text:
    PEOPLE v. McPHEE.
    ^Lotteries — Suit Club.
    A “ tailor suit club,” the members of which contribute $1 each per week and have weekly drawings, and through which a member may receive a suit of clothes for $1, is a lottery or gift enterprise, as defined and prohibited by section 11344, 3 Comp. Laws, though there is no chance for the members to sustain a loss.
    Exceptions before judgment from Chippewa; Steere, J.
    Submitted February 17, 1905.
    (Docket No. 267.)
    Decided April 21, 1905.
    Monroe J. McPhee was convicted of conducting a lottery.
    Affirmed.

      Holden & Holden (Clyde Hayden, of counsel), for appellant.

      John P. Gonrick, Prosecuting Attorney, for the people.
   Ostrander, J.

At the conclusion of the testimony in this case, counsel on both sides asserted that there was no issue of fact to be determined, and requested the court to direct a verdict either of conviction or acquittal, according to his opinion of the law. The court instructed the jury that under the testimony they should render, and they did render, a verdict of guilty as chargqd, and the case comes here upon exceptions before sentence.

Respondent is charged in the information with setting up and promoting a lottery for merchandise, and that he did dispose of merchandise by way of lottery and gift enterprise, contrary to the form of the statute. He is a merchant tailor doing business at the city of Sault Ste. Marie, and,.in connection with or as a part of his regular business, .he conducted what is known as a “tailor suit club,” or "suit club.” This suit club had 30 members, who each paid to respondent $1 a week. Respondent gave receipts for the money, dated, and in the following form:

“ $1.00. Received of-one dollar, club dues.
“M. J. McPhee.”

To each member a number was allotted by the members themselves. These were put in a cigar box, thoroughly mixed and shaken, and a drawing was made from this box by one of the members according to some plan agreed upon among themselves. The drawings took place each Saturday night, and some member, as a result of the drawing, received for whatever he had paid in a suit of clothes or an overcoat valued at and worth $20, made to order by respondent. If a member won, he drew out of the club, and a new member was taken in. It might occur that one who had paid in but $1 would get the suit of clothes or overcoat, and it might occur that a member would pay $20 and participate in 20 drawings without securing either as a result of the drawing. It was a part of the agreement, however, and was the practice, to permit a member of the club to withdraw at any time, and upon such withdrawal he was entitled to receive from respondent clothing of the value of the money he had contributed to the club, or let the sum of money he had paid in stand as a credit and as part payment for clothing purchased of respondent. That is to say, if a member had paid $1 a week for 20 weeks, he had a credit of $20. If he had paid but 6 weeks, he had a credit of $6, which he could use with the respondent in the purchase of garments.

Counsel for respondent say that the only question involved is whether, upon this state of facts, a verdict of guilty was properly directed, or, to put it in another way, whether respondent was conducting a lottery or gift enterprise, within the meaning of our statute.

The statute in question is section 11344 of the Compiled Laws of 1897, and is the first section of chapter 316, entitied, “Of offenses Against the Public Policy.” It provides that:

“Every person who shall set up or promote, within this State, any lottery or gift enterprise for money, or shall’ dispose of any property, real or personal, goods, chattels or merchandise or valuable thing,' by the way of lottery or gift enterprise, and every person who shall aid, either by printing or writing, or shall in any way be concerned in the setting up, managing, or drawing of any such lottery or.gift enterprise, or who shall in any house, shop, or building owned or occupied by him or under his control, knowingly permit the setting up, managing, or drawing of any such lottery or gift enterprise, or the sale of any lottery ticket or share of a ticket, or any other writing, certificate, bill, goods, chattels or merchandise, token or other device purporting or intended to entitle the holder or bearer or other person to any prize or gift, or to any share of or interest in any prize or gift to be drawn in any such lottery or gift enterprise, or who shall knowingly suffer money or other property to be raffled for in such house, shop, or building, or to be there won by throwing or using dice, or by any other game or course of chance, shall for every such offense be punished by a fine not exceeding two thousand dollars, or by imprisonment in the county jail not more than one year.”

A subsequent section of the same chapter (§ 11346) provides that if any person shall, after being convicted of any offense mentioned in this section, commit the" like offense, or any other of the offenses therein mentioned, he shall, in addition to the fine provided therefor, be further punished by imprisonment in the State prison not more than three years, or by imprisonment in the county jail not more than one year.

The single contention of counsel is that, inasmuch as there was no chance for a member of the club to sustain a loss, respondent was not conducting a lottery. We have been referred to many definitions of the word “lottery,” some of them made by lexicographers, some by judges, and particularly to one given in the third edition of Bishop-on "Statutory Crimes, § 952, which’ counsel say supports their contention, and which is:

“A lottery may be defined to be any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine.”

We do not understand how this definition aids respondent. It is well known that in most lottery schemes some of those who pay get nothing. It is difficult to see how a definition intended to be general, and to describe the results to participants in a lottery, could well omit language indicating that the result might be nothing. But the learned author does not mean that, to be classed as a lottery, the scheme must have blanks. This is evidenced by the context and by cases cited. In another place the same author says that the word has not yet been defined in a manner which is both inclusive and exclusive. Our statute does not define the word. Nor need we attempt a definition. Like similar statutes in other of the States, our own has a general purpose, and this purpose is not alone evidenced by the language of the statute. In a large majority of tlm States, including Michigan, there is a constitutional limitation upon the power of the legislature to authorize lotteries. New definitions are directly or indirectly attempted. These various constitutional inhibitions in effect recognize and affirm the rule stated in Stone v. Mississippi, 101 U. S. 814, that lotteries are not in the legal acceptation of the term mala in se, but may properly be made mala prohibita. Such a provision has been held to be so far self-executing as to warrant and require the court, in the absence of penal or other statutes upon the subject, to declare the charter of a private corporation, whose scheme and plan of business was within the constitutional inhibition, to be forfeited. State, ex rel. Kellogg, v. Mercantile Ass’n, 45 Kan. 351 (11 L. R. A. 430). In the case mentioned it was said that the word “ lottery ” must be construed in the popular sense, with a view of remedying the mischief intended to be prevented, and to suppress all evasions for the continuance of the mischief. The word “lottery” is generic. No sooner is it-defined by a court than ingenuity evolves some scheme within the mischief discussed, but not quite within the letter of the definition given. This is made very apparent, in the large number of cases which we have examined in which various methods of distributing money or goods by chance are examined • and discussed. It is said by counsel for respondent in their brief that this court, in People v. Elliott, 74 Mich. 264 (3 L. R. A. 403), laid down a definition which did not include a possibility of loss. In that case, as in others, the language of the opinion is addressed to the facts before the court, and the contentions presented for decision. We approve the language used in the opinion in Ballock v. State, 73 Md. 1 (8 L. R. A. 671), where it is said:

“Our statute does not justify a court * * * in deciding'a thing is not a lottery simply because there can be no loss, when there may be very large contingent gains or because it lacks some element of a lottery according to some particular dictionary’s definition of one, when it has all the other elements, with all the pernicious tendencies which the State is seeking to prevent.”

In that case it was contended that no blanks were drawn, and the scheme considered provided for the ultimate return of the entire investment, with interest; the time of such return to certain holders of the bonds depending upon chance, and the inducement for investment being the possibility of getting a bonus, also determined by chance. See, also, State, ex rel. Attorney General, v. Investment Co., 64 Ohio St. 283 (52 L. R. A. 530); Wooden v. Shotwell, 23 N. J. Law, 465; U. S. v. Olney, Deady (U. S.), 461; State v. Mumford, 73 Mo. 647; MacDonald v. U. S., 63 Fed. 426; Beg. v. Harris, 10 Cox, C. C. 352. For a considerable collection of cases and general discussion, see Equitable Loan & Security Co. v. Waring, 117 Ga. 599 (62 L. R. A. 93). The case of State v. Moren, 48 Minn. 555, is in its essential facts precisely like the case at bar. The only.question considered by the court was whether the evidence was sufficient to bring the case within the condemnation of the statute. The Minnesota statute defines a lottery to be a scheme for the distribution of property by chance among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a “lottery,” “raffle,” or “gift enterprise,” or by any other name. The court held the term “lottery” to have no technical meaning, but under the statute it was to be construed in the popular sense, and with the view to remedy the mischief intended to be prevented.

“ The statute is intended to reach all devices which are in the nature of lotteries, in whatever form presented, and the courts will tolerate no evasions for the continuance of the mischief.”

Of the fact that the holder had the option to receive in goods the amount he had paid, it was said that it would probably operate only as an additional incentive to aid the lottery scheme.

‘ ‘ It does not take the scheme out of the statute. They wére not bought in order to get their face value in goods. The vicious element still inheres in the transaction. * * * The sale of the ticket gave the purchaser the chance to obtain something more than he paid for, and that became an extra inducement for the purchase.”

Counsel for respondent say that the Minnesota statute differs from ours, and that the court had before it what we have not — a statutory definition of the word “lottery.” The definition, however, is very broad, and cannot be said to contain any language which would make the decision on that account inapplicable here. Upon the facts and the construction placed by the court upon the statute, the case is decisive.

It cannot be denied that the respondent sought to, and presumably did, increase his business by a device or scheme, the feature of which, so far as securing patrons and customers was concerned, was the chance to obtain $20 worth of clothing for some sum of money less than $20. It was calculated to, and did, appeal to the gambling propensity of men, was within the mischief at which the legislation is aimed, was within the terms of the statute, and, in our opinion, a disposition of property by way of lottery. We are referred by counsel to no cáse which sustains their contention.

We have not lost sight of the fact that the charters of various cities permit ordinances forbidding lotteries and punishing promoters of them, treating them as minor offenders, nor that the statute before us warrants the imposition of a considerable penalty, and mates a second offense a felony. The statute is general-,- as it must be, and ■applies to big and to little lotteries. The extent of the mischief done by respondent is not a consideration which ought to affect our determination..

We are of opinion that the court below was right, and the conviction is therefore affirmed.

Moore, C. .J., and Carpenter, McAlvay, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    BLANCHARD v. DETROIT & MACKINAC RAILWAY CO.

    Master and Servant — Railroads—Injury to Brakeman — Automatio Couplers — Statutes—Construction.
    Section 5511, 2 Comp. Laws, requiring coupler devices that can be operated without requiring the operator to go between the cars to be placed “upon each end of every freight car,” etc., and declaring (section 5512) that every railroad company refusing to comply therewith shall be liable to a penalty, does not require the placing of such couplers on the tenders of locomotives.
    Error to Alpena; Emerick, J.
    Submitted February 17, 1905.
    (Docket No. 185.)
    Decided April 21, 1905.
    Case by Louis Blanchard against the Detroit & Mackinac Railway Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Collins & TP Aigle, for appellant.

      Charles B. Henry, for appellee.

       Rehearing denied June 29, 1905.

   Ostrander, J.

Plaintiff was a brakeman, employed by defendant from 1897 to late in the winter of 1899, and again from February 15, 1900, to March 3d of the' same year, when he was injured. On April 10,1900, he again resumed work, and continued, at practically the same work as before, until March, 1902. When the injury occurred the locomotive was backing to make connection with a train of flat cars loaded with short logs. Plaintiff rode on the engine until it was within a few feet of the train. He then ran ahead of the backing locomotive, and in making the coupling his hand was injured. The negligence of defendant charged and relied upon is failure to comply with the provisions of section 5511, 2 Comp. Laws. That section and the one succeeding it read as follows:

“ (5511) Section 1. The People of the State of Michigan enact, That on~ and after the first day of July, 'one thousand eight hundred and eighty-six, every railroad company owning or operating any portion of a railroad wholly or partly in this State shall cause to be placed upon each end of every freight car thereafter constructed, purchased, or leased, for use in this State, by such corporation, or which may be sent th the shops for general repair or for repair of the coupling fixtures thereof, some form of safety coupler or safety coupling device, by which the cars can be coupled and uncoupled from either side of the train without the necessity of going between the cars, and which will couple with other forms of safety coupler, and with the ordinary link and pin coupler: Provided, That no coupler or device for coupling of cars shall be adopted for use by any railroad company owning or operating any railroad wholly or partly within this State until approved by the commissioner of railroads: Provided further, That no freight car shall be run upon any of the railroads within this State after the first day of January, eighteen hundred and ninety-one, unless- furnished with safety couplers as provided by this act.
“(5512) Sec. 2. The provisions of this act may be enforced by any circuit court of this State in a county through which the railroad of any company refusing to comply with such provisions may run, upon application of the commissioner of railroads, under such penalty as the said court may determine, of not less than one hundred dollars for each violation' of the provisions of this act.”

It is conceded that the flat car to which the coupling was made was equipped as the statute requires. The tender of the locomotive had a link and pin coupling. Plaintiff was perfectly acquainted with the equipment, and had at. different times made the coupling, as he attempted to do at the time of his injury, by guiding, with his hand, the link into the opening or slot of the automatic coupler.

Plaintiff testified, “Ido not know of any mismanagement on the part of the engineer, or any one else, that caused me to receive my injury.”

At the conclusion of plaintiff’s case, the court, on the motion of defendant’s attorney, directed a verdict for defendant, upon the ground that to plaintiff the risk was visible, and was well known, and that he assumed that risk. In doing this the learned trial judge expressly declined to rule upon other propositions urged by counsel for defendant, which were that the statute does not require automatic couplers upon the tenders of locomotives, nor upon any but freight cars; that the statute relied upon is penal, and failure to obey it not ground for private action, since a right of private action is not expressly given. For this reason the fifth, sixth, and seventh assignments of error seem not well taken. There remain the assignments based upon the refusal to submit the case to the jury and the one that the “ court erred in holding that plaintiff had assumed the risk of his employment, notwithstanding the provisions of section 5511 of the Compiled Laws of 1897.”

The only negligence relied upon is the failure or neglect of defendant to equip cars as the statute requires. If, therefore, the statute is held to apply to freight cars only, the direction of a verdict for defendant was right, and the judgment should not be disturbed. The statute names freight cars only. It omits to name locomotives, tenders (which are in fact a necessary part of locomotives), passenger cars, or any other of the classes of cars usually designated by the use to which they are put. The fact that the statute is penal is noticed for the purpose only of saying that this fact is a reason for not enlarging the statute by construction, even if the meaning of the terms used in it were more doubtful than they are. We may concede that there is one, at least, general object or purpose of the legislation in question, and that the greater safety of employes. This does not excuse reading into the statute words which, while they might better effectuate the general purpose, are plainly excluded by the words found in the statute.

Counsel upon both sides have called attention to the Federal statute and to the case of Johnson v. Southern Pa cific Co., 196 U. S. 1. The Federal statute makes it unlawful for any common carrier to haul or permit to be hauled or used upon its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the énds of the cars. The last section of the act gives a right of action to any employé of such common carrier who may be injured by any locomotive, car, or train in use contrary to the provisions of the act, and that such employé should not be deemed to have assumed the risk thereby'occasioned, although continuing in the employment of the carrier after such unlawful use of locomotive, car, or train had been brought to his knowledge. The suit was brought by an injured employé, and it was held, overruling the decision of the circuit court and of the circuit court of appeals, that the word ‘ ‘ car ” was used in its generic sense, and that, tested by context, subject-matter, and object, “any car” meant all kinds of cars running on the rails,' including locomotives.

We have not lost sight of the contention of counsel for appellant that the words of description found in our statute, namely, “by which the cars can be coupled and uncoupled from either side of the train, without the necessity of going between the cars,” read in the light of the fact that locomotives are coupled to freight cars, and that unless locomotives are so equipped they can be neither coupled nor uncoupled without going between the cars, requires that his construction of the act be adopted. The words quoted describe an appliance. The statute requires that this appliance be placed at each end of every freight car. When that is done, the law is obeyed. See Bryce v. Railway Co., 119 Iowa, 274.

The judgment is affirmed, with costs.

Carpenter, Blair, Montgomery, and Hooker, JJ., concurred.


author: Grant, J.

text:
    F. & F. LUMBER CO. v. TOWNSHIP OF THOMPSON
    Taxation — Highway Fund — Power op Township Board.
    A township board has power to raise money for highway purposes only when the electors have failed to do so after the matter has been brought to their attention.
    Error to Schoolcraft; Steere, J.
    Submitted April 5, 1905.
    (Docket No. 15.)
    Decided April 21, 1905.
    Assumpsit by the E. & F. Lumber Company, Limited, against the township of Thompson for taxes paid under protest. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Virgil I. Hixson, for appellant.

      C. W. Dunton, for appellee.
   Grant, J.

Plaintiff paid certain taxes under protest, and brought suit to recover them back. The item for which the plaintiff recovered was for a highway tax spread by the order of the township board on the ground that the electors at their annual township meeting had neglected and failed to provide for the raising of a highway fund. The record of the township meeting was in evidence, and failed to show that the attention of the electors was called to the highway fund, and that they neglected or refused to act thereon. It is settled by several decisions of this court that the power of the township board to raise money in such cases depends upon the neglect or refusal of the .electors to do so, and that the proposition must in some manner be submitted to the electors before it can be held that they either neglected or refused. Tillotson v. Webber, 96 Mich. 144, 154; Auditor General v. Sparrow, 116 Mich. 574, 593. The case was tried before the court without a jury, and its finding is sustained.

Judgment is affirmed.

Carpenter, McAlvay, Montgomery, and Hooker, JJ., concurred.


text:
    HAMMOND v. TUTTLE.
    Trespass — Defenses—Partition Pence — Instruction—Agreements.
    "Where the holder of a tax title on land subsequently conveyed to plaintiff agreed with defendant, an adjoining owner, that he would build his share of a partition fence “when his tax title was cleared up,” but such title was subsequently declared void, the holder’s failure to build any part of the fence was no defense to an action by plaintiff, the grantee of the owner, to recover for damages caused by the trespass of defendant’s sheep.
    Error to Ingham; Wiest, J.
    Submitted April 6, 1905.
    (Docket No. 34.)
    Decided April 21, 1905.
    Trespass quare clausum fregit by Carmi Hammond against Andrew Tuttle. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Plaintiff and defendant are farmers owning adjoining farms. Defendant’s sheep trespassed upon plaintiff’s lands, injuring his corn, for which he brought suit and recovered a small judgment in the justice and circuit courts. The defense is that defendant and a former occupier of plaintiff’s land, claiming under a tax title subsequently found to be void, made an agreement dividing the fence; that defendant had built his half; and that neither the former occupier nor plaintiff had built the other one-half. The court held that the former o_ccupier of plaintiff’s land had no authority to make a contract binding upon the ■ plaintiff, and that no valid agreement was made for the partition of the division fence, and left to the jury the two questions: (1) Did the defendant’s sheep commit the trespass ? (2) If so, what was the damage ?

      W. T. Webb and Jason E. Nichols, for appellant.

      W. F. Danes, Q. A. Smith, and O. J. Hood, for appellee.
   Grant, J.

(after stating the facts). The sole question arises upon the ruling of the court below. Whether the alleged parol agreement is valid under 1 Comp. Laws, § 2431, which requires the division of a line fence between unimproved lands to be in writing, and whether one in possession of land under a tax title, the validity of which is in dispute before the auditor general, and which is after-wards held to be invalid, is in position to make a contract for the division of a line fence binding upon the then owner in fee, and subsequent grantees, we need not determine. The testimony of the plaintiff himself shows that the agreement relied upon was not absolute, but was conditional upon the tax title being held valid. Defendant testified that the tax-title owner said:

“ When this thing was settled up [the validity of the tax title], he would go on and build his part of the fence. I suppose he meant when his tax-title claim was cleared up.”

He further testified that the tax-title holder did not agree to build it at that time (the time of the alleged agreement), and that he did not positively agree to do it at any other time. The tax-title claimant testified that he did noi recollect any positive agreement. Under this evidence, there was no agreement binding upon the plaintiff’s grantors or upon himself.

The judgment is affirmed.

Carpenter, McAlvay, Montgomery, and Hooker, JJ., concurred.


text:
    GRAND LODGE, INDEPENDENT ORDER OF ODD FELLOWS, v. BARKER.
    1. Appeal and Error —Degre^ Right on Merits — Reasons Immaterial.
    If, for any reason, a decree dismissing a bill is correct, the reason given by the court below is immaterial.
    2. Beneficial Associations — Superior and Subordinate Bodies — Property Rights — Bona Fide Purchasers.
    A subordinate lodge of Oddfellows instructed B., one of its members, to purchase certain real estate in his own name for the benefit of the lodge, which he did, taking a warranty deed. The lodge paid the pifice through B., and, though it exercised all acts of ownership over the building, B. gave no deed to the lodge. At a subsequent meeting the lodge voted to sell the property to B. on certain terms, with which he complied. B. thereafter contracted to sell the property to M., who subsequently assigned to S., neither of whpm at the time were members of the lodge. Held, that, B. having paid the lodge a fair price for the property, and M. and S. being bona fide purchasers from him,, the grand lodge, on dissolution of the subordinate lodge, could not recover the property under provisions of its charter declaring that the property of subordinate lodges shall belong to such lodges so long as their charters are unreclaimed, and-that on suspension or dissolution their property of all kinds shall revert to the grand lodge.
    Appeal from Van Burén; Carr, J.
    Submitted April 7, 1905.
    (Docket No. 45.)
    Decided April 21, 1905.
    Bill by the Grand Lodge, Independent Order of Odd-fellows of the State of Michigan, against George H. Barker and others to set aside a certain conveyance, and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    The complainant was organized in 1847. It incorporated June 5, 1867, under Act No. 199, Laws of 1865 (2 Comp. Laws, §§ 7990-8000). It reincorporated in September, 1899. Those parts of its constitution and by-laws material to this controversy are substantially as follows: The grand lodge has exclusive jurisdiction in Oddfellowship within the State, and is the supreme tribunal of the order. No lodge can be formed or continue to exist without its sanction. It may grant or suspend charters at its pleasure, for proper cause. It may receive appeals and redress grievances arising in subordinate lodges. It may originate and regulate the means of its own support, and may do all acts promotive of the interest of the order, or that appertain to it by ancient usage or custom, and are not in violation of the laws of the land or of the constitution and laws of the grand lodge of the United States. By section 2, art. 2, of its by-laws, it is provided that the funds, properties, etc., raised by subordinate lodges for the purpose of relieving sick and distressed brethren, and other charitable uses, are not liable to be divided in any manner among the members individually, but must remain for legitimate purposes the property of the lodge so long as its charter is unreclaimed and five members remain in good standing in the lodge. Section 3 reads as follows:
    “ In all cases where a lodge shall have been suspended or expelled, or its charter shall have been forfeited, the charter, funds, books, properties, and effects of all kinds shall revert to the grand lodge; and it shall be the duty of the last installed officers of such lodge to deliver immediately to the grand master or to the brother by him deputed to receive them, such funds and other effects as the lodge may have claim to, and any brother who shall be concerned in or give countenance to the divisions of the funds or other effects of a lodge under any circumstances, or who shall receive any part or share thereof, or be concerned in withholding any of the effects of a suspended, expelled, or defunct lodge from the grand lodge, shall be deemed unworthy of fellowship, and shall be debarred from all connection with the order until he shall have made full restitution and such reparation for the offense, as shall be pronounced satisfactory by a vote of the grand lodge.”
    In May, 1879, a subordinate lodge, known as “Covert Lodge, No. 328,” was organized at Covert, Michigan, and a charter duly granted. That charter provided that said subordinate lodge shall render due obedience to the laws and mandates of the grand lodge; in default thereof its .rights, powers, and privileges may be suspended. The subordinate lodge rented a room for its meetings, and occupied it as tenapt until July 1, 1885.
    On June 16, 1885, at a regular meeting, the following proceedings were had, as appears by the record:
    “ Moved the lodge as a lodge buy the drug store building for the sum, as reported by the trustees, of $650. Motion seconded, and, after being thoroughly discussed, was carried. Moved that Brother Barker be instructed to purchase the property. Seconded and carried. Moved that Brother George Barker be instructed to buy the property in his own name, and then give the lodge a contract to deed the property to whom they desired when they paid Brother Barker the cost and subsequent expenses of building. Seconded and carried. Moved and seconded that an order be drawn on the treasurer for $325, payable to Brother Barker when tie gives lodge contract for the property.”
    The reason for taking the title to the property in the name of Mr. Barker was that the grantor did not want to deal with the lodge. He was evidently not willing to take the obligation of the lodge for the unpaid purchase price. The lodge paid the $325 to Mr. Barker, who paid it to the grantor. Subsequently the lodge paid the balance of the purchase price through Mr. Barker, but Mr. Barker gave no deed to the lodge. The lodge meanwhile had entire charge of -the building, paid the taxes, and received the rents until 1892.
    At a regular meeting held February 9, 1892, the record shows the following proceedings:
    “Moved and supported that the lodge sell lot No. 32 in the village of Covert as platted according to the village plat, and building thereon, subject to the lease, and reserve the second story of building for 20 years, and a way to get up to it, the lodge has the exclusive right to it for lodge purposes, to Brother G. H. Barker, for $450 — $10.00 down, his note for one year of $290, his note in two years for $50.00, his note in three years for $50.00, his note in four years for $50.00 — each note to draw interest at 7 per cent, from date.”
    On October 11, 1898, Mr. Barker made a contract with one Morgan for the sale of the property. Mr. Morgan subsequently, on December 31, 1901, sold and assigned this contract to defendant Spivey and one Rumsey. Rumsey afterwards assigned to Spivey & Son. Covert lodge became defunct in 1896, returned its rituals, and on January 31, 1899, its charter was surrendered to the secretary of the grand lodge. Soon after an officer of the grand lodge took charge of what effects of the defunct lodge he was able to find. On March 7, 1904, this bill was filed against the defendants Barker and Spivey, praying that the conveyance to defendant George H. Barker should be held to have been taken for the use and benefit of the Covert lodge so long as it continued in existence; that said Barker be decreed to hold the premises in trust for the complainant; that the sale by the Covert lodge to Barker be set aside; that said Barker be decreed to convey the property to complainant; and that an accounting be had. The Spiveys entered no appearance, and an order pro confesso was rendered as to them. The defendant Barker answered, denying that complainant was entitled to relief. Proofs were taken in open court, and the bill dismissed.

      Lincoln H. Titus, for complainant.

      Benjamin F. Heckert, for defendants.
   Grant, J.

(after stating the facts). The circuit judge dismissed the bill, holding that “the facts do not support a resulting trust, and none can be raised by parol in the case.” We doubt if this conclusion is correct. We, however, find it unnecessary to determine the question. If for any reason the decree dismissing the bill is correct, the reason given by the court below is immaterial.

It is apparent that there was no bad faith or fraud on the part of Mr. Barker, or any of the then members of the Covert lodge. All parties acted in good faith, and upon the belief that they were acting within their legal rights. The Covert lodge paid the consideration through Mr. Barker under a written resolution spread upon their minutes. After the full consideration was paid by the lodge, it still let the title rest in him. There is evidence tending to show that the lodge needed funds to pay sick benefits, and that the money paid by Barker was used by the lodge for legitimate purposes. There is also evidence tending to show that there was money on hand at the time the lodge disbanded, and that some had been divided among the members. Be this as it may, Mr. Barker paid a fair value for the land. The lodge received the money. If any of this or other money remained in the treasury at the time the lodge disbanded, it admittedly belonged to the complainant, and it could sue the parties who had the money. If it had been divided among the members, it could be recovered back from them. The lodge did not have the legal title. This was in Barker. The deed to Barker was a warranty deed. At the time of the sale to him it was deemed unnecessary to make out a deed, as the title already stood in him. He sold the property under a land contract to Mr. Morgan, agreeing to give a warranty deed. Mr. Morgan paid part of the purchase price, and then assigned his interest to defendants Spivey and Rumsey for $1,500, and Rumsey'subsequently assigned his interest to defendant Spivey. Mr. Barker has been paid the purchase price, except $300. Neither Morgan nor the Spivoys were at the time members of the lodge, v and there is no evidence showing or tending to show that either of them had any knowledge of any defect in the title, or of the relation that existed between Barker and the lodge. Both Morgan and the Spiveys must therefore be held to be bona fide purchasers. For this reason the decree must be affirmed, with costs.

Carpenter, McAlvay, Montgomery, and Hooker, JJ., concurred.


text:
    PAGE WOVEN WIRE FENCE CO. v. POOL.
    Appeal and Error — Verdict—Conolusiveness.
    The verdict-, on conflicting evidence, of a properly instructed jury, is conclusive.
    Error to Montcalm; Davis, J.
    Submitted April 12, 1905.
    (Docket No. 61.)
    Decided April 21, 1905.
    Assumpsit by the Page Woven Wire Fence Company against Phoebe M. Pool on a promissory note. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      H. R. Clark and L. C. Palmer, for appellants

      V. H. & H. H. Smith, for appellee.
   Ostrander, J.

This case has twice before been in this court. Page Woven Wire Fence Co. v. Pool, 129 Mich. 57, 133 Mich. 323. Upon each occasion a judgment for the defendant was reversed and a new trial ordered. Defendant has again recovered judgment. Upon the last trial, for the first time, evidence was given of the circumstances under which the note sued upon was paid by defendant. Upon the record eight errors are assigned, one of which relates to the admission of testimony, one to the refusal of the court to direct a verdict for the plaintiff, the others to the refusal of the court to charge as requested by the plaintiff and to the charge as given by the court. No one of these assignments is mentioned or referred to in the brief for appellant. The statement is made:

“ Defendant has - made her showing as to the circumstances under which she made payment, and the question before this court now is as to whether or not her showing as a matter of law is sufficient. In other words, Did she make such investigation as the law requires, she having notice of the loss of the note ? ”

It appears that the circuit judge charged the jury that it was undisputed that the defendant was notified before the note became due that it was lost. But an examination of the record shows that, while plaintiff’s witness testified that he told defendant the note was lost, she denies that fact, claiming that he told her no more than that the bank had not received the note, and that it had probably been miscarried, and would be received in a short time. Counsel for plaintiff requested the court to charge the jury:

“I charge you as a matter of law that Mrs. Pool, having had notice that the note was lost, was not justified in making payment to a stranger until she had made careful and thorough investigation, sufficient to satisfy her that the agent had the authority of the plaintiff company to collect the same.”

This request the court gave. There was evidence from which the jury might have found that defendant did make careful and thorough investigation, sufficient to satisfy her that the person who presented the note had the authority of plaintiff company to collect it. Under the circumstances, we do not feel called upon to discuss, further than it has been discussed in the former opinions in this case, the question of the diligence required of the maker of a note, who pays it, after notice that it has been lost, to a stranger. The court, following the suggestion of counsel, assumed that defendant had notice that the note was lost, and in respect to that situation gave the jury the rule of law as to the investigation required proposed by counsel for the plaintiff.

The judgment is affirmed, with costs.

Moore, C. J., and Carpenter, MoAlvat, and Hooker, JJ., concurred.


text:
    HATHAWAY v. WASHINGTON MILLING CO.
    1. Appeal and Error — Briefs—Errors Not Discussed.
    An assignment of error not discussed in the brief of plaintiff in error will not be considered.
    2. Master and Servant — Injuries to Servant — Dangerous Employment — Warning.
    The oiling of a line shaft in a properly lighted room does not require any special instruction or cautionary suggestion from the master to a man of mature years in possession of all his faculties, though it involves reaching over gear wheels in motion, the danger, such as it is, being as apparent to man as to master.
    3. Same — Soope of Employment — Change of Duties.
    A servant, who has worked in the packing department of a flouring mill and had charge of the machinery of such department and occasionally been called to assist in the mill proper, is not taken from his regular employment and set at a more hazardous employment by being called to help start the mill and oil its machinery.
    4. Limitation of Actions — Personal Injury — Statute—Appli- - CATION.
    Act No. 155, Pub. Acts 1899, limiting in section 1 the time within which actions for personal injury shall “hereafter” be brought, affects only such causes of action as accrued after the law took effect.
    Error to Lenawee; Chester, J.
    Submitted April 14, 1905.
    (Docket No. 79.)
    Decided April 21, 1905.
    Case by Richard Hathaway against the Washington Milling Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Weaver, Morgan & Priddy and H. G. Smith, for appellant.

      John E. Bird and John L. G’Mealey, for appellee.
   Ostrander, J.

The defendant, for several years prior to September 5, 1898, operated a flouring mill in the city of Adrian. In the fall of 1892, plaintiff began to. work for defendant, being employed in the packing department of the mill, the operation of which department was in a building 12 or 14 feet from the mill proper, connected with it by a covered passageway. There was machinery in the packing department, which during the six years of his employment the plaintiff had been acquainted with, had oiled, kept in order, and generally superintended. At various times and frequently he had been called into the mill proper to assist in cleaning up the mill, oiling and cleaning machinery, and he was familiar with the machinery contained in the mill, its purpose and operation. He had sometimes, when the engineer was not there in the morning, fired the boiler and started the engine. It does not appear that he had done very much work about the machinery in the mill proper when the machinery was in motion. On. the day first above mentioned, one of the millers being ill, and not at the mill, the superintendent called plaintiff’ to come in and help start the mill. After obeying certain directions, which included oiling the rolls, he was instructed to go on the second floor and do some oiling and cleaning. This involved — and the .superintendent made special mention of the fact — the digging' out of the waste and grease in boxes on the line shaft and the putting in of new waste and grease and oil. To perform this duty, the line shaft being 9 or 10 feet above the floor, plaintiff was required to, and did in the usual way, and as he had seen others do, mount a certain machine by way of á ladder, and, standing upon this machine, he proceeded, at first with a piece of hoop, and, finding that ineffective, then with his jackknife, to dig out the old grease from the box. Directly in front of him was a gearing exposed, entirely visible, which consisted of a cogwheel on the line shaft, six inches in diameter and four inches wide, meshing with inch teeth into another wheel three feet or more in diameter, upon another shaft. By or past these cogwheels plaintiff had to reach with his hand and arm in order to do the work required, and while so using his knife to remove the hardened grease his arm or clothing became involved in the cogs, with the result that he was very seriously injured. He testifies:

“ While I was endeavoring to get the grease out of the box, my arm was caught in this gear. I know that my arm got caught in the gear because I lost my arm. In reaching by the gear, I must have got too close to it and got my arm in.”

He sued the defendant, and the theory of the declaration filed and of plaintiff’s case is that he was taken from his regular employment, and from duties he was hired to perform, and set to work at more hazardous employment, without being informed of the dangers incident to such new employment; and that he was not furnished with proper and suitable tools, or a tool, with which to perform the work so assigned to him to do.

Defendant, against whom a judgment was recovered, assigns a number of errors, which are grouped and stated by its counsel as follows: (1) That the action of the plaintiff was barred by the provisions of Act No. 155,, Pub. Acts 1899. (2) That the defendant corporation was dissolved before suit begun. We do not find this question discussed in the brief for appellant, and we therefore refrain from discussing it. (3) That it appeared from the evidence in the case that the danger accompanying the act to be performed by the plaintiff was as apparent to the plaintiff as to the superintendent of the mill, and. that plaintiff could not recover, even though he attempted to perform such act at the request of the superintendent.

We discuss these propositions in the inverse order of the statement. Plaintiff was 28 years old, sound, and in possession of all his faculties. The room in which he was injured was properly lighted. There was no defect, hidden or other, in the machinery. The work he was doing was in itself neither difficult nor dangerous, and to perform it properly and safely required only ordinary care. Whatever danger there was was visible. The result likely to follow contact of clothing or person with the cogwheels was evident. We do not discover any testimony in the record warranting an inference that any instruction or cautionary suggestion from the superintendent would have afforded plaintiff any better knowledge of the danger to be apprehended from the cogwheels than was afforded by merely looking at them. It does not appear that there was any tool or appliance furnished or used for cleaning the boxes. Plaintiff neither asked nor sought for any such tool. He had cleaned one box with a piece of barrel hoop, with which he began work upon the second box. The facts do not warrant'the conclusion that plaintiff was wrongfully set to doing work outside the scope of his employment. The entire contention of the plaintiff is determined against him upon the authority of rules stated in Schroeder v. Car Co., 56 Mich. 132; Mackin v. Refrigerator Co., 100 Mich. 276; Melzer v. Car Co., 76 Mich. 94. Upon the undisputed facts, a verdict for the defendant should have been directed.

As we are of opinion that a new trial should be granted, we notice the contention of defendant first stated. The statute of limitations invoked took effect June 23, 1899. The injury to plaintiff occurred September 5, 1898.

This suit was begun by summons, issued November 4, 1902. The act is entitled “An- act limiting the time in which actions may be brought to recover damages for personal injuries,” and provides that “no action shall hereafter be brought in any courts of this State to recover damages for personal injuries unless the same be brought within three years from the occurrence upon which the claim for liability is founded.” Act No. 155, Pub. Acts 1899, § 1. We have no doubt that the statute -must be held to affect only such causes of action as accrued after the law became operative. Stambaugh v. Snoblin, 32 Mich. 296; Harrison v. Metz, 17 Mich. 377. See, also, Ludwig v. Stewart, 32 Mich. 27; McKisson v. Davenport, 83 Mich. 211 (10 L. R. A. 507).

Judgment is reversed, with. costs, and a new trial granted.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ. concurred.


author: Montgomery, J.

text:
      In re ALLEN.
    1. Criminal Law — Punishment —Prisons—Lewd and Lascivious Cohabitation.
    On conviction of lewd and lascivious cohabitation, an offense for which the punishment provided is “imprisonment in the county jail not more than one year, or fine not exceeding five hundred dollars” (§ 11693, 3 Comp. Laws), the offender may be sentenced either to the State house of correction at Ionia or to the branch prison at Marquette, but not to the State prison at Jackson. Section 2108, 1 Comp. Laws.
    2. Habeas Corpus — Void Sentence.
    Habeas corpus is an appropriate remedy when a sentence to imprisonment is wholly void for lack of authority to sentence to the institution in question.
    Habeas corpus proceedings by Edward H. Allen to procure his discharge from the State prison at Jackson.
    Submitted March 21, 1905.
    (Calendar No. 21,017.)
    Petitioner discharged April 28, 1905.

      E. M. Boyles, for petitioner.

      Elmer N. Peters, for respondent warden.
   Montgomery, J.

This proceeding is by habeas corpus to determine the question of the validity of a sentence. Petitioner was convicted of the offense of lewd and lascivious cohabitation, and on March 1, 1905, was sentenced to be confined at the Michigan State prison at Jackson, at hard labor, for not less than six months. On the same day, by virtue of a warrant issued from the court in pursuance of this sentence, the petitioner was committed to the State prison at Jackson, where he is now confined. The contention of petitioner is that this sentence is unauthorized and void, and that therefore he should be released and discharged from custody.

The statute provides for the punishment of the above-named offense thus:

“If any man and woman, not being married to each other, shall lewdly and lasciviously associate and cohabit together, * * * every such person shall be punished by imprisonment in the county jail not more than, one year, or by fine not exceeding five hundred dollars.” 3 Comp. Laws, § 11693.

The statute which provides in what cases persons may be sentenced to State prisons for afi offense is as follows:

“Courts of criminal jurisdiction may sentence to the State house of correction and reformatory at Ionia all male persons over fifteen years of age and not known to have been previously sentenced to a prison for felony, who shall be convicted of any crime except treason or murder in the first degree; and all male persons over fifteen years of age who shall be convicted of any misdemeanor, where the sentence for such crime or misdemeanor shall not be less than six months; and may sentence to the State prison at Jackson any person over the age of fifteen years, duly convicted of any crime punishable by imprisonment in said State prison as the courts shall deem best; and may sentence to the State house of correction and branch of the State prison in the Upper Peninsula all persons convicted as is or may be provided by law for sentencing prisoners to any of the other prisons in this State as the court shall in its discretion deem best.” 1 Comp. Laws, § 2108.

The provision therein relating to the State prison at Jackson — “and may sentence to the State prison at Jackson any person over the age of fifteen years duly convicted of any crime punishable by imprisonment in said State prison as the courts shall deem best ” — does not authorize the sentence in this case, and there, is no other authority therefor. This statute empowers the court to sentence to the branch of the State prison at Marquette a person convicted of such an offense as the one now before this court. People v. Smith, 107 Mich. 584. By this case it was decided that the provision in section 29, Act No. 118 of the Public Acts of 1893 ( section 2108, above quoted), relating to imprisonment at Marquette, amends by implication a provision of a previous statute providing for imprisonment only in a county jail. This because of the very plain inconsistency between the provisions in those two statutes. And this inconsistency was very apparent, as section 29 provides for a sentence to Marquette of “all persons convicted as is or may be provided by law for sentencing prisoners to any of the other prisons in this State.” And if, under the first provision in this act, a person might be sentenced to Ionia, as in this case, he might, therefore, be sent to Marquette. But this would not authorize an imprisonment in Jackson for the same offense. That part of the above act providing for a sentence to the State prison at Jackson of all persons “duly convicted of any crime punishable by imprisonment in said State prison ” is not inconsistent with any previous statute providing for punishment in county jail only. For this reasoñ the provision in section 11693 providing for imprisonment in the county jail is not inconsistent with the provision in section 2108 providing imprisonment in Jackson.

The sentence being wholly void, habeas corpus is an appropriate remedy. Hamilton's Case, 51 Mich. 174; In re Silverthorn, 73 Mich. 644.

The petitioner is discharged.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.


author: Campbell J.

text:
    George Parker and another v. Benjamin Luce.

      Attachment. Evidence on motion to dissolve. On motion for tlie dissolution of an attachment, evidence that the defendant, a short time previous, made an arrangement with a person to take his property under a pretended sale, in order to cover the same from defendant’s creditors, and that the person took possession of it under this arrangement, is material and should be admitted.
    And where, in such ca$e, a witness testified that he first saw the property attached (a mare,) in April previous, at the barn of a Mrs. August, and the plaintiff’s counsel then asked him, “For what purpose did you go there to see the mare ?” which question being objected to, he stated that he proposed to follow it with proof of the above facts. Held, That a statement by the witness of said facts would have been fairly responsive to the question, and that the commissioner erred in excluding it.

      Witnesses. Questions put to a witness on the stand ought not to be construed too technically.

      Heard November 8th.

      Decided November 11th.

    Certiorari to a circuit court commissioner of Kent county.
    On the 29tli day of May, 1865, plaintiffs sued out of the circuit court for the county of Kent a writ of attachment against the goods and chattels of defendant Luce, and delivered the same to the sheriff, who, by virtue thereof, on the 7th day of June following levied upon certain property of the defendant.
    The defendant, on the 31st day of July, instituted proceedings before a circuit court commissioner for dissolution of the attachment.
    On.the hearing, plaintiffs called one Perry Hill as a witness, who testified as follows: “ I reside in the township of Grand Rapids; I know the defendant, Luce; he married my sister
      for his first wife; I know the mare ‘ Kitt,’ that was seized under the attachment; I recollect when I first saw that mare ; I think I don’t know the date exactly; it must have been the latter part of April; she was over on the west side of the river, a little way from the bridge; she was in an old wood stable or barn; I believe Mrs. August was in possession of the barn; I think it-was after the death of Mr. August.”
    Whereupon the counsel for the plaintiffs asked the witness the following question, viz: “ For what purpose did you go there to see the mare?” This question was objected to by the counsel for the defendant, as being irrelevant, immaterial, and incompetent. The counsel for the plaintiffs then stated that he proposed to follow this question with proof, that the witness went there to look at the mare with a view to take her into his possession, under an arrangement made with the defendant, in the shape of a pretended sale, in order to cover up the defendant’s property from 'his creditors, and that he took the mare into his possession under that arrangement. The commissioner sustained the objection to the question, and the witness was not permitted to answer it. Other testimony was introduced by both parties, at the conclusion of which the commissioner granted an order, dissolving said attachment, and directing that the property attached should be restored to said defendant.
    'The writ was brought to review this order.-

      Ferris & Solden and G. I. WalJcer for plaintiffs.

      G. V. F. Lothrop and J. W. Ghamplin for defendant.
   Campbell J.

Plaintiffs in error have brought certiorari to review the action of a circuit court commissioner in dissolving a writ of attachment. The property attached included a mare, which a witness named Perry Hill testified he first saw at the barn of a Mrs. August, in April previous to the suing out of the attachment. Plaintiffs then asked him, “ For what purpose did you go there to see the mare•?” This was objected to as irrelevant, and incompetent, because the intention of witness as a third party was of no consequence. Plaintiffs then proposed to follow this question with proof that witness went there to look at the mare with a view to take her into his possession, under an arrangement made with the defendant, in the shape of a pretended sale, in order to cover up the defendant’s property from his creditors, and that he took the mare into his possession under that arrangement. The commissioner ruled out the question as irrelevant.

We think this decision was wrong. The facts which it was proposed to prove, in following up this question, were undoubtedly admissible. But it is claimed they were entirely independent of this question. We think, on the contrary, that they would have been fairly responsive to it. Undoubtedly the question, might in one sense refer to the mere thoughts which were passing in the mind of the witness. But this is not its common or obvious meaning. When we speak of the. purpose for which anything is done or made, avo do not refer to the mere thoughts of the maker, but to the thing which is to be effected. And in the present case the question was equi•valent to “ Why did you go ?” or to any other question which would elicit the thing which was to be done, or the occasion which led to it. Questions put to witnesses must be understood to be framed so as to conform to the common understanding ; and if narrowed down to but one of many meanings, and that the primitive and narrow acceptation of the terms used, the people at large must become much more accomplished in the niceties of philology than we can fairly expect to see them. We have not been able to construe this question as it is claimed the commissioner did, and we think it was properly framed and in no degree ambiguous.

The order vacating the attachment must be quashed, with costs.

The other Justices concurred.


author: Cooley J. Martin, Ch. J.,

text:
    Frederick J. Lee v. William Lake.

      Dedication of property to public uses. Conveyance. The dedication of premises to public purposes, in a plat, acknowledged and recorded by one who did not own the property at the time, cannot have the effect of a conveyance, although he after-wards purchased it; and in the absence of subsequent facts and circumstances which could constitute an estoppel, he may reclaim the premises.

      Dedication — Estoppel—Acceptance. An ineffectual attempt to dedicate property to public uses in pursuance of the statute, will not of itself work an estoppel in favor of the public. To have this effect, it must appear that some act was done by the public, subsequent to the making of the plat, and in reliance upon it, which would render it unjust for the proprietors afterwards to enforce a right of private ownership.
    A dedication cannot be made out without the existence of a clear intent, on the part of the proprietors, to dedicate, and an acceptance of the property by the public.— People v. Jones, G Mich. 176.

      Heard November 1st.

      Decided November 11th.

    Case made after judgment from Livingston Circuit.
    The action was trespass, for alleged injuries to certain premises in the village of Howell. The defendant plead the general issue, and gave notice of title in himself, and that the premises were a public square. The facts, so far as they are necessary to an understanding of the legal questions involved in the ease, appear in the opinion.

      Geo. V. N. Lothrop for plaintiff.
    1. The plat passed no title. It was not made and acknowledged according to the statute. To pass title by this statutory mode, the statute must be complied with in all respects: • — Laws 1833 p. 531; People v. Beaubien, 2 Doug. Mich. 256; Belleville v. Stookey, 23 Ill. 441; Fulton Village v. Mehrenfield, 8 Ohio St. 440.

      2. To pass a title to the public, by acts in pcds, there must be acts of dedication, with intent to dedicate, by the owner, and acceptance by the public:—People v. Beaubien, 2 Doug. Mich. 256; People v. Jones, 6 Mich. 176; Holdam v. Coldspring, 21 N. Y. 474; Penquite v. Lawrence, 11 Ohio N. S. 274; Brown v. Worcester, 13 Gray, 31; Holmes v. Jersey City, 1 Beasly, 299; Baldwin v. Buffalo, 29 Barb. 396 ; Logansport v. Dunn, 8 Ind. 378.
    In this case, I think not one act of dedication is shown. The sale of lots by the plat is not. They refer to the plat merely for description. They do not refer to the premises at all.
    Still less are there any acts of acceptance by the public of these premises as a public square. They never had anything to do with it as a public square. They hired a court room in a church for one or two terms. They bought a building erected thereon by Crane, and kept .their offices there for a few years. But they acquired a county site elsewhere, and since about 1843 have not pretended to use it for any purpose.
    The use of it by the county was not as a public square, but .• only as a convenient place for their offices, till they had established a permanent county site.
    The public never became bound to take care of the square, or liable for its care.
    3. The admission of the record of the plat was erroneous. • It was not a legal record. The sales, by reference to it, were no acts of dedication. Nothing of that character was either proposed or proven. It was, therefore, wholly inadmissible for any purpose in this case.
    Had Crane sold lots bounded on what he called a public square, he might have given his grantees rights to have the premises kept open, though this woirld not have, in fact and law, made it a public square: — Clements v. West Troy, 16 Barb. 251; Child v. Chappel, 5 Seld. 246; Hartshorn v. South Reading, 3 Allen, 502; Walker v. Worcester, 6 Gray, 548.
    4. If there is any evidence of an intent to dedicate, on the one hand, or to accept a dedication, on the other hand, of these premises, it was that they might be used as a court house square.
    To a partial extent, such a use was allowed, and it may be inferred, from the advantages to surrounding property, resulting from such use, that a donation of the premises to this use would have been perfected.
    But this use seems to have been only partial, experimental and temporary. After a few years, this use was wholly abandoned, and a court house square acquired in another part of the village.
    This restored the' right of the proprietors as completely as if no steps towards acceptance had ever been taken:— Commonwealth v. Fish, 8 Metc. 239 ; State v. Trask, 6 Vt. 355.

      C. I. Walher for defendant.
    1. No error appears upon the .part of the Court below of which the plaintiff can here take advantage.
    It is no answer to the objection that the copy of the plat does not appear on the record, to say that the acknowledgment is defective, and that on this account the copy of the record thereof is inadmissible whatever it may contain.
    Upon the supposition that the plat contains the locus in quo dedicated as a public square, even with the acknowledgment defective, the plat or a copy of it as recorded may be admissible evidence in connection with other evidence that the maker has constantly referred to such record in deeds conveying lots platted thereon and bordering on such public square. Especially would this be the case, if in such deeds the grantor had described such lot conveyed as fronting upon such public square.
    2. The proprietors having dedicated said public square in such plat, and having sold lots with reference thereto, cannot resume and exercise acts of ownership) over it, which would deprive their grantees in such deed of any privileges or benefits to be derived from having such public square left open:— Trustees of Watertown v. Cowen, 4 Paige, 510; Sinclair v.

      Comstock, Har. Ch. 412; Newport v. Taylor, 16 B. Mon. 803; Doe v. Trustees, &c., 7 Ind. 641; Wyman v. Mayor, 11 Wend. 499; Kinnerty v. Shepley, 15 Miss. 634; State v. Trask, 6 Vt. 355; State v. Cullen, 3 Vt. 530; Cincinnati v. White's Lessees, 6 Peters (U. S.) 431; The People v. Beaubien, 2 Doug. Mich. 256 ; Wash. on Real Prop. 459 ; 15 Mo. 634.
    3. But even if the Court erfecl in admitting the plat as evidence, no exception was taken, and exceptions to the ihtroduction or rejection of testimony must be taken during the trial, or they will not be available to the party complaining: —Tidd's Practice, 863; 1 Burrill’s Practice, 456; Wright v. Sharp, 1 Salk 288; Lanuse v. Barker, 10 Johns. 312; Lyon v. Evans, 1 Ark. 360; Low v. Goldsmith, R. M. Charlton, 288; Randolph v. Alsey, 8 Mo. 656; Deloach v. Walker, 8 Miss. 164.
    This rule is as imperative when a case is tried before a Judge as when tried before a jury:—Hunt v. Bloomer, 13 N. Y. 342; Magie v. Baker, 14 Ib. 435; Gilchrist v. Stevenson, 7 How. Pr. 273; (Cited 3 Abbott's Digest 6.)
    And the same principle is applicable to cases made under our statute: — Trudo v. Anderson, 10 Mich. 368; Bliss v. Payne, 11 Ib. 95.
    In the following cases, the record shows that there were exceptions taken to the testimony objected to, although the reports of the cases do not show the fact:—Rose v. Lewis, 10 Mich. 483; Brown v. Cady, 11 Ib. 535.
    4. The public square had been recognized, used and occupied as such for more than 22 years.
    This is sufficient evidence to establish a dedication:—Gould v. Glass, 19 Barb. 179; State v. Wilkinson, 2 Vt. 480; Doe v. Trustees, 7 Ind. 641.
   Cooley J.

The only question presented by the record in this case is, whether the premises in controversy have ever been dedicated to public purposes. The plaintiff claims to be in the rightful possession of them under a lease from F. J. B. Crane, whose title is deduced as folloAvs: The United States to John D. Pinckney; John D. Pinckney to Edward Brooks and F. J. B. Crane, deed dated July 8, 1836; Edward Brooks to F. J. B. Crane, quit claim deed, dated October 15, 1853.

To show a dedication the defendant first put in evidence a certified copy of a plat of the village of Howell, recorded in the office of the Register of Deeds for the County of Oakland, dated and acknowledged the tenth day of November, 1835, by Brooks and Crane as proprietors, upon which is a block marked “Public Square,” which is claimed to include the premises in controversy. The acknowledgment is not in accordance with the statute then in force for the acknowledgment of town plats, but conveyances were afterwards, within the same year, made by Brooks and Crane by reference to the recorded plat, and it is claimed by the defendant that the plat is thereby, and b^ force of the act of 1850 (Comp. L. § 1146), which would seem to have been designed to cure imperfections in such acknowledgments, made as effectual to vest in the public the right to grounds designated for public purposes thereon, as if the acknowledgment had been in legal form.

Whether a retrospective act of this description could have the effect designed, it does not become necessary to consider in the present case. The plat put in evidence was. made by Brooks and Crane at a time when they do not appear to have had any interest in the land; and if the execution had been in all respects in due form, it could not have the effect which the statute gives to plats executed and acknowledged under its provisions. The statute then in force (Laws of 1833, p. 531) provided for the making, acknowledging and recording of town plats by the proprietors; and it is impossible to give the peculiar statutory effect of a present conveyance to a plat made by persons who at the time had no title to convey, even though they may afterwards have become the owners. And as the healing act of 1850 was confined in its scope to imperfect acknowledgments, it could not give* effect to'a plat which no acknowledgment could have made effectual at the time it was made.

But as Brooks and Crane afterwards became the proprietors of the town site, it may become a question whether the circumstances do not estop them from asserting the invalidity of the plat. No estoppel, however, could spring from the mere ineffectual attempt to effect a statutory dedication; there must be circumstances in the case which make it inequitable to take advantage of the defect. No question arises in this case between Brooks and Crane and any of their grantees of lots upon the plat; and before an estoppel could be insisted upon on behalf of the public, it must be made to appear that some act was done by the public, subsequent to the making of the plat, and in reliance upon it, which would render it unjust for Brooks and Crane to afterwards assert and enforce a right of private ownership in this square. It becomes important, therefore, to inquire whether any such act on the part of the public is shown; and this question may properly be considered in connection with the subsequent conduct of Crane in reference to the premises, which, together with their use by the public, is supposed to establish a dedication by acts in pais.

It appears from the evidence in the case, that from the time when the plat was made the premises were commonly called the “ public square,” and were left unenclosed; that Crane upwards of twenty years ago erected a building upon them, which for a time was occupied by the County Clerk and Register of Deeds, for their respective offices; that a religious society also erected another building upon the square, which was used for religious meetings, but also, by consent of the society, and alternately with the village tavern, for the sessions of the Circuit Court; that this building was afterwards turned into a shop; that twenty years ago a blacksmith shop was. put upon the square, though it does not appear how long it remained; that in 1842 the county purchased a Court House Square in another part of the village, to which the building containing the Clerk’s and Register’s offices, and which had been bought of Crane, was removed; and that for some years past the premises have occasionally been used for public meeting’s, circuses, ball playing, fairs, ¡fee. There is evidence, however, that on some occasions when thus used, the consent of Crane was applied for and obtained, and also that at times individuals leased of him, or used by his permission, portions of the land for their own purposes.

It can hardly be contended that these facts establish a dedication of the square to the public. A dedication cannot be made out without a clear intent to dedicate on the part of the proprietor, as well as an acceptance by the public: — People v. Jones, 6 Mich. 176. Leaving out of view the plat and the deeds referring thereto, no act of either Broots or Crane is put in evidence which indicates an intent on their part to divest themselves of the ownership and control of this square for the use of the public. All the occupation there has been of the premises, has been with' an assertion of private right, and the buildings erected have been owned as private property. The county was Crane’s tenant in occupying- his building for its public offices, and the tenant of the religious society when holding courts in its building. And if the plat evinces an intent on the part of the proprietors to devote this land to public use, it can at most only be regarded in the light of an offer to the public, which, if not accepted, is withdrawn when the proprietors put the land to a use which is inconsistent with the idea that the offer is any longer open.

But the case is entirely barren of evidence of acceptance by the public. We have already seen that the holding of county offices and courts -in the buildings upon the square was in subordination to the private ownership, and the use which the public has subsequently made of the 'premises has not been exclusive in its character, and is only such as the open commons owned by individuals around our villages are always subject to. There is no evidence that any exclusive right was ever asserted by any public authority, and from the time when the court house and county offices were located in another part of the village, nothing- appears from which we can infer an intent to appropriate this square as public property, even if such an intent could have been g-athered from the prior use. '

It is quite probable that when the plat was made by Brooks and Crane they hoped to obtain a location of the county buildings upon this square; and that when the county authorities decided to locate elsewhere, the decision was looked upon as a refusal to accept the offered dedication. However that may be, and whatever may have been the impression, on the part of the public, of the nature of the offer made by the plat, it is apparent that the facts proved are inconsistent with any intention on the part of Crane for several-years past to make the dedication; and that there has been no act on the part of the public which could either amount to an acceptance, or which could bind Crane on the principle of equitable estoppel. The judgment of the Court below must therefore be reversed, and judgment be entered in this Court for the plaintiff, for nominal damages, and the costs of both Courts.

Christiancy and Campbell, JJ., concurred.

Martin, Ch. J.,

dissenting:

I do not concur with my brethren. I think the dedication in this case is that which is usual, and all that is expected in rural villages, by the community, and all required by law. See City of Cincinnati v. White’s Lessees, 6 Peters U. S. 431; City of Logansport v. Dunn, 8 Ind. 378; Doe v. Attica, 7 Ind. 641.


author: Christiancy J.

text:
    Henry H. Booth, and others v. David A. McNair and others.

      Assignment for benefit of creditors. Credit. When, in an assignment for the benefit of creditors, the following words wore used, “ that said assignees shall sell and dispose of the same for money, upon such terms and conditions as in their judgment may appear best, and most for the interest of the parties concerned,” &c. Held, that they did not give power to sell on credit. (Nyev. Van Susan, (SMich., 329). Held, further, that the words “interest of the parties concerned” did not necessarily imply that the assignees were to regard the interest of the assignor to the prejudice of the creditors, hut as the language is at least equally applicable to the creditors, and the law presumes honesty rather than fraud, the phrase must he understood as referring primarily to the interest of creditors.

      Heard November 3d and 4th.

      Decided November 11th.

    Ajjpeal by complainant from Kalamazoo Circuit in Chancery.
    The bill in this cause was brought to set aside an assignment made by David A. McNair to Luther H. Trask and John Dudgeon, two of said defendants, for the benefit of creditors.
    From the answer it appears that the chief point in dispute was the validity of the assignment. The portion of the assignment affected by the opinion of the court is as follows, “ The said parties of the second part shall take immediate and “ full possession of all and singular the lands, tenements and “ hereditaments, property and effects hereby assigned, and sell “ and dispose of the same for money upon such terms and con- “ ditions as in their jixdgment may appear best, and most for “the interest of the parties concerned.”
    The bill was dismissed, with costs, by the court below.

      H. 8. Smith and J. JP. Whittemore for complainant.
    The assignment is void upon its face:
    1st.. Because, by its terms, the assignees are clothed with power and authority to sell and dispose of the assigned property in their discretion.
    2nd. Because the power and authority vested in the assignees, to act in the sale, &c., as they see fit, places the property beyond the control of the creditors, and the acts of the assignees beyond the control of the court.

      D. I>. Hughes and N. A. JBcileh for defendants.
    The assignment is not void for giving power to assignees to sell on such terms, &c., as in their judgment may appear best and most for the interest of the parties concerned. It confers no greater power upon them than the law does, and does not authorize a sale upon credit.—21 N. Y. 178, 119; 1 Kern. 302; Burrill on Assign. 218; 6 Mich. 349; 10 Paige Ch. R. 302; 9 Ib. 89; 2 Barb. 381; 11 Ib. 198; 2 Howard's Pr. R. 414.
   Christiancy J.

This case comes before us upon appeal from the Circuit Court for the county of Kalamazoo in chancery. The bill is substantially a creditor’s bill, the object of which is to set aside, as fraudulent, an assignment made by the defendant McNair, and purporting- to be for the benefit of his creditors.

The grounds upon which the assignment is assailed are: 1st, that it was fraudulent in fact, as shown by the evidence; and 2d, that it is fraudulent in law for matters appearing upon its face.

The evidence in our estimation not only fails to show any actual fraud, or fraudulent intent, but tends strongly to show the entire fairness of the transaction. It is, therefore, only necessary to consider the question of fraud in law, arising upon the face of the instrument. The assignment, after the usual recital of the grantor’s indebtedness, his inability to pay, and his desire of making a fair and equitable distribution of his property and effects among his creditors, proceeds to assign all his property of every kind to the assignees. (He executed to them at the same time a deed of his real estate.) The assignment is then declared to be in trust for the following uses and purposes; “that is to say, the parties of the second part (assignees) shall take immediate and full possession of all and singular the lands, tenements and hereditaments, property and effects hereby assigned.” Then follows the clause claimed to be fraudulent in law, “ and sell and dispose of the same for money, upon such terms and conditions as in their judgment may appear best and most for the interest of thepan'ties concerned.”

This clause is claimed to render the instrument void, for two reasons: 1st, because it authorizes a sale upon credit; and 2d, because, by the latter words of the clause, the assignees are required to be governed in the disposition of the property, to some extent, by the interests of the assignor.

The first point has already been settled by the decision of this court in Nye v. Van Husan, 6 Mich. 329, where a similar clause was held not to give the power to sell on credit. We have seen no reason to doubt the principle of that decision. There is even less plausible ground for holding the language of the present assignment to give such power.

The second objection is based upon that portion of the clause relating to “ the interests of the parties concerned.” If it clearly appeared, from these or any other words of the instrument, that the assignees were to regard the interest of the assignor, rather than that of the creditors, the assignment would be void. But these words are probably rather the words of the draftsman than of the assignor. They are found in most of the forms which, have been in use for many years past, and would very naturally bo followed without much special attention to their precise import. But placing them upon the same grounds as every other portion of the instrument, we do not think them fairly open to the objection urged. It is true the words will admit of a construction which will include the assignor. Admitting that upon this hypothesis the instrument would be void, still, if the language is fairly susceptible of another interpretation, which will render it valid, we are bound to give it such interpretation, rather than one which will render it fraudulent and void. The law presumes fairness, rather than fraud.

Now, the assignment purports to be made for the purpose of paying the debts of the assignor, and its declared object is to benefit his creditors. Nothing is to come to the assignor, until all his debts are paid — usually in the case of such assignments, a very remote and barely possible contingency, and especially so in the present case. The creditors therefore are the real parties interested.

They at all events were primarily interested; and until they should be paid, the law would allow the assignees to look only to their interests. After all debts were paid, it would be lawful and proper for them to be governed by the interests of the assignor; and if he is to be considered as coming within the meaning- of the words, as one of the parties interested, still, it is but fair to infer that his interest was only intended to be consulted after all his debts should be paid. In other words, that the assignees were to consult the interests of the parties according to, and in the order of, their lawful rights under the assignment. And this is simply the duty the law imposed upon them in carrying its provisions into effect. '

The same language was contained in the assignments mentioned in several of the cases cited on the argument, and in many others. But in none of them, or in any other case we have been able to find, was it held to vitiate the assignment. In fact these particular words do not seem to ha-ve been noticed.

The decree of the Court below, dismissing the bill, must be affirmed, with costs to the defendants in both courts.

The other Justices concurred.


author: Cooley J.

text:
    The People ex. rel. George Hanselmann v. The Quartermaster General.

      Bounty. Discretionary power of Governor in payment of. The act authorizing the payment of a State bounty, not exceeding fifty dollars, to each volunteer from tills State mustered into the military service of the United States {Laws of 1863, p. 60,) conferred upon the Governor a discretionary power in the exercise of which he might confine the bounty to such organizations or such branch of the service as, in his opinion, the public interest might require, provided it should be uniform to all coming within the terms of the order.
    The word “ each” is to be understood only as restrictive of the amount that could be paid, and not as designating the persons who should be included within the offer of bounty.
    When the Governor, by a published order, offered a uniform bounty of fifty dollars to each volunteer who should enlist and be mustered into the service of the United States “ in any regiment or battery.” Held, that tbe terms of such order did not embrace volunteers in a separate company like the State Provost Guard.

      Heard November 1st.

      Decided November 11th.

    Motion for a mandamus. The facts are fully stated in the opinion.

      Robinson & Brooks for the relator.

      A. Williams, Attorney General, for the respondent.
   Cooley J.

The relator was a member of the Michigan Provost Guard, a company organized in this State and mustered into the military service of the United States, prior to the act of the Legislature approved March 6, 1863, “ to authorize the payment of a State bounty to volunteers mustered from this State into the military service of the United States,” Laws of 1863, p. 60. His own enlistment was subsequent to the passage of this act, and he claims to be entitled to a bounty by virtue of its provisions.

The act authorized the Governor, in his discretion, to cause to be paid from the war fund such uniform bounty as he-should deem necessary, not exceeding fifty dollars, to each volunteer, non-commissioned officer, musician or private, that might enlist and be mustered into the service of the United States, in any regiment, battery or company theretofore mustered from this State into the military service of the United States, or then organizing in the State for such service; and the Quartermaster General was required to pay to each volunteer, mustered into the service as aforesaid, as soon thereafter as practicable, such bounty as the Governor should have directed to be paid.

It appears by the papers submitted to us, that the Adjutant General-of the State, under the direction of the Governor, published an order offering a uniform bounty of fifty dollars to each volunteer who should enlist and be mustered into the service of the United States in any regiment or battery. The terms of the order do not include a separate company like that of the State Provost Guard; and as that company was understood to be formed for a duty less onerous and dangerous than that to which other volunteers were to be called, and as it was, so far as we are informed, the only organization in the State not coming within the terms of the order, it is probable that the State authorities deemed it important to confine the offer of bounty to volunteers for service in the field. Under this order the Quartermaster General is of the opinion that he has no authority to pay a bounty to the relator ; and a mandamus is now applied for to compel him to do so.

It is insisted on behalf of the relator, that the act referred to only confers upon the Governor a discretion to determine whether he will offer any bounty to volunteers, and if so, how much; but that if any is offered, it must be uniform to all, and cannot discriminate between the various organizations, or the different branches of service. In the case of The People v. Quartermaster General, 12 Mich. 191, this court decided that when a bounty was offered under this act, it must be j>aid to all persons included within the terms of the offer; and that the State authorities could not discriminate and pay the bounties to some, and withhold them from others. We have no doubt of the correctness of this decision. The question presented on this motion, however, is a very different one, and involves the inquiry whether the Governor, in the exercise of his discretion, might not confine the offer of bounty to such organizations, or to such branch of service, as in Ms opinion the public interest dem^ided should be first filled, or as should require special inducements to obtain recruits.

It is apparent, from an examination of the statute, that considerable latitude was designed to be allowed for the exercise of the Governor’s discretion, and that he was not even required to offer any bounty at all, unless he should deem it important. The main purpose of the statute was to confer upon Min the power; but to what extent, within the limits fixed, the power might require to be exercised, was left to him for determination. Whether bounties would be needed or not, would depend upon circumstances which could not then be foreseen, and which might vary from time to time with the varying phases of 'the war. There was a manifest propriety, therefore, in referring the subject of bounties to the commander-in-chief, instead of fixing an unbending rule by legislative enactment.

But the reasons which required that it be left to the Governor to decide whether any bounty should be offered, and if so, to what amount, would with equal force demand that the selection of the beneficiaries should also be left discretionary with him. If it was impossible to foretell whether any bounty at all would be required, it was equally impossible to determine, in advance, whether the demands of some particular branch of the service might not require that some sj>ecial inducements should be offered for enlistments. If, in fact, the Governor had found, when he was called upon to determine the question, that there was no difficulty in filling up the ranks of the cavalry by enlistments, and that that branch of the service was quite as readily entered into without bounties, as the infantry service with, a legislative act that should bind him to offer a bounty to the volunteer in the cavalry, where it was not necessary, in order that he might be enabled to pay one to the recruit in the infantry, who would not go without it, would, to say the least, be unwise and improvident legislation.

The position of the relator would require us to hold, that if any bounty at all was offered, it must necessarily be made payable to every volunteer, notwithstanding some classes might be expressly exempted from the offer; so that if the offer was for enlistments in the infantry exclusively, those in the cavalry would also be entitled to the same bounty. This is limiting the discretion of the Governor within very narrow bounds, and we find nothing in the statute which warrants this conclusion.

The argument is, that the bounty is to be uniform, and therefore it must extend and apply equally to all the persons to whom the Governor, by the terms of the act, is' authorized to offer it. Such a construction strikes us as quite too technical for a law conferring discretionary power to meet future contingencies. The provision that the bounty shall be uniform is met in spirit and to the letter, when the offer is made uniform to all who come within its'terms. Nothing is left to the discretion either of the Governor or the Quartermaster General, after the offer is made: they cannot select classes of persons to receive the benefit of the act, and exclude the rest, but they must pay to all impartially who have acted in reliance upon the offer. This is all that the requirement of uniformity demands, and this has been done in the present case.

It is true that, by the act, the authority conferred- upon the Governor was to pay a uniform bounty of not exceeding fifty dollars to each volunteer who might enlist, &c.; but it is evident that the word each was here used only as restrictive of the amount that eotdd be paid, and not as designating the persons who should be included within the offer of bounty. The amount offered must not exceed fifty dollars to each person to whom it was deemed necessary to offer it; and this restriction upon the amount to be paid is the only one, besides the requirement of uniformity, which we find imposed by the act upon the Governor’s discretion in offering bounties to volunteers in the organizations specified.

We are of opinion that the members of the Michigan Provost Guard are not entitled to the State bounty under the order which was made, and that the mandamus must .be denied.

. The other Justices concurred.