text:
    MONROE WATER CO. v. HEATH.
    1. Municipal Corporations — Contract for Water Supply-Limitations.
    A city of the fourth class, under Act No. 215, Pub. Acts 1895, has the power, through its common council, to contract with a water company for a supply of water for. public uses and purposes for five years, for a stipulated sum per month, payable on bills to be presented monthly to the common council, provided that the amount so contracted for will not bring the aggregate amount of the general taxes in the city for the purpose of defraying the general expenses, etc. (exclusive of taxes for schools and school-house purposes), to exceed in one year 1¿ per cent, of the assessed valuation of such city, con- \ trary to chapter 30, § 5, of said act.
    2. Same — Annual Appropriation.
    Where the common council of a city of the fourth class has exercised its right to contract for a supply of water for a period not exceeding 10 years, at a stipulated sum per month, payable monthly, the required amount must be raised annually for the purposes of that fund, and be included in the annual budget.
    3. Same — Abuse of Authority — Legislative Question.
    The fact that the council might, in the exercise of such power, tie up the revenues of the city for 10 years for the benefit of the water fund, to the prejudice of other funds, presents a legislative, not a judicial, question.
    4. Same — Mayor—Ministerial Duties — Mandamus.
    It is the duty of the mayor of a city of the fourth class, either as chief executive under the provision of Act No. 215, Pub. Acts 1895, chap. 7, § 1, or as president of the common council under chapter 8, § S3, to obey the directions of the council in performing the ministerial act of executing a contract for a supply of water to the city, and mandamus will lie to compel the performance of that duty.

      Certiorari to Monroe; Kinne, J.
    Submitted October 13, 1897.
    Decided December 15, 1897.

      Mandamus by the Monroe Water Company to compel George F. Heath, mayor of the city of Monroe, to execute a contract as directed by the common council. From an order denying the writ, relator brings certiorari.

    Reversed.

      Landon & Lockwood (Fred A. Baker, of counsel), for relator.

      Charles A. Golden and Willis Baldwin, for respondent.
   Long, C. J.

On March 6, 1897, the common council of the city of Monroe passed, over the mayor’s veto, the following resolution:

“Resolved, that a contract between the city of Monroe and the Monroe Water Company for the supply of water for public uses and purposes to the city of Monroe for the period of five years from and after the first day of January last, for the sum of $475 per month,-■ payable on bills to be presented monthly to the common council, be made; and that the- written contract presented to this council, and now in the hands of the city'.'clerk, containing said agreement and other stipulations connected therewith, be made and executed on behalf of the city of Monroe, in duplicate, by the mayor and the city clerk, under the seal of the city; and that one copy of such contract, the other being retained by the city clerk, be delivered to the Monroe Water Company, when and on condition that it file a bond in the penal sum of $10,000, with sufficient sureties, conditioned that said company shall faithfully perform said contract, pay any and all damages which the city may sustain and judgments which may be recovered against it on account of the neglects or failures of said water company, its servants and employés, and file a new bond in like penalty when required by the common council.”

The mayor refused to sign the contract mentioned in the resolution, on the ground that'it was illegal and void, and also on the ground that it was not the official duty of the mayor to execute contracts on behalf of the city. The Monroe Water Company, a corporation organized under the laws of this State, thereupon filed a petition in the Monroe circuit court for a mandamus to compel the mayor to sign the contract. The mayor,, as respondent in that proceeding, filed his answer to the petition. A hearing was had, and the writ denied. The case comes into this court by writ of certiorari.

Monroe is a city of the fourth class, under Act No. 215, Pub. Acts 1895. Section 11, chap. 26, of that act, is as follows:

“The council may contract from year to year, or for a period of time not exceeding 10 years, with any person or persons, or with any duly-authorized corporation, for the supplying of such city and the inhabitants thereof with water upon such terms and conditions as may be agreed; and may grant to such person, persons, or corporation the right to the use of the streets, alleys, wharves, and public grounds of such city as shall be necessary to enable such person, persons, or corporation to construct and operate proper works for the supply of water for the use of such city and the inhabitants thereof upon such terms and conditions as shall be specified in such contracts.”

The contentions of the respondent are:

1. That section 11, above quoted, if taken without limitations or qualifications, is unconstitutional, in that it allows a municipality to incur liability without any limit.

2. That, if section T1 be limited at all, then the same limitations applying to the other general funds authorized to be raised by cities apply to this fund; that the limitations upon the aggregate of all general funds of the city (and that this is a general fund) are a total of 1J per cent, upon the assessed valuation, and a further limitation that no liabilities shall be incurred beyond the amounts appropriated to the several general funds.

3. That no provision was made for this indebtedness in the last appropriation bill.

4. That such a liability or a contract, extending over more than one year, could be made only after ratification by a two-thirds vote of.the electors of the municipality.

There is a limitation upon the power of the council to raise money, contained in section 5 of chapter 30 of the act, which provides:

“The aggregate amount which the council may raise by general tax upon the taxable real and personal property in the city, for the purpose of defraying the general expenses and liabilities of the corporation, and for all purposes for which the several general funds mentioned in section 3 of this chapter are constituted (exclusive of taxes for schools and school-house purposes), shall not, except as herein otherwise provided, exceed in one year per cent.”

It appears that the assessed valuation of the city of Monroe, in 1896, was $2,469,025; 1% per cent, thereof is $30,862.81. The total tax levy, exclusive of the taxes for schools and school-houses, under the appropriations made in September, 1896, for the year 1897, was $18,700, in which was included $5,650 for the water fund; and, according to the answer of the respondent filed in the court below, the amount to be appropriated in September, 1897, for the year 1898, will be about $18,000. So that it is seen the council has not exceeded the power conferred by the act, unless, as contended by counsel, in exercising the power to make a contract for a supply of water for a period of more than one year, and not exceeding 10 years, it is necessary for the council to first pass an annual September appropriation ordinance making an appropriation for the water fund, and which appropriation, added to the amount appropriated in the same ordinance for other purposes, except school taxes, must not exceed 1J per cent, of the assessed valuation of the city for the -preceding year. We think there is no force in this last contention, as affecting the question of the power to make this contract. If the council, under the power to make a contract for a supply of water for a period not exceeding 10 years, has obligated the city to pay a certain amount each year, that amount must be raised annually for the purposes of that fund, and be included in the annual September budget. There is no showing in the present case that this contract would be an appropriation of money, taken in connection with other necessary appropriations, exceeding the limit which, under the act, the council might raise, and we find no other provisions of the act limiting this power. Several provisions of the act are referred to by counsel on both sides; but we do not deem it necessary to discuss them, inasmuch as we think they do not limit the power of the common council in respect to the appropriation of this water fund.

But counsel for respondent say that, if this contract be sustained, the common council, acting under this charter, has the pdwer to tie up the revenues of the city for 10 years in the future for the exclusive benefit of one fund, and all the other needs and liabilities of the city are left without the means of payment. But, as said in People v. Mahaney, 13 Mich. 498:

“Whether the restriction fixed upon would as effectually guard the citizen against abuse as any other which might have been established was a question for the legislative department of the government, and does not concern us on this inquiry.”

Counsel also cite Niles Waterworks v. Mayor, etc., of Niles, 59 Mich. 311, and Putnam v. City of Grand Rapids, 58 Mich. 416, as having some bearing upon the question here. In those cases the city charter contained no provision expressly authorizing contracts for more than one year.

It is also contended that it was not the official duty of the mayor to sign contracts for the city. By section 1, chap. 7, of the act, the mayor is made the chief executive officer of the city, and it is his duty to see that the ordinances and regulations of the council are enforced. By section 1, chap. 8, the legislative authority of the city is vested in the common council, consisting of the mayor, two aldermen elected from each ward, and the city clerk; and by section 2 it is provided: “The mayor shall be president of the council, and preside at the meetings thereof, but shall have no vote therein, except in case of a tie, when he shall have the casting vote.” In the capacity either as chief executive of the city, of as president of the council, it is the duty of the mayor to obey the directions of the council in performing the ministerial act of executing a contract on behalf of the city.

The court below was in error in refusing to issue the writ of mandamus. That order will be reversed, and the writ must issue as prayed. No costs will be allowed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    GADSBY v. MONROE.
    1. Homestead — Alienation.
    An attempted conveyance of a homestead by a husband without the wife’s signature is invalid, though expressly made subject to a life estate previously conveyed to the wife.
    3. Same — Abandonment.
    A homestead is not abandoned by the mere absence of the owner from the State, where his wife continues to occupy the house, and it does not appear that the husband has acquired an independent homestead elsewhere.
    3. Quitclaim Deed — After acquired Title.
    A quitclaim deed is ineffective to convey a title subsequently acquired.
    Error to Kalamazoo; Buck, J.
    Submitted October 14, 1897.
    Decided December 15, 1897.
    Ejectment by Sylvia T. Gadsby and William Shakespeare against Eliphalet Monroe and others. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Reversed.

      D. O. French, for appellants.

      Howard, Roos & Howard, for appellees.
   Montgomery, J.

This is an action of ejectment. The property involved is lot No. 42 of the Kalamazoo Institute addition to the village (now city) of Kalamazoo. On and before the 17th of June, 1874, Charles H. Hurd held the legal title to the premises, and occupied them, with his wife, as a homestead. On that day he made a lease to his wife, providing for joint occupancy during the lives of both, and continuing her life estate after his demise until her death. In August, 1883 (the occupancy of the premises as a homestead still continuing), Mr. Hurd made a warranty deed of the premises to his daughter, Mrs. Gadsby, one of the plaintiffs in the case, subject to the life estate previously conveyed to his wife, and also reserving an estate to himself for life. Mrs. Hurd did not join in this deed. Mrs. Gadsby, on the 4th of December, 1895, executed a quitclaim deed to an undivided half interest in the land to plaintiff Shakespeare. Mrs. Hurd continued to occupy the premises until her death, in 1895; Mr. Hurd continuing to reside with her until 1887, when he went to Nebraska, where his daughter was residing, and remained until his death, in February, 1896. On the 27th of July, 1888, defendant Monroe commenced suit by attachment against Hurd, and attached the land in question. Under these proceedings a sale was made, and the title derived under this sale is now vested in Monroe. The other defendants are his tenants. The circuit judge directed a verdict for the plaintiffs, and the defendants bring error.

It is apparent that, if the deed from Hurd to Mrs. Gadsby was valid, this direction was right, as the title would vest in the two plaintiffs, and as the occupancy by the defendants was conceded by stipulation. The Oonstituti'on provides (article 16, § 2): “* * * Such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.” This provision has been considered by the court many times, and it has been held that the protection of the wife and children was intended, and that any attempted conveyance by the husband alone is invalid, and not to be treated as a valid conveyance subject to the homestead right. Dye v. Mann, 10 Mich. 291; Sherrid v. Southwick, 43 Mich. 519. See, also, Wap. Hom. & Exemp. 472, and note.

It is contended that the purpose of the statute is fully met by the reservation of a life estate. It is perhaps a sufficient answer to this to say that the Constitution deals with the land which constitutes a homestead, .and not with any specific interest therein. But it may be added that if, at the death of the husband and wife, minor children should happen to be living, their interests would not have been protected by the reservation of a life estate to the wife. We are cited to the case of Ferguson v. Mason, 60 Wis. 377, as sustaining the plaintiffs’ contention. The case goes far in that direction, although it should be noted that' the language of the constitutional provision under consideration in that case is materially different from ours. This case is criticised at length in Wap. Hom. & Exemp. 473 et seq. It is enough to say that that case is made to turn upon terms in the Wisconsin Constitution not found in ours, and that our previous construction of the Constitution of this State must be adhered to. It follows that the deed of 1883 to Mrs. Gadsby was invalid.

It is equally clear that the attachment proceedings failed to vest title in the defendant Monroe, unless the homestead right was in some way cut off by abandonment before the levy and sale. The wife still occupied the house, and the husband, as the head of the family, was entitled to return to it at any time. There is no evidence that he had acquired an independent homestead elsewhere. Under these circumstances, the homestead had not been abandoned, and the circuit judge was right in so holding. Thomp. Hom. & Exemp. § 277; Wap. Horn. & Exemp. -580.

It follows that the plaintiff Mrs. Gadsby showed a perfect title in herself, and under section 7815, 2 How. Stat., the court might properly have directed a verdict for her, and entered judgment accordingly. McCammon v. Railroad Co., 66 Mich. 442. This course was not pursued, however; a joint judgment having been directed for the plaintiffs. As Mrs. Gadsby took nothing by her deed, Shakespeare, who claimed by quitclaim from her before her father’s death, took nothing. Frost v. Missionary Soc., 56 Mich. 69.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    WAKELY v. JOHNSON.
    1. Malicious Prosecution — Advice oe Counsel.
    The complainant in a criminal prosecution cannot be held liable for malicious prosecution, where, before the commencement of the prosecution, he placed all the material facts in the possession of his own and the prosecuting attorney, and acted upon their advice.

      2. Same — Probable Cause — Nonappearanoe of Prosecutor.
    A dismissal of a criminal charge because of the nonappearance of the prosecuting attorney is not sufficient evidence of want of probable cause, in an action for malicious prosecution against the person making the charge.
    3. Criminal Law — Acquittal—Dismissal for Defective Complaint.
    A dismissal of a criminal prosecution because of a defective complaint is not an acquittal.

      4. Appeal — Judgment—Insufficient Evidence — Direction of Verdict.
    A judgment in a civil case will not be reversed on the ground that there was no evidence to support the verdict, where no request was made for the direction of a verdict.
    Error to Kent; Adsit, J.
    Submitted October 15, 1897.
    Decided December 15, 1897.
    Case by Hudson J. Wakely against Ernest W. Johnson for malicious prosecution. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff recovered verdict and judgment in an action for malicious prosecution. He was arrested upon a criminal warrant issued under a complaint made by the defendant charging him with obtaining money by false pretenses. The undisputed facts appear to be that plaintiff, in January, 1894, borrowed sof defendant $35, for which he gave his promissory note. In April following he applied to defendant to borrow more money, and represented that he was thg owner of certain personal property, which he enumerated, and offered to secure defendant by a chattel mortgage upon it. Relying upon these representations, defendant loaned him $80 more, and took a chattel mortgage for $115. Subsequently plaintiff desired a further loan. Plaintiff again represented that he owned the property, and defendant insisted upon a written statement from his wife that she owned no interest in the property. A new mortgage was drawn, executed by plaintiff, with the indorsement upon it, purporting to be signed by his wife, in which she covenanted and agreed that she held no interest in' the property. Plaintiff did not own the property, and his wife’s signature was a forgery.
    Defendant made a full statement of the facts to his own attorney, who advised him that the plaintiff was guilty of a crime, and to lay the matter before the prosecuting attorney. Defendant went to the office of the prosecuting attorney, and stated his case to the assistant prosecuting attorney, who drew the complaint. The case was dismissed in the justice’s court, by the direction of the prosecuting attorney, because of defects in the complaint. The defendant, his own attorney, and the prosecuting attorney testified that all the material representations and facts were stated by the defendant. The assistant prosecuting attorney alone was responsible for the defects in the complaint. He testified that he acted upon his own responsibility in commencing the prosecution. There was. no testimony whatever to contradict the statements of these witnesses.

      Frank G. Holmes, for appellant.

      D. E. Corbitt, for appellee.
   Grant, J.

(after stating the facts). Under this record there is no evidence to sustain the verdict. The defendant had done all that the law required him to do by placing all the material facts in the possession of his own and the prosecuting attorney, and acting upon their advice. Perry v. Sulier, 92 Mich. 72; White v. McQueen, 96 Mich. 249. But his counsel did not request the court to direct a verdict, and therefore the judgment cannot, for that reason, be reversed. Certain prejudicial errors were, however, committed.

1. The court stated to the jury that the plaintiff had been acquitted of the criminal charge. There was no trial, and therefore no acquittal. A dismissal of the case for a defective complaint is not an acquittal. An acquittal is a deliverance from the charge of guilt.

2. It was error not to give the following request:

“The proofs in this case show that the defendant fully stated all the facts in this case to legal counsel before going to the prosecuting attorney. I charge you that an attorney of experience has a legál and moral right to advise whether certain facts will justify a criminal charge and arrest, and the person receiving such advice is justified in acting upon it if he fully and fairly states the facts to the attorney. The evidence in this case shows that this criminal case was dismissed by the justice before whom it was pending on May 10th, the adjourned day. I charge you that a dismissal of this charge by the nonappearance of the prosecuting attorney is not sufficient evidence of want of probable cause.”'

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Long, C. J.

text:
    LUDINGTON v. CITY OF ESCANABA.
    Taxes — Irregularities—Curative Provision of Statute.
    Under the curative provision of the tax law of 1893 (Act No. 206, § 99), the failure of an assessor to extend the taxes on the original assessment roll which remained in his hands, and to put into the copy the figures showing what he originally assessed the 'property at, does not invalidate the assessment, where it appears that he inserted in the copy the figures showing the values as determined by the board of review.
    Appeal from Delta; Stone, J.
    Submitted November 6, 1897.
    Decided December 15, 1897.
    Bill by Charlotte J. Ludington and others against the city of Escanaba, Roscoe D. Dix, auditor general, and the board of supervisors of Delta county, to set aside certain taxes. From a decree dismissing the bill on demurrer, complainants appeal.
    Affirmed.

      F. D. Mead, for complainants.

      T. B. White, for defendant city of Escanaba.
   Long, C. J.

Charlotte J. Ludington and 2? others, taxpayers of the city of Escanaba, filed their bill to set aside certain tax assessments upon their property for the year 1896. The bill was taken as confessed by the defendants, except the city of Escanaba. A demurrer was interposed by the city, upon the ground of want of equity, the demurrer stating that—

“There is no allegation in the bill that the taxes complained of in the bill are excessive, illegal, or unjust; but the complainants base their right to relief purely upon the action of the assessing officer in not making the assessment roll and tax roll of the city in the exact form prescribed by the statute.”

The demurrer was sustained, and the bill dismissed, as the court below stated, “for the reasons set forth in Auditor General v. Hutchinson, 113 Mich. 245.”

It appears in the present case that the assessor made an assessment roll, but extended no taxes thereon. When it came time to extend the taxes, he took the same form of blank as the assessment roll, headed in exactly the same way, and copied upon that roll all that had been entered upon the assessment roll, except the value as assessed by him; that is, the names of the owners, the descriptions of the property, and the values as fixed and determined by the board of review. He then extended the tax upon this new roll, but failed to extend it upon the original roll. If this had been done, the two rolls would have been exactly alike, except the value as assessed. This constitutes the whole of the omission of which complainants complain. To this roll upon which the taxes were extended, the assessor attached his warrant, and delivered it to the city treasurer.

It was stated in Auditor General v. Hutchinson, supra:

“The defects consist in this: (1) That the assessor attached his warrant to the original tax roll, and delivered it to the treasurer, instead of delivering a copy, as the charter required; and (2) that the treasurer, in making his return, did not verify his statements of uncollected city and school taxes. No claim is made, either in the objections filed to the petition, or in the testimony, or in the arguments of counsel, that the taxes are unjust or excessive. Contestants are not before the court offering to bear their just proportion of the public burden. On the contrary, they seek to avoid the payment entirely, because officers upon whom is imposed the duty to perform certain acts have not performed them in strict accordance with the requirements of the law. It is too clear ip require extended argument that the fact that the collector used the original tax roll instead of a copy, and the failure to verify a statement at the time required by the law, do not affect the justice of the tax, nor prejudice the property rights of these contestants. If these defects are not covered and cured by the curative statute above cited, it is difficult to note any defect which would be cured by it.”

The above language by Mr. Justice Grant is applicable to the present case. Here the defect complained of was not that the assessor placed in the treasurer’s hands the original assessment roll, and not a certified copy, as the law directs, but simply a failure to fill out in full the original roll which remained in his hands, and not putting into the copy the figures showing what he originally assessed the property at. But it appears that he did insert in the copy the figures showing the values as determined by the board of review. It cannot be said that these omissions in any manner prejudiced the property rights of the taxpayers. Section 99, Act No. 206, Pub. Acts 1893, provides that—

“No tax assessed upon any property, or sale therefor, shall be held invalid by any court of this State on account of any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, * * * or on account of any other irregularity, informality, or omission, or want of any matter of form or substance, in any proceeding, that does not prejudice the property rights of the person whose property is taxed; and all proceedings in assessing and levying taxes, and in' the sale and conveyance therefor, shall be presumed by all the courts of this State to be legal until the contrary is affirmatively shown.”

The defects complained of are covered by this curative statute; and the court below was not in error in holding that the case is governed by Auditor General v. Hutchinson, supra, and in dismissing complainants’ bill.

The decree below is affirmed. The defendant city of Escanaba will recover the costs of both courts.

The other Justices concurred.


author: Moore, J.

text:
    MANISTEE & GRAND RAPIDS RAILROAD CO. v. AUDITOR GENERAL.
    1. Railroad Taxation — Exemptions—Statutes.
    The provision of Act No. 174, Pub. Acts 1891, that the rate of taxation fixed thereby, or by any other law of the State, shall not apply to any railroad company “hereafter building and operating ” a line of railroad within a specified part of the State until it has been operated for 10 years,' does not exempt from taxation any portion of a railroad the construction of which was begun nearly two years before the act took effect, and which at that time was in such condition, for nearly two-thirds of the entire line, that trains were being run over it, and freights earned.
    2. Same — Computation by Commissioner op Railroads — Time op ■ Making — Directory Provisions.
    1 How. Stat. § 3358, providing that the commissioner of railroads shall, on or before May 15th of each year, make and file with the auditor general a computation of the amount of taxes due from each railroad company in the State, basing the computation upon the report of such company for the preceding year, is directory, and not mandatory, as to time, and a computation made after the specified date by the successor in office of the commissioner whose duty it was to make the computation, based úpon the proper report of the company, is valid.
    Appeal from Manistee; McMahon, J.
    Submitted November 4, 1897.
    Decided December 15, 1897.

      Bill by the Manistee & Grand Rapids Railroad Company against Stanley ‘W. Turner, auditor general, to set aside certain taxes. From the decree rendered, both parties appeal.
    Bill dismissed.

      T. J. Ramsdell (Hanchett & Hanchett, of counsel), for complainant.

      Fred A. Maynard, Attorney General, for defendant.
   Moore, J.

Complainant filed a bill tó set aside taxes assessed by the commissioner of railroads against the complainant company for the.years 1891, 1892, 1893, and 1894. A decree was entered ih the court below setting aside the taxes for 1891 and 189-2, and sustaining them for 1893 and 1894. From this decree both parties appeal.

The record shows that the complainant company is situated north of parallel 44 of latitude; that its road is for the purpose of carrying freight; and that it is not a road for carrying passengers. It was organized November 11, 1889, and in December of that year commenced the construction of its line of road, which at the date of the institution of this proceeding was about 31 miles long. The work progressed so that in August, 1891, about 18 miles of track was laid and partly ballasted, and the company began to haul logs for the owners of .timber along the line of its road and to carry camp and mill supplies. Prior to October 2, 1891, it had hauled about 5,000,000 feet of logs and 200,000 pounds of mill and camp supplies. The roadbed was in such condition at this time that it was necessary to run the trains very slowly. Prior to October 2, 1891, the receipts for the traffic of the road amounted to about $7,000. The complainant reported from year to year the business of the road to the commissioner of railroads. This official did not make or file with the auditor general any computation of any tax against said complainant for the years 1891 and 1892. In May, 1894, the then commissioner of railroads made and filed with the auditor general a computation of taxes as due from the complainant, not only for the year 1893, but also for the years 1891 and 1892. A year later a like computation was made for the taxes of 1894. It is to set aside these taxes that this proceeding is instituted.

The taxes were assessed by virtue of the provisions of Act No. 174, Pub. Acts 1891, which act took effect October 2, 1891. This act has a provision reading as follows:

‘Provided further, that the rate of taxation fixed by this act, or any other law of this State, shall not apply to any railway or railroad company hereafter building and operating a line of railroad within this State north of parallel 44 of latitude, until the same has been operated for the full period of 10 years,” etc.

It is the claim of complainant that its line of road -was not built and operated until the act took effect, and for that reason it is exempt from taxation. In construing this statute it may be pertinent to inquire what is its purpose. It is a matter of common knowledge that the portion of Michigan lying north of parallel 44 of latitude is much more sparsely settled than the southern portion of the State, and does not offer so inviting a field for the investment of capital. It was undoubtedly the purpose of this legislation to encourage capital to invest in new railroad enterprises in the newer portion of the State. The complainant, however, was organized and entered upon the construction of its line of road nearly two years before the act became operative, and it can hardly be said the purpose of the act was to apply to corporations like the complainant. Can it be said that complainant’s line of road is included in the phraseology of the statute, when it says the rate of taxation shall not apply to “any railroad company hereafter building and operating a line of railroad? ” As has already been stated, the complainant had entered upon the construction of its line of road nearly two years before this act took effect, and when it took effect had nearly two-thirds of its line in such condition that it was running trains over it and earning freight.

“As taxation is the rule, and exemption the exception, the intention to make ap exemption ought to be expressed in clear and unambiguous terms, and it cannot be taken to have been intended when the language of the statute on which it depends is doubtful or uncertain. It is also a very just role that, when an exemption is found to exist, it shall not be enlarged by construction. On the contrary, it ought to receive a ptrict construction; for the reasonable presumption is that the State has granted in express terms all it intended to grant at all, and that, unless the privilege is limited to the very terms of the statute, the favor would be extended beyond what was meant.” Cooley, Tax’n (2d Ed.), 204; Lake Shore, etc., R. Co. v. City of Grand Rapids, 102 Mich. 374, 380 (29 L. R. A. 195).

We think it clear that the complainant is not within the exemption of the statute.

Complainant claims that the person who was commissioner of railroads holding office in 1892 and 1893 is the only officer authorized to make the assessment of the taxes of 1891 and 1892, and that the act of his successor in office in making the assessment of these taxes in May, 1894, was unauthorized and beyond his jurisdiction. It is argued by counsel for complainant:

“The whole authority for making the assessment by the commissioner of railroads is found in 1 How. Stat. § 3358. The provision is explicit that he shall make the assessment on or before May 15th, upon the report of the railroad company made for the preceding year. The assessment so made becomes due as a tax on the 1st day of the following July. It then becomes a lien upon the property of the railroad company. Taxation is a proceeding which is adverse to the taxpayer, and depends wholly upon statutory provisions. A tax lien cannot be created against the taxpayer’s property except by a strict compliance with the provisions of the statute by the officers who assess or levy the tax. This is a fundamental law in taxation. Cooley, Tax’n (2d Ed.), 217, 218, 323-325; 25 Am. & Eng. Enc. Law, 76-79, 202; Hoyt v. City of East Saginaw, 19 Mich. 45, 46; Scofield v. City of Lansing, 17 Mich. 437, 446, 447; Seymour v. Peters, 67 Mich. 415.
“The omission or neglect of the railroad commissioner to assess the tax on or before May 15, 1892, upon the report for 1891, or his omission or neglect to assess the tax on or before May 15, 1893, upon the report for 1892, would not make an assessment of such tax, made upon the same reports by the auditor general, a valid tax, for the reason that the statute confers upon the person holding the office of commissioner of railroads the power to assess the tax, and confers the power upon no one else. If he omits to do his official duty, no provision is made for its being performed by any one.”

The logic of this reasoning is that, though the legislature has by express enactment provided for a specific tax, the amount of which can be determined by a simple computation, its right to the tax can be utterly lost because an administrative officer does not, through inadvertence or through misinterpretation of the law, or for any other-reason, make the computation at the time when he is directed to do so by the statute.

The duty to make the computation required by the statute does not devolve upon the individual in his personal capacity, but it devolves upon the official; and, though the computation which ought to have been made in the years 1892 and 1893 was not in fact made until 1894, it was made by the same official, though a different person who made it, as though it had been made at the time designated by the statute. The rate of the tax was fixed by the legislature. The only effect of the delay, so far as the complainant is concerned, is that it has not been required to pay the debt due the State as soon as it would have been obliged to do if the direction of the statute'had been followed. We think the provision of 1 How. Stat. § 3358, as to the time when the commissioner of railroads shall compute the amount of tax due, is so far directory as to be brought within the decisions of this court in People v. Supervisors of St. Clair Co., 30 Mich. 388, and County of Oceana v. Township of Hart, 48 Mich. 319. In the last-named case there had been a failure by the board of supervisors to spread upon the roll delinquent taxes at the time provided by the statute, and in disposing of the case it was said:

“The county is entitled to a return of money or delinquent taxes to the full amount of the tax levy, and the failure to have such a return arises out of the town treasurer’s delinquency. By section 1105 of the Compiled Laws, all losses sustained by such default are chargeable to the township, and the board of supervisors are required to add the amount to the next year’s taxes. It is claimed that failure to add the sum to the next year’s taxes leaves no future power in the board to require their collection, as the statute requires no action but for the next year. We have no doubt the time provision is directory, and that a failure to act at once does not cancel the debt. It would require clear language to justify the inference that an obligation of this sort can be canceled by such inaction.”

The debt due the State by the complainant cannot be canceled by such inaction of the commissioner of railroads as was shown here. See Cooley, Tax’n (2d Ed.), 289; Suth. Stat. Const. 575.

The complainant contends that, if the court finds from the record that the 18 miles of road was so far completed as to take the road out of the exemption of the statute, the decree should be modified so as to subject the road to taxes on the gross earnings of the 18 miles only. The exemption mentioned by the statute refers to “a line of railroad” hereafter built and operated, and not to such portion of the line as may hereafter be constructed. It is evident that the line of road which the complainant expected to build when it was incorporated was the line which it has since built: The tax should not be confined to the 18 miles, but should be assessed against the gross earnings of the line, a major part of which was constructed and operated when the law went into effect.

The decree canceling the taxes of 1891 and 1892 should be reversed, and the bill dismissed, with costs of both courts.

The other Justices concurred.


text:
    CONNOR v. LEVINSON.

    1. Evidence — Fraud—Damages—Instructions.
    In an action for fraudulently inducing plaintiff to sell a stock of goods for a small part of its value in money and a watch and chain, witnesses who had examined the goods a month before the sale were permitted to testify as to their value. This testimony was supplemented by that of other witnesses, who had examined the stock a day or two before the sale. The circuit judge instructed the jury that, in case they found for plaintiff, the measure of damages would be the actual value of the property at the time of the sale, less the money paid and the value of the watch and chain. Reid, that there was no error.
    2. Same — Witnesses—Parties in Interest.
    Evidence that third persons paid the fees of a witness for plaintiff, who, though not subpoenaed, came from a distance to attend the trial, is incompetent to show that plaintiff is not prosecuting the suit.
    Error to Charlevoix; Corbett, J.
    Submitted November 4, 1897.
    Decided December 15, 1897.
    Case by John Connor against Julius H. Levinson for fraudulently obtaining a stock of goods. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Pailthorp & McCabe (M. V. Montgomery, of counsel), for appellant.

      A. D. Cruickshank, F. W. Mayne, and R. W. Kane, for appellee.

       Rehearing denied March 22, 1898.

   Moore, J.

Defendant appeals from a judgment obtained against him by plaintiff in a proceeding in which plaintiff claims that, when so intoxicated that he was incapable of intelligently -transacting business, he was induced to make a bill of sale to defendant of a stock of boots and shoes and a store building and fixtures, worth-five or six thousand dollars, for $900 in money, and a watch and chain represented to be made of California gold, which were in fact made of base metal. A good many assignments of error are made which we cannot consider, as the bill of exceptions does not purport to contain all of the testimony upon any branch of the case except the testimony in relation to the value of the stock. It is necessary to consider but two of the assignments of error.

The sale was made on the morning of July 8th. To show the value of the stock of goods, plaintiff introduced a witness who had examined it June 5th, and another who had examined it June 12th, previous to the sale. Objection was made to the admission of this testimony, upon the ground that it was too remote. Plaintiff supplemented this testimony by that of witnesses one of whom examined the stock the day before the sale, and another two or three days before the sale. The defendant offered evidence upon the question of the value of* the stock. Upon that feature of the case the court charged the jury that, in case they found a verdict for plaintiff,—

“The measure of damages will be the actual value of the property upon the 8th day of July last, less the money and the value of the watch and chain received by the plaintiff on that occasion. From the actual value of the property at the time of entering into this contract upon the 8th day of July last, if you find for the plaintiff, you will take the value of the watch and chain and money received, — the $900, — less the amount of the taxes, and the value of the watch, whatever you may find it to be.’'

We think the testimony was competent, and that the jury were properly instructed in relation to the effect of the testimony.

Mr. Cotton was sworn as a witness for the plaintiff. On his cross-examination the following occurred:

“Q. How long have you been here on this case?
‘‘A. I came Monday morning.
“ Q. At whose request ?
“A. I came by telegraph from Mr. Kane, to represent my house here.
“Q. Who paid your fees as witness here ?
“Mr. Cruickshank: To that I object, as immaterial and ' incompetent.
‘Mr. Pailthorp: We think it appears from the evidence here so far that the plaintiff, Connor, is having but very little to do with this case; and I think it important to know who is looking after this case in the name of Con-nor, and who is paying expenses of these witnesses from Ohio and other places at a distance.
“Court: The objection is sustained.
“Mr. Pailthorp: Note an exception.
“Q. Were you subpoenaed?
“A. I was not.”

It is now said that it was the right of defendant to ascertain by interrogating witnesses, who assumed to testify on behalf of plaintiff, (/whether the suit was being prosecuted by plaintiff or some one else without the consent of plaintiff. Conceding that the defendant had a right to show, if he could, that plaintiff was .not prosecuting the suit, we do not see how an answer to the question put to the witness would throw any light upon that subject. If the question had been put to the witness for the purpose of showing his interest or bias, we think it would have been competent, and the court would doubtless have permitted an answer if that reason had been assigned. Mr. Cruickshank had testified to his employment by Mr. Connor to commence and prosecute this suit. The answer to the question put to the witness, if permitted, would not tend to contradict this testimony.

Judgment is affirmed.

The other Justices concurred.


text:
    UNION STREET-RAILWAY CO. v. CITY OF SAGINAW.
    1. Receivers — Street Railways — Mortgages.
    A receiver may be appointed to take possession of the property of a street-railway company, with iiower to operate the road, and to borrow money to j)ay paving taxes which the company is confessedly unable to pay, and for the nonpayment of which the city threatens to enforce a forfeiture of the company’s rights in the streets, upon the application of a ■ mortgagee, who agrees, for the sake of preserving the property, to advance, upon the receiver’s certificates, the money necessary to pay the tax.
    2. Same — Equity Pleading — Cross-Bill.
    A mortgagee of street-railway property may, in injunction proceedings by the railway company to prevent the city from revoking its franchise granting it privileges in the streets, file a cross-bill asking for the appointment of a receiver of the property, with power to operate the road, and to borrow money to enable it to meet expenditures required by the terms of its franchise, so as to preserve the property; the subject-matter being substantially the same as that set up by the original bill, and the relief sought being germane.
    Appeal from Saginaw; Snow, J.
    Submitted November 3. 1897.
    Decided December 15, 1897.
    Bill by the Union Street-Railway Company of Saginaw to restrain the city of Saginaw from removing complainant’s tracks from the streets. The Boston Safe-Deposit & Trust Company, mortgagee, was admitted as a party defendant, and filed a cross-bill asking the appointment of a receiver of complainant’s property. From a decree for defendant in accordance with the prayer of the cross-bill, complainant appeals.
    Affirmed.

      De Forest Paine (Wm. G. Gage, of counsel), for complainant.

      Humphrey & Grant (Benton Hanchett, of counsel), for defendant trust company.
   Montgomery, J.

The original bill in this case was filed to restrain the common council of the city of Saginaw from revoking the franchise of complainant, and forfeiting its rights in the streets, because of the failure of the company to comply with the terms of the ordinance granting to it privileges in the streets. The circuit judge refused to enjoin the city authorities from taking the action contemplated, whereupon the complainant appealed to this court for relief, and the questions involved in the application for injunction were fully considered, and an opinion was filed sustaining the decision of the circuit judge. Union St. R. Co. v. Saginaw Circuit Judge, 113 Mich. 694. Reference is made to that decision for a full statement of complainant’s claim. It is only necessary to add that it appears from the original bill that complainant is unable to comply with the terms of the ordinance requiring it to pave between the tracks; that the earnings of the road are not sufficient to pay running expenses, repairs, and a fixed charge for interest. The answer of the city admitted its purpose to be to forfeit the rights, privileges, and franchises of the company, and to stop the operation of its cars, and prayed the benefit of a cross-bill.

On the 7th of July, 1897, the complainant was required to amend its bill, making the Boston Safe-Deposit & Trust Company a party defendant. Such amendment was made July 15, 1897. The trust company thereupon filed its answer in the nature of a cross-bill, and afterwards filed a cross-bill. The cross-bill sets out the facts stated in the original bill and answer of the city, avers that the trust company holds a mortgage of $325,000, made by complainant, and avers the execution of a mortgage made by the Consolidated Street-Railway Company to secure $225,000 of outstanding bonds, and further sets out the lease by the Consolidated Street-Railway Company to the complainant of all its property for a period of 30 years, and the execution by the complainant to the trust company of a mortgage on its property of $225,000 as collateral, and to secure the payment of the bonds of the Consolidated Street-Railway Company; avers that interest is due on the two mortgages amounting to $16,500.

The cross-bill states that, since the filing of the original bill, the common council of the city has passed the resolution of which Exhibit C of the original bill is a copy, and that the city has notified said street-railway company that, unless it is prepared to relay its tracks in Washington avenue and in Wadsworth street according to the requirements of the city at the time when said streets are being paved, during the summer of 1897, the city will tear up and remove the tracks from the streets, and repave the streets from curb to curb; and it charges that such action will be taken by the city unless some arrangement be made for relaying the tracks when such paving is done; that the cost of relaying such tracks will be at least $15,000; that, by reason of the premises, the rights and interests of the trust company and of the bondholders under the mortgages held by the trust company upon the property of said street-railway company, amounting to $550,000, are in great and immediate danger, and, in order to protect such rights and interests, a receiver should be appointed to take possession of and operate the said street-railway company’s road3,,and rebuild the tracks as requested by the city, and to protect and preserve the property from forfeiture by the city. It states that the city, claiming that the street-railway company has forfeited its rights for failure to pay the sums owing by it for paving in 1895 and 1896, has stopped the running of cars upon the tracks of the company, and threatens to remove the tracks and appliances from the streets. It avers that no demand has been made upon the trust company to pay said sums owing for paving, and that no notice has been given to it on the part of the city of the intention of the city to forfeit the rights and franchises of the street-railway company; and it offers, if a receiver be appointed, with power to borrow money and issue receiver’s certificates therefor, to furnish to the receiver the money necessary to pay said sums due and to become due to the city for paving, and the sums necessary for relaying the tracks; and it prays 'for the appointment of such receiver, and for an injunction to stay the city from tearing up the tracks, or selling the franchises in the streets.

Upon filing this cross-bill a motion was made for the appointment of a receiver to take possession of the property of the street-railway company, with power to operate the road, and to borrow money to pay the said sums due the city, and to relay the tracks, to the end of preserving the property. The motion was based upon the files in the case, including the original bill, the answer of the city, and the cross-bill. Upon the hearing an order was made appointing the receivers with authority as prayed for. From this order the street-railway company appeals.

Counsel for the street-railway company contend that the court did not have power to appoint a receiver, for the reason that the effect of such appointment is to give to the mortgagee the possession and the benefit of the rents before the redemption period has expired by foreclosure. This latter it was not competent for the court, to do, under the conditions and stipulations of the mortgage; and, if the purpose and effect of the appointment of a receiver was to divest the mortgagor of possession, and apply the“ rents and profits to the payment of the mortgage, the action was unauthorized. Hazeltine v. Granger, 44 Mich. 503. It is not contended by the trust company that the court has the power to divest complainant of possession for the purpose stated, but the cross-bill is filed, not for the purpose of foreclosure, but for the purpose of preserving the property. In this respect the case closely resembles Ralph v. Shiawassee Circuit Judge, 100 Mich. 164. In that case the loss of the franchise of the corporation was threatened through the inactivity of the stockholders of the corporation. In the present the same disaster is threatened because of the confessed inability of the corporation to comply with the terms of its ordinance. This inability is asserted in its own bill of complaint, and in Union St. R. Co. v. Saginaw Circuit Judge, 113 Mich. 694, we held that the city has a summary remedy to enforce the forfeiture of complainant’s franchise upon its failure to comply with the terms of its ordinance. Can it be that a court of equity is without power to protect the interests of the bondholders when their representative stands ready, on receiving the proper order of the court, to advance the necessary money to prevent the forfeiture ? We think the case falls within the line of precedent, and that the appointment of a receiver with the powers granted was authorized under the statute. 2 How. Stat. § 6611; Williamson v. Wilson, 1 Bland, Ch. 418; Kennedy v. Railroad Co., 2 Dill. 448; Brassey v. Railroad Co., 19 Fed. 663 (17 Am. & Eng. R. Cas. 285); Barton v. Barbour, 104 U. S. 126; 20 Am. & Eng. Enc. Law, 19.

It is objected that a cross-bill will not lie under the circumstances shown in this case. The subject-matter in the original bill is the forfeiture of the complainant’s rights in the streets, and the bill was filed to prevent this being done. The cross-bill which the trust company has filed has the same purpose of preventing a lapse by forfeiture of the rights of the company, and asks the intervention of a receiver with powers sufficient to effectuate this purpose. The subject-matter is substantially the same, and the relief sought is germane. We think the bill was properly filed. Powers v. Hibbard, 114 Mich. 533; Griffin v. Griffin, 112 Mich. 87.

It is also claimed that the order for the appointment of a receiver relates in part to property covered by an order appointing a receiver in a proceeding against the Con,-solidated Street-Railway Company. But we think the effect of the appointment of a receiver in that case was to. vest the receiver with possession, subject to the rights of the Union Street-Railway Company as lessee. What those rights are it will not become necessary to determine until there arises some controversy between the receivers.

The order appealed from will be affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. COMSTOCK.
    1. Banking Law — Violation—Specific Intent — Proof.
    Section 58 of the general banking law (3 How. Stat. § 3208a et seq.) provides that ‘ ‘ every president, director, cashier, treasurer, teller, clerk, or agent of any bank, who, * * * without authority of the directors, * * * draws any order or bill of exchange * * * with intent * * * to injure or defraud the bank, * * * and any person who, with like intent, aids or abets any officer, clerk, or agent, in violation of this section, * * * upon conviction thereof, shall be imprisoned * * * not to exceed 20 years.” Held, that the offense defined involves a specific intent to injure or defraud the bank; an intent not necessarily deducible from the fact that an agent of a bank, without authority from the directors, drew an order in favor of a patron to whom credit had, to the agent’s knowledge, already been extended beyond the legal limit.
    2. Same — General Provisions — Construction.

      It seems that section 18 of the act (3 How. Stat. § 320867), providing for the punishment of all who knowingly aid or assist in a violation of any of its provisions, is designed to provide a punishment for all offenders, principals as well as aiders and abettors, except such as are within other sections of the act which themselves prescribe the punishment for specific offenses.
    Exceptions before judgment from Mason; McMahon, J.
    Submitted November 5, 1897.
    Decided December 15, 1897.
    Chester W. Comstock was convicted of violating the banking law.
    Reversed.

      Frank Dumon (M. L. Dunham and Gilbert H. Blodgett, of counsel), for appellant.

      Fred A. Maynard, Attorney General, and A. B. Cogger, Prosecuting Attorney, for the people,
   Hooker, J.

The defendant was convicted upon a charge that he had violated section 58 of the general banking law, being 3 How. Stat. § 3208/7, which reads as follows:

“Seo. 58. Every president, director, cashier, treasurer, teller, clerk, or agent of any bank, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, credits, or property of the bank, whether owned by it or held in trust, or who, without authority of the directors, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree, or who makes any false entry in any book, report, or statement of the bank, with intent in either case to injure or defraud the bank, or any company, corporation, or person, or to deceive any officer of the bank, or any agent appointed to examine the affairs of such bank, and any person who, with like intent, aids or abets any officer, clerk, or agent, in violation of this section, or who shall issue or cause to be issued, or put in circulation, any bill, note, or other evidence of debt to circulate as money, upon conviction thereof, shall be imprisoned in the state prison or in the state house of correction and reformatory at Ionia, not to exceed 20 years. ”

The information contains five counts, but only the last three were relied upon at the trial. In each of these the defendant is charged with having, on the 22d day of October, 1896, while acting as clerk, agent, and manager of the Mecosta County Savings Bank, drawn an order or bill of exchange with intent to injure and defraud said bank. The defendant stood mute, and a plea of not guilty was entered by direction of the court.

At the time of this transaction, D. F. Comstock, defendant’s father, was a large stockholder, and president, of the bank. On October 23, 1896, an acceptance of D. F. Comstock & Co. for $2,000 was to fall due, and on the evening of October 22d the defendant drew and forwarded to the holder a draft upon the Hanover National Bank of New York to pay said acceptance. The senior ' Comstock was at this time a debtor to the Mecosta Bank in an amount largely beyond the lawful limit, and, it appearing that the draft was drawn and mailed without the express authority of the board of directors, the judge submitted to the jury only the question of defendant’s intent to injure and defraud the bank, which specific intent they were told must be proved to the exclusion of a reasonable doubt, to warrant a conviction. The defendant testified that he intended to charge the draft to his father’s account, or to the account of D. F. Comstock & Co., which was apparently equivalent thereto, and that he believed that his father was able to and would pay it, and that he had no thought that the bank would lose a dollar by the transaction. In other words, he gave testimony tending to prove that when he drew the paper he harbored no design to cause the bank pecuniary loss, or to injure or defraud it in any way; and it is urged that, if this was true, he should not have been convicted.'

Section 52 of the law provides that the total liabilities of any person to the bank shall not at any time exceed 10 per cent, of its capital, and it seems to have been the theory of the prosecution that the intentional extension of credit beyond the limit necessarily involved an intent to injure and defraud the bank. The learned circuit judge who tried the case does not seem to have assented to this view of the law, for, while he said to the jury that there was no dispute about the drawing of the order without the consent of the directors to pay an acceptance of D. F. Comstock & Co., he left to the jury the question of the defendant’s intent, which he need not have done if the legal inference of an intent to injure and defraud the bank necessarily follows the extension of credit. Again, in defining these words, he said:

“I suppose it is not necessary, gentlemen, for me to define in this case, with any more particularity than their common meaning gives, the words ‘injure and defraud.’ Certainly these words are used in this statute, I think, largely in their popular meaning, and of course to injure a bank ordinarily would be to depreciate or destroy, squander or dissipate, some of its property or assets.”

His dissent from this proposition is also implied by the following quotation, in which he gives prominence to the withdrawal of the funcT without putting an equivalent into the bank:

“For the purposes of this case it is sufficient to say that the drawing of this order upon the Hanover National Bank of New York without putting into the bank an equivalent therefor, and without the authority of its board of directors, constituted an injury and a fraud upon the bank. There is no doubt about that. Therefore no time need be spent in determining nice discriminations as to the exact meaning of these words ‘to injure and defraud.’”

This was followed by instructions to the jury concern: ing the inferences that they were authorized to draw from the circumstances, and the application of the rule that a man may be presumed to intend the natural and necessary consequences of his acts. He proceeded:

“And so, in this case, if the offense here which is charged against Chester W. Comstock was the result of misapprehension or accident, of qourse he is excusable; but, if he intentionally, purposely, and knowingly drew this order, and intended to deprive the bank of $2,000 of its assets, and without consideration, and without the authority of the bank or its directors, he is guilty as charged in this information. The intent would be presumed from the conscious, purposeful performance of such an unlawful action. In other words, sometimes the act determines the intent, and the jury is justified in inferring an intent. The purpose which a man entertains in his mind secretly and privately cannot often be proven by open, overt testimony. These intentions and purposes are not something upon which you can put your finger, which you can weigh and measure, define and locate, as you can some physical object. They must be inferred from circumstances; and in this case the only way you have of determining the intent of Chester W. Comstock is to examine all the surroundings, — examine what he did, and under what circumstances he acted, with what knowledge he acted, — and determine the question of his intent. Wrongful acts, intentionally committed, — wrongful in law or in fact, — imply the wrongful intent which they indicate, and if the defendant knowingly and purposely drew this draft to pay the debt of D. F. Comstock & Co., intending to appropriate the funds of the bank to that purpose, without the consent of its directors, and without any authority in law or in fact, it would constitute 'an injury upon this bank, and the defendant is guilty as charged.”

So far it would perhaps appear that the court intended the jury to understand that drawing the draft with an intention to pay D. F. Comstock’s acceptance at the expense of the bank was necessary to a conviction (though the last quotation may possibly be open to another construction), but from what follows we are of the opinion that the judge lost sight of this feature, and inadvertently laid down a different rule. The charge continued as follows:

“The defendant here has testified that he intended to charge the amount of this draft to D. F. Comstock & Co. on the books of the bank. It appears in evidence here, gentlemen, that D. F. Comstock was D. F. Comstock & Co.; that he owned all of its stock and,assets; that its account upon the books of the bank was not kept separate from his own; that it was kept in with his account. It does not appear, unless from an inspection of the papers which have not been read in evidence, what the amount of indebtedness of D. F. Comstock & Co., if any, was to this bank. I feel constrained to charge you that, if the defendant entertained the intent to charge this $2,000 to D. F. Comstock’s account at the time he drew the draft, it would constitute no defense in this case. The statute of the State provides that the liability of no person to any bank organized under the act shall exceed 10 per cent, of its capital stock and reserve. The capital stock of this bank was $50,000. And D. F. Comstock, upon the showing here, was indebted to the bank in a greater sum than its entire capital stock. For the defendant to have charged this $2,000 to D. F. Comstock upon the books of the bank, and add that amount to his liabilities, which were already in excess of the amount authorized by law, would have been another unlawful act on his part, if the first was one, —which I do not assume. He had no right to do that, and I am unable-to see that an intention to perform one unlawful act would excuse another. ”

Look at it as we may, we are unable to avoid the conclusion that it supports the proposition of the people’s counsel, viz., that the intentional undue extension of credit was a legal fraud, and that it was criminal, whether the defendant designed or believed that the bank would be a loser in the transaction or not. In substance, it says that, although the defendant should have believed that he was protecting the bank, the law will conclusively presume that he intended to injure and defraud the bank. In other words (as an abstract proposition), the specific intent, made an element of the offense by law, is necessarily implied from an act which may have been intended to benefit the bank. This was plainly injurious to the defendant, unless the prosecution is right in its claim. This depends upon the construction to be given to the statute, and the meaning of the words “injure and defraud the bank.” If we take these words to mean only a material hurt or loss to the bank, in the sense that a loss of a portion of its funds would be a hurt or loss, — as the first quotation would indicate to have been the view of the trial court, — the last quotation cannot be sustained. If, on the other hand, we can say that any infraction of the banking law is a fraud upon and injury to the bank, within this section, there wasmo error in this charge in this particular.

In determining this question, we may profitably examine other portions of the statute, and see what other acts would be subject to the same charge of fraud, and punishable under this section. In the first place, this section enumerates many, if not most, of the important functions of the officers of the bank, and makes them criminal, if done with the specific intent, and without authority of the board. It is significant that many of these are by other sections prohibited and made criminal, and punishable to a lesser extent, without mention of the intent. The very element which is said to make the issue of this draft unlawful, viz., the undue extension of credit, is introduced by section 52, where the amount of indebtedness of individual debtors to the bank is restricted. Section 19 punishes the certification of a check when the drawer has not the requisite credit, and section 18 provides for the punishment of all who knowingly aid or assist in a violation of any of the provisions of the act. Section 52 does not make the undue extension of credit an offense, and, if it is punishable, it is under section 18 or 58. If section 18 is to be so technically construed as to apply only to aiders and abettors, and not to the principal actor, then the cashier who, unaided by any one, extends such credit, cannot he punished under that section, and, if punishable at all, it must be under section 58; but in that case, while he could be punished for extending such credit if he issued a draft to the debtor, he could pay him the cash with impunity, for payment in cash is not included in the list of proscribed acts. So we must say that, if giving credit improperly is punishable at all where cash is paid, it must be under section 18; and, if it is not punishable under that section, we have the singular condition of an act being punishable when an obligation to pay cash is given by the officer, when, if he pays cash under similar circumstances, it is not punishable at all. Again, if section 18 is to receive the technical construction mentioned, we must either find that many of the prohibited acts are not punishable, or that only aiders and abettors are liable. It is, in our opinion, more reasonable to believe that section 18 was designed to punish all offenders under the act, except such as are within section 58, and possibly other sections, providing specific punishment for acts therein enumerated, if there are any such. It would follow that an intentional extension of credit beyond the limit is an act punishable under section 18, the intention to defraud not being an essential element. Section 58 was aimed at more heinous offenses, as its severe penalty clearly implies. The section is aimed at embezzlement and misapplication of funds, and the issue of enumerated instruments with specific intent to deceive, mislead, and cheat, — things that do not necessarily enter into an undue extension of credit, though such undue extension of credit may enter into them, in which case it is possible that there may be a choice of remedies by the authorities.

It is argued that the general criminal intent evinced by the violation of section 52 is sufficient. In crimes of violence which do not involve a specific intent, the general, intent is sufficient; as in murder, when the malice which will justify a conviction need not include a design to take life. But in burglary, where there must be an intent to commit a felony, and in larceny, where there must be an intent to deprive the owner of his property, the specific intent must appear, and, although the breaking or taking of personal property be unlawful, amounting possibly to a trespass, the offense is not made out if the specific intent be wanting; as when one broke and entered intending to commit a simple assault and battery. Voluntary intoxication may be a defense to persons charged with some offenses, where it is of a degree which enables a jury to say that the accused was incapable of forming the specific and requisite intent. Thus an assault and battery is not excused by voluntary drunkenness, but the more aggravated offenses depend upon the accompanying intent prescribed in each case, and anything that tends to show its absence is a defense. A man could not be convicted of assault with intent to murder if his design was shown to be merely to deprive his victim of an arm or leg, to cut off his ear, or put out an eye. In either of these cases it would be competent for the defendant to prove that his actual and only intent was another than that charged, although unlawful, and even criminal; and a charge that intent to commit rape might be found notwithstanding it was made clear that the offense, if completed, would have been no more.than incest, upon the ground that the attempt to commit incest was an unlawful and criminal act, and therefore no excuse, would be error. The foregoing principles are fully supported by our own decisions. Roberts v. People, 19 Mich. 414; People v. Sweeney, 55 Mich. 586; People v. Lilley, 43 Mich. 521; People v. Umlauf, 88 Mich. 274. In U. S. v. Harper, 33 Fed. 482, it is said that the law may presume an act to have been done with a design to produce the necessary and natural consequences of such an act; but this language is qualified by the following:

“ I do not wish to be understood as meaning that the intent to injure or defraud is conclusively 'established by simple proof of the doing of the prohibited act which results in injury. What I mean is this: That when the prohibited act is knowingly and intentionally done, and its natural and legitimate consequence is to produce injury to the association, or benefit to the wrong-doer, the intent to injure or defraud is thereby sufficiently established to cast on the accused the burden of showing that his purpose was lawful, and his act legitimate.”

See, also, U. S. v. Allen, 47 Fed. 696.

In most, if not all, of the cases cited by counsel for the people, the question of intent to injure and defraud is recognized as involving a design to do material injury to the bank, as contradistinguished from a design to do an act prohibited by law, which, so far from being necessarily injurious, in fact may result in pecuniary gain to the bank. Coffin v. U. S., 162 U. S. 674. The evidence raised a question for the jury, but the defendant was entitled to the benefit of the claim of good faith, to the extent of having it considered by the jury upon the essential element of intent to injure and defraud.

The further point is made that the information does not describe the offense with sufficient particularity. It follows the language of the statute, and a copy of the draft is included, which we think sufficient to apprise the defendant of the charge made against him. The following cases cited hy counsel for the people are in point: People v. Van Alstine, 57 Mich. 69; People v. Taylor, 96 Mich. 576; People v. Kennedy, 105 Mich. 77; People v. Frey, 112 Mich. 251; People v. Hanaw, 107 Mich. 339.

We are constrained to set aside the verdict, and direct , a new trial. It will be so ordered.

The other Justices concurred.


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    SWETT v. THORKILDSEN.
    Contempt — Punishment—Alternative Sentence.
    An order imposing a fine for contempt of CQurt, to be paid within 15 days, and directing that the defendant, in the event of his failure to pay the fine within the time limited, shall be committed to jail for the period of 30 days, with no provision for his release on payment of the fine, is void as an alternative sentence.
    Appeal from Muskegon; Russell, J.
    Submitted November 5, 1897.
    Decided December 15, 1897.
    Injunction bill by Edward R. Swett against Thomas Thorkildsen. Defendant appeals from an order denying his motion for a dissolution of the temporary injunction issued in the cause, and from a further order adjudging him guilty of contempt in violating such injunction.
    Reversed as to sentence imposed.

      Smith, Nims, Hoyt & Erwin, for complainant.

      Alex. Sutherland, for defendant.
   Long, C. J.

Complainant filed his bill of complaint against the defendant, setting up that he was the owner of certain premises therein described, and had been in actual possession thereof for a year last past, and that the defendant claimed the right to occupy a part of said premises, and threatened to enter upon the same, and erect bath-houses and other buildings. Upon filing this bill, an injunction was issued ex parte, restraining the defendant from entering upon the premises. Defendant answered the bill, and moved to dissolve the injunction. This motion was denied, and the injunction was continued. In the answer the defendant set up his ownership of certain other premises, and claimed that by reason thereof he was the riparian owner of the premises in controversy. The writ of injunction was served on John Leaf and Jacob Gulickson, who were then engaged in the work of erecting bath-houses for defendant, and on the defendant, on July 8th and 10th, respectively. On July 19th, a petition was filed in the cause, duly verified by the complainant, showing to the court that defendants had continued the eréction of the bath-houses notwithstanding the service upon them of the injunction, and asking that they be adjudged guilty of contempt of court in disobeying the commands of the injunction. An order to show cause was granted, and the parties defendant answered the order.

Defendant Thorkildsen, by his answer, again set up his right to possession of the premises as riparian owner, as' set up in his original answer; that the building which he 'was erecting was a cheap wooden structure, worth only about $30; that complainant had suffered no injury therefrom ; that he had discovered since his answer to the bill that complainant did not own certain premises mentioned and described in his bill <3f complaint. He also sets up in his answer that the title which he holds to the premises adjacent to those in controversy is conditioned that he hold an annual assembly and camp meeting on the premises, and the erection of the bath-houses is an essential part of that enterprise. He also alleges that after considering these matters, and advising with his solicitor in the cause, he thought the court was not fully advised of the matter, and that the injunction was improvidently granted. He does not deny that he was acting in violation of the injunction, but claims, further, that the court was without jurisdiction in granting it for the reasons:

(1) That the bill of complaint did not shcyv that the construction of the bath-houses would do irreparable injury to the complainant or to said premises.

(2) That the defendant was in the sole and exclusive possession of the premises occupied by the bath-houses at the time the bill was filed and the injunction issued.

(3) That the complainant was not the owner of the premises at the time the bill was filed.

The other parties against whom the order to show cause was issued also answered, but, inasmuch as they have not appealed, we need not set out their claims in their answers. The court, upon the hearing, found the parties guilty of the alleged contempt, imposed a fine of $25 on Thorkildsen, and $5 upon each of the others, and ordered that they—

‘ ‘ Severally pay to the register of this court the fines so imposed upon them, respectively, within 15 days from this date. And it is further ordered that if the said Thomas Thorkildsen, John Leaf, and Jacob Gulickson, or any of them, shall fail or neglect to pay the fines so imposed on them, respectively, within the time hereby limited, that such of them as shall so fail or neglect be, and they are hereby, ordered to stand committed to the county jail of the county of Muskegon, there to remain charged upon this contempt for the period of 30 days, and that a commitment issue accordingly against such of them as shall fail or neglect to pay the fine imposed on him or them.”

1. It is contended that the bill does not show that complainant was in possession of the premises in controversy at the time the injunction issued. We think this cannot be said. The bill alleged positively that the complainant was in actual possession, and had been so in possession for one year and upwards. The bill was sworn to. On motion for dissolution, this question was raised, and passed upon by the court adversely to the defendant. The facts were then before that court, and in his discretion he refused to dissolve the injunction. We find nothing in the case showing an abuse of that discretion.

The court below, being possessed of the facts in the case, passed upon the question of irreparable injury, and refused to dissolve the injunction. We do not feel at liberty to reverse that ruling.

2. The contention that the court below had no jurisdiction to grant the injunction has no force, for the reasons above given.

3. It is also contended that the sentence is an alternative one, and therefore void. Counsel in this contention relies upon Sloman v. Wayne Circuit Judge, 95 Mich. 264, and Turner v. Smith, 90 Mich. 309. In the present case the sentence was imposed under section 7276, 2 How. Stat., which provides:

“ If the court shall adjudge the defendant to have been guilty of the misconduct alleged, and that the misconduct was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of any party in a cause or matter depending in such court, it shall proceed to impose a fine or to imprison him, or both, as the nature of the case shall require. ” ■

Section 7277 provides that the court may, in cases where actual loss or injury has been produced to any party by the misconduct alleged, order the defendant to indemnify him, and satisfy his costs and expenses, instead of imposing a fine. Section 7278 provides:

“ In all cases other than that specified in the last preceding section, the fine shall not exceed two hundred and fifty dollars, over and above the costs and expenses of the proceedings. ”

Sections 7279 and 7280 have no reference to the present case; but it is provided by section 7281:

“ In all other cases, where no special provision is otherwise made by law, if imprisonment be ordered it shall be for some reasonable time, not exceeding six months, and until the expenses of the proceedings are paid, and also, if a fine be imposed, until such fine be paid; and in the order and process of commitment the duration of such imprisonment shall be expressed.”

It appears in this case that the sentence of imprisonment was not imposed as a means of insuring the payment of the fine under the latter part of the clause of section 7281, as it does not provide that the sentence of imprisonment shall terminate upon the payment of the fine; but the defendant was given 16 days to pay the fine, and, if not paid within that time, he should be imprisoned for the period of 30 days. The sentence was void as an alternative one, within the principles stated in the cases above cited and the cases .therein referred to.

The case will be remanded, and the court directed to proceed to sentence, as the defendant has not yet served any portion of the sentence of imprisonment imposed or paid the fine.

The other Justices concurred.


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    McEACHRAN v. GRAND TRUNK RAILWAY CO.
    1. Carriers op Freight — Prepayment op Charges — Waiver-Burden op Proop.
    One who relies upon the authority of an employé of a common , carrier to waive the right to prepayment of freight charges before delivery of the cars has the burden of showing authority
    2. Same — What Constitutes Waiver.
    A railroad employé does not waive the right of the company to • a prepayment of freight charges before delivery of the cars, and to car rental for delay of the consignee, by responding “all right” to a statement by the consignee that he will give a disposal order for the cars, and will send the amount of the freight whenever he gets the expense notices and knows the amount.
    Error to Wayne; Lillibridge, J.
    Submitted November 6, 1897.
    Decided December 15, 1897.
    Trover by William A. McEachran and another against the Grand Trunk Railway Company of Canada. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.
    Plaintiffs had purchased in Canada seven car loads of wood, which were shipped to them at Detroit, over the defendant’s road. January 28th Mr. McEachran learned that the cars had arrived, and were standing in defendant’s yard. He went immediately to one of the offices of the defendant, but not to the regular freight office where he always paid his freight. He testified that he there “had a conversation or inquiry about the wood with one of the men, whose name he did not know; that he knew him by sight, and had had a very little business at that office before.” He left with him a disposal order, — that is, a-direction* where to deliver the wood, — and said he would send the'amount of freight charges when he got the expense notices. He ordered four of the cars to be delivered on defendant’s own track, known as the “Public Team Track,” and three to be sent to the private track of one Koenig. The four were delivered, and no reference is necessary to them. Plaintiffs sent a check for the freight by mail. The check was dated January 29th, but on the envelope in which it was inclosed was the post-office stamp showing that it was received and mailed on January 31st, at noon. It reached defendant on the afternoon of that day. Under the car-service rules of the company, a charge of one dollar per car was made when cars were delayed beyond 48 hours in loading or unloading. Plaintiffs did not pay the freight within 48 hours, and a charge of one dollar per car was made. This plaintiffs refused to pay, and sued defendant in trover for a conversion of the wood. The court directed a verdict for the defendant. *

      Lehman Bros. and F. J. Riggs, for appellants.

      Edwin F. Conely and Orla B. Taylor, for appellee.
   Grant, J.

(after stating the facts). At the conclusion of the evidence, plaintiffs’ counsel conceded the reasonableness of- the car-service rule, but claimed that payment of freight before delivery of the cars had been waived. The question of waiver is therefore the only one before us. Plaintiffs claim that this should have been submitted to the jury. The court held that there was no evidence to show authority in the employé, with whom Mr. McEachran talked, to waive payment.

The right of a common carrier to the prepayment of freight charges before delivery is important. When a party relies upon the authority of an employe of the carrier to waive that right, it is incumbent upon him to show authority. Plaintiffs relied upon an employe whom they did not know, and who was not employed in the office where such business was customarily transacted. If they had met some employe in the yard, they might as well have claimed that he had authority to extend credit by waiving payment. • We are not dealing «with a case where a party applies to the regular office, and there receives information from one who is apparently in a position to represent the company,

But, under the plaintiffs’ own showing, there was no waiver. The conversation relied on to constitute a waiver is thus stated by Mr. McEachran:

“I went there, and said that I had some wood there; and I said that I would give him a disposal order, and I wrote out the disposal order for the seven cars; and I said, ‘ I will send the amount of freight whenever I get the expense notices, and know the amount of freight.’ The disposal order was written in pencil. I kept no copy. I wrote out the order. I handed it to him, and he said, ‘All right.’”

There is not in this language any promise, express or implied, to waive the rules of the company. Plaintiffs knew that prepayment was required, and that car rental would be charged after 48 hours. They had ample notice and ample opportunity to pay it within that time. Not a word was said about deferring payment. They had the 29th and 30th in which to pay and receive their property. Mr. Parker, the assistant cashier in the freight office, called plaintiffs by telephone on the 29th and 30th, and informed them that the check had not come, and that car rental would be charged on the 31st. There was no agreement that defendant should assume the risk of the mail, or that payment should be made by depositing the check in the mail-box. The reply of the employé, “All right,” meant only this: “I will take your disposal order, and, when the freight charges are paid, will comply with it.”

Judgment affirmed.

The other Justices concurred.


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    SYKES v. CITY SAVINGS BANK.
    1. Loans — Husband and Wife.
    The rule that, if one gives another money at his request, the law will imply a promise to repay, applies, where there are no circumstances tending to show a different understanding, to a husband who receives money from his wife.
    3. Contracts — Evidence.
    A wife’s testimony that moneys advanced by herself to her husband were so advanced upon the “understanding” that she was to be repaid therefor may be treated, in the absence of objection or cross-examination, as though she had testified to an “agreement” to the same effect.
    3. Gift — Advances of Money — Anticipated Repayment — Estoppel.
    Money advanced by a wife to her husband with the expectation that he should repay it, but without express agreement as to the time of repayment, will not be treated as a gift, unless under circumstances amounting to an estoppel.
    4. Garnishment — Ownership of Fund — Instructions.
    In garnishment against a bank to reach moneys deposited in the name of the debtor’s wife, the fact that, the bank having paid the fund to the wife after service of the writ, the loss, in case plaintiff should prevail, would fall upon the bank, and not the wife, is. not one that the parties are entitled to have brought to the attention of the jury in the instructions.

      Error to Wayne; Lillibridge, J.
    Submitted November 6, 1897.
    Decided December 15, 1897.
    Garnishment proceedings by John Sykes against the City Savings Bank, as garnishee of John Bommer. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Bowen, Douglas & Whiting, for appellant.

      Frank D. Andrus, for appellee.
   Hooker, J.

John Bommer was indebted to the plaintiff on a judgment recovered before a justice in 1883; and this judgment was sued in the circuit court, and a judgment was rendered there, October 13, 1894, for $505.41, damages and costs, on which date the defendant was garnished. Its disclosure stated that it was not indebted to Bommer, and that it had no property belonging to him in its possession or under its control; whereupon an issue was framed, and the question went to a jury, a verdict being found in favor of the defendant. The plaintiff has appealed from the judgment.

An outline of the facts disclosed by the testimony is as follows, viz.: Bommer was a brewer, and opened an account with the defendant by depositing on September 1, 1890, the sum of $3,230. This account was closed on July 7, 1894, by the withdrawal of his balance of $343.58, which was paid to him in cash. During the period mentioned, Christina Bommer, his wife, sometimes made deposits to her husband’s credit; but she never drew upon the account, or had any control over the money deposited. On receiving this sum of money ($343.58), Bommer paid it to his wife, who deposited it to her credit upon the same day that it was drawn from the bank by her husband. It is claimed upon behalf of the plaintiff that this was a voluntary transfer by Bommer, and is void as against the plaintiff, and that the fund may be reached by garnishment, as the money of Bommer. The learned circuit judge submitted to the jury the question whether this transfer was voluntary. It is contended by the plaintiff that this was error, for the reason that the undisputed testimony showed it to be such.

The testimony offered on behalf of the plaintiff — for none was offered upon behalf of the defendant — -shows that some years before this proceeding was commenced, but while Bommer owed the plaintiff, he (Bommer) bought a homestead for $2,150, title to which was taken in the names of himself and wife. This was paid for by a check upon the bank at a time when he had a balance to his credit of $4,600,' as appears by the bank books, which plaintiff introduced. Subsequently a house and lot were purchased, and title taken in the names of Mrs. Bommer and Mr. Bommer’s mother. Bommer and wife borrowed $500; giving the defendant bank a joint note for $500, secured upon the homestead. This note was given]upon September 12(, 1891. Mrs. Bommer testified that, at the time of the purchase of the house and lot, Bommer’s mother wanted the deed made to her, because she had furnished Bommer with money. After this time, Mrs. Bommer collected the rents from this property, amounting to $19 a month, and Bommer allowed her from $12 to $20 a week to provide for the family. From these sources she saved something, which after a time she was in the habit of letting her husband have upon request, and he used it in business. At first she deposited it in the bank to his credit, for she had no bank account. She admitted that she did not keep track of the amount, but says it exceeded the amount paid to her, and she also said that he made no express promise to repay her. She testified that this was her own money, and that he owed her for it, and that such was the understanding between them, and that she “saw that he was failing in business right along, and losing money, and she told him she wanted her money back, * * * to pay off the [$500] mortgage,” and he gave her the sum mentioned, and it was used, with money that she subsequently deposited, for that purpose.

. It is urged that this testimony does not show a promise to repay, or the recognition of contract relations; and cases are cited to support the proposition that when a woman allows her husband to use her money in his business, or gives it to him for that purpose, the law will presume that it is a gift. We do not question the fact that a wife may give her property to her husband, 'and the inference that it is a gift may be drawn from circumstances ; but we doubt the proposition that the law will presume it a gift in all cases where there is an absence of an express promise by the husband to repay. The usual rule is that, if one gives another money at his request, the law will imply a promise to repay; and we see no injustice in applying the rule against a husband, where there are no circumstances tending to show a different understanding between the parties. This court has frequently held that the presumption of the law is against a gift by the wife to the husband, and the burden of proving it is upon him. Durfee v. McClurg, 6 Mich. 223; Penniman v. Perce, 9 Mich. 509; Wales v. Newbould, Id. 45; Jenne v. Marble, 37 Mich. 319. In White v. Zane, 10 Mich. 333, it was held that such a gift must be established by some other evidence than that of use and possession by him, permitted by her. It is true that the case did not in. volve money belonging to the wife, but specific chattels; but we see no reason for discrimination against money, ' when we consider that the uses to which money is adapted do not ordinarily permit the return of the identical money used.

The wife testified to the understanding between her husband and herself. While, in a sense, the word “understanding ” may be said to involve a conclusion, it is an ambiguous term, and is sometimes used as synonymous with “agreement.” Technically, the court should determine what was understood or agreed by the parties from what was said; but where, as in this case, the ambiguous statement is made without objection or cross-examination, with a view to ascertaining what is meant by the term, we think it should go to the jury.

The charge of the court is criticised upon the ground that it allowed the question to turn upon Mrs. Bommer’s expectation. He said:

“If she loaned the money to him with the expectation that he should repay it, although the time when it should be repaid may never have been mentioned, then I charge you, gentlemen of the jury, that he was right in returning to her the $343. But, if you find that she gave the money to him without expectation of its being paid, then she would not be entitled to have it repaid.”

In view of the presumption against gifts by the wife, and the onus being upon the husband to establish it, we think this was not error. It certainly cannot be that a wife’s property can be disposed of by her, as a gift, without an intention to give. She may possibly be estopped from denying that it is a gift in some cases, but that question is not here.

The court left the jury no alternative but to find a verdict for the plaintiff, if they should determine that Mrs. Bommer’s husband did not owe her, — in other words, if they found that he was not under obligation to repay her for the money saved by her, and which she allowed him to use; but it is contended that this question should not have been submitted to the jury, for the further reason that the money that she saved was his, and not hers. In short, the plaintiff’s contention was, as aptly stated in the appellee’s brief, that—

“John Bommer had no right to purchase the homestead in the joint names of himself and wife; that the homestead really belonged to himself alone; that the $500 borrowed on the homestead really belonged to him, and consequently the property purchased with it also belonged to him, and that, therefore, the rents belonged to him; and that he therefore owed his wife nothing, and the money ($343.58) paid by him to her was without consideration.”

Counsel complain of the refusal of the court to give the following requests:

“This action is one between Sykes and the City Savings Bank, and one in which Mrs. Bommer is in no way interested, except as a witness. She has been voluntarily paid by the bank the money standing to her credit, and therefore the bank cannot recover from her that amount. She can lose nothing, no matter how your verdict may be. * * *
“The only testimony in this case regarding the payment by Mrs. Bommer of the note held by the bank is the testimony of Mrs. Bommer to the effect that the note was paid; and, as the note was paid, she had no interest in the result of this suit, for, if your verdict should be against the bank, it could not recover from her, as the moneys on deposit at the time of service of this writ of garnishment have been voluntarily paid to her, or allowed as payment on the note, after the writ of garnishment was served.”

These requests had no legitimate bearing upon the case. The defendant certainly could not escape liability by reason of a payment to one not entitled to the money; and the fact, if it were one, that the bank, who ought not, and not the wife, who ought, to pay this claim, if the plaintiff was right, could be made to stand the loss, was not a proper fact to have weight with the jury.

We think the questions raised are covered by the foregoing. The judgment is affirmed.

The other Justices concurred.