text:
    SHAFORD v. DETROIT SAVINGS BANK.
    Garnishment — Assignment of Salary — Mortgages—Additional Security— Consideration.
    A bank may sustain a claim to a police officer’s salary, assigned to it until such time as it should receive the full amount owing it under a past-due real-estate mortgage, as against a garnishing creditor of the assignor, since an assignment of additional security requires no new consideration to render it valid.
    Error to Wayne; Donovan, J.
    Submitted October 12, 1900.
    Decided December 31, 1900.
    Garnishment proceedings by Stephen Shaford against the city of Detroit, as garnishee of Herman W. Gartner. From a judgment for plaintiff, the Detroit Savings Bank, interpleaded as claimant, brings error.
    Reversed.

      James G. Smith, for appellant.

      Adam E. Bloom, for appellee.
   Long, J.

Plaintiff obtained judgment against one Herman W. Gartner before a justice of the peace for §15 damages and §3 costs of suit October 37, 1898. This judgment remaining unpaid, on October 30,1899, garnishment proceedings were commenced against the city of Detroit, it appearing that defendant Gartner was a police officer of the city. The city filed disclosure November 3, 1899, admitting an indebtedness to Gartner of $4=5.30. It appeared that defendant Gartner was indebted to the Detroit Savings Bank in the sum of $700 on a mortgage which was past due, and that on the 11th day of October, being about nine days prior to the time of issuing the writ of garnishment, Gartner assigned all the moneys then due him from the city, and also all moneys to become due to him by virtue of his employment as a police. officer, to defendant the Detroit Savings Bank, until the bank should have received the amount due it. At the time of filing the disclosure by the city, it gave notice under the disclosure that the Detroit Savings Bank claimed the money by virtue of an assignment to it from the principal defendant. On the 30th day of November, 1899, issue was joined in the cause under a claimant’s notice, and the justice rendered judgment in favor of plaintiff against the defendant the Detroit Savings Bank. It appeared in the case that the treasurer of the city of Detroit was, on October 11, 1899, given notice in writing that Gartner was indebted to the Detroit Savings Bank under an obligation past due, and had assigned as security, in writing, all the moneys to become due to him from the city of Detroit by reason of his employment as a police officer until the full sum of $700 and interest should be paid. The justice held that there was no consideration for the assignment. The cause was removed from the justice’s to the circuit court on writ of certiorari, where the judgment was affirmed. The case comes into this court by writ of error.

We think the court was in error in affirming the judgment. The bank had a legal right to take additional security for the money owing it by Gartner. It appears that the $700 was due upon a real-estate mortgage, but that could not affect the right of the bank to take additional security.

The judgment must be reversed, and a judgment entered here in favor of the defendant bank, with costs of all the courts.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    DAWSON v. FALLS CITY BOAT CLUB.
    Ejectment — Evidence op Title — Adverse Possession — Instructions.

       1. Where plaintiff’s grantors were for a long period of years in possession of land, and while so in possession executed deeds of conveyance, held sufficient, in the absence of proof to the contrary, to establish a title from the government.
    2. It is not error to refuse an instruction that there is no evidence that plaintiff has title by adverse possession, where such claim was not made upon the trial, and the case was not submitted to the jury upon that theory, but upon the theory that he had title by deed.
    3. It is not error to refuse requests where their substance is covered by the oral charge.
    4. It is not error to refuse to instruct the jury that they cannot render a judgment upon the testimony of a particular witness, where his testimony is competent evidence to be considered by the jury in connection with all the testimony in the case.
    Error to Chippewa; Steere, J.
    Submitted October 11, 1900.
    Decided December 31, 1900.
    Ejectment by Carrie Dawson against the Falls City Boat Club, Eben S. Wheeler, and Clara Wheeler. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Plaintiff claims to be tbe owner of private land claim No. 106. Defendant Eben S. -Wheeler is the owner of private land claim No. 105. These claims are bounded on the north by the St. Mary’s river, and on the south by Portage avenue. The land in dispute is a triangular piece, running from a point on Portage avenue to the St. Mary’s river, where it is about 15 feet wide. Plaintiff claims that this triangular piece is a part of private claim No. 106. Defendant Wheeler .claims that it is a part of private land claim No. 105, and that, if it is not, he has obtained title to it by adverse possession. Both claims were hotly contested, and a vast amount of evidence introduced upon the respective claims. Both were disputed questions of fact, and the jury decided them in favor of the plaintiff.
    Defendant claims that there was a fence built and maintained along the east line of the disputed tract; that that fence marked the original boundary; that it has been maintained for a sufficient length of time to give him title by adverse possession; and that he has during that time been in continuous, open, and notorious possession thereof. A boat-house was built on claim No. 105 in 1885, and a portion of it was on the disputed territory. Plaintiff contends that this fence has not been maintained as a line fence, and that whatever possession defendant’s grantors had was not hostile. By the consent of both parties and the direction of the court, the jury were permitted to view the premises.
    Plaintiff introduced in evidence, together with the field-notes,, a certified copy of a patent of private claim No. 106 from the United States to William McMurray, dated the 1st day of May, 1860, and duly recorded on the 1st day of November, 1875. She then offered in evidence a warranty deed from William McMurray and wife to Amanda Acker, dated October 15, 1851, and recorded June 14, 1853, covering the same land as the patent. This deed appears to have been executed in Canada, had but one witness, and was executed before one James Coleman, the mayor of the town of Dundas. Objection was made to the admission of this record that the mayor was not such an officer as was authorized to take acknowledgments of deeds under our statute. Other objections were also made-. It appears that the record of this deed was not received in evidence. Plaintiff then offered in evidence a warranty deed from Mrs. Acker and her husband to one Stone, dated October 31, 1853, and recorded February 6, 1859. This deed recited that the land (private claim 106) was formerly known as the “McMurray Claim,” was bounded on the west by the claim of Eliza Johnston (who was the patentee of claim 105), and that it was “the same premises that were heretofore conveyed to Amanda Acker by William McMurray and wife.” Plaintiff then introduced the record of other deeds, showing a complete chain of title from Mrs. Acker to herself.
    It seems essential to a complete understanding of the errors assigned, to state the oral charge in full upon the controlling issues in the case. It is as follows:
    “On the part of the plaintiff, Mrs. Dawson, it is claimed that this disputed strip lies to the east of the boundary line between these two claims, and that it is, therefore, within the confines of private claim 106, which she owns. She claims that the defendant has occupied it for some time and has held the possession of it from her, and that she is entitled to recover the possession of it in this suit by virtue of her ownership. On the part of the defense it is denied that this disputed strip lies to the east of the boundary line between these two claims, but it is claimed that it lies to the west, and that it is a part of private claim 105, which the defendants own. And it is also claimed, in behalf of the defense, that, in any event, regardless of where the boundary line is, regardless of the government surveys, that the defendant Wheeler has had quiet and peaceable possession and use of this strip for so long a period of time that litigation is barred, and that, as a matter of law, he has become the owner by prescription, —by peaceable possession.
    “ The plaintiff, claiming the right to recover as the owner of this land, is required, in order to establish that claim, to prove her title; it is necessary for her to show a title to the property before she can recover, in any case; and upon that phase of the case questions of law arise, and the court must dispose of them.
    “All the records and documents offered in evidence are to be passed upon by the court as questions of law; and I must instruct you in this case that the records, as offered in evidence, fail to establish the title on the part of Mrs. Dawson to claim 106 running back to the United States government. But, she having shown a chain of title running back for a considerable term of years, if, in that connection, she shows that that title came down through persons in possession of the land claiming as owners, she would in law be presumed to be the owner, and presumed to have a title which came down from the government; and in that connection, in relation to the possession of herself and those from whom she claimed to hold, the possession of part of the land, under a conveyance covering the whole of it, would be presumed to be a possession of the whole of it, in the absence of anything to the contrary. So, you see, two serious questions of fact which come up for the jury to decide, and which you will naturally take up, are: First, where is the true boundary line between these two private land claims ? and, next, if you dispose of that in favor of the plaintiff, has the defendant held this property for the statutory period, so that he has title to it by right of possession ?
    “The question of peaceable possession is one which is before you, and must be disposed of as a matter of fact. It is always a question of fact in a case of this kind, where there is testimony presented to you; and you are instructed that, in order to constitute an adverse possession sufficient to give title, there must be an actual, exclusive, continuous, visible, notorious, distinct, and hostile possession of the land claimed to be held adversely for the period of 15 years continuously next before the commencement of the suit; and in order for the defendants to retain, by adverse possession, the lands mentioned in the declaration, or any part thereof, they must satisfy you, by a preponderance of the testimony, that they have so held the land, or a part thereof, in good faith, believing themselves the owners of it by such possession for the period required by the statute. As to that phase of the case, the burden is upon the defendants. In order to establish their title by adverse possession, they must satisfy you, by a preponderance of evidence, that they have held possession as required by law.

      “’When you take up the question of the true boundary line (that of determining whether or not this tract of land lies to the east or west of it), you pass upon all evidence which is before you, — the testimony of the old inhabitants who have given their evidence, the testimony of the surveys made, and everything in connection with the case which appeals to your judgment. It is a matter of fact, and you are not bound by the testimony of the surveyors. Their testimony is competent, and is before you for you to exercise your judgment upon. But in that connection you are to remember that boundaries and land-marks govern, rather than courses and distances. To be specific, I will give this to you just as requested by counsel for the defense: £You are instructed that it is the law that, in retracing lines of a former survey, courses and distances shown by the field-notes of the former survey must yield to the original artificial or natural monuments.’ It is a question of fact entirely for you to say where the true line is, if the testimony is sufficient to satisfy you upon that point.
    “Taking up again the matter of peaceable possession, you are instructed that, if you find the defendant E. S. Wheeler and his grantors have been, for a period of more than 15 years next before the commencement of this suit, —and it was commenced on the 22d of October, 1898, —in actual, continuous, visible, notorious, distinct, and hostile possession of the land in dispute, then your verdict should be for the defendants, because such long-continued adverse possession gives Mr. Wheeler as good a title as a deed would give. You are further instructed that when a possession is by actual occupation of the land in question, or by tenants under claim of title in the landlord, then the possession is visible, is open, is notorious, and distinct, and will be presumed to be hostile. Something has been said to you in regard to the previous possession of those who preceded Mr. Wheeler not attaching for his benefit; but you are instructed, as a matter of law, that if, at the time he purchased, he was given possession of this property by his predecessors, who had held possession, the possession of his predecessor,? would attach to his possession, and would be computed in ascertaining the length of time possession was held adversely to the plaintiff in this case.
    “ There is another question which comes up in this case, to which I call your attention, and that is the question of the riparian rights, or water front. A part of this strip of land in question is land covered by water, or, as it is called, ‘water frontage.’ You are instructed that it is not necessary that the defendant and his successive grantors should have held this water front actually in possession, under the water; that is, that they should have actual physical occupation, such possession as would be required in the case of solid land, .or the upland. And, accordingly, if you find that the defendant had adverse possession, as heretofore explained to you, of the upland, for the statutory period of 15 years, then the adverse possession of the upland would carry with it the enjoyment of the riparian rights, or of the water front, — the land under the water, so far out as the ownership goes. And it is a question of fact for you whether or not he did have possession of this strip in dispute clear to the boundary line,— the water line; that is a question of fact. There is some issue as to whether there was a strip of land between the north fence and the water which he did not occupy; and it is also claimed on the part of the plaintiff that she, and her tenants under her, have had possession of that. That is left to you as a question of fact. It is not necessary or expected, in order to establish peaceable possession, that water frontage beyond the water line should actually be fenced in, inclosed, and held by absolutely-defined boundaries, as uplands must be in order to establish peaceable possession; but if ordinary use and occupation, for business or pleasure, was had by Mr. Wheeler, such as the frontage was adapted to, and he exclusively exercised control and jurisdiction over that, and made such use of it as the surroundings seemed to justify, and as could be made under the circumstances, that would be a possession, even though he did not have it inclosed and occupied the entire time. If his possession extended to the water front, with no intervening strip of land, his possession of the shore would be a possession of the riparian rights, or the water front to the channel bank. Whether or not he and his tenants, the boat club, and any others in regard to whom testimony has been given, held possession of this water front sufficient to establish an open, notorious, hostile, and adverse possession, is also a question of fact for you.
    “You are to remember that the burden of proof is-onthe plaintiff, and, in order to recover at all, she must prove to your satisfaction that she is the owner of the land by a series of deeds coming down as I have stated, accompanied by possession and claim of ownership and delivery of possession, and by proof that the land in question lies to the east of the boundary line between the two private claims. If that is not established to your satisfaction by a preponderance of evidence, of course the case ends there, and your verdict would be for the defendants. If it is established, and you find that she is the owner of the legal title to this strip of land, then you must take up the question of peaceable possession, and ascertain whether or not the testimony convinces you, by a preponderance of evidence, that the defendant has acquired title by a peaceable possession for 15 years, as already explained.
    “There has been some testimony offered in regard to a conversation between Mr. Gallagher, one of the former owners of private claim 105, and Mr. Easterday, one of the former owners of private claim 106, which, it is claimed, tends to establish an agreement between the parties; but I must instruct you, as a matter of law, that any agreement in regard to real estate, or the title to real estate, which is not in writing, and which is not acted upon, is not binding, under the statute of frauds. If the testimony satisfies you that Mr. Easterday had built a fence along the west line of his property, or where he conceived it to be, at a period more than 15 years prior to this conversation; that that fence had been retained and maintained as a boundary, line; that both parties had occupied up to it, and held possession up to that boundary line, — any mere oral agreement between Mr. Easterday and Mr. Gallagher after that time, after the expiration of 15 years, would not be binding upon them or their grantees, unless it was acted upon, and the fence then changed. It would come within the statute of frauds, and, even though they had expressly agreed, it would not be binding upon any of the parties.”
    In addition to this oral charge, the court gave the following requests of the defendants:
    “If you find that the defendant E. S. Wheeler and his grantors have been, for a period of more than 15 years next before the commencement of this suit, viz., October 22, 1898, in actual, continued, visible, notorious, distinct, and hostile possession of the land in dispute, then your verdict should be for the defendants, because such long-continued adverse possession gives Wheeler just as good a title as a deed.

      “You are instructed that when possession is by actual occupation of the land in question, or by tenants under claim of title in the landlord, the possession is visible, open, notorious, and distinct, and will be presumed to be hostile.
    “ The actual, continued, visible, notorious, and hostile possession of land is tantamount to a claim of ownership.
    “If you find that the defendant Wheeler and his predecessors successively have maintained adverse possession for more than 15 years up to the east line of the disputed tract, or up to the fence in question, then it is entirely immaterial whether the fence or the east line of the disputed tract is on the surveyed line run originally by the United States government surveyor as a dividing line between private land claims 105 and 106.
    “A part of the strip of land in question is land covered by water, or what is called ‘water frontage.’ You are instructed that it is not necessary that Wheeler and his successive grantors should have held this water front actually in possession, or have of the water front what the law calls ‘jpossessio pedis,’ or possession of the foot. Such possession is only required in case of the solid land, or the upland; and, accordingly, if you find that the defendant Wheeler has had adverse possession, as herein-before explained to you, of the upland, for the statutory period of 15 years, this adverse possession of the upland would carry with it the enjoyment of the riparian rights as to the land under the water so far out as the ownership goes for anybody, without any proof further whatever of adverse possession of the water front, or land under the water.
    “You are instructed that it is the law that, in retracing lines of a former survey, that course and distance shown by field-notes of the former survey must yield to the original artificial or natural monuments-.
    “The undisputed testimony shows that Peter Gallagher and his wife, Delia, occupied the land north of Portage avenue as a homestead at the time of the alleged conversation stated to have occurred between Mr. Easterday and Gallagher. You are instructed that Peter Gallagher could not incumber, bind, or convey any portion of his homestead without the consent in writing of his wife, and you are instructed that there is no evidence of such written consent in this case.”

      George A. Cady (John H. Goff, of counsel), for appellants.

      E. S. B. Sutton (John W. Shine, of counsel), for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). Defendants’ counsel insist that it was error not to instruct the jury that there was no evidence that the plaintiff had title by deed. The court substantially gave this request in the language, “That the records, as offered in evidence, fail to establish the title on the part' of Mrs. Dawson to claim 106 running back to the United States government.” If we understand the contention of the counsel, it is that none of the deeds, leases, etc., of parties in possession claiming ownership, and through whom the plaintiff claims, were admissible in evidence, because of the break in the chain of title on account of the defective deed from McMurray to Mrs. Acker. Whether the court erred in rejecting the record of this deed as an ancient one, we are not called upon to determine, as plaintiff recovered, and, we cannot consider now any rulings of the court which were against the plaintiff. The grantors of the plaintiff were in possession of claim No. 106, and executed these deeds, which extended over a period of nearly 50 years, as the owners thereof. This was sufficient, in the absence of proof to the contrary, to establish in the plaintiff a title from the government, under the repeated rulings of this and other courts. Steinhauser v. Kuhn, 50 Mich. 367 (15 N. W. 513); Cook v. Bertram, 86 Mich. 356 (49 N. W. 42); Drake v. Happ, 92 Mich. 583 (52 N. W. 1023); Hoban v. Cable, 102 Mich. 207 (60 N. W. 466); Jenkins v. Trager, 40 Fed. 728. The' following charge of the court upon this point was correct:

“But, she having shown a chain of title running back for a considerable term of years, if, in that connection, she shows that that title came down through persons in possession of the land claiming as owners, she would in law be presumed to be the owner, and presumed to have a title which came down from the government; and in that connection, in relation to the possession of herself and those from whom she claimed to hold, the possession of part of the land, under a conveyance covering the whole of it,, would be presumed to be a possession of the whole of' it,, in the absence of anything to the contrary.”

It is assigned as error that the court did not instruct the jury that “there is no evidence in this cause that the plaintiff has title by adverse possession.” We do not find that such a claim on the part of the plaintiff was seriously made in the court below, or that the jury could have been misled by the failure to so instruct them. Plaintiff’s theory was that this triangular piece of land, was part of private land claim No. 106, and that defendants had obtained no title by adverse possession. The instruction of the court contains nothing to indicate that the question of adverse possession on the part of the plaintiff was submitted to the jury. On the contrary, the theory of the charge is that the land in dispute is a part of private claim 106, and is covered by her deeds.

Error is assigned in refusing to give the following request:

“If you find that originally, and while one of the defendants’ remote grantors was in possession of the upland in dispute, such grantor built his fence along the margin of the river, and that afterwards the waters of St. Mary’s river either receded and left bare land or formed an accretion by washing of the soil up, you are instructed that it would not then be necessary for the successive occupants or grantors of Wheeler constantly to keep this river front fence extended to the waters of the river, because this accretion or bare land, whether actually inclosed or not, belongs to the owner of the shore, whether his title to the shore rests on a deed or on adverse possession for the legal time. Title to the shore carries title to the accretion of newly-formed shore.”

We think this request was sufficiently covered by the charge of the court in regard to accretions.

Error is assigned upon refusal to give the following request:

“The undisputed evidence in this case shows, with, reference to the land in question, that an east fence was built by Mr. Easterday in accordance with a line run by Surveyor Carleton in 1866 or 1867 to ascertain the boundary line. If the jury finds that said east fence was acquiesced in by parties on either side having power to bind the land, and that such parties occupied up to said fence as the true boundary for a period of more than 15 years, acquiescence and occupation would have the effect of establishing the fence as the boundary line, and1 said boundary line could not thereafter be changed, except by an agreement in writing.”

We think the oral charge of the court sufficiently covers this ground, in which the court said:

“If the testimony satisfies you that Mr. Easterday had built a fence along the west line of his property, or where he conceived it to be, at a period more than 15 years prior to this conversation [between Mr. Gallagher and Mr. Easterday]; that that fence had been retained and maintained as a boundary line; that both parties had occupied up to it, and held possession up to that boundary line,— any mere oral agreement between Mr. Easterday and Mr. Gallagher after that time, after the expiration of 15 years, would not be binding upon them or their grantees, unless it was acted upon, and the fence then changed. It would come within the statute of frauds, and, even though they had expressly agreed, it would not be binding upon any of the parties.”

It seems to us impossible to hold that a jury, from this and other parts of the charge, would not have understood that the erection of such a fence, and the possession of the land on his side of it for the statutory period,'would convey the title to the defendant by adverse possession. At the time of the conversation between Mr. Easterday and Mr. Gallagher, Easterday was the owner of claim 106, and was in possession, while Gallagher and his wife occupied claim 105 as their homestead; the title thereto being in her.

Error is assigned upon the refusal to give the request that “the plaintiff can only recover in this case on the strength of her title, and cannot rely for recovery on a claim of weakness or want of title in the defendants.” Among other things, the court, upon this point, instructed the jury, “It is necessary for her [plaintiff] to show a title to the property before she can recover in any case.” By this instruction the jury were expressly told that the plaintiff must recover upon her own title. While this request would have been entirely proper, and is a correct statement of the law, where its substance is given the judgment will not be reversed because not given in the exact language.

Error is also assigned upon the refusal of the court to give the following request:

“If you find that the parties to this contest and their predecessors in ownership have treated and acquiesced in the fence built by Mr. Easterday as the true boundary line for a period of 15 years prior to the commencement of this suit, then it becomes immaterial and unimportant where the actual line of the old original survey may have been. It would be now too late to disturb it, and the plaintiff would not be entitled to recover. The peace of the community requires that all attempts to distui’b lines with which the parties concerned have long been satisfied should not be encouraged, for government surveys are not always accurate, and the evidence of such survey may become indistinct or lost; and if, after a long series of years, old and well-established lines, which have been recognized as true boundaries, were set aside by new surveys, necessarily the mischief arising from such a policy would be incalculable, and titles .to property thrown into vast and endless confusion.”

We think this is sufficiently covered by the oral charge.

Error is alleged upon the refusal to charge that “the jury are instructed that the plaintiff is not entitled to recover possession of the disputed tract as shown by the survey and plat of Surveyor Brown.” We think the court said upon Brown’s survey and the other surveys all that was essential when it instructed the jury that they were not bound by the surveys, etc. (See charge on this point.) It is not customary or good practice to select the testimony of one witness, and tell the jury that they cannot render a verdict upon that testimony alone. While this might be true, the jury had a right to consider the testimony, and survey of Mr. Brown in connection with all the other testimony in the case.

Errors are assigned upon the admission of testimony. The most of them refer to the introduction of deeds, leases, and contracts covering claim 106, or portions thereof. We find no error in the admission of testimony which we think of. sufficient importance to j ustify a reversal of the case. If all cases were to be reversed because of an error in admitting or rejecting testimony, the number of reversals would be largely increased. The error in such rulings must relate to some material point, and be such as would naturally tend to mislead or prejudice a jury. We find none such in this case.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    REYNOLDS v. MARQUETTE CIRCUIT JUDGE.
    1. Attachment — Substituted Service — Loa Liens.
    Substituted service of a writ of attachment in log-lien proceedings is not permissible if defendant can be found in any county of the State.
    3. Same — Officer’s Return — Vacation of Writ.
    Where the return of the officer to a circuit court writ of attachment shows a substituted service of the writ on the day before the return day, and fails to recite any subsequent efforts to obtain personal service, the writ is properly quashed.
    3. Same — Offer to Amend Return — Review on Mandamus.
    On an application for mandamus to review the action of the circuit judge in quashing an attachment in log-lien proceedings for service on an alleged agent instead of personally on the owner, an offer to amend the officer’s return so as to show diligence of the officer, and the character of the agency, cannot be considered, since it falls short of an offer to show facts justifying substituted service.

      4. Same — Release oe Logs — Statutory Bond — Waiver.
    The giving of the statutory bond for the release of property attached in log-lien proceedings is not a waiver of defects in the service of the writ, as the bond merely stands in the place of the property.

      Mandamus by John T. Reynolds and Albert H. Long to compel John W. Stone, circuit judge of Marquette county, to set aside an order quashing a writ of attachment.
    Submitted November 13, 1900.
    Writ denied December 31, 1900.

      Button & Culver, for relators.

      Simonson, Qillett & Clark, for respondent.
   Moore, J.

The relators commenced an attachment

•suit in the circuit court for Marquette county against James F. Leonard to enforce a lien upon logs, and .attached logs belonging to Edgar B. Foss. The return of the officer recites the seizure of the logs on May 26th, and the service, on the same day, of the writ upon Mr. Leonard personally in Marquette county;

“And upon the 4th day of June, A. D. 1900, I did serve upon Edgar H. Foss, the agent of Edgar B. Foss, who is the owner of the products described in said writ and by me seized, by delivering to him personally, at the city of Marquette, a true copy of said writ of attachment and of said inventory, duly certified by me.”

It then recites the giving of the statutory bond, and the release of the logs, on the 5th of June, 1900.

The writ was returnable June 5, .1900. Later Mr. Foss moved to quash the writ of attachment for many seasons, which motion prevailed. Application is now made for a writ of mandamus to review this action of the circuit judge.

Among other reasons stated in the motion to quash the writ, it was alleged there was no proper service of process. It was made to appear by the affidavit of Mr. Foss that he was a resident of Bay City, and doing business there, and was in Bay City on June 4th, and continuously some days both prior and subsequent thereto; and that Mr. Reynolds, one of the plaintiffs, knew Mr. Foss was a resident of Bay City. The affidavit also denied that Edgar H. Foss was his proper agent for the service of process.

Many reasons are assigned by the circuit judge in his return why he quashed the writ. It will not be necessary to refer to all of them.

The right to have a lien upon forest products for work done upon them is in derogation of the common law, and is a statutory right. The requirements of the statute must be observed before the lien obtains. Davison v. Davison, 99 Mich. 625 (58 N. W. 637). The method of serving a writ of attachment issuing from the. circuit court is described in 3 Comp. Laws 1897, § 10761. It is there provided that service of such a writ may be made in any county of this State. In construing this statute it has been held that substituted service is only permitted in case the defendant cannot be found. White v. Prior, 88 Mich. 647 (50 N. W. 655). There was nothing in the return of the officer to indicate that personal service might not be had upon the owner of the logs, while it was affirmatively shown upon the hearing of the motion to quash that personal service could have been had upon him at his home in Bay City.

The return of the officer shows the service which he made was made one day before the return day of the writ. This was a fatal defect. Bargh v. L. R. Ermeling & Co., 110 Mich. 164 (67 N. W. 1083), and cases there cited; Farr v. Kilgour, 117 Mich. 227 (75 N. W. 457).

Counsel say they sought to have the return amended, and that, if allowed to do so, the amended return would cure the defects. The answer of the circuit judge to the order to show cause in relation to the offer to amend is as follows: “Plaintiffs’ attorney moved for leave to the officer to amend his return as to the diligence shown and as to the character of the agency of Edgar H. Eoss.” This offer falls far short of being an offer to show such a state of facts as would justify substituted service. It is not an offer to show the officer retained the writ in his possession until the return day thereof, and that he made a diligent effort to Serve the same personally upon the owner, and that he could not do so because he was not a resident of this State, or,- being a resident, was not at home, or was concealed so that service of process could not be made upon him.

It is said the owner waived any defects in the service by giving the statutory bond. The condition of the bond is, not that the owner of the logs will pay any judgment which may be obtained against the principal, but merely that he will pay such sums as may be found to be a lien upon the logs. The bond stands in the place of the property. The giving of the bond is not an appearance in the case. In Streeter v. McMillan, 74 Mich. 123 (41 N, W. 883), an attachment was issued under the log-lien law. The owner of the logs gave the statutory bond, but the court held the service was invalid.

The writ is denied.

The other Justices concurred.


author: Hooker, J.

text:
    CLARK v. KENT CIRCUIT JUDGE.
    1. Capias ad Respondendum — Affidavit—Date:
    The fact that an affidavit for a capias ad respondendum was signed and sworn to on the day preceding the date of the writ does not entitle defendant to have the proceedings quashed.
    2. Same — Order Quashing Writ — Mandamus to Set Aside.
    On mandamus to compel a circuit judge to vacate an order quashing a writ of capias ad respondendum, statements in the petition as to the grounds of his action, not denied in the return, must, under Supreme Court Rule No. 13, be accepted as true.
    3. Contracts — Commission Broker — Stock Gambling — Pbesump tion.
    A contract whereby plaintiff agreed to furnish defendant, a stock and commission broker, with market quotations, and to pay his license fee, and defendant agreed to place with plain tiff orders received by him from his patrons, cannot be pre sumed to contemplate a stock-gambling transaction, so as to render it void.
    4. Capias — Fraudulent Conversion — Sunday Contract.
    One who procures money by fraudulent representations, and converts it to his own use, is liable to arrest on a capias, under 3 Comp. Laws .1897, § 9998, allowing the writ in cases of claims for damages other than those arising on contracts, express or implied, even though the representations were made on Sunday, and the money was forwarded pursuant to a contract made on that day.
    5. Same — Averments in Affidavit — Sufficiency.
    An affidavit for a capias ad respondendum which alleged that plaintiff forwarded a note to defendant for collection, and that he collected §100, which he converted to his own use, and without authority accepted a note for the balance, which he refused to surrender to plaintiff, .stated facts sufficient to entitle plaintiff to the writ, since it showed an unlawful conversion of his property.
    6. Joinder of Actions.
    A claim against defendant for fraudulently procuring a sum of money from plaintiff with which to pay a license fee to conduct a business for plaintiff in another city, and a claim for another sum, the proceeds of a note forwarded to defendant by plaintiff for collection, both of which sums are alleged to have been fraudulently converted by defendant to his own use, may be joined in one action.

      Mandamus by Arthur J. Clark, Charles R. Evarts, and Edwin Evarts, copartners as A. J. Clark & Co., to compel Alfred Wolcott, circuit judge of Kent county, to vacate an order quashing a writ of capias ad respondendum.

    Submitted November 13, 1900.
    Writ granted December 31, 1900.

      E. J. Adams (Stevenson, Merriam, Eldredge & Butzel, of counsel), for relators.

      Rodgers, McDonald & Minor, for respondent.
   Hooker, J.

Martin Y. Elliott was arrested upon a capias ad respondendum at the suit of the relators, and was duly admitted to bail by the circuit judge as per order indorsed upon the writ. Subsequently, upon motion of Elliott, the respondent made an order vacating his order to hold to bail, and quashing the proceedings, upon the ground that the affidavit attached to the writ was signed and sworn to on the day preceding the day of the date of the writ. A motion was thereupon made by the relators asking the court to set aside said last-mentioned order, but this was denied. Counsel now ask a mandamus to compel the court to vacate the order quashing the proceedings.

The respondent seeks to justify his action by the terms of the statute providing that an affidavit is requisite to the issue of a capias. 3 Comp. Laws 1891, §§ 9996, 9999. At common law the defendant was not liable to be arrested upon mesne process for civil injuries unaccompanied with force. 1 Tidd, Prac. 128. In early times a writ of capias was not an original writ,' being issued to insure an appearance only after an original writ had proved ineffective. But by successive enactments it became an original writ, and was obtainable in all actions for the recovery of money, damages, or personal property. The history of this subject in detail will be found in the introduction to Sell. Prac. pp. 52-59. The affidavit appears to have been made a condition precedent to arrest in the time of George I. The author (page. 60) thus tersely shows the great change that took place in the matter of arrest in civil cases:

“Thus stands the law at this day; and the difference in this respect between the modern and ancient practice is most extraordinary. Originally no arrest was allowed for any debt, or purely civil cause of action, but only for trespasses committed vi et armis. Now the law is reversed, no arrest being allowed in actions of trespass vi et armis, except by a particular order of a judge, but only in cases -of debt and other civil actions.”

An examination of the cases will show us that the statute was not so strictly construed as to require the affidavit "to bear the same date as the writ. Manifestly the date could not be the same when the affidavit was made in Scotland, or without the realm, for a writ to be issued at London, and such was a common practice. Sell. Prac. p. 111. This seems at variance with the case of Collier v. Hague, 2 Strange, 1270; but it is not necessarily so, in view of the rule which required a new affidavit after the lapse of a year, as in that case the arrest occurred two years and ten months after the affidavit was made. See Crooks v. Holditch, 1 Bos. & P. 176; Petersd. Bail, 189; Corrin v. Millington, 2 Miles (Pa.), 267.

It is observable that, through the varying phases of this practice, the rule contended for by the respondent has not prevailed, and the effect of it would be to compel the plaintiff in every case to be within a day’s journey of the office from whence the writ is to issue. This would be an inconvenience not called for, as the chances and consequences of a prosecution after a payment or settlement during the time intervening between the making of the affidavit and the issuing of the writ are remote and trifling.

Counsel rest their claim upon a technical construction of the statute, and some cases, arising upon attachment, where such a construction is given to somewhat similar statutes. See Drew v. Dequindre, 2 Doug. 93; Hale v. Chandler, 3 Mich. 535; Wilson v. Arnold, 5 Mich. 98; McPherson v. McGillis, 93 Mich. 525 (53 N. W. 794); Northern Michigan Lumber Co. v. Lyon, 95 Mich. 584 (55 N. W. 438). But these statutes are more stringent than those before us, and, furthermore, they introduced an entirely new remedy. If the statutes having application here change the common law by placing greater obstacles in the way of the remedy by capias, such obstacles are not to be enlarged by construction. The doctrine that “statutes in derogation of the common law shall be strictly construed ” means that they shall be held not to change the common law beyond the requirements of a strict (i. e., necessary) construction. The converse of the proposition is contended for here; i. e., that a strict construction is required, although more destructive of the common-law rule than a liberal construction would be. We think this view of the rule stated.is at variance with its spirit. This court has refused to follow the attachment cases referred to, where cited in relation to other statutes. Thus, a justice’s transcript filed, and execution issued, three days after the making of an affidavit of the amount due, as required by statute, were held good; and an order of publication, issued some days after the affidavit was made, has been sustained. Udell v. Kahn, 31 Mich. 195; Smith v. St. Joseph Circuit Judge, 46 Mich. 338 (9 N. W. 440); Adams v. Wayne Circuit Judge, 98 Mich. 51 (56 N. W. 1051). We base this decision upon the settled rule that an affidavit need not bear the same date as the writ.

It is claimed that the circuit judge did not limit his decision of the motion to quash to the ground mentioned; but, as the return does not deny the allegation that he did so, we must treat the statement contained in the petition as admitted. Sup. Ct. Rule No. 13. We should not, however, refuse to consider the other grounds of the motion, if they are such as justify the order made; for we are not called upon to compel action in any case when the record shows that the relator is not justly entitled to relief.

The affidavit was made by one of the plaintiffs in behalf of all. It alleges that the plaintiffs named in the annexed writ have a claim against the defendant therein for damages in excess of $100, upon which the affiant believes that the plaintiffs are entitled to recover $1,200; that the affidavit is made in support of the arrest of said defendant, under a writ of capias; and that the facts and circumstances alleged in said affidavit are within affiant’s personal knowledge. The affidavit then states that Elliott, the defendant, is a broker and dealer, on commission, in stocks, etc., with his office in Grand Rapids, where he resides; that on or about February 25, 1900, the plaintiffs made a contract with him whereby they furnished said defendant with market quotations, and he placed orders received by him from his patrons with them; that on August 24, 1900, he ceased to send orders; that on May 20, 1900, they met him at his request, and he then stated that the city of Grand Rapids had imposed a license fee of $500 per annum upon each broker dealing on margins, that the same applied to him, and that he had not the money to pay it, and unless it was paid he would be obliged to quit business; that he said further that he had a large number of good patrons, and fine prospects for building up a good business to the mutual advantage of plaintiffs and himself, and requested them to pay the license; that, believing and relying upon his statements, they agreed to send him $500, to be used only for such purpose; that they did send him their check for $500, and that the same was afterwards returned to them, bearing his indorsement, and, to affiant’s personal knowledge, it had been duly paid. It is further alleged that the statements that he had a large number of good patrons, and fine prospects for building up a good business for their mutual advantage, were untrue, and so known to be by defendant, and also that said license fee did not have to be paid at once, and that affiant believes that they were made for the fraudulent purpose of obtaining the money and appropriating it to his own use, and that before he. received it the ordinance requiring the payment of licenses was repealed, and that he appropriated the money to his own use, and refused to return or repay the same. The. affidavit further says that on July 31, 1900, the plaintiffs owned a promissory note for $700, and that said defendant informed them that he could collect said note to better advantage than they could, and, if they would send the. note to him for collection, he would collect the same, and remit the proceeds as fast as collected, without charge; that they sent the note, and he collected $100, and without authority took a new note for $600, payable to his own order, and has since refused to deliver either the money or the note to plaintiffs, and has said that he would never pay or account for any portion of the same.

Counsel contend that, as to the first claim, the affidavit, does not state a cause of action, because it was a gaming-contract, void under 3 Comp. Laws 1897, § 11373; and, further, that the money sent to pay the.license fee is stated to have been sent on Monday, in confirmation of an agreement made on the Sunday previous, and that, such contract is void because made on Sunday.

We cannot assume that this was a gaming contract,, and the affidavit does not show that the sales contemplated, were within the prohibition of the statute. Donovan v. Daiber, 124 Mich. 49 (82 N. W. 848).

The Sunday contract was void (see Aspell v. Hosbein, 98 Mich. 117 [57 N. W. 27]), and the most favorable view of the transaction for the plaintiffs that can be taken is. that the defendant received money for their use and benefit, through fraudulent representations made on Sunday, and that he has converted it to his own use, in violation of the trust upon which he received it. Again, under section 9998, this process was warranted if it can be said that the affidavit states that this money was procured by false pretenses and converted to defendant’s use; and the fact that the pretense was followed by plaintiffs’ promise to send the money should make no difference, whether made on Sunday or not, the vital thing being the fraud.

It is claimed by respondent’s counsel that the affidavit fails to state a case entitling them to a capias as to the $700 note. We think the affidavit shows an unlawful conversion of plaintiffs’ property (i. e., the note and its proceeds), and this would entitle them to a capias. See Hicks’ Case, 20 Mich. 280; Wilcox v. Ismon, 34 Mich. 268; Watson v. Judge of Superior Court of Detroit, 40 Mich. 729; Hatch v. Saunders, 66 Mich. 181 (33 N. W. 178).

The affidavit concludes with the statement that “the plaintiffs have a good cause of action * * * in an action of trespass on the case, and for fraud and breach of trust arising upon contract, express and implied.” It is said these claims cannot be joined in one action. We are of the opinion that the two causes of action particularly set forth in the affidavit may be prosecuted in one action.

Some other points are made, but our examination of them convinces us that they are not fatal to this proceeding.

The writ will issue as prayed.

The other Justices concurred.


text:
    MEADS v. BELT COPPER MINES.
    Certiorari — When Issues — Review of Interlocutory Order.

      1. The writ of certiorari is not one of right, but is addressed to the sound discretion of the court.
    2. Where no injustice can result from the action of the court below, and final judgment can protect ,the relator’s legal rights, the writ will not be granted to review an interlocutory order.

      Certiorari to Ontonagon; Haire, J.
    Submitted November 13, 1900.
    Decided December 31, 1900.
    Attachment proceedings by Alfred Meads against the Belt Copper Mines, Limited. From an order setting aside a default judgment, plaintiff brings certiorari.

    Writ dismissed.
    The relator brought suit by attachment against the Belt Copper Mines, Limited, a foreign corporation existing under the laws of the kingdom of Great Britain and Ireland. The sheriff, under the writ, levied upon the lands of said corporation situated in the county of Ontonagon, Mich. He was unable to find any officer of the corporation on whom to make service, and thereupon plaintiff caused notice of the issue of said attachment to be published in a newspaper in accordance with the statute. After such due publication, he filed his declaration and entered defendant’s default. Thereupon James Mercer, R. R. Goodell, Linus Stannard, and R. Chynoweth executed to the sheriff a bond in the amount of $12,000, reciting the suit and the levy thereunder, and that “the persons in possession of said lands'wish to release the same from said levy in accordance with the statute in such case made and provided, namely, sections 7998 and 7999 of the second volume of Howell’s Annotated Statutes.” The condition of the bond was to pay any judgment which may be recovered by said plaintiff in said suit within 60 days after it shall be rendered. The above-named parties to the execution of said bond filed a petition in the suit, reciting the proceedings theretofore had, and prayed that they might be permitted to appear and defend the suit to the same extent as though they were made defendants therein, that the default might be set aside, and that they might be permitted to plead. The petition contains the following statement:
    “That at the time of the issuing of said writ of attachment, and at the time of the levying the same upon said lands, your petitioner Rufus R. Goodell- was interested in said lands as a purchaser thereof, the rights and title purchased by him having been acquired by virtue of a mortgage sale of the same, made under a mortgage theretofore given by the said Belt Copper Mines, Limited; that the attachment levied on said lands constituted a cloud on .the title, and was claimed to create a lien on the premises, affecting the rights and title of the above-named petitioners; and that to remove said cloud, and to relieve said land from said claimed lien, the said petitioners, at the special instance of the said Rufus R. Goodell, executed and delivered to the said sheriff a bond for the release of said attachment, pursuant to the statute in such case made and provided, and conditioned, according to the terms of said statute, for the payment of any judgment that might be recovered in said action.
    “ Your petitioners further show that the said defendant, the Belt Copper Mines, Limited, was a corporation organized under the laws of England; that long prior to the commencement of said action the said corporation went into voluntary liquidation, under the laws of England, and was, pursuant to said laws, dissolved, and its corporate existence wholly terminated, so that long prior to said action the said corporation was not in existence, and could not, and cannot now, appear in said cause, or in any manner defend the same, having no officers, agents,, or attorneys to represent it, and no existence or power remaining by which or under which any defense can be interposed in said action on behalf of the defendant named therein; that nevertheless your petitioners, by reason of the said bond, may become liable to the said plaintiff for the payment of any judgment which may be rendered in said action in. favor of said plaintiff, and under said order of default. And your petitioners further show that there exists a good and meritorious defense to the claim of the said plaintiff, which ought to be interposed therein for the purpose of' protecting your petitioners against any unjust liability under the said bond.”
    To this petition, relator demurred. The demurrer was overruled, the default set aside, and the parties permitted to appear. There being no circuit court commissioner in the county of Ontonagon, relator applied and obtained allowance of the writ of certiorari to this court from the circuit court commissioner of Houghton county. Defendants now move to dismiss the writ.

      Ohadbourne & Bees, for the motion.

      Moore & Moore (William B. Adams, of counsel), contra.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). Several objections are made to the allowance of this writ. We need to determine but one. Relator having demurred to the petition of the parties to appear and defend the suit, he has admitted all the allegations in the petition to be true. The petition expressly states that Mr. Goodell has acquired title to the lands by virtue of the mortgage sale; that the condition of the company is such as to prevent any appearance upon its part, or the interposition of any defense; and that there is a just and meritorious defense to the action. If the purchaser of the land cannot appear, no defense to the action can be interposed. We are not prepared to say that a purchaser at a foreclosure sale, even before the right of redemption by bona fide creditors has expired, should not be allowed to appear and defend an action brought against the mortgagor. It may be true, under the authorities cited by relator, that the purchaser might resort to a suit in chancery. It is, however, unnecessary to decide that question. The writ of certiorari is not one of right, but one that is addressed to the sound discretion of tbe court. It should not be used to defeat justice. If the relator has an honest claim, he need not fear the result. If his claim is not founded in justice, this writ should not be interposed to assist him. No injustice can be accomplished by the interposition of the purchaser of the land, who is as much entitled to it as is the relator. The judgment will protect the legal rights of all.

Besides, this is an interlocutory order. It is not a final. judgment. Quaere : Is it such an order that the writ of certiorari may be invoked to review it ?

The motion is granted, and the writ dismissed.

The other Justices concurred.


author: G-rant, J.

text:
    VANDERCOOK v. DETROIT, GRAND RAPIDS & WESTERN RAILROAD CO.
    Railroads — Injury to Passengers — Proximate Cause.

       Plaintiff was a passenger over defendant’s road. On approaching Lansing, in the night, the train ran into some flat cars standing on the Michigan Central track, 60 rods from the depot. The train was running so slowly that the plaintiff supposed it had reached and stopped at the depot. He soon ascertained that an accident had occurred. He remained in the car from 5 to 10 minutes, and then followed other passengers across a flat car, which stood close alongside the coach. The passengers stepped from the coach onto the flat car, and jumped to the ground, to go to the depot or to their ' homes. Plaintiff walked across the flat car, and, in jumping from it, caught' the toe of his shoe in a stake-hole, and fell. Held, that the collision with the train of flat cars was not the proximate cause of the injury.
    Error to. Ingham; Person, J.
    Submitted -December 6, 1900.
    Decided December 31, 1900.

      Case by Willis Vandercook against tbe Detroit, Grand Rapids & Western Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff, on tbe evening of December 24, 1897, was a passenger over the defendant’s road from Plymouth, Wayne county, to Lansing. The train was due in Lansing at 9 o’clock, and was a few minutes late. The tracks of the defendant and the Michigan Central united about 60 rods south of the depot at Lansing, and formed what is known as a “ Y.” Trains on either road were required to come to a stop upon approaching the Y, unless a certain signal indicated that the track was clear. The defendant’s train approached the Y without stopping, and ran into a train of flat cars standing upon the track of the Michigan Central. The defendant’s train was moving very slowly, and plaintiff testified that the jar was no greater than is common when the train is stopped by the application of the brakes. He supposed that the train had reached the depot. He remained in the car from 5 to 10 minutes, and then stepped from the car onto a flat car, which stood even with the steps of the coach and close to it, for the purpose of leaving the train to go up to the depot. Other passengers had preceded him, and had safely alighted. He stooped a little in his preparation to jump from the flat car, caught the toe of his boot in a stake-hole of the flat car, and fell forward, injuring his arm. He testified:
    “The reason why I got off where I did was that there was a light there. A man stood there with a lantern, that I took to be a railroad man, asking us to get off there. I could not tell what kind of a looking man he was, whether large or small; it was too dark. I thought he was a railroad man because he had a lantern.”
    The jury found a verdict for the plaintiff.

      It. A. Montgomery, for appellant.

      Smith & Hood, for appellee.

       Head-note by Grant, J.

   G-rant, J.

(after stating the facts). The negligence of the defendant, through its engineer, in running into the train upon the Michigan Central, is conceded. The question in the case is this: Was that the proximate cause of the injury to plaintiff ? Plaintiff’s counsel seek to bring the case within the rule stated in Shear. & R. Neg. § 26:

‘£ The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces that event, and without which that event would not have occurred.”

They cite the following authorities: Jensen v. The Joseph B. Thomas, 81 Fed. 578; St. Joseph, etc., R. Co. v. Hedge, 44 Neb. 448 (62 N. W. 887); Halstead v. Village of Warsaw, 59 N. Y. Supp. 518; Phillips v. Railroad Co., 127 N. Y. 657 (27 N. E. 978); Schemerhorn v. Railroad Co., 53 N. Y. Supp. 279.

In Jensen v. The Joseph B. Thomas, plaintiff was at work in the hold of the vessel. The hatch covers were piled up by the side of the hatchway under which plaintiff was at work. A freshly-painted keg was placed upon the hatch covers to dry. Some one stepped upon the hatch covers, by means of which the keg was thrown into the hatchway, and fell upon the plaintiff.

In St. Joseph, etc., R. Co. v. Hedge, plaintiff jumped from a moving train in order to escape a threatened collision with a runaway freight car, due to the negligence of the defendant.

In Halstead v. Village of Warsaw, the defendant had been using a steam roller upon the street, and left it by the side of the street, which was only three rods wide. The roller left a space of about two rods for the teams to pass. The horse, an ordinarily gentle one, shied. The driver, plaintiff’s husband, suddenly pulled upon the reins, and the bit broke.

In Phillips v. Railroad Co., plaintiff was crossing a railroad with his horse and buggy. There were gates on each side to prevent travelers entering upon the approach of trains. The buggy passed through the west gate without interruption, and, as he was passing under the east gate, the gate-keeper lowered the gate so as to strike the horse, and one of the lines broke. The horse turned suddenly, and upset the buggy.

In Schemerhorn v. Railroad Co., defendant failed to give the crossing whistles until within 500 feet of the crossing, when three piercing shrieks of the whistle frightened the horse, — an ordinarily gentle one, — and he became unmanageable, and carried the decedent in front of the train.

It will be readily seen that these cases are not in point. The original cause and the alleged proximate cause were simultaneous. In each the injured party had not time to deliberately choose his course of action, while in most of the cases he was compelled by the situation to act as he did. In this case no injury resulted from the collision. Plaintiff was entirely safe and unhurt, and could have remained on board the train had he chosen to do so. No negligence is charged in failing to afford a safe place in which to alight. Undoubtedly the plaintiff’s fall was not attributable to the negligence of any one. It was one of those accidents for which no one was to blame. Several others had alighted in safety. The passengers going beyond Lansing remained in the car. Plaintiff’s home was at Mason, and he intended to take a train on the Michigan Central the same evening for his home. The Michigan Central train could not go until the track was cleared and the defendant’s train had pulled up to the depot.

Under plaintiff’s contention, defendant would be liable for any accident resulting to him from the time he left the car until he reached the depot, provided he was himself without negligence. If he had stumbled over the end of a tie or other obstruction, the defendant would be liable. If he had remained in the car for half an hour or more, instead of 10 minutes, and then concluded to go to the depot, the defendant would be liable. So, too, if a traveler on a highway found a bridge unsafe to cross, and .attempted to ford the stream, or get across by some other means, a municipality would be liable. In Lewis v. Railway Co., 54 Mich. 55 (19 N. W. 744, 52 Am. Rep. 790), the defendant was held to be negligent in carrying the plaintiff beyond the station, and giving him erroneous information as to where he was. After alighting he soon discovered that he was south of the cross-road he intended to take, instead of north of it, as he was told when he alighted. If he had landed where he was told he had, he 'had meant to follow the track south to the road, and pick his way across the culvert, though he might have shunned it by taking a side path. In approaching the road from the south, he determined to cross the other culvert in the •same way. On nearing the cattle-guard his eye deceived him, his foot slipped, and he fell into the culvert. It was held that the negligence of the defendant in carrying him past the station, and in giving him erroneous information . as to the exact locality where he alighted, was not the proximate cause of the injury. The question of proximate • cause is there thoroughly discussed, and many authorities cited and commented upon by Chief Justice Coolest, in .an opinion concurred in by the entire court. We are of the opinion that that case controls, and that the court should have directed a verdict for the defendant.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


text:
    ANDERSON v. ETTRIDGE.
    Wills — Construction—Life Estate.

       A husband devised certain real estate to his wife, to be used by her as a homestead, or for her benefit, if rented, so long as she should live. The will also charged upon her the payment to testator’s sister of one-half the rental value, and authorized her, .at her option, to sell the real estate, and divide the proceeds equally between herself and his sister. The testator’s widow occupied the land as a homestead until her death. Held, (1) that the will conveyed a life estate; (2) that the interest devised to the sister ceased with the death of the widow; (3) that the testator’s heirs take the land.
    Appeal from Wayne; Frazer, J.
    Submitted December 6, 1900.
    Decided December 31, 1900.
    Bill by William B. Anderson against William Ettridge, Sarah Anderson, John Camlin, Fannie Camlin, and others to construe the last will and testament of James Grills, deceased. From the decree rendered, all parties, except defendant Ettridge, appeal.
    Reversed.
    James Grills died testate in March, 1868. He had no children. He left a widow, who had one child by a former marriage, the defendant William Ettridge. ' The other defendants are the heirs at law of said James Grills. He owned at the time of his death a house and lot in the city of Detroit, of the value of $2,500. The will reads as follows:
    “I do give and bequeath to my beloved wife, Eliza, my house and lot on Second street, No. 150, in the city of Detroit, county of Wayne, and State of Michigan, to be used by her as a homestead, or for her benefit, if rented, so long as she may live; and so long as said house and lot shall be used by my said wife as a homestead, or rented for her benefit, it is my wish and request that my said wife, Eliza, shall pay to my beloved sister, Sarah Anderson, or to her attorney or representative, the value of one-half the rental of said house and lot, to be paid quarterly; and in case my wife, Eliza, shall at any time choose to sell said house and lot, I do bequeath and give to my said sister, Sarah Anderson, one-half of the proceeds received from" the sale of said place, my wife retaining the other half; and, in case of the death of my said sister before her children shall become of age, the one-half the rental of said house and lot quarterly shall be paid to the children of my sister, Sarah Anderson, in equal parts to each; and should said house and lot be sold after the death of my said sister, and before the children shall become of age, then one-half the price received for the same shall be paid to the guardian or legal representative of said children, for their benefit. It shall be optional with my beloved wife to keep or sell said house and lot, as she may prefer, and in either case the quarterly rent or price paid for said place shall be as above set forth. Should my wife outlive my sister, Eliza [Sarah], and after her children shall all become of age, my said wife is not to pay to her said children any rental or part of price of land if sold. My said sister shall pay one-half the taxes, interest on mortgage, and insurance while receiving the rent from said house and lot. Hereby revoking all other wills.”
    His widow occupied the premises until her death, in 1899. She did not rent or sell the premises. She paid none of the rental value provided for in the will, nor did Mrs. Anderson, who is still living, make any demand for it. The bill is filed to obtain a construction of the will. The learned circuit judge held that the widow, under the will, took the fee in the land, and that her son inherits it.

      John H. Patterson, for complainant.

      Samuel J. Patterson, for defendant Sarah Anderson.

      Charles JR. Robertson, for defendants Camlin.

      A. B. Hall, for defendant Ettridge.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). We are of the opinion that the estate devised was for life only. The same sentence, the first clause of which, standing alone, would convey the fee, expressly limits the devise to the use of the land as a homestead for life, or, at the option of the devisee, to rent it for her benefit during her life. This life estate was also charged with the payment to the testator’s sister of one-half the rental value. The testator evidently did not desire to limit his wife to a life estate, should she prefer to take in lieu thereof one-half the value of the premises, and therefore attached to the bequest a power of sale optional with her to exercise. Attached to this power of sale was also the duty to divide the proceeds with his sister. The widow chose not to avail herself of this option, but to retain the life estate. The power of sale is not controlling, but is only one fact to be considered in interpreting a will. The will makes no provision for the sister beyond the life of the wife. The sister, therefore, has no interest in the land except as heir. We think this case is controlled by Jones v. Deming, 91 Mich. 481 (51 N. W. 1119). In that case the power to sell was conditioned upon the necessity of the wife. In this case the power is conditioned upon the voluntary act of the wife, and until that voluntary act had been performed she took only a life estate. The heirs of the testator are therefore entitled to the land.

The decree is reversed, and one entered in this court in accordance with the above opinion. We think no costs should be allowed.

The other Justices concurred.


text:
    FLATTERY v. JAMES CUNNINGHAM, SON & CO.
    1. Principal and Agent — Authority—Agreement to Pay Commissions — Question for Jury.
    Where defendant’s traveling agent testified that he was authorized by defendant to pay commissions to persons assisting him in making sales for defendant, and that, as to some of the sales which plaintiff assisted in bringing about, defendant was informed beforehand of the amount of commissions to be paid, and agreed to pay the same, a requésted instruction that, under such testimony, it appeared that the agent had no authority to agree to paycommissions on sales, was rightly refused, and, the testimony being contradicted by that of defendant’s manager, the question of authority was properly left to the jury.
    2. Same — Double Commissions — Middleman.
    Where, by agreement between defendant, a manufacturer of funeral cars, and plaintiff, an undertaker, the latter was to be paid a commission for assisting defendant in making a sale to a liveryman, and plaintiff told the liveryman that, in order to attend to plaintiff’s business, he must have additional hearses, and he brought defendant and the liveryman together, and a sale was made, plaintiff was not precluded from recovering commission on the ground that he had acted for both parties; plaintiff having had no part in fixing the price, nor having been compensated by the buyer.
    Error to Wayne; Hosmer, J.
    Submitted December 7, 1900.
    Decided December 31, 1900.

      Assumpsit by Charles N. Flattery against James Cunningham, Son & Company for commissions on the sale of goods. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Fred A. Baker, for appellant.

      Bowen, Douglas & Whiting (James O. Murfin, of counsel), for appellee.
   Moore, J.

The defendant is a corporation selling coaches and funeral cars. It had in its employ a travel-* ing agent named Closs. Plaintiff claims the defendant authorized Closs to pay him commissions, where he could assist him in making sales, and that he did assist .in making sales, which entitled him to commissions amounting to $325.75. The jury rendered a verdict for $240.75.

Two questions are discussed by counsel for defendant. The first one is that the court should have charged the jury that, under the testimony of Mr. Closs, there is no authority shown to pay a commission on sales. Mr. Closs testified that the 'company authorized him, whenever a person could assist him in making a sale, to make the matter right with him, and pay him a commission for doing so. He "also testified that, as to some of the sales plaintiff assisted in bringing about, the company was informed of the amount of commission which was to be paid to the plaintiff before the sale was completed, and agreed to pay it. The manager of the defendant denied this testimony. This raised a question of fact, which we think was properly submitted to the jury.

The second point is that the plaintiff could not act for both buyer and seller in making a sale, and could not recover any commission on sales made to Mr. Straight; citing Tewksbury v. Spruance, 75 Ill. 187; Scribner v. Collar, 40 Mich. 375 (29 Am. Rep. 541); McDonald v. Maltz, 94 Mich. 172 (53 N. W. 1058, 34 Am. St. Rep. 331). There can be no doubt of the rule, but it is claimed on the part of the plaintiff that it does not apply to this case. The plaintiff was an undertaker. Straight was a liveryman, whose carriages, hearses, and teams were used at funerals conducted by the plaintiff. He insisted that, if Straight was to have his business, he must get two additional hearses. Straight decided to buy them. The agent of defendant and Mr. Straight were brought together through the plaintiff. ' The latter had nothing to do with fixing the price, nor did Straight pay the plaintiff a commission. We do not think the cases cited by counsel should bar the plaintiff from a recovery, if Mr. Closs was authorized to make the arrangement which it is claimed he did make.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    SCOFIELD v. FARMER.
    1. Mortgages — Validity—Estoppel—Replevin.
    Where, in replevin, defendant claims the property under plaintiff’s mortgage, conditioned for the payment of all his notes indorsed by a third party, which was assigned to defendant, and shows that plaintiff induced him to suspend collection of a certain note signed by plaintiff and such third party on representation that the note was for him to pay, and under promise that the mortgage should be assigned to secure its payment, plaintiff is estopped to dispute the validity of the mortgage, and to deny that it was security for the note.
    3. Findings oe Fact — Exceptions—Evidence.
    An exception to a finding of fact as not supported by the evidence will not be sustained unless there is an entire absence of evidence to support it.
    Error to Clinton; Daboll, J.
    Submitted October 10, 1900.
    Decided January 8, 1901.
    Replevin by Frank A. Scofield, an incompetent, by Addie E. Scofield, his guardian, against Charles Farmer. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Edwin H. Lyon, for appellant.

      High & Everett {Bowen, Douglas & Whiting, of counsel), for appellee.
   Montgomery, C. J.

This is an action of replevin for a large amount of personal property. The defendant claimed under a chattel mortgage given by plaintiff to Jay Y. Retan, dated January 31, 1890, and conditioned that Scofield should pay or cause to be paid, oh or before one year from date, all notes or renewals thereof made or indorsed by Retan for the accommodation of Scofield. The mortgage contained the usual insecurity clause. On the 9th of December, 1890, the City Savings Bank of •Detroit forwarded to the defendant, at Ovid, a note for collection, reading as follows:

“$3,000.00. OviD, Mich., 6-16, 1890.
“Four months after date we promise to pay to the order of Chas. B. Grey two thousand dollars, at City Savings. Interest, 7 per cent. Value received.
[Signed] “ J. V. Retan.
“F. A. Scofield.”

On the 16th of January, 1891, Jay V. Retan assigned to the defendant, as trustee for the City Savings Bank, the mortgage above referréd to.

Plaintiff’s contention is that the note above referred to was the primary obligation of Retan, and was not signed by Retan for his (Scofield’s) accommodation, and is not secured by the mortgage. It is not necessary to determine whether the evidence justifies the conclusion that this note was, as between Scofield and Retan, the primary obligation of the former. The court found the following facts :

“ Said Farmer duly received said note, and said Farmer and said Grey thereupon called upon said Scofield and said Retan, and it was thereupon agreed by and between said plaintiff, said Retan, said City Savings Bank, and said Grey, that, if said bank would wait two or three weeks before beginning proceedings to enforce the collection of said last-mentioned note, said plaintiff would, before the expiration of said two or three weeks, pay said last-mentioned note, or, in default of such payment within said two or three weeks, then at the expiration thereof said Retan would assign said mortgage to said bank for the collection of said note; and said plaintiff then and there directed said Retan that if, at the end of said two or three weeks, said note was not paid, that he, said Retan, should assign said mortgage. Said plaintiff also then and there represented to said Farmer that said note of June 16, 1890, was for himself to pay, which representation said Farmer believed, and because of such belief made said agreement.
“ On the 37th day of December, Í890, said bank, by its attorney, Frank D. Andrus, of the city of Detroit, Mich., began suit upon said note against said Frank A. Scofield and Jay V. Retan by writ of attachment, and levied upon the property described in the writ of replevin in this cause. Said writ was executed by one Cross, a deputy sheriff of said county of Clinton, and by virtue of said writ of attachment said Cross at once took possession of said property so levied upon. After the levying of said attachment, and before January 1, 1891, it was agreed by and between said bank and said plaintiff and Retan that if said bank would wait until January 10,1891, said plaintiff would pay his said note, or, in default of the payment, said Retan would assign the said mortgage to said Farmer for immediate enforcement as security to said bank for the note. Neither said plaintiff nor any other person has ever paid said note, or any part thereof.”

It appears from this finding that the defendant was induced to extend the time and suspend proceedings on the plaintiff’s representation that the note was for him to pay, and under the promise that the mortgage might be assigned to secure the payment of the note. It is contended that the evidence does not support this finding, but we think it amply supported by the testimony of defendant.

It is also contended that the finding shows that the bank did not wait the length of time agreed upon before instituting proceedings. This may be true as to the first agreement, but a second agreement was entered into after the attachment was sued out, and the proceeding held in abeyance until the expiration of the time agreed upon,— January 10th. The plaintiff’s counsel contends that there is no testimony to support this finding. The testimony upon this point is not so clear as is that relating to the first agreement, but the defendant, Farmer, testified to two distinct agreements, and testified that the time fixed by the second agreement had expired before the assignment was made. There is not an entire absence of testimony upon this point, and the exception to the finding cannot be sustained. Ball v. Busch, 84 Mich. 336 (31 N W. 565).

The plaintiff must be held estopped from disputing the validity of the mortgage in defendant’s hands, as well as denying that it stands as security for the note in question.

The judgment will be affirmed.

The other Justices concurred.


text:
    LACHMAN v. FULLER.
    Appeal — Libel—Justification.

       On appeal in an action for libel, wherein defendant pleaded the truth as a defense, a judgment.for defendant was affirmed without discussion of the points raised.

    Error to Ottawa; Padgham, J.
    Submitted December 4, 1900.
    Decided January 8, 1901.
    Case by Henry Lachman against Elton D. Fuller for libel. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    This is an action for libel against the defendant, who is the publisher of a newspaper known as the Grand Haven Press. The publication, so far as it concerns the plaintiff, is as follows:
    “court notes.
    “Judge John H. Tafem, of Grand Rapids, was in the city Tuesday to argue a motion in the perennial case of Miller vs. Lachman. Attorneys Turner, of Muskegon, who are representing Henry Lachman, made a motion to strike the chancery bill of Judge Tatem from the files on a technicality. Their motion was overruled by JudgePadgham almost without argument. By this chancery bill Judge Tatem seeks to secure payment of a judgment of $2,000 secured by Grant E. Miller against Henry Lachman. The judgment was for alienating the affections of Mrs. Miller. It appears from the record that a. few years ago Miller left his wife and young daughters in Lisbon, and went to Dakota for the purpose of seeking employment. After he had been there for some time, friends wrote him that he had better return and look after his wife, as Henry Lachman, a wealthy neighbor, was paying her too much attention. Miller at once returned to his home and made an investigation of the condition of things, which finally satisfied him that he had been cruelly wronged. It appeared from stories of his friends that Lachman had been almost a daily visitor at his house during his absence, and had taken his wife -to Grand Rapids on pleasure trips, and generally rendered the widowhood of the lady as little sad as possible. On one-occasion even the boys had marked a hitching post in front of Miller’s residence, ‘ Lachman’s hitching post,’ for the alleged reason that Lachman’s horse was tied there very frequently. Altogether, a beautiful country neighborhood scandal was raised,
    1 ‘ About the only people who held to the theory of the innocence of Mr. Lachman and Mrs. Miller were the principals themselves. The wife denied emphatically that she had wronged her husband, while her alleged paramour supported her assertions so strongly that Mr. Miller, whose wife had always been true to him previously, was almost persuaded that his suspicions had been unjust. At this particular instant, though, Mrs.. Miller, backed up by her paramour, made a fatal mistake. She forced her hesitating husband into a legal fight, by bringing suit for divorce and asking the custody of her children. Then it was that Grant E. Miller retained Judge Tatem, and prepared for a bitter struggle. It came quickly, but was triumphantly won by Judge Tatem. Miller proved to the satisfaction of the court that his wife was not a fit person to control the children, and secured their custody, as well as a decree of divorce. Miller had been a long time entering into the fight, but, as developments came to the surface, he became so indignant that he determined to punish Lachman. For this purpose a suit for alienation of affections was brought by Judge Tatem. The trial was bitterly contested by the able counsel on both sides, but finally a verdict for $2,000 was awarded Miller; This case was appealed by Lachman’s attorneys, with the result that the case was affirmed in the Supreme Court. Then an attempt was made to secure the amount of this decree, which is still being fought.
    “Between Lachman’s heavy legal expenses and his alleged putting out of his hands property, Judge Tatem finds it very difficult to secure full satisfaction. He has sold one piece of real estate and secured a portion of Mil-1 ler’s money, and now seeks a division of the Lachman homestead and a decree of sale for a portion of it. This is the case in which the motion was made and argued Tuesday. This is a striking illustration of the ills usually growing out of the violation of the seventh commandment. * * * Lachman is largely crippled financially, and his folly has already cost him $3,000, with a probability of nearly as much more to follow. Grant E. Miller sits alone in an abandoned home, his little daughters worse than motherless, — a heart-broken man. His wife admits that he always was a loving husband to her, and now repents her folly bitterly.”
    In his plea defendant gave notice that he would prove the truth of the facts stated in the article. The case was submitted to the jury, who found a verdict for the defendant.

      Turner & Turner, for appellant.

      John H. Tatem, for appellee.

       Head-note by Grant, J.

       For truth as a defense to libel or slander, see Warner v. Clark, (La.) 21 L. R. A. 502, and note.

   Grant, J.

(after stating the facts). Counsel for the defendant insists that every material charge or statement in the publication is true. Whether he asked the court to direct a verdict, the record does not show. The records and files in the suits referred to in the article Avere produced in evidence, and. fully sustain the statements referring to them. It appears from these records that the charge of adultery on the part of the plaintiff was directly involved in both suits mentioned in the publication, and that the charge was found by the court to be true. Miller v. Lachman, 117 Mich. 68 (75 N. W. 284). There is other positive evidence, also, of adultery between plaintiff and Mrs. Miller, and also circumstances from wbicb a jury would have the right to infer illicit relations between them.

The court, in a very long charge, covering all the questions in libel cases, instructed the jury that the defendant admitted the publication, and had not retracted when requested to do so, and that the decision in the case depended upon the truth of the facts stated in the article, and left that question to them. The verdict establishes the fact that the article was true, and that plaintiff was guilty of adultery. The errors assigned relate to the rulings of the court in admitting and rejecting testimony, to remarks of counsel for the defendant, to the charge of the court, and the refusal to give certain requests preferred by the plaintiff. An opinion upon these questions would be of no benefit to the profession. We therefore consider it unnecessary to discuss them. We find no error in the points raised. The judgment is therefore affirmed.

The other Justices concurred.


text:
    BONFIGLIO v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Carriers — Damage to Goods — Common-Law Liability — Prima Facie Case — Contract—Burden aw Proof.
    Where a consignee of fruit shows its delivery in good condition to defendant, a connecting carrier, and that it was spoiled by defendant’s negligence in not forwarding it promptly and in not properly ventilating its car, he makes a prima facie case for the recovery of damages at the common law, and the burden is on defendant to show a contract of carriage limiting its common-law liability.
    • Error to Lenawee; Chester, J.
    Submitted December 7, 1900.
    Decided January 8, 1901.

      Case by Frank Bonfiglio against tbe Lake Shore & Michigan Southern Bailway Company for damage to goods in transit. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Beversed.

      John E. Bird and J. N. Sampson, for appellant.

      C. E. Weaver (George C. Greene and O. G. Getzen-JDanner, of counsel), for appellee.
   Moore, J.

This suit was begun to recover damages for the loss of a car of bananas shipped from New Orleans to Ft. Wayne, Ind. In January, 1899, the plaintiff ordered a car of bananas shipped from New Orleans to Ft. Wayne. The consignor shipped the bananas via Illinois Central Bailway and Lake Shore Bailway. The plaintiff claims the bananas were in good order when delivered to the defendant at Chicago by the Illinois Central Bailway, and that, when they were delivered to Bonfiglio in Ft. Wayne, they were nearly worthless on account of the failure of defendant to forward them promptly, and because of its failure to properly ventilate the car. Bonfiglio presented his claim for damages to defendant, and it was refused. He then brought his suit and filed his declaration in case to recover damages of defendant for failure to observe its common-law liability as a common carrier. Early in the trial counsel for the defendant objected to any further proof until plaintiff showed a contract of carriage. This question led to a controversy between the court and plaintiff’s counsel, which finally resulted in a verdict for defendant being directed by the court.

When the plaintiff was on the stand, and about to go into the merits of the case, counsel for defendant, made the following objection:

‘ ‘ I object to any further testimony until they prove the contract of carriage. There is no testimony important or competent until the contract is shown.”

After a discussion of the question, the court sustained the objection, and added:

‘ ‘ The court makes this ruling upon the theory that he cannot in any way say that the common-law liability shall apply, because the bill of lading might show that it does not.”

The plaintiff’s position was that he had filed his declaration in tort to recover for the negligence of defendant, and that he was not obliged to show any contract; and, further, that he had no special contract with defendant, and therefore could produce none. He insisted that when he had shown the car was delivered to the defendant at Chicago, with the fruit in good order; that it was accepted by defendant, and transported to Ft. Wayne, Ind.; that the fruit was damaged; that plaintiff paid the freight to defendant for transporting the car from Chicago to Ft. Wayne, Ind., and showed the extent of the damage, — he had made a case which entitled him to go to the jury, and, if there was any contract limiting defendant’s common-law liability, the burden was upon the defendant to show it.

We,think plaintiff was right in his contention. In 5 Am. & Eng. Enc. Law (2d Ed.), 353, there is a statement of what it is necessary for the consignor to show in order to make a prima facie case. When a prima facie case is made out by showing the delivery of the goods to the carrier in good order, and a failure to deliver them to the consignee in proper order, the rule is stated as follows:

“ The burden of proof is on the carrier to show that the loss was within the exception provided by the contract set up. The fact of the loss under circumstances which would render the carrier liable in the absence of any special contract creates a presumption of the carrier’s liability, which can only be overcome by proof of the special contract, and that the loss was within its provisions.” 5 Am. & Eng. Enc. Law (2d Ed.), 359.

Peoria, etc., R. Co. v. United States Rolling-Stock Co., 136 Ill. 643 (27 N. E. 59, 29 Am. St. Rep. 348); Park v. Preston, 108 N. Y. 434 (15 N. E. 705); Graham v. Davis, 4 Ohio St. 376 (62 Am. Dec. 285); American Transportation Co. v. Moore, 5 Mich. 379; McMillan v. Railroad Co., 16 Mich. 112 (93 Am. Dec. 208).

Judgment is reversed, and new trial ordered.

The other Justices concurred.