text:
    POLLOCK v. GERMAN FIRE-INSURANCE CO.
    1. Foreign Corporations — Regulation oe Business oe Fire-Insurance Companies.
    An insurance corporation organized in another State can only be admitted to do business in this State upon such terms as this State may see fit to impose.
    2. Same — Constitutional Privileges.
    The imposition of terms upon an insurance company of another State not imposed upon insurance companies organized in this State does not violate the fourteenth amendment to the Constitution of the United States.
    3. Same.
    2 Comp. Laws, § 7246, does not violate the fourteenth amendment to the Constitution of the United States, in imposing conditions upon insurance companies of other States not imposed upon insurance companies of this State; the courts of this State having adopted the same rule in regard to domestic corporations.
    Error to Wayne; Hosmer, J.
    Submitted January 7, 1903.
    (Docket No. 8.)
    Decided February 3, 1903.

      Assumpsit by Henry B. Pollock, Charles A. Pettihone, and William H. Chapman, copartners as Pollock, Pettibone & Chapman, against the German Fire-Insurance Company of Pittsburg, Pennsylvania, on a policy of insurance. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Affirmed.

      Tarsney & Fitzpatrick, for appellant.

      Fred H. Warren, for appellees.
   Grant, J.

For a statement of this case, see 127 Mich. 460 (86 N. W. 1017).

Upon the second trial the court below directed a verdict for the plaintiffs. The facts in this record are identical with those upon the former record, except in one particular. Upon the second trial two witnesses, clerks in the office of Mr. Gaukler, testified that they received no communication from Bierce & Sage by telephone notifying him that plaintiffs were moving, and desired to have their policy transferred. These two witnesses were the only two lady clerks in Gaukler’s employ at the time. Mr. Sage testified that he called up Gaukler’s office by telephone ; that a lady answered the call, and he gave her the information. It appears from the testimony that telephonic communications with Mr. Gaukler’s office upon the subject of insurance were almost daily; that a book was kept, in which to record these requests or orders; and that no order or request appeared upon the book. Mr. Sage’s testimony is positive that he did have a conversation with a clerk in Mr. Gaukler’s office, and gave her the information. It is not improbable, notwithstanding the positive testimony of these two witnesses, that Mr. Sage did communicate the request to one of them. Their testimony is based to a great extent upon the fact that they were accustomed to enter such requests upon the record book, and that no such entry was found. But this question becomes immaterial, in view of the decision at the former hearing. We there held' distinctly that Bierce & Sage were the agents of the defendant. There is nothing in this case' to change the facts upon which that opinion was based. It has, therefore, become the law of the case.

The only new question presented is, in the language of defendant’s counsel:

‘ ‘ If the effect of the statute in this case is to make Bierce & Sage the agents of the defendant, and to conclude the defendant by their acts, then it violates the fourteenth amendment of the Constitution of the United States, and is void, * * * because it singles out foreign fire and inland navigation insurance companies, and imposes upon them in the conduct of their business legitimate terms, conditions, restrictions, and limitations that are not imposed upon domestic companies transacting like business in this State, or upon other foreign companies.”

The clause of the statute referred to reads as follows:

“The term ‘agent’ or ‘agents,’ used in this section, shall include any acknowledged agent, surveyor, broker, or any other person or persons who shall in any manner aid in transacting the insurance business of any insurance company not incorporated by the laws of this State.” 2 Comp. Laws, § 7246.

This contention cannot prevail. “The corporation, being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created.” Paul v. Virginia, 8 Wall. 168, 181. “It [the corporation] must dwell in the place of its creation, and cannot migrate to another sovereignty.” Bank of Augusta v. Earle, 13 Pet. 588. It follows, and such is the universal current of authority, that corporations can only be admitted to do business in other States than those where created upon such terms as those States may see fit to impose. Usually no such conditions are imposed upon home corporations. Philadelphia Fire Ass’n v. New York, 119 U. S. 110 (7 Sup. Ct. 108); Crutcher v. Kentucky, 141 U. S. 59 (11 Sup. Ct. 851); New York Life Ins. Co. v. Cravens, 178 U. S. 395 (20 Sup. Ct. 962); Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U. S. 181 (8 Sup. Ct. 737); Home Ins. Co. v. Davis, 29 Mich. 240; Hartford Fire Ins. Co. v. Raymond, 70 Mich. 501 (38 N. W. 474); First Nat. Bank of Detroit v. Burch, 80 Mich. 247 (45 N. W. 93); Moline Plow Co. v. Wilkinson, 105 Mich. 57 (62 N. W. 1119). The statute does no more than to provide who shall be the agent or agents of these foreign insurance corporations doing business within this State. Aside from this, however, we think the objection is not valid because the courts of this State have virtually adopted the same rule in regard to domestic corporations. McGraw v. Insurance Co., 54 Mich. 145 (19 N. W. 927).

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    LOWRY v. PAW PAW SAVINGS BANK.
    1. Chancery Appeal — Findings oe Court.
    In a chancery case, where the question is a doubtful one, the Supreme Court will give great weight to the findings of the circuit court on questions of fact, but will examine the case de novo, and, if satisfied that a different conclusion should have been reached, will reverse the decree.
    . 2. Collateral Security — Discharge oe Mortgage — Accounting.
    Complainant assigned a mortgage to a bank as collateral security for a loan of less than the amount of the mortgage. The bank foreclosed the mortgage, which it afterwards discharged upon receipt of only the amount due it on the loan. Held, that the evidence showed that the mortgage was discharged at the request of complainant, and that a bill for an accounting for the difference between the amount of the loan and the mortgage could not be maintained against the bank.
    Appeal from'Van Burén; Yaple, J., presiding.
    Submitted January 13, 1903.
    (Docket No. 27.)
    Decided February 3, 1903.
    Bill by George Lowry against the Paw Paw Savings Bank for an accounting. From a decree for complainant, defendant appeals.
    Reversed.

      Thomas J. Cavanaugh, for complainant.

      A. Lynn Free and Lincoln H. Titus, for defendant.
   Moore, J.

This is a bill to compel an accounting. From a decree granting the prayer of the bill, defendant has appealed.

This bill was filed the latter part of March, 1900. The record discloses that on January 15, 1887, complainant borrowed of defendant $100, giving his note therefor, and assigned to said bank, as collateral security, a mortgage dated September 27, 1886, for $400, due in five years, given by James Lowry and wife to George Lowry. This assignment was put upon record in the office of the register of deeds. The complainant did not pay his debt when it became due, and the assigned mortgage was foreclosed by advertisement, and the land mentioned therein was sold to Mr. Free, the cashier of the bank; the sheriff’s deed running to John W. Free, trustee. It was dated May 28, 1888, and was duly recorded. This sale was redeemed from January 2, 1889. The bank was paid the amount due it from complainant, and on the same day Mr. Free, as cashier, executed a, marginal discharge of the mortgage in the office of the register of deeds. An entry was also made on the margin of the record of the sheriff’s deed that the land had been redeemed and the deed destroyed. On the 15th day of January, 1895, Mr. Free wrote on the margin of the record of the assignment that he, as cashier, had received payment of the debt secured by the assignment, and on the margin of the record of the mortgage that it was through an error the previous marginal entry of a discharge of the mortgage was made.

As early as January, 1889, James and Elizabeth Lowry sold the land described in the mortgage to Alvin and Theckla Bennett; making no mention in the deed of the mortgage given to George Lowry. In August, 1897, George Lowry filed a bill in chancery to foreclose the mortgage of September 27, 1886; making, among others, Mr. Bennett defendant. He obtained a decree in his favor in the court below, but in this court (Lowry v. Bennett, 119 Mich. 301 [77 N. W. 935]) Mr. Bennett prevailed. A reading of that case will aid somewhat in understanding this one. The opinion in that case was handed down in January, 1899, and this case for an accounting was commenced, as before stated, in March, 1900. It is complainant’s claim that Mr. Breck, acting for the bank, commenced the foreclosure proceedings that resulted in á sale of the premises to Mr. Free as trustee; that his brother James paid the money which redeemed from this sale; .that Mr. Free had no right to discharge the mortgage, but should have discharged the assignment of the mortgage ; that complainant had no knowledge this discharge had been made until long afterwards, and was unable to recover the note he had given for the debt of $100, and the papers he assigned as collateral security, until at or about the time of the death of Mr. Breck, who died December 11, 1894; that James Lowry and his wife are insolvent; that, as this court has held Mr. Bennett obtained the land free from this mortgage, the bank should be held to account to him for the amount of said mortgage and interest, the same as though it had been paid to the bank.

It is the claim of the bank that Mr. Breck, though a director of the bank, was acting for complainant in making this loan; that, when the redemption was made, the bank received only what was due it on the $100 loan and interest; that the money was paid to the bank either by the complainant, or by Mr. Breck in his presence, and at the same time the $100 note and the other papers were delivered to the complainant, and that it was at the request of the complainant the mortgage was discharged; that this was done because it had been paid; that the later entries were made in the office of the register of deeds at the request of the complainant, who claimed the previous entries had been made by mistake; and that complainant made no claim until shortly before this suit was brought that the bank had done anything for which he had a cause of action against it.

The record shows that James Lowry died in 1889. Mr. Richardson, who examined the records when Mr. Bennett obtained his deed of the premises, died in December, 1896. Mr. Bennett died in June, 1899. The record salso shows that in July, 1886, George Lowry and his wife gave to Alvin Bennett and Theckla A. Bennett a mortgage for $700, which mortgage was foreclosed, and the land described therein sold, and redeemed by the payment of $767 on the 29th of March, 1889.

A great many interesting questions are argued by counsel to meet the varying phases of the case. Each party claims that, upon the question of fact, the court should find with it. It is also claimed by the complainant that the bank is Mr. Lowry’s trustee, and the statute of limitations would not begin to run until the bank repudiated the trust by refusing to account to him. It is the claim of the defendant that the trust ended, and the statute of limitations began to run, when the mortgage was discharged, in 1889, and that, in any event, it began to run when Mr. Lowry obtained the papers, as early as the fall of 1893, from Mr. Breck, and, as this suit was not commenced until March, 1900, it was commenced too late.

It is not necessary to pass upon all these questions. In a chancery case, where the question is a doubtful one, this court will give great weight to the finding of the lower court upon questions of fact, where the witnesses are examined in open court; but nevertheless this court must examine the case de novo, and, where it is satisfied the complainant has failed to make a case, it is the duty of this court to dismiss the bill of complaint. The court is of the opinion the complainant has not established his case. His own testimony is contradictory. In the bill of complaint he filed against Mr. Bennett, probably to excuse his laches in commencing the suit, he swore he was unable to secure the papers from Mr. Breck or the bank until after the death of Mr. Breck. Upon the trial of this case he swore he obtained them from Mr. Breck, probably the year before his death. In the former bill he swore:

“Your orator further shows that afterwards, and on or about the 2d day of January, 1889, he caused the said §100 and all interest thereon to he paid to said Paw Paw Savings Bank, and then and there requested the said Paw Paw Savings Bank to discharge the assignment o'f the mortgage; but, notwithstanding said request, the said John W. Free, cashier of said Paw Paw Savings Bank, caused to be entered upon the records of said mortgage in the register’s office for Yan Burén county the words and figures following, viz.:
“‘ In consideration of the full payment of all moneys secured to he paid, I hereby discharge the same of record, as cashier of the Paw Paw Savings Bank.
“ ‘ January 2, 1889.
“ ‘John W. Free,
“ ‘Cashier of Paw Paw,Savings Bank.
“ ‘In presence of
“ ‘ J. D. Monroe,
“ ‘Register.”’

In 'this case he testified that he did not pay the money to the bank, and was not present when it was paid, and did not request Mr. Free to go. to the register’s office at that time, but that all that business was attended to by James Lowry, and that he did not get the papers he had assigned to the bank until as above stated.

Mr. Lowry was not a wealthy man. As before shown, in July, 1886, he gave a mortgage for $700, which was foreclosed, and which he redeemed in March, 1889. In 1887 he was a borrower from the bank. He was not able to pay, or at least he did not pay, this debt when it matured. It was not until after the mortgage he had assigned as collateral security had been foreclosed that this debt was paid. If at this time he still had an outstanding interest of three or four hundred dollars in the mortgage his brother gave him, he would have insisted, when his debt to the bank was paid, on the mortgage being delivered to him. His brother James died in 18,89. The mortgage he had given to George became due in September, 1891, though it had a provision giving James the right to pay $100 or' more at the end of any year after two years from its date. According to the testimony of the complainant, this mortgage was upon property worth ten or twelve hundred dollars, and James died insolvent; and yet complainant took no steps to collect this mortgage until in 1897. It appears from the testimony of complainant that in the other case Mr. Bennett testified that George Lowry was present when Mr. Bennett had Mr. Richardson examine the title, at the time he bought the land from James, and pronounced the land free from incumbrances, and then made no claim he had a mortgage upon the land. This testimony was disputed by complainant. There is no claim the bank had any interest in this mortgage, except to the amount of $100 and the interest, or that it received anything else. It had no reason for making any discharge, except such a one as would be proper under the then situation. The cashier testified that, when the bank was paid its money, the note and other papers were delivered over to the complainant, and the mortgage was, at his request, discharged. This discharge was made January 2, 1889, and on the 30th of the same month James Lowry and his wife conveyed the ' premises by warranty deed to Mr. Bennett. It is improbable they would have done this if their mortgage to George was yet unpaid. It is-not until six years later that any claim is made to the bank that a mistake was made, and the mortgage was discharged when only an assignment of the mortgage should have been discharged. The record evidence in the case, and the acts of the parties cognizant of the facts at the time they occurred, are consistent with the claim of the cashier, and inconsistent with the claim of complainant.

The decree of the court below is reversed, and one will be entered here dismissing the bill of complaint, with costs of both courts.

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


author: Grant, J.

text:
    MILLER v. McLAUGHLIN.
    Mortgages — Foreclosure—Multieariousness—Parties.
    A bill to foreclose a mortgage is not multifarious for making former owners of the mortgage, who have guaranteed payment of the principal and interest of the mortgage debt, and also conveyed certain other lands to secure such payment, parties defendant, together with persons who have given or held additional security and subsequent mortgagees and grantees, where one and the same debt is secured by the original mortgage and all subsequent agreements.
    Appeal from Wayne; Hosmer, J.
    Submitted January 13, 1903.
    (Docket No. 29.)
    Decided February 3, 1903.
    Bill by Sidney T. Miller, trustee, against Joseph R. McLaughlin, Robert J. McLaughlin, Collins B. Hubbard, Anna Georgina Hubbard, George Dingwall, and others, to foreclose certain mortgage securities. From an order overruling demurrers to the bill, defendants Hubbard and Dingwall appeal.
    Affirmed.
    This is a suit to foreclose certain mortgage securities. The bill is long, and sets forth in full the various instruments which are the subject of controversy. The following brief statement, however, is sufficient to an understanding of the question raised by the defendants:
    1. A note and mortgage in 1893 were made by the defendants McLaughlin, together with two others (Ye-mans and Owen), to Margaret Woodbridge. Yemans parted with his interest in the land, and died some time afterwards, and Owen died, leaving a widow, now defendant Louise M. Jebb. The debt was originally for $121,115, but had been reduced to about $118,000 before the mortgagee transferred it.
    2. Margaret Woodbridge sold the note and mortgage to Collins B. Hubbard and George Dingwall July 24, 1895. A day later they, in turn, sold to George L. Beecher and Luther S. Trowbridge, administrators, etc., and at the time of sale gave a written guaranty of the payment of both principal and interest. This guaranty runs from Hubbard and Dingwall to Beecher and Trowbridge and their assigns. Margaret Woodbridge, as further security, and at the same time, conveyed by warranty deed to the Union Trust Company of Detroit certain lands set forth in the declaration of trust made by the said Margaret.
    3. Contemporaneously with the guaranty, and as a security for its fulfillment, a deed was given Beecher by Hubbard and wife and Dingwall and wife of certain lands in Detroit, and Beecher gave back a memorandum stating that the lands were held by him as security for the debt and for the performance of the guaranty agreement.
    4. Edmund J. Owen, one of the original mortgagors, died, and the entire debt was proved against his estate. On December 1, 1896, an arrangement was made between Beecher and Trowbridge, on the one side, and all of the parties liable on the debt, on the other side, by which the claim against the estate was withdrawn, and Mrs. Owen and John Y. Moran, who had bought an interest in the land, became personally liable for the debt, and all existing agreements were continued in force. Hubbard and Dingwall were parties to the agreement.
    5. On September 9, 1898, the complainant in this suit bought the chain of security, and another agreement was executed, which Hubbard and Dingwall signed. This agreement transferred the guaranty and security from Beecher to complainant, and preserved in force all securities, so far as here concerned.
    Mrs. Dingwall died before foreclosure.
    To the bill asking the foreclosure of this debt and relief against the various debtors, the defendants Hubbard and wife and Dingwall interposed demurrers for multifariousness, claiming they were interested only in the land described in the instruments referred to in paragraph 3 of this statement. Decree was entered overruling the demurrers.

      Miller, Smith, Alexander & Paddock, for complainant.

      Earl D. Babst (Willis• G. Clarke, of counsel), for appellants.
   Grant, J.

(after stating the facts). One and the same debt is secured by the original mortgage and all the subsequent agreements and deeds set up in the bill of complaint. They are interwoven with each other, and the last agreement made recited them all, and preserves them all in force. All these agreements relate to, and all parties are interested in, the same subject-matter, — some as guarantors, some as having given additional security, and some as subsequent mortgagees or grantees. Besides, Hubbard and Dingwall, by their agreement of July 25th with Beecher and Trowbridge, were personally liable for the debt under their guaranty, and in it had provided for a foreclosure of the mortgage deed given by them to Beecher. We think the case is ruled by Torrent v. Hamilton, 95 Mich. 162 (54 N. W. 634), and authorities there cited, and Michigan State Bank v. Trowbridge, 92 Mich. 217 (52 N. W. 632). It is also clearly within the statute (1 Comp. Laws, § 519), which is quoted in full in Michigan State Bank v. Trowbridge, 92 Mich. 222 (52 N. W. 633). The case of Hart v. McKeen, Walk. Ch. 417, has no application. In that case there were three distinct debts, three distinct mortgages, and three distinct mortgagees. So, for the same reason, Eastern Building & Loan Ass’n v. Denton, 13 C. C. A. 44, 65 Fed. 569, does not apply. There two mortgages were given to the same person to secure different loans on separate lots. Subsequently the mortgagor deeded the two lots to different persons.

The decree is affirmed, with costs,, and the case remanded for further proceedings.

The other Justices concurred.


author: Montgomery, J.

text:
    RICK v. SAGINAW BAY TOWING CO.
    1. Negligent Injury — Interstate Law — Master and Servant.
    The liability of a master to his servant for a negligent personal injury is governed by the law of the place of the injury.
    2. Same — Fellow-Servants—Canadian Statute.
    A Canadian statute making an employer liable for an inj ury to a workman caused by the negligence of a servant who has any superintendence intrusted to him, or to whose directions the workman was bound to conform, is not contrary to the public policy of this State, and will be applied in a cage where the injury occurred in Canadian territory.
    3. Same — Duties oe Mate oe Vessel.
    The owner of a vessel cannot escape liability for an injury to a servant on the ground that the mate gave general directions, and the injury resulted from the misuse by a fellow-servant of the material provided, where there is evidence that it is the duty of the mate to attend to any work he orders done, and to see that it is done himself, and that he is hired for that purpose.
    4. Negligence — Death by Drowning — Question eor Jury.
    Where a plank staging let down over the side of a vessel was held by a rope in such a manner as to allow- it to tip, whereby a seaman fell into the water and was drowned, when the customary manner of fastening the rope would not permit it to tip, the question of negligence should be submitted to the jury.
    5. Same — Contributory Negligence.
    Where a seaman, whose death was occasioned by the tipping of a plank swung by ropes at the side of the vessel, could only have known how the ropes were fastened by a minute and careful examination, it was error to direct a verdict for the defendant on the ground that he was guilty of contributory negligence in descending to the staging to do the work he was ordered to do.
    Error to Bay; Shepard, J.
    Submitted October 15, 1902.
    (Docket No. 55.)
    Decided February 16, 1903.

      Case by Elizabeth Rick, administratrix of the estate of Ferdinand Rick, deceased,,against the Saginaw Bay Towing Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Crane & Crane and JR. A. McKay, for appellant.

      Simonson, Grillett & Clark, for appellee.
   Montgomery, J.

This action, which was based upon the Canadian statute hereinafter referred to, is brought to recover damages resulting from causing the death of plaintiff’s intestate by negligence. The decedent was in the employ of the defendant as a wheelsman on board its tug Charleton. The declaration charges that one Brown was acting as mate of the Charleton at the time of the accident, and that Brown ordered the crew,- consisting of the deck hands and decedent, who was wheelsman, to throw over the staging and scrape the outside of the tug. The staging or scaffold upon which this work was to be performed consisted of a plank 14 or 15 feet long, 12 to 16 inches wide, with cleats near either end, 5 feet long, nailed to the plank at right angles, so that on either side there was an extension of nearly 2 feet, and the staging, when suspended, would be by these cleats held away from the side of the tug. When the order to scrape down the side of the boat had been given, the testimony tends to show, the decedent went to get a pail or pails, and other members of the crew, including one Crow, swung the staging over. When decedent returned, they were putting the staging over. There was testimony tending to show that the customary way was to use two lines for this purpose. On the occasion in question but a single line was used, with a loop at either end, into which the end of the plank was inserted. The result was that, when swung, there was nothing to prevent the plank or platform from tipping, and there was testimony from which the inference could be drawn by the jury that it was because of the tipping of the plank that the decedent was thrown into the water and drowned. At the close of the plaintiff’s case the circuit judge directed a verdict for the defendant, apparently upon the two grounds: That the decedent was a fellow-servant of the one responsible for the swinging of the staging (and whether he deemed' responsibility to rest upon the mate, Brown, or upon Crow, is not quite apparent from the record), and also upon the ground of contributory negligence. Upon this ruling the plaintiff assigns error. '

A large number of interesting questions are presented in the brief of the learned counsel for the defendant. The question of first importance — the one which meets us at the threshold of the case-^-is whether the Canadian statute upon which the plaintiff relies is to be enforced in its entirety in this State. This statute dispenses with the immunity of the employer from liability for the negligence of a fellow-servant when personal injury is caused to a workman “by reason of the negligence of any person in the service of the employer who has any superintendence intrusted to him whilst in the exercise of such superintendence, or by reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform and did conform, where such injury resulted from his having so conformed.” 1 Rev. Stat. Ont. 1897, chap. 160, § 3, subds. 2, 3. It is the contention of the defendant that, while the courts have frequently stated the rule that cases of personal injury are governed by the law of the place of the injury, this rule is subject to the qualification thát the foreign statute, which, under the doctrine of comity, is to be enforced in this State, must not be against the public policy of the State, and that the phrase “public policy” has not the same meaning as in criminal jurisprudence, and that the public policy of the State of the forum depends merely upon whether the right conferred in the State where the injury took place is similar to the right conferred under like circumstances in the State where the action is brought. Authorities may be found.which, perhaps, will sustain this contention in its entirety; but the tendency of the modern decisions is to hold that, before the court of any State is justified in refusing to enforce a right of action accruing under the laws of any other State or country, it must appear that such right is against good morals or natural justice, or that for some other reason an enforcement of it would be prejudicial to the general interest of the citizens of the State of the forum, and that it does not follow that, because the statute differs from the law of the forum, it is contrary to the public policy of the State, within the meaning of this rule. See 22 Am. & Eng. Enc. Law (2d Ed.), 1379, 1380; Rorer, Interst. Law (2d. Ed.), p. 217 et seq.; Dennick v. Railway Co., 103 U. S. 11; Hanna v. Railway Co., 41 Ill. App. 116. For an able and learned opinion, reviewing the authorities, see Herrick v. Railway Co., 31 Minn. 11 (16 N. W. 413, 47 Am. Rep. 771).

Defendant’s .counsel cite and rely upon the case of Bettys v. Railway Co., 37 Wis. 323, which was decided in connection with Anderson v. Railway Co., 37 Wis. 321. The court in Herrick v. Railway Go. refuse to follow the latter case, and point out, we think very clearly, that by the weight of modern authority the rule contended for by the plaintiff in this case is the prevailing rule. We hold, therefore, that the plaintiff’s rights are to be determined by the law of Canada. See Wingert v. Wayne Circuit Judge, 101 Mich. 395 (59 N. W. 662); Turner v. St. Clair Tunnel Co., 111 Mich. 578 (70 N. W. 146, 36 L. R. A. 134, 66 Am. St. Rep. 397). We do not overlook the contention of the defendant that this action is a penal action. We do not so regard it, and think the contention sufficiently answered by the reasoning of the court in Huntington v. Attrill, 146 U. S. 657 (13 Sup. Ct. 224).

Was there negligence on the part of the mate in directing the work of swinging this scaffold, and in permitting it to be done in the manner in which it was ? Defendant contends that there was not; that he might give general directions, and if there was material with which the work could be done at hand and on the boat, as the evidence tends to show was the case here, he would not be liable for the misuse by the fellow-serVants of the deceased of the material which he had supplied. Rawley v. Colliau, 90 Mich. 31 (51 N. W. 350); Erickson v. Mining Co., 130 Mich. 476 (90 N. W. 291). There would be force in this contention but for the fact that there is testimony by the witness Bridge, who was a sailor on the tug Howard, to which the Charle ton was fastened at the time of the accident, and who had himself been a mate on schooners, and was familiar with the duties, to the effect that it is rulable for the mate to attend to any work which he orders done, and to see that it is done, and to oversee the work himself; that that is what a mate is hired for. We think this testimony sufficient to raise a question for the jury as to whether a neglect of duty on the part of the mate was a cause of the injury.

The testimony that the staging was not properly swung is, to our minds, very clear. If two lines had been employed, one at either end of the staging, as is customary, or if a single line had been employed, and had been drawn around the cleat at either end, it would have been impossible for the plank to tip up, and the injury would not have happened, so that there was negligence in swinging the plank in the manner in which it was swung is hardly open to dispute; at least, it opened a fair question for the jury.

But the defendant contends that the decedent assumed the risk, as, it is said, the manner in which this staging was swung was open to his observation. It is true that, by a minute inspection, he could have known that the rope was not fastened around the cleats; but it would have taken a somewhat careful investigation to show this, standing upon the deck as the staging was swung.' In our opinion, it was not a case in which the court should have withdrawn from the jury the question of whether the decedent was negligent in descending to this staging to do the work which he had been ordered to do.

We think the views expressed furnish sufficient guidance for a retrial of the case, and direct that the judgment be reversed, and a new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred.


text:
    MAHAN v. MICHIGAN TELEPHONE CO.
    1. Telephone Companies —Municipal Corporations —Ordinances.
    Although, a telephone company has a right to maintain a telephone exchange in a city under reasonable rules and regulations made by the city, yet it may, by accepting an ordinance, enter into contractual relations with the city, and be
    • bound to perform the terms and conditions of the ordinance.
    2. Same — Assignee—Rates.
    Where a telephone company accepts a franchise containing a provision that its terms and conditions shall be binding upon any assignee, and that the assignee shall operate its lines under the ordinance, a competing telephone company which purchases all its tangible property, including the rights under the franchise, will be bound to furnish service to subscribers of the selling company at the rates fixed by the ordinance.
    3. Same — Mandamus.

      Mandamus is a proper remedy to compel a telephone company to furnish a subscriber connections through its exchange.

      Certiorari to Wayne; Brooke, Frazer, Carpenter, Hosmer, and Rohnert, JJ.
    Submitted June 17, 1902.
    (Docket No. 41.)
    Decided February 17, 1903.

      Mandamus by John Mahan to compel the Michigan Telephone Company and the Detroit Telephone Company to furnish service to. relator. From an order granting the writ, respondents bring certiorari.

    Affirmed.

      James H. Pound, for relator.

      W. E. Thompson (Wells, Angelí, Boynton & McMillan and D. F. Morgan, of counsel), for respondents.
   Montgomery, J.

The opinion of the circuit judges, prepared by Judge Brooke, states the issue and discusses the points involved in this case so clearly that we quote it at length:

“This is a petition by the relator against the respondent the Michigan Telephone Company for a writ of mandamus to compel said respondent to give petitioner access to the subscribers to the telephone system owned and operated by the Michigan Telephone Company in the city of Detroit. The facts of the case may be briefly stated as follows: For some years prior to the 14th day of March, 1896, the respondent the Michigan Telephone Company had owned and operated in the city of Detroit a telephone exchange. Upon the said 14th day of March, 1896, the respondent the Detroit Telephone Company secured a franchise from the city of Detroit, and said franchise was on said date accepted by said respondent the Detroit Telephone Company. Under said franchise the respondent the Detroit Telephone Company proceeded to install a telephone exchange in the city of Detroit, and secured-, from time to time, subscribers, so that, at the time the contract was entered into with the relator by the respondent the Detroit Telephone Company, there were upwards of 5,000 subscribers to said system. The petitioner, Mahan, had a contract with the respondent the Detroit Telephone Company, running for a period of five years, and bearing-date the 25th day of August, 1899, which had not expired, by about two years, at the time the acts complained of were committed by the respondents.
“On the 6th of April, 1900, the respondent the Detroit Telephone Company executed a bill of sale whereby, for a valuable consideration, it transferred to the respondent the Michigan Telephone Company all of its tangible property, including some 5,200 telephones, and also including all rights under said franchise from the city of Detroit of March 14, 1890. Soon thereafter the purchasing company, the Michigan Telephone Company, caused the two exchanges to be connected; and fro'm that time up to the 1st day of December, 1901, subscribers to either system were given access,' not alone to the system to which they subscribed, but to all subscribers of the other system. On or about the 1st day of December, 1901, the Michigan Telephone Company notified all subscribers to the Detroit Telephone Exchange that after .that date connection with the Michigan Company’s subscribers could not be had, and since that time the Michigan Company has refused to furnish to the Detroit Telephone subscribers connection with the Michigan Company’s subscribers. Demand has been made by the relator upon the Michigan Company for such connection, and has been refused. During the period between April 6, 1900, when the number of telephones in use by the Detroit-Telephone Company was over 5,000, and the 1st day of December, 1901, when the number in use by the patrons of that company was reduced to something like 300, agents of the Michigan Telephone Company endeavored to induce users of the Detroit Telephone to discontinue the same and use only the Michigan Telephone. At the time the petition was filed in this case the Detroit Telephone users had become further diminished to about 90, and, at the time the argument was heard, it had been further reduced, as was asserted by counsel for petitioner, which statement was unchallenged by counsel for either respondent, to about 21.
“Two questions are raised by the pleadings in this case which have already been determined, viz.: (1) The propriety of the remedy; and (2) the reasonableness of the rate charged by the respondent the Michigan Company. As to the first question, this court has already determined that mandamus is a proper remedy, and, as to the second, it has determined that the rates charged-by the Michigan Company are not fairly in issue in this proceeding. The sole question, therefore, remaining for determination, is whether or not the petitioner is entitled, under the pleadings and proofs, to the writ of mandamus to compel the respondent the Michigan Company to give him, a subscriber to the Detroit Telephone Exchange, access to the subscribers of the Michigan Telephone Company in the city of Detroit.
“Section 14 of the ordinance of March 14,1896, running to the Detroit Telephone Company, is as follows:
“ ‘ If the said company shall, at any time during the term of this franchise, transfer its rights to any other telephone company now operating in Detroit, or make any consolidation with such company, the company acquiring such rights, or the consolidated company, shall be subject to the terms and conditions of this ordinance, and shall operate its lines under this ordinance.’
“ Section 15 of said ordinance is as follows: '
“ 'All the rights, liabilities, and obligations herein granted or imposed upon said company shall apply to and be operative in favor of or against any assignee or successor of said company.’
“ The above-named respondents, the Michigan Telephone Company and the Detroit Telephone Company, are organized under the provisions of chapter 177 of the Compiled Laws, section 4 of which act provides the manner in which telephone companies may operate within the State of Michigan. Counsel for respondents claim that sections 14 and 15 of the ordinance .vyere never binding upon the respondent the Detroit Telephone Company, and cite in support of their contention Michigan Telephone Co. v. City of St. Joseph, 121 Mich. 502 (80 N. W. 383, 47 L. R. A. 87, 80 Am. St. Rep. 520). In that case the complainant’s assignor, the Telephone & Telegraph Construction Company, presented a petition to the common council of the village of St. Joseph for permission to construct, maintain, and operate a telephone system in said village. The permission was duly granted by the village, and the company proceeded, at large expense, to erect poles and stretch wires within the lines of the streets and alleys in said village until June 5, 1891, when the village became incorporated as a city. The complainant in that case, being the respondent the Michigan Telephone Company in this case, duly acquired by purchase all the property, rights, and privileges of said construction company, and ■continued to do business in said city until August 3, 1897, when it erected, in a good and workmanlike manner, and in accordance with the terms of the statute under which it was organized, certain poles in said city, for the purpose of connecting with its central office the premises of persons who had subscribed for telephone service. On said August 3, 1897, the common council passed a resolution •declaring said poles and wires a nuisance, and instructed the street commissioner to forthwith remove them, which he did. On August 10 and 16, 1897, the complainant presented two petitions to the common council, asking permission to erect poles in certain specified streets and alleys. The council refused permission. Under these facts, in an •opinion by Justice Gkant, it was held that it was the ■clear duty of the defendant to act upon the petitions pre-' .sented to its common council by the complainant, and to establish reasonable rules and regulations for the erection of poles and the stretching of wires.
“The other case cited by respondents’ counsel is the case of Michigan Telephone Co. v. City of Benton Harbor, 121 Mich. 512 (80 N. W. 386, 47 L. R. A. 104), and it only differs from the case last cited in that the assignor of the complainant never had permission granted to it to erect its poles or string its wires in the city; and in that case it was held, as in the case last cited, that the common council of the defendant city should provide, by ordinance or otherwise, reasonable regulations for the erection of the poles and stretching of the wires of the complainant.
“In the case first cited (Michigan Telephone Co. v. City of St. Joseph) the following language occurs in the opinion by Justice' Grant :
“ ‘It is urged that the permission granted to the Telephone & Telegraph Construction Company was personal to that company, and could not be alienated without the consent of the city. That company was organized under a general law of the State, and derived its powers and obligations from that law. The only power which a city could have exercised over it was that of regulation.’
“Under the principles laid down in the decisions just cited, it is quite apparent that had the Detroit Telephone Company applied to the common council of the city of Detroit to fix, by ordinance or otherwise, reasonable rules and regulations under which it might proceed, by virtue of the power granted in the act under which it was organized, to erect its .poles, string its wires, and establish a telephone exchange in the city of 'Detroit, the court would have compelled compliance with the demand. That, it seems to us, is all that the cases in question determine. But can it be said that, because the Detroit telephone Company had the right to insist upon the city of Detroit making reasonable rules and regulations under which it should establish and operate its telephone exchange in the city of Detroit, it was thez’eby precluded from entez-ing into contractual relations with the city of Detroit touching the terms and conditions under which it should erect and operate its said exchange ? It se'ems to us obvious that this cannot be so. The right of the city to make the contract in the premises cannot be questioned. Neither can it be questioned that the Detroit Telephone Company had the right, as well as the power, to make a contract with reference to the erection, maintenance, and operation of its exchange. An examination of the ordinance in question discloses the fact that in section 1 of said ordinance the right is given by the city to the respondent the Detroit Construction Company to lease, to any other company having similar rights to itself, the right to use poles and conduits of the respondent the Detroit Construction Company. This is clearly a concession, and presumably a valuable one, to the grantee in the franchise, and is. clearly outside any rights which it could claim under the authority of the general law which it now invokes.
“Upon the day of the passage of said ordinance, the respondent the Detroit Construction Company accepted said ordinance in the following terms:
“ ‘Detroit, March 19, 1896.
“‘To the Mayor and Common Council:
‘“The Detroit Telephone Construction Company accepts the ordinance granted to said company, approved March 14, 1896.
“‘TheDetroit Telephone Construction Company,
“‘By Charles Flowers, Vice-President.
‘“By order of the board of directors.’
“The passage of said ordinance by the common council, its approval by the mayor of the city of Detroit, and its acceptance by the company, constitute, in our opinion, a binding contract between the company or its assigns and the city of Detroit. The company acted under the ordinance, and installed its exchange thereunder, and the citizens of the city of Detroit, .to a large number, became subscribers thereto; and we do not understand it is claimed that the respondent the Detroit Telephone Company could have at any time itself repudiated any of the terms of the ordinance under which it did business for several years.
“ The sole question remaining for determination, therefore, is, Did the respondent the Michigan Telephone Company, by its act in acquiring by the bill of sale all the tangible property of the Detroit Telephone Company, as well as all its rights under the franchise in question, coupled with its action thereafter, become fixed wi,th the duties and obligations with which the Detroit Telephone Company was charged under said franchise? We think it did. The respondent the Michigan Telephone Company must be held to have entered into the purchase with full knowledge and notice of the franchise in question, and all the conditions and obligations assumed by its grantor thereunder, and it cannot now enjoy the benefits thereof without also assuming the obligations incident thereto. Strength is added to this view by the action of the respondent the Michigan Telephone Company immediately after said purchase, as tending to show what construction it itself placed upon said franchise and the obligations incident thereto. Immediately after the purchase by it of the tangible assets of the Detroit Company and its franchise rights, access was given by it to the subscribers of the Detroit Telephone Exchange to the subscribers to the Michigan Exchange. Users of the Detroit Telephone Company accepted this service and paid for the same for a period of something like a year and a half. We are of the opinion that the furnishing of the service by the respondent the Michigan Company, and the acceptance thereof by the subscribers to the Detroit Company, if it did not constitute a new implied contract, between the Michigan Company and said subscribers, at least furnishes a construction of the terms of the ordinance by the parties themselves which the respondent the Michigan Telephone Company is not now at liberty to repudiate.”

We are satisfied with the reasoning of the foregoing opinion, and adopt it.

It is contended in this court that mandamus is not a proper remedy, but we agree with the learned circuit judges that that remedy is open. Merrill, Mandamus, § 162.

The order will be affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred.


text:
    SHERMAN v. SPALDING.
    1. Landlord and Tenant — Money Had and Received.
    The owner of land cannot, under a count for money had and received, recover, from a person to whom the tenant has attorned, the rent paid by the tenant.
    2. Same — Guaranty.
    Defendant leased certain premises, and agreed to save the tenant harmless from loss or damage on account of an adverse claim of ownership made by plaintiff. After plaintiff's right had been established, the tenant assigned to her his claim for rent paid under the lease. She then brought suit against defendant for the money paid by the tenant. Held, that she could not recover under the guaranty, as no suit for damages had been brought against the tenant.
    Error to Wayne; Rohnert, J.
    Submitted October 8, 1902.
    (Docket No. 19.)
    Decided February 17, 1903.

      Assumpsit by Mary Sherman against Hinton E. Spalding for money had and received. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Charles C. Steivart, for appellant.

      Walker & Spalding, for appellee.
   Grant, J.

For a full statement of this case, see 126 Mich. 561 (85 N. W. 1129).

Plaintiff cannot maintain this action upon the theory of money had and received by the defendant for her benefit. There was no con tractual relation between them growing out of the contract between Mr. Fisher and the defendant. Neither expressly nor impliedly did defendant promise to hold the money paid him by Fisher for Mrs. Sherman. She had a contract with Fisher, and by that her rights and damages for its violation must be measured. Defendant bad a contract with Fisher, and by that defendant’s and Fisher’s rights must be determined. At the time-the lease and contract of guaranty were made between Fisher and defendant, defendant in good faith believed that he had the title, under the judgment of the court in Walker v. Fisher. The court had so decided. That decision was reversed on appeal to this court. 117 Mich. 72 (75 N. W. 144). Fisher was willing to accept him as a landlord, and in good faith made the agreement to pay the rent to defendant. Under these circumstances, an action by plaintiff for money had and received will not lie. Corey v. Webber, 96 Mich. 357 (55 N. W. 982).

Plaintiff’s right of action, if she has any, against defendant, depends upon the contract between the defendant and Fisher, and the assignment of the same by Fisher to plaintiff. The contract reads as follows:

“Agreed by and between H. E. Spalding, of the first part, and Truman S. Fisher, of the second part, that second party hereby rents of the first party the premises No. 578 Lincoln avenue, Detroit, from date to May 1, 1898, — the rent being paid in advance to Mai’ch 1st, — at $12.00 per month; and the second party also to pay the water tax from November 1st, ’97, to May 1st, ’98. First party guarantees to save second party harmless from any loss or damage on account of the claim for possession set up by Mary Sherman, or any other persons claiming under the title set up by her.”

The assignment reads as follows:

“For valuable consideration, I hereby assign and set over to Mary Sherman all my right, title, and interest in and to an account paid by me to Hinton E. Spalding for rent of No. 578 Lincoln avenue from November 1, 1897, to June 1, 1898, and hereby empower said Mary Sherman to collect the said account, amounting to the sum of eighty-four dollars.”

This assignment is based upon the theory that defendant had $84 in his possession belonging to Fisher, or that defendant owed Fisher that amount. Defendant did not contract to pay the money he received as rent from Fisher back to him upon the determination of the suit of Walker v. Fisher in this court adversely to Walker. He contracted simply and solely to hold Fisher harmless from' any loss or damage he might suffer on account of Mrs. Sherman’s claim. When Fisher had suffered damage, then, and then only, did defendant agree to respond. Plaintiff has no greater right than Fisher had. This contract cannot be construed with reference to what Mrs. Sherman might or might not do in case the suit of Walker v. Fisher was decided in favor of Fisher. It is unambiguous, and all prior conversations are merged in it. She might bring suit against Fisher, or she might not. If she brought suit and recovered, the defendant would be obliged, under his contract of guaranty, to pay the amount of the damages recovered. If she should not bring suit against him (Fisher), then he has not been damnified. She has not brought such suit, and therefore Fisher has 'not been damnified. Should Mrs. Sherman sue him, he would notify defendant of that suit, and it would he the defendant’s duty to defend it. Under this contract of guaranty, defendant is entitled to be heard in, and, if he choose, to defend, any suit which Mrs. Sherman might bring against Fisher to recover the rent she claims to be due. He cannot be deprived of this right by the assignment of the'contract to Mrs. Sherman.

I think the direction of the court was right, that the judgment should be affirmed, and this expensive litigation over a small amount ended. It is so ordered.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


author: Grant, J. Hooker, C. J.

text:
    McCHESNEY v. WILSON.
    1. Dogs — Trespassing—Right to Kill.
    The fact that a dog is a trespasser does not in itself justify a person in killing him.
    2. Same — Nuisance—Question eor Jury.
    Where a person killed a dog which had killed his chickens and continually committed nuisances about his premises, the question of his liability should have been submitted to the jury, to determine whether the killing was reasonably necessary under all the circumstances.
    3. Exemplary Damages — Punishment.
    It is error to instruct the jury that exemplary damages include damages given for the purpose of punishment.
    Error to Missaukee; Chittenden, J.
    Submitted October 9, 1902.
    (Docket No. 27.)
    Decided February 17, 1903.
    Case by Samuel W. McChesney against Ari W. Wilson for the alleged willful killing of plaintiff’s dog. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.
    This suit originated in justice’s court, and was appealed to the circuit court, where plaintiff recovered a verdict and judgment for $20 for the value of his dog, which was shot and killed by the defendant. The dog was on the defendant’s premises, and in the act of urinating through a screen cellar window, at the time he was shot. He had killed three of defendant’s chickens and eaten one. He was in the habit of frequently urinating through the defendant’s screen door onto his carpet. Defendant and his wife had frequently driven him away with clubs. Defendant testified that once, when he and his wife were going at night to feed the pigs, the dog stood in the path, and would not let her pass, and that she had to pick up a stick and drive him away. He notified plaintiff of all these acts on the part of his dog. Two neighbors testified that the dog had killed some of their chickens, and that they notified him of the fact; and one testified that he told him he would kill the dog if he did not keep him away, and that plaintiff asked him why he did not. Plaintiff admitted that he had killed some of his own chickens. Plaintiff did not deny that the defendant and the others notified him of the acts of his dog. It is true plaintiff testified that his dog was a bird dog, but did not testify that he or any one else had ever hunted with him. The dog’s disposition for birds and for hunting then appears from plaintiff’s cross-examination, as follows:
    “ Q. Now, you say that this dog was a bird dog?

      “A. Yes, he was subject to that.
    “ Q. He had a kind of leaning towards chickens, didn’t he ?

      “A. Oh, yes.
    “ Q. That’s the kind of a bird dog he was, — he killed chickens ?

      “A. Yes, he killed some in my yard.”
    The court directed a verdict for the plaintiff, leaving the jury only the question of damages. Defendant interposed no defense in the justice’s court.

      U. 8. Albertson, for appellant.

      F. O. Gaffney, for appellee.
   Grant, J.

(after stating the facts). The court instructed the jury that the defendant was not justified in killing the dog, unless he was in the act of chasing, killing, or annoying his sheep or other domestic animals. The following facts are conclusively established:

1. That the dog was a killer of domestic fowls.
2. That he was a frequent trespasser upon the premises of the defendant, and frequently committed the disgusting nuisance above mentioned.
3. That plaintiff was notified by the defendant and others of the disposition of his dog.
4. That he took no steps to restrain him.

Evidently the attention of the learned circuit judge had not been called to the cases of Hubbard v. Preston, 90 Mich. 221. (51 N. W. 209, 15 L. R. A. 249, 30 Am. St. Rep. 426), and Throne v. Mead, 122 Mich, 273 (80 N. W. 1080, 80 Am. St. Rep. 568), otherwise I think he would have directed a verdict for the defendant. Under the principle laid down in these decisions, the defendant was justified in killing the dog. That there is property in dogs, for which the owner may recover in a proper case, is conceded; but this does not authorize a party to keep a dog of the character of the one in this case, who almost daily commits a nuisance at his neighbor’s house, and kills and destroys his neighbor’s domestic fowls. No statute is needed to justfy the injured party in killing a dog of this character when he appears upon the premises, after notifying the owner of his depredations, and giving him ample time to take care of him. Whether the statute (2 Comp. Laws, § 5592) is broad enough to include domestic fowls it is unnecessary to decide. See Marshall v. Blachshire, 44 Iowa, 475.

This is hot a case where a dog is found for the first time committing a nuisance in trespassing, or in killing fowls or animals. This is not the case of Bowers v. Horen, 93 Mich. 420 (53 N. W. 535, 17 L. R. A. 773, 32 Am. St. Rep. 513), where the offense with which the dog was charged was in walking over a freshly painted porch, and once being found in a henhouse without doing any damage, and in going around the defendant’s house at night, chasing cats into trees, and barking. In that case stress was laid upon the fact- that the defendant, knowing who the owner was, failed to notifj him that the dbg gave him any annoyance. Had the defendant in that case done so, a different result might havé been reached, under the decision of Hubbard v. Preston, supra.

Some stress is laid upon the fact that the defendant kept two dogs himself, one a male and the other a female. No complaint, however, is made against these dogs. The only testimony in regard to them is that the male dog was about a year old, and was kept tied up in defendant’s barn, and that the female dog was a puppy, four months old, and was also kept within doors. The fact that defendant kept dogs which annoyed no one affords no excuse for plaintiff’s keeping a vicious dog.

The law, in my opinion, justified the defendant in killing this dog. One desiring to keep such a dog because of his companionship, of his ability to perform amusing tricks, and even render some valuable service, such as bringing in sticks of wood, and carrying notes to his master, must at least keep him off his neighbor’s premises. In Hamby v. Samson, 67 Am. St. Rep. 285 (s. c., 105 Iowa, 112, 74 N. W. 918, 40 L. R. A. 508), will be found a valuable note collating the authorities on this question. They are not harmonious, and many of the decisions are based upon statutes.

Judgment reversed, and new trial ordered.

Hooker, C. J.

The plaintiff recovered a verdict and judgment for $20 for the killing of his dog by the defendant, who admits that he shot him. The reason given upon the trial was that, on the occasion of the shooting, the dog was in the act of urinating upon a cellar window screen at defendant’s house, and defendant testified that he had on one or more occasions urinated through a screen door upon a carpet in his house, and that he was in the habit of urinating upon the exterior of the house. He also testified that he had some time previous killed three chickens belonging to him. There was testimony that he was a bird dog, and had killed chickens for one or more other neighbors. There was no claim that he was pursuing chickens on the occasion of the shooting. There was also testimony that he disturbed defendant at times by his barking. The defendant has appealed.

I concur in the opinion that the judgment must be reversed because the court took from the jury the question whether the killing of the dog was justifiable, and directed a verdict for the plaintiff, and because the jury were instructed that exemplary damages include damages given for the purpose of punishment, though it may be doubtful if any such damages were allowed by the jury.

The day has gone by when a dog is an outlaw, and his master remediless when he is wantonly killed. Many dogs are valuable,- and many cases so hold. It is not an open question in this State, as the cases hereinafter cited will show. See, also, Wheatley v. Harris, 4 Sneed, 468 (70 Am. Dec. 258); Parker v. Mise. 27 Ala. 480 (62 Am. Dec. 776); Dodson v. Mock, 20 N. C. 146 (32 Am. Dec. 677); Nehr v. State, 35 Neb. 638 (53 N. W. 589, 17 L. R. A. 771); Bowers v. Horen, 93 Mich. 420 (53 N. W. 535, 17 L. R. A. 773, 32 Am. St. Rep. 513). The statute gives the right to kill dogs which worry sheep, and perhaps it is not correct to say, as an abstract proposition, that the only time a person is justified in killing a dog is when he is chasing, killing, or annoying sheep or other domestic animals. The fact that a dog is a trespasser does not in itself justify one in killing him. See Marshall v. Blackshire, 44 Iowa, 475; Corner v. Champneys, Taunton Lent Assizes 1814, mentioned in 2 Marsh. C. P. 584; Sosat v. State, 2 Ind. App. 586 (28 N. E. 1017); Brent v. Kimball, 60 Ill. 211 (14 Am. Rep. 35). Circumstances may be such as to justify the killing of a trespassing dog. Lipe v. Blackwelder, 25 Ill. App. 119; King v. Kline, 6 Pa. St. 318; Dunning v. Bird, 24 Ill. App. 270. Again, the barking or howling of a dog does not justify killing him if it can be otherwise prevented. Brill v. Flagler, 23 Wend. 354. The same rule applies as to chasing animals. We have a stringent statute for the protection of sheep. But it has no application to this case, and the rule cited above has application to other animals. Thus, the fact that a dog has worried cattle does not justify killing him. Hinckley v. Emerson, 4 Cow. 351 (15 Am. Dec. 383); Spray v. Ammerman, 66 Ill. 309; Vere v. Cawdor, 11 East, 568; Janson v. Brown, 1 Campb. 41; Leonard v. Wilkins, 9 Johns. 233; Liver- more v. Batchelder, 141 Mass. 179 (5 N. E. 275); Wright v. Ramscot, 1 Saund. 84; Boecher v. Lutz, 13 Daly, 28. In Illinois it is held that the relative value of the dog and the animal attacked by him is to be considered in determining the right to kill the dog for the protection of the animal. Anderson v. Smith, 7 Ill. App. 354. See, also, note to Hubbard v. Preston, 15 L. R. A. 249, 30 Am. St. Rep. 426 et seq. (s. c., 90 Mich. 221, 51 N. W. 209).

It has been said that the cases of Hubbard v. Preston and Throne v. Mead — both Michigan cases — required the circuit judge to direct a verdict for the defendant. Hubbard v. Preston will bé found to hold that, under an exasperating combination of circumstances, a man has a right to protect himself from a nuisance by killingx a dog, and in such case it is for a jury (not the court) to decide whether the killing was a reasonable means of abating the nuisance. In the case of Bowers v. Horen, 93 Mich. 420 (53 N. W. 535, 17 L. R. A. 773, 32 Am. St. Rep. 513), Mr. Justice Grant held that “the law does not justify the killing of a neighbor’s valuable dog because he has left tracks on a freshly painted porch, has been found on one occasion in the henhouse, and has come around the house at night, chased cats into the trees, and barked.” In that case-attention is called to the fact that the defendant did not inform the owner that the dog annoyed him, and the same might have been found to be true by the jury in this case, had it been left to them, and if it is important. The case of Throne v. Mead involved the question of sheep and the statute, and was rightly decided, but does not affect this case.

The testimony tends to show that this was a useful and valuable dog; that the defendant himself kept a dog, and also a bitch, upon his premises. There was 'a dispute about the habits of the dog as t-o staying at home. On the other hand, the defendant testified to many annoyances ; that he deliberately shot the dog, but did not intend to kill him, and was sorry he had done so, because it had made him so many enemies. Under these circumstances the question should have gone to the jury to say whether the shooting of this dog was, under all of the circumstances, reasonably necessary.

The other question involves the measure of damages. Our understanding is that the rule in this State limits exemplary damages to the aggravation of the injury to feelings which arises frorñ malice, and does not permit damages for the purpose of punishment. In the justice’s court the plaintiff recovered $100, which was reduced to $20 upon the trial in the circuit. There is little reason for believing that any punitory damage was allowed, but it is possible that the defendant was injured by this instruction.

For the reasons given, I concur in the reversal of the cause.

Moore and Montgomery, JJ., concurred \yith Hooker, C. J.


text:
    COVENEY v. PHISCATOR.
    1. Duress — Imprisonment—plea of Guilty.
    A person who pleads guilty to a charge of obtaining money by means of threats, and returns the money he had received as a condition of his release, cannot recover the money on the ground that it was paid under duress of imprisonment.
    2. Foreign Judgment — Regularity—Presumption.
    A judgment of a Canadian court will be presumed to have been regular, and within the jurisdiction of the court.
    3. Same — Collateral Attack.
    A plaintiff who has, in a Canadian court, pleaded guilty to a charge of obtaining money by means of threats, and, in voluntarily returning the' money, has anticipated the order of restitution authorized by the Canadian statute, cannot, in an . action to recover the money as paid under duress, in the absence of fraud, show that he was not properly adjudged guilty.

      Error to Berrien; Coolidge, J.
    Submitted October 14, 1902.
    (Docket No. 53.)
    Decided February 17, 1903.

      Assumpsit by Joseph E. Ooveney against Frank Phiscator for money alleged to have been paid under duress of imprisonment. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Alfred J. Mills and Laiurence G. Fyfe, for appellant.

      ■O’Hara & O’Hara and Victor M. Gore, for appellee.
   Montgomery, J.

This is an action to recover $7,000 •and interest, claimed to have been paid defendant under duress of imprisonment. The plaintiff recovered, and •defendant brings error.

The case of plaintiff, briefly stated, is that he charged •defendant with having maintained illicit relations with his (plaintiff’s) wife; that this alleged offense occurred in Berrien county, in this State; that plaintiff pursued defendant to the latter’s residence at Dawson, Yukon Territory; that defendant then and there paid $7,000 in satisfaction of the injury; that very soon thereafter plaintiff was arrested by the Yukon authorities for obtaining this money of defendant by means of threats and menaces; that plaintiff was kept in jail on this charge from the 26th •of May until the 10th of July, when he obtained his release and discharge by signing a retraction of the charge which he had made against Phiscator, surrendering the money to the marshal to be returned to Phiscator, and entering a plea of guilty to the charge of extortion by means of menaces and threats, whereupon the district court of Yukon suspended judgment on plaintiff’s agreeing to leave the Territory.

A careful reading of the record does not disclose that Phiscator had aught to do with the rigor of treatment of which plaintiff complains. .The most that can be asserted is that Phiscator appeared as a witness on the preliminary examination, and it might possibly be properly inferred from the circumstances that he, or some one in his behalf, lodged a complaint with the public authorities prior to> plaintiff’s arrest. However this may be, we discover no evidence in the record that the defendant sought to compel the plaintiff to surrender this money, unless the lawful institution of these proceedings be held to have constituted such an attempt. The plaintiff’s testimony shows that he had two lawyers, and that he acted on their advice in pleading guilty.

The record of the criminal proceedings is not produced. The presumption is that such proceedings were regular, and within the jurisdiction of the court. Palmer v. Oakley, 2 Doug. 433 (47 Am. Dec. 41); 13 Am. & Eng. Enc. Law (2d Ed.), 995. The law of the forum authorized the court, in case the plaintiff, Coveney, had been found guilty as charged, to summarily order restitution to Phiscator of the money obtained by means of the threats and menaces which were the subject of that action. 24 & 25 Vict. chap. 96, § 100; 2 Rev. Stat. Canada, p. 2062. The plaintiff anticipated any such order, which would have followed on his plea of guilty as a matter of course, by turning the money into the hands of the marshal, to be returned to Phiscator. Can the plaintiff, having thus solemnly acknowledged his guilt and made restitution according to the laws of that Territory, and having by his plea of guilty shown both the legality and the propriety of the arrest, now assert that such arrest amounted to duress of imprisonment? We think that to permit him to do so would be to admit of a collateral attack upon the judgment of a court having jurisdiction of the matter. This, according to the weight of modern authority, is not permissible. 2 Black, Judgm. § 829. Whether such judgment is impeachable for fraud in a collateral attack is open to some question. Id. § 844.

Plaintiff contends that his plea of guilty in the criminal proceeding is not conclusive of his guilt in a civil action, and cites cases in which this doctrine is laid down, where the question arises in an action based upon a wrong which is also an offense against the public. An illustrative case is Hauser v. Griffith, 102 Iowa, 215 (71 N. W. 223), which was an action for personal injury by assault. It was held that a previous plea of guilty in a criminal action was not conclusive. But cases of this character do not meet the issue here. The question here more properly is whether the judgment of conviction is conclusive that the plaintiff was properly adjudged guilty, or whether .the plaintiff can assert that a proceeding in which that was regularly determined constituted unlawful duress because the plaintiff was not in fact guilty, as it was determined he was. This is a collateral attack upon the finding of the court, and nothing else. Whether we adopt the rule that this jurisdiction may impeach the Yukon judgment for fraud, or hold that such an attack must be made there, the result in this case is the same; for, if we eliminate the claim that plaintiff was guiltless of the offense of which he was there charged, there remains no testimony in any way tending to show that any fraud was practiced upon the plaintiff. It may be safely stated that, wherever it is held that a judgment of a foreign country may be impeached for fraud, it is maintained that the fraud meant is a fraud practiced in the very obtaining of the judgment. Black, Judgm. § 844.

Had the plaintiff, in lieu of the present proceeding, instituted a suit for malicious prosecution, it would have been essential to show that the proceedings in the Yukon terminated favorably to himself. 19 Am. & Eng. Enc. Law (3d Ed.), p. 685. And this is equally true of a prosecution in a foreign country. Castrique v. Behrens, 107 E. C. L. 709; Pratt v. Page, 18 Wis. 337. And while it is said that imprisonment under valid process and for a just cause is duress if such imprisonment is unlawfully used to obtain the contract (Morse v. Woodworth, 155 Mass. 233 [27 N. E. 1010, 39 N. E. 535]), we are not able to discover in this record any evidence of unlawful use of the process in the Yukon Territory with which defendant was connected. The testimony of plaintiff shows that he was treated like other persons. No suggestion of a confession was made to him by defendant. On the contrary, the plaintiff, without either consulting his own counsel or the defendant, wrote defendant offering to return the money and drop the thing forever if defendant would get him out of jail. It does not appear that, even after this letter was received, defendant had anything tO' do with his release. Plaintiff’s attorney advised him, and. he finally acted upon this advice in pleading guilty to the charge and surrendering the money. If we eliminate the probative force of the plaintiff’s testimony that he was not in fact guilty of extortion as charged, we have not a shadow of testimony showing any unlawful or oppressive act of defendant. On this record, verdict for defendant-should have been directed.

Judgment will be reversed, and a new trial ordered.

Hooker, O. J., Moore and Grant, JJ., concurred.


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    COLE v. AUDITOR GENERAL.
    1. Taxation — Courts op Chanoery — Limitation op Powers.
    1 Comp. Laws, § 3893, in limiting tlie power of a court of chancery to set aside decrees rendered in tax proceedings, is ' valid.
    2. Courts op Chancery — Powers.
    The court of chancery has power to open its decrees to correct errors.
    3. Tax Sales — Certificate of Error — Power op Auditor General.
    Subdivision 3 of section 98 of the general tax law (1 Comp. Laws, § 3921), providing that the auditor general may issue a certificate of error where the sale was in contravention of any provision of the act, applies only to errors occurring after the decree, and not to a case where the lands were held as State tax lands' at the time the tax petition was filed.

      4. Same — Overruled Oases.

      Gurd v. Auditor General, 122 Mich. 151, in so far as it sustains the power of the auditor general to review and set aside proceedings prior to the decree in a tax case, is overruled.
    Appeal from Ontonagon; Haire, J.
    Submitted November 20, 1902.
    (Docket No. 216.)
    Decided February 17, 1903.
    Bill by Thomas F. Cole against Perry F. Powers, auditor general, to restrain the issuance of a certificate of error. From a decree for complainant, defendant appeals.
    Affirmed.

      C. E. Miller, for complainant.

      Horace M. Oren, Attorney General (Charles W. McGill and M. J. Shertoood, of counsel), for defendant.
   Grant, J.

The respondent was about to issue a certificate of error upon a tax-title deed issued to the complainant. The main reason for issuing it is that, at the time of filing the petition, the lands were held as State tax lands, and that therefore the sale was void under Connecticut Mut. Life-Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656). Other objections are also urged. Complainant thereupon filed this bill to enjoin this proposed action on the part of the respondent, and a decree for a permanent injunction was rendered.

The respondent bases his right to issue such certificate on section 98 of the general tax law (1 Comp. Laws, § 3921), which authorizes him to issue such certificate for four reasons : (1) That the land was not subject to taxation; (2) that the taxes had been paid to the proper officer; (3) “that such sale was in contravention of any of the provisions of the act;” (4) that a certificate that no taxes were charged against the lands was given by the proper officer within the time limited by law for the payment or redemption thereof. The respondent claims his right to act under the third subdivision above cited, and insists that, under it, it is in his power to go back of the decree of the court, and review the validity of any of the prior proceedings. In support of this contention he relies mainly upon Gurd v. Auditor General, 122 Mich. 151 (80 N. W. 1005). The extraordinary power which the respondent claims for himself must be found to be expressly conferred upon him by statute, or it does not exist. It is certainly a very extraordinary power. It may be conceded that the legislature, in conferring this jurisdiction upon courts of chancery, — a jurisdiction which they possess solely by virtue of the statute,— might lodge in the auditor general the power to review the proceedings. We will determine only the question whether it has done so in the present law.

The reason for a change in the tax system of this State is not unimportant. Under the laws prior to 1891, deeds issued under tax proceedings were notoriously invalid. The legislature sought to remedy this evil by Act No. 200 of the Public Acts of 1891, and Act No. 206 of the Public Acts of 1893, the main features of which are the same as those in the law as it now stands. The object was to give every taxpayer his day in court, so that he might early contest before the court all questions as to the validity of his taxes, and thus secure a better collection of the public revenues. There is little, if any, excuse for a landowner’s failure either to pay his taxes, or to contest them in the proceeding instituted for that purpose. As we said in Cole v. Shelp, 98 Mich. 56 (56 N. W. 1052), every man knows that his land is subject to taxation, and that proceedings will be taken to foreclose the tax lien. Failing to appear when the opportunity is afforded him, he has little cause to complain against the result. The two provisions of the tax law in regard to setting aside the decrees, sales, and deeds thereunder are found in section 98, above cited, and also in section 70 (1 Comp. Laws, § 3893), which section provides that:

“The practice with reference to setting aside such sale shall be the same, so far as applicable, as in a sale in equity on the foreclosure of mortgages: Provided, no sale shall be set aside for inadequacy of price, except upon payment of •amount bid upon such sale, with interest and costs: And provided further, that no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation. In such cases the owner of such lands may move the court at any time within one year after he shall have notice of such sale to set the same aside, and the court may so order upon such terms as may be just.”

Under this clause the taxpayer may appear at any time before confirmation of the sale, and interpose any objection he may have to the decree, and after confirmation his right to have the sale set aside is limited to cases where he has paid his taxes or where his property was exempt from taxation. He must proceed under this clause within one year after he shall have notice of the sale. We held that a decree might be set aside upon a petition in the same suit after one year, where the court had no jurisdiction to enter the decree, and the petitioner showed equities and proper diligence. Aztec Copper Co. v. Auditor General, 128 Mich. 615 (87 N. W. 895), and cases there cited. It is evident that the legislature sought to limit the power of the court in chancery to set aside decrees rendered in these proceedings. The right of the legislature to so limit the power cannot be questioned. This court has recognized that provision of the law as valid, and has only apparently extended it, where parties have not applied within one year, to cases where the court itself determines that there was no jurisdiction to enter the decree.

If the contention in behalf of the respondent prevail, it must follow that the legislature deliberately conferred upon the auditor general unlimited power over the decrees of the court, while it placed limitations upon the jurisdiction of the court. That the legislature intended to confer upon the auditor general the power to determine the ques-' tion of jurisdiction, which the court had passed upon, seems hardly probable. A serious question would arise in that event, viz., whether such act of the auditor general would not be judicial rather than ministerial. Sections 70 and 98 must be construed together. It is apparent that the grounds numbered 1, 2, and 4, upon which the auditor general is authorized to issue certificates of error, involve circumstances under which a taxpayer is justified in paying no attention to the tax proceeding, because his land is then either not subject to taxation, or, if it is, he has paid the taxes, or has a certificate that no taxes were charged against him. The taxpayer, under these circumstances, naturally would know nothing about proceedings to sell his land until he was actually notified. He then produces to the auditor general his certificate or receipt, or proof that the land was not subject to taxation. The authority of the auditor general to issue certificates or to withhold deeds, under these three subdivisions, has been upheld in many cases. Hand v. Auditor General, 112 Mich. 597 (71 N. W. 160); Kneeland v. Wood, 117 Mich. 174 (75 N. W. 461); Wood v. Bigelow, 115 Mich. 123 (73 N. W. 129); Youngs v. Auditor General, 118 Mich. 550 (77 N. W. 5); Mann v. Carson, 120 Mich. 631 (79 N. W. 941); Northrup v. Maneka, 126 Mich. 550 (85 N. W. 1128); Kneeland v. Auditor General, 113 Mich. 63 (71 N. W. 477).

The power of the court in chancery to open its decree to> correct errors is not disputed. This is inherent, in the court, and is also conferred by the statute. So suits in equity may be brought, under the proper circumstances,, which involve the validity of the proceedings. There are-many such cases. Visscher v. Ottawa Circuit Judge, 116 Mich. 666 (74 N. W. 1013); Aztec Copper Co. v. Auditor General, supra; Kneeland v. Hyman, 118 Mich. 56 (76 N. W. 127); Muirhead v. Sands, 111 Mich. 487 (69 N. W. 826); Hough v. Auditor General, 116 Mich. 663 (74 N. W. 1045); Carpenter v. Jones, 117 Mich. 91 (75 N. W. 292); Thomas v. Auditor General, 120 Mich. 535 (79 N. W. 812).

It is conceded by the attorney general that Jackson v. Sloman, 117 Mich. 126 (75 N. W. 282), was based upon subdivision 1 of section 98, and not upon subdivision 3. I find, then, but one case where the auditor general has been held authorized to set aside a decree for defects previous to the decree, or for other reasons than the three specific ones mentioned in subdivisions 1, 3, and 4, and that is the case of Gurd v. Auditor General, 133 Mich. 151 (80 N. W. 1005), where the publication of the petition and order was held void because published in a newspaper printed in a foreign language. A notice of sale is essential where larids are sold under the decrees or judgments of courts. Usually the notice is subsequent to the decree. Under the tax proceedings, the publication of the petition and order as provided in sections 63 and 66 is anterior to the decree, and serves two purposes: (1) To give the court jurisdiction; and (3) to operate as an advertisement of the sale. The short brief of the attorney general in the Gurd Case questioned the power of the auditor general to refund the money paid in that case until the question had been determined by a court of competent jurisdiction,, but did not discuss it. The question principally argued by the attorney general was that the State executed a quitclaim deed, and in no way warranted the title. If the point had been made in the chancery proceeding, and the court had held that the publication was valid, would the auditor general have the power to set aside the decree of the court in chancery? Could the contesting taxpayer ignore the decree, and appeal to the auditor general to reverse it ? The auditor general certainly possesses no more power over a decree upon default than upon one rendered after a contest. Because the court in chancery may set aside its decree for the reason that the lands had previously been bid in by the State does not authorize the auditor general to set aside a decree for the same reason. It must be conceded that the language we used in the Gurd Case justified the respondent in concluding that he had the power under subdivision 3. It might, perhaps, properly be held that the order published in that case was the notice of sale, and that, where fatal defects of jurisdiction appear upon the face of any such proceeding, it renders any judgment or decree based thereunder absolutely void. The illustration made by my Brother Moore in his opinion in that case is an apt one, viz., that, if no notice had ever been published, the proceedings would have been void. It would not in that case have required any action on the part of the auditor general or on the part of the court to declare them void. Proceedings void upon their face are an absolute nullity, and would be inadmissible as a basis for any right. *

To what, then, can subdivision 3 be held to apply ? The language applies to the sale. There may be errors of various kinds occurring after the decree, when the power of the court of chancery is ended. In Connecticut Mut. Life-Ins. Co. v. Wood, supra, there were defects made after the decree and at the time of entering the decree. See page 454, 115 Mich, (paragraph 6 of the opinion). We are of the opinion that the statute must be held to apply to cases of this character, and not to 'those matters which are involved in and are foreclosed by the decree of the court. In several cases we have used language directly holding that the decree of the court upon all those matters necessarily involved in the proceedings cannot be attacked collaterally. In Muirhead v. Sands, supra, which was a bill filed by the complainant, the owner of the tax deed, to quiet his title, after disposing of five objections, we said, speaking through Justice Montgomery:

“ The other questions presented relate to the regularity of the proceedings prior to the decree. We must hold that these questions were all foreclosed by the decree.”

In Peninsular Sav. Bank v. Ward, 118 Mich. 87 (76 N. W. 161, 79 N. W. 911), in an action of ejectment, the precise objection to the decree and deed thei’eunder was made as is now made; and we there said, speaking through Justice HOOKER:

“ But this question cannot be raised collaterally. The decree has determined the contrary. * * * The only way to reach such questions is in a direct proceeding, or possibly in equity, under proper circumstances.”

In Cook v. Auditor General, 124 Mich. 430 (83 N. W. 96), while it is true that it was not necessary to a decision of the case, yet this question was directly involved, and the same objection to the deed was made there that is made here, and we said that this and other reasons insisted upon for the mandamus ‘ ‘ relate to matters that are foreclosed by the decree, and which could only be raised in a direct proceeding in the case.” In Kneeland v. Wood, supra, we pointed out the two remedies provided by the statute.

The object of the statute, and of the chancery proceedings thereunder, would be largely nullified if the auditor general had the power to inquire into all the proceedings anterior to the decree, and determine whether they were sufficient to give the court jurisdiction. We do not think the statute confers any such jurisdiction. If the legislature had intended to confer this extraordinary power upon the auditor general, it would have been entirely unnecessary to specify the causes mentioned in subdivisions 1, 2, and 4. The general power of subdivision 3, as claimed by respondent, or a single general provision, would have covered the entire ground. To hold that the auditor general is clothed with power to set aside the deeds for the three reasons, numbered 1, 2, and 4, mentioned in section 98, and that subdivision 3 is limited to proceedings after decree, harmonizes the statute, and gives all its provisions a reasonable construction. The reason for conferring this authority to cancel deeds for causes existing before suit is stated above. Fatal defects existing after the sale are very properly placed within the power of the auditor general to correct. In so far as the case of Gurd v. Auditor General can be held to sustain the power of the auditor general to review and set aside proceedings prior to the decree, it is overruled.

The learned attorney general urges that after the decision in Connecticut Mut. Life-Ins. Co. v. Wood, rendered in December, 1897, the auditor general has exercised the power now claimed, and has canceled deeds in many instances where it appeared to him that they were invalid. The power of the auditor general was not even mentioned in that suit. It was a suit in chancery, — the proper forum for the determination of the questions involved. It gave the auditor general no right to believe that he possesses the same power to set aside these deeds as do courts in chancery. This practice of the auditor general for less than four years has not established a construction binding upon the courts.

The decree is affirmed.

The other Justices concurred.


text:
    HYDE v. CHADWICK.
    Mandamus — Garnishment—Summons to Show Cause.

      Mandamus will lie to compel a justice to issue a summons to show cause in garnishment proceedings, if such summons is applied for within the time allowed by 1 Comp. Laws, § 997, although the plaintiff did not appear ,at the time of the disclosure, and the justice entered a judgment against him.

      Certiorari to Gratiot; Stone, J.
    Submitted April 22, 1902.
    (Calendar No. 19,264.)
    Decided February 17, 1903.

      Mandamus by Royal M. Hyde to compel Edwin N. Chadwick, justice of the peace, to issue a summons to show cause against a garnishee defendant. From an order denying the writ, relator brings certiorari.

    Reversed.

      H. M. Dunham, for relator.

      Bert Hayes, for respondent.
   Moore, J.

January 17, 1902, the relator obtained a judgment before Edwin N. Chadwick, a justice of the peace, against Charles E. Trescott. On the 30th day of January he filed an affidavit for writ of garnishment, and a writ of garnishment was issued directed to the Alma Sugar Company, returnable February 6,1902, at 10 o’clock in the forenoon. On the 5th of February the said garnishee defendant made a disclosure in writing by its secretary to the effect that it was not indebted to the said Trescott, he having assigned his wages, amounting to $23.63, to Bert Hayes on December 28,1901, and that said garnishee defendant was not indebted to said Trescott, and did not have property, money, or effects of the principal defendant other than as above mentioned. On February -6th the disclosure of the garnishee defendant was filed. After waiting one hour after 10 o’clock, the relator not appearing before the justice, he entered a judgment in favor of the garnishee defendant and against the plaintiff. The garnishee defendant soon thereafter, and probably the next day, paid the $23.63 to Mr. Hayes. On the 11th of February the relator applied to the justice to issue a summons directed to the'garnishee defendant to show cause why a judgment should not be rendered against it. The justice refused to issue said summons. An application was made to the circuit court for a writ of mandamus to compel him to do so. After a hearing, the circuit judge refused to issue the writ of mandamus. The relator seeks to review his action by a writ of certiorari.

The case calls for a construction of section 997, 1 Comp. Laws. The language of that section is not ambiguous. It reads:

“In cases of garnishee proceedings commenced after the rendition of a judgment against the defendant therein, within thirty days after the closing of the examination in such garnishee proceedings, the justice shall, at the request of the plaintiff, his agent or attorney, issue a summons against the garnishee, commanding him to appear before the justice to show cause why a judgment should not be rendered against him. ”

This is not a case like Johnson v. Dexter, 38 Mich. 695, where the plaintiff failed to appear upon the return day of a summons to show cause, but here the relator made-application within the time provided by the statute for the-summons to show cause, and we think he was entitled to-it. The circuit judge should have made the order.

Hooker, C.-J., Grant and Montgomery, JJ., concurred.