text:
    PRUYN v. KENT CIRCUIT JUDGE.
    Courts — Jurisdiction — Transfer of Causes — Circuit and Superior Courts — Appeal from Justice’s Court.
    1 Comp. Laws 1897, § 688, which provides for the transfer of causes from the circuit court of Kent county to the superior court of Grand Rapids, on the application of either party in pending causes, and on the application of the defendant in causes thereafter commenced, has no application to causes commenced in justice’s court and appealed to the circuit.

      Mandamus by John Pruyn to compel Willis B. Perkins, circuit judge of Kent county, to transfer a cause to the superior court of Grand Rapids.
    Submitted October 2, 1900.
    Writ denied April 16, 1901.

      Crane, Norris & Stevens, for relator.
   Hooker, J.

1 Comp. Laws 1897, § 638, provides that:

“If either party to any cause now pending in the circuit court for the county of Kent, either at law or in chancery, and within the jurisdiction of said superior court, shall, after the taking effect of this act, or if the defendant in the case of a suit within such jurisdiction hereafter commenced, at the time of entering his appearance in said circuit court, shall file with the clerk or register of said court a petition for the removal of the cause into the said superior court for the city of Grand Rapids, and shall at the same time file with the clerk or register of said circuit court a bond to the opposite party, with sufficient surety, to be approved by the judge of said circuit court or a circuit court commissioner of said county of Kent, and in such sum as such judge or commissioner shall direct, * * * it shall thereupon be the duty of said circuit court for the county of Kent to proceed no further in the cause.”

Under this provision the defendant and appellee in a cause appealed to the circuit from justice’s court moved that the same be transferred to the superior court, and such an order was made. This order was subsequently vacated upon motion of the plaintiff, and the relator (i. e., the defendant) asks a mandamus to compel the transfer of the case.

Several reasons are urged in opposition to the motion,— among them, the unconstitutionality of a law permitting such transfer. We are of the opinion that it is unnecessary to pass upon that question, as we think it evident that appeal cases were not contemplated. A reference to the act will show that, as to cases commenced after the act should take effect, only defendants might move for a transfer. By commencing an action in the circuit court a plaintiff has selected his forum, and the limitation of the right to remove the case to the defendant is consistent and proper; but in appeal cases no good reason is apparent for discriminating against the plaintiff, who may not have appealed, or, if he has, could appeal to no other court. In such a case it cannot be said that he has selected the forum of his choice, as in other cases; yet only the defendant can move to transfer. The act is silent upon the subject of appeal cases, and, we think, should not be held applicable to them. It may be said that plaintiff has shown his preference for the circuit, and disinclination to go to the superior court, by commencing his action in justice’s court, when he might have begun it in the superior court; but we think that the law should not be so construed as to impose a penalty upon the commencement of actions before justices of the peace.

The order of the learned circuit judge is affirmed, with costs.

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


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    KEARNEY v. WASHTENAW MUTUAL FIRE-INSURANCE CO.
    1. Arbitration and Award — Vacation—Equity Jurisdiction.
    It is within the jurisdiction of a court of equity to set aside an award of arbitrators.

      2. Same — Statutes—Construction.
    The fact that 3 Comp. Laws 1897, § 10935, confers power on the court to which the report of arbitrators may be made to set aside their award, does not exclude the exercise of a like power by a court of equity, in view of the further provision of the statute (section 10945) that nothing therein contained “shall be construed to impair, diminish, or in any manner to affect the power and authority of any court of chancery over-arbitrators, awards, or the parties thereto.”
    3. Same — Insurance—Loss by Fire — Questions Submitted.

      A fire-insurance policy provided that “all questions of dispute ” arising between the company and the insured should be settled by arbitration. The company, after a loss, admitted its liability to a certain amount, which the insured rejected as insufficient. Pursuant to his demand for arbitration “upon the subject of said loss under said policy,” arbitrators were appointed. The question of the attempted fraud of the insured being raised for the first time before such arbitrators, they claimed the authority, under the terms of the articles of submission, conferring on them the power of final settlement “ of all matters and things arising from and growing out of and based upon” the policy, to determine such question, and did determine it adversely to the insured, and declared the policy void. Held, that the action of the arbitrators was erroneous; that their authority was limited to an adjustment of the loss, and the question of fraud was not before them.
    Appeal from Washtenaw; Kinne, J.
    Submitted November 13, 1900.
    Decided April 16, 1901.
    Bill by Thomas P. Kearney against the Washtenaw Mutual Fire-Insurance Company to set aside an award. From an order overruling a demurrer to the bill, defendant appeals.
    Affirmed.

      A. J. Sawyer & Son, for complainant.

      Lawrence & Butterfield, for defendant.
   Montgomery, C. J.

The appeal in' this case is from an order of the circuit court for the county of Washtenaw, in chancery, overruling the demurrer of the defendant to the complainant’s bill of complaint. The bill of complaint sets up that the complainant is the owner of a farm of 240 acres in the county of Washtenaw; that on the 1st day of January, 1890, the defendant issued to the complainant a policy of insurance; that a grain barn and its contents, covered by the insurance policy, were destroyed by fire on the 1st day of February, 1899; that, in compliance with a by-law of the defendant, the complainant was notified by the directors of the defendant to appear before them at the city of Ann Arbor and answer such questions in relation to the fire as the directors might deem material; that afterwards, in compliance with a notice dated March 2, 1899, the complainant on March 11th appeared before the board of directors and submitted to an examination, and introduced testimony in relation to the fire and loss sustained; that in compliance with another notice, dated April 7, 1899, on the 12th day of April the complainant appeared before the board and submitted to a further examination; that afterwards, on May 11, 1899, the complainant was notified to again appear before the board on May 20th, and furnish proof that there were beans in the barn at the time of the fire; that a further meeting was held on the 12th day of June, 1899, at which time complainant produced certain witnesses before the board in relation to the loss sustained by him; that afterwards the board of directors made an invoice of the property lost or damaged, and the amount they had decided to allow complainant; that the directors allowed the complainant $575; that this allowance the complainant refused to accept, and on the 23d day of June, 1899, he served upon the secretary of the defendant a notice that he was dissatisfied with the award of the board of auditors of the defendant, and claimed the right of arbitration under by-law 38 of the defendant; that on the 17th day of August, 1899, the complainant and defendant entered into articles of submission to arbitration, in which they agreed—

“To submit the final settlement of all matters and things arising from and growing out of and based upon a certain policy of insurance issued to the said Thomas P. Kearney on the 1st day of January, 1890, which policy is numbered 1,124, and the subsequent destruction by fire of some part or portion of the property.mentioned in said policy of insurance, to the determination of William Aprill, of Scio, Peter Cook, of York, and Andrew Campbell, of Pittsfield, all in the county of Washtenaw, State of Michigan, the award of whom, or the greater part of whom, being made and reported within' sixty days from this date to the circuit court for the county of Washtenaw, the judgment therein shall be final; and, if either of the parties shall neglect to appear before the arbitrators, they may proceed in his or their absence.”

The bill of complaint further states that, after the above articles of submission had been signed and executed, the parties proceeded to introduce the testimony in the case, and were occupied in so doing the 17th, 21st, 22d, and a portion of the 23d day of August, 1899. It appears from the bill that a serious controversy came up during the trial before the arbitrators as to .the amount of beans that were in the barn at the time of the fire; that complainant ■claimed there were 600 bushels, and the defendant claimed there was no such amount in the barn; and that, after the testimony was taken, the counsel for the defendant took the position that the complainant had attempted to defraud the defendant by claiming to have property destroyed that he did not possess, and that such a claim was a fraud upon the insurance company, and rendered his policy null and void; that a majority of the arbitrators adopted the view presented by the defendant, and rendered the following award:

“Whereas, matters in controversy between the Washtenaw Mutual Fire-Insurance Company, doing business in the county of Washtenaw, Michigan, and Thomas P.' Kearney, of the same county and State, was by them submitted to William Aprill, Peter Cook, and Andrew Campbell, as arbitrators, as by this submission in writing, bearing date the 17th day of August, 1899, more fully appears:
“Now, therefore, we, the arbitrators mentioned in said submission, having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and having examined the matters in controversy by them' submitted, do make this finding and award in writing; that is to say, we find that the claimant, Thomas P. Kearney, has attempted to defraud the Washtenaw Mutual Fire-Insurance Company, and that the liability of said company on said policy has ceased on account of said attempted fraud, and that said policy is null and void.”

The bill of complaint then avers that the award was void for the following reasons: Because the question of the validity of the policy was at no time a subject of controversy between the parties, and was not included in the articles of submission; and, further, that the arbitrator chosen by the defendant was not a disinterested person,, but entered upon his duties with the understanding that he-was there to look after the interests of the defendant, and so declared in advance of the hearing.

The demurrer asserts that complainant, if he has a grievance, has an adequate remedy at law, and that it appears from the face of the bill that the arbitrators had authority to make the finding which they made.

It is contended that, inasmuch as the statute (3 Comp. Laws 1897, § 10932 et seq.) provides for a vacation of the award by the court to which the report is made, this remedy must be held to exclude a remedy in equity. Section 10945, however, provides that “nothing contained in this chapter shall be construed to impair,, dimmish, or in any manner to affect the power and authority of any court of chancery over arbitrators, awards, or the parties thereto.” There is little room fox* construction. The language of this section is clear. If, prior to the enactment of the statute, a court of equity had jurisdiction to vacate an award, that power is preserved by the section quoted above. It is generally held that equity has jurisdiction to set aside an award. Leslie v. Leslie, 50 N. J. Eq. 103 (24 Atl. 319); 2 Pom. Eq. Jur. § 919; 3 Enc. Pl. & Prac. 154.

Whether the award was within the terms of the submission is a question of more difficulty. The submission is in the following language:

“Know all men by these presents, that the Washtenaw Mutual Fire-Insurance Company, by Wm. K. Childs and E. A. Nordman, its secretary and president, for that purpose duly-appointed by the board of'directors of the said company, and Thomas P. Kearney, have agreed to submit the final settlement of all matters and things arising from and growing out of and based upon a certain policy of' insurance issued to the said Thomas P. Kearney on the 1st day of January, 1890, which policy is numbered 1,124, and the subsequent destruction by fire of some part or portion of the property mentioned in said policy of insurance, to the determination of William Aprill, of Scio, Peter Cook, of York, and Andrew Campbell, of Pittsfield, all in the county of Washtenaw, State of Michigan, the award of whom, or the greater part of whom, being made and reported within sixty days from this date to the circuit court for the county of Washtenaw, the judgment therein shall be final; and, if either of the parties shall neglect to appear before the arbitrators, they may proceed in his or their absence.”

It is contended by the complainant that it was only intended to submit to arbitration the amount of the loss; that the terms of the submission presuppose the existence of a valid policy, and the destruction of a portion of the property covered.

The policy contains the following clause, to wit :

“No suit or action at law or in chancery shall be commenced or maintained against this company by reason of this policy, but all questions of dispute arising between this company and the assured, or any person claiming under him, her, or them, shall be settled by arbitration or referees, subject to the charter and by-laws; and their award, in writing, shall be binding upon the parties, and final, and the necessary expenses of such arbitration or reference shall be borne equally by each party.”

By article 10 of the charter of the said defendant it is provided as follows:

“Art. 10. In case of any disagreement between-the company and the insured, in cases of loss, the board of directors shall select a suitable and disinterested farmer residing in the county of Washtenaw, and in some town other than the one in which the loser shall reside, to act as referee; the loser shall choose another, like situated as above; and the two referees so chosen shall select a third farmer. Said referees so chosen, or a majority of them, shall determine and decide the amount of the loss or losses, and liability of the company to pay, and their decision shall be final. The expenses attending such arbitration or reference shall be borne equally by the company and the insured.”

By by-law 38 of said defendant it is provided as follows:

“38. All questions of dispute arising between this company and the assured, or any person claiming under him, shall be settled by arbitrators or referees, in accordance with the charter and the laws of the State.”

To determine what was intended to be submitted, we may have recourse to the previous negotiations, from which it appears that there was no question raised as to the liability of the company. On the contrary, a liability of $575.31 was admitted. The demand for arbitration came from complainant, and was a demand for “arbitration upon the subject of said loss under said policy.” Up to this time no claim of fraud had been put forth. There was no such controversy to submit. Clearly, then, neither party supposed that he submitted it. Under the policy all matters of dispute arising between the company and the assured are to be arbitrated. What is meant by “matters and things arising from and growing out of and based upon” the policy? The only way we can make this intelligible is to treat the expression as referring to the policy, and limited to matters and things in dispute. See Morse, Arb. pp. 65, 66. We think the submission was intended to be limited to the matters in dispute. See, as bearing on this question, Bailey v. Insurance Co., 77 Wis. 336 (46 N. W. 440); Phœnix Ins. Co. v. Badger, 53 Wis. 283 (10 N. W. 504); Mentz v. Insurance Co., 79 Pa. St. 478 (21 Am. Rep. 80).

The order overruling the demurrer is affirmed, and the case remanded.

The other Justices concurred.


author: Hooker, J.

text:
    SPAULDING v. STEEL.
    Debtor and Creditor — Assignment—Fraudulent Transactions.
    That a debtor caused a limited partnership association to be organized, the shares in which were all held by himself and his immediate family, and turned over his property to such association, which assumed his debts, and pledged a large amount of such property to the debtor’s son, is not ground for complaint on the part of an assignee for creditors, where the son is shown to have been a bona fide creditor, and it appears that no property otherwise available was placed beyond the reach of the other creditors by reason of the formation of such association.
    Appeal from Clinton; Daboll, J.
    Submitted December 5, 1900.
    Decided April 16, 1901.
    Bill by Oliver L. Spaulding, assignee of Robert M. Steel and the R. M. Steel Company, Limited, against George A. Steel, for an accounting and a discovery. From
    a decree dismissing the bill, complainant appeals.
    Affirmed.

      Norton & JDooling, for complainant.

      Fedewa & Walbridge, for defendant.
   Hooker, J.

Robert M. Steel, a resident of St. Johns, Mich., was, on January 1, 1895, a man of large property and some debts. Much of his property was invested in land and various business enterprises, while his obligations were mainly in banks, and in part, at least, protected by collateral security. George A. Steel, the defendant, was his son, and had been for several years in his employ. In September, 1895, Robert M. Steel caused to be organized three limited partnerships, known as the “St. Johns Land Company,” the “Gratiot Land Company,” and the “Isabella Land Company,” and took most of the stock himself. The lands in the counties of Clinton, Gratiot, and Isabella — all in Michigan — were conveyed to the several companies, being valued, by counties, at the sums of $220,000, $50,000, and $25,000, respectively. The defendant testified that this was done to facilitate, the disposition of these lands.

On January 19, 1896, Robert M. Steel experienced a stroke of paralysis, and on March 17, 1896, it was thought advisable to place his affairs in a shape to avoid the embarrassment arising from a settlement of his large business affairs through probate proceedings in the event of his early death. Apparently he had recovered from his attack of paralysis at that time, but he feared another. Accordingly, a limited partnership was formed, with a view to the conduct of his affairs and the payment of his debts. Its capital stock was $600,000, and he held all but four shares of its stock, those being taken by his immediate relatives and friends. It was called the “R. M. Steel Company, Limited.” Attached to the articles of association was a list of property which he conveyed to this concern for his stock. The property was unincumbered, and consisted largely of stocks in various private corporations, and included a large number of shares of the land companies hereinbefore referred to. On the same day he assigned to the R. M. Steel Company, Limited, substantially all of his other property, and in consideration therefor that company undertook to pay all of his indebtedness. In both lists the stocks were, as a rule, inventoried at the par value. This concern did business until July 6, 1896, when it made an assignment for the benefit of creditors to the complainant, and Robert M. Steel did the same.

During the time that the R. M. Steel Company did business, it took care of paper as it matured, in one way or another, and we understand that no complaint is made that it diverted any of the property which came to its hands from the creditors, except that it gave a chattel mortgage, and otherwise pledged a large amount of the property, to George A. Steel as security for his claim. The mortgage covered property which ultimately sold for about $900, and was not recorded. The defendant filed a claim for upwards of $50,000, and took possession of the chattel-mortgaged property on the refusal of the assignee to take it and care for it. The assignee claims to have received but little property, most of the property being in the custody of creditors, to whom it was pledged.

The bill in this case is filed for an accounting against the defendant, whose claim is alleged to be unjust, or -at least excessive; and it prays discovery (oath being waived), that an account be taken of all dealings between defendant and his father and said R. M. Steel Company, Limited, that he be required to produce his books •of account, and submit them for examination under such direction and control as to the .court shall seem meet, and that such further and other order be made upon the said George A. Steel as the nature of the case may require. It also prays an injunction and general relief. An answer was filed, followed by the usual replication. To prove his case, the complainant offered the books and papers produced, and called George A. Steel as a witness, and ¡substantially all of the testimony is from these sources. The bill was dismissed, and the complainant has appealed.

From the bill we should infer that the only relief sought was an accounting and reduction of defendant’s claim; but much of the argument in complainant’s brief seems to be ■devoted to a charge that previous to the organization of the R. M. Steel Company, Limited, the defendant colluded with others to mislead the creditors of his father, and postpone action by them, until he and his father should be •able, through the formation of these several companies, .and the transfer of certain stocks, some by assignment .and some by way of security, to place the property beyond their reach. It is claimed that, by invoicing his stocks at par value when transferred to the R. M. Steel Company, Robert M. Steel and this defendant represented them to be of a greater value than they actually were; and it is implied, and it may be said argued, that creditors were thereby led to delay action to recover their claims, and in some instances extended further credit, upon the faith of such inventories, and statements alleged to have been made to them regarding the financial standing and condition of Robert M. Steel. Again, it is urged that, soon after the land companies were formed, large blocks of the stock were assigned by Robert M. Steel to the defendant and other relatives, without adequate consideration, and that defendant caused a change to be afterwards made in Robert M. Steel’s books, whereby the price was reduced from $100 to $80 per share upon all of said stock so transferred. Another claim is that the defendant transferred to his father at a high price many comparatively worthless stocks, and purchased many valuable ones from him at a low price, whereby he profited at the expense of the creditors; most, if not all, of which transactions occurred before the R. M. Steel Company was formed, and all of which transactions were made possible by misstatements and manipulation, which postponed action by the creditors. A point is also made in the brief over the failure of the defendant to record his chattel mortgage for a time, during which time one or more of R. M. Steel’s obligations was renewed by the Steel Company with his indorsement.

Our examination of the testimony has convinced us that the amount of the defendant’s claim can only be reduced by finding fraud in the transfers of stock; and, so far as R. M. Steel is concerned, he does not, and, we think, could not, complain. In other words, defendant has a valid claim against his father. We have no doubt that what the defendant has done was with the consent and approval of his father, and the only complaint must come from creditors, or the complainant, who in a way may represent them.

The formation of land companies and the R. M. Steel Company, Limited, and the transfer to them of property, did not necessarily wrong the creditors, for it did not of itself put any of this property beyond the reach , of R. M. Steel’s creditors, who could proceed against the stock. It is true that the complainant claims that some stock in the land companies was transferred to the defendant and others without consideration; but the proof shows that this claim is unfounded. We are satisfied from the testimony that this stock was. paid for at |80 per share, according to the original agreement, and that it was a fair price. The charge of the falsification of the books is not supported by proof, but, on the contrary, is satisfactorily explained.

Much is said of the impropriety of invoicing the property given in payment for the stock of the R. M. Steel Company, Limited, and as consideration for the assumption of its debts, at prices far above its value. We do not see that it makes much difference to creditors what price was paid for the property by the concern so long as it received substantially all of R. M. Steel’s property, and made no disposition of it in fraud of creditors. The evidence indicates that nothing of this kind was done, unless giving the defendant security upon it can be said to have been fraudulent. The case of Scripps v. Crawford, 123 Mich. 173 (81 N. W. 1098), is in point upon this question. As in that casé, we feel justified in the conclusion that the several corporations were formed in the hope — illusive, no doubt, but honest — that Robert M. Steel’s debts might be paid without exhausting his property. The property was not thereby placed beyond the reach of creditors, and we are not able to see that an attempt was made to hinder and delay creditors, within any just or reasonable rule. No creditor is here testifying that he was deceived or delayed thereby, nor does it appear that any suffered as a consequence either of the formation of the companies or the alleged overvaluation in the invoice. Again, the representations made by the way of statements are not shown to have worked injury to creditors to whom they are alleged to have been made, even if false. ' Some, if not all, of them collected their claims, and the others did not testify. There is no proof that any one relied on such statements to their injury.

The defendant’s testimony contains an explanation of many of the purchases and sales of stock between his father and himself, and, while it may seem that the defendant obtained high prices for some, and bought others at low prices, if measured by values at later dates, in many instances the transactions are clearly and satisfactorily explained and justified, and in others the stocks had long before been turned out to R. M. Steel, who had used them to his advantage, if not without loss from the price afterwards allowed by him. The defendant makes a clear showing that he was a large creditor of R. M. Steel. He indorsed his paper, and otherwise aided him to the extent of many thousand dollars. Had he chosen, he might have been fully secured without having corporations formed. In fact he had such security, and released it at the time the R. M. Steel Company was formed, and took security from the company. Many other creditors already had security; and, if a preference may be given to any creditor, it is not unnatural, nor are we prepared to say that it is reprehensible, to prefer a near relative, so long as the transaction is an honest one.

It remains to inquire whether this complainant is entitled to a decree invalidating the chattel mortgage, the property having been sold as stated. No one has any reason to complain of the failure to record this mortgage except Hicks and the St. Johns Bank. It is not subject to distribution among other creditors. It in no wise affects the amount of the defendant’s claim against his father, and there is no allegation in the bill which would justify a reversal of the decree upon this ground.

We are of the opinion that there is proof justifying the allowance of the salary claimed. There can be little doubt of the acquiescence in the arrangement by the stockholders of the company.

The decree of the circuit court is affirmed.

The other Justices concurred.


text:
    LYON v. VAN RADEN.
    1. Letter oe Credit — Special Credit.
    At the request of A. that defendants recommend him to a bank, to enable him to get advances, so that he might hold eggs purchased until the price should advance, defendants wrote to the bank, stating the facts, and that they did not think there was any risk in his so holding them; adding that they guaranteed the payment of drafts drawn by A. on them, as they had done in the past, and that the risk incurred by the bank amounted to next to nothing. Held, that this was a letter of special, and not of general, credit.
    2. Same — Assignability.
    Where a letter of special credit was written to a banking corporation to induce it to make advances to a certain person on produce purchased by him, on the bank’s going out of business, and being succeeded by a banking copartnership, such successor could not rely on the letter of credit, and recover from the writers for advances made thereon.
    Error to Calhoun; Smith, J.
    Submitted January 10, 1901.
    Decided April 16, 1901.

      Assumpsit by Lottie L. Lyon, individually and as administratrix of the estate of Thomas Lyon, deceased, and John W. Breakey, copartners as the Homer Banking Company, against T. Van Raden and H. D. Wheeler, copartners as Van Raden & Wheeler, for money paid to defendants’ use. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Reversed.

      Myron H. Nichols (John E. Foley, of counsel), for appellants.

      Herbert E. Winsor (William H. Porter, of counsel), for appellees.
   Hooker, J.

The plaintiffs are a copartnership, which in October, 1897, succeeded in the banking business the First State Bank of Homer, a corporation organized under the State banking law, which theretofore did business in the village of Homer. Thomas Aicken was a local dealer in eggs, butter, etc., whose habit was to buy these products from the farmers and ship them to New York for the defendants, putting into the First State Bank of Homer a draft upon them for the amount of his bill, with bill of lading attached. The bank would allow him to draw against this credit, and would collect the draft. The business was thus done, or at least continued, by the First State Bank in pursuance of a letter written by the defendants, reading as follows, viz.:

' “New York, April 13, 1897.
“1st State Bank oe Homer,
“Homer, Mich.
“Gents: We are in receipt of a letter from Thomas Aicken in which he requests us to write you in regards to allowing him to draw some money from you for the purpose of holding eggs in his cellar. We do not think there is any risk at all in his holding 5 or 600 cases of eggs in his cellar, especially when they can be bought at such a low figure as he can buy them at the present time. We, of course, guarantee the payment of drafts drawn by Mr. Aicken upon us, as we always have done in the past; and any favors which you may show him we feel positive will be appreciated by him, and that the risk you take by advancing him money amounts next to nothing.
“We are, yours respectfully,
“Van Raden & Wheeler.”

This letter came to the possession of the plaintiffs, with other effects of the First State Bank." It was written at the request of Aicken that the defendants recommend him in some way to the First State Bank, to enable him to get advances from the bank, so that he might hold eggs purchased, in his cellar, until the market should advance. On December 16, 1897, Aicken shipped a quantity of produce from Homer to defendants, and at the same time drew a draft against them for $1,900, with bill of lading attached, and delivered the same to the plaintiffs, who gave him credit for that sum. The draft was returned by plaintiffs’ correspondent, being reported, “Payment refused.” The amount was then charged against Aicken -on plaintiffs’ books. ,

On June 21, 1898, this action was commenced by declaration. After appearance an amended declaration was filed, containing a special count upon a bill of exchange and acceptance, and the common counts in assumpsit. The general issue was pleaded, and upon the trial the court directed a verdict for the plaintiffs.

The important question in the case arises from plaintiffs’ claim that they had a right to rely upon the letter written by the defendants as a letter of credit, it being insisted:

1. That, as successors of the First State Bank, they are entitled to rely upon the promise made to the bank in the letter.

2. That the letter should be held a general letter of credit, good in favor of any one who should pay or buy drafts made by Aicken upon defendants in reliance upon it, and an acceptance of drafts drawn.

We are of the opinion that this cannot be called a general letter of credit: First. The circumstances under which it was given do not indicate that such a letter of credit was within the contemplation of the parties, as all go to show that it was solicited and given to enable Aicken to obtain advances from the First State Bank, and no one else. Second. The letter states the object for which it was asked, viz., to induce the bank to allow Aicken to draw some money from the bank for the purpose of holding eggs in his cellar. In the same connection they said they would guarantee the payment of drafts drawn by Aicken upon them, as they always had done in the past. It appears to be conceded that, in a doubtful case, the intent of the parties is to be determined, for the purpose of ascertaining whether the instrument is a general ■or special letter of credit. We think the letter is not ambiguous, but if it were so the intent seems apparent. Hence there is no occasion for a discussion of the authorities applicable to letters of doubtful character. We must hold it to he a special letter of credit.

This being so, the case must turn upon the right of the plaintiffs to assert that this contract was made with them. While the larger, interest of both concerns belonged to the same persons, first as stockholders in the State Bank, and afterwards as copartners, the concerns were different persons in the law. The record does not disclose how the bank transferred its assets to the copartnership, and it makes little difference how it was done. The corporation went out of existence, and with it all its rights which were not assignable. The defendants had made a contract of guaranty, upon which the bank was authorized to rely , and act; but the contract was personal. It could not, by delivering the letter to another, create any such contract rights between such other and the defendants.

We think it was material for the defendants to show fraud on the part of the plaintiffs in accepting and sending the draft contrary to the direction of Aicken, if such proof was offered.

It is unnecessary to discuss other questions.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    IDEAL CLOTHING CO. v. HAZLE.
    1. Equity — Order Overruling Demurrer — General or Special. —Appeal.
    Since, under Chancery Rule No 9, subd. a, a general demurrer to a bill is to specify the reasons in matter of substance relied on, a demurrer which contains several special reasons, all except one of which go to the equity of the bill, is a good general demurrer, from an order overruling which an appeal will lie under 1 Comp. Laws 1897, § 549.

      3. ’Same — Injunction—Fraudulent Conveyances — Bankruptcy Act.
    A bill filed in September, 1898, alleged that defendant co-partners had fraudulently transferred to their wives their real estate, and had pretended to sell to a third person, also made defendant, a stock of goods purchased from complainants on a term of credit not yet expired; that the copartners had been guilty of acts of bankruptcy, but that the creditors could not file a petition for involuntary bankruptcy until the expiration of four months from July 1, 1898, according to the bankruptcy act. It prayed that the transfers be declared fraudulent, and that an injunction issue restraining further transfers until proceedings in bankruptcy could- be commenced. Held, that the bill could not be maintained, as there was no impediment to attachment, or to replevin or trover, if it was true that the goods were obtained by fraud.
    8. Same — Impounding Assets.
    The rule that equity can be resorted to, for the purpose of reaching assets fraudulently conveyed, only after a judgment and a return of execution unsatisfied, applies where it is sought to impound the assets of the debtor pending resort by the creditors to involuntary bankruptcy proceedings.
    Appeal from Clinton; Daboll, J.
    Submitted January 10, 1901.
    Decided April 16, 1901.
    Bill by the Ideal Clothing Company and others against Fred E. Hazle and Frank B. Clark, copartners as Hazle & Clark, and others, to set aside certain conveyances and for an injunction. From an order overruling a demurrer to the bill, defendants appeal.
    Reversed.

      Almond G. Shepard and Edwin H. Lyon, for complainants.

      High & Everett (Spaulding, Norton & Dooling, of counsel), for defendants.
   Hooker, J.

Hazle & Clark, copartners, carried on a shoe business in Ovid. The complainants sold them goods, and were severally their creditors. Their bill of complaint, filed on or about September 18, 1898, at which time a temporary injunction was allowed, states their various claims, and that, with the exception of $33, they were not due. It alleges further that the persons composing the firm of Hazle & Clark pretended to sell and delivered their stock to one Lamb, and conveyed their lands to their wives; all in fraud of creditors. It alleges also that they were insolvent, and that on the preceding 1st of July — i. e., 1898 — the federal bankrupt act took effect, and that the defendants Hazle & Clark were guilty of acts of bankruptcy under its provisions, but that they had not filed a petition for voluntary bankruptcy, and that the creditors could not file a petition for involuntary bankruptcy until the expiration of four months from July 1, 1898, as provided in said act, at which time it was complainants’ intention to file such a petition. It prayed that the transfers might be declared fraudulent as against creditors, and that an injunction be issued restraining the transfer of said property by any of the persons mentioned —all being made parties — until proceedings in bankruptcy could be commenced. An injunction was issued, but was afterwards dissolved. Defendants demurred to the bill, and have appealed from an order overruling the demurrer.

Apparently the only question relied upon under the demurrer relates to the jurisdiction of the court to enter tain such a suit. Complainants contend: First, that the demurrer is not a general demurrer, and that the order is not appealable; second, that the bill states a case entitling them to the relief prayed.

Our statute (1 Comp. Laws 1897, § 549) is anomalous in permitting an appeal from an order overruling a demurrer. Usually appeals are permitted only after final judgment or decree. This is an exception, however, but the right is limited to cases where the order is upon a general demurrer. The demurrer should, in our opinion, be treated as a good general demurrer. All of the special reasons contained in it (in accordance with Chancery Rule No. 9), except one, go to the equity of the bill. In the case of Turck v. Soule, 55 Mich. 128 (20 N. W. 822), it is indicated that, where a demurrer is both general and special, an order overruling the demurrer, with leave to answer, cannot be appealed from; but this appears to have been overruled by the case of Shaw v. Chase, 77 Mich. 437 (43 N. W. 883), where the court considered that case upon the alleged want of equity, though the •demurrer was both general and special. We may do the same here.

It has been intimated that, at the time the bill was filed, only $33 of complainants’ claims were due. There was no'impediment to proceedings by attachment for both due and undue claims, if, as alleged in the bill, the transfers were fraudulent. Moreover, if it was also true that the .goods were procured through fraud, replevin or trover would lie. The only'reason given for not resorting to a remedy at law is that the complainants wished to proceed under the bankruptcy act at a later date, and that the proceedings at law would be futile if the court of bankruptcy should take jurisdiction. We do not discover that it is alleged that there was any creditor except complainants who could begin such proceedings, and, if there were such, there is nothing to imply that he would do so; and, if it were otherwise, it is not clear that the complainants would be injured thereby, or by having taken steps under our State laws to secure payment of their claims.

It is contended that the case does not fall within the rule that a judgment must be procured, execution issued, and returned unsatisfied, before equity can be resorted to for the purpose of reaching assets fraudulently conveyed. Some cases are cited relaxing to a greater or less degree the rule referred to; but it has been adhered to with strictness in this State. See the late case of Jenks v. Horton, 114 Mich. 48 (72 N. W. 20).

It is apparent that the object of this bill was merely to preserve an estate until a time should come when it could be administered under the new law, which, at the time the bill was filed, did not authorize the federal courts to interfere. It is claimed that, as these courts were powerless to protect creditors under the bankruptcy act, the State courts must have the power. This does not impress us as being a sound theory. The rights and remedies in. such cases under the State law were settled. They existed and were open at this time. But counsel say that they might be superseded or supplemented for the four months following July 1st by another remedy, so that they might, if they chose, avail themselves of a prospective remedy afforded by the bankrupt act. We see no better reason why this should be than that an injunction should heretofore have been issued in any case of fraud and danger to impound the estate until creditors’ claims should mature, judgment be obtained, execution issued and returned, to the end that a creditors’ bill might be effectively filed. The exigency is as great in such a case as this; yet no one has heard of such a proceeding being permitted. Complainants’ theory appears to be defended in an article contributed to 47 Cent. Law J. p. 308; but the case chosen for its text — i. e., Vietor v. Lewis (in the New York supreme court), 57 N. Y. Supp. 16 — denied the relief in a similar case to the present one. A similar view as to the power of the federal courts to anticipate the remedy by bankruptcy proceedings appears to have been taken by Judge Woolson, of the United States circuit court for the Southern district of Iowa, and Judge Carlond, of the Dakota court. See 47 Cent. Law J. 333. The period when such cases could arise was short, and, if there are other cases, we have not had our attention called to them.

We are of the opinion that the order overruling the demurrer should be reversed, with costs, and one entered sustaining the demurrer, with costs. It will be so certified.

The other Justices concurred.


text:
    CREECH v. CREECH.
    Divorce — Cruelty—Condonation.
    A claim of condonation in defense of a suit for divorce on the ground of extreme cruelty is not made effectual merely because no new misconduct constituting a cause for divorce i is shown to have occurred subsequent to the alleged condonation, but it is necessary that the conditions upon which the condonation was granted should have been complied with by the offending party.
    Appeal from Jackson; Peck, J.
    Submitted January 10, 1901.
    Decided April 16, 1901.
    Bill by Mary J. Creech against David H. Creech for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Thomas E. Barkworth and E. C. Badgley, for complainant.

      Blair, Smith & Townsend, for defendant.
   Hooker, J.

The defendant has appealed from a decree of divorce granted to his wife. His defense below was that some of the misconduct relied on for divorce had been condoned, and that he was not guilty of any act thereafter constituting a ground for divorce. The learned circuit judge said in an opinion filed by him that:

“I am satisfied from the evidence that sufficient of the charged acts of cruelty occurring before the alleged con-donation are established to entitle the complainant to a decree as the case then stood. The defendant, however, claims that all acts of cruelty charged in the bill which occurred prior to the time when the parties resumed married relations were condoned by the agreement between the parties at the time that they began living together again. And this raises a question which is not easy of determination. I am satisfied that nothing occurred after the parties resumed married life the last time which would entitle the complainant to a decree on the ground of extreme cruelty; but, as I understand the rule, to make the defendant’s claim of condonation effectual it is not necessary that new acts which would be sufficient basis for a decree on the ground of cruelty should have occurred, but that it is sufficient to defeat the alleged con-donation if the court can see that the conditional promise when the parties resumed their married relation, made by the defendant, was not in good faith carried out, so that, in view of all the circumstances, the relation of husband and wife could not, by reason of defendant’s fault, be carried on or continued. Now, it is a doubtful question whether, under these facts, the claim of condonation ought not to be sustained; but, upon careful consideration, I have made up my mind that it is the duty of the court to overrule that contention, and to give the complainant a decree of divorce on the ground of cruelty.”

The claim that condoned causes for divorce can only be revived by new misconduct constituting a cause for divorce is not sustained by the authorities. See 9 Am. & Eng. Enc. Law (2d Ed.), 826, and notes.- Bishop says:

“All condonation, especially the implied, is upon the condition both that the offense shall not be repeated, and likewise that continually afterward- the party forgiven shall treat the other with conjugal kindness; whereupon a breach of the condition revives the original right of divorce.” 2 Bish. Mar., Div. & Sep. §§ 308, 309, and notes.

See, also, Tackaberry v. Tackaberry, 101 Mich. 102 (59 N. W. 400).

We are not fully satisfied that the condonation was proved. While the complainant returned to defendant’s abode, the defendant alleges a refusal upon her part to cohabit with him; and his counsel urge that she has not, on that account, come into equity with clean hands, inasmuch as she has refused to carry out her agreement. But this is treating condonation as a matter of strict contract. It is more properly a question of whether the facts warrant the presumption that there was forgiveness, reconciliation, and reunion, and restoration of all marital rights. See 2 Bish. Mar., Div. & Sep. § 271, and note; Keats v. Keats, 1 Swab. & T. 334; 9 Am. & Eng. Enc. Law (2d Ed.), 822, and note.

But, whatever may be thought of this question, we do not feel warranted in reversing the decree of the circuit judge, who saw the witnesses, and was in a more favorable position than we to judge of the merits of the case. The decree is affirmed, with costs.

The other Justices concurred. -


author: Moore, J.

text:
    GUSTIN v. COMMISSIONER OF STATE LAND OFFICE.
    Public Lands — Swamp Lands — Reservation from Sale — Resale —Right to Purchase — Mandamus.
    1 Comp. Laws-1897, §§ 1811, 1812, provide that State lands which have been withdrawn from the market shall not be subject to private entry or purchase until published notice of their restoration to the market shall have been given by the commissioner of the land office. Section 1447 places the swamp lands under the supervision of such commissioner. Act No. 169, Pub. Acts 1897, required the board of control of State swamp lands to set aside 5,000 acres of swamp lands within 60 days after the taking effect of the act, for the purpose of improving a certain river. Within such time the land commissioner withdrew certain swamp lands from the market, but the board of control did not pass a formal resolution to that effect, though they knew and approved of the action of the commissioner. Held, that the failure of the board to pass such resolution would not authorize a sale of the lands to a private purchaser prior to their restoration to the market in the manner prescribed by the statute, and hence an application to purchase the same could not be enforced by mandamus.

      Mandamus by Henry E. Gustin to compel William R. French, commissioner of the State land office, to issue a certificate of purchase for certain swamp lands.
    Submitted January 29, 1901.
    Writ denied April 16, 1901.

      William R. Kendrick and Henry K. Gustin, for relator.

      Horace M. Oren, Attorney General, for respondent.
   Moore, J.

The relator filed his petition for a writ of mandamus to compel the respondent to convey to him upwards of 1,000 acres of what is known as “State swamp land,” for which he had tendered the respondent $1.25 an acre. The respondent has made answer to the petition. The material parts of the answer are as follows:

“That, as to the allegation contained in paragraph 4 of said petition, this respondent says that, by reason of the fact that said lands were not subject to private sale at the time of said relator’s application therefor, he refused to issue to said relator a certificate of purchase in accordance with his said application; and this respondent denies that said relator was entitled to a certificate of purchase, which, upon presentation to the secretary of state, would entitle him to a patent for said lands.
“This respondent, further answering, and showing cause why he should not be compelled to accept the said application of relator, and to issue a certificate for the purchase of said lands pursuant thereto says that Act No. 169 of the Public Acts of 1897, being an act to provide for the appropriation of five thousand acres of State swamp land for the purpose of cleaning out Shiawassee river in the county of Saginaw, authorized and empowered the board of control of State swamp lands of this State to appropriate five thousand acres of State swamp lands in the Lower Peninsula for the purpose mentioned in the title of said act; that a meeting of the board of control of State swamp lands for the purpose of considering the provisions of said act was held on the 1st day of July, A. D. 1897, at which time this respondent was chairman of the board of control of State swamp lands in this State, and was authorized by said board to make an examination of said proposed improvement provided for by said act; that prior to the next meeting of said board of control, which was held on the 29th day of July, 1897, this respondent, by virtue of the power and authority in him vested, as commissioner of the State land office, over the public lands of the State, reserved and withdrew from market, for the purpose of said Act No. 169, five thousand acres of State swamp land, of which the one thousand and forty acres described in relator’s petition was a part, and authorized and directed the chief clerk of the land commissioner’s office, who was also clerk of the board of control of State swamp lands in this State, to designate in writing upon the sales plats in the office of the commissioner of the State land office that said lands were reserved and withdrawn from market for the purposes of said Act No. 169, and that all of the lands described in relator’s petition were so withdrawn from market and reserved for the purposes of said Act No. 169, together with other lands,' — ■ in all, five thousand acres, — all- of which was done with “the knowledge and approval of the several members of said board.
“This respondent, further answering, says that at the meeting of the board of control of State swamp lands of “this State held on the 29th day of July, 1897, the said chief clerk of the land commissioner’s office, who was also clerk of said board of control, as directed by this respondent, reported to said board that the lands described in relator’s petition, together with other lands, in all amounting to five thousand acres, had been withdrawn from market and reserved pending further action of said board relative to the provisions of said Act No. 169; that a copy of the official record of the minutes of the several meetings of said board of control relative to the provisions of said Act No. 169 is attached to and made a part of this answer, and marked ‘Exhibit A.’
“This respondent, further answering, says that, under and by virtue of the power and authority in him vested by the laws of this State with respect to the public lands of this State, the lands described in relator’s petition were by him withdrawn from market, and that said lands, by virtue of such withdrawal,-were not subject to private sale until again restored to market in accordance with the requirements and provisions of Act No. 21 of the Public Acts of 1873, being sections 1311 and 1314, inclusive, of the Compiled Laws of 1897.
“This respondent, further answering, says that said lands were actually withdrawn from market by this respondent, which fact was recorded upon the sales plats of the office of the commissioner of the State land office, and have been so treated and held in reserve for a period of over three years, during which period the value of said lands has greatly increased, and that they are now worth in the open market much more than one dollar and twenty-five cents per acre; that many applications have been made to purchase said lands prior to the said application of relator during the time they were so withheld from market, and therefore they should only be restored to market in accordance with the provisions of the statute expressly relating thereto; that to restore said lands to market at private sale at one dollar and twenty-five cents per acre would result in great loss to the people of the State of Michigan.”

The exhibits attached to the answer show that at a meeting of the board of control of State swamp lands held July 1, 1897, among other things the following appears upon the minutes:

“Senate bill No. 370, authorizing the appropriation of 5,000 acres of State swamp land for the improvement of the Shiawassee river in Saginaw county, was read by the secretary. Hon. B. Colvin, Judge Wilber, and Geo. B. Brooks, being present, exhibited a 'map of the territory obstructed, and explained the situation.”

The minutes of a meeting held July 29th contain the following:

“ Commissioner French reported that he had attempted to examine the territory of the proposed improvements of the Shiawassee river, and visited Saginaw on July 7th for that purpose, but that, on account of the extreme hot weather prevailing at that time, postponed the examination until some more favorable time in the future, and expressed the opinion that, unless the general government made certain proposed improvements below where the State improvement was proposed, it would be useless to carry out the provisions of the act authorizing such improvement. * * * The secretary reported that a list of lands selected for the payment of the Shiawassee-river improvement had been submitted, and the lands, reserved pending further action by the board.”

At a meeting of the board held October 12, 1898, the following appeared: -

“Commissioner French made report of his examination of the territory to be affected by the proposed improvement of Shiawassee river, as follows:
“ ‘Examined river from vicinity of St. Charles downstream, and found it filled with driftwood, which in high water so obstructs the flow of water as to cause the stream to overflow its banks and cover a large territory of good land with water, to its great detriment. This could be overcome by removing the driftwood from the channel, thereby greatly benefiting the section now annually overflowed.’
“Commissioner French recommended the appropriation as authorized. Mr. Steel moved that the appropriation of 5,000 acres of swamp land authorized by the act be made. Mr. Gardner seconded this motion, which then prevailed. Moved by Mr. Steel, seconded by Mr. Maynard, that the details necessary to carry the intent of the act into effect be placed in the hands of the chairman of the board, which motion prevailed.”

At a meeting held September 26, 1900, the board voted to discontinue any further action under Act No.- 169. This action brought out a petition from residents of the Saginaw valley, and another meeting of the board was held November 28, 1900, and a hearing was given to the parties interested, and the action of the board taken September 26th was reconsidered.

It is now claimed that, because the records of the board of control do not show a formal resolution to appropriate these lands within 60 days after Act 169 was given effect, there has been no legal withdrawal, and the relator is entitled, as a matter of right, to buy these lands.

The statutes do not provide just what formal action shall be taken by the board of control in order to appropriate the lands and withdraw them from the market. We take it, there can be no question but the legislature has the right to withdraw the swamp lands from sale at any time. When we seek to construe the statutes in relation to the swamp lands, we should not consider them separately, but treat them as all bearing upon one subject, and as constituting one system, and each law as explanatory of the others. People v. Pritchard, 17 Mich. 260. Nor, where it is apparent from the record that the officials having control of public lands have attempted to take action authorized under a given act of the legislature, should we be unduly technical in looking for irregularities which will defeat the purpose of the law, and result in giving to private parties a large tract of land belonging to the State for one-third its value.

Section 1290, 1 Comp. Laws 1897, gives the commissioner of the land office general charge and supervision of all the lands belonging to the State. Section 1447, 1 Comp. Laws 1897, places the swamp lands under his supervision. Other sections of the statute impose upon the board of control of swamp lands, of which board the land commissioner is chairman, certain duties, and confer upon them certain powers, in relation to which it is not, necessary to speak in detail.

Act No. 169, Pub. Acts 1897, reads as follows:

“An áct to provide for the appropriation of five thousand acres of State swamp land for the purpose of cleaning out Shiawassee river in the county of Saginaw. •
“Section 1. The People of the State of Michigan enact, that the board of control of State swamp lands of this State be and they are hereby authorized and empowered, and it shall be their duty, within sixty days after the taking effect of this act, to appropriate five thousand acres of State swamp lands in the Lower Peninsula, vacant and not appropriated to any specific purpose, for the purpose of cleaning out the channel of Shiawassee river in Saginaw county, where necessary to aid in draining and reclaiming swamp and overflowed lands adjacent thereto. Said lands, when thus appropriated, shall be selected within sixty days after this act takes effect, and no swamp land script shall issue therefor, and shall be taken out of the market for the purposes of this act, and shall not be used except in carrying out the purpose above specified: Provided, that such work shall be done and the expenditure of such appropriation be made in pursuance of the provisions of law now in force relative to the construction of State roads and ditches, under the supervision and control of the commissioner of the State land office and the board of control of State swamp lands. ”

A portion of section 1466, l.Cornp. Laws 1897, reads as follows:

“The governor, secretary of State, auditor general, State treasurer, attorney general, and commissioner of the State land office shall constitute a board of control, and shall have power, and it shall be their duty, whenever in their judgment the public interest shall require it, to suspend the surveys or operations on any of said roads, or those of any roads to be hereafter constructed under the provisions of this act, and to direct resurveys, with a view to the selection of more fit and convenient localities for the road, and to direct, from time to time, what work shall be •commenced, suspended, or discontinued, and to extend the time for completing the work of any contract, and to correct all errors in contracts.”

Prior to July 39, 1897, the chief clerk of the land office, acting in accordance with the instructions of the commissioner of the State land office, and pursuant to his determination to withdraw from market and reserve the lands from sale, indicated such withdrawal and reservation upon the sales plats of said State swamp lands in the •office of the commissioner of the State land office, by marking in lead pencil the letters “S. R.” on each tract so selected, as he was directed by the commissioner of the State land office so to do. The letters “ S. R.” were placed upon the sales plats in the office of the commissioner of the State land office for the express purpose of showing on said plats that the lands had been withdrawn from the market by the commissioner, and reserved for cleaning out Shiawassee river, under and in accordance with the provisions of said Act No. 169. The fact that these lands were withdrawn was reported to the board at its first meeting after they were withdrawn. Their conduct then and subsequently shows very clearly that they had knowledge of what was done, and approved of it, and supposed the action of the land commissioner, the chief clerk, and themselves had resulted in withdrawing these lands from the market. They were in fact withdrawn from market. Persons who sought to buy them were not permitted to do so. In the meantime they have increased in value so they are worth several times what they were when withdrawn. It was made the duty of the board of control to appropriate these lands. They undertook to do so, and supposed they had appropriated them. Their action resulted in the lands being, as a matter of fact, withdrawn from market.

To provide for like contingencies as this, section 1311, 1 Comp. Laws 1897, was passed. See Wait v. Commissioner of State Land Office, 87 Mich. 353 (49 N. W. 600). Before these lands can again be put upon the market, they must be offered at public sale to the highest bidder, so that the State, and not private parties, may profit by the increase in value while they have been withdrawn from market.

A brief has been filed upon the part of persons interested in the improvement; but we do not deem it best to pass upon any other question than the right of the relator 'to have a deed issued to him.

The application for a writ of mandamus is denied.

The other Justices concurred.


author: Grant, J.

text:
    BROWNE v. BOARD OF SUPERVISORS OF LIVINGSTON COUNTY. O’NEIL v. SAME.
    Counties — Physician’s Services — Allowance of Claim — Estoppel — Health Officer — Compensation.

       1. When, a physician has presented a bill to a county for services rendered to indigent persons, his bill has been audited, and he has received, without protest, the amount allowed thereon, he is estopped to claim the balance as services rendered under section 4424, 2 Comp. Laws 1897, relative to contagious diseases.
    2. Where a health officer has been called in consultation by another physician to determine whether the patient is affected with a disease dangerous to the public health, he renders his services as health officer under section 4460, and not section 4424, 2 Comp. Laws 1897. He is therefore entitled to compensation under section 4462, and not under section 4424.

      Mandamus by James E. Browne and Alexander O’Neil to compel the board of supervisors of Livingston county to allow certain claims for medical services rendered in cases of contagious diseases.
    Submitted January 29, 1901.
    Writs denied April 16, 1901.
    The relators are physicians residing in the village of Howell. In 1900 typhoid fever was somewhat prevalent in the village. Relator Browne rendered services to several indigent persons afflicted with the fever. At the October meeting of the respondent he presented two itemized bills, one for $55, for medical services to one Camp, and the other for $39, for like services to one Ismay. The hills were made out to the individuals treated, and were presented to the respondent as bills for services rendered to indigent persons, as appears by the respondent’s return, which must be taken as true. No claim was made that they were for contagious diseases, or that they had been allowed by the village council. The first above: mentioned bill was allowed at $30, and the second at $20. Orders were drawn, were received by Dr. Browne, and presented and paid without protest. These bills had not then been presented to, or approved by, the common council of the village, which is the board of health. They were subsequently presented, not itemized, but in a lump sum, for services rendered, giving credit for the amounts received, and the village council then audited them as services rendered in caring for contagious diseases in the village. Included in the same bill was one for three consultations with Dr. O’Neil, who was the health officer of the village, amounting to $15. Relator O’Neil also presented a claim for eight consultations in typhoid cases, at $5 per visit, which was also allowed by the village council as services rendered in contagious diseases. A copy of one of these items will illustrate them all. The first one is as follows: “October 4, 1900. To consultation in case of typhoid fever in Wolcott family, $5.00.” O’Neil, as’ health officer, certified the foregoing bill to be correct. Dr. Browne also attached his certificate that the foregoing services were performed by Dr. O’Neil, and that the bill was correct. The respondent refused to allow them, and the relators now seek the writ of mandamus: to compel allowance and payment.

      Louis E. Howlett, for relators.

      Edmund C. Shields, for respondent.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). We think the relator Browne, having presented his bill as services rendered to indigent persons, having received an order and money thereon without protest, is now estopped to claim for such services under the statute (section 4434„ 3 Comp. Laws 1897).

The bill of Dr. O’Neil presents a new question. The statute reads as follows:

“ When any person coming from abroad, or residing in any township within this State, shall be infected, or shall lately before have been infected, with the smallpox, or other sickness dangerous to the public health, the board of health of the township where such person may be shall make effectual provision in the manner in which they shall judge best for the safety of the inhabitants by removing such sick or infected person to a separate house, if it can be done without danger to his health, and by providing nurses and other assistance and necessaries, which shall be at the charge of the person himself, his parents, or other persons who may be liable for his support, if able; otherwise, as a charge of the county to which he belongs: Provided, that the health board shall keep and render an itemized and separate statement of expenses incurred in so caring for each, person.” Section 4434, 3 Comp. Laws 1897.

There is nothing upon the face of the bill presented by Dr. O’Neil, nor in the certificate of himself or of Dr. Browne attached thereto, to indicate that they were services rendered in contagious diseases or diseases dangerous to public health. A fair inference is that Dr. O’Neil was called by Dr. Browne to consult over these cases as they arose. Let it be granted that he was called upon to determine whether the patients were affected with a disease dangerous to the public health, and he has performed services, not under section 4434, but under section 4460. The latter section makes it the duty of such health officer to examine the case, and to take such steps as are essential to protect the public health, to procure nurses and other necessaries, etc. For such services he must be compensated under section 4463, which provides for a compensation of not less than two dollars per day, to be paid' by the township, city, or village of which he is health officer. Section 4434 does not provide that the cost of these services may be recovered from the supervisors. That section covers expenses that are incurred after such determination. This is made more apparent by the proviso limiting the liability of the county to “expenses incurred in so caring for each person.” The duty of examining into each case to which the health officer is called is imposed upon him by section 4460 as one of the general duties of his office. It is not an expense incurred in taking care of the diseased person. The question of whether the patient is afflicted with a disease dangerous to the public health must be first determined. If it is determined that .the disease is dangerous, then the provisions of section 4434 apply to the case. For the former services the township, city, or village must pay; for the latter, the county must pay. The relator has made a case showing his service to be within section 4460, and not within section 4434. This distinction is clearly recognized in Village of St. Johns v. Board of Sup'rs of Clinton Co., 111 Mich. 609 (70 N. W. 131), where it appeared that the extra pay demanded a was for compensation conceded to be reasonable for taking care of patients during an epidemic of smallpox.

The writs will be denied.

The other Justices concurred.


text:
    HARRIS v. CHAMBERLAIN.
    1. Contracts — Consideration—Appointment to Office — Public Policy.
    A contract in consideration that plaintiff secure defendant’s appointment as postmaster is void, as against public policy.
    2. Same — Oral Assignment.
    An oral assignment of a claim for goods sold and delivered is valid.
    3. Same — Pleading—Amendment of Declaration.
    In an action by the assignee of a claim for goods sold and delivered, the court may permit an amendment of the declaration for the purpose of correcting an insufficient averment of the assignment.
    4 Same — Defenses—Garnishment.
    Where the defendant in an action for goods sold and delivered sets up in defense the payment of the price in garnishment proceedings, it is competent to show that he retains control of the money alleged to have been so paid.
    Error to Antrim; Mayne, J.
    Submitted February 1, 1901.
    Decided April 16, 1901.

      Assumpsit by Thomas G. Harris against Cyrenus Chamberlain to recover the purchase price of a stock of goods. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Nelson C. Weter, for appellant.

      M. W. Newkirk, for appellee.
   Hooker, J.

Clarence L. Harris, being owner of a stock of goods at Eastport, Mich., and also postmaster at that place, sold and delivered them to the defendant according to the terms of a writing signed by the parties, a copy of which was served with the declaration in the ■case. The writing and indorsements upon the same are as follows, viz.:

“Eastport, Mich., March 22, 1898.
“An agreement between C. L. Harris and C. Chamberlain. Furthermore, C. L. Harris does agree to sell to C. Chamberlain all fixtures below named for the sum of $135.00. Furthermore, all salable goods in the store at the cost price, less the freight.
“C. Chamberlain does agree to pay C. L. Harris $200, or as much more as he can; the remainder to be paid on or before one year from date. This money is to be paid as soon as C. L. Harris gets the post-office for C. Chamberlain.
“Safe, large scales, two counters, stove and fixtures, 1 desk, 1 counter, shelving, three show-cases, 8 lamps, post-office and fixtures, telephone, 3 fork racks, cash drawer, bolt bin, little desk, looking-glass, whip rack, 9 spit boxes, stovepipe, hammer, wrench, screw-driver, nail-puller, oil faucets, 2 twine holders, snow-shovel, tobacco poor box, 6 oil-tank measures and funnels, 8 glass cans and jars, all wood, tobacco cutter, inkstand.
“C. L. Harris.
“C. Chamberlain.”

And on which instrument are the following indorsements :

“Eastport, Mich., March 28.
“Received of C. Chamberlain one hundred dollars on the within contract.
[Signed] “C. L. Harris.”
“Fixtures as above agreed upon, $135.00; inventory of stock of goods as per contract, $552.42; total amount of fixtures and goods as per contract, $68'/'.42.
[Signed] “C. L. Harris.
“C. Chamberlain.”
“Eastport, Mich., July 14, 1898.
“Received on the within contract one hundred dollars.
“C. L. Harris.”

An action of assumpsit was brought by the plaintiff (he being the father of Clarence L. Harris) to recover the amount alleged to be due upon said sale and for one or two other small items. His declaration alleges that, previous to the commencement of suit, he became the assignee of a writing made between Clarence L. Harris and the defendant, a copy of which was stated to be attached to the declaration, and of an account due from defendant to C. L. Harris. Then followed the usual common counts and a copy of the writing. A plea of the general issue was filed, accompanied by a notice that prior to the commencement of the action the defendant had no notice of the assignment, and that he had been released and discharged from the obligation of said writing, by a justice of the peace named, in several garnishment proceedings therein enumerated and set forth. A bill of particulars was filed, setting up the various items sold, and their respective values. A trial was had before a jury, who. rendered a verdict for the plaintiff, and defendant has brought error.

Objections made to the introduction of evidence raised the following two questions early in the proceedings, viz.: First, that the declaration should have been special, and that the common counts were not appropriate to the case; second, that the assignment was not alleged. It was also urged that the contract was opposed to public policy, and. void, because it attempted to dispose of a public office, which it was claimed the testimony of the plaintiff’s witness showed was the main inducement for. the purchase.

A reasonable interpretation of this contract would be that $200 should be paid at all events as soon as C. L. Harris should cause the defendant to be appointed postmaster, and the remainder within the year. Obviously it was expected that such appointment would be made before the expiration of the year, and it is plainly implied that it was part of the arrangement that Harris should procure such appointment. Moreover, the testimony of both parties to the contract shows that it was so agreed, and the appointment was procured. We have no doubt that this arrangement was made in the supposition that it was not unlawful, but the authorities are uniform that it was illegal and made the contract wholly void. See 15 Am. & Eng. Enc. Law (2d Ed.), 967; Snyder v. Willey, 33 Mich. 483; Lyon v. Waldo, 36 Mich. 353; Mutual Benefit Ass’n v. Hoyt, 46 Mich. 478 (9 N. W. 497). Therefore the verdict cannot be sustained.

The contract being void, the title to the goods did not pass under it. Whether a recovery for their value may be had under the common counts, we do not determine, as the subject is not fully discussed by counsel in their briefs.

We have no doubt that an oral assignment of the claim for these goods would be valid, if it can be said that an implied contract exists to pay for them, and that, if the allegation of assignment is insufficient, it is within the power of the court to permit an amendment.

We think it was competent to show that the money alleged to have been paid over in the garnishment proceedings was still within defendant’s control, if such was the fact.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    NORTHWOOD v. BARBER ASPHALT-PAVING CO.
    Nuisance — Abatement—Contempt.

       Defendant was found guilty of, and was enjoined from, maintaining a nuisance, which consisted in fumes, gases, dust, etc., injurious to the inhabitants in the neighborhood. Under the decree it was commanded to do certain things for the purpose of preventing the nuisance. The decree also forever restrained the defendant from permitting such fumes, etc., to be emitted from its works in such quantities as to materially injure the health of the inhabitants. One of the complainants instituted these proceedings for contempt, claiming that the nuisance had not been abated, but was in fact worse than before. Held:

    1. That it was the duty of the defendant, if the methods provided for in the decree failed to abate the nuisance, to either try other means, or apply to the court for leave to do so, or close its works.
    2. That the defendant could not relieve itself from liability for contempt of court by showing that it had adopted the methods provided in the decree.
    3. That the clause absolutely restraining defendant from maintaining the nuisance must be given effect.
    Appeal from Wayne; Hosmer, J.
    Submitted March 7, 1901.
    Decided April 16, 1901.
    Bill by John Northwood and others against the Barber Asphalt-Paving Company to abate a nuisance. After a decree for complainants, a petition was filed charging a violation of its terms, and defendant was thereupon adjudged to be guilty of contempt, from which order it appeals.
    Affirmed.
    Thirty complainants, residents or property owners in the vicinity of the works of the defendant company, filed a bill July 16, 1898, to enjoin the defendant’s business as a nuisance, injurious to the health, on account of noxious vapors, odors, stenches, dust, and gases emitted from its works. The case was heard before Judge Carpenter, of the Wayne circuit court, and on August 13, 1898, he filed an opinion in which he said:
    “The complainants have suffered much (more, I think, than from the odor) from the dust arising from th6 handling of crushed stone in the defendant’s works. In my judgment, this suffering could have been avoided, had defendant used proper appliances and due care. It is to be hoped that the improvements decided upon by the defendant will abate the dust nuisance. If they do not, additions or changes will be made in the manner hereinafter directed, which will abate it.”
    He then ordered a reference to an expert, Mr. Charles F. Burton, to take proofs, and determine and report the most practicable method of abating the dust nuisance and of diminishing the odor. Mr. Burton topk proofs, made his report, and on February 1, 1900,|a decree was entered declaring defendant’s works, as operated, to be a nuisance, creating offensive and injurious fumes, stenches, gases, and dust, and reciting that it satisfactorily appeared that by the use of certain measures and appliances the defendant could effectually subdue and confine to its own premises the offensive and injurious qualities of such fumes, etc. The decree then states:
    “Therefore it is ordered, adjudged, and decreed that said defendant shall immediately cover the vats in which the asphalt is boiled with a substantial metal cover, and shall cause the steam and other matter arising from the said boiling asphalt to be conducted to and passed through the fires in the furnace of said works, to destroy such fumes, stenches, gases, and dust complained of in the bill of complaint filed in this cause, and shall cover the settling-chamber or dust-collector, to which the bulk of the dust complained of shall be carried and stored, with two or more thicknesses of cloth, so as to prevent the emission of dust as complained of in said bill.
    “It is further ordered that said, defendant company shall be forever restrained from permitting to be emitted from its said works, fumes, stenches, gases, and dust, offensive and injurious as aforesaid, in such quantities as to materially injure the health of said complainants, or either of them, or to in any way interfere with the com¿fortable enjoyment of their homes.”
    On July 18, 1900, one of the complainants presented a petition setting forth no abatement of the nuisance, and charging a willful disobedience of the decree, and asked that the defendant be punished for contempt. The answer is as follows:
    “This defendant, answering, says that it has fully complied with the decree of this court; that it has caused its vats to be covered, and has caused all steam and other matters arising from the melting asphalt to be passed through the fires of a furnace, and has caused the dust-collector to be covered with cloth, as directed in said decree. A more particular description of the work done to insure the carrying out of the terms of said decree, and of the directions given to its employes in relation thereto, are set forth in the exhibits hereto annexed. This defendant in good faith has endeavored to carry out the provisions of said decree. It caused its vats and dust-collectors to be covered as directed, and the vapors and dust ■ to be collected and carried by fans and taken care of as directed; but, the apparatus not proving efficient in practice, this defendant has recently caused the entire apparatus to be reconstructed, at a cost of upwards of $2,000, and this defendant avers that the same is a full compliance with the provisions of said decree. Said apparatus was constructed and put in operation within the present month, and about 10 days before the filing of said petition, and the employés have had, necessarily, to become familiar with its operation, to secure the best results. This defendant avers that it is its intention, if the present apparatus, after a fair trial of its efficiency, should not prove entirely satisfactory in practice, to further improve the same so far as it may be practicable to do so.
    ‘ ‘ This defendant further says that, from the nature of the business, it is not practicable to remove all odors of asphalt. If asphalt paving is to be laid at all in the city, it is essential that the plant be located on or near to the line of a railroad, because the great weight and bulk of the material used, and the great cost of such transportation by wagons for a great distance, make it impracticable to locate the plant at a great distance from a line of railroad ; and, further, that the fact that the material must be laid upon the street while heated to a temperature of upwards of 300 degrees, as well as the great cost of hauling, renders it indispensable that the works be located near to the streets to be paved; that in loading and hauling the heated asphalt from the works to the street being paved, and during the progress of paving, the odors of heated asphalt will necessarily be given off, and there is no practicable means of preventing it; that the wagons engaged in hauling the material to the streets now in course of paving pass near to petitioner’s dwelling, and this defendant believes and avers that any odors which may be smelled by petitioner or his family emanate from the material which is being loaded or while being hauled near to said dwelling, and are not given off during the process of preparation or manufacture. This defendant avers that the odor of asphalt so given off during the loading and hauling is not unhealthful, nor does it produce any said discomfort as gives a right to petitioner to complain.”
    Issue was joined, and a large amount of testimony was •taken before Judge Hosmer, who, by the consent of the parties, visited the defendant’s works and saw them in operation. He found the defendant guilty, and imposed a fine of $150. After referring to his examination of the works and to the testimony, and stating that the fumes «re not noxious to him, his opinion proceeds:
    “Under these circumstances, I cannot but find that the defendant company has been guilty of the violation of the injunction. A finding of this character, I think, probably will preclude any annoyance in the future. Of course, there is no one before ■ the court except the defendant itself, which is a corporation; but, if there was a subsequent violation, the officers of the corporation might be easily joined, or those in charge of the building, in an application for contempt proceedings. As it is now, in view of the fact that the repairs or the alterations were made under the express direction of the court, I cannot but believe there is a certain element of good faith about it; but at the same time I have no doubt that it did continue with the operation of the works after it must have become apparent to them that there was a violation of the injunction. ”

      John H. Powell, for petitioner.

      John J. Speed and Robert T. Speed, for respondent.

      Head-notes by Grant, J.

   Grant, J.

(after stating the facts). It is evident from reading the opinion of Judge Carpenter that in entering this decree he followed the case of Ballentine v. Webb, 84 Mich. 38 (47 N. W. 485, 13 L. R. A. 321), and made a reference to ascertain what could be done to prevent the escape of the dust and the noxious vapors. He recognized the business of the defendant as a legitimate one, which could not be restrained by the injunction of the court until all proper means had been tried to prevent the escape of dust, noxious vapors, etc. Upon the filing of the report he decreed certain specific things to be done, and to this added the general clause. It is a fair inference from Judge Hosmer’s opinion that he finds that defendant complied with this order, as to the preventives directed by the court, but that they failed to accomplish the object; that this failure was known to the defendant, and yet it continued the nuisance. The result of Judge Hosmer’s findings is either that the defendant can, by proper precautions, avoid the dust and fumes which are injurious, or that it must and will close its works entirely, for he states that his finding “ probably will preclude any annoyance in the future.” . In what manner it will preclude the annoyance does not' clearly appear. The testimony on the part of the complainants is that the dust and vapors are .worse than they were before the original decree was entered, and the devices and means therein provided carried out. If this be so, and their testimony as to the effect upon the inhabitants is true, and no means can be devised to prevent it, clearly the defendant’s business should be enjoined in toto. The case would then clearly fall within Robinson v. Baugh, 31 Mich. 290; McMorran v. Fitzgerald, 106 Mich. 649 (64 N. W. 569, 58 Am. St. Rep. 511); and People v. Detroit White Lead Works, 82 Mich. 471 (46 N. W. 735).

It is the contention of the defendant that the specific precautions decreed to be taken by it control; that it complied with those precautions, and, if they failed to produce the desired result, it cannot be held guilty of contempt for proceeding to carry on its business contrary to the general clause of the decree; and that complainants must proceed against it by filing a supplemental petition in the original case. Its counsel claim that these particular provisions control the general language of the decree, invoking the rule that is applied in the construction of statutes, and citing End. Interp. Stat. §§ 399, 295. It is also urged that we should look to the opinion of Judge Carpenter; citing Third Reformed Dutch Church v. Fox, 12 Phila. 296.

None of the issues in the original case can be retried in this proceeding. They are res adjudicate/,. The decree prescribed certain things to be done, which, in the opinion of the court, might effect a remedy. The court, however, saw fit to add a clause in unmistakable language prohibiting the carrying on of the business to the injury of the health of the complainants, or to the interference with the comfortable enjoyment of their homes. The plain purpose of this clause was to prohibit the business unless the injurious effects upon the complainants and their families could be obviated by the use of the means proposed, or by other means. The defendant, under the finding of the court, found these specific provisions a failure, and yet- the defendant continued to carry on its business in a manner which it knew was in violation of the injunction. 5 The complainants in the chancery suit were not required to investigate the defendant’s plant, determine what it had done, and virtually commence another proceeding. The facts were peculiarly within the knowledge of the defendant. Complainants could only be expected to know that the nuisance continued, and had the right to proceed upon the theory that its continuance was in violation of the decree. When the defendant ascertained that these provisions were ineffectual, it could have tried other means without any violation of the injunction; or it could have applied to the court for leave to provide other means, if it was advised that it could not proceed without the direction of the court. Its answer shows that it was contemplating other means if j_the ones adopted should prove ineffectual.

Under the findings of the court, we think that the order adjudging the defendant guilty of contempt should be sustained, and it is affirmed, with costs.

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


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    KUNZE v. SOLOMON
    Quieting Title — Pleading—Amendment.

       Complainant filed a bill to remove a cloud from his title, consisting of a deed made to defendant upon an execution sale. Upon the hearing complainant was permitted to amend his bill by alleging that defendant had taken no steps to determine the rights and equities of the judgment debtor, under section 9167, 3 Comp. Laws 1897. Held:

    1. That the amendment did not introduce a new cause of action, but an additional reason for the same cause of action.
    2. The failure by a judgment creditor to proceed under section 9167 is fatal to his case.
    3. Held, under the circumstances of the case, that defendant be given 20 days within which to file in this court a certified copy of such proceedings, if any were taken.
    Appeal from Iosco; Simpson, J.
    Submitted March 8, 1901.
    Decided April 16, 1901.
    Bill by Emil E. Kunze against Anna Solomon to remove a cloud from title. From a decree for complainant, defendant appeals.
    Modified.

      In August, 1893, the executors of the will of William E. Dodge and one Merrick executed a land contract by which they agreed to sell to Merrick the land in question. Merrick failed to make the payments, and on September 15, 1894, assigned his contract to complainant. In 1894 the Dodge estate executed a deed of the land to complainant, reciting that it was subject to the Merrick contract. Complainant afterwards paid the amount due, and received the deed. On December 37, 1893, one Solomon, having a judgment against Merrick, caused an execution to be issued and levy made upon the land. Nothing was done under the execution except to levy, and it was lost. December 31, 1895, an alias execution was issued, levy made, and on October 31, 189G, the land sold at" execution sale to the defendant, and on February 8, 1898, a sheriff’s deed was duly executed and recorded. Complainant, claiming that this deed was a cloud upon his title, tendered to the defendant a deed for execution, which she declined to execute, and thereupon this bill was filed to remove the cloud. The bill sets forth the complainant’s title, the forfeiture of the contract by the Dodge estate, the purchase by complainant, and the proceedings in the execution sale, and the deed thereunder; alleges that those proceedings were void for certain reasons; and prays for the removal of the cloud.
    The defendant answered, claiming the validity of the execution, and alleging that complainant’s title was subject to defendant’s levy, which was then a matter of record. Testimony was taken in open court, and at the •commencement of the proofs counsel for the complainant raised the point that defendant had taken no steps to determine the rights and equities of the judgment debtor, under section 9167, 3 Comp. Laws 1897. This point was insisted upon throughout the hearing. After the closing of proofs the court ruled that this point could not be maintained by the complainant without an amendment to the bill, and allowed time for such amendment. Subse quently, upon a petition duly filed, the amendment was allowed, and decree entered for the complainant.

      Albert E. Sharpe, for complainant.

      N. C. Hartingh (Main J. Connine, of counsel), for defendant.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). It is urged that the amendment introduced a new cause of action, and was not permissible under tbe rules of pleading. We think otherwise. The amendment permitted the statement of an additional reason against the validity of defendant’s deed, and for its annulment as a cloud upon complainant’s title. It introduced no new cause of action. 1 Enc. Pl. & Prac. 468, 485; Church v. Holcomb, 45 Mich. 29 (7 N. W. 167); Smith v. Sherman, 52 Mich. 637 (18 N. W. 394); Dodson v. McKelvey, 93 Mich. 263 (53 N. W. 517).

The failure to proceed under section 9167 would be-fatal to the defendant’s case. Edsell v. Nevins, 80 Mich. 146 (44 N. W. 1115), and authorities there cited. See, also, Jenison v. Rankin, 57 Mich. 49 (23 N. W. 482).

Upon overruling defendant’s objection to the amendment, her counsel asked leave to file an amended answer, and for permission to take further proofs in respect to the new matter brought into the case by the amendment. This was denied. Neither during the progress of the-hearing nor at the time the amendment was allowed did counsel for the defendant claim that she had taken proceedings under the statute. If they, had done so, the-court would, as a matter of course, have allowed an amended answer, or would have permitted the evidence without an answer. Such proceedings, if taken, were a matter of record in the same court in which the case was being heard. We may justly infer that no such proceedings were had. Possibly, however, counsel may have rested upon the belief that the burden of proof was upon the complainant. It would certainly have been wise for-complainant to assume it. Counsel for either side might have avoided this question by introducing the proof, which was easily within the reach of either. In order, however, that no wrong may be done, the defendant will be allowed 20 days from the service upon her counsel of a ■copy of this opinion within which to file in this court a certified copy of such proceedings, if taken, in default of which the decree will be affirmed,- with costs. If filed within that time, the decree will be reversed, with costs.

The other Justices concurred.