text:
    Louis B. Roepcke, By his Next Friend, v. The Michigan Central Railroad Company.

      Master and servant — Negligence—Risks of employment — Trial— Appeal.

    1. It is too well established to require the citation of authority that a case must be heard in the Supreme Court upon the claim and theory upon which it was tried in the court below.
    2. Where, in a negligence case, it appears that the work in the performance of which the plaintiff, a railroad employé, was injured, was of a class common upon railroads, and clearly within plaintiff’s duty to perform, and that the character of the work and the danger were apparent to any one, and no special skill or instructions were required, whatever risk or danger there may have been was one incident to the employment, and one which the plaintiff assumed, and he cannot recover.
    Error to Washtenaw. (Kinne, J.) Submitted on briefs January 19, 1894. Decided June 2, 1894.
    Negligence case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      John F. Lawrence, for appellant.

      Lehman Bros. & Cavanaugh, for plaintiff.
   Grant, J.

Plaintiff was a member of one of defendant’s section gangs at Avork in the vicinity of Dexter. The defendant was engaged in the construction of a bridge and culvert, and for that purpose had hauled upon flat cars oak timbers from 30 to 40 feet long, and from 12 to 15 inches in diameter. Plaintiff was 19 years of age, and possessed of average intelligence. He had worked for the defendant two weeks in the fall of 1889, and íavo Aveeks in the spring of 1890, previous to the accident, which occurred on April 10. Aside from this, most of his'time appears to have been spent upon a farm. His Avork, while in the defendant’s employ, had consisted in shoveling dirt, raising the track, and putting gravel under the ties. Just previous to the accident, he Avas engaged in removing stones. While thus engaged, his gang Avas ordered by the road-master to go to assist in unloading these logs. Some eight or ten workmen Avere engaged in this work. . Plaintiff, with others, went upon the cars to roll off the logs. As the logs rolled off, some fell and rested diagonally across the others. The road-master ordered plaintiff and some of the others to get upon the pile, and arrange them so they would lie parallel. Plaintiff complied Avith the order, and, Avhile thus at work, a log rolled upon him, breaking his leg.

The declaration contains two counts, which, however, are substantially alike. The' duty alleged will appear from the negligence charged. After' alleging the duty, the declaration alleges that—

The defendant wrongfully, knowingly, recklessly, carelessly, and negligently ordered and directed plaintiff to go onto the side of said embankment, and among said timbers, - — a place of danger, — without notice, preparation, warning, or instruction, and did not furnish him a reasonably safe place in which to work; that plaintiff had no experience in said work, and was wholly ignorant of the danger to which he was exposed, and had no time to question or investigate the propriety of such order, and no conception of the danger incident to the obeying thereof, all of which the defendant well knew; that acting under said order, and inexperienced as he was, and not understanding the danger to which he was exposed, and without fault or neglect on his part, he attempted to perform the order; and that while so doing, and without any notice or instruction or warning of danger, said timber moved upon him, caught his left leg, and-broke the same above the ankle.”

The testimony on the part of the plaintiff shows that the order was twice repeated before being complied with. Plaintiff described the manner of the accident as follows:

££ I got somewhere about the middle of a stick of tim-. ber, and when I went to take hold of it they rolled them down from the car, and that set the other timbers in motion, and it .struck my leg. I saw it coming, and was trying to get away from it, and get over it, and it struck my left leg, and rolled upon it and broke it.”

On cross-examination he testified:

££I expected it [the log] would come down easy enough so I would not have to get out of the way. I supposed it would come easy, so I could hold it.
£t Q. Then all the men who got off this log got hold of it from the north side?
“A. I don't know as anybody got hold of it. They started it, when those fellows above tol-d them to keep them coming, the mail was due.”

At the request of the defendant, plaintiff, shortly after the accident, made a written statement as to how it occurred, in which he said:

“Mr. Hickey asked us to roll the poles that catched.. Five or six of u's got in front of the outside stick to roll it out. It started sooner than I thought it would, it being down hill, and, before I could get out of the way from it, it rolled over my leg, and broke my leg four inches above the ankle. We' could not get behind it, as the other sticks were in the way.”

One West, who was engaged in the work, testified as to the order of the road-master, and that he told him that it was not a safe place, and witness went to the end of the logs, but did not get among them. This witness does not state whether the log that rolled on plaintiff was one that rolled from the car while he was at work, or the one at which the plaintiff was at work. Samuel Molock testified that the road-master told a part of the men “to get off and roll them awray, and let the rest stay on top and keep them moving.” He testified, also, that the log started from the ear, and rolled down on plaintiff.

The defendant introduced no evidence, but demurred to plaintiff’s evidence, and asked the court to direct a verdict for the defendant for the following reasons:

“ 1. There is no allegation in the declaration pointing out in what manner the work that Koepcke (the plaintiff) was ordered to do was dangerous.
“2. There is no allegation that the risk of the work which the plaintiff performed under the direction of the master was not apparent to the plaintiff.
“ 3. There is no allegation that the plaintiff was ordered to move the logs in any particular manner, and for that reason the work was not dangerous.
“ 4. It appears from the testimony that the plaintiff was aware of the danger in undertaking to move this log, and voluntarily assumed the risks connected with his employment.
“ 5. It appears from the testimony in the case that there were no dangers or risks connected with the moving of this log that were latent or concealed, and that all the dangers or risks connected with it were apparent and obvious, and therefore the plaintiff is deemed to have accepted and continued the work of moving this log in reference to the risks that were known to him.”

The direction was refused, and the case submitted to the jury under the following instruction:

“If you find from the evidence that the place where the accident occurred was one of unusual danger and peculiarly hazardous; that the plaintiff was peremptorily ordered into this -place of danger by the road-master; that by reason of his youth and inexperience, and the circumstances then surrounding him, he did not comprehend the danger, or if, having some misgivings as to his safety, he believed that the danger was not so imminent as to threaten any immediate or unavoidable injury, and’that it was reasonably possible that the danger might be avoided by care and caution on his part, and that, therefore, he relied upon what he deemed the superior knowledge of the road-master, and believed that he was only doing his duty in obeying his order, and if you further find from the evidence that the order given by the road-master to the plaintiff was careless, reckless, and negligent on his part, and that plaintiff was free from fault, — he is entitled to recover.”

The declaration is based entirely upon the theory that it was negligent to place the plaintiff, who was inexperienced in such work, upon the logs, to move those that had fallen diagonally across the others, and that the injury resulted from the moving of one of those logs; that the place was unsafe, and that the work was extrahazardous per sej and that the injury did not result from an extraneous cause. It is evident that the cause was tried and submitted to the jury upon that theory. No intimation appears, either in the charge of the court or anywhere in the record, of any other ground of liability. It is not insisted that it was not proper and necessary to have the logs so arranged. Manifestly, the work could not be performed in any other way. It is difficult to understand how there was any extra hazard in such work. If the plaintiff's contention be true, then any person engaged in hauling and piling logs, and desiring them placed in a compact pile, would be negligent in requiring his workmen to arrange one that had fallen out of line. There may have been some liability to accident in performing it, but there seems to be no good reason why, with the exercise of proper care, it could not have been done with safety. It was a class of work that is common upon raih’oads, and clearly within the duty of section men to perform. Harrison v. Railroad Co., 79 Mich. 409. The character of the work and the danger were apparent to any one. It required no special skill or instruction. Timm v. Railroad Co., 98 Mich. 226. Whatever risk or danger there may have been, it was one incident to the employment, and one which the employé assumed. Under this theory it is entirely clear, on both authority and reason, that the plaintiff could not recover. The place was safe, and could have been rendered unsafe only by rolling down from the car logs while the plaintiff was engaged in the work of arranging the others, and giving him no warning or time to put himself out of danger. If logs were rolled down from the car, by the workmen upon it, without the authority or direction of the road-master, this would be an act of fellow-servants, for which the plaintiff could not recover.- If, however, the act was authorized or directed by the road-master, — the alter ego of the defendant, — then it would be liable.

It is asserted by the defendant's counsel in his brief that the claim of liability for rolling the logs from the car while the plaintiff was thus engaged is made in this Court for the first time. This statement is not denied by the plaintiff's counsel. It appears to be true from the fact that no reference is made to such claim either in the declaration or in the charge of the court, and from the further fact that no prominence was given to it in the testimony. The only testimony to sustain it comes from one witness, who, in relating the occurrence, testified that Mr. Hickey told a part of them to get off and roll them away, and let the rest stay on top and keep them moving.” It is too well established to require the citation of authority that the case must be heard in this Court upon the claim and theory upon which it was tried in the court below. We are therefore reluctantly compelled to reverse the judgment and order a new trial.

Hnder the declaration as it now stands, the plaintiff could not recover. > We think that, upon application, he might amend it.

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J. Montgomery, J.

license: Public Domain

text:
    Charles E. Farrah and James E. Farrah v. Wilbur Bursley and Mary Bursley.

      Replevin — Judgment—Want of demand — Return of property.

    Where the defendants in an action of replevin in-justice’s court plead simply the general issue, and recover upon the sole ground that their possession was lawful when the writ issued because no demand had been made upon them for the property, and there is nothing in the record to indicate any claim upon their part of ownership or right to continued possession against demand, they are not entitled to a return of the property.
    Error to Eatou. (Smith, J.) Submitted on briefs March ' 8, 1894. Decided June 2, 1894.
    Replevin. Plaintiffs bring erior.
    Reversed, and judgment entered in favor of defendants for nominal damages only.
    The facts are stated in the opinions.

      Huggett é Smith, for appellants.

      Alvan Q. Fleury (Horace S. Maynard, of counsel), for defendants.
   Hooker, J.

The only question which we will consider upon this record is whether a justice of the peace may order a return of replevied property where a judgment is rendered in favor of the defendant upon the sole ground that he had a lawful possession at the time the writ issued, because no demand had been made; the plea of the general issue, simply, having been interposed. The circuit court disposed of the case upon the assumption that the record made it possible to infer that the justice’s judgment might have been based upon further facts consistent with defendants’ right to a return, but we think the record clearly negatives such inference. There is nothing to indicate any claim of ownership, or right to continued possession against demand, upon the part of the defendants.

Under our statute a replevin suit may be defeated upon several grounds under the plea of the general issue, among them:

1. That the defendant did not detain the property when the action was commenced.
2. That he came lawfully into possession, and, though in duty bound to surrender to .the plaintiff on demand, could not be said to detain unlawfully before demand and refusal.

In the first case there would appear to be no reason why the defendant should be awarded a return of property which he never had or claimed, and it is the settled law of this State that a return will not be ordered under such circumstances. Gidday v. Witherspoon, 35 Mich. 368; Hinchman v. Doak, 48 Id. 168. These cases show that a defendant may be denied a judgment for a return of the property where the record shows that he has no right to it.

In" the state of New York, it is the well-settled rule that the defendant must plead title, if he desire a judgment for the return of the property. People v. Niagara Common Pleas, 4 Wend. 217; Bemus v. Beekman, 3 Id. 667; Smith v. Snyder, 15 Id. 324; Prosser v. Woodward, 21 Id. 205; Yates v. Fassett, 5 Denio, 21; Pierce v. Van Dyke, 6 Hill, 613. See, also, Tiff. Justice’s Guide (4th ed.), 675; Boynton v. Page, 13 Wend. 425; Vose v. Hart, 12 Ill. 378; Conner v. Comstock, 17 Ind. 90; Hanford v. Obrecht, 38 Ill. 493.

Irrespective of the question of pleading, it is a rule of wide application that the defendant must set up some affirmative right upon his part to have the goods delivered to him, or a return will not be adjudged. Chambers v. Waters, 7 Cal. 390; Trotter v. Taylor, 5 Blackf. 431; Wright v. Mathews, 2 Id. 187; Powell v. Hinsdale, 5 Mass. 343; Douglass v. Garrett, 5 Wis. 85; Moulton v. Bird, 31 Me. 296; Ely v. Ehle, 3 N. Y. 510; Pratt v. Tucker, 67 Ill. 346; Coit v. Waples, 1 Minn. 134.

In some states, where the right of property may be tried under the general issue, it is held that a general verdict entitles the defendant to a judgment for the return of the property. Ford v. Ford, 3 Wis. 399; Sparks v. Heritage, 45 Ind. 66; Noble v. Epperly, 6 Id. 414.

In Steere v. Vanderberg, 90 Mich. 187, 189, where the defendant showed that he was in possession under a claim of title, and where no title whatever appeared iñ the plaintiffs, it was held that defendant was entitled to the value of the property (or to a return thereof) without showing affirmatively that he had title against all the world. In the language of the opinion,—

“They \i. e., the plaintiffs] failed to show on. this trial any title in themselves, or any right to possession, but sought to show that [one] Eiohards had a better title than defendant."

But when it appears affirmatively, from the findings of the jury, that the defendant has no title to the property, or right to continued possession, and that the plaintiff has title, there would seem to he no occasion for such a judgment, as was substantially held in Ellis v. Simpkins, 81 Mich. 10, which case was reversed because the court instructed the jury that the defendant could recover the value of the property if no demand was proved. The Court said that in such case the defendant would be entitled to nominal damages only, which is inconsistent with the theory that he could have a judgment for the return of the property replevied, had he not seen fit to waive it. See, also, Darling v. Tegler, 30 Mich. 54.

In the present case, it is said that we cannot assume that the plaintiffs had title, inasmuch as it does not affirmatively appear from the record. The record does not include the evidence. It does show that the plaintiffs' action was defeated upon some ground, not stated; but the justice distinctly certifies that he gave the defendants a judgment for the property (i. e., its value) “solely because no demand had been made upon them for it." If this means anything, it implies that but for this want of demand the plaintiffs must have recovered; and we think that, under such circumstances, we should not resort to technical rules to do a' manifest injustice, whereby the defendants are given the value of property, to the bare possession of which they claim no right as against the plaintiffs, except the fact that at the time the writ was issued'they had a possession which was merely lawful, and that such possession was lawful solely (i. e., only) because the plaintiffs had failed to make it unlawful by a seasonable demand. The effect of this would perhaps be to deprive the plaintiffs of all remedy, as, in case of a return of the property after a trial upon the merits, no writ of second deliverance is allowed. How. Stat. § 8350.

The judgment of the circuit court must be reversed, and one entered in favor of the defendants for nominal damages only. The plaintiffs will recover their costs in this Court and the circuit court.

Long and G-rant, JJ., concurred with Hooker, J.

Montgomery, J.

(dissenting). Plaintiffs brought an action of replevin against the defendants before a justice-of the peace. The declaration was the usual declaration in replevin, and the plea was the general issue. On the trial before the justice the defendants were awarded a judgment, for the return of the property replevied. The plaintiffs-thereupon removed the cause to the circuit court by writ, of certiorari, alleging as grounds of error that the justice-erred in awarding a return of the property to the defendants, upon the grounds — First, that, under the plea of the-general issue, the defendants were not entitled, under our practice,' to have judgment for a return of the property; and, second, that the sole ground upon which the justice awarded judgment of return was the failure of the plaintiffs-to make a demand before bringing suit, and therefore the-defendants were not entitled to the judgment entered. The return of the justice contains the following statement as to* the reason of entering the judgment of return:

“Said order and judgment was based upon the facts: that the said defendants were in lawful possession of the-said goods and chattels at the time of the commencement, of the said suit in replevin, and that there had been no-demand made of said goods and chattels upon the part of said plaintiffs, or any one in their behalf, before the commencement of this action.”

And further:

“That I, the said justice, decided and adjudged and entered an order and judgment in this cause that the defendants should have a return of the property under the pleadings in this cause, and that such judgment and determination was based solely upon the fact that there had been no demand of the goods and chattels replevied before the commencement of this action.”

It has been frequently ruled by this Court that where a party seeks to review the judgment of a justice of the peace by a writ of certiorari, and thus prevent a trial of the case upon the merits, as upon appeal, he must, at his peril, make the error in the proceedings affirmatively appear, and this Court will not aid his allegations of error by inferences. Indeed, rulings to this effect have been so frequent, and the holdings of this Court upon the subject so uniform, as to render.a citation of the cases unnecessary. 'They are familiar to every practitioner. If this test be applied to this case, it seems to me clear that the contention of the plaintiffs in certiorari that the defendants were .not entitled to a return of the property cannot be allowed. If nowhere appears by the record that the plaintiffs had the slightest interest in the property replevied. The defendants, prior to suing out the writ, were in possession. Not only this, but the justice returns that the judgment was based, not only upon the fact of failure to demand the property, but upon the further fact that the defendants mere in lawful possession of the goods and chattels at the .time of the commencement of the suit in replevin. The presumption from the defendant's possession is that he is entitled to a return of the property, and, unless the plaintiff shows that he has a better right to possession, it would be the duty of the court to order a return. The question is ruled by Steere v. Vanderberg, 90 Mich. 188. To reverse the judgment of the justice would be to determine the right in favor of the plaintiffs against the presumption, and with no affirmative showing that any proof rebutting this presumption was offered by them.

We think a fair construction of the statute (section 8339) 'entitles the defendant to have a return of the property on a determination in his favor under a plea of the general issue. The section provides that—

“The defendant may plead the general issue to such' declaration, which shall be in the same form as in personal actions, and shall put in issue not only the detention of the property, but also the property of the plaintiff therein and his right to the possession thereof at the time of the commencement of the suit, and under such plea the defendant may give notice of any special matter of defense to the action.”

This, we think, has been the uniform construction of this statute in this State for nearly, if not quite, a half century, and little light is afforded by the decisions of the courts of other states upon the peculiar statutes in force therein.

We think the circuit judge was right in affirming the judgment of the justice, and that his judgment should be .affirmed, with costs.

McGrath, C. J., concurred with Montgomery, J.


author: McGrath, O. J.

text:
    Moses A. Bendetson v. Watson D. Moody.

      Fraudulent conveyances — Evidence—Conduct of counsel,

    1. Plaintiff brought trover against the defendant, as sheriff, for a stock of goods, which defendant had attached, after their sale and delivery to the plaintiff, at the suit of the vendor’s creditors. On the trial the defendant introduced testimony tending to show that the vendor was intoxicated at the time the stock was gone over and the sale concluded; that he took but little part in the matter; and that after the levy of the attachment, and the commencement of the trover suit, he selected his exemptions, and they were set aside to him by the defendant. And it is held:
    a — That there was no sufficient evidence to go to the jury as to a fraud upon the vendor, even though that could have been made available as a defense; that, as between the vendor and the plaintiff, the latter was the owner of the goods, and the only defense available was that the sale was made with intent to defraud creditors; but that the testimony as to the vendor’s condition was admissible as bearing upon the question of notice to the purchaser. /
    b — That the testimony as to the selection of the exemptions was clearly inadmissible; it appearing that the transaction occurred several days after the sale, and after the attachment; that the vendor made no claim to the goods, but, after the levy of the attachment, the defendant sought him out, and informed him that the stock was being seized as his property, and that under the statute he was entitled to his exemptions, and that, if he did not select them, it was the defendant’s duty to do so for him; that thereupon the vendor selected the goods, and they were turned over to him by the defendant; and that whatever was done, was done at the instance of the defendant.

      2. A request by the plaintiff for an instruction that if the jury should find that the purpose of-the vendor in making the sale was to raise money to pay his creditors, and not to defraud them, the plaintiff was entitled to a verdict, should have been granted, there being evidence tending to support that theory.
    3. The burden of proof of fraud was upon defendant, and plaintiff was not called upon to anticipate such defense, and call all of his witnesses in the first instance; and it was improper for the defendant’s counsel, on opening his case to the jury, to state that certain witnesses were, and had been during the proceedings, that afternoon, in the court-room, and had not been called by the plaintiff.
    4. The suit having been commenced on the day of the attachment, before an inventory had been made, and before the exemptions were selected by the vendor and set aside to him, plaintiff’s contention that, in any event, he was entitled to a verdict for their value, is untenable, as he must rely upon a conversion as of the date when his suit was launched.
    Error to Mecosta. (Palmer, J.) Submitted on briefs April 4, 1894. Decided June 2, 1894.
    Trover. Plaintiff brings error.
    Eeversed.
    The facts are stated in the opinion.

      Frank Dumon, for appellant.

      Sweet & Perkins, for defendant.
   McGrath, O. J.

Plaintiff, claiming to be the purchaser of a stock of goods from one Eighmy, brings trover against the sheriff, who seized the stock under a writ of attachment, at the suit of Swartout & Downs against Eighmy. The latter had a stock of goods, the estimated value of which was from $2,000 to $2,500. He was indebted to various parties in the sum of over $2,000. Within a month prior to the transfer of the property, a number of his checks, varying in amount from $18 to $215, had been dishonored and protested for non-payment, and a number of drafts, varying in amount from $14 to $142, had been returned uiipaid. There was testimony tending to show that the purchaser knew of this indebtedness, and of the debtor’s anxiety to dispose of his stock.

In view of the purchaser’s own version of the negotiations pending the sale; the circumstances attending its conclusion; the anxiety evin'ced by the debtor to make the sale; the hasty manner in which the business was done; the fact that the estimates as to value of the stock were made in the night-time, and by parties who were-there in the interest of the purchaser; that the time was selected by the purchaser; the reasons which he gives for such selection; the fact that, in making these estimates, deductions were made from cost prices; that finally the items were summed up, and aggregated $1,575; that this sum was raised by the purchaser to $1,700, and 50 cents on tbe dollar named as the purchase price, the sum paid being but $850, — it cannot be said, as a matter oí law, that there was no evidence that the sale Was made with intent to defraud creditors, or that the circumstances attending it were not sufficient to have put the purchaser upon inquiry. We think, however, that the repeated instruction of the court to the jury that, if the property was the property of Eighmy at the time of the attachment, plaintiff could, not recover, was calculated to mislead the jury.

Defendant introduced testimony tending to show that Eighmy was intoxicated at the time the stock was gone over and the sale concluded, and took little part in the matter, and that after the attachment was levied, and after this suit was commenced, Eighmy selected his ■ exemptions, and the same were set aside to him. There was no sufficient evidence to go to the jury as to a fraud upon Eighmy, even though that could have been made available as a defense in this action. As between Eighmy and plaintiff, the latter was the owner of. the property, and the only defense available was that the sale to plaintiff was made with intent to defraud creditors.

Complaint is made of the admission of testimony as to Eighmy’s condition on the night when the stock was estimated and the sale concluded. We are inclined to think that the testimony was admissible as bearing upon the question of notice to the purchaser.

It is also insisted that the testimony as to the selection of the exemptions was improperly received. The defendant insisted that the purpose of the evidence was to show fraud on Eighmy’s part. It was clearly inadmissible. The purchaser was in possession of the goods, and the transaction occurred^several days after the sale and .the attachment. Eighmy made no claim to the goods, but after the levy the sheriff sought him out, and informed him that the stock was being seized as his (Eighmy’s) property; that, under the statute, he was entitled to his exemptions; that, if he did not make the selections, it was the sheriff’s duty to make them, — and thereupon .Eighmy selected the goods, and the sheriff turned them over to him. Whatever was done, was done at the instance of the sheriff.

Plaintiff requested the court to instruct the jury that if they should find that Eighmy’s purpose in making the sale was to raise money to pay his creditors, and not for the purpose of defrauding them, plaintiff was entitled to a verdict. There was evidence tending to support this theory, and the request should have been granted. It was hardly sufficient for the court to instruct the jury that Eighmy’s purpose must have been an honest one. They should have been instructed that such a purpose, if entertained, was a lawful and honest purpose.

Upon the opening of his case to the jury, counsel for defendant made the following announcement:

“We desire to make this statement, and have it appear upon the record: That Moses Bendetson, the plaintiff, Arthur Bendetson, Isaac Netzorg, Porter Eighmy, and Mrs. Eighmy are now, and during these proceedings this afternoon have been, in the court-room, and have not been called as witnesses by the plaintiff; that Porter Eighmy and Mrs. Eighmy have been subpoenaed by the plaintiff, but they have not been produced as witnesses.
Counsel for PlaintiffGive me an exception, your honor, to counsel’s statement, and. I wish — it is evidently made for effect before the jury — I wish to have your honor instruct the jury that in a civil case we have the right to call such witnesses as we choose, and they have no right to take any exception to i,t.
“ The Court: I will take care of that part of it.”

The court did not again refer to the matter. Plaintiff had made out a prima facie casé. The burden of proof of fraud was upon defendant, and plaintiff was not called upon at that time to anticipate the defense, and call all his witnesses, and the remarks were improper.'

Again, the court had properly excluded testimony offered by defendant to show Eighmy’s condition on the Monday after the sale, and counsel persisted in offering to prove his condition at that time, as to being “unfit for business,” and as to his having made an attempt to commit suicide. These statements were improper, and should not have been permitted.

Plaintiff insists that, in any event, he was entitled to a verdict for the amount of the goods turned over to Eighmy; but this suit was commenced on the very day that the levy was made, before an inventory had been made, and before the exemptions were selected or set aside. Plaintiff in this suit must rely upon a conversion as of the date when this suit was launched.

For the errors referred to, the judgment must be reversed, and a new trial awarded.

The other Justices concurred.

       The purchaser testified that he saw Eighmy about 10 o’clock in the forenoon of the day the purchase was made; that Eighmy asked the witness to come right into the store and buy him ,out; that witness declined to do so, and said to Eighmy that it was Saturday, and he would have a big run of business that day; that witness would allow him to do all the business he could that day, and towards evening, 6 or 7 o’clock, he could call for witness, and they would go in and invoice, to all of which Eighmy assented.


author: Montgomery, J.

text:
    John A. Thompson v. George Price.

      Malicious prosecution — Termination of criminal proceeding — Probable cause — Evidence—Advice of prosecuting attorney.

    1. The defendant in a suit for malicious prosecution assigned as error the failure of the plaintiff to show a determination of the criminal case, for the reason that a writ of mandamus requiring its reinstatement after the information had been quashed had not been formally served on the circuit judge when the prosecuting attorney entered a nolle prosequi. And it is held that the plaintiff was in no way responsible for the non-service of the writ; that he could not compel the prosecuting attorney to file it, and if that officer saw fit to waive its service, and enter the nolle prosequi, after obtaining leave of the court, the case could not again be revived.

      2. The supervisor of a township was arrested on the charge of having willfully neglected to require from a resident tax-payer a statement of his taxable property, and after the determination of the case he sued the complaining witness for malicious prosecution. The only witness, aside from the plaintiff, who positively knew whether the plaintiff had endeavored to procure such a statement, was the tax-payer himself, and he testified that he had no recollection of having had any conversation with the defendant, prior to the arrest of the plaintiff, relative to plaintiff’s having left a statement with him to make out, and that he did not think that he had such a conversation. The defendant offered testimony tending to show that the tax-payer had stated to one Knowles that he was not required by plaintiff to furnish the statement. And it is held that it was at least a question for the jury as to whether the defendant was justified in making the complaint without making inquiry, direct, of the- only person other than the plaintiff who was cognizant of the facts.
    3. The defendant testified that he talked with the tax-payer upon the subject, and was informed that the plaintiff did not ask for any statement of the tax-payer’s taxable property, and that he communicated this fact to the prosecuting attorney. And it is held that, if this was true, it was the most important fact which was stated to the prosecuting attorney to form a. basis for his judgment; that, the tax-payer having testified that, according to his recollection, he never made any such statement to the defendant prior to .the arrest of the plaintiff, it would follow, if the jury accepted this testimony, that the defendant did not fairly disclose the facts, and only the facts, within his knowledge, to the prosecuting attorney, and that it was a question for the jury as to whether he did or did not.

    Error to Muskegon. (Dickerman, J.) Argued April 5, 1894. Decided June 2, 1894.
    Case. Defendant brings error.
    Affirmed.
    The facts ■are stated in tbe opinion.

      Nelson DeLong and James O’Hara, for appellant.

      Brown & Lovelace, for plaintiff.

      For cases hearing upon the effect of legal advice as a defense in an action for malicious prosecution, see Harris v. Woodford, 98 Mich. 147, and note, and Govaski v. Downey, 100 Mich. 429.

   Montgomery, J.

This is a suit for malicious prosecution, in which the plaintiff recovered, and defendant brings error.

The plaintiff was supervisor of the township of Eavenna in the year 1892. The defendant, in the month of December, 1892, caused the arrest of plaintiff on the charge of having willfully neglected the duty of requiring of one Albro Enos, a resident tax-payer, a statement of the taxable property owned by him, and subject to assessment in the township. An information was filed in the criminal proceedings, and was, on motion, quashed by the circuit court, on the ground that the statute imposing the duty of requiring such ’statements from tax-payers was not mandatory, but directory. A writ of mandamus, requiring a reinstatement of the cause, was granted by this Court. The proceeding is reported under the title of Turner v. Muskegon Circuit Judge, in 95 Mich. 1. After the granting of this order the prosecuting attorney filed reasons in the circuit court for entering a nolle prosequi, and such an order was entered.

The record contains 42 assignments of error, — more, by far, than should ever have been incorporated. Many of the assignments are now abandoned, and the discussion will be confined to those which we think merit attention. While all the questions relied upon in the brief of counsel have been examined, it is sufficient to say, as to those not discussed, that we think there was no error which prejudiced the rights of the defendant.

It is insisted that the plaintiff failed to show, a determination of the criminal prosecution, for the reason that the writ of mandamus requiring the reinstatement of the-cause at the circuit had not in fact been served on the-circuit judge when the nolle prosequi was entered. This omission the plaintiff in the present case was in no way responsible for. He could not compel the prosecutor to file this writ, and if the prosecutor saw fit to waive the service, and enter the nolle prosequi, after obtaining the leave of the court, we think it altogether clear that the case could not again be revived. It would not lie with the prosecution to set up their own oniission to formally file the writ of mandamus as a reason for nullifying the act of the prosecutor in discontinuing the case.

It is contended that the plaintiff did not establish a want of probable cause. But unless the defendant showed conclusively that probable cause existed, by the advice of the prosecuting attorney (a question which we will discuss later), we think there was testimony from which the jury could find that no probable cause existed. The only witness, aside from the plaintiff, who positively knew whether the plaintiff had endeavored to procure a statement from Mr. Enos, was Mr. Enos himself. Mr. Enos swears that he has no recollection of having had any conversation with the defendant, previous to the arrest of Mr. Thompson, relative to Mr. Thompson’s having left a statement with him (Enos) to make out, and that he does not think that he did have such a conversation. It is true, the defendant offered testimony tending to show that Enos had stated to one Knowles that he was not required by plaintiff to furnish a statement, but it was at least a question for the jury as to whether the defendant was justified in making the complaint without making inquiry, direct, of the only person who was cognizant of the facts.

But the defendant contends that the testimony, as a whole, shows that the plaintiff was in fact guilty of the willful neglect of duty. After a careful examination of the record, we are convinced that the testimony falls far short of establishing this fact conclusively. The testimony shows that a blank was presented to Mr. Enos, with a request that he make out 'a list of his taxable property; and, while it is true that the record does not show as. much persistence, in the demand as some officers might have shown, it was certainly sufficient to justify the jury in finding that there was an honest effort on the part of the plaintiff to perform his duty in that regard, and that, there was no willful neglect of duty. See Turner v. Muskegon Circuit Judge, supra.

Was the defendant justified by the advice of the prosecuting attorney? The circuit judge charged the jury, in effect, that if the defendant stated all the facts to the prosecuting attorney, and acted on his advice in making the complaint, this was a complete defense. This instruction embodied the law. But it is insisted that there was no dispute about the fact that the defendant did fully disclose and truthfully state all the facts to the prosecuting attorney. But the testimony of the defendant is that he talked with Mr. Enos upon the subject, and that Mr. Enos told him that plaintiff did not ask for any statement of his (Enos’) taxable property, and the defendant testifies that he communicated this to the prosecuting attorney. If- this was true, it was the most important fact which was stated to the prosecutor to form a basis for his judgment. But, as before stated, Mr. Enos testified that, according to his recollection, he never made any such statement to the defendant prior to the arrest of plaintiff. If the jury accepted the statement of Mr. Enos, it would follow that the defendant did not fairly disclose the facts, and only the facts, "within his knowledge, to the prosecuting attorney; and it was a question for the jury as to whether he did or did not.

We are satisfied that the defendant has had a fair trial of his cause, and the judgment will be affirmed, with costs.

The other Justices concurred.


text:
    Charles Miller v. Jacob Miller.

      Partition — Pleading—Adverse possession — Land contract — Specific-performance — Credibility of witnesses — Appeal.
    1. The title acquired by adverse possession constitutes a legal title; and the question of the possession, by the defendant in a partition suit, of such a title to the interest in the land claimed by the complainant, is not raised by an answer which avers that the complainant holds the legal title to said interest in trust for the defendant.
    3. Where the defendant in a partition suit rests his claim to the interest in the land claimed by the complainant on a parol agreement for its purchase, which he claims to have fully performed, and which he seeks to establish mainly by his own testimony, he cannot complain that the court requires him to establish said claim by clear and cogent proof.
    3. Where, in such a case, a careful examination of the testimony shows that the conflict is such that the appearance of the witnesses on the stand would be of unusual value in determining the question of fact involved, the decision of the circuit judge before whom the testimony was taken will not be disturbed.
    Appeal from Wayne. (Hosmer, J.) . Argued April 6, 1894. Decided June 2, 1894.
    Bill for partition. Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      John G. Haivley, for complainant.

      E. T. Wood, for defendant.
   Montgomery, J.

This is a bill for partition. The complainant and defendant are brothers. The father of the parties died intestate in 1854, seised of the property-in question. Defendant has acquired by purchase the interests of all the heirs except the complainant; so that the title of record rests one-sixth in complainant and five-sixths in the defendant. The complainant, prior to instituting this suit, brought ejectment against defendant, and recovered a judgment by default, which was, however, subsequently, and after the filing of the present bill, set aside on motion. The defendant answered in the present case, claiming the benefit of a cross-bill. His answer alleges that the defendant is the owner of the equitable title to the one-sixth interest claimed by complainant, and that the complainant holds the legal title in trust for the defendant. The equitable title set out is an alleged purchase of complainant’s interest by parol, payment therefor by defendant, and occupancy, and the making of improvements, alleged to amount to part performance. The circuit court decreed a partition, and defendant appeals.

Defendant makes the point that the evidence tended to show a title by adverse possession, and that at least there was proof upon this subject of sufficient strength to require that the complainant be remanded to his suit at law to settle the title before a decree of partition would be warranted. But we do not think the answer of defendant raises this question. The title acquired by adverse possession would constitute a legal title. But the answer avers that the complainant holds the legal title in trust, for defendant.

The meritorious question in the case is that raised by the defendant, and which could only be determined by a court of equity, and which he himself asks to have adjudicated in this proceeding. This question is whether defendant bought and paid for the interest of complainant under such circumstances that equity will decree a specific performance. Upon this question there is an irreconcilable conflict in the testimony. The only two witnesses who gave testimony bearing directly on the question are the complainant and defendant. The defendant, on direct examination, testified that he paid the complainant $250 in cash on the 15th of June, 1874, and that he used money which he had saved up and had in the house, and which his mother handed him in a stocking, where it had been kept. On cross-examination, however, he states that the money might have been money which he drew from the bank where it was deposited. In an affidavit made to set aside the default in the ejectment suit, he stated that, ifas near as deponent is now able to fix the date, it is about 20 years since he paid his brother, Charles Miller, the $250."' But he testifies now that he has remembered it since the occurrence. The complainant admits that he received money from the defendant, but he asserts that it was a loan made in July, 1873; that he received $400, and has since paid it back; and that defendant drew the money which he loaned him from the bank. Complainant claims that the money which he received was paid to a contractor, who built a house for him in that year; and in this he is corroborated by the contractor, who testifies that he received such payment July 9, 1873.

It is also shown by the defendant’s bank account, which complainant put in evidence, that defendant drew out of the bank on the 8th of July, 1873, $180. It is true, complainant thinks defendant drew the entire $400 from the bank; but, as he does not claim to have been present when the money was drawn, it is not remarkable that he should be mistaken. Nor is the fact that the defendant drew the money from the bank inconsistent with his claim that it was paid in payment for the interest of the complainant. But these circumstances are referred to as throwing some light upon the question of the credibility and accuracy of recollection of the two witnesses. Complainant also testifies that he paid back portions of this loan by paying wood choppers who were at work for defendant, and he is to some extent corroborated by the testimony of a witness who called upon him formally by direction of the defendant. Defendant, however, attempts to meet this by showing that the complainant had received wood from the farm of defendant, which he was bound to pay for. Defendant also called a witness to show an admission of complainant, made in 1874, to the effect that he had received his pay for his interest in the property in question. The testimony of this witness appears, upon its face, somewhat improbable. The circumstances which he details, and profess.es to recollect, with great particularity, are not such as would be likely to leave so deep an impressionupon the mind of a disinterested witness for 20 years; and this, in view of the further fact that he was not on good terms with complainant, raises a serious doubt as to his credibility.

The case is one in which we cannot feel a positive assurance that the conclusion reached upon the question of fact is certainly correct. We have examined the testimony with great care, and have adverted to the material portions of it somewhat at length to show that the conflict is such that the appearance of the witnesses on the stand would be of unusual value in determining the question of fact. The circuit judge had the opportunity of seeing the witnesses, and we do not feel justified in disturbing his decision. Where one rests his claim to real property on a parol agreement, whiclp he seeks to establish mainly by his own testimony, he cannot complain that the courts require clear and cogent proof.

The decree will be affirmed, with costs.

The other Justices concurred.


author: Long, J.

text:
    The Township of Cumming v. The County of Ogemaw.
    [See 93 Mioh. 314.]

      Taxes — Accounting between county and township — Warrants on-county treasurer — Payment—Estoppel—Notice.
    1. Section 72 of the tax law of 1889 (3 How. Stat. § 1170M), which provided that the accounts between the State, the county, and each township should be adjusted on the basis of crediting and paying to each the taxes collected for each, treated the moneys-arising from the collection of delinquent taxes, in the hands of the county treasurer, as a part of the funds for which the county must account to the several townships.
    2. A township, being unable, by reason of the large amount of lands returned for delinquent taxes, to pay certain highway and contingent orders, issued to the holders of the orders, in lien thereof, warrants on the county treasurer. The orders were thereupon surrendered and canceled, and the warrants delivered to the parties in whose favor they were drawn, and, on their presentation to the county treasurer, they were charged to the township. After the treasurer had paid two of the three warrants so issued, and a portion of the third warrant, without objection on the part of the township, the township board served a written notice on him not to pay any further moneys on the warrants, and that all delinquent taxes paid into the treasury, belonging to the township, be paid over to the township, and to it only. The treasurer, nevertheless, paid the balance due on the third warrant from such taxes. And, in a suit brought by the township against the county to recover the moneys paid on said warrants, it is held:
    a — That the arrangement made between the township and the county treasurer was void; but that, it having been partially carried out, and the township having had its debts paid to that extent, the township cannot, so far as payments were made before notice to the treasurer, now be heard to complain, and is in no position to recover that portion of its money back.
    b — That, as to the last payment, the county treasurer had no legal right to make it after the notice from the township; that this amount of the fund in the hands of the treasurer belonged to the township; that it came into his hands from delinquent taxes, which the township was entitled to by return of its lands, and which the county treasurer was bound to pay over to the township treasurer, under the provisions of the statute; and that the township is entitled to judgment for this amount.
    Error to Ogemaw. (Simpson; J.) Argued April 11,. 1894. Decided June 2, 1894.

      Assumpsit. Plaintiff brings error.
    Beversed, and judgment entered in favbr of plaintiff for $437.91, and interest at 6 per cent, from November 12, 1890.
    The facts are stated in the opinion.

      F. L. Snodgrass, for appellant.

      W. A. Weeks (McDonell & Ball, of counsel), for defendant.
   Long, J.

On March 31, 1885, the township of Cumming was indebted to Louis Cumming in the sum of $125; to James McKeon, in the sum of $376.13; and to Alexander Folsom, in the sum of $996, — all for highway and ■contingent orders held by them against such township. By reason of the fact that a large part of the lands in the township were yearly returned to the county treasurer delinquent for taxes thereon, the money with which to pay these orders could not be realized until the county ■treasurer collected it from the delinquent taxes and by sales of such lands at the public sales held each year. The township board and the holders of such orders realizing this fact, on March 31, 1885, the board made provision for the payment of the orders by issuing to each holder a warrant on the county treasurer for the amount of his claim. Upon the issuing of such warrants, the orders so held against the township were taken up by the township board, canceled, and destroyed. These warrants were presented to the county treasurer, as contemplated by the .arrangement, and by such officer were charged up to the rtorvnship on his books, and payments made thereon, as follows: Louis Cumming, warrant presented April 3, 1885, and paid in full December 21 following; James McKeon, warrant presented May 15, 1885, and $300 paid thereon December 18 following, and the balance June 18, 1886; Alexander Folsom, warrant presented October 26, 1885, .and one payment made thereon February 18, 1887, one February 27, 1889, and one November 12, 1890, making in all $697.82 paid, and leaving a balance still unpaid thereon of about $300, with interest. No complaint was ever made of this action of the township board or of the ■county treasurer in reference to the matter until May 3, 1890, when the township board of Cumming gave a written notice to the county treasurer not to pay any further moneys on said warrants, and that all delinquent taxes paid into the treasury, belonging to the township, be paid ■over to the township, and to it only. On January 8, 1891, a written demand was made upon the board of supervisors of the county, that it direct the county treasurer to pay ■over to the township all moneys so withheld from the township, including those that had been paid out upon these orders. The board of supervisors refused to give such direction, for the reason that it had on the previous day settled with the county treasurer. Suit in assumpsit was thereupon brought by the township against the county of Ogemaw to recover these moneys. A demurrer was interposed to the declaration, and sustained in the court below, the judgment reversed in this Court, and the defendant county given 20 days to pleat? issuably. The case is reported in 93 Mich. 314. The cause has now been tried, and, under the direction ' of the court, verdict rendered in favor of the defendant county. The township brings error.

The court below held that the plaintiff township, having gained an advantage by having its debts paid to the extent that money had been paid, could not now come into court, and allege the illegality of the arrangement, after it had received this benefit. In this we think the court was correct, so far as the moneys were paid before the county treasurer had notice from the township not to make further payments. Such notice was given May 3, 1890, and yet the county treasurer paid to Folsom on November 12, 1890, the sum of $437.91. All the other payments were made before the notice was given. We think the arrangement made between the township board and the county treasurer was void, and of no effect; but it has been partially carried out, and the township has had its debts paid to that extent, and, so far as paid before notice, the township cannot now' be heard to complain, and is in no position to recover its money back. The record contains no evidence that the original orders held by these parties were not valid claims against the township, and by which the township was bound.

As to the payment of the $437.91, the county treasurer had no legal right to make it after the notice from the township. This amount of the fund was in the hands of the county treasurer. It belonged to the township. It came into the hands of the county treasurer from delinquent taxes, which the township was entitled to by return of its lands there for sale. The county treasurer was bound to pay over this amount to the township treasurer, under the provisions of section 1170/H of 3 Howell’s Statutes, which provides for settlements between the State and counties, and between the counties and townships. This section seems to treat the moneys arising from delinquent ta^es, in the hands of the county treasurer, as being a part of the funds for which the county must account to the townships. To this extent the court should have permitted a recovery. It is no answer to say that the board of supervisors had made a settlement with the county treasurer before it had notice of the claims of the township. These moneys were wrongfully paid out by the county treasurer, and, in a settlement between the county and the township, must be accounted for by the county. The section of the statute above cited provides that—

“The accounts between the State, the county, and each township shall be adjusted on the basis of crediting and paying to each the taxes collected for each, with interest thereon,” etc.

It is admitted that at the time of the trial there had been collected for the township, from such taxes, the sum of $437.91, but that it had been paid out to Folsom on his order. The payment over to Folsom being illegal, the township should have had judgment for that amount, under the facts shown. •

The judgment below will be reversed, and judgment entered here for that amount, with interest from the date of payment to Folsom at 6 per cent. Plaintiff will recover costs of both courts.

The other Justices concurred.


author: Hooker, J.

text:
    Ira Wyman v. The Village of St. Johns.

      Highways — Encroachment—Adverse possession.

    Complainant, on being served with a notice to remove the fence in front of certain lots owned by him in the defendant village, upon the claim that it encroached upon a public street, filed a bill to restrain the village authorities from interfering with the fence. The proofs showed that the lots were purchased by the complainant 13 years before the filing of the bill, and that the fence which he afterwards built encroached upon the street as laid out, and that the street had been laid out and traveled for about 30 years. And it is held that as complainant’s deed does not cover the premises in dispute, and adverse possession, upon which the bill seems to have been founded, is not shown, no reason appears why complainant should be granted the relief prayed for.

    Appeal from Clinton. (Daboll, J.) Submitted on briefs April 11, 1894. Decided June 2, 1894.
    Bill to restrain defendant from interfering with complainant's fence, trees, and sidewalk. Complainant appeals from a decree dismissing his bill.
    Decree affirmed.
    The facts are stated in the opinion.

      TinJcham & Ciarle (Norton é Weimer, of counsel), for complainant.

      Will II. Brunson, for defendant. ■

      For cases bearing upon the adverse possession of land within the limits of a public street, and the acquirement of title thereby, see:
      1. City of Big Rapids v. Comstock, 65 Mich. 78, where, in a suit to enjoin a property-owner from erecting a building alleged te encroach upon d public street in a city, the evidence disclosed that the ground occupied by the building had been in the open, continued, and adverse possession of the defendant and his grantors for 25 years, and had never been used as a street. And it was held that the owner of the land had gained title, as against the public, to the ground so actually occupied for such time.
      2. Flynn v. City of Detroit, 93 Mich. 590, holding:
      d — That it is settled in this State that title may be acquired by adverse possession of property within the limits of streets; citing City of Big Rapids v. Comstock, 65 Mich. 78; Village of Essexville v. Emery, 90 Id. 183.
      h — That the use of a portion of the street in front of a lot, in a manner inconsistent with and in violation of the statute giving the lot-owner license to use it in a prescribed manner, may establish his right to the land so used by adverse possession.

   Hooker, J.

The complainant is the owner of lots 11 and 12, of block 118, of the village of St. Johns. Notice being served upon him to remove his fence upon the north side of said lots, upon the claim that it encroached upon Gibbs street, he filed the bill in this case to restrain the authorities of the village from interfering with the fence and trees gpon the premises, and from molesting a sidewalk which he had built within the boundaries of said street, but not where the same had been directed to be laid. The circuit judge dismissed the bill.

We think the decree of the circuit court was right. The brief of complainant’s counsel concedes that the proof does not establish the possession by complainant which is alleged in the bill of complaint, and that but two questions remain, viz.: (1) The exact location of the north boundary line of complainant’s lot; (2) the length of time that G-ibbs street had been laid out, opened, and traveled as a public highway.

The proof shows that the lots were purchased by the complainant about 15 years ago, and that he fenced them later, where he thought the line was, and that he did not intend to encroach on the street. It appears to our satisfaction that the fence was not built upon the true line, but encroached upon the street as laid out. It is also clear that Gibbs street has been laid out and traveled for about 30 years. As complainant’s deed does not cover the premises in dispute, and adverse possession, upon which the bill seems to have been founded, is not shown, no reason appears why complainant should be granted relief. His brief says that—

The defendant seems to be undertaking to widen the street in this manner in order to avoid the allowance of damages to the adjacent owners, as the legal way contemplates.”

' On the other hand, it may be justly said that the complainant commenced this proceeding to wring from the public damages for taking ground to which, to say the least, he has no title, either by grant or possession.

It is contended by counsel for defendant that the statute (How. Stat. § 1371 et seq.) provides a method#of settling such controversies as this in an action therein prescribed, and that the evidence does not indicate an intention upon the part of the authorities to attempt to disturb the possession of the complainant without giving him an opportunity of defending his rights under such statute, if he should care to assert them, as provided in section 1373. Township of Lebanon v. Burch, 78 Mich. 641. Counsel for the. defendant claims that the statute mentioned applies to the village of St. Johns, citing its charter (Laws of 1867, vol. 2, p. 137, § 3), giving the power to the board of trustees to proceed under the general law applicable to townships, — which does not seem to be disputed, — and asks that this question be passed upon; but we prefer to leave it undetermined, as no argument is made, or authority, beyond the statute, cited, by either party.

The decree of the circuit court will be affirmed, with costs.

The other Justices concurred.

       The bill alleges an undisputed possession of the premises in question for upwards of 15 years.


text:
    Melissa Brown v. Helen Stutson.

      Deed — Delivery in escroto — Evidence.
    1. Complainant filed a bill to compel the delivery to her of a deed executed to her by her father shortly before his death, and delivered to the defendant, to be delivered to complainant at the death of her mother, which had since occurred. And it is held that if the deed was in fact delivered to the defendant by the grantor before his death, to be thereafter delivered to complainant, this would constitute a good delivery; citing Thatcher v. St. Andrew's Uhurch, 37 Mich. 264, and cases cited.

      2. The statements of the father, made in the absence of the defendant, that the deed was delivered to the defendant by him upon the condition stated, being admissions made by a party with whom the defendant was in privity, and relating to a fact provable by parol, were competent evidence.
    Appeal from Shiawassee. (Newton, J.) Submitted on briefs April 11, 1894. Decided June 2, 1894.
    Bill to compel the delivery of a deed. Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Walter McBride (Matthew Bush, of counsel), for complainant.

      John T. McCurdy (Fedewa & Walbridge, of counsel), for defendant. ,
   Montgomery, J.

The complainant and defendant are sisters, and heirs at law of William Tanner, deceased. The bill is filed by complainant to compel the defendant to deliver up to complainant a deed of a house and lot in the village of Vernon, executed by William Tanner, the father of the parties.

The bill alleges that, shortly before the death of Mr. Tanner, he executed the deed in question, and, for the purpose of making an equitable division of his property, gave to defendant $1,500, and delivered to her the deed of the premises in question, which were of about the same value, to be delivered to complainant at the death of her mother, which has since occurred. The defendant does not ■deny that such a deed was in fact drawn up and signed, nor that it is now in her possession; but she alleges that the deed was not delivered to her by Mr. Tanner in his lifetime, but that he retained it in his own possession, informing her where he had put it, and requested that she take possession of it after his death, and that she, after his death, took it into her possession. She further alleges that the direction under which she received the deed was that she was to judge whether complainant cared for her mother properly during, her lifetime, and that at the death of the mother the deed was to be delivered only in case complainant had given her proper support.

Upon the question of the terms upon which the deed was received by the defendant, and the conditions upon the performance of which she • was to deliver it to complainant, she is disputed by the fact that Mr. Tanner made other provision for his wife, as well as by his statements made in his lifetime. The question is mainly one of fact. If the deed was in fact delivered by the father before his death, to be thereafter delivered to complainant, this would constitute a good delivery. Thatcher v. St. Andrew’s Church, 37 Mich. 264, 269, and cases cited.

Defendant contends that there was no competent evidence of delivery. But there is abundant evidence of the grantor’s statements that the deed was delivered to the defendant by him, to be delivered to the complainant. These admissions, being by a party with whom the defendant is in privity, and relating to a fact which is provable by parol, are competent. Keator v. Dimmick, 46 Barb. 158; Varick v. Briggs, 6 Paige, 323, 22 Wend. 543; Padgett v. Lawrence, 10 Paige, 170; Baker v. Haskell, 47 N. H. 479; 1 Greenl. Ev. § 189. See, also, Proprietors of Church v. Bullard, 2 Metc. 363.

While defendant’s testimony tends to rebut complainant’s prima facie case, the circuit judge, who saw the witnesses, was not impressed with her version of the transaction, and we are convinced that he reached the correct conclusion.

The decree will be affirmed, with costs.

The other Justices concurred.


text:
    George H. Mason v. Henry L. Partrick.
    [See 98 Mich. 237.]

      Practice in circuit court — Leading questions — Evidence—Error without prejudice — Appeal—Discussion of errors in brief.

    1. Error committed in excluding a question is cured by its subsequent answer.
    2. It is within the discretion of the trial court to permit counsel to ask a leading question upon a wholly-immaterial matter.
    3. The purchaser of a horse, who is engaged in a business in which he makes use of such horses, is competent to give an opinion as to the value of the animal.
    4. Where the finding of the jury in an action of replevin confines the damages awarded to the defendant to the value of the property, as specifically found by them, the erroneous admission of testimony upon the subject of special damages to the defendant resulting from the seizure of the property is error without prejudice.
    5. Inquiry on the cross-examination of a defendant in replevin as to his history in business matters before making the contract upon the alleged breach of which the suit is brought, which inquiry is not directed to showing that the defendant has been guilty of any offense against the law, and raises immaterial issues, is properly limited by the circuit judge.
    6. If opposing counsel are expected to receive any benefit from Supreme Court Rule No. 61, which requires the errors relied upon to be argued in the appellant’s brief, there should be enough to point out at least in what it is claimed the error consists, which is not done by stating, in support'of assignments relating to the charge of the court, that all of said assignments are well taken, and that the instructions covered by such assignments tended to and did misled the jury, as shown by their verdict.
    Error to Muskegon. (Dickerman, J.) Argued April 12, 1894. Decided June 2, 1894.

      Replevin. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Turner, Turner & Turned, for appellant.

      Frank Joslyn (Jones & Clark, of counsel), for defendant.
   Montgomery, J.

This is an action of replevin. In June, 1891, the parties entered into a written contract, which recited that the plaintiff had agreed to advance $1,000 to defendant for the purpose of establishing a milk, dairy, and commission business, to be known as the “ Muskegon Creamery,” and to be operated by and under the name of Henry L. Partrick. The defendant, in consideration of this advance, agreed to devote his entire time to 'the management and operation of the business, and to assign and set over to plaintiff a certain land contract as security, and agreed to consult with the plaintiff regarding all matters' of importance in connection with the business, and to abide by the directions and instructions of the plaintiff. The agreement contained the further provision:

“It is hereby strictly understood that the contract for the deed before mentioned, the buildings and improvements on the foregoing described property, together with all the apparatus, chattels, and merchandise used in connection with the before-mentioned business, is and shall remain the property of the said first party until the following agreement shall have been fulfilled.”

This is followed by an agreement to pay the advance, with interest at the rate of 10 per cent., and it provided that the plaintiff should, upon such payment, relinquish to the defendant all his right, title, and interest in the property.

Plaintiff, claiming that defendant had failed to perform the contract, brought replevin, and obtained possession of the personal property, which inventoried $797.60. On the trial the jury found in favor of plaintiff’s claim that the contract had not been performed by defendant, and judgment followed, in favor of plaintiff for such of the goods as were found to have been used in connection with the business referred to in the contract. But the jury found that certain of the property seized on the writ, amounting in value to $189, was not used in connection with the business, and gave judgment to the defendant for the amount, he having waived a return. It is apparent that the correct result was reached if there was a basis in the evidence for the finding of the jury, and no improper testimony was received which influenced the result.

Error is assigned upon the refusal of the circuit judge to permit the plaintiff to show what the financial standing of the defendant was prior to his coming to Muskegon. We do not see how this could have had any bearing on the issue in question, and the ruling was proper.

The next assignment of error relates to a ruling excluding a question which was subsequently answered, and if there was any error it was cured by this.

The third assignment of error is to a ruling permitting the defendant to ask a leading question upon a wholly immaterial matter. The ruling was certainly within the discretion of the court.

The fourth assignment is subject to the same considerations.

The fifth assignment of error is to a ruling permitting the defendant to state the value of one of the horses. The evidence showed that he purchased the horse; that he was engaged in a business in which he made use of such horses. There was sufficient foundation to admit his opinion as to the value. Erickson v. Drazkowski, 94 Mich. 551.

The sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments of error relate to the rulings of the trial judge upon the question of the admissibility of testimony upon the subject of special damages to the defendant resulting from a seizure of.the property. If the rulings complained of had affected the result, we are not prepared to say that error was not committed, particularly by the conduct of defendant’s counsel, complained of, in persisting in an offer of testimony which was incompetent, and which had been excluded by the court. But the finding of the jury clearly excludes any such elements of damage as were sought to be shown by this testimony, and confines the damages awarded to the value of the property, as specifically found by the jury; so that it is clear that the plaintiff was not damaged by these rulings.

The next four assignments of error relate to the rulings of the court in excluding inquiry, on cross-examination, as to the history of defendant in business matters before the making of the contract. The inquiry was' not directed to showing that the defendant had been guilty of any offense against the law, and raised immaterial issues, and was very properly limited by the trial judge.

The remaining assignments of error relate to the charge of the court, and the argument of counsel upon the subject is quoted below:

“We submit that all of these assignments of error which relate to the charge of the court are well taken. We submit that the instruction covered by such assignments of error, and given by the trial court, tended to mislead the jury, and did mislead them, as shown by the verdict rendered in the cause.”

We call attention to the fact that this is not a compliance with the rule. If opposing counsel are expected to get any benefit from the rule requiring the errors relied upon to be argued in the brief, there should be enough to point out at least in what it is claimed the error consists.

We have examined the charge of the court, and have not found that it was calculated to mislead the jury, or that it is subject to just criticism.

The judgment will be affirmed, with costs.

The other Justices concurred.


text:
    Alfred K. Taylor v. Peter F. Deveaux and Josephine Deveaux.

      Taxes — Validity of deed — Subpoena— Jurisdiction— Conclusiveness of deed.

    Plaintiff brought ejectment, basing his right to recover upon a tax deed,for the year 1887. The defendants are husband and wife, and resided upon the land, which was owned by the wife, but assessed to the husband, upon whom alone the subpoena, issued upon the filing of the Auditor General’s petition, was served. The wife did not appear. And it is held’:
    a — -That the court obtained no jurisdiction as to the wife, and the deed is therefore void as against her; citing Fowler v. Campbell, ante, 398.
    b — That the Legislature has attempted to have questions in regard to the validity of taxes settled before sale, by an adjudication in a judicial proceeding, and that the first requisite is jurisdiction of the person to be bound by the decree.
    c — That section 67 of the tax law of 1889 (3 How. Stat. § 1170g6), which provides that the deeds issued by the Auditor General “shall convey an absolute title to the land sold, and be conclusive evidence of title in fee in the grantee, subject, however, to all taxes assessed and levied on such land subsequent to the taxes for which the same was bid off, and the deed shall so state,” of necessity determines the nature of the title conveyed by a valid sale and deed, and that it is not within the power of the Legislature to deny the right to defend title against a tax deed.

      Error to Saginaw. (Gage, J.) Argued April 12, 1894. Decided June 2, 1894.
    Ejectment. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      G. K. Grout (D. P. Foote, of counsel), for appellant.

      G. W. Davis, for defendants.

       For cases involving questions arising in proceedings under the tax law of 1889 for the sale of delinquent tax lands, see Millard v. Truax, 99 Mich. 157, and note, and Fowler v. Campbell, ante, 398.

   Hooker, J.

Plaintiff brought ejectment, basing his right to recover upon tax deeds for the 'years 1886 and 1887. The court directed a verdict for the defendants, and the plaintiff brings error. The deed for the year 1886 is not relied upon.

The defendants resided upon the premises, which belonged to Josephine Deveaux, as the record showed. They were assessed to Peter F. Deveaux, and the subpoena, upon the Auditor General's petition, issued to and was served upon him,- and not upon Josephine Deveaux, who did not appear. •

The court obtained no jurisdiction, and the deed was therefore void against her. Fowler v. Campbell, ante, 398, covers this question.

It is contended that the deed is conclusive evidence of title in fee in the grantee. 3 How. Stat. § 1170<?6, provides that “such deeds shall convey an absolute title to the land sold, and be conclusive evidence of title in fee in the grantee.” A case cited holds that a similar statute of Wisconsin could be given effect as a statute of limitation. Smith v. Cleveland, 17 Wis. 566. We do not find this decision followed. Under our tax law the Legislature has attempted to have questions in regard to the validity of taxes settled before sale, by an adjudication. The proceeding is a judicial one, and the first requisite is jurisdiction of the person to be bound by the decree. We cannot believe that it was the intention of the Legislature ^o require judicial proceedings involving personal service of a subpoena for their foundation, and at the same time provide that delivery of a deed under the decree shall effectually conclude the owner, whether the court acquired jurisdiction or not. The statute, of necessity, determines the nature of the title conveyed by a valid sale and deed, viz., an abáolute title in fee, subject to subsequent taxes. It is not within the power of the Legislature to deny the right to defend title against a tax deed. Blackw. Tax Titles, §§ 78-80; Cooley, Const. Lim. (6th ed.) 452. We think it much more consistent to hold that the legislative intent was that the deed should be evidence of title in fee-simple, after the right to give the deed had been shown, by proof of a valid decree. Cooley, Tax’n, p. 355,. and cases cited.

The judgment will be affirmed.

The other Justices concurred.


author: 'Grant, J.

text:
    The Globe Iron Works Company v. The Steamer “John B. Ketcham, 2nd,” and The Huron Transportation Company, Intervener.

      Water-craft — Lien—Maritime contract — Jurisdiction.
    1. Contracts for the construction of vessels, and for the furnishing of materials therefor, before they are launched, are non-maritime, and liens and proceedings for their enforcement are under state control, and may be enforced in the state courts.
    2. How. Stat. chap. 285, being Act No. 59, Laws of 1864, as amended, entitled “An act to provide for the collection of demands against water-craft,” cannot be held, under the authorities, to conflict with the laws of the United States in providing a lien and methods for its enforcement for the •building of vessels and the furnishing of materials therefor before the vessel is launched into the water-ways of commerce.
    Error to Wayne. (Frazer, J.) Argued April 11 and 12, 1894. Decided June 2, 1894.
    Proceedings to enforce a lien under the water-craft statute. The intervening defendant brings error.
    Judgment affirmed.
    The facts are stated in the .opinion.

      1. IS. Tarsney and W. W. Wicicer, for appellant.

      Hatch & Cooley, for complainant.
   'Grant, J.

This is a proceeding to enforce a lien under ■the water-craft law of this State, being chapter 285, How. Stat. The law now in existence was enacted in 1864, and was entitled “An act to provide for the, collection of demands against water-craft.” The claim is for one boiler .and attachments, one smokestack and umbrella with attachments, furnished and used in the building, fitting, furnishing, and equipping of the steamer “John B. Ketcham, 2nd.” The steamer was built, and the property which is the subject. of this claim was furnished, in the state of ■Ohio. The water-craft law of that state is similar to that ■of Michigan. Section 44 of the act (How. Stat. § 8278) .reads as follows:

“In cases where, by the general maritime law or laws of any other of the United States, now or hereafter to be passed, liens similar to those provided for in this act shall have been created against water-craft, the same may be enforced under the proceedings established by this act in like manner as if they accrued in this State; and chattel mortgages upon such water-craft, or other interest therein, held in such other states under the laws thereof, may be ■enforced hereunder ■ against surplus proceeds, in like manner as if held in this State under its laws.”

The amended complaint is as follows:

■“To the Circuit Court for the County of Wayne:
“The amended complaint of the Globe Iron Works Company against the steamer ‘John B. Ketoham, 2nd,’ her engines, boats, tackle, apparel, and furniture, and against all persons lawfully intervening for their interest therein, in a cause of contract, alleges as follows:
“First. That the said complainant is a corporation duly organized and existing under the laws of the state of Ohio.
“Second. That said steamer is a water-craft of above five tons burthen, used, and intended to be used, in navigating the waters of this State, and said steamer also navigates the waters within and bordering upon the state of Ohio, and also the Great Lakes and their connecting waters, and, amongst others, Lakes Erie, St. Clair, and Huron, and the Detroit and St. Clair rivers; that she was built by her owners, Bills & Koch, hereinafter mentioned, with the intent and for the purpose of being so used in navigating said lakes and waters, and that they so intended to use said vessel during all the time she was being built.
“Third. That on or about the 14th day of May, 1892, at the special instance and request of Oscar P. Bills and Edward E„ Koch, who were then the owners of said steamer, and were co-partners doing business under the firm name of Bills & Koch, said complainant furnished to said steamer the materials and machinery set forth in the statement hereto annexed, marked ‘ Schedule A,’ and made a part hereof, to be used, and which were actually used, in and about the building, fitting, furnishing, and equipping said steamer, said steamer then being in the process of construction, and such materials and machinery being intended to be used, and actually were used, in and about the original building, constructing, fitting, furnishing, and equipping said steamer; that for said materials said copartners agreed, to and with said complainant, to pay said complainant the amount of money, and the interest thereon, stated in the said schedule, to wit, the sum of $4,054.72, $3,936.33 thereof on the 25th day of November, 1892, and $118.39 thereof on the 25th day of August, 1892.
“Fourth. That said materials and machinery are reasonably worth the sums of money charged for them in said schedule.
Fifth. That, at the time of the commencement of this action, there was, and now is, due said complainant for the said materials the sum of $4,054.72, with interest on $3,936.33 thereof from the 25th day of November, 1892, at the rate of six per cent, per &nnum, and on $118.39 thereof from the 25th day of August, 1892, at the same rate, and that no part of the same has ever been paid.
Sixth. That the said contract for furnishing the materials and machinery aforesaid was made and performed by the said complainant, and the said materials and machinery were accepted and used, and intended to be accepted and used, as aforesaid, by the said Bills & Koch, in the said state of Ohio; that at the time of the making of said contract between the said complainant and the said Bills & Koch, and at the time the said complainant so furnished the said materials and machinery, the said vessel, as said complainant is informed and believes, was then upon the land in said state of Ohio, and not in the water, and had never been in the water, and had never been launched, and that at the time of the .making of said contract it was the intent and purpose of both the said complainant and the said Bills & Koch that the said machinery should be placed in the said vessel before she was removed from the land or launched or placed in the water, and that the said materials and machinery were so placed in the said vessel while she was upon the land, and before she was launched or placed in the water; that at the time of the making of said contract, and at the time the complainant performed the same by the delivery of said materials and machinery, and at the time the same was so placed in said vessel by said Bills & Koch, the said vessel, as the complainant is informed and believes, had not been “licensed or enrolled under the acts of Congress.
“Seventh. Complainant further alleges that, on and for a long time prior to the said 14th day of May, 1892, and during all the time since, there have been, and now are, created, by the laws of the state of Ohio, liens against water-craft similar to those provided for by chapter 285 of Howell's' Annotated Statutes of the State of Michigan.
“Eighth. That the laws of the state of Ohio, on and for a iong time prior to said 14th day of May, 1892, and during all the time since, have provided, and do now provide, that any steamboat or other water-craft navigating the waters within or bordering upon said state shall be liable, and such liability shall be a lien thereon, for all debts contracted on account thereof by the master, owner, steward, consignee, or other agent for materials, supplies, or labor in building, repairing, furnishing, or equipping of the same.
“Ninth. That the laws of said state further provide that the liens hereinbefore mentioned may be enforced in a proceeding in the nature of a proceeding in rem against the water-craft against which they accrue, by name.
“Tenth. That, by the laws of the state of Ohio aforesaid, a lien in favor of said complainant has been created, and now exists, against the said steamer, for the said sum of $4,054.72, with intei^ est thereon as aforesaid, and by reason of the premises, and of the statute in such case made and provided, said complainant is entitled to, and has a lien upon, the said steamer ‘ John B. Keteham, 2nd,’ for the sum of money last mentioned, and interest thereon as aforesaid, which lien is enforceable under the statutes of this State in such case made and provided; that said complainant is informed and believes that, since its said lien has accrued, said steamer has been sold by said copartnership, but to whom said complainant does not know, but positively avers that the present owners of said steamer are not bona fide purchasers thereof without notice, but that, on the other hand, they had full notice and knowledge of the said lien of the complainant at the time they purchased, said steamer.
“Wherefore said complainant prays that process in due form, according to the course and practice of this court, under the statute in such case made and provided, may issue, directed to the sheriff of said county, commanding Mm to seize and safely keep said steamer ‘ John B'. Ketcham, 2nd,’ her tackle, apparel, and furniture, to answer all such liens as shall be established against it according 'ito law, and to make return of Ms proceedings under such warrant, pursuant to said statute; and also that, pursuant to said statute, a summons to the owner or master of said steamer be issued in due form, and that judgment may be rendered in favor of said complainant for its claim aforesaid, and that the same may be satisfied, and the complainant’s said lien against said steamer may be enforced, according to the statute in such case made and provided, and that said complainant may have such other and further relief in the premises as the case may entitle it to.”

The' defendant owner demurred to the complaint upon the ground that it did not set forth a cause of action cognizable by the State court, but that, the vessel being engaged in commerce upon the Great Lakes, proceedings in rem to enforce the collection of a claim against her can be maintained only in the United States courts in admiralty. The demurrer was overruled, and the defendant appeals.

But one question is raised by the defendant, viz., whether the United States admiralty court has exclusive jurisdiction in the case. The solution of the question depends upon the character of the contract. If the contract under which this machinery was furnished is a maritime contract, .then the United States courts have exclusive jurisdiction; if it is a non-maritime contract, then the State court has jurisdiction, and the remedy provided by the State watercraft law is valid. The learned counsel for the defendant "have cited many authorities where the jurisdiction of the state courts was denied over proceedings in rem instituted in such courts upon maritime contracts and maritime torts. Among these are the following: The Hine v. Trevor, 4 Wall. 555; The Moses Taylor, 4 Id. 411; The Belfast, 7 Id. 624; Brookman v. Hamill, 43 N. Y. 554; The Josephine, 39 Id. 19; The Petrel v. Dumont, 28 Ohio St. 602; Campbell v. Sherman, 35 Wis. 103; Vose v. Cockcroft, 44 N. Y. 415; The Gen. Buell v. Long, 18 Ohio St. 521; Weston v. Morse, 40 Wis. 455; Ferran v. Hosford, 54 Barb. 200.

In the case of The Moses Taylor, suit was brought in a state court on a contract for the transportation of a passenger, which was held to be a maritime one, like the transportation of merchandise.

The Hine v. Trevor was a case of collision on the Mississippi river near St. Louis. The libelants brought suit under the state law of Iowa, which subjugated the vessel to sale in satisfaction of the damages sustained. Held a maritime tort.

In The Belfast, the libelants sued in the state court for the loss of 29 bales of cotton while in transportation. Held a maritime contract.

The libelants in The Josephine were proceeding to enforce a lien under the state law for supplies, etc., furnished to the vessel while engaged in commerce between the port of New York and a port in the state of New Jersey.

In The Petrel v. Dumont—a case greatly relied upon by the defendant’s counsel — it was held that contracts for supplies furnished at the home port while the vessel was engaged in navigation were maritime contracts.

These will sufficiently illustrate the character of the cases. In all, the jurisdiction of the state court was denied because the contracts involved were maritime.

It is equally well established by a long line of authorities, in both the federal and the state courts, that state courts have jurisdiction over cases founded upon non-maritime contracts or non-maritime torts. Edwards v. Elliott, 21 Wall. 532; Johnson v. Elevator Co., 119 U. S. 388; Foster v. The Richard Busteed, 100 Mass. 409; McDonald v. The Nimbus, 137 Id. 360; Sheppard v. Steele, 43 N. Y. 52; King v. Greenway, 71 Id. 413; Wilson v. Lawrence, 18 Hun, 56, affirmed 82 N. Y. 409; The Tuttle v. Buck, 23 Ohio St. 565; Sinton v. The R. R. Roberts, 34 Ind. 448; Hay v. The Winnebago, 10 Wis. 428; Thorsen v. The J. B. Martin, 26 Id. 488. In each of the above cases the proceeding was in rem.

The jurisdiction of the admiralty courts over cases founded upon non-maritime contracts has been denied in the following cases: Roach v. Chapman, 22 How. 129; Ferry Co. v. Beers, 20 Id. 393; Cunningham v. Hall, 1 Cliff. 43; Young v. The Orpheus, 2 Id. 29; The Pacific, 9 Fed. Rep. 120; The Count De Lesseps, 17 Id. 460.

The fundamental error on the part of the defendant lies in the apparent assumption that the machinery in the present case was furnished under a maritime contract. Whatever may once have been the rule, it is now^ established beyond controversy that contracts for the construction of vessels, and for the furnishing of materials therefor, before they are launched, are non-maritime, and that liens and proceedings to enforce such liens are under state control, and may be enforced in state courts. The latest enunciation of the doctrine by the Supreme Court of the United States is found in the case of The J. E. Rumbell, 148 U. S. 11, where it is said:

“It is now settled that a contract for building a ship, being a contract made on land, and to' be performed on land, is not a maritime contract, and that a lien to secure it, given by local statute, is not a maritime lien, and cannot, therefore, be enforced in admiralty.”

Many authorities are there cited and commented upon.

In the case of The Petrel v. Dumont, it was said that “ contracts for boat or ship building are not maritime contracts.” See, also, Lake v. The Manhattan, 46 Fed. Rep. 797; Edwards v. Elliott, 21 Wall. 532; Roach v. Chapman, 22 How. 129; Cunningham v. Hall, 1 Cliff. 43; The Pacific, 9 Fed. Rep. 120; The Count De Lesseps, 17 Id. 460.

After the vessel is launched, contracts for equipment or repairs or material are maritime. Before the vessel is launched, they are contracts upon land, and are non-maritime. The distinction is so clearly pointed out in the numerous authorities above cited, and the rule so firmly established, that we deem further discussion unimportant. The reason for the distinction appears to be that in the former case the vessel is engaged in commerce, while in the latter case she is not, or, as stated in Lake v. The Manhattan, “a ship in esse as a maritime subject gives a maritime character to all transactions directly connected with it.” That is an interesting case, both in drawing the distinction, and giving the reasons therefor which are supposed to exist.

The water-craft law of Michigan, substantially in its present condition, so far as this question is concerned, has been upon the statute books since 1839. Act No. 43, Laws of 1839. Many cases arose under to it prior to 1863, in none of which does the validity of the act appear to have been questioned. In Parsons v. Russell, 11 Mich. 113, one feature of the act was held unconstitutional because it violated the provision of the Constitution that “no person shall be deprived of life, liberty, or property without due process of law,” in that it did not provide for a determination of the validity or amount of the claim before a judicial tribunal, but authorized the seizure and sale of a vessel upon the mere assertion of the debt or demand. Upon this point, however, the Court was divided. In 1864 the Legislature, in view of that decision, passed & new act, incorporating the main provisions of the old. It differed from that mainly in providing judicial proceedings to establish and enforce the lien. Several cases have since been brought under the law, in none of which has its validity been attacked. It certainly cannot be held, under the authorities, to conflict with the laws of the United States in providing a lien and methods for enforcing such lien for the building of vessels and the furnishing of materials therefor before the vessel is launched into the water-ways of commerce.

Judgment affirmed.

The other Justices concurred.