60 feet from the street, and is known as the ‘ Mabley House.’ I saw Mr. Graff as he reached the west curb, and before that. I guess it was his intention to go diagonally across Woodward towards Palmer. I saw him look up at that time and see the north-bound car. As he got to the curb line he saw the north-bound car. Then he attempted to swing his horse off to the right, down towards the south. He pulled on the right rein, and for some reason did not pull clear of the car. He came into the front of it. The front window was broken. I should judge the horse’s head broke the front window. Some of the glass came inside the car. About that time the car stopped, and the horse slipped’ and went down. Anyway, the wagon ■ tipped over. I don’t remember which car did it, though. Then I looked around, and the south-bound car ran upon the body of the horse, and stopped with its platform over the horse. Whether that car went off the track or not, I don’t remember. I don’t think it. It was either the reversing of the brake, or the stopping of it suddenly, or probably both, that gave us a sudden jar on the northbound car. The man put on his brakes and reversed his current,-—both I should judge, he stopped so quick* The north-bound car was stopped very quick. The northbound car was between 50 and 100 feet south of Holden when Mr. Graff’s horse first got on the pavement on Woodward. As soon as the motorman saw that Graff was going across the street, he began, I presume, to try to stop his car. I don’t know what he thought, but that was done, anyway. I was sitting with my back to the west side of Woodward avenue. The sudden stopping of the car jerked me both forward and back. I don’t think the car was going at more than the usual speed before the motorman checked his car.”

Mrs. Russell testified on the part of the plaintiff:

“I was on the south-bound car at the time of the accident. I was alone in the .car, and sat at the very upper corner, near the front-end door, on the west side. The first thing that called my attention to this difficulty was that I saw a wagon with two men and a woman turning into Woodward from Holden, and saw that it was an inevitable collision, and rose to prevent being hit by the débris, if they should strike the car, and moved towards the door. I really could not tell what the motorman did. I think he attempted to slacken, because I noticed the car. Of course, he saw them. The north-bound car was going very rapidly towards the north. Our car was going south. The man that was driving the horse was endeavoring to free himself from the south-bound car. I don’t think he saw the north-bound car at all, because he certainly would not have gone across the track if he had. I could not tell how fast our car was going. It was coming rapidly towards Holden avenue. I think Graff was looking at the- south-bound car, and had not spied the north-bound car until it came very rapidly upon him. He was trying to save himself from the other one. They came very near together there, and this car stru.ck him. He pulled up as quickly as he could,—I saw that,—and the car struck the horse and killed it. As I rose quickly to go towards the end, the conductor went towards the front hurriedly, and I said, ‘We are going to hit that man.’ He passed towards the motorman, and by that time we had struck the man, and the horse was killed, and the things were tipped out, and the man was injured. * * *
“Q. You could not give us any idea of the rate of speed you were going ?
“A. Yes; honestly, I thought we were going very fast.
Q. And when did that very fast rate cease, or when did you feel that the brakes of the car were being,applied ? Whereabouts then were you from Holden avenue?
A. They began at once to attempt to save themselves from this, if possible, but it was too late.
“Q. How far do you think the car- ran, after you first saw Mr. Graff, before the car struck the horse ?
“A. I should say it was what would be the length of three cars, perhaps; not more than that, I think.”

Cross-examination:

“I don’t think they had a raised umbrella. As soon as I saw that the horse was going to pass out into Woodward avenue, I realized that there was imminent danger of a collision, and was somewhat startled, and went towards the rear of the car. By the time I had gotten to the rear of the car the collision had taken place.”

This was substantially all of the testimony offered by the plaintiff.

It is claimed on the part of the plaintiff that—

‘ ‘ Even if plaintiff was negligent in going upon defendant’s track, and attempting to cross in front of the northbound car, yet, as defendant had time to stop its southbound car after plaintiff was seen to be in a place of danger, and did not stop its car in time to avoid the'injury, plaintiff’s negligence was not such as contributed to the accident, and defendant’s negligence was the sole proximate cause of the injury.”

It is urged that there was evidence tending to support this claim.

It is also urged on the part of the plaintiff that the whole case turns upon this fact, “Had the plaintiff not collided with the north-bound car, could he have crossed in safety in front of the south-bound car? ” and the facts and circumstances show this could have been done, and he was entitled to have his case submitted to the jury upon that theory; citing Cooley, Torts, p. 674; Mont gomery v. Railway Co., 103 Mich. 46; Laethem v. Railway Co., 100 Mich. 297.

The difficulty with this theory is that the plaintiff did collide with the north-bound car, and the- motorman of the south-bound car did all he could, when he discovered the dangerous position of. the plaintiff, to avoid the injury. The testimony of the plaintiff’s witness Mrs. Russell is that the motorman and the conductor began at once to save themselves, if possible, but it was too late. The car ran not more than the length of three cars after she first saw Mr. Graff.

This was an unfortunate affair, but Mr. Graff was alone to blame for the result. The asphalt pavement was wet and slippery. The plaintiff tried to cross in front of a rapidly approaching car. When he found he could not do that, he attempted to turn south, around the corner. His horse slipped upon the pavement, and he was unable to turn as quickly as it was hoped he would, and he collided with the north-bound car. Scarcely an appreciable period of time elapsed before he and his horse were struck by the south-bound car. Had Graff done as an ordinarily prudent man would have done, the injury would not have occurred. The case is clearly within the rule as stated in Gardner v. Railroad Co., 97 Mich. 240; McGee v. Railway Co., 102 Mich. 107; Blakeslee v. Railway Co., 105 Mich. 462; Fritz v. Railway Co., 105 Mich. 50.

The judgment of the court below is affirmed, with costs.

The other Justices concurred.


text:
    MICHIGAN TRUST CO. v. WEBBER.
    1. Voluntary Assignments—Rights of Assignee.
    Prior to the enactment of 2 How. Stat. § 8741, the assignee of an insolvent debtor acquired only such interest in the assigned property as the debtor had to assign, but that section conferred upon the assignee the additional right to recover all property, or right or equities in property, which might be reached or recovered by any of the assignor’s creditors.
    2. Same.
    While it is true that courts have supervision of assignment proceedings, they cannot confer upon the assignee rights that the statute does not give him; and, giving to the statute of voluntary assignments the broadest constructiSn of which it is capable, the assignee only stands in the place of his assignor and of the latter’s creditors.
    3. Same—Equity—Parties.
    The dissolution of a partnership will not be declared fraudulent and void in a suit by the assignee for creditors of a new firm organized by the continuing partner and another, where neither the creditors of the retiring partner nor those of the original firm are represented in the suit.
    Appeal from Montcalm; Grove, J., presiding.
    Submitted January 31, 1896.
    Decided March 31, 1896.
    Bill by tbe Michigan Trust Company, receiver of Clarence W. Chapin and Merrick W. Chapin, against Oscar Webber, George W. Webber, Andrew J. Webber, and Joseph T. Webber, impleaded with Clarence W. Chapin and Merrick W. Chapin, to set aside, as in fraud of creditors, the dissolution of a partnership between Oscar Webber and Clarence W. Chapin, to restrain Joseph T. Webber from disposing of certain property, and to obtain other equitable relief. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      Thomas F. McGarry, for complainant.

      William O. Webster and J. W. Champlin, for defendants George W. Webber and Andrew J. Webber.

      W. W. Mitchel and George E. Nichols, for defendant Joseph T. Webber.
   Moore, J.

The complainant filed a bill, alleging, in substance, that Oscar Webber and Clarence W. Chapin entered into a copartnership for the purpose of carrying on a private banking business at Stanton, Montcalm county, Mich., under the name of Webber & Chapin; that such business was carried on by them until December 28, 1892; that, at the time of the formation of such copartnership, Oscar Webber purchased an interest in said business from one Howe, who had previously invested in said enterprise $2,500;. that Chapin entered into said business with $2,500, borrowed capital, not investing any money except the money thus borrowed; that at the time of the formation of said copartnership, as well as during its continuance, Webber alone was financially responsible, and was so considered by the patrons of their business; that Webber and Chapin drew from the business about $20,000 each; that about December 28, 1892, the firm of Webber & Chapin was insolvent, and known to he insolvent by the members of the firm; that Webber was in poor health, and had given but little attention to the management of the business; that he desired to nominally withdraw from the business, and place his individual property out of the reach of the creditors, and, at the same time, use and utilize the credit and property of the business as far as possible to effect the release of himself, individually, from the creditors who had trusted said firm; that Chapin was desirous of assisting Webber in said scheme; that on December 28, 1892, Webber and Chapin entered into an agreement for the ostensible purpose of dissolving said copartnership, but with the actual purpose of diverting their funds, so that Webber might placé out of reach of creditors his individual property, and Chapin could place out of reach of creditors the property which he then owned individually; that an alleged contract of dissolution was entered into between Webber and Chapin, wherein it was agreed that Webber should appear to retire from said firm, and Clarence W. Chapin should assume to pay him $6,000 for his interest, and carry on the business; that, in carrying on the business, the name of Merrick W. Chapin should be used; that Merrick W. Chapin was a brother of Clarence W. Chapin, who then was, and ever since has been, irresponsible; that said business should be carried on in the name of C. W. Chapin '& Co., but that, as a matter of fact, Merrick W. Chapin’s name was used to take the place and represent the interest of Oscar Webber in said business; that said dissolution was colorable, and not intended to otherwise operate in point of fact.

That, after such pretended dissolution, Clarence W. Chapin proceeded to carry on the business, formerly carried on in the name of Webber & Chapin, in the name of C. W. Chapin & Co.; that Oscar Webber, in furtherance of a scheme to cheat and defraud his creditors, on July 14, 1893, executed a mortgage to George W. and Andrew J. Webber on certain lands in the city of Ionia, purporting to secure payment of $14,500, according to the terms of a certain alleged promissory note, made on June 30, 1893, by Webber & Buck (viz., Joseph T. Webber and Thomas B. Buck, then copartners, doing business under the name of Webber & Buck) to said George W. and Andrew J. Webber, due six months from the date thereof, and indorsed by Oscar Webber, which mortgage was recorded July 14, 1893; that, at the time of the alleged dissolution of copartnership, Oscar Webber was not indebted to George W. and Andrew J. Webber; that, at the time of the alleged dissolution, said Oscar Webber was the owner of certain property, real estate and personalty, other than that above mentioned, situated in the city of Ionia; that the legal title to the last parcel appears to have been conveyed to Oscar Webber and wife, Augusta, and to remain in them, and it is claimed that Oscar Webber occupied said parcel as a home, and has homestead rights therein; also 40 shares, of the face value of $100 each, of the capital stock of the First National Bank of Ionia; that the real estate and bank stock constituted, substantially, all the property, at the date of the alleged dissolution, of Oscar Webber, subject to levy and sale on execution; that Oscar Webber did not have on the date of the alleged dissolution, or at any time since, property liable to execution exceeding the sum of $1,000, made up of household furniture and other small items of property; that on or about January 10,1893, Oscar Webber transferred to his son, Joseph T. Webber, 10 shares of his (Oscar Webber’s) said stock in said First National Bank, without any consideration, and that on or about July 13, 1893, said Oscar Webber transferred the remaining 30 shares, which were then of the value of not less than $100 each, without any consideration whatever, except the pretended conveyance by Joseph T. Webber to Oscar Webber of a parcel of land on Bois Blanc Island, which was worth not to exceed the sum of $600; that the said conveyance was not the real consideration for the transfer of the bank stock, but was made to give some color to said transfer, which was really fraudulent, and solely for the purpose of placing said stock beyond the reach of the creditors of said Oscar Webber; that on July 14, 1893, although said note had been made only 14 days before, and would not be due until January %, 1894, the said mortgage was given by Oscar Webber on all his real estate, nominally to secure said note, upon which he was liable, if at all, as surety as aforesaid, for Webber & Buck, upon his accommodation indorsement; that no effort was made by Webber Bros, to obtain security from Webber & Buck for the payment of said note, although they were abundantly able to give the same; that the mortgage was given solely in view of the failure and insolvency of said bank, and of the large indebtedness of Oscar Webber, and to cover up and incumber his real estate, and to defeat the creditors of Oscar Webber, and to enable him to escape' payment of his debts, and to defraud, hinder, and delay the creditors of Oscar Webber, represented by the complainant in this suit.

That meanwhile Clarence W. Chapin had placed in the hands of relatives, and out of the reach of execution, the most valuable part of his personal estate, and also a large portion of the funds of Webber & Chapin; that, in furtherance of such scheme, he deeded to his brother Julius W. Chapin a farm in Ingham county, consisting of 245 acres of valuable land; also took out of the bank, without payment, note's of his brothers, Merrick W. Chapin and Julius W. Chapin, aggregating between $7,000 and $10,000; and also took up and discharged, without any payment whatever, an indebtedness due from the firm of Chapin & Bennett, a firm consisting of himself (Clarence W. Chapin) and his brother-in-law, Frederick S. Bennett, to the bank, of about $15,000; and also, by the interposition of a third person, conveyed his interest in a farm in Montcalm county, of the value of $5,000 or $6,000, beyond the reach of creditors; that such transactions were a part of a general scheme to cheat and defraud the creditors of Webber & Chapin and of C. W. Chapin & Co.

That on July 26, 1893, in furtherance of said scheme to cheat and defraud, Clarence W. and Merrick W. Chapin, without the knowledge of said assignee as to said scheme, executed and delivered to complainant a common-law assignment, assuming to include and cover all the property of C. W. Chapin & Co., as well as the individual property of both Clarence W. Chapin and Merrick W. Chapin, for the benefit of creditors, in accordance with the laws of the State of Michigan; that complainant accepted said trust, executed the requisite bonds, and entered at once upon the discharge of its duties as assignee; that, after the acceptance of said trust, complainant proceeded to make an inventory and appraisement of the property claimed to be owned by C. W. Chapin & Co., by C. W. Chapin individually, and by Merrick W.- Chapin individually; that said property was duly appraised by two disinterested persons, as follows: That the goods, wares, merchandise, furniture, and fixtures, and all other chattel property, of every name and nature, belonging to said copartnership, and to the' members of said firm individually, amounted to the sum of $2,315, and the bills receivable, promissory notes, and other credits, of every kind and character, belonging to said copartnership, or to the members thereof individually, as appraised by said appraisers, amounted to the sum of $20,489.03; that the real estate belonging to the-said copartnership, and to the members thereof individually, over and above homestead rights, amounted to $4,495; and that Clarence W. and Merrick W. Chapin included within the said personal property all property that might be exempt to them under the statute, and demanded the value of the same when converted into money, in cash; that said assignors filed in the office of the clerk of the circuit court for the county of Montcalm, as provided by law, a list of their creditors; that the total indebtedness of C. W. Chapin & Co., which included the original indebtedness, then unpaid, by Webber & Chapin, amounted to the sum of $83,547.37; that the amount thereof originally due and owing, and then due and owing, by Oscar Webber and Clarence W. Chapin, amounted to the sum of about $28,000; that the remaining creditors, whose indebtedness aggregated more than $55,000, were creditors who had trusted the business carried on under the name of C. W. Chapin & Co., or were creditors who had accepted certificates of deposit from C. W. Chapin & Co., in lieu of original certificates of deposit issued by Webber & Chapin.

That, at the time of the alleged dissolution of the copartnership of Webber & Chapin, Webber had no individual creditors; that, at the time of the assignment, Webber was individually liable to the creditors of Webber & Chapin in the sum of $28,000, and upwards; that the property which came into the hands of complainant will not pay 10 cents on the dollar of the indebtedness of C. W. Chapin & Co. over and above expenses; that said assignment, as a matter of fact, as well as a matter of law, transferred to complain ant the legal title to the individual property of Oscar Webber, as, well as the individual property of C. W. Chapin; that M. W. Chapin was a mere figurehead in the concern, representing Oscar Webber, and that the execution and delivery of said assignment by M. W. •Chapin was in fact and in law the execution and delivery of Oscar Webber, and carried with it all the rights and powers, and had full legal effect, as though executed by Oscar Webber individually; that complainant, as such .assignee, is entitled to have and receive the individual property of Oscar Webber, and convert the same into money, and to distribute the same under the •order of the court; that complainant is also entitled to all other property possessed by Oscar Webber at the date of said assignment, and that Webber should be -compelled to file a schedule of the same in the matter of such assignment, and that, if necessary for such pur■pose, the court should appoint complainant, or some other person, receiver of the individual property of Oscar Webber, for the purpose of carrying into effect the trust created by said assignment, and for the purpose of marshaling and distributing the assets of said estate.

That, prior to the alleged dissolution of the copartnership •of Webber & Chapin,-Joseph T. Webber and Thomas R. Buck were engaged in the clothing business at Ionia, under -the name of W ebber & Buck; that, in order to carry onsuch business, they claim to have'borrowed large sums of money from Webber Bros., a banking firm doing business at Ionia, composed of George W. and Andrew J. Webber, brothers of Oscar Webber; that Joseph T. Webber is the •son of Oscar Webber, and a nephew of the Webber Bros.; that it is claimed by Webber & Buck that they borrowed from Webber Bros. $14,500; that, after the alleged •dissolution of Webber & Chapin, Oscar Webber executed a mortgage on his individual property for the purpose of securing Webber Bros. upon the indebtedness so claimed to be due from Webber & Buck; that the giving of the mortgage by Oscar Webber to Webber Bros, was done for the purpose of covering up the property of Oscar Webber, in order to hinder, delay, and defraud the creditors of Webber & Chapin from the collection of their debts from the property covered thereby; that the giving of the mortgage was a fraud upon the creditors of Webber & Chapin, for the payment of whose debts Oscar Webber was still liable, and that the mortgage is null and void as against complainant in behalf of such creditors, and voidable at the instance of complainant in behalf of such creditors; that, if Oscar Webber was liable in any sum on said note, his liability is not greater than that of surety for Webber & Buck, and that the dealings of Webber Bros, with the principals, Webber & Buck, since the making or the maturity of said note, and the extension of time granted by Webber Bros, to Webber & Buck, and the failure and delay of Webber Bros, to obtain or compel the securing or payment of said debt by the principals, Webber & Buck, operated as a discharge and release of the said Oscar Webber from all liability upon said note and the lien of said mortgage; that the conduct of Webber Bros, operated, if not to release Oscar Webber and the lien of said mortgage, at least as a waiver by them of all right to priority under said mortgage as against the complainant, the representative of the creditors; that, even if said mortgage be valid, Webber & Buck should pay the indebtedness due to Webber Bros., thus paying the indebtedness to secure which said mortgage was given, and relieving said property from the operation of said mortgage, that it may be reached and used for the creditors of Webber & Chapin, for the payment of whose claims Oscar Webber is still liable; that March 10, 1894, Webber & Buck dissolved partnership, Webber assuming and agreeing to pay the indebtedness due to Webber Bros, of $14,500, to secure which the mortgage was so given by his father, Oscar Webber; that Joseph T. Webber is able to pay said indebtedness; and that,, after paying all his other creditors, he will have sufficient other property to pay this mortgage, thus relieving the property of Oscar Webber from the lien of said mortgage; but that the property of Joseph T. Webber is nearly all personal property, and subject to changes and fluctuations in value; that the stock of goods which came into the hands of Joseph T. Webber upon the dissolution of Webber & Buck is worth more than $14,500.

That, by virtue of the assignment of Chapin & Co., complainant became vested with the title to the bank building occupied by Webber & Chapin and by Chapin & Co., and all the fixtures thereunto belonging.

Complainant asked for an injunction restraining Joseph T. Webber from selling, other then by retail, the stock of goods owned by him; for a receiver of the property of Joseph T. Webber, with the usual powers, or that, in lieu of said injunction and receiver, Webber execute a bond, approved by the register of the circuit court, to stand in lieu of his (Joseph T. Webber’s) property, pending the litigation; that the alleged dissolution of the copartnership between Webber & Chapin be set aside, and the assignment by Chapin & Co. be declared an assignment by Oscar Webber as well; that the dissolution of Webber & Chapin be declared fraudulent and void, and the formation of the partnership between Clarence W. and Merrick W. Chapin, and the assignment by them, be declared to include the individual property of Oscar Webber; that the said Oscar Webber be directed to file an inventory of his individual property and a list of his creditors, or that, in lieu thereof, the complainant or some suitable person be appointed receiver of the individual property of said Oscar Webber, with the usual powers, and with special authority to sell such property, and convert it into money, and to distribute the same under the order of the court; that the complainant may be decreed to be the owner of the bank building in which C. W. Chapin & Co. conducted their banking business; and with a general prayer for relief.

George W. and Andrew J. Webber appeared by solicitors, and demurred to the bill. Joseph T. Webber appeared by another solicitor, as did also Oscar Webber, and each demurred to the bill. The demurrers were sustained, and the case is brought here by complainant for review.

The complainant gets such standing in court as it has by virtue' of a voluntary assignment made by Chapin & Co., in July, 1893. Prior to the enactment of section 8741, 2 'How. Stat., the assignee would get only such interest as the assignor had to assign. The enactment of the statute last mentioned, in addition to the rights of the assignor, conveyed to the assignee “the right to recover all property, or right or equities in property, which might be reached or recovered by any of the creditors of such assignor.” It is urged that section 8749, 3 How. Stat., gives the court supervisory control over assignment proceedings, and that the court could aid the assignee in reaching the property for the benefit of the creditors of Webber & Chapin. It is true that courts have supervision of assignment proceedings, but courts cannot confer rights upon statutory assignees that the statute has not given them. Giving to the statute of voluntary assignments the broadest construction of which it is capable, the assignee stands in the place of his assignors and the creditors of his assignors. Wisconsin Marine & Fire Ins. Co. Bank v. Manistee Salt & Lumber Co., 77 Mich. 76; Lentz v. Railway Co., 53 Mich. 444; Dwight v. Lumber Co., 67 Mich. 512. There is nothing in the bill to show that the complainant represents any one but its assignors, Chapin & Co., and their creditors. So far as the case presented in the bill of complaint is stated, the creditors of Webber & Chapin are not before the court in this proceeding, and they would not be bound by any decree that might be rendered herein. There is nothing in the bill to show that the creditors of Webber & Chapin assent to or recognize the validity of the assignment made by Chapin & Co. to complainant. Indeed, this court will take notice that cases are now pending in this court where the creditors of Webber & Chapin are seeking to reach the interests in property that belonged to Webber & Chapin or Oscar Webber, to satisfy debts held by creditors of Webber & Chapin, some of which is the same property the title to which complainant seeks to have this court hold to be in it. If fraudulent conveyances have been made by Oscar Webber of the partnership property of Webber & Chapin, or of his individual property, and if Joseph T. Webber and the firm of Webber Bros, are acting in collusion with him in attempting to make such conveyances, the creditors of Oscar Webber and the creditors of Webber & Chapin are interested in having such conveyances set aside. The complainant, by the case stated in its bill, has not shown that it is authorized to appear for either the creditors of Oscar Webber or the creditors of Webber & ■Chapin; nor are they made parties defendant. As these ■creditors are unrepresented in this proceeding, and there is no privity shown by the bill between Chapin & Co. or their creditors and Webber Bros, or Joseph T. Webber ■or Webber & Buck, it is difficult to see upon what theory the bill can be sustained. The assignee has already collected the assets of Chapin & Co. for the benefit of the creditors of that firm.

It is not necessary to discuss the other propositions so ably argued by counsel in their briefs.

The demurrers are sustained, with costs.

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