author: Hooker, C. J.

text:
    FIELD v. HOWRY.
    1. Bankruptcy— Discharge — Fiduciary Delations — Beoeivers.
    One who is receiver of an insolvent’s estate holds its funds in a fiduciary capacity, within the meaning of section 17 of the bankruptcy' law of 1898, providing that a discharge shall release a bankrupt from all provable debts, except such as were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in a fiduciary capacity.
    2. Same — Misappropriation of Funds.
    A receiver of an insolvent estate, who loaned the funds of the estate to a firm of which he \yas a member, misappropriated the funds, within the meaning of said section 17 of the bankruptcy act, even though he did not intend to convert the money to his own use.
    8. Same — Debt Created by Misappropriation.
    A receiver who loans trust funds to a firm of which he is a member, and takes notes which are a valid claim against his copartners, cannot maintain that his discharge in bankruptcy is a release, on the ground that the debt is not one created by a misappropriation of trust funds.
    4. Same — Mortgage Foreclosure — Deoree for Deficiency.
    A discharge in- bankruptcy is no more a defense to a petition for a personal decree for a deficiency after mortgage sale, where the mortgage was given to secure the loan of trust funds misappropriated by the defendant, than it would be in a proceeding brought against him in his fiduciary capacity.
    5. Same — Waiver by Presenting Claim.
    One who presents a claim against a bankrupt’s estate for a debt created by a misappropriation of trust funds does not thereby waive the right to proceed against him in a subsequent suit, since the bankruptcy act denies the efficacy of a discharge in case of such a debt.
    6. Mortgage Foreclosure —Personal Decree — Deficiency— Practice.
    Where the original decree on the foreclosure of a mortgage determined the amount due, that defendant, among others, was primarily personally liable, directed a sale in case of nonpayment, and that any deficiency be reported, leaving open the question of defendant’s rights under a discharge in bankruptcy, defendant could not resist a petition for a personal decree for a deficiency against him on the ground that his liability therefor was not determined by the original decree.
    Appeal from Saginaw; Snow, J.
    Submitted December 5, 1902.
    (Docket No. 44.)
    Decided April 14, 1903.
    Petition by Asa W. Field, receiver of tbe estate of George B. Wiggins, insolvent, against John W. Howry, John H. Howry, and H. Kirk Howry, for a deficiency decree after a foreclosure sale. From a decree against defendant H. Kirk Howry alone, he appeals.
    Affirmed.

      Humphrey & Grant, for petitioner.

      Weadock & Purcell, for appellant.
   Hooker, C. J.

In November, 1894, George B. Wiggins, being insolvent, conveyed all of his' property to H. Kirk Howry and Stephen L. Wiggins in trust for creditors, with preferences. Subsequently this was decreed to be an assignment for the benefit of all creditors, without preferences, at the suit of a dissatisfied creditor, and Stephen L. Wiggins and H. Kirk Howry were appointed receivers. Thp property was already in their possession as trustees under the assignment first mentioned. During all of this time a firm known as J. W. Howry & Sons was in existence. It was engaged in the business of lumbering, and was composed of John W. Howry and his sons, John H. Howry and the aforesaid H. Kirk Howry.

The receivers converted Wiggins’ property into money, and from tjme to time put it in bank in the name of one or both of them. It was not allowed to remain there long, and substantially all of the net proceeds was loaned to the firm of J. W. Howry & Sons. Wiggins appears to have had little to do with the matter, but consented to the loan. The firm gave its six promissory notes for the money loaned. The first was 'for $7,500, dated May 4, 1895, while H. Kirk Howry and Wiggins were acting as trustees. The others were made while they were receivers. The last note was dated June 1, 1896, and they aggregated $18,100, drawing 6 per cent, interest. , No interest was ever paid, and renewals were not given. Defendant says this was because the money was subject’ to call. No creditor of Wiggins ever received any portion of his claim, and the loans were made without any authority of court, and no report of such loans was made to the court until after J. W. Howry & Sons became insolvent, which occurred in July, 1896, when they suspended payment of their obligations. At this time said firm was indebted to one Grace H. Howry. On July 13,1896, John W. Howry gave two mortgages upon property belonging to him to the receivers.

The court which had appointed the receivers required them to file an account, and a hearing and examination of them was had, which resulted in the resignation of Wiggins and the removal of H. Kirk Howry, and the appointment of Asa W. Field as their successor, and the notes and mortgages were turned pver to him. The mortgages were foreclosed, and a decree was made adjudging that there was due to the complainant upon the notes and mortgages the sum of $22,170.41, and that John W., John H., and H. Kirk Howry were primarily liable for the payment thereof. The decree provided for a sale of the premises, and reserved, in express language, the right of the three Howrys, and each of them, to make the defensd of discharge in bankruptcy in any proceedings that might thereafter be taken to enforce any deficiency that should be reported. The property was sold, and a deficiency of $14,082.20 resulted.

In January, 1900, a petition was filed by the new receiver, asking a decree against the three Howrys for this deficiency. The case was begun before this court upon a preliminary question, and is reported as Field v. Saginaw Circuit Judge, 124 Mich. 68 (82 N. W. 798). A hearing has been since bad in the circuit court, where it was shown that all of the Howrys had been through bankruptcy, and that their discharge had been ordered. It was decreed that the defendants John W. and John-H. Howry were thereby discharged from this obligation, but that the liability of H. Kirk Howry arose from a misappropriation of a trust fund, and that the discharge in bankruptcy did not discharge him from such liability; and a decree was accordingly entered against him, from which he has appealed.

The liability adjudged in the foreclosure pase arises upon contract, viz., the notes. The defendant H. Kirk Howry was a joint maker of these, and, while he did not join in giving the mortgages, they were given to secure the debt, and it was proper that he be made a defendant, and adjudged primarily liable to pay the decree. He thereby became subject to further proceedings to collect the deficiency, which should be decreed ¿gainst him, unless he can show a reason to the contrary. This he attempts by showing his discharge in bankruptcy, and that is sufficient if his only liability is that of maker of the notes in question. The evidence clearly shows, however, that he diverted his trust fund from a proper use, and himself became the borrower of it conjointly with his copartners, without authority to do so from the court, whose officer he was, and in whose custody the fund was, in contemplation of law. He has had a full hearing upon the merits of this question, and that is the conclusion reached by the learned circuit judge upon the questions of fact, and in that conclusion we concur.

This leaves only some legal questions upon which the case must turn:

1. Was this such a misappropriation as to deprive him of the benefit of his discharge ?
2. If so, was any right lost to the petitioner through,the presentation of the claim by the receiver against the estates in bankruptcy of J ohn W., J ohn H., and H. Kirk Howry ?
3. Is the fact that this proceeding rests upon a foreclosure suit, instead of being an action brought directly to recover for the misapplication of the fund, an obstacle to a decree for the deficiency ?

Section 17 of the bankruptcy law of 1898 (U. S. Comp. Stat. 1901, p. 3428) provides that a discharge in bankruptcy shall release a bankrupt from all his “provable debts,” except such as “* * * were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.” We have no difficulty in reaching the conclusion that H. Kirk Howry, the appellant, received and held the funds in a fiduciary capacity, whether he received and held them as trustee under the assignment, or receiver appointed by the court. We think this is settled by the federal cases reviewed in our own case of Bryant v. Kinyon, 127 Mich. 152 (86 N. W. 531), where this statute was under consideration.

His counsel contend that the loaning of the fund to Howry & Sons was not a misappropriation, within the meaning of that statute; and they invoke the rule of ejusdem generis in support of the claim that, to be within the exception of the statute, the misappropriation must be an intentional and wrongful, if not criminal, misappropriation. It is forcibly urged that embezzlement and defalcation involve moral turpitude, as also does fraud, and that this fact explains and limits the sense in which the term “misappropriation” was used. We find it unnecessary to decide this question, further than to say that, in our opinion, such exception should not be restricted to criminal conduct. The use of the word “fraud” forbids that. Although the defendant testified that he had no intent to wrong the estate, and expected that the firm of which he was a member would pay its obligation, and he was anxious to increase the fund in his charge, the testimony shows that he’intentionally applied the fund to an unauthorized purpose of his own, and concealed such use from the court as long as possible.. We are justified in finding that he knowingly and wrongfully misappropriated the fund, though he may have expected that it would not be lost, and this brings the case within the exception in the statute. It is not necessary that he should have intended to convert the money to his own use, and deprive the cestuis que trustent of the same altogether. We accept with much doubt the testimony that the firm was worth more than a million of dollars when this loan was made, and incline to the opinion that it was in straits for money, and that, like many other misguided men, this defendant yielded to the urgency of his necessities, and used this trust fund in the hope, and perhaps expectation, that it would be replaced, but with the knowledge, nevertheless, that it was a wrongful and unauthorized use. This act was not so colored by an agreement to pay interest and the subsequent giving of security (that has since proven inadequate) as to take away its apparent culpability. So such a conversion is wrongful. See People v. Butts, 128 Mich. 208 (87 N. W. 224); Tindall v. Westcott, 113 Ga. 1114 (39 S. E. 450, 55 L. R. A. 225); Smith, Rec. § 6c.

Counsel raise the point that this is not a debt created by misappropriation, but is a loan evidenced by a contract between the receiver, who accepted, and Howry & Sons, who. gave, notes. When H. Kirk Howry wrongfully parted with this fund, he became indebted to the cestuis que trustent, and he is none the less so because he and his copartners expressly recognized an indebtedness. It was a debt created by his misappropriation, notwithstanding the existence of a valid claim against his copartners in the same connection. He cannot avoid the consequences of this exception by taking a note for the amount misappropriated, or by giving and receiving his own note; and his successor is not called upon to split hairs, or lose a security for the fund by electing to treat the firm note and mortgage as void. He received this claim and the paper from this defendant officially, and may make the most he can from them.

The case of Township of Madison v. Dunkle, 114 Ind. 262 (16 N. E. 593), is in point. There a township trustee wrongfully appropriated funds to his own use while in office, and gave to his successor his note for the amount due the township. An action was afterwards brought by the township against the defaulting trustee, who set up the claim that the giving and accepting the note relieved the debt of its fiduciary character, and that it was therefore barred by the discharge in bankruptcy. The court said:

“ This position cannot be maintained. The execution of the note did not change the character of the debt. The note is not the debt; it is a mere evidence of the debt. * * * The appellee was indebted to the township because he had, in direct violation of law, converted money intrusted to him as a public officer. He did not owe the township simply because he had executed a promissory note to its trustee, but because he had violated the law, and converted the money belonging to the township.. It is well settled that the courts will look behind a note, a mortgage, or even a judgment, to ascertain the nature of the debt, and, if it is ascertained to be one which a discharge does not bar, it will be so adjudged.” •

See, also, Howland v. Carson, 28 Ohio St. 625; In re Shutassel, 96 Fed. 597.

It is contended that this is not a proceeding in which the complainant can proceed against him, because it is not brought against him in his fiduciary capacity. The .law (section 17) is not restricted in its operation. It only says, in effect, that, when one is sued on a debt that was created by his misappropriation of a trust fund, he cannot be permitted to effectively interpose his discharge in bankruptcy. He is sued on such a debt, not as a trustee, but. personally, and his liability is personal. He does not interpose his discharge in the capacity of trustee, but as a personal protection. The only question here is whether it is a shield, and can protect him against his personal obligation. The law says it cannot, and we think it makes no difference whether it is interposed in an action of assumpsit on the liability incurred by the act — i. e., the obligation implied, or an express promise based upon it— or in an effort to collect a deficiencj growing out of the proven inadequacy of security given to and accepted by him to secure such obligation. The discharge is eliminated from the case when it appears that the debt was created by the misappropriation of money.

A further point is made in this connection. The petitioner proved his claim against the estate of the bankrupts in the bankruptcy proceedings, and it is said that by so doing he has elected to treat it as an ordinary debt, rather than a fiduciary obligation, and waived the right to question the discharge. We are cited to Bump, Bankr. (11th Ed.) p. 691, and Chapman v. Forsyth, 2 How. 208, in support of this contention, though it is admitted that the claim is disputed in Love. Bankr. § 293. We do not discover that the citation from Bump throws light upon the question. While the case in Howard held that, under an early act, the court had no jurisdiction over such claims, it also held that, if the creditor saw fit, he might waive his privilege by allowing it to be treated as a claim within the jurisdiction of the court, and that by so doing, and receiving a dividend thereon, he was precluded from afterwards questioning the discharge. But section 17 of the act of 1898 denies the efficacy of a discharge in certain classes of provable claims; and the law of 1867, § 5117 (see Bump, Bankr. 691), allowed such a claim to be proved, and applied the dividend on the account, without the attending consequence of waiver mentioned in Chapman v. Forsyth.

It is said that a personal decree was not rendered against H. Kirk Howry. We have already sustained these proceedings so far as they had then gone in the case of Field v. Saginaw Circuit Judge, 124 Mich. 69 (82 N. W. 798). We held in that case that an original decree in a foreclosure case might find a personal liability. The original decree found the amount due upon the notes and mortgages, and adjudged that this defendant and his copartners were primarily personally liable for the payment thereof, and that, unless they pay it, the premises should be sold, and that the deficiency should be reported. It is now said that this did not determine that defendants were liable for the deficiency. This is true, and the decree shows that the words used were designed to leave open the question of defendants’ rights under their several discharges in bankruptcy. We said in the case cited that it is competent, in a proper case, to determine the question of personal liability for a deficiency, and that such a decree would be final, but that the amount of the deficiency would have to be determined, and that, as the case then appeared, such was the object of the petition. By the express provisions of the decree, the bankruptcy question was reserved, with a view to its presentation on the application. We see no objection to this practice that the defendant can complain of.

The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    ROBINSON v. UNITED STATES BENEVOLENT SOCIETY.
    1. Insurance — Local Agent — Delivery of Policy.
    The local agent of an accident insurance company, to whom a policy is sent to be delivered to the applicant, is not the agent of the insured in receiving the policy, so as to effect a valid contract of insurance inconsistent with the terms of the application.
    2. Same — Application—Contract—Policy.
    Where an application for insurance provided that the contract should be complete when it was received at the company’s office and accepted by its secretary, the application and its acceptance formed the contract until the policy was issued and received in its stead.
    3. Same — Waiver.
    A person whose application for insurance is received and accepted by the company cannot be bound by a policy issued and sent to the local agent for delivery, and containing provisions inconsistent with the application, until he has had an opportunity to ratify or waive the inconsistent provisions.
    4. Contributory Negligence — Vestibule Train — Open Doors.
    A person who, in passing from his car to the dining car on a vestiome train, fell from the platform through an open vestibule door, was not guilty of contributory negligence, in the absence of any showing that he knew or should have known the door was open.
    Error to Saginaw; Beach, J.
    Submitted February 18, 1903.
    (Docket No. 96.)
    Decided April 14, 1903.

      Assumpsit by Rosa H. Robinson against the United States Benevolent Society on a contract of accident insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    On Friday, June 29, 1900, one Samuel Robinson, Sr., made a written application to the defendant for an insure anee policy. He resided at Charlotte, Mich. The defendant’s local agent at Charlotte was one Wilcox, who solicited the insurance and received the premium. Mr. Robinson was to start the following Monday morning, July 2d, for Kansas City, Mo., and this application was made in contemplation of that journey. The material portions of the application read as follows:
    “I hereby apply for insurance in the above-named society under classification AA, accident monthly indemnity, $100; accidental death indemnity, $1,000; loss of any two limbs or both eyes, $1,000; loss of one limb, $500; sick monthly indemnity after first week, $60, covering sickness originating after three months’ continuous membership. This application to be based upon the following statements of facts, which I hereby warrant to be true and complete, and is subject to the conditions of the certificate, which I agree to accept, and make the monthly payment of $3.00 on or before the first day of each month hereafter in advance. * * *
    “In case of death by accident, my beneficiary shall be Rosa H. Robinson; relationship, wife; residence, Charlotte, Mich. * * * _
    “I hereby agree that any statement made by me to the solicitor of this application, or by the solicitor to me, shall not bind the society unless written hereon; that this application shall not be binding upon the society until accepted by the. secretary; and that the certificate shall not be in force until actually issued from the office in Saginaw, Mich.”
    At the bottom of this application, and after Mr. Robinson’s signature thereto, appears the following:
    “Witnessed and recommended by F. L. Wilcox, agent.
    “Send policy to F. L. Wilcox at Charlotte, Mich.”
    Mr. Wilcox forwarded the application to the home office, and on it was written:
    “Approved and accepted 12 m., June 30, 1900.
    “Certificate number 119,524.
    “ J. B. Pitcher,
    “Secretary.”
    Mr. Wilcox received the policy from the home office on the morning of July 2d, but after Mr. Robinson had left on his journey, and then delivered it to Mr. Robinson’s son, who at noon took it to his father’s home, and left it on the sideboard. The policy contained the following provision, which is not found in the application:
    “ If death shall.result within three months from date of accident, and solely from accidental injuries, as specified in clause first hereof, received after this certificate has been in full force and effect, without delinquency, for three consecutive months immediately preceding the happening of such accident, the society will pay $1,000 to Rosa H. Robinson (wife), if surviving, otherwise to the executors, administrators, or assigns of the assured.”
    Mr. Robinson took a vestibule train from Chicago to Kansas City on the evening of July 2d, and, while passing from his sleeper to the dining car, was thrown from the train through one of the side vestibule doors which was open, and was killed. The evidence for the plaintiff showed that the night was very warm and dark, and that the side doors were left open. Plaintiff’s original declaration was based on the policy. Her amended declaration was based on the application and its acceptance. The court directed a verdict for the plaintiff.

      McKay & McKay, for appellant.

      Knight & McAllister, for appellee.
   Grant, J.

(after stating the facts). Mr. Wilcox, the local agent of the defendant, was not the agent of Mr. Robinson in receiving the policy, so that it, differing from the terms of the application, became binding upon Mr. Robinson without the opportunity to know its contents and ratify the provisions which are inconsistent with the terms of the application. The policy was sent to Mr. Wilcox for delivery to Mr. Robinson. The former so understood, and immediately sought the latter in order to deliver it. Finding that he had gone, he delivered it to the son. The contention that under these circumstances the agent of the defendant became the agent of the insured in receiving the policy, so as to effect a valid policy different from the one applied for, finds no support in authority or reason. Even an express stipulation that the agent of the company shall be deemed the agent of the insured would not change the legal status. 16 Am. & Eng. Enc. Law (2d Ed.), 909, 910.

Defendant concedes a contract of insurance, and insists that it is found in the certificate or policy issued by it and sent to its agent, Wilcox. Plaintiff insists that this certificate or policy differed from the application, and was not binding upon the deceased until he had notice of its provisions inconsistent with the application, and had expressly or impliedly ratified them, and that the application and its acceptance constitute the contract. The record discloses that this application was made in anticipation of a journey, to be commenced by Mr. Robinson three days thereafter. It was so understood by the agent. The premium was paid, forwarded, and received at the defendant’s home office. The application expressly, provides that the contract of insurance should be complete the moment that it (the application) was received at the company’s office and accepted by its secretary. The application and its acceptance formed the contract until the certificate or policy was issu.ed and received iu its stead. In insurance contracts of this character it is the duty of the company to act with reasonable promptness. Failing to reject within reasonable time, the law implies an acceptance. Mr. May states the rule as follows:

“If an application sent on approval is actually accepted by the company at its home office, though no notice,of acceptance is given to the insured, and afterwards rejected only because the premises burned before a policy was made out, the company is bound.” 1 May, Ins. (4th Ed.) § 54c.

A similar case to this is that of Preferred Accident Ins. Co. v. Stone, 61 Kan. 48 (58 Pac. 986). The application contained the stipulation that it should not be binding upon the company until accepted by the secretary, and that the policy should not be in force until actually issued from the office. The premium, as in this case, was paid to the agent, but the agent did not remit it to the company. The applicant in that case, as in this, applied for insurance in contemplation of a journey. The insured met with an accident before the policy was delivered. The only difference between the facts of that case and this is that the agent falsely stated to the insured that he had heard from the company, and that his application had been accepted. The court said that the payment of the premium to the agent was the same as paid to the company, and that:

“It could not lawfully retain the premium, and hold the application in abeyance. The retention of the premium and its failure to reject the application, its holding of. it while it took time to adjust a matter of concern only to itself, were tantamount to*an acceptance of the application and an agreement to issue the policy.”

A party applied to the local agent of a fire-insurance company for a policy on personal property, and the agent said he would write it and report it, but doubted whether the company would carry it. The agent did not write or report the risk. The property was destroyed by fire, and it was held that the contract of insurance was effected. Campbell v. Insurance Co., 73 Wis. 100 (40 N. W. 661).

An application for a policy of life insurance was made, and a receipt given by the agent, containing a stipulation that the company should not be liable until the policy was delivered to the applicant while in good health. The application was received, policy written, and sent to the company’s agent for delivery, but was never delivered. The company was held liable upon the principle that the unconditional written acceptance of the application consummated the contract. New York Life-Ins. Co. v. Babcock, 104 Ga. 67 (30 S. E. 273, 42 L. R. A. 88, 69 Am. St. Rep. 134). See, also, Continental Ins. Co. v. Haynes, 10 Ky. Law Rep. 276, and Hartford Fire-Ins. Co. v. King, 106 Ala. 519 (17 South. 707).

If it should be held that the sending of the certificate or policy to Wilcox, defendant’s agent, was equivalent to delivery to the insured, — and there are authorities which so hold, — then the case comes within Dailey v. Accident Ass’n, 102 Mich. 290 (57 N. W. 184, 26 L. R. A. 171). The duty of the defendant was to issue the policy in compliance with the terms of the application. If it chose to insert inconsistent provisions, it was its duty to call the attention of the insured to them, so that he might accept or refuse the policy. The insured has' the right to assume that his policy will be in accordance with the terms of his application, and he cannot be bound by a different policy until he has had the opportunity to ratify or waive the inconsistent provisions. See, also, Gristock v. Insurance Co., 87 Mich. 428 (49 N. W. 634), and authorities there cited.

It is urged that Mr. Robinson wals, under the undisputed facts, guilty of contributory negligence in passing from his car to the dining car while the train was running at full speed. Counsel cite and rely upon Sawtelle v. Assurance Co., 15 Blatchf. 216 (Fed. Cas. No. 12,392). The train in that case was not a vestibule train, and the deceased was either riding upon the platform or passing from one car to another. In a vestibule train there is no more danger in passing from one coach to another than in passing from one seat to another in the same car. Dining cars are attached, and one of the purposes of the vestibules is to make it safe for passengers to pass from car to car. Mr. Robinson had the right to assume that the vestibule doors were closed, and that it was safe for him to pass through. If the railroad company had removed these safeguards, it was incumbent upon defendant to show that Mr. Robinson 'either knew or should have known it. It failed to make any such showing. The railroad company had made the means of passage safe, and invited him to pass, and he> was not negligent in accepting the invitation. Bronson v. Oakes, 23 C. C. A. 520, 76 Fed. 740; Marquette v. Railroad Co., 33 Iowa, 562.

Judgment affirmed.

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


author: Carpenter, J.

text:
    PEOPLE v. DUPOUNCE.
    1. Trial — Cross-Examination.
    A witness may be asked, on cross-examination, any question material to the issue, irrespective of the extent of the direct examination.
    2. Bastardy — Evidence.
    In a prosecution for bastardy, evidence of acts of intercourse other than that set up in the complaint is admissible as bearing upon the probable commission of the act alleged.
    3. Criminal Law — Respondent as Witness — Incriminating Testimony — Waiver op Privilege.
    A respondent in a criminal case, who takes the stand in his own behalf, waives his constitutional privilege to the extent that he may be required to answer any questions material to the issue, though the answers to such questions tend to prove him guilty of some other crime than that for which he is on trial.

      Certiorari to Bay; Shepard, J.
    Submitted February 6, 1903.
    (Docket No. 199.)
    Decided April 21, 1903.
    Joseph Dupounce was convicted of-bastardy.
    Affirmed.

      Loranger & Flynn, for appellant.

      Edward E. Anneke, Prosecuting Attorney, and Letvis P. Coumans, Assistant Prosecuting Attorney, for the people.
   Carpenter, J.

.Defendant was convicted in the court below of the offense of bastardy.. The complaint alleged, and the evidence for the people tended to prove, that the bastard child was born February 9, 1901, and that it was begotten on or about May 15, 1900. The complaining witness testified that she became 16 years of age March 17, 1901. Defendant became a witness in his own behalf, and on direct examination testified that he did not have intercourse with the complaining witness in the months of April or May, 1900. On cross-examination, despite defendant’s objection that, contrary to section 32 of article 6 of the Constitution of Michigan, he was thereby compelled to be a witness against himself, he was made to answer questions which proved that he had sexual intercourse with the complaining witness in December, 1899, and that this continued until April 1, 1900; and that, though their relation was, on account of his illness, interrupted in April and May, it was resumed after June 1st. The sole question raised in this court relates to the ruling compelling defendant to give this testimony.

While it is clear that the cross-examination in this case compelled defendant to testify to the commission of the crime of rape, as the complaining witness was less than 16 years of age (see section 11489, 3 Comp. Laws), and though he could not be convicted of the offense charged in the complaint by reason of the intercourse occurring before April 1 or after June 1, 1900 (see Hull v. People, 41 Mich. 167 [2 N. W. 175]), nevertheless testimony establishing these other acts of intercourse had a legitimate tendency to prove defendant guilty of the offense for which he was being tried, and therefore to contradict his testimony on direct examination. See People v. Schilling, 110 Mich. 412 (68 N. W. 233); People v. Keefer, 103 Mich. 83 (61 N. W. 338); Matthews v. Detroit Journal Co., 123 Mich. 608 (82 N. W. 243); People v. Jamieson, 124 Mich. 164 (82 N. W. 835). If defendant, by availing himself of the privilege of testifying in his own behalf, given him by our statute (see section 10211, 3 Comp. Laws), waived his constitutional right to refuse to answer the questions complained of, the ruling of the trial court is correct; otherwise, it is erroneous.

While this court has held (see People v. Howard, 73 Mich. 10 [40 N. W. 789]) that a defendant who takes the stand as a witness in his own behalf is subject to the same inquiries upon cross-examination as any other witness, neither that nor any other decision of this court can be said to be an authority touching the precise question involved in this case. The question has, however, received the attention of the courts of many of our sister States. Contrary to the views of that eminent author and judge, Mr. Justice Cooley (see his Constitutional Limitations, at page 317), it seems to have been universally held that the defendant, by taking the stand in his own behalf, thereby waives, to a certain extent at least, his constitutional right to refuse to testify. While the supreme court of Maine has held that the statute of that State, which reads, ‘ ‘ The defendant in a criminal prosecution who testifies in his own behalf shall not be compelled to testify on cross-examination to facts that would convict or furnish evidence to convict him of any other crime than that for which he is on trial,” “does not alter the law as it stood in this State before the enactment ” (see State v. Witham, 72 Me., at page 534), the overwhelming weight of authority supports the proposition, contended for by the people, that he thereby waives his constitutional right to refuse to answer any question, material to the case, which would, in the case of any other witness, be legitimate cross-examination. Com. v. Nichols, 114 Mass. 285 (19 Am. Rep. 346); Com. v. Bonner, 97 Mass. 587; Com. v. Mullen, 97 Mass. 545; Com. v. Morgan, 107 Mass. 199; Foster v. Pierce, 11 Cush. 437 (59 Am. Dec. 152); Com. v. Smith, 163 Mass. 431 (40 N. E. 189) ; Connors v. People, 50 N. Y. 240; People v. Tice, 131 N. Y. 651 (30 N. E. 494, 15 L. R. A. 669); State v. Ober, 52 N. H. 459 (13 Am. Rep. 88); Town of Norfolk v. Gaylord, 28 Conn. 309; State v. Allen, 107 N. C. 805 (11 S. E. 1016); State v. Kent, 5 N. Dak., at page 541 (67 N. W. 1058, 35 L. R. A. 527); Disque v. State, 49 N. J. Law, 249 (8 Atl. 281); State v. Cohn, 9 Nev. 189. And this principle applies, even though the answers to such questions tend to prove him guilty of some other crime than that for which he is on trial. Com. v. Nichols, State v. Kent, and Connors v. People, supra. As, in this State, a witness may be asked, on cross-examination, any question material to the issue (People v. Barker, 60 Mich., at page 302 [27 N. W. 539, 1 Am. St. Rep. 501]; Ireland v. Railroad, Co., 79 Mich., at page 164 [44 N. W. 426]; Hemminger v. Assurance Co., 95 Mich., at page 359 [54 N. W. 949]), we are forced to the conclusion that there was no error in the ruling complained of, and that the conviction should be affirmed.

The other Justices concurred.


text:
    CREYTS v. CREYTS.
    1. Divorce — Extreme Cruelty — Condonation.
    The fact that, after being cruelly treated, a wife continues to live with her husband for several years, in the hope of receiving proper treatment, in which she is disappointed, will not prevent her from relying on the original cruelty in a suit for divorce.
    2. Same — Evidence.
    Evidence examined, and held to entitle a wife to a divorce on the ground of extreme cruelty.
    Appeal from Ingham; Wiest, J.
    Submitted February 30, 1903.
    (Docket No. 60.)
    Decided April 21, 1903.
    Bill by Carrie L. Creyts against John Creyts for a divorce. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Rollin H. Person, for complainant.

      L. B. & H. M. Gardner, for defendant.
   Carpenter, J.

Complainant appeals to this court from a decree dismissing her bill of complaint, asking for & divorce from defendant on the ground of extreme cruelty. The parties to this suit were married August 21, 1894. At that time complainant was 24 years of age, and defendant 53. The defendánt was a wealthy farmer, residing in the township of Watertown, Clinton county. He was a widower, and the father of five children, ranging in age from 26 to 17 years. By an antenuptial agreement he promised that complainant should have out of his estate, if she survived him, in satisfaction of her dower and statutory rights, $3,000, which should be increased to $4,000 in case defendant lived 10 years after their marriage. It was also agreed that complainant and defendant should permit the children of the latter — except the oldest child, who lived in the city — to reside on the farm, while they should take up their residence in the city of Lansing. Shortly after the marriage, and while complainant and defendant were on their wedding trip, defendant made an unfortunate investment. In consequence of this, it was decided that they would not go to the city to live, but would take up their home with the children by his former marriage.

Less than a year after the marriage was contracted, it was discovered that the complainant was about to become a mother. This was regarded as a personal grievance by the children of defendant living at home. According to their testimony, they “felt hard about it;” they “didn’t think it was right.” . It is very clear that they made known their feelings to complainant, and defendant told complainant that he felt sorry for them. A short time before the child was born, defendant’s children met at the house of complainant and defendant, to discuss and determine what complainant’s condition required her and ■defendant to do, and defendant compelled complainant to be present at this conference. Complainant refused to accede to the request of the children to move to a tenant house, and finally prevailed upon the defendant to tell his children that he and his wife would remain, and, if “ they could not put up with things as they were,” they might leave, but “theyremained.” Complainant and defendant continued to reside on the farm until 1898. It was certainly a most unhappy home. She and defendant’s daughters often quarreled. When she appealed to defendant, he would say: “I know nothing about this trouble; you will have to settle.it between yourselves.”

In the fall of 1898 complainant and defendant removed to the city of Lansing. In June, 1900, a serious, but not dangerous, surgical operation was performed on complainant. While she was recovering from this operation, and still in bed, the little daughter of complainant and defendant, then about four years old, was permitted to visit a neighbor’s house one afternoon. She did not return speedily, as she had promised, and complainant became very anxious, and urged that the child be sent for. Defendant refused, saying that the child had promised to come home, and he was going to see how long she would stay. At 9 o’clock the child was brought home, and, when defendant saw her coming, he turned out the lights and locked the doors, and refused to admit her, notwithstanding her screams. Complainant was nervous and worried, and in a helpless condition, but not until she threatened to get out of bed herself and open the door would defendant admit the child to its home. During this same illness of complainant, defendant did other things to provoke and annoy her. On one occasion, complainant’s brother-in-law, the husband of her sister, visited her, and, in defendant’s presence, kissed her. After he had gone, defendant — who finds no fault in his conduct — -lay down on the lounge and said, “0, how I would like to embrace your sister ! How I would like to kiss her !” repeating this statement several times in a sarcastic tone.

About five weeks after this operation, complainant, in consequence of the treatment already referred to, and other similar treatment, decided to leave defendant. She took her child and went to the house of defendant’s brother, and, while waiting there for a carriage to carry her to her father’s home, defendant drove up and carried the child away. Whether or not he intended to deprive complainant of the child, as he had threatened, is uncertain; but complainant thought, and had a right to think, that was his purpose. After some time spent in finding defendant, by driving around town with a livery rig, complainant, by a display of force, recovered her child. After staying home about four weeks, complainant, at defendant’s inter/cession, again resumed marital relations with him.

About the last of September, 1900, defendant, while attending the fair at Grand Rapids, got injured in a fight with the police of that city. He came home shortly after, and, while being treated for his ailments there, without any adequate cause whatever, became angry at complainant, left.his home, and went to the hospital. He stayed there only a day or so, and, complaining that the food was not good enough for him, and that it was not warm enough, he went to the Hotel Wentworth, and refused for several days to comply with complainant’s urgent request to return home.

On the 15th of October, 1900, occurred the last and final difficulty. Defendant, without giving any. reason therefor, demanded of complainant their marriage certificate. She, thinking that he wanted the same for some improper purpose, and desiring to preserve it, refused to grant his request, and went and locked herself in the room' where it was. He commanded her tó open the door, and on her refusal he violently pounded the door with a piece of gas-pipe until he broke the lock.

These are the salient charges made in the bill and established by the testimony. The testimony, too, establishes other charges, of a more flagrant character, not specified in the bill, and we think it creditable to complainant that she did not specify them. While we will not grant relief because of those latter charges, they, prevent our believing that defendant’s general good conduct compensated for the wrongful conduct complained of.

In reaching these conclusions we are not aware that we violate the principle, often asserted by this court, of assuming that the trial judge, having a superior opportunity of passing upon the credibility of witnesses, has determined the questions of fact correctly. We infer from the carefully prepared opinion of the learned circuit judge in this case that he found the facts substantially as we find them, and that he dismissed complainant’s bill because he did not think these facts amounted to such extreme cruelty as j ustified a divorce.

It is suggested that compelling complainant to be present at the conference when her condition of motherhood was discussed by defendant’s children was not intolerable, because she continued to live with defendant for several years thereafter. She had a right to overlook this wanton cruelty, in hopes that his subsequent conduct would be proper. If it was not, if she was subjected to other cruelty in her domestic life, there is no reason why she should not, in the proof of her grievances, rely upon this as one of her charges.

It is said that the turning of the lock and refusing to admit into its home the four-year-old baby of complainant and defendant was not cruel; that this was a method of correction that the father might properly adopt, and any injury resulting was caused by complainant’s oversensitiveness and desire to interfere. If it is true that this was a proper method of punishing the child, it is none the less true that the time and method both were well calculated to grievously wound the feelings of the sick mother and to retard her recovery. A mother who resents such a method of punishment does not display oversensitiveness or an improper desire to interfere. If she did not resent it, and was not affected by it, it might well be argued that she lacked qualities essential to a good mother.

It is insisted that there was nothing cruel in the display of force when the door was broken in to obtain the marriage certificate, because no legal harm could have resulted from its destruction. This contention implies that the only reason complainant had for resisting defendant’s attempt to obtain possession of the certificate was the fear that its destruction would cast some doubt on the validity of their mamage. We db not so understand her testimony. While it clearly appears that She was justified by defendant’s conduct in believing, and did believe, that he wished the certificate for an improper purpose, it must be admitted that she has not given a very clear statement of her reasons for resisting his demand. Neither is this strange. It is almost impossible to state these reasons in words, but we know what they aré. The sentiments of complainant’s sex, better than any words, inform us what her reasons were. We may know judicially that every wfife desires to preserve her marriage certificate. Her right of dominion over that document is universally regarded. She regards it as one of her most cherished possessions, and when her husband demands it in a manner which indicates his intention to damage it, destroy it, or make any other improper use of it, we know, better than we or she can explain, why she feels impelled to frustrate him. If it is true, as claimed by defendant, that he wanted to look at this certificate for the purpose of seeing whether there was any mistake in its date, he should have stated his purpose. He did not state that purpose, and complainant was justified, under the circumstances, in believing, as she did, his purpose to be improper, and in resisting him.

As an offset to these charges, it is suggested that complainant moved the portrait of defendant’s first wife from its place in her parlor, and put it in the storeroom; that she removed the memorial card and the plate taken from the first wife’s coffin, which occupied a prominent place in the parlor, and put them in a trunk upstairs. Her reason for this act, which seems to defendant to have been so improper, was that the eyes of the bead wife seemed always to .be on her when she lay upon the lounge, sick, in the room. It is suggested that she might have moved the lounge. This is no answer, because it appears from the testimony that the portrait had this not uncommon characteristic : Its eyes seemed to rest upon and follow whoever was in sight of ih It is not discreditable to the complainant that she removed this portrait and the mournful reminders of the death of the first wife from the conspicuous place they occupied in her parlor; but it is discreditable to the defendant that, notwithstanding this removal, and complainant’s reasons therefor, he insisted upon returning the portrait to the place it formerly occupied.

It is also said that complainant did not show proper affection for defendant’s children. The specifications of this charge are these: That she refused to permit defendant’s youngest daughter to live with them after they removed from the farm, and that she expressed hatred for one of his sons. The treatment she had received from this daughter justified complainant in this refusal. Complainant did dislike one of defendant’s sons, and had expressed her dislike in forcible language to her dressmaker. She certainly had no occasion to love this son. It was he who had suggested that complainant and her husband leave their home and go to the tenant house, because she was in the family way. Though entertaining this dislike, it is proper to note that she made no display of her feelings, and but one witness testifies to hearing her express them. Defendant certainly was not grieved by this expression of complainant’s feeling. It does not appear that he ever knew of it. Nor would he have been grieved had he known it. His own affection for this son, a grown man, did not prevent his turning him from his home just before he married complainant, and once thereafter.

The suggestions that complainant paraded her troubles before the neighbors more than was seemly, that she is not so meek as one might infer from her claim, and that she testified to many charges which are trivial in character, do not disentitle her to relief.

The decree of the court below will be reversed, and a decree entered here granting complainant a divorce, and giving her the custody of her child. She should also receive a proper allowance for alimony, and for the expenses of this suit, if defendant has nob already paid them. We shall not at this time undertake to determine the amount of such allowance, for two reasons: The record is not in a satisfactory shape to enable us to do that, and this is a matter which the parties - themselves should be able to adjust. If they are unable to do that, it may be made the subject of a future application, and we will make such order as may be necessary.

The other Justices concurred.


author: Hóoker, C. J.

text:
    ROCKWELL v. OAKLAND CIRCUIT JUDGE.
    Larceny — Dogs.
    Under 3 Comp. Laws, § 11553, .providing for the punishment of “every person who shall commit the ofiense of larceny, by stealing, of the property of another, any money, goods or chattels,” etc., a dog may he the subject of larceny.

      Mandamus by Kleber P. Rockwell, prosecuting attorney of Oakland county, to compel George W. Smith, circuit judge of said county, to vacate an order quashing an information.
    Submitted March 12, 1903.
    (Calendar No. 19,597.)
    Writ granted April 21, 1903.

      Kleber P. Rockivell (JS. M. Zimmermann, of counsel), for relator.

      Edward A. Barnes and U. Grant Race, for respondent.
   Hóoker, C. J.

The relator is prosecuting attorney for the county of Oakland, and asks a mandamus requiring the respondent, a circuit judge, to vacate an order quashing an information charging the larceny of a dog, which order was based upon the claim by the respondent that a dog is not the subject of larceny in this State.

In most of our States, larceny has become an offense of statutory definition. Thus, in some States it is provided that one who steals the personal property of another shall be punished, etc.; constituting one class. In our own and other States the provision is that “every person who shall comit the offense of larceny, by stealing, of the property of another, any money, goods or chattels,” etc., shall be punished. 3 Comp. Laws, § 11553. This constitutes another class. In several of the States, these provisions have been construed to include dogs.

Of those of the former class, the following are illustrations :

In Harrington v. Miles, 11 Kan. 484 (15 Am. Rep. 355), Mr. Justice Brewer said that a dog was the subject of larceny under a statute which made punishable, as such, “the taking and carrying away of any money, goods, rights in action, or other personal property or valuable thing whatever.” The writer said: “Now, if a dog’is personal property, or a thing of value, it would seem that the stealing of one would be larceny within the statute. ”

In Mullaly v. People, 86 N. Y. 365, one was held to have been lawfully convicted under a statute which provided that “every person who shall be convicted of stealing the personal property of another,” etc., shall be punished.

Of the latter class, the following will be found in point:

In Com. v. Hazelwood, 84 Ky. 683 (2 S. W. 489), it was held that a dog was a subject of larceny under a statute providing for the punishment of those who steal “goods and chattels.”

The same was held in State v. Brown, 9 Baxt. 53 (40 A.m. Rep. 81), where it was said that the terms “personal property ” and “goods and chattels” are convertible.

The case of Hamby v. Samson, 105 Iowa, 112 (74 N. W. 918, 40 L. R. A. 508, 67 Am. St. Rep. 285), is substantially like the case before us, our statute being similar to that of Iowa.

In all of these cases, mention is made of the fact that property in dogs has been recognized by the legislatures, and they decline to follow the hard and fast rule adhered to in the case of State v. Lymus, 26 Ohio St. 400 (20 Am. Rep. 772), which is the strongest authority cited in favor of the respondent.

The case of State v. Doe, 79 Ind. 9 (41 Am. Rep. 599), is plainly distinguishable, for the court there draws an inference, from certain legislation mentioned, that the statute defining larceny was not meant- to include dogs.

An inferior Ohio court has, since the decision in State v. Lymus, supra, sustained a charge for stealing a dog, after a modification of the statute was made by adding to .the term “personal property” the words “anything of value.” See State v. Yates, 10 Crim. Law Mag. 439. It is hard to avoid the conclusion that this disregards the earlier holding in State v. Lymus, for we must conclude that only personal property is meant to be included in the term “anything of value,” and, if there may be personal property without value, it would seem to follow that the original decision was based solely upon the proposition that a dog had no value at common law, which was clearly incorrect. If it was not so based, but was decided upon the ground that, by the common law, a dog was excepted from personal property in general, and therefore could only be included by express legislative provision, it is not clear that it should be any the less so under the amended act than before. In any event, it is apparent that the earlier decision refused to construe the statute according to the generally accepted meaning of the term used, unaffected by the common-law.rule, and that the court in the case of State v. Yates refused to follow the precedent.

In our own State, as in the others mentioned, especially in New York and Iowa, an intent to include dogs is found, because it is said that they are within the terms used in the statute according to their common meaning. There are other cases where courts find dogs to be the subjects of larceny simply upon the ground that they have been recognized as property by legislatures. This is consistent with the recognized rule that new forms of personal property become subject to existing laws. Thus, illuminating gas has been so held, though unknown as property until a comparatively recent date. Our own statute makes “ goods and chattels ” the subjects of larceny, and, while we are not disposed to say that “ personal property ” may not be considered a broader term, we have seen that statutes using each have been held to supersede the common-law rule, and to apply to all property which falls within the term used as generally understood.

The writ will issue as prayed.

Moore, Carpenter, and Montgomery, JJ., concurred. Grant, J., took no part in the decision.


author: Montgomery, J.

text:
    PEOPLE v. RICH.
    1. Criminal Law — Rape—Evidence—Complaints of Prosecutrix.
    In a prosecution for carnally knowing a girl 12 years old, evi-» .dence of complaints made by her almost immediately after the alleged offense is admissible.
    2. Same — Harmless Error.
    Where respondent in a prosecution for rape admitted that there was blood on the snow at the place where the offense was alleged to have been committed, undertaking to explain its presence, the admission of other testimony to the same effect, objected to on the ground that witness was not shown to be an expert, was not prejudicial.
    3. Same — Cross-Examination.
    Where, in a prosecution for rape, respondent’s mother, as a witness in his behalf, testified that, after the occurrence, she went with P. to see prosecutrix’s mother, evidence as to what she said to P. while so accompanying him was proper cross-examination.
    4. Same — Harmless Error.
    The exclusion of respondent’s testimony that S. had no authority to settle the case for him was not prejudicial, where he had testified that he never authorized anybody to settle the matter, and had written S. not to settle.
    5. Same — Admissions—Duress.
    The fact that admissions by a respondent charged with rape were made in th.e presence of prosecutrix’s father, who was excited, and made threats against respondent, does not necessarily require the exclusion of the admissions .as made under duress.
    6. Same— Instructions.
    An instruction that a person’s admission of guilt is strong evidence against him, unless he was under such restraint that it couldnot be said to have been made voluntarily, and that it was for the jury to determine the purpose and motive of any admission of respondent, and whether it was true, taking into consideration his testimony as well as that of the other witnesses, sufficiently guarded respondent’s rights.
    7. Same — Conspiracy.
    An instruction that respondent claimed that the prosecution was the result of a conspiracy, — “that is, there was no truth whatever in the charge,” — and that the evidence on that subject should be considered with the other evidence, but that respondent was not required to adopt any particular theory, being entitled to rest upon his plea of not guilty until the prosecution should convince the jury of his guilt, constituted a sufficient charge on such issue.
    8. -Same — Credibility of Witnesses.
    An instruction that the rules governing evidence generally applied to the respondent as a witness in his own behalf, and that the jury were at liberty to give his evidence such weight as it was entitled to in view of all the facts in the case, taking into consideration his interest in the outcome, was not misleading.
    9. Same — Reasonable Doubt.
    Where, in a prosecution for rape, the testimony of the complaining witness to the main fact was direct, the circumstantial evidence being corroborative merely, an instruction that it was not necessary that every fact and circumstance and every link in the chain be proved beyond a reasonable doubt, but that all the evidence in the case, when considered as a whole, must satisfy the jury beyond a reasonable doubt that respondent was guilty, was not erroneous.
    Error to Newaygo; Palmer, J.
    Submitted November 21, 1902.
    ( Docket No. 223.)
    Decided April 21, 1903.
    Arthur L. Rich was convicted of an assault with intent to commit the crime of rape, and sentenced to imprisonment in the State house of correction and reformatory at Ionia for two years and six months.
    Affirmed.

      Samuel D. Clay (Grove & McDonald and David E. Burns, of counsel), for appellant.

      George Luton, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was charged with the offense of statutory rape, committed on the person of a female child 12 years of age. He was convicted of an assault with an intent to commit rape, and the case is before us for review on error.

The assignments of error are numerous, but have been very properly grouped. The first four are errors assigned upon the admission of testimony of statements made by the young girl who is claimed to have suffered the assault. It is unnecessary to set out at length the objections or testimony. We are all agreed that the testimony was. clearly admissible within the previous rulings of this court. They consisted of complaints made by the child almost immediately after the offense, and the court, so far as we can discover, was careful in keeping the testimony within the limits prescribed by the rule.

Complaint is made of the ruling admitting the testimony of one George Evans that, at the scene of the alleged offense, he found snow which had a red color, produced by blood. It is said that he was not shown to be an expert ; but, whether this was necessary or not, the respondent’s own version of what occurred at this place showed that there was bloody snow, which he accounted for by stating that he injured his hand, that it bled freely, and that he gathered up the snow in his hand, and threw it down in a bloody condition.

Error is assigned upon the ruling admitting the question to the witness Anna'S. Rich, mother of respondent, as to all the conversation she had with a Mr. Pollard, when she testified that she went with Mr-. Pollard to see Mrs. Evans, the mother of the injured girl, thinking, as she testified, that she could go down and quiet Mrs. Evans. The witness was called to the stand by the respondent, and testified to the conversation at the Evans house, and that she went there with Mr. Pollard. The cross-examination as to what she said to Mr. Pollard was, therefore, clearly competent as bearing upon her direct examination.

Objection is made to the exclusion by the court of the question put to the respondent as to what he said to Prank Seaman, his brother-in-law, at the time when he went to his house at 1 o’clock in the morning after the offense was alleged to have been committed, and directly before he left the State. It is said that, had he been permitted to testify, he would have testified that Mr. Seaman „had no authority to settle the case for him. While this question might have been properly allowed, it is very manifest that no injury was done to respondent, for he had testified that he never authorized anybody to settle the matter for him, and that he wrote Mr. Seaman not to settle.

Error is assigned upon the admission of the testimony of Pollard and Sharp as to admissions made by respondent, on the ground that the admissions were not voluntary, but were made under duress and restraint. We think the circumstances are not such as to exclude this testimony as matter of law. Much of the talk was had in the presence of Mr. Evans, the father of the injured girl, who was very naturally excited, and is shown to have made threats against respondent; but that there was such restraint of the respondent as to exclude the testimony of his statements made at this time we do not find. The court charged the jury upon that subject as follows:

“If a person accused of a crime voluntarily admits the accusation, that is very strong evidence of his guilt, because it would be unnatural for a person accused of crime to voluntarily admit the accusation against himself, knowing that it would be used against himself, unless he committed the crime; and the only excejotion to that rule would he where a person is so coerced, or under such duress or restraint, as that he toould make a confession or admission involuntarily, and not of his own free will. The court has permitted the evidence in this case to come to the jury, that the jury might take it, and analyze it and weigh it, to see what is the truth of the matter; and, if the confession or admission was made, for what purpose, with what motive, and if it was true. You have a right to take into consideration the testimony of the respondent in this case on that branch of the case, as upon all other branches of the case.”

We think this sufficiently guarded the respondent’s interests in that regard.

The respondent puts forth the claim that there was a conspiracy to charge him with this offense for the purpose of getting money. It is very doubtful whether the testimony was of a character to j ustify the submission of the testimony under discussion to the jury. The circuit judge, however, did charge the jury upon that subject as follows:

“It is also claimed by the defense that this whole matter concerning the charge against this respondent is a conspiracy, or the outgrowth of a conspiracy; that it is a trumped-up charge, — in other words, made out of whole cloth, as we say in common parlance,' — and that there is no truth in it whatever. Now, that evidence goes into the case to be considered with the other evidence in the case, not necessarily as affirmative proof, because, as I said, when all the evidence in the case is before the jury, the burden of proof remains where it started, with the prosecution. • But this is the respondent’s claim. You can measure it, you can weigh it, you can sift it, and see what there is to it; that is what you may do. The defense does not have to have a theory, except as they see fit to adopt a theory. The defense is, ‘ not guilty;’ that is the plea; and, as I told you, they rest upon that plea until the prosecution shall convince the jury of the guilt of the respondent. They may meet that proof in whatever way they see fit. That is what I mean by saying that the defense rely upon a conspiracy. They may meet it by such claim as they see fit to put forth in the case.”

This charge went as far as the evidence in the case warranted.

Error is assigned upon the refusal of the court to give a request upon the subject of the weight to be given to the respondent’s testimony. The court did charge the jury that the rules governing evidence generally applied to him, and that the jury were at liberty to give it such weight as it ¡was entitled to in view of all the facts and circumstances in the case, and referred to the question of the interest which a witness might have as bearing upon his credibility. We think the jury could not have been misled by these instructions.

The only remaining question which we need to discuss arises over the instruction of the court, which, after very clearly defining “reasonable doubt,” proceeded as follows:

‘ ‘And when I say that the case must be proven as laid beyond a reasonable doubt before you could convict, I do not mean that every fact and every circumstance and every link in the chain must be proven beyond, a reasonable doubt; I don’t mean that; that would be unreasonable. I mean that the entire evidence in the case, when connected together as a whole, convinces you that it is a safe basis upon which to rest a verdict of guilty, and that you are satisfied beyond a reasonable doubt, acting upon all the evidence in the case, that this respondent is guilty of one or another of the offenses which the court has defined.”

In order that this instruction may be understood, we quote the instruction upon reasonable doubt, which was as follows:

“Now, the. court will define to you what is meant by a reasonable doubt. It is a doubt that grows out of the evidence in the case, if it exists at all. It cannot originate anywhere else. It is not an imaginary doubt, not a speculative doubt, not a doubt based upon a fancy. It is a doubt based upon reason; such a doubt as you can give a reason for. And as you investigate this case along the lines of evidence (and nowhere else) you are to say whether you find that kind of doubt in the proof which causes you to hesitate and halt in your deliberations. The court does not say to you in these instructions that if you hesitate in your deliberations until by discussion you harmonize these differences, that each place where you hesitate is a reasonable doubt; but if you reach a point beyond which you cannot go conscientiously, and say that this respondent is guilty, then your deliberations come to a halt. It is such an obstruction as you cannot, as conscientious men, get by. The train of facts and circumstances in the case moves along, and, though there be obstructions here and there on the track, if they can be removed by fair, dispassionate discussion, and you reach the end of the journey, and then become satisfied in your minds that this respondent is guilty, then you have removed these obstructions, and they are not reasonable doubts, or any one of them. But if, as I say, the train of circumstances stops, and you are unable, after,fair, calm, unprejudiced discussion, to get by that stopping place, then there is such a reasonable doubt, growing out of the evidence in the case, that you cannot get over or get by, and you should say then that the respondent should have the benefit of that reasonable doubt, and be acquitted by your verdict.”

The respondent’s counsel contend that the instruction first above quoted is in conflict with the holding of this court in People v. Aikin, 66 Mich. 481 (33 N. W. 821, 11 Am. St. Rep. 512). It is true that in that case an instruction that the jury need not be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the respondent’s guilt was held erroneous. That was a case, however, depending upon circumstantial evidence, and very clearly the rule as given by the circuit court in that case was error. But in the same case the case of Marion v. State, 16 Neb. 359 (20 N. W. 294), was cited, in which the following inquiry and reasoning appears, which is very pertinent to the present case:

“What is meant by the word ‘link,’ as used therein? If the jury were given to understand that it referred only to evidentiary facts which might add force or weight to other facts from which the inference of guilt could be drawn, then the instruction might be said to be correct.”

We think this is precisely what the jury would have understood from the charge in this case. It was not a case depending upon circumstantial evidence. The testimony of the complaining witness to the main fact was direct, and the case depended upon her statement and that of the respondent. All the other testimony in the case was corroborative. If the testimony of the complaining witness was accepted as true, the' offense, at least to the extent of an assault with intent to commit rape, was fully established. The other circumstances or “links” were, in their nature, corroborative, and the jury could not have understood the instruction in any other way.

We think no error was committed to the prejudice of the respondent, and that the conviction should be affirmed.

The other Justices concurred.


text:
    WILLIAMS v. WILLIAMS.
    Deeds — Validity—Capacity of Grantor.
    Deceased conveyed certain land to his four sons, reserving a ■ life estate, to save the property from being squandered through his intemperance. One of the sons afterwards died, leaving his father as his sole heir; and subsequently deceased conveyed the interest so inherited to F., his daughter-in-law, with whom he had lived for some time, and for whom he had great regard. The attorney who drew the deed testified that deceased was then of sound mind, and was not under the influence of. liquor, and that he knew perfectly the character of his acts; that witness endeavored to dissuade him from his purpose, but that he persisted, and that the deed was executed and delivered to witness, to be held in escrow until decedent’s death, and then to be delivered to F. Held, that the conveyance should be sustained.
    Appeal from Macomb; Tucker, J.
    Submitted January 9, 1903.
    (Docket No. 21.)
    Decided April 21, 1903.

      Bill by William A. Williams against Florence G. Williams and others to set aside a deed. From a decree for complainant, defendant Florence G. Williams appeals.
    Reversed.
    The purposes of this bill are to set aside a deed executed October 30,1899, by Charles W. Williams, now deceased, to Florence G. Williams, one of the defendants, to determine who are at the present time the owners of the'lands described in the bill, and to secure a partition thereof. The court below entered a decree setting the deed aside. That portion of the decree presents the only question before us.
    Mr. Williams settled at Mt. Clemens in 1865, where he engaged in the tailoring business, and became the owner, of the premises in question. He lived there until 1888, when'he moved into Detroit. He became addicted to the use of intoxicating liquors, largely lost his business, and became nearly, if not quite, an habitual drunkard. In 1888 he deeded the land in question to his four sons, Emil, Richard, William, and Frederick; reserving to himself and his wife a life estate in-the premises. The purpose of this deed was to prevent the property being squandered by the father on account of his drinking habits. As found by the circuit judge, its purpose was to place the property where it could not be squandered by hini, and to secure a certainty of income during his own life and the life of his wife.
    Emil and Richard lived in Detroit, and were engaged in the livery business. About two months after the execution of the deed, his wife died, and Mr. Williams went to Detroit to live with his two sons, Emil and Richard, who managed and controlled his property, boarded and clothed him, and furnished him with what pocket money he had. He lived mostly with Richard, but sometimes with Emil. Frederick died unmarried in January, 1892. His father, Charles, was his sole heir, and thereby became the owner* of the one-fourth interest in the property which he had previously deeded to Frederick. It is this one-fourth interest whic'h was conveyed by Charles-W. Williams to Florence, and is now the subject of controversy, though the deed purported to convey the entire interest.
    Richard died March 22, 1898, leaving a last will and testament. By his will he left to his wife, the defendant Florence, §1,000, — the income thereof, and the "principal, if necessary, to be used by her in supplying the necessities and wants of his father when his own income was not sufficient, — and bequeathed to his wife absolutely any part of said sum remaining after the death of the father. The remainder of his property he bequeathed to her. She was made executrix of the will, and in her final account she reported that she had turned over to herself, as trustee, the said sum of §1,000.
    Emil died September 20, 1899, bequeathing his property to his wife. After the death of Emil, Charles lived with the defendant Florence, and died May 13, 1900. The deed to defendant Florence was not recorded until July 20th, 10 days after this suit was commenced. The heirs knew nothing about the deed until her answer to the first bill, which was a bill for partition, was filed. The bill, by leave of the court, was then amended so as to contest the validity of this deed. Mr. Williams was 75 years old at the time the deed was executed.

      Clark, Durf.ee & Allor, for complainant.

      James Swan ánd Hoivard S. Dean, for appellant.
   Grant, J.

(after stating the facts). After careful examination of the evidence, we feel compelled to reach a different conclusion from that reached by the learned circuit judge. It was a very natural thing, under the circumstances, for the deceased to execute this deed transferring the property to his daughter-in-law, Florence Williams. He had lived with her and her husband for many years. He had also lived with her after her husband’s death. It is established by the evidence that she took good care of him. His feelings towards her, and the reason for them, are shown by the testimony of Mr. Rohnert, hereinafter stated. We think he was competent to execute deeds and other papers when not under the influence of intoxicating liquors. Complainant himself admits that, if he had executed a deed when he was not drunk, he should think he was competent to make it, and would know what he was doing. It is conclusively shown that he was sober when the deed in question was executed.

Mr. Morse Rohnert, then an attorney, and now one of the circuit judges of Wayne county, drew the deed, and took the acknowledgment of it. His testimony is quite conclusive of the fact that he was mentally sound, and that no undue influence was used to obtain the deed. We quote his testimony as to the execution of the deed, and what took place at the time:

“He always spoke very friendly of Florence, as he called her. He told me all that he was indebted to Florence for, and after Emil’s death he wanted me to look after the property, while he also told me that he wanted to make a deed outright of the property in Mt. Clemens to Florence. He talked to me about this matter several times. Then along about the end of October, the day the deed was drawn and signed, he came into the office one afternoon with Mrs. Florence Williams. Mrs. Florence Williams had some business to transact,- and I had her go into my private office, and I finished my business with her. He sat in the outer office at the time, and I dismissed Mrs. Williams from my private office, and then Mr. Williams spoke up and said he would like to speak with me. I called him into the office. I left the office door open, and he said that he wanted to speak privately. He then told me that he wanted me to draw this deed to Florence. Well, I talked the matter over in a general way with him, and I said, ‘Now, I have had experience with deeds of that kind.’ He told me why he wanted it done; Florence had been very kind; that he owed a great deal to Florence; his home here was really with Richard and Florence, and all the comfort he had in his declining years was due to Florence; and that, now his sons were away, although she was not related by blood, still she was looking after him and giving him a home. I told him I had had experience with people, particularly parents giving deeds to their children, and I thought he had better make a will, and leave it after his death. He says, ‘No,’ he didn’t want to make a will; that wills were contested, and he wanted to avoid any contest on a will, and he wanted to have the deed drawn up and turned over to her right away. I talked about the consideration. He says, ‘ Now, Florence, she said she would take care of me anyway; as long as I wanted a home with her I could have it; and she has always done right by me, and I know she will do so, and I want this deed made, out to her.’ I told him, ‘ If you do make out a deed, you want to reserve a life estate, anyway.’ He didn’t feel as though he wanted that, but he finally said he would reserve a life estate to himself. I then told him that I wouldn’t advise him to deliver the deed at once. ‘Well,’ he said, he wanted to deliver it. ‘Well,’ I said, ‘you had better wait a little while.’ ‘No,’ he said, he wanted it drawn; and at the same time he talked, — whether just before or just after, but he talked about getting this power of attorney executed to me. I think it was just after we had talked about the deed. He had talked before that about my drawing a power of attorney, and, of course, when he talked about the deed, I didn’t think it was necessary to have a power of attorney; but after I had talked with him, and advised him about a better way than an absolute conveyance, then he began to talk about the power of attorney again. He then directed me to draw the deed, and also the power of attorney. I drew the deed, and I drew the power of attorney; that is, I wrote in the proper parts, and I passed it out to Miss Hill to put in the description. One of the reasons why the power of attorney was drawn was because I wanted to hold off on the deed, thinking that possibly, by giving him a day or two time on the deed, that he might reconsider the deed; that is, I wanted to feel sure that he was acting under his own volition. The deed was drawn. I then called in Miss Hill, my stenographer, and I read the deed over to her; and I also gave him the purport of it in German, and asked him if that was what he wanted. He said, ‘Yes.’ I then told him, if he would, to sign it. I took his acknowledgment. Miss Hill and I signed it as witnesses. * * *
Q. And his mental condition at that time was what?
“A. Sound. He knew perfectly what he was doing.
“I then took the paper, and I told him: ‘Now, Mr. Williams, you had better think this matter over a day or two. I don’t want you to deliver it to your daughter.’ I said: ‘If you have made up your mind to give your daughter a conveyance of it now, you had better keep it off from record, and deliver it to some one in' escrow, to hold and deliver it at the time of your death, because it may be better in that way for your future comfort. ’ He thought the matter over awhile, and he.felt as though he wanted to deliver it right away. I said, ‘Now, Mr. Williams, you had better think this matter over. In the meanwhile,’ I said, ‘we will have the power of attorney executed.’ As the power of attorney was to me, I couldn’t take the acknowledgment, and I went out to find a notary. I couldn’t find a notary, — it was along in the afternoon, towards dusk, — and I came back. I says: ‘You can’t sign this power of attorney over today. You had better go home and think it over, and come back again and let me know what you want done with the deed, and at the same time you can sign the power of attorney.’ I told him then that I would suggest to him, instead of delivering the deed at once and having it recorded, to leave it in escrow with me, if he wanted, and I could turn it over to Mrs. Florence Williams at his death. I told him I thought it would insure to him better care than if he parted with his title at once, and I told him to think the matter over until he came back and executed the power of attorney. * * ❖
“He came back on the 1st, — on the day the power of attorney is executed. He came back at that time. He came back in the morning. That was two days. He came back alone. My recollection is that when he went away, so that, if there was any question about it, that I could show that it had not been delivered to me in escrow, I told him to take the deed with him. I kept the power of attorney because it hadn’t been executed, and, if he changed his mind, there wouldn’t be any need of his executing any other paper. I gave him the deed, and told him to think it over, and think of what disposition he wanted to make, — whether he wanted to deliver it at that time. I explained to him that, if he delivered it .in escrow, it was an absolute delivery to Mrs. Williams,- — she couldn’t get it until he died, and he couldn’t draw it back; and at the same time I told him to think the matter over, as to whether he wanted to actually make the conveyance. I gave him the instrument. He took it home with him, and then, at the time of the execution of this power of attorney, he came back, and he told me that he wanted to deliver the instrument to me in escrow; to hold until he died, and then deliver it to Mrs. Williams.”

Decree reversed, and decree entered in this court for the defendant Florence G. Williams, with costs of both courts.

.The other Justices concurred.


author: Moore, J.

text:
    McKAY v. VAN KLEECK.
    1. Receivers — Validity of Appointment — Collateral Attack.
    The regularity of the appointment of a receiver, as having been made without notice, cannot be questioned by bill filed in a court of concurrent jurisdiction with the court making the appointment.
    2. Same — Conflicting Rights — Jurisdiction.
    The respective rights of two receivers for the same property, appointed by different courts, should be adjusted by the court which first acquired jurisdiction; and an order of such court authorizing, in general terms, the institution of proceedings to determine the question, should not be construed as contemplating the bringing of suit in another court.
    Appeal from Kent; Perkins, J.
    Submitted December 4, 1902.
    (Docket No. 147.)
    Decided April 21, 1903.
    Bill by John A. McKay, receiver of the Home Security Life Association,, against James Van Kleeck, receiver of the Home Security Association, to determine the respective rights and status of said parties. From a decree in favor of complainant, defendant appeals.
    Reversed.

      George W. Weadock, for complainant.

      George JR. Fox, for defendant.
   Moore, J.

On the 26th of February, 1892, articles of association of the Home Security Association were filed in the office of the Secretary of State. Afterwards it engaged in business. On the 22d of October, 1891, a majority of the members of the Home Security Association adopted amended articles of association, one of which was that the association “shall be known in the law as the Home Security Life Association.”

On the 20th of May, 1899, George Mellish filed a bill of complaint, in which was recited the organization of the Home Security Association, and the names of the original incorporators, and that they or some of them managed and controlled the business until on or about January 1, 1899; that said association, in June, 1892, issued to complainant a membership certificate for the sum of $1,000, by which it agreed to pay him $1,000 at the expiration of six years; that he had paid all his assessments and demands, and that there was then due him $1,000; that it had issued many certificates of a like character; that said corporation had become and was insolvent, and unable to pay its debts; that upwards of $75,000 was then due on certificates issued by it, which said corporation admitted it was unable to pay; that its assets were insufficient to pay its liabilities. The bill also stated iLat the corporation received payments from holders of certificates after its executive board knew it was insolvent, and that it fraudulently continued to do so up to the time of the filing of the bill. The bill further charged that substantially all of the assets of the corporation had, by its officers, been paid to favored holders of certificates, and to those who had paid no consideration therefor, and especially to the Home Security Life Association, a corporation, with knowledge on the part of the officers of the first corporation that it would soon be compelled to suspend business and of its insolvency. The bill recites at length what complainant claims to be illegal and fraudulent action on the part of the defendants. The bill also recites a lack of knowledge as to the names of all the persons who should be made defendants, and claims the right, when ascertained, to add their names to the bill of complaint. It prays for an injunction, an accounting, and the appointment of a receiver.

Upon the same day the following order was made:

“State of Michigan.
“In the Circuit Court for the County of Bay, in Chancery.
“George Mellish, “ Complainant, l‘vs. “The Home Security Association, Aaron T. Bliss, Levi Tillotson, J. W. Richardson, Richard H. Williams, John W. Foot, Charles L. Benjamin, John F. Barrows, W. E. Ormsby, O. Merton Belfry, G. W. Burnham, Frank Gwizdala, and Fred A. Nichols, “ Defendants. r
On reading and filing the bill of complaint in this cause, on motion of T. E. Webster, solicitor for the complainant, it is ordered that James Van Kleeck be and is hereby appointed receiver of the moneys, property, and effects of the above-named Home Security Association, upon his executing, acknowledging, and filing with the register of this court a bond in the usual form to the people of this State in the penal sum of seven thousand dollars, with sufficient security, to be approved by the register of this court.”

Mr. Van Kleeck duly qualified as receiver, and a quantity of notes and mortgages came into his possession as receiver. July 11, 1899, the court entered an order authorizing Mr. Van Kleeck to sell the assets in his hands at auction, which he did, after due notice, for the sum of $5,000. This sale was confirmed by the court August 21, 1899, and the money was paid to Mr. Van Kleeck. October 18, 1899, Mr. Van Kleeck was directed by the court to pay H. S. Stevens $32.50 and Stanley L. Otis $39 for personal labor in examining the books and records of the Home Security Association, and these amounts were paid. December 26, 1899, the receiver was directed to pay a claim of L. T. Durand for legal services rendered and money expended for said Home Security Association, amounting to $946.40, and this sum was paid by the receiver.

In February, 1900, Marie M. Best filed a bill against the Home Security Life Association in the circuit court for the county of Kent in chancery, in which she asked for the appointment of a receiver, and John A. McKay was so appointed. Later the following order was entered:

“State of Michigan.
“ In the Circuit Court for the County of Bay, in Chancery.
“George Mellish, “Complainant, “vs. “The Home Security Asso- r ciation et al, ‘ ‘ Defendants.
“At a session of said court held at the courthouse in the city of Bay City, Michigan, on the 25th day of April, A. D. 1900.
“Present, Honorable Theodore F. Shepard, Circuit Judge.
“The above-entitled petition being brought on to be heard, and after hearing counsel for the respective parties hereto: It is ordered, adjudged, and decreed, and the court doth hereby order, adjudge, and decree, that the said Jphn A. McKay, receiver for the Home Security Life Association, be and is hereby authorized to commence and prosecute such legal proceedings as may seem to him advisable to determine the respective rights and status of said James Van Kleeck under his appointment as receiver of the Home Security Association, and said John A. McKay under his appointment as receiver of the Home Security Life Association, and the title to and possession of the funds and property now in the hands of said James Van Kleeck.
“T. F. Shepard,
“ Circuit Judge.”

Instead of proceeding in the Bay circuit court in chancery.to test the validity of Mr. Van Kleeck’s appointment, and what rights he possessed thereunder, Mr. McKay, in May, 19Ó0, filed a bill in the circuit court for Kent county in chancery, reciting, in substance, his appointment as receiver of the Home Security Life Association, the appointment of Mr. Van Kleeck as receiver of the Home Security Association, the organization of the Home Security Association, and its reorganization as the Home Security Life Association, and that the Home Security Association ceased to exist, and all its assets passed to the Home Security Life Association. The bill charges that there is no valid order appointing Mr. Van Kleeck receiver, and that by virtue of his appointment he has taken possession of the assets of the Home Security Life Association, and refuses to deliver them over to Mr. McKay. The bill recited the order which had been entered in the circuit court in the county of Bay in chancery, authorizing Mr. McKay to'commence suit, and prayed, among other things:

“ That this court will adjudge and determine the respective rights and status of your orator and of said James Van Kleeck in the premises, and of the property, money, etc., now in the hands of the said James Van Kleeck, or under his control, and to adjudge and determine to whom said money, property, etc., belongs.
“That the said James Van Kleeck may be ordered and directed to pay over to your orator all said money and property now in his hands or custody or under his control as such alleged receiver of said Home Security Association.”

Mr. Van Kleeck answered, claiming the benefit of a demurrer, denying any knowledge of the appointment of Mr. McKay as receiver, denying there was any legal reorganization of the Home Security Association, admitting his appointment as receiver by the court in Bay county, and that as said receiver he had assets belonging to the Home Security Association, but not belonging to the Home Security Life Association. The answer denied that the order entered in the chancery court in Bay county authorized the complainant to bring an action against Mr. Van Kleeck in the circuit court for Kent county in chancery, and denied that the last-named court had any jurisdiction over the defendant or the subject-matter of the action.

The case was heard by the circuit court in chancery, and a decree was made in favor of complainant, and requiring, among other things:

“That said defendant, James Van Kleeck, retain in his hands the sum of two thousand and five hundred dollars of the money in his hands as receiver of the Home Security Association, with which to pay said damages, costs, and fees allowed said John A. McKay for services as receiver of the Home Security Life Association.”

From that decree the defendant has appealed.

A great many interesting questions are presented by counsel, which we do not deem it necessary to discuss. A bill of complaint was filed in the circuit court for the county of Bay in chancery, which, if true, called for the appointment of a receiver, and a receiver in fact was appointed, who obtained possession of the assets of the company, and who, by direction of the court, has disposed of some of them. It is true it is claimed this appointment is void because the proper notices were not given. On the part of Mr. Van Kleeck it is claimed all the notice necessary was given. Whether this is so or not, the regularity of the appointment cannot be questioned in the manner sought here by appealing to a court having concurrent jurisdiction. In High, Rec. § 112, it is said:

“Under the New York chancery practice, however, if the court below had improperly allowed an ex parte application for a receiver, and the appointment was clearly irregular, defendant could not appeal directly from that order, but was required first to apply to the court below to set aside or modify the order; and if, upon a proper application, the court refused so to do, an appeal would then lie from the order denying the application. But upon an appeal from an order appointing a receiver, if the record is silent as to whether due notice of the application was given to defendant, it will be presumed that the court below did not act without proof of notice.”

In section 143 it is said:

“ Courts of equity will not permit any unauthorized interference with the possession of their receivers to be justified upon the ground that the appointment was ill-advised or illegal, and that the parties interfering were therefore not bound to regard it. It is sufficient that there is a subsisting order of the court appointing a receiver; and parties dissatisfied therewith, or deeming such order erroneous, must take the proper course to question its validity by application to the court itself, and it is not competent for any person to interfere with the receiver’s possession upon the ground that his appointment was improvidently made. The appropriate course in all cases where parties >are desirous of obtaining possession of property which has come into the hands of a receiver is to apply to the court from which he derives his appointment; and the rule is not limited to property actually in the receiver’s possession, but extends also to property which he has been appointed to receive, but which he has not yet reduced to possession.” •

See, also, section 163. See, also, Earle v. Humphrey, 121 Mich. 518 (80 N. W. 370), and the cases there cited.

It is true that, before filing this bill, Mr. McKay obtained permission to commence proceedings to determine the rights and status of the two receivers, but there is no suggestion in the petition or in the order itself that this would be done in some other court than the one which appointed Mr. Yan Kleeck as receiver. Mr. Yan Kleeck’s appointment was much earlier than Mr. McKays. It is said:

“As regards the right of possession when two different receivers have been appointed, in different proceedings, over the same fund or estate, the question of priority or precedence must be determined with reference to the date of appointment, since the courts will not permit both to act, the title of one being necessarily exclusive of that of the other.” High, Rec. § 152.

Sometimes there is a conflict between the State courts and the Federal courts. When this occurs, High, Rec. § 50, states the rule as follows:

“Questions of considerable delicacy and importance have frequently arisen under our peculiar judicial system touching the relative powers of the State and Federal courts in the appointment of receivers over the same subject-matter in litigation in both tribunals. These questions have usually been determined upon principles of comity, and it is now the established doctrine of both the State and Federal courts that that court, whether State or Federal, which first acquires jurisdiction of the subject-matter or of. the res, and which is first put in motion, will retain its- control to the end of the controversy, and the possession of its receiver will not be disturbed by the subsequent appointment of a receiver by the other court.”

The circuit court for the county of Bay in chancery, having first obtained jurisdiction of the subject-matter of the controversy, should retain it. If two courts may at the same time be making orders disposing of one fund, it is difficult to see how the officer of the court in possession of the fund can act with any safety.

The decree is reversed, and one will be entered here dismissing the bill of complaint.

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