text:
    WATTLES v. WAYNE CIRCUIT JUDGE.
    Garnishment — Appeah—Stay op Statutory Issue.
    2 How. Stat. § 8070, provides that the statutory issue in garnishment proceedings shall stand for trial, unless the principal defendant shall, within two days after judgment, serve upon the garnishee notice of a motion for new trial, or of his intention to remove the case to the Supreme Court. Section 8074 prescribes when the issue shall be tried after the affirmance of the judgment on appeal. Held, that it is contrary to the intent of the statutes for the circuit judge to require the garnishee to go to trial during the pendency of an appeal, because he believes the same to have been taken for purposes of delay, although no notice thereof was served on the garnishee.

      Mandamus by Oliver H. Wattles to compel Willard M. Lillibridge, circuit judge of Wayne county, to postpone the trial of the statutory issue in garnishment proceedings pending an appeal in the principal suit.
    Submitted December 27, 1898.
    Writ granted February 6, 1899.

      J. A. McLennan, for relator.

      Levi T. Griffin, for respondent.
   Hooker, J.

An application for mandamus to require the circuit court to postpone the trial of the statutory issue in garnishment proceedings based upon the judgment in the case of Griffin v. Wattles, ante, 346, until the principal cause should be decided by this court, has been pending in this court for some weeks before the hearing of the principal case. ' The return shows that judgment was rendered in the principal case on or about December 20,1897, and that the issue between the plaintiff and the garnishee ,was noticed for trial at the September, 1898, term of court. The cause was set for trial October 27, 1898. On October 10th, a writ of error issued from this court in the principal cause. Subsequently, a motion to continue the garnishee case was made by defendant’s counsel, which was finally denied. The court seems to have been of the opinion that the policy of the defendant and garnishee had been to delay the proceedings; that the appeal was without merit. We cannot review his discretion, and can only consider the question of defendant’s right to have the trial of the garnishee case deferred until the principal case should be finally determined.

Two sections of the statute appear to have a bearing upon this question, viz.: 2 How. Stat. §§ 8070, 8074. The former provides that the statutory issue shall stand for trial, unless the principal defendant shall, within two days after judgment, serve upon the garnishee notice of a motion for new trial, or of his intention to remove the cause to the Supreme Court. The only inference to be drawn from this is that, if the notice is served, the cause cannot be tried. It does not appear that the notice was served, but the cause was not tried. Section 8074 indicates that, if the case be appealed, the issue should not be tried until after the determination of the appeal. If no notice was served, as required by section 8070, and had the trial been had, it may be that the judgment would have been valid. But both sections 8070 and 8074 indicate that it was not intended to require the garnishee suit to be tried while an appeal of the principal suit is pending. The appeal was taken seasonably, and we think that the garnishee could not be required to go to trial during its pendency. The writ will therefore be granted, subject to the provisions for trial contained in section 8074.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    HASSE v. FREUD.
    1. Deceit — Pleading and Proof — Variance.
    A declaration for deceit alleged that defendants, by false representations, induced plaintiff to purchase worthless shares of stock. Defendants’ ownership of the stock was not alleged. Held, that it was no variance that the proof showed a purchase • from a third person, for whom payments were made to defendants.
    2. Same — False Representations — Title to Land.
    The falsity of a representation that a mining company had title to certain lands by warranty deed is established by evidence that the company had but an undivided interest in the mining rights.
    Error to Wayne; Adams, J., presiding.
    Submitted October 20, 1898.
    Decided February 6, 1899.
    Case by Julius Hasse against Julius Freud, Daniel B. Newkirk, and Sigmund Aronheim for deceit. From a judgment against defendants Freud and Newkirk, they bring error.
    Affirmed.

      Bowen, Douglas & Whiting, for appellants.

      Flowers, May & Moloney, for appellee.
   Montgomery, J.

This is an action on the case for deceit. The defendants, with one Crill and others, had formed a corporation known as the Blue Gulch Gold-Mining Company. The declaration avers that defendants induced plaintiff to purchase 60 shares of the stock, by representing that the company owned mines rich in gold ore, and exhibiting to plaintiff specimens of gold claimed to have been taken from the lands, and telling plaintiff that they had seen a rich vein of gold, which they had uncovered, and recovered, for fear it would be discovered by the natives and others, and that it was the intention to operate the mines, and that the mines would bring ample returns to plaintiff and to them, and by making other representations of a glowing character. The declaration avers that plaintiff relied on these representations, and that they were false. On the trial a verdict and judgment passed against the defendants Freud and Newkirk, and they have brought error.

It is contended on behalf of defendant Freud that he did not make the representations alleged in the declaration, and that he made no representations whatever as to the value of the property; that he was as ignorant of its value as plaintiff was; and that this fact was known to plaintiff when he purchased his shares. It is not quite accurate to say that plaintiff knew that Freud was ignorant of the facts which he assumed to state. Plaintiff testified:

‘ ‘ I don’t think anybody told me Freud had been there, but I understood the way he talked and everything— I kind of thought he had been down there. He was positive, and swore to everything Newkirk said.”

While it may be said that this testimony does not tend strongly to show that plaintiff supposed Freud was speaking of his personal knowledge as to the character of the mines, it further appears that he stated that the company had title to the lands by warranty deed, and there can be no doubt that as to this fact, at least, he assumed to speak as one knowing the facts.

It is claimed that there is a variance between the declaration and proof, in that the declaration avers that plaintiff “was induced by the defendants to purchase certain stock of said company, to wit, 60 shares, for which he paid the defendants the sum of $600,” whereas the proofs show a purchase from Crill. It will be noticed that the declaration does not state of whom the stock was purchased, and the testimony tends to show that the payments were made to defendants, or some of them. It is true, the money was received for Crill, but the transaction was sufficiently identified, there being no averment as to the ownership of the stock. There was no variance. These parties were sued as tort feasors, and the gist of the action was the false representations, for which they were responsible, regardless of whether the purchase was made from them or another.

The defendants asked an instruction to the effect that the mining company had full and exclusive title to the property for the purpose of mining. Defendants’ own testimony shows that, at the time of plaintiff’s purchase, the company had but a two-thirds interest in the mining rights.

Some assignments are directed to the charge of the court, and the refusal to charge as requested. We think the charge as given a very fair and careful statement of the law of the case, and that it sufficiently guarded the defendants’ rights. The instruction was in part as follows:

“The court also charges the jury that to constitute fraud within the meaning of the law, under the pleadings in this case, it must appear by a fair preponderance of the evidence that the defendants did commit a fraud upon the plaintiff in manner and form as charged in the declaration; otherwise, the plaintiff cannot recover, and the jury should find for the defendants. The plaintiff is not entitled to recover unless you find from the evidence in this case, by the fair preponderance of evidence, that the defendants made the representations alleged in the declaration; that such representations were false; that the plaintiff believed and relied upon such representations, and was induced thereby to make the purchase of stock, in question, and did make such purchase, and has sustained damage by means thereof. * * * I further charge you, if you find from the evidence that the defendants did not make the false representations charged in the declaration, and did not make any false representations of the facts then existing, and only exprésséd their opinions as to the future outcome and success of the property when it came to be worked, then the plaintiff would not have a right of action, although you may be satisfied that he confided in such opinions when he purchased the stock in question, and your verdict would be in favor of the defendants.”

We discover no prejudicial error. Judgment affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    MASON & HAMLIN CO. v. GAGE.
    1. Appeal — Findings op Fact — Review.
    Findings of fact by the trial court cannot be reviewed where the record shows that the testimony is not all returned.,
    2. Bonds — Conditions—Parol Evidence.
    A bond, plain and unambiguous, conditioned for an agent’s faithful performance of his duties, cannot be varied by evidence of a parol agreement that the obligation was a conditional one, depending upon immediate notification of the surety, by the obligee, of any default on the part of the agent.
    Error to Calhoun; Smith, J.
    Submitted October 21, 1898.
    Decided February 6, 1899.
    Debt by the Mason & Hamlin Company against William C. Gage as surety upon a bond. From a judgment for plaintiff, defendant brings er-ror. •
    Affirmed.

      O. S. Clark and F. M. Wadleigh, for appellant.

      Hulbert & Mechem, for appellee.
   Hooker, J.

The plaintiff is a corporation engaged in the business of selling musical instruments, and its home office is in Boston, Mass. In January, 1891, William I. Peters, of Battle Creek, was appointed agent for the sale of plaintiff’s goods, through one Arnold, who visited Battle Creek for the purpose. At the time of his appointment, Peters gave a bond to the plaintiff to secure the faithful conduct of, and accounting for, the business and property and money received by him. Peters seems to have signed the bond and conducted his business under the name of William I. Peters & Co. Charles Peters, of Chicago, and W. C. Gage, the defendant, signed the bond as sureties. The date of the bond is January 27, 1891, and its penalty is $1,000, and its condition is as follows:

Whereas, the above-named William I. Peters has become agent and representative of the Mason & Hamlin Organ & Piano Company for the sale of Mason & Hamlin organs and pianos at Battle Creek, Mich., directly and on consignment; and whereas, said William I. Peters has undertaken and promised the said company to faithfully perform duties in the above-named capacities, including all duties required of him by said company as they may be set forth from time to time in either written or printed instructions, and at the close of his undertaking as agent ■and representative, or whenever required, to render a full and true account and make promptly a final settlement with said company by a delivery to said company of all organs, pianos, moneys, notes, leases, contracts, and other property or things of value which may belong to said company, and by payment of all claims due said company by him, either on purchased or consigned goods, including all notes and obligations indorsed and guaran? teed by him: Now, if the said William I. Peters shall well and faithfully keep and perform his duties and promises aforesaid, then this obligation to be void; otherwise to be and remain in full force and effect.”

The action is upon the bond, and, upon a trial before the circuit judge without a jury, the plaintiff recovered a judgment, upon findings of fact and law, 'for $1,000. The defendant has brought the case to this court by writ of error, upon exceptions to the findings.

The assignments of error relate only to the findings; hence there is not before us any question upon the introduction of evidence; and, as the record indicates that the testimony is hot all returned, we cannot say that any finding of fact is wrong. Counsel in their brief urge that there was no dispute upon some of these questions; but that is not shown by the record.

The substantial grounds of defense appear to have been the following:

1. That, when the bond was given, it was upon the promise by plaintiff’s agent to the defendant that the plaintiff should give him (the defendant) prompt notice of any default by Peters.
2. That the contract which the bond was given to secure was changed by the plaintiff and Peters, and that the defendant was therebv released.
3. That an extension of time of payment was given Peters by the plaintiff, whereby the defendant was released.
4. That the plaintiff was dilatory in enforcing payment against Peters, and the defendant was thereby released.
' The court, in its supplementary findings, says, in regard to the questions raised,' — •
“That, in the judgment of the court upon the proofs, there has been no such change in the contract as will relieve the surety on the bond; that the time of payment of the deficit has not been extended; that, under the law and the facts in the case, if there has been laches, it is not to the extent as to relieve the defendant on his bond; and that proof of the agreement to notify the defendant of any default of Peters was not admissible, and will be stricken out as immaterial.”

As we have already said, we cannot overturn the judge’s conclusions upon disputed questions of fact, and these may all have been disputed, for aught that appears to the contrary.

On the last point, it would seem that the court did not pass upon the testimony relating to the alleged promise that the defendant should be notified at once if Peters should make default, as he states that the proof was inadmissible, and that the same would be stricken out as immaterial. This question should, therefore, be considered. The obligation was plain and unambiguous. It was, so far as appears from the writing, an absolute promise to make good the defaults of Peters. It was proposed upon the trial to show that the bond did not contain all of the contract, and that a.portion of it rested in parol, whereby it was proposed to make it appear that this obligation was a conditional one, and depended upon immediate notification of the surety, by the obligee, of the principal’s default. Counsel cite the following cases, which fully support the decision of the court upon this question: Cook v. Farnsworth, 61 Mich. 503; Cook v. Brown, 62 Mich. 479 (4 Am. St. Rep. 870); Kulenkamp v. Groff, 71 Mich. 678 (1 L. R. A. 594, 15 Am. St. Rep. 283); Aultman & Taylor Co. v. Gorham, 87 Mich. 233; McCray Refrigerator, etc., Co. v. Woods, 99 Mich. 272 (4'1 Am. St. Rep. 599); Gumz v. Giegling, 108 Mich. 295; Eaton v. Gladwell, Id. 678; Harrison v. Howe, 109 Mich. 476. We cannot agree with counsel in their claim that the decisions cited upon conditions precedent are applicable, though we recognize the rule, and have frequently held, that an instrument delivered in disregard of a condition precedent does not ordinarily take effect. This is not such a case. There was no unperformed condition precedent when the bond was delivered.

From an examination of the testimony contained in the record, we are of the opinion that the court did not err in finding or holding that the defendant was not released by plaintiff’s laches. See Ætna Ins. Co. v. Fowler, 108 Mich. 559. It is there said that “the duty which the company owed to the sureties was not a duty of active vigilance, to ascertain whether the agent had been guilty of fraud, * * * but what was due from the employer was good faith to the sureties.” Counsel call attention to a letter from the company to its agent Tarbeaux, stating that another agent, Plimpton, had informed it that Peters had sold some pianos, and that it had written Peters repeatedly, but got no reply. Tarbeaux was directed to look after the matter carefully. Apparently he did so, for two days later he wrote, saying that Peters had just sent a draft for $425, and promised to send more. His letter concluded with the statement, “I believe him honest and trying to do his best.”

We also think that such evidence as is returned fails to show a release of the surety by reason of an extension of time.

We deem a discussion of other questions unnecessary.

In our opinion, the judgment should be affirmed; and it is so ordered.

The other Justices concurred.


text:
    BEITH v. PORTER.
    1. Creditor’s Bill — Liens.
    In this State, the filing of a creditor’s bill does not, of itself, give the complainant a lien upon the property as against other creditors. German-American Seminary v. Saenger, 66 Mich. 249, followed.
    2. Same — Death of Debtor — Abatement of Suit.
    A creditor’s bill, if no lien has attached to the property, will abate on the death of the judgment debtor.
    3. Fraudulent Conveyances — Power of Administrator — Construction of Statutes.
    2 How. Stat. § 5884, making it the duty of an administrator, where there is a deficiency of assets in the estate, to sue for property “conveyed” by the deceased in fraud of creditors, is declaratory of the common law, and should be liberally construed, to cover a case where the deceased paid the consideration for property, and had title made to his wife in fraud of creditors.
    Appeal from Lapeer; Smith, J.
    Submitted October 6, 1898.
    Decided February 21, 1899.
    Creditor’s- bill by Robert Beith against Jessie Porter, Jonathan Porter, and Ann L. Empey. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      William E. Brown J. Atkinson, of counsel), for complainant,
    in support of their contention that-the filing of a creditor’s bill creates a lien as against other creditors, cited the following cases, in addition to those cited in the opinion: Ballentine v. Beall, 3 Scam. 203; Lyon v. Robbins, 46 Ill. 276; Rappleye v. Bank, 93 Ill. 396; Cole v. Marple, 98 Ill. 58 (38 Am. Rep. 83); Talcott v. Wire & Spring Co., 131 Ill. 248; Young y. Clapp, 40 Ill. App. 312, 147 Ill. 176; Russell v. Bank, 40 Ill. App. 385; Storm v. Waddell, 2 Sandf. Ch. 494; Safford y. Douglas, 4 Edw. Ch. 537; Edmeston v. Lyde, 1 Paige, 637 (19 Am. Dec. 454); Corning v. White, 2 Paige, 567 (22 Am. Dec. 659); Weed v. Pierce, 9 Cow. 722; Roberts v. Railroad Co., 25 Barb. 662; Bank v. Shuler, 89 Hun, 303; Green v. Griswold, 4 N. Y. Supp. 8; Jones v. Agricultural Co., 38 Ark. 17; Senter v. Williams, 61 Ark. 189 (54 Am. St. Rep. 200); Newell v. Morgan, 2 Harr. (Del.) 225; Scott v. McMillen, 1 Litt. (Ky.) 302 (13 Am. Dec. 239); Scott v. Coleman, 5 T. B. Mon. 73; Watson v. Wilson, 2 Dana, 406; Tilford v. Burnham, 7 Dana, 109; Lucas v. Atwood, 2 Stew. (Ala.) 378; Dargan v. Waring, 11 Ala. 988 (46 Am. Dec. 234); McDermott v. Eborn, 90 Ala. 258; Wallace v. Treakle, 27 Gratt. 479; Sweeny v. Refining Co., 30 W. Va. 443 (8 Am. St. Rep. 88); Clark v. Figgins, 31 W. Va. 156 (13 Am. St. Rep. 860); State v. Bowen, 38 W. Va. 91; Gordon v. Lowell, 21 Me. 251; Hartshorn v. Eames, 31 Me. 93; George v. Williamson, 26 Mo. 190 (72 Am. Dec. 203); Pullis v. Robison, 73 Mo. 201 (39 Am. Rep. 497); St. Louis v. Keane, 27 Mo. App. 642; Miers v. Turnpike Co., 13 Ohio, 197; Petway v. Hoskins, 12 Lea, 107; Carr v. Fearington, 63 N. C. 560; Ryttenberg v. Keels, 39 S. C. 203; Bank v. Burke, 4 Blackf. 141; McCalmont v. Lawrence, 1 Blatchf. 232; Claflin v. Lisso, 27 Fed. 420; Neal v. Foster, 36 Fed. 29; Chittenden v. Brewster, 2 Wall. 191.

      Stickney & Reed, for defendant Jessie Porter.
   Hooker, J.

The complainant, a judgment creditor of Jonathan Porter, filed the bill in this case to reach a parcel of land alleged to have been bought and paid for by Porter, but deeded to his wife, Jessie Porter, in fraud of the creditors of Jonathan Porter. Execution issued upon the judgment, and was returned unsatisfied, before the bill was filed. Jonathan Porter died soon after this suit was begun, and that fact is pleaded in abatement of the suit; and, upon the hearing upon bill and plea, the bill was dismissed, upon the authority of German-American Seminary v. Saenger, 66 Mich. 249. The complainant has appealed.

In the case cited, a bill was filed which, as to some of the property sought to be reached, was a judgment creditor’s bill on return of execution nulla bona, and, as to other property, it was in aid of execution levied upon land. So far as it was a bill in aid of execution, the court denied relief, upon the merits. The bill was dismissed upon the other branch of the case, upon the ground that—

“When a man dies, all of his property not held by some definite lien is required by law to be applied ratably in payment of all his debts. * * * The statute does not, and the rules do not, declare any lien to be created by merely filing a creditor’s bill. Until the debtor is enjoined from dealing with his property, there is nothing in the law to prevent any honest disposal of it; and, until a receiver is appointed, there is nothing which will act on the property itself. Except for the statute, a judgment creditor’s bill is like any other suit, — a mere personal litigation. Until the assets are arrested and held in some way, the death of the defendant leaves them subject to administration. This doctrine was recognized from the beginning. In Jones v. Smith, Walk. Ch. 115, it was held that the death of the judgment debtor put an end to a creditor’s bill, where no lien had attached. That must necessarily be so, because all unsecured creditors must stand on the same footing with each other. The authority of that case has never been doubted, and we think it is right.”

In Frost v. Atwood, 73 Mich. 73 (16 Am. St. Rep. 560), it was said that “no rule is better settled than that liens can only be created by agreement, or by some fixed rule of law.” See authorities there cited.

Counsel for the complainant contend — First, that the present case is distinguishable from the cases cited; and, second, that, if thought otherwise, these cases should be overruled, because not in line with the general current of authority. They insist that the bill now before us is a bill in aid of execution, while counsel for the defendant insist that it" is not. We think this question is of little importance, because, call it what we may, it is obvious that the proceeding was ‘ineffective to create a lien or create a preference, within the rule laid down in the cases mentioned, no levy having been made, and the proceedings in the case having in no way placed the property in the custody of the court. If we are to construe those cases as authority for the broad doctrine that all proceedings upon a creditor’s bill abate upon the death of the debtor, except when execution has been levied, or the property taken in charge by the court, they are conclusive in this case, and only by overruling those cases can the bill be sustained.

The statute (2 How. Stat. § 5884) authorizes and makes it the duty of administrators, when there is a deficiency of assets in the estate, to take steps to secure so much as shall be necessary to pay the debts of the estate, from any property which the deceased shall have conveyed in fraud of creditors. This statute has been before us in several cases, and it has been-held that an administrator has no authority to act in such a case until a deficiency shall be shown, through the allowance of claims, which thereby become a charge upon the estate. O’Connor v. Boylan, 49 Mich. 213; Kellogg v. Beeson, 58 Mich. 340. And in a later case it is implied that the statute should be strictly construed, and that it does not apply to a case like the present, where the decedent never had title, but caused land for which he paid the purchase price to be conveyed to a third person in fraud of creditors. The question was expressly reserved, however, and perhaps we should not treat it as a dictum even. White v. Newhall, 68 Mich. 646. The court said:

“In this case there was no conveyance by the deceased, but the deed of the land sought to be subjected to the payment of his debts by this process was executed by a stranger to the defendant, and that, too, at a time when the deceased had no creditors who could complain of such a deed, even if the purchase money was furnished by the deceased, and not by the defendant. It certainly does not come within the strict letter of the statute. But it is not necessary in this case to pass upon this question.”

The case was disposed of upon the merits.

This statute was not in force when the case of Jones v. Smith, supra, was decided, and it was not alluded to in the later case of German-American Seminary v. Saenger, supra; and we are not cited to any statute which authorized an executor or administrator to pursue property held by strangers in fraud of the creditors of his intestate. We may therefore infer that the decisions in these cases were not based upon a statute, but upon the general rule that an administrator may pursue equitable assets, as well as legal, and that he may resort to a court of equity for the purpose. Such is manifestly the rule where there are outstanding equities that the deceased himself might have enforced. In those cases they may be enforced by the administrator for the benefit of distributees or creditors; and while there are no equities in the intestate or his personal representatives against one holding land in fraud of creditors, there are such in favor of creditors, and it is not certain that they could not be enforced by the administrator, in the absence of a statute authorizing it. If they could be, the statute referred to is declaratory of the common law, though, possibly, it may be said that it was intended to impose a duty upon the administrator, or to emphasize one already existing. The authorities indicate that proceedings to recover property held in fraud of creditors might be prosecuted by the administrator at the common law.

The right of an executor to administer equitable assets is shown in 3 Williams, Ex’rs, 1545; and while a distinction may be drawn between equities which inure to the benefit of the estate, and the equities of creditors in lands held in fraud of creditors, the authority last cited indicates that property assigned in fraud of creditors is an asset in the hands of the executor. Id. Schouler, Ex’rs, § 220, states the rule thus :

“Any gift, assignment, conveyance, or transfer of property within the statute 13 Eliz. chap. 5, and analogous legislation, is void against creditors, and consequently it becomes the duty of a personal representative to procure the property by instituting, on their behalf, appropriate proceedings, considering the means of litigation at his disposal and the proof obtainable. * * * Generally speaking, property which has been assigned or conveyed by the deceased, after the manner of a gift, confers a title upon the donee or grantee, subject to the demands of prior existing creditors of the estate. The executor or administrator, representing these and other interests, against the express or implied wishes of the deceased himself, if need be, may procure all assets suitable for discharging demands of this character. * * * The personal representative’s right and duty to have a fraudulent transfer set aside may extend to proceedings by bill in equity to reach real estate thus fraudulently conveyed, so far, at least, as the interests of creditors may require real property to be reached for the satisfaction of .debts,” etc.

A reference to this subject will also be found in 7 Am. & Eng. Enc. Law, 281.

The same authors indicate plainly that equitable assets in the hands of an administrator should be fairly and evenly distributed among creditors; and in 3 Williams on Executors, at page 154=6, it is intimated that, upon a bill filed by a creditor of a deceased person, justice should be done to all creditors, without any distinction or priority. Schouler, Ex’rs, § 221. See, also, Id. § 220.

Whether an administrator may proceed in equity to set ' aside fraudulent conveyances, or 1;o enforce resulting trusts, has been a disputed question. An extended discussion of the subject will be found in the notes to Sexton v. Wheaton, 1 Am. Lead. Cas. 43, 46, et seq. Welsh v. Welsh, 105 Mass. 229; Blake v. Blake, 53 Miss. 193, and cases cited. Many of the cases dealing with questions of this kind arise upon statutes, and therefore do not afford much light on the common-law rule.

The question seems to be settled for Michigan in the two cases cited. They, inferentially at least, hold that equitable assets, including land fraudulently conveyed, or held in trust for creditors, may be recovered by the administrator, and are assets in his hands, and that the equitable rule of even and impartial distribution should be followed. The statute does not militate against this rule, unless we are to say it should be strictly construed, and therefore limits it. This statute is not in derogation of the common law; it rather emphasizes its principles; and therefore there is no occasion to apply the rule that “statutes in derogation of the common law should be strictly construed,” but there is every reason to construe it liberally. We are therefore of the opinion that the administrator may file a bill to reach property under circumstances such as exist in this case. This being so, it only remains to determine whether the Michican cases should be overruled.

The case of German-American Seminary v. Saenger, supra, is probably at variance with the weight of authority, for it is commonly held that the filing of a bill creates a lien as against other creditors, upon the property described in the bill, as will be seen by a perusal of the many cases cited in the brief of counsel for the complainant. We quote from a few of them. In Stix v. Chaytor, 55 Ark. 122, it was said: “The filing of this complaint, and service of the summons issued upon it, created a lien in favor of the plaintiffs on so much of the merchandise * * * as was then in existence.” In Davidson v. Burke, 143 Ill. 148 (36 Am. St. Rep. 367), it is said: “The filing of a creditor’s bill, and the service of process, create a lien in equity upon the effects of the judgment debtor.” See, also, First National Bank v. Gage, 93 Ill. 172; King v. Goodwin, 130 Ill. 108 (17 Am. St. Rep. 277), and cases cited. In Newdigate v. Jacobs, 9 Dana, 17, it was held that “the filing of the bill, or at least the service of the process upon it, gives the complainant a lien on the property, by placing it under control of the court.” The same rule obtains in New York. M'Dermutt v. Strong, 4 Johns. Ch. 687. In Beck v. Burdett, 1 Paige, 309 (19 Am. Dec. 436), it is said:

“In all these cases, where the property is not liable to an execution at law, the plaintiff obtains no lien upon the property or fund by the issuing or return of the execution. But it is the filing of the bill in equity, after the return of the execution at law, which gives to the plaintiff a specific lien.”

See, also, Brown v. Nichols, 42 N. Y. 26.

In Bridgman v. McKissich, 15 Iowa, 260, it was held that “a junior judgment creditor, by first instituting equitable proceedings to subject the property to the payment of his debt, acquires a priority of lien over a senior judgment creditor who is less diligent.” See, also, City of Cincinnati v. Hafer, 49 Ohio St. 60. In Freedman's, etc., Trust Co. v. Earle, 110 U. S. 710, the Supreme Court of the United States enunciates the same doctrine.

This doctrine is clearly at variance with the Michigan cases cited, as the underlying principle upon which those cases rest is that no lien arises upon the filing of the bill until the court takes possession or control of the property by virtue of its appointment of a receiver or the issuance of an injunction, and until one of these things happens, or a lien is created through a levy or in some other way, the owner is at liberty to sell the property. If this principle stands, it must be fatal to a bill filed under any circumstances, when the relief sought depends upon the existence of a lien. In the case of German-American Seminary v. Saenger, supra, the suit abated, because it appeared that the property involved was by law made subject to administration. By the death of the original defendant, the administrator became vested with authority to acquire the property upon certain contingencies, to the exclusion of the creditor, to the end that it might be equitably distributed. It is difficult to avoid the conclusion that the two cases cited proceed upon the theory that it is the policy of the law of this State to require all of the unsecured creditors of a decedent to submit to an equal distribution of his estate, equitable as well as legal, — a conclusion that the statute (2 How. Stat. § 5902) which prohibits levies of execution until after the expiration of the period allowed for the payment of debts against the estate tends to support. If this theory should be applied in a case where a debtor has deeded his property in fraud of creditors, there is little justice in refusing to apply it in a case where he paid the consideration for property, and had the title made to his wife or friend. No equitable reason occurs to us why the former should be administered and distributed equally that does not apply with equal force to the latter, and we are therefore not satisfied that the Michigan cases should be overruled. Their doc- - trine has b'een the settled rule in Michigan for over 50 years, and we think there is no such emergency as to require its abrogation. Under the Michigan cases, the death of a debtor seems to extinguish, or at least suspend, the right of the creditor to prosecute a pending creditor’s bill, when no lien exists.

The decree of the circuit court is affirmed, with costs.

The other Justices concurred.


text:
    PEOPLE v. FERGUSON.
    1. Malicious Injury to Property — Title—Evidence.
    The question whether a deed, offered in evidence by the people in a prosecution for the malicious destruction of a fence, correctly described the property on which the fence was erected, is immaterial, where it appears that such property was occupied by complainant’s grantor at the time the deed issued, and had been occupied by complainant under the deed for the statutory period of limitation.
    2. Same — Information—Designation op Persons.
    An averment in an information for malicious destruction of property, that it belonged to a specified church “society,” which word formed no part of the corporate name, does not render the information bad, in view of 2 How. Stat. § 9534, providing that no information shall be held insufficient because any person mentioned therein is designated by a descriptive appellation instead of his proper name, and 1 How. Stat. § 2, subd. 12, providing that, in the construction of statutes, the word “person” may extend to and be applied to corporations.

      3. Adverse Possession — Right oe Way.
    Where adjoining owners agreed that each might use the land of the other for a right of way until it should he wanted for some other purpose, such use was not adverse.
    4. Malicious Injury to Property — Evidence oe Malice — Expressions oe Ill-Will.
    In a prosecution for the malicious destruction of church property, evidence of respondent’s expressions of ill-will towards the members and officers of the church is competent, if directed towards them in their official capacities.
    Exceptions before judgment from Barry; Smith, J.
    Submitted November 18, 1898.
    Decided February 21, 1899.
    John P. Ferguson was convicted of malicious injury to property.
    Conviction affirmed.

      R. M. Ferguson (J. M. Jamison, of counsel), for appellant.

      Thomas Sullivan, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of malicious injury to a fence, and has brought the case here for review on exceptions before sentence. The information charges that the respondent did willfully and maliciously break down a certain fence inclosing the land belonging to the First Congregational Church Society of Middleville, Barry county, Mich.

The prosecution gave in evidence a deed running to the First Orthodox Congregational Church of Middleville, and showed a subsequent consolidation of the two societies, constituting the new society, under the name of the First Congregational Church of Middleville. The' deed ran to the First Orthodox Congregational Church of the Village of Middleville, and described by metes and bounds a portion of lot No. 13 of Hill’s addition to the village of Middleville. The proofs show that the fence which the respondent is charged with having destroyed is on lot 16 of block 49 of the village of Middleville. We do not find any testimony in the record directly showing the identity of these descriptions. It is contended, therefore, that there was a complete failure to prove title. But it was in evidence that the lot that was actually occupied by the church had previously been in the occupancy of the grantor, Hill. It also appeared that the church society had occupied this ground for a period much longer than that required by the statute of limitations, and, this being so, the title of the church society would appear to have been perfect.

It is next contended that there is a fatal variance between the proof and the information, in that the information avers the property to be the property of the First ’Congregational Church Society of Middleville, and the proofs show that the consolidated society took the name of the First Congregational Church. There can be no question as to the party intended. The corporate name may be the First Congregational Church, but the church is a society, and the addition of the word “ Society” would not render uncertain the person or corporation intended. We think the provisions of 2 How. Stat. § 9534, apply. That section provides that ‘ ‘ no indictment for any offense shall be held insufficient * * * because any person mentioned in the indictment is designated by a name of office, or other descriptive appellation, instead of his proper name.” . The word “person” may extend to and be applied to corporations. 1 How. Stat. § 2, subd. 12.

It is insisted that the circuit judge erred in refusing to direct a verdict on the ground that the proceeding is an attempt to try disputed rights. On the argument we were much impressed by this view, on the facts shown from the brief of the respondent’s counsel; but a careful examination of the record discloses testimony which tends to show that respondent, in crossing the land belonging to the church society, did not claim title. John C. Smith, one of the trustees of the society, testified that, a few years prior to the present trial, he was looking over the church ground, with a view to locating sheds. The respondent was present, and Smith stated to him that there was not room to locate the sheds and leave room to get across to them. The respondent replied: “Why can’t you go across mine? * * * Go on and use my land. I am using yours. I want to use yours, and you use mine. We will be good-natured.” Smith replied: “All right, you can use it until the church wants it for some other purpose.” It is true, this testimony was disputed, but we cannot determine the facts. The circuit judge charged on this subject as follows:

“ If the respondent acted in good faith, believing he had a right to the premises on account of the long use of them, or on account of his belief that it was reserved to him in his deed, and that he had the actual right to do what he did, and acted in good faith, then he should be acquitted by you of this charge by a verdict of not guilty.”

. This instruction' fairly presents the issue. In view of the testimony, the use made of the land by respondent was not inconsistent with the use made of the property by the church, and did not build'up an adverse right. Kilburn v. Adams, 7 Metc. (Mass.) 33 (39 Am. Dec. 754).

It is also contended that malice was not shown, and that it was error to admit proof of a feeling of enmity towards the members and officers of the society. The court charged as follows:

- “Now, the church society in this case is alleged to be the owner, and, in order to convict the respondent, the malice must be shown to have been against the church as a society. Ill-will against the minister or certain members of the church should not be considered by you only so far as it satisfies you of malice against the church as a society.”

We think this sufficiently guarded the rights of the respondent. The expressions of respondent which were proven were made at times when the officers of the church were engaged in the business of the church. We think the testimony was admissible.

We do not discover any error in the record. While it is undoubtedly true that there was, under the proofs, ample room for a different verdict, we cannot substitute our judgment for that of the jury.

The conviction must be affirmed.

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


author: Grant, C. J.

text:
    COOLEY v. KINNEY.
    1. Trial — Change of Theory on Retrial — Submission tó Jury.
    The submission of a cause to the jury on another theory than - that upon which it was submitted on a former trial is not error, where there was evidence on the earlier trial to support a recovery upon the theory finally prevailing.
    2. Accord and Satisfaction — Money Paid into Court — Conditions of Receipt.
    The receipt by plaintiff of money paid into court by the defendant in acknowledgment of liability is not an accord and satisfaction, so as to deprive plaintiff of the right to prosecute the suit for the balance claimed, unless the payment is accompanied by a condition that, if accepted, it must be taken in full satisfaction of the claim.
    Error to Van Burén; Buck, J.
    Submitted January 3, 1899.
    Decided February 21, 1899.

      Assumpsit by Cora Cooley against Hiram A. Kinney upon an account stated. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The former decision in this case is found in 109 Mich. 34. A reading of it will show the theory upon which it was then submitted to the court. Upon the former trial the plaintiff’s bill of particulars was for — First, balance struck and found to be due in consideration of the discharge of the mortgage, $400; second, for labor performed for defendant by plaintiff, 100 weeks, at $2 per week, $200. Upon the second trial an amended bill of particulars was filed, claiming $400 balance struck and found to be due in consideration of the discharge of the mortgage, and for work and labor, and that plaintiff remain with the defendant and perform household duties for him in the future, and that she desist from leaving the household, as she then contemplated. The case was fairly submitted to the jury upon the question of whether such an agreement was made. The jury found that it was made, and rendered a verdict for $453.43.

      L. A. Tabor, for appellant.

      T. J. Cavanaugh, for appellee.
   Grant, C. J.

(after stating the facts). It is urged that' there was no testimony to sustain the verdict. We cannot concur in this view. «Plaintiff testified that the defendant agreed to give her his note for $350, and “ told me, if I stayed there, and worked, that I should have the $400; ” and that she remained upon the faith of that promise, and performed the services agreed upon. An examination of. the former record in the case shows similar testimony on her part. While the case was before submitted to the jury in reliance upon the consideration for the discharge of the mortgage, this did not prevent the recovery in this case upon the other theory.

There are many assignments of error, most of which relate to the refusal to give certain requests and to the instructions given. We find no error in them. The' theories of both plaintiff and defendant were fairly submitted to the jury. The testimony was in direct conflict as to the agreement.

One point should perhaps be mentioned. Defendant admitted that there was due plaintiff $167, and paid the money into court. The clerk shortly thereafter paid this money over to plaintiff, through her attorney. Defendant urges that this was an accord and satisfaction, while plaintiff insists that it was not. Defendant gave evidence tending to show that he had made a tender of this amount, accompanied by the statement that, if taken, it must be in full of all her claims against him, and that he subsequently deposited the money in court to keep that tender good. On the other hand, plaintiff gave evidence tending to show that the money was not tendered to her, nor accepted by her attorney, in full of all demands. This question was also left to the jury, and by them determined against the defendant. The receipt of money paid into v court, unless accompanied by the condition that, if taken, /! it must be taken in full satisfaction of the claim, does noti ( bar the right to prosecute the suit. By the payment into court, the defendant admits his liability to that amount, and it belongs to plaintiff, and may at any time be withdrawn by him. Hill v. Smith, 84 Vt. 548; Hilliard v. Noyes, 58 N. H. 312; Thompson v. Townsend, 41 Mich. 346; Phelps v. Town, 14 Mich. 374.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    DENNIS v. DENNIS.
    1. Deeds — Delivery—Recitals—Evidence.
    A recital in a deed that it was signed, sealed, and delivered in the presence of the witnesses is some evidence of delivery-
    2. Same — Bill to Set Aside — Appeal—New Issues.
    Where the complainant in a bill to set aside a deed presents his case upon the theory that the deed attacked was never delivered, and raises no question as to the statute’s having run against the deed, the latter claim is not open for consideration on appeal.
    3. Same — Recording—Priority.
    The heirs of a deceased grantee in a recorded deed have no priority over the grantee in an unrecorded deed, of whose superior rights the decedent had full knowledge when he obtained his deed.
    Appeal from Kent; Adsit, J.
    Submitted January 4, 1899.
    Decided February 21, 1899.
    Bill by Mary A. Dennis, Arba Dennis, and Amelia Howell against Etta Dennis and Asa Dennis to set aside a deed. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      McKnight & McKnight, for complainants.

      Wolcott & Ward, for defendants.
   Moore, J.

The complainants have appealed from a decree dismissing their bill of complaint. Mary A. Dennis was the second wife, and is the widow, of Mahlon Dennis, deceased. The other complainants, and defendant Asa Dennis, are children of Mahlon Dennis and Mary A. Dennis. Asa Dennis declined to be a complainant, and for that reason was made a -defendant. The other defendant, Etta Dennis, is the only child and heir at law of Mary S. Dennis, who was the first wife of Mahlon Dennis.

It is alleged in the bill of complaint that in 1864 Mahlon Dennis was afraid he would be drafted and obliged to leave his invalid wife, Mary S. Dennis, and, to make provision for her, he deeded 40 acres of land to Stephen Camp, her brother, with the understanding that, if Mr. Dennis should be obliged to go to war, Mr. Camp should convey this land to Mrs. Dennis; that a deed was made, by Mr. Camp to Mrs. Dennis, but was never delivered to her, but was delivered by Mr. Camp to Mr. Dennis, . who kept it among his papers until after his death. His wife, Mary S. Dennis, died in March, 1866. It is further averred that in April, 1866, Mr. Camp reconveyed the property to Mr. Dennis, who soon afterwards married the complainant Mary A. Dennis. Mr. Dennis died in June, 1894. It is stated in the bill that about November 1, 1896, Etta Dennis stole the deed which had been executed to Mary S. Dennis, and put it upon record, and claimed to be the owner of the land described therein, which act, it is alleged, worked a fraud upon complainants, and put a cloud upon their title. The bill prayed the deed might be set aside and declared void. It also contained a prayer for general relief. It was the claim of the defendant that Mary S. Dennis received from the estate of her father the sum of $505, partly in money and partly in personal property, which was used by her husband, and the deed from Mr. Dennis to Mr. Camp, and from the latter to Mrs. Dennis, was given to reimburse her for this property, and was delivered to her, and was found among her papers by her daughter in 1894; that the deeds were made in this way because Mr. Dennis did not suppose he could deed directly to his wife. It is also claimed that, after Mary S. Dennis died, Mr. Camp and Mr. Dennis supposed the deed made by Mr. Camp to Mrs. Dennis was not good, because not recorded, and for that reason a new deed was made to Mr. Dennis.

The controversy hinges upon the question whether the deed from Mr. Camp to Mrs. Dennis was ever delivered. All of the parties to the conveyances, including the notary who took the acknowledgment, are dead. The record, especially on the part of the complainants, is made up largely of testimony which was incompetent because it was hearsay, and statements, made in the interest of the party making them, after the fact. The original deed from Mr. Camp to Mrs. Dennis is before us. The body of the deed and the acknowledgment are all in the handwriting of the notary who took the acknowledgment. The same ink was used in all this writing. A 50-cent revenue stamp, then required by law, was attached to the deed. This was canceled by using apparently the same ink used in the body of the deed. The stamp was canceled and the acknowledgment was taken August 23, 1865. This was after the war was over, and all danger from a draft was passed, indicating quite conclusively that the- deed was not made to be delivered in case Mr. Dennis was drafted, and it is in harmony with the theory that the deed was given for the consideration named therein, to wit, $500. It is recited in the deed that it was signed, sealed, and delivered in the presence of Mr. Eaton and Mr. Kingsbury. . This is some evidence of the delivery of the deed. The evidence also is quite as clear that it was found among the papers of Mrs. Dennis as that it was found among the papers of Mr. Dennis. One of the witnesses testified he had a talk with Mrs. Dennis, who complained about the management by her husband of the estate which she had received from her father; and he subsequently had a talk with Mr. Dennis, who assured him he had arranged matters with his wife by deeding 40 acres of his land to her. Not only have the complainants failed to show by competent evidence that this deed was not delivered, but the evidence preponderates the other way.

It is claimed upon the part of the complainants that the statute of limitations has run against the defendant. This claim is made for the first time in this court. There is nothing said in the bill of complaint about the complainants having obtained the title by adverse possession, nor is there any prayer asking for a decree upon the ground that complainants have held adversely, nor is there anything in the record indicating the case was tried upon that theory. We are not inclined to consider that claim now, especially as Etta Dennis claims to be in possession of the premises by her tenant.

It is also claimed, as the deed from Mr. Camp to Mahlon Dennis was put upon record prior to the recording of the deed of Mr. Camp to Mrs. Dennis, the complainants hold title by priority in recording the deed. The trouble with this contention is that Mr. Dennis had actual notice of the deed from Mr. Camp to Mrs. Dennis when he obtained and recorded his deed.

Decree is affirmed, with costs.

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


author: Per Curiam.

text:
    SCHURTZ v. KELLEY.
    Continuance — Denial—Review.
    Circuit Court Rule No. 22 (a) provides that no motion for continuance, made after the first day in term, shall be heard, unless a sufficient excuse is shown for the delay. Held, that the denial of a motion for continuance, made in the second week of the term, was not open for review, where the delay was unexplained.
    Error to St. Joseph; Yaple, J.
    Submitted January 4, 1899.
    Decided February 21, 1899.
    Summary proceedings by John G. Schurtz, administrator of the estate of Elemanda Bogert, deceased, against James W. Kelley and wife, to recover the possession of land. From a judgment for complainant, defendants bring error.
    Affirmed.

      H. J. Barton, for appellants.

      H. P. Stewart, for appellee.
   Per Curiam.

This case originated in justice’s court. In the circuit court, defendants moved a continuance, which was refused.' Both parties noticed the case for trial. The motion was not made till the second week of the term, and no excuse was shown for delay in making the motion the first day of term, under Cir. Ct. Rule No. 22.

Judgment affirmed.


text:
    BROWN v. AVERY.
    1. Tax Titles — Who May Acquire — Mortgages.
    A purchaser of land under a contract providing for the payment by him of j taxes thereafter assessed, who assumes, as part of the purchase price, a mortgage containing covenants of warranty and an undertaking to pay all taxes, and who arranges with the mortgagee for an extension of the time of payment, cannot, in a foreclosure suit, set up a subsequently-acquired tax title to defeat the mortgage, although the taxes were delinquent at the time of his purchase.
    2. Same — Estoppel.
    A mortgagee who, at the time of granting an extension to one who assumed the mortgage upon purchase of the property, represented in good faith that the taxes were all paid, is not thereby estopped from enforcing his mortgage as against a tax title subsequently acquired by the purchaser, and based upon , an existing unpaid tax; at least, not further than as to the amount paid for the title.
    Appeal from Genesee; Wisner, J.
    Submitted January 24, 1899.
    Decided February 21, 1899.
    Bill by Charles S. Brown and David Richards, executors of the last will and testament of Benjamin Cotharin, deceased, against Charles R. Avery, Debbie J. Avery, and Edgar J. Osband, to foreclose a mortgage. From a decree for complainants, defendants appeal.
    Affirmed.

      James H. McFarlan, for complainants.

      Black & Brown, for defendants.
   Hooker, J.

Robert E. Wade and wife, Belle F. Wade, held the original title to the land in question. On September 16, 1890, they made a mortgage thereon to Cotharin, complainants’ testator. On April 28,1896, Robert E. Wade and Debbie J. Avery executed a contract, by the terms of which the latter and her husband agreed to purchase, and the former and his wife to sell, the premises for the sum of $600, andvto pay-all taxes that should be thereafter assessed. It was agreed that Avery should have immediate possession of the premises. Mrs. Wade did not sign the contract, though she was described in it as a party to it, and it is claimed that it was made with her assent, which seems undisputed. On the same day, Wade and wife executed a warranty deed of the premises to the Averys, which was held by Theodore J. George in escrow, to be delivered on payment of $200, George having negotiated the sale. This was subject to the mortgage given to Cotharin, which was according to the arrangement between the parties. He extended the mortgage five years, at the request of the Averys, who took immediate possession of the premises, and have occupied them since. December, 1896, Middleton bought a tax title upon the premises, the same having been bid in by the. State for the tax of 1893, and on December 10, 1896, the Averys were informed of his purchase. In April, 1897, a deed was made from the auditor general to Middleton, who on May 14, 1897, conveyed his title to the Averys for $25. Subsequently Avery and wife mortgaged the premises to Osband. Ootharin’s executors filed the bill in this cause to foreclose the mortgage held by them, making the Averys and Osband parties. A decree was rendered for the complainants, and the defendants have appealed.

It was shown that none of the. parties to the contract knew of the unpaid tax of 1893 until after Middleton bought it, and that Mrs. Avery called upon Cotharin, when she bought the place, for an abstract, having learned that he had one. He said that he had it, but did hot have time to get it; that it was all right. Subsequently she called to get him to extend the mortgage, which he did. She then said she was going to the court-house, to see if there was anything back on the place, and he said there was not, and she believed him. He said the taxes were all paid, and he would guarantee the title absolute, with the exception of the mortgage., The papers were drawn the next day. Before Middleton took his deed, he informed the Averys that he had bought the tax title, and that it would cut off their interest.

The defendants contend:

1. That they are not proper parties, inasmuch as, by a pui’chase of the tax title, they hold a distinct, adverse, and paramount title to that of the mortgagor.
2. That the Averys succeeded to Middleton’s title, which was absolute, and, as they did not agree to pay the back tax, they were not estopped from purchasing the outstanding tax title, which had extinguished the former title held by Wade.
3. That the representations and guaranties of Cothax’in that there were no liens against the property preclude complainants from claiming under Wade’s title through the mox'tgage.

The mortgage given by Wade to Cotharin contains covenants of warranty, and an undertaking to pay all taxes. The defendants Avery purchased the equity of redemption, and the payment of the mortgage was a part of the agreed purchase price. They took possession under the arrangement. In addition to this, they arranged with Cotharin for an extexxsion of the time for the payment of his mortgage. Thus, they were under contract obligations with the Wades, if not with Cotharin, to assume this mortgage and perform its conditions. In equity they would be held primarily liable for the debt, and a decree for deficiency would be entered against them. Were the mortgagor, Wade, attempting to make this defense, it would be said that his purchase of the outstanding tax title was the performance of a duty which he owed to the mortgagee, and there is force in the claim that these defendants are in the same position. Several cases cited by counsel recognize a duty of this kind growing out of the relations of the parties, and the application of the rule is not confined to cases where the person taking the tax title owes the duty of payment to the State. Thus, in Fells v. Barbour, 58 Mich. 49, it was held that an execution purchaser of the equity of redemption owed to a prior mortgagee the duty of payment of taxes, and that a purchase of tax titles amounted to payment. The same is true of a grantee or second mortgagee. Connecticut Mut. Life Ins. Co. v. Bulte, 45 Mich. 113. The court said in the latter case that:

“It is conceded that there are a great many cases in which parties standing in particular relations to the land, or to the owner or other person interested therein, are not suffered to acquire tax titles and rely upon them as against other claimants. Some of those are very plain, and it is quite unnecessary to do more than name them. A tenant, for example, who has covenanted to pay the taxes, cannot be suffered to neglect this duty, and then acquire a tax title which shall cut off the title of his landlord. Neither shall the purchaser in possession under an executory contract be allowed to cut off the rights of his vendor by a like purchase, nor a mortgagor that of his mortgagee. A tax purchase made while such a relation exists is made in wrong, and the law, in circumvention of dishonesty, will conclusively presume that it was made in the performance of duty, and not in repudiation of it.”

See, also, MacEwen v. Beard, 58 Minn. 176; Allison v. Armstrong, 28 Minn. 276 (41 Am. Rep. 281); Washington, etc., Trust Co. v. McKenzie, 64 Minn. 273; Avery v. Judd, 21 Wis. 262; Horton v. Ingersoll, 13 Mich. 409.

But, as already stated, the obligation of the Averys does not rest alone upon their relation to their vendor, and through him to Cotharin, but they are under contract obligations with both of them to perform the contract of warranty and to pay the taxes, as contained in the mortgage. This was, in effect, an agreement to pay the back tax, and any purchase inures to the benefit of the complainants.

The claim that complainants should be estopped by Cotharin’s statement to Mrs. Avery that the title was absolute, except as to the mortgage, possesses little merit. His representation was honestly made, and, even if it were to be held to be a guaranty, it would affect his claim only to the extent of $25, the amount paid for the title. But defendants have not paid in full the amount due the Wades, to whom they probably have the right to look for reimbursement.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    HALL v. MURDOCK.
    1. Second Appeal — Law op Case.
    A decision concerning the propriety of submitting an issue to the jury, made on a former appeal of- the case, is binding on a subsequent appeal, where the testimony on the last trial was the same.
    2. Negligence — Admissions op Agent — Hearsay.
    Admissions of an agent in charge of an elevator at the time of an accident, that the cable was out of repair, are not competent to charge the principal with negligence.
    3. Trial — Instructions—Elevators—Duty to Test Cable.
    In an action for injuries sustained while riding on an elevator, the cable of which is alleged to have been defective, an instruction to the jury directing them to consider the necessity of periodical tests, and permitting them to base a verdict upon their own opinions of the practicability and necessity of tests, in the absence of evidence to show what, if any, kind of test of strength was practicable or reasonable, — is erroneous.

    Error to Calhoun; Smith, J.
    Submitted January 2á, 1899.
    Decided February 21, 1899.
    Case by Charles E. Hall against Sarah M. Murdock, impleaded with Gilson E. Murdock, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John C. Patterson (H. E. Winsor, of counsel), for appellant.

      Lyman B. Trumbull and Charles A. Blair, for appellee.

       As to liability for injuries to elevator passengers, there is a note to Mitchell v. Marker, (C. C. App. 6th C.) 25 L. R. A. 33.

   Hooker, J.

The defendants are husband and wife, and were charged with negligence in maintaining an elevator upon which the plaintiff was injured while riding in company with Mr. Murdock by his invitation. A former trial was reviewed in 114 Mich. 233, where an outline of the case will be found. At the last trial a verdict of $800 was returned, and Mrs. Murdock has appealed.

It is contended that there was no evidence tending to show that Mrs. Murdock was interested in the storing of the plaintiff’s goods, or that Mr. Murdock was authorized or attempted to act as her agent in relation thereto, or in extending an invitation to the plaintiff to ride upon the elevator; also, that there was no evidence tending to prove that the elevator was out of repair, except the statements of her husband, and the exhibition of a" short piece of the cable, and that the former should not have been considered by the jury as against her, and that the court erred in refusing to strike it out as against her, and in allowing the case to go to the jury, and that the following instruction was erroneous:

“I thought I would say further about that, if you find as a fact that Murdock admitted to Raub that the cable was worn out, that would be an admission as to the condition of the cable, and would bind him. An admission of his I don’t think would bind Mrs. Murdock, but if you find from the evidence, under the charge I gave you, that Mrs. Murdock would be liable because of the negligence of Mr. Murdock; if you find he was negligent in the care of the cable, and further find he was acting as her agent in the care of the elevator and building, — then she would be bound by the proof as to the condition of the cable at the time of the accident, not really because of the admission, but because the admission, if proven and believed,, has a tendency to show the condition of the cable at the time. In other words, there was considerable proof in the case regarding the ownership of the building, and what was done with the rents and profits. Now, if you find from the facts and evidence in the case, and under the charge of the court as submitted to you, that Mrs. Murdock is holden with him, if he is holden for his negligence, then the fact of an admission of the condition of the cable, if you find that to be proven, would bind Mrs. Murdock as to its condition as much as it would bind Mr. Murdock."

The plaintiff’s theory was that the building belonged to Mrs. Murdock, and that there was evidence tending to show that Mr. Murdock collected the rents for the portions that were rented, on behalf of and for his wife, and that from this the jury might find that he acted as her agent, not only in collecting the rents, but in storing the goods and inviting the plaintiff to ride upon the elevator. It may be that the question of Mr. Murdock’s agency upon all of these matters is foreclosed by the former opinion, where it says:

“The plaintiff called Mrs. Murdock as a witness, and she testified that, after the property ‘ was deeded to me, he [Mr. Murdock] was to have charge of the business. He was to collect rents. He was not to have the rents.’ Upon cross-examination by her counsel, she testified that she was mistaken when she testified as above, and that the rents belonged to her husband. Under this testimony, it was not error to leave the question of her liability to the jury, which the court did, under proper instructions.”

As this-testimony was the same at the last trial, inasmuch as it was read from the notes of testimony taken at the former trial, the contention that the court should not have left to the jury the questions of whose business it was, and whether the husband was acting as his wife’s agent, is met by the former holding upon those subjects. The same is true of the claim that there was no evidence of negligence, as it is settled that there was, upon a record substantially similar. But that decision does not say that the admission of the husband might be used to prove negligence against the wife, nor does it appear that a charge similar to that quoted above was given. The statements of an agent, when made in the course of his employment, and while engaged in the business of the principal, are binding upon the principal, because they are a part of the res gestee j but no agent is employed to make admissions outside of his employment. Rose v. Chapman, 44 Mich. 312; Canadian Bank of Commerce v. Coumbe, 47 Mich. 358; Stansell v. Leavitt, 51 Mich. 536; Benner v. Feige, Id. 568; Mechera, Ag. § 714, and note; Patterson v. Railway Co., 54 Mich. 103. In the" case of Vicksburg & Meridian Railroad v. O’Brien, 119 U. S. 105, the court, quoting Mr. Justice Strong (Packet Co. v. Clough, 20 Wall. 541), states the reason of the rulé to be that “the agent to do the act is not authorized to narrate what he had done or how he had done it, and his declaration is no part of the res gestae. ” Counsel do not appear to dispute this legal proposition, and the learned circuit judge recognized the rule in his charge. The paragraph quoted was probably an inadvertence, the jury having returned for further instruction. This fact made it the more injurious, however, as it tended to give emphasis to what was said. The argument of counsel for the plaintiff, contained in their brief, shows their interpretation of this instruction:

“We submit that the instructions of the court on pages 276 and 277, construed in the light of his former instructions, naturally mean, and must have been understood by the jury to mean, that if they found that she was liable for the negligence of her husband, and they found that he made the admission to Raub, and was bound by it, as to the condition of the cable at the time of the accident, and was negligent, then, since his negligence was her negligence, she also was bound. If the jury found that Gilson E. Murdock was liable to the plaintiff for negligence, and that he was acting as the agent of Sarah M. Murdock, then Sarah M. Murdock was liable. Whatever evidence bound Gilson E. Murdock, and rendered him liable to plaintiff as the agént of Sarah M. Murdock, also rendered her liable, not because his admission bound her as a matter of law, but because whatever made him liable as her agent made her liable as his principal.”

It also shows the fault of the proposition, claiming as it does that the admission might, under the circumstances, bind Mrs. Murdock. The instruction given was equivalent to saying that Mrs. Murdock could not be bound by these admissions unless Murdock was her agent, but, if he was her agent, she would be bound by them, if the jury were able to find from such admissions and other testimony that he was negligent, for the reason that, being her agent, his negligence was her negligence. The impropriety of this may be illustrated in another way. Suppose Mrs. Murdock alone had been prosecuted for the negligence of her agent. In that case she might have been found guilty upon proof of the negligence of her agent, but not upon his admission of such negligence, which would have been excluded. Manifestly such admissions are no more binding upon the wife by reason of the husband being joined than as though she were sole defendant.

Error is assigned upon the following instruction:

“The duty of the defendants in this case required them not only to test the cable of the elevator before it was put into use, but also to test it from time to time subsequently, in order to ascertain whether it was deteriorating by wear and tear. The test of negligence in such cases is not whether the particular defect which was the cause of the injury could possibly have been detected by the use of scientific means of investigation, but whether the defect ought to have been observed practically, and by the use of ordinary and reasonable care, and whether the defendants used in this case such reasonable and ordinary care. This is for you to determine from the evidence in this case. It is for you to determine, from all the circumstances of the case, whether the inspections as made, by looking at the cable, were sufficient, or whether tests of its strength should have been made. It was the duty of the defendants to make such tests of the strength of the cable as were reasonable and practical; and it is for you to say, under all the evidence in the case, whether they did make such tests; and, if you find they did not, then they would be guilty of negligence. You are to be governed in its consideration by the evidence in the case, and decide it with reference to this cable and the uses to which it was placed. It would be the duty of the owners of the elevator to use ordinary care in looking after it, and to keep it, as far as they could by such ordinary care, safe for the uses to which it was placed; and if you believe from the evidence in the case that a test of the tensile strength of the cable, when inspected, was necessary, then they should have done it. ”

This states unqualifiedly that the owner of the elevator was required by law to test the strength of this cable from time to time. Afterwards it leaves it to the jury to determine whether tests of strength should have been made. It does not point out any rule by which the jury could determine such necessity; nor do we find anything to show how tests might be made, or what kind of tests would be adequate, practicable, and safe. There is nothing in the case to indicate that it was feasible to have the elevator taken down and the cable detached, that it might be subjected to a strain to determine that it was safe. It is obvious that tests might be made by subjecting the elevator to heavier loads than it was expected to carry. But in either case such test might, by weakening the cable, hasten the catastrophe that such tests were intended to avert. There was no evidence that such or any other kinds of tests of the strength of elevator cables are common, and we cannot take judicial notice that they are common, or that it would be prudent to make them. Apparently it would be safe to rely upon inspection and examination, rather than upon tests of a cable which might impair it. But the jury were directed to consider the necessity of periodical tests, and permitted to base a verdict upon their own opinions of the practicability and necessity of tests, when there was nothing in the case to show what, if any, kind of a test of strength was practicable or reasonable.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    WILLIAMS v. CITY OF WEST BAY CITY.
    1. Pleading — Demurrer—Waiver oe Objections.
    Objections to a declaration raised by demurrer are waived by pleading the general issue after the overruling of the demurrer, and going to trial upon the merits.
    2. Personal Injuries — Physician’s Services — Evidence.
    In an action for personal injuries brought by an unmarried woman dependent on herself for support, the physician whom she called to attend her may testify to the value of his services.
    3. Trial — Remarks oe Court — Disparagement oe Attorney.
    An attorney at law, as an officer of the court, is entitled to such treatment from the trial judge that the interests of his client will not be prejudiced; and where such treatment is not accorded him, as where the court makes remarks well calculated to disparage the attorney in the eyes of the jury, a judgment against his client will be reversed.
    4. Same — Credibility oe Witnesses.
    It is improper for the court to indicate to the jury his opinion as to the credibility of the witnesses.
    Error to Bay; Maxwell, J.
    Submitted January 25, 1899.
    Decided February 21, 1899.
    Case by Susan Williams against the city of West Bay City for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Lee E. Joslyn, for appellant.

      John Golden (Van Kleeck & Anneke, of counsel), for appellee.
   Moore, J.

The plaintiff recovered judgment against defendant for injuries received by her upon a defective sidewalk. Defendant has appealed to this court, assigning a good many errors. All of them have been considered, but we do not deem it necessary to discuss them all.

It is claimed that the declaration is insufficient. Defendant demurred to the declaration, and, when the demurrer was overruled, did not rest upon the demurrer, but pleaded the general issue, and tried the case upon the merits. We think the declaration was sufficient, after the plea of the general issue, and a trial upon the merits is had. Moody v. Township of Shelby, 110 Mich. 396; Storrs v. City of Grand Rapids, Id. 483; Snyder v. City of Albion, 113 Mich. 275.

Dr. Tupper, who attended the plaintiff, was allowed to testify to the value of his services. This is said to be error; citing Rogers v. Village of Orion, 116 Mich. 324. The record shows plaintiff was a widow, who supported herself, and that she called Dr. Tupper as her physician. Under these circumstances, we think the testimony competent.

Plaintiff claimed that she received her injury on a defective walk. She gave testimony tending to show that a flagstone upon one of the principal streets of defendant city was displaced, causing a depression of three or four inches, and that by reason thereof the walk was not reasonably safe and fit for travel. It was the claim of the city that the walk was not defective. Testimony was given in support of each of these contentions. A witness called for the plaintiff testified in part, when the following occurred:

“The Court: How long did you know of that stone, or the existence of that defect in the walk, before the accident happened, — before March, 1897?
“Mr. Joslyn: I want to object to the question of the court in calling it a ‘defect in the walk,’ and ask for an exception to the question.
“The Court: I won’t give you an exception to the question. I 'won’t allow any exception to the question. Answer the question.
‘ ‘A. It was there at least two years, and I think a great deal longer than that. In fact, I believe for four years I have noticed it. Every day seeing it, I cannot state in my mind the time, but I know not less than two years.”

Counsel for defendant was examining a witness for the plaintiff, when the following occurred:

“Q. Suppose that this flagstone is 15 inches wide; suppose that it extends over the curbstone three inches, and the curbstone is four inches wide; the north end of this piece would be just as much above the flagstone as the south side is below it, would it not ?
“A. No, sir; it would not.
The Court: What is the use of asking this question? Your brain seems to be out of order. You take a piece of iron or stone or plank, and put it over a fulcrum in the middle; if you depress one side, you raise the other up just as high; but this lies on top of the curbstone.
“Mr. Joslyn: I am not asking the question that way. I am asking upon the supposition that it extended three inches beyond the curbstone, and the curbstone was four inches, and that would make seven inches from the north end.
‘ ‘ The Court: What is the difference ? I cannot hold a mathematical school here.
“Mr. Joslyn: But we will produce witnesses here to show it was not depressed two inches. I want to ask this witness these questions.
“The Court: Ask them how much it is depressed. I don’t care how much it was going up.”

A large discretion is given to a trial judge in controlling the examination of the witnesses, and we dislike to criticise his methods, unless it is manifest that an injustice has been done. An attorney at law is an officer of court, and he is a part of the system devised for the trial of causes. He is entitled to such treatment from the trial judge that the interest of his client will not be prejudiced. • We think the criticism of the attorney by the court was well calculated to disparage the attorney in the eyes of the jury, and was prejudicial. Wheeler v. Wallace, 53 Mich. 355; McDuff v. Detroit Journal Co., 84 Mich. 1 (22 Am. St. Rep. 673).

The deposition of Mr. Pierson was read in evidence. In his charge to the jury, the court commented upon it in the following language:

“One thing occurs to me: Mr. Pierson was examined, and his deposition read here; and he testified that he had been in the habit of walking over that walk nine or ten times a day nearly every day, and that no 'repairs had been made on it for the last 20 years, I think he said.
“Mr. Joslyn: No; about six years ago he said it was repaired.
“The Court: Now, as a matter of fact it was repaired, as shown by the witnesses Anderson and Thorpe, some time last July. It shows the uncertainty of human observation and human recollection. I know of no interest Mr. Pierson had in testifying falsely, but it showed that he did not observe with that closeness that he thought he did. A similar observation might perhaps be made with propriety in regard to some of the other testimony.”

Mr. Pierson was a witness for the defendant. His testimony was in conflict with some of the testimony offered on the part of the plaintiff. The credibility of the witnesses was for the jury. The trial court ought not to have indicated to the jury what he thought of this testimony. Cronkhite v. Dickerson, 51 Mich. 177; People v. Hare, 57 Mich. 505; McDuff v. Detroit Journal Co., supra.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    REMICK v. BRADLEY.
    Creditor’s Bill — Discovery—Receivers—General Assignment
    —Exemptions.
    A judgment debtor cannot be compelled to make a general assignment of all Ms property, including that which is exempt, to a receiver, under 2 How. Stat. §§ 6614, 6615, providing for a discovery of the property of such debtor, and a decree for the satisfaction of the judgment out of any property belonging to him, but further providing that such act shall not apply to property exempt from execution.
    Appeal from Wayne; Hosmer, J.
    Submitted January 25, 1899.
    Decided February 21, 1899.
    Creditor’s bill by Jerome H. Remick against Herbert Bradley. Defendant was adjudged guilty of contempt in refusing to comply with an order directing the assignment of all his property to a receiver appointed by the court, and he appeals.
    Reversed.

      Warner, Codd & Warner, for complainant.

      Walter Barlow, for defendant.
   Moore, J.

Complainant obtained a judgment against defendant for upwards of $400-in an action at law. An ■execution was issued and returned unsatisfied. Complainant then filed a creditor’s bill, and obtained the appointment of a receiver. The order appointing a receiver also provided that defendant should appear before a commissioner,—

“And assign, transfer, and set over to such receiver, on oath, all his property, equitable interests, things in action, and effects, and all books, papers, and vouchers relating thereto, and that he appear before said commissioner from time to time, and produce such books and papers, and submit to such examination, as the said commissioner shall direct, in relation to the matters of such receivership.”

The defendant was examined before a commissioner, and made a disclosure of the property he claimed to own. He declined to make a general assignment of his property to the receiver. He was cited before the court to show cause why he should not be punished for contempt of court. He assigned among other reasons why he should not be punished for contempt of court the following:

“1. That 2 How. Stat. §§ 6614, 6615, under the provisions of which statutes the bill was filed in the cause, do not contemplate the execution of a general assignment of property and effects, as provided for by the order of the commissioner.
“2. That he did not refuse to sign and deliver to the receiver an assignment of the property which his examination before the commissioner disclosed him to own, and not exempt from execution; that the examination was taken'in shorthand by a stenographer, and disclosed his ownership of the undivided one-half of lots 164 and 165 of Mary E. Armstrong’s subdivision of the west part of the La Fountains farm, north of Grand River avenue, in Detroit, Michigan, and that said lots had four houses thereon, and were worth $5,000, or thereabouts, as he was informed and believed; that said lots were incumbered by mortgage to the amount of $2,300, with about $160 interest due thereon, and about $50 unpaid taxes on the lots; that his interest in said lots was ample security to pay the $471.70 judgment of the complainant against him, and all costs he might be put to in collecting the same, and that there would be a surplus to return to the defendant after the complainant’s claim was satisfied, and that his interest in the lots was the only property he had, not exempt from execution; that he offered to assign the same before said commissioner over to said receiver, but such assignment was refused by said commissioner and receiver.”

He also filed a sworn answer to the bill of complaint, in which it was stated, among other things,—

“That the only other property, save said lots, that this defendant has, is some household goods and office furniture, all of which are exempt from sale on execution; and this defendant says, to the best of his information and belief, that he has no other property, money, or effects, or legal and equitable debts, claims, and demands due him that are collectible.”

The court made an order adjudging the defendant guilty of contempt, in having willfully disobeyed the court, and containing a further order that, the defendant, within 24 hours after the filing of an additional bond, execute and deliver to the receiver an assignment of all his property, equitable interests, and things in action, and that in default thereof he be imprisoned in the common jail of the county of Wayne until he should so execute the same, and pay the costs of the proceeding.

It is urged on the part of complainant that our statute is identical with the New York statute, and that this proceeding is justified by 2 Barb. Ch. Prac. p. 147, and the order by page 167 of the same authority.

The provisions of our statute are as follows:

“Section 6614. • Whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other persons, to compel the discovery of any property or things in action belonging to the defendant, and of any property, money, or things in action due to him, or held in trust for him, and to prevent the transfer of any such property, money, or things in action, or the payment or delivery thereof to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the defendant.
“Sec. 6615. The court shall have power to compel such discovery, and to prevent such transfer, payment, or delivery, and to decree satisfaction of the amount remaining due on such judgment out of any property, money, or things in action belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not: Provided, this act shall not apply to property exempt from execution.”

This proceeding is a statutory one, and the court cannot go beyond the power conferred by the statute. The New York statute does not contain the provision in section 6615, reading, “Provided, this act shall not apply to property exempt from execution.” The legislature has provided that certain property belonging to debtors shall be exempt from levy and sale upon execution. This right of exemption is recognized in the statute, and must be respected by the courts. When an order was made requiring the debtor to assign his exempt property, the court exceeded its authority.

The order is reversed, with costs of this court to the defendant.

The other Justices concurred.


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    FRENCH v. CARDONI.
    Equity Pleading — Bill—Jurisdiction—Waiver oe Objections.
    Defendant who files an answer to a bill in chancery, and allows the cause to go to decree, without suggesting that the bill was not properly filed and verified, cannot thereafter question the jurisdiction upon that ground.
    Appeal from Wayne; Lillibridge, J.
    Submitted January 35, 1899.
    Decided February 21, 1899.
    Bill by James R. French against Frank A. Cardoni to enforce a mechanic’s lien. From a decree for complainant, defendant appeals.
    Affirmed.

      Franklin L. Lord, for complainant.
    , John H. Powell, for defendant.
   Moore, J.

The complainant obtained a decree under the provisions of the mechanic’s lien law against defendant for work done by him upon a building constructed upon lots owned by defendant. In December, 1893, complainant served a statement of his account and his claim of a lien upon defendant. In June, 1894, he filed upon ■ the chancery side of the court a bill of complaint for the purpose of enforcing his lien. Defendant filed a sworn answer to said bill, in which its various averments are denied. A replication was filed to the answer, and notice was given of a hearing in open court. The record does not disclose that any objections were made to the pleadings. After a hearing, Judge Lillibridge rendered a decree in favor of .complainant. In this decree there was a defective description of the property to which the lien should attach. The solicitor for the defendant consented that the description of the property in the decree might be amended so as to follow the description in the bill of complaint.

The bill of complaint purported to be filed by James R. French, and, after the stating part and a prayer for relief and a prayer for process, it ended as follows: “And your orator will ever pray. Albert E. French.” It was verified by Albert E. French, who swore “that deponent is the agent of James R. French for the purpose of filing the said bill.” It is now said that the bill was not properly filed and verified, and for that reason the court did not get jurisdiction of the case, and the bill should be dismissed. The case having been tried, after all the pleadings were in, without any suggestion of a want of jurisdiction, we think it too late now to question the jurisdiction of the court. Salisbury v. Miller, 14 Mich. 160; Cleland v. Casgrain, 92 Mich. 139.

The decree is affirmed, with costs.

The other Justices concurred.


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    PEOPLE v. MENDENHALL.
    Bigamy — Common-Law Marriage.
    A married person who contracts a common-law marriage is guilty of bigamy equally as if the second marriage were attended with the statutory formalities.
    Error to Jackson; Peck, J.
    Submitted February 10, 1899.
    Decided February 21, 1899.
    Augustus C. Mendenhall was convicted of bigamy, and sentenced to three years’ imprisonment in the state prison at Jackson.
    Judgment affirmed.

      John F. Henigan, for appellant.

      Horace M. Oren, Attorney General, and Charles H. Smith, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of the crime of bigamy. The only substantial question raised is whether the offense is committed by one who, being married, contracts a common-law marriage lacking the formalities which the statute prescribes for the solemnization of marriages. The testimony on the part of the people tended to show that the respondent and the complaining witness, Bertha A. Poyle, entered into an agreement in writing as follows:

“I, Augustus C. Mendenhall, do hereby solemnly agree to take Bertha A. Poyle as my wedded wife, to live together in the holy estate of matrimony, to love her, comfort her, honor and keep her, in sickness and in health, and, forsaking all others, keep her only, so long as we both do live.
‘‘I, Bertha A. Poyle, do hereby solemnly promise to take Augustus C. Mendenhall as my wedded husband, to live together in the holy estate of matrimony, to love, honor, comfort, and keep him, in sickness and in health, and, forsaking all others, keep him only, so long as we both do live.
“Augustus C. Mendenhall.
“Bertha A. Poyle.”

It was shown that this agreement was signed in the presence of witnesses; and that, acting on this agreement, the parties immediately commenced to cohabit as husband and wife, and continued to so cohabit for some weeks, when the complaining witness learned of the former marriage of the respondent.

The circuit judge charged the jury:

‘ ‘ If you find from the evidence, and beyond a reasonable doubt, that Bertha Poyle entered into the contract in question in good faith, for the purpose of creating thé marriage relation between her and Mendenhall, and not for the purpose of establishing or covering up unlawful sexual intercourse between them, and that she did this without knowledge or information that Mendenhall had a prior wife living, from whom he was not divorced, and that the marriage contract so entered into was followed by marital cohabitation, submitted to by her in good faith, supposing she was his lawful wife by virtue of such contract, then you should regard the second marriage charged in the information as sufficiently proven; otherwise, you should not.”

The respondent’s counsel stated his claim as follows-.

“The presumption of a valid marriage from the circumstances of cohabitation and the declaration of the parties, while it may be conclusive where there is no impediment in the way, yet we apprehend that where, as in this case, there is an impediment, to wit, a first marriage, and that impediment is proven, what is at most lewd and meretricious cohabitation cannot, by a humane presumption of the law, be converted into a predicate for the second marriage required under the statute of bigamy.”

It is a settled rule in this State that a marriage in fact may be shown by proof of an agreement between two persons of opposite sex to take each other presently as husband and wife, consummated by cohabitation. Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164); Clancy v. Clancy, 66 Mich. 202; People v. Loomis, 106 Mich. 250. It follows that such informal agreement constitutes a marrying, within the meaning of section 9280, 2 How. Stat. It is none the less a marrying because one spouse is already married. It is true of every case of a bigamous marriage that the second marriage is void; and, as was said in People v. Brown, 34 Mich. 339 (22 Am. Rep. 531), it is the entering into a void marriage while a valid marriage exists which the statute punishes. In Bish. Stat. Crimes, § 592, it is said, “In a State where mutual consent alone constitutes matrimony, as with the first marriage, so with the second, — no added formalities need be shown.” See, also, Hayes v. People, 25 N. Y. 390 (82 Am. Dec. 364).

The conviction is ¿ffirmed.

The other Justices concurred.