text:
    The Moline Plow Company v. James M. Wilkinson, State Treasurer.

      Constitutional law — Foreign corporations — Franchise fee,

    1. Act No. 79, Laws of 1893, which requires every foreign corporation or association permitted after the passage of said act to transact business in this State, which had not, prior to the passage of said act, filed or recorded its articles of association under the laws of. this State, and been thereby authorized to do business therein, to pay a designated franchise fee, and voids all contracts made in this State after January 1, 1894, by any foreign corporation not complying with said act, is not in conflict with subdivision 3, § 8, art. 1, of the Constitution of the United States, which provides that “the Congress shall have power to regulate commerce with foreign nations and among the several states,” etc.

    2. Said act does not apply to foreign corporations whose business within this State consists merely of selling through itinerant agents, and delivering, commodities manufactured outside of this State (Coit & Co. v. Sutton, 102 Mich. 324); but where a corporation so engaged files a copy of its articles of association in this State, and pays the specified franchise' fee under protest, mandamus will not lie to compel the repayment thereof.

      Mandamus.

    Argued February 26, 1895.
    Denied April 16, 1895.
    Itelator applied for mandamus to compel respondent to refund to it tbe amount paid as a franchise fee. Tbe facts are stated in tbe opinion.

      John T. McCurdy, for relator.

      Fred A. Maynard, Attorney General, for respondent.

       As to the exclusion of foreign corporations, or conditions of admitting them, see note to Cone Export & Commission Co. v. Poole (S. C.), 24 L. R. A. 289.

   Long, J.

Petition is filed asking tbe writ of mandamus to compel tbe respondent, tbe State Treasurer, to pay back to relator tbe sum of $400, paid by it under protest, as a franchise fee, in compliance with Act No. 182, Laws of 1891, as amended by Act No. 79, Laws of 1S93. Tbe relator is a corporation organized and existing under tbe laws of tbe state of Illinois, with its principal office at Moline, in that state. It is doing business in this State. Tbe petition shows that about February •6,. .1394, it forwarded to tbe Secretary of State of this State a copy of its articles of association, together with a draft for $400, being tbe amount of its franchise fee, as provided by the act of 1893^ and that such fee was paid under protest accompanying such draft. Demand was thereafter made for the repayment of the money.

Relator claims to be doing business in this State through itinerant agents, whose duty it is to solicit orders and sell goods manufactured in Illinois. It claims that the act of 1893, above referred to, is unconstitutional, as being in conflict with subdivision 3, § 8, art. 1, of the Constitution of the United States, which provides that—

“The Congress shall have power to regulate com'merce with foreign nations and among the several states,” etc.

This contention cannot be sustained. In Horn Silver Mining Co. v. New York, 143 U. S. 305, 314, it was said:

“As to a foreign corporation — and all corporations in states other than the state of its creation are deemed to be foreign corporations — it can claim a right to do business in another state to any extent, only subject to the conditions imposed by its laws. As said in Paul v. Virginia, 8 Wall. 168, 181, ‘the recognition of its existence even by other states, and the enforcement of its contracts made therein, depend purely upon the comity of those states, — a comity which is never extended where the existence of the corporation or the exercise of its powers is prejudicial to their interests or repugnant to their policy.’ ”

The rule was stated by this Court in Home Ins. Co. v. Davis, 29 Mich. 238, that—

“A foreign corporation is not a citizen of the state •creating it except in a qualified sense; and it can do no business in any other state except on such conditions as the latter sees fit to impose.”

See, also, State Treasurer v. Auditor General, 46 Mich. 224.

The strictly legal existence, by force of obligatory law, of a corporation, is confined to the state which created it and endowed it with its powers, capacities, and rights, which it can only exercise in another state by the permission, express or implied, of the legislative power thereof. Thompson v. Waters, 25 Mich. 214; Hartford Fire Ins. Co. v. Raymond, 70 Id. 507.

The statute (Act No. 79, Laws of 1893) provides, among other things, that every corporation hereafter organized under the laws of this State, and every foreign corporation which shall hereafter be permitted to transact business in this State, shall pay a franchise fee of one-half of one mill upon each dollar of its authorized capital stock, etc.

It is claimed, however, that this act was held unconstitutional in the case of Coit & Co. v. Sutton, 102 Mich. 324. The Validity of the act was not questioned in that case. It was held not to apply to the facts there stated. The party there was simply selling goods within this State manufactured by a foreign corporation. The corporation was not asking to have its articles of incorporation filed within this State. It was said that the act in question did not apply to foreign corporations whose business within this State consisted merely of selling through itinerant agents, and delivering, commodities manufactured outside, of this State. Here the relator not only sells its products through itinerant agents, but it comes within the State, asking to have its articles of association filed here, and that it may be put on the same footing with our own home corporations. The act gives the foreign corporation the same privileges as domestic ones, but provides that it must comply with the act by paying the franchise fee which a domestic corporation must pay. The relator has had its articles of association filed here, has paid the franchise fee provided by the act, and is not entitled to have its money repaid.

The writ must be denied.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, O. J.

license: Public Domain

text:
    In the Matter of Mary B. Sneden on Habeas Corpus.

      Habeas corpus — Custody of children — Res judicata.

    1. The general rule is that, as to the custody of children, the determination of a court on habeas corpus is conclusive in a subsequent application for the writ, unless some new fact has occurred which has altered the status of the case; but it does not necessarily follow that such determination is not reviewable on error or certiorari.

      2. In habeas corpus proceedings to obtain the custody of an infant daughter of the petitioner, it appeared that on a prior application to the circuit court, after the taking of testimony and a full hearing, the circuit judge filed a full and exhaustive finding, and remanded the child to the custody of the respondent. On the hearing of the second application, the respondent, in his answer, alleged that the facts and circumstances surrounding the parties were the same as when the judgment of the circuit court was rendered, and contended that the petitioner was concluded by that determination. The petitioner contended that the testimony taken on the hearing in the circuit court was not reported, so that it might be made use of on review, but did not aver such fact in his petition, nor allege that the determination of the circuit court was contrary to law, or that the evidence did not support the facts found by the circuit judge. And it is held that the proceedings must therefore be dismissed.

      Habeas corpus.

    Argued February 26, 1895.
    Writ dismissed April 16, 1895.
    The facts are stated in the opinion.

      William W. Irwin, for petitioner.

      McBride é Danfiof, for respondent.'
   McGrath, O. J.

This is habeas corpus in behalf of the father against the grandfather to obtain the custody of a daughter of petitioner. The child was born November 29, 1888. The mother died in January, 1.889, since which time the child has been with the grandparents. In September, 1893, the father married again, and now seeks to obtain possession of the child. In August, 1894, a like application was made to the circuit court for the county of Ottawa, where, after the taking of testimony and a full hearing, the court filed a very full and exhaustive finding, remanding the child to the custody of the grandparents. Kespondent answers that the facts and circumstances surrounding the parties are the same as when the judgment of the circuit court was rendered, and contends that petitioner is concluded by the determination of that court.

Whatever may be the rule respecting a person imprisoned, the general rule is that, as to the custody of children, the determination of a court on habeas corpus is conclusive in a subsequent application for the writ, unless some new fact has occurred which has altered the status of the case. 9 Amer. & Eng. Enc. Law, 238; Church, Hab. Corp. (2d ed.) p. 575, § 387; Freem. Judgm. (4th ed.) § 324; Mercein v. People, 25 Wend. 64; McConologue’s Case, 107 Mass. 170; State v. Malone, 3 Sneed, 413; State v. Bechdel, 37 Minn. 360; Bonnett v. Bonnett, 61 Iowa, 199.

In Re Snell, 31 Minn. 110, it was held that the refusal to discharge a prisoner was not a bar to another writ based upon the same state of facts, nor to a hearing and discharge thereon; but in State v. Bechdel, supra, the Snell case is distinguished from those in which the writ is sued out merely for the purpose of determining which of two parties is entitled to the custody of an infant. In the latter case the court held that the question was not whether the infant was restrained of her liberty, but who was entitled to her custody; that the gist of the charge was not that the child was restrained or deprived of her liberty, but that such restraint was in prejudice-of the right of the petitioner to her custody; that the case' was really one of private parties contesting private rights under the form of proceedings in habeas corpus/ and that a former adjudication in such case might be pleaded as res judicata, and was conclusive upon the parties upon the same state of facts.

It does not necessarily follow that such determination is not reviewable on error or certiorari.

The case of Corrie v. Corrie, 42 Mich. 509, was brought to this Court upon certiorari. It is true that the Court there say that,—

“If a consideration of evidence is required, we suppose the proper way to be to take a habeas corpus from this-Court.”

The question actually, determined there, however, was whether the Court would re-examine the evidence on certiorari.

In Re Stockman, 71 Mich. 180, the court before whom the original application was made, instead of exercising its own duty in determining the question, submitted it to a jury, and this Court seems to have disregarded that determination for that reason.

It is urged in the present case, however, that the testimony taken on the hearing in the circuit court was not reported, so that it might be made use of on review; but the fact is not averred in the petition, nor is it alleged that the determination was contrary to law, or that the evidence did not support the facts found by the court.

The proceeding must therefore be dismissed, and the child remanded to the custody of the respondent.

The other Justices concurred.


author: Long, J.

text:
    In the Matter of Ellen Bushey on Habeas Corpus.

      Statutes — Repeal by implication — Municipal ordinances — Sufficiency of complaint — Habeas corpus.

    1. It cannot be presumed that the Legislature intended to repeal a law when no reference is made to it in the later act, unless the intent is clear.
    2. It was not the intent of the Legislature by the passage of Act No. 408, Local Acts of 1893, which amended certain sections of the charter of the city of Detroit, to take from the police court of said city jurisdiction to hear, try, and determine eases arising under the city ordinances.
    3. Section 35 of chapter 7 of the charter of the city of Detroit, which provides that the common council may provide for the prohibition and prevention of any disorderly noise or disturbance in the streets or elsewhere in said city, confers power upon the common council to pass an ordinance punishing “any person who shall make any disturbance by which the peace and good order of the neighborhood are disturbed,” etc.
    4. A complaint under said ordinance which charges that the person complained of was and is a disorderly person, for that she was on a specified day, at said city, making and assisting in making a noise, disturbance, and improper diversion, by which the peace and good order of the neighborhood were disturbed, is sufficient, and the words “disorderly person” may be treated as surplusage.
    5. A conviction under a valid city ordinance, on a valid complaint, by a court having jurisdiction to try and determine the offense charged, cannot be disturbed on habeas corpus.

      Habeas corpus.

    Argued March 1, 1895.
    Prisoner remanded April 16, 1895.
    The facts are stated in the opinion.

      Turner, Turner & Crawford, for petitioner.

      John G. Hawley, for city of Detroit.
   Long, J.

Petitioner was convicted in the police court of the city of Detroit upon a complaint which charged that—

“On the 14th day of January, A. D. 1895, at the city of Detroit aforesaid, one Ellen Bushey was and is a disorderly person, for that the said defendant then and there wras making and assisting in making a noise, disturbance, and improper diversion, by which the peace and good order of the neighborhood were disturbed,” etc.

The petitioner is now confined in the Detroit House of Correction. A hearing has been had on petition for habeas corpus.

Section 10, Act No. 161, Laws of 1885, provides:

“The police court shall have concurrent jurisdiction with the recorder’s court of the city of Detroit to hear, try, and determine cases arising under the ordinances of the common council relative to common prostitutes, vagrants, mendicants, street beggars, drunken persons, disorderly persons, disturbances, and breaches of the peace,” etc.

Counsel for petitioner contend that this act was repealed by Act No. 408, Local Acts of 1893, and that by the provisions of the latter act the power to try cases for violations of the ordinances of the common council is exclusively vested in the recorder’s court, and that the police court of the city of Detroit has only jurisdiction to try cases arising under the general laws of the State.

The local act of 1893 is entitled—

“An act to-amend sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 14, 18, 22, 47, and 48 of chapter 12 of an act entitled, ‘An act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith,’ approved June 7, 1883, as amended by the several acts amendatory thereof, and to repeal all acts or parts of acts inconsistent herewith.”

Section 22 of chapter 12, as it stood in Act No. 326, J_iOcal Acts of 1883, is as follows:

“Said recorder’s court shall have exclusive cognizance of all prosecutions for offenses arising under this act, or any ordinance or regulation of the common council. All such prosecutions shall be ‘In the name of the people of the State of Michigan,' cmd he commenced by filing with the clerk of said court'a complaint, in writing, in the form of an affidavit, duly sworn to before said clerk, and subscribed by the person making the complaint, and having indorsed thereon the proper jurat of said clerk; and it shall be deemed sufficient to set forth in said complaint the offense complained -of according to its substance. When a complaint shall be filed as herein provided, a summons shall be issued by the clerk of said court, commanding the respondent in said complaint to appear before said court on a day therein mentioned to answer to said complaint; and, if said respondent shall fail to appear in obedience to said summons, warrants may be issued by the clerk of said court, upon the request of the city attorney indorsed upon the complaint, or upon the order of said court or of the fudge thereof, for the arrest of said respondent, who shall be committed to the jail of Wayne county to await trial upon said complaint, unless he enter into a recognizance for his appearance to answer to said complaint,1 in such sum and with such - sureties as said court may by a general or special order direct. A warrant may be issued in the first instance [upon the order of said court] if it he alleged in said complaint that there is dmiger of the escape of the respondent heyond the reach of the process of said court unless a warrant do issue. The trial shall be had and determined upon said complaint and upon pleadings, which may be amended in the same manner as indictments or informations and pleadings under the general laws of the State.”

The amendment of that section by Act No. 408, Local Acts of 1893, only struck out the words and phrases of the section italicized above, and inserted the clause in brackets. Section 51 of Act No. 408, Local Acts of-1893, provides that— ;

. “All acts or parts of acts inconsistent with or contravening the provisions of this act are hereby .repealed.”

The title of Act No. 326, Local Acts of 1883, which was amended by the act of 1893, is,— •

“An act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith.” , .

Various amendments were made to several sections of Act No. 826 by the act of 1893, while substantially the whole of section 22 was incorporated into the act, the only changes being those mentioned.

The act of 1885, under which the present case was' brought, is entitled,—

“An act to establish the police court of the city óf Detroit.”

It contains 25 sections, and confers upon the police justices to be elected under the act certain powers which before the act took effect were vested in the recorder’s court. It was the evident intent of the Legislature to relieve the recorder’s court of petty- cases arising under the ordinances of the common council, and to clothe the police justices with power to hear, try, and determine them, as the police court under the act establishing it in 1850 had the power only of a justice of the peace. Act No. 301, Laws of 1850. The conten-, tion of counsel for the city is that the Legislature did not intend by the amendment of 1893 to the act of 1883 to take from the police court the power conferred upon it by the act of 1885 establishing the police court. The act of 1893 does not in terms affect the police-court act; but counsel for petitioner claim that the re-enactment, of section 22 and the repealing clause contained in sec-' tion 51 in effect repeal such part of the police-court act-as gives to the police justices jurisdiction in ordinanceJ cases. We think not. Bepeals by implication are not favored in the law, and we cannot presume that the.Legislature intended to repeal a law when no reference, is made to it, unless the intent is clear. The title of, the act of 1893 shows a purpose to amend certain exist- - ing sections of the act of 1883, and makes no reference'to any other act. As was said in Attorney General v. City of Detroit, 71 Mich. 97:

“The frequent and careless revision and re-enactment of charters for Detroit has led to a good deal of confusion, but it cannot be assumed that the re-énactment or modification of charter provisions is intended to affect special legislation outside of the charter without a very manifest indication of such an intent.”

In Brown v. Circuit Judge, 75 Mich. 280, Mr. Justice Campbell, in speaking of the question of repeal by implication, said:

“Apart from the serious question whether, under cover of amending one section of the Compiled Laws, the whole body of the laws can be revolutionized, it is very certain that laws passed for one purpose, and under one title or category, cannot be made to do duty under a foreign enactment, which was not in any way within their contemplated range.”

See, also, Curbay v. Bellemer, 70 Mich. 106.

The amendment of 1893 clearly shows that the legislative purpose was to create an additional judge of the recorder’s court, and to provide for his election. It is noticeable that the amendatory act of 1893 leaves section 1.1 of chapter 12 to read as it did under the act of 1883. This section provides that—

“The said recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this State for crimes, misdemeanors, and offenses arising under the laws of this State, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit, or by the justices of the peace of said city,” etc.

Section 21 is also left in force, which provides that all writs and processes issuing from the recorder’s court on complaints under the city ordinances shall be directed to the superintendent or any member of the metropolitan police, to be executed by. them. Section 49 is also contained in the act, and not changed or repealed. This section provides that the act shall not be construed to repeal or in any way affect any of the provisions of Act No. 479, Laws of 1871, which act provides for the holding for trial by the police court to the recorder’s court of all offenders where the offense is not cognizable by the police magistrate. We think it was not the intent of the Legislature to take from the police court the jurisdiction to hear, try, and determine cases arising under the city ordinances.

It is further contended that the common council of the city of Detroit had no power to enact ordinances to punish in this class of cases. Section 35 of chapter 7 of the Detroit charter reads:

“The council * * * may provide for the prohibition and prevention of any * * * disorderly noise, disturbance * * * in the streets or elsewhere in said city.”

Section 2, chap. 68, of the Revised Ordinances of 1884, under which this prosecution was had, provides that—

“Any person who shall make * * * any disturbance * * * by which the peace and good order of the neighborhood are disturbed * * * shall be punished,” etc.

The charter therefore conferred the power upon the common council to pass the ordinance in question.

It is contended, however, that there is no offense under this ordinance stated in the complaint and warrant, as it is set out that the petitioner was “a disorderly person,” for that said defendant was disturbing the peace, contrary to the form of the ordinance, etc. The complaint and warrant must be held good under the ordinance. The fact that the defendant is described as “a disorderly person” does not render the complaint and warrant bad. The complaint was for disturbing the peace, contrary to the form of the ordinance, and the words “disorderly person” may be treated as surplusage. 1 Bish. Cr. Pro. (2d ed.) §§ 478, 479, and cases there cited. The complaint and warrant contain all the necessary • averments' with these words eliminated; and, as the above author says:

“If the indictment is founded on a statute, and it contains allegations covering all the terms of the statute, and making a complete offense, and then it adds something by way of making he offense appear more enormous, this latter matter rhay be disregarded as mere surplusage. It will have no effect to vitiate the indictment, and it need not be proved.”

Jurisdiction is the only question open on habeas corpus. There was a valid ordinance, a valid complaint, and the court had jurisdiction to try and determine the offense charged.

The prisoner must be remanded.

The other Justices concurred.


author: Hooker, J.

text:
    The People v. Adam Wenzel.

      Statutes — Repeal by implication — Re-enactment of charter provision — Liquor traffic.

    1. So much of subdivision 25 of section 24 of chapter 17 of the charter of the city of Kalamazoo (Act No. 337, Local Acts of 1883) as gave the city council power to regulate and license the sale of intoxicating liquors in said city was repealed by the general liquor law of 1887; citing People v. Furman, 85 Mich. 110.
    2. The re-enactment of said section 24, on amending said charter in 1889, — the only change made being in relation to street parades, provided for in subdivision 11 of said section, — does not show an intention to modify the general liquor law of 1887 as applicable to said city, by repealing it in whole or in part by implication, and reviving the repealed portion of subdivision 25.
    3. The Court distinguish this ease from Sherlock v. Stuart, 96 Mich. 193, where the substantial change made in the provision of the charter precluded the claim that it was included in the amendatory act by inadvertence.

      Error to Kalamazoo. (Buck, J.)
    Argued March 1, 1895.
    Decided April 16, 1895.
    Respondent was convicted of engaging in the liquor business in violation of an ordinance of the city of Kalamazoo, and sentenced to pay a fine of $5.
    Judgment reversed, and respondent discharged.
    The facts are stated in the opinion.

      Frank E. Knappen and E. M. Irish, for respondent.

      George P. Hopkins, city attorney, for-the people.
   Hooker, J.

The defendant was' convicted of liquor selling under a city ordinance which imposed a penalty for engaging in the business of selling intoxicating liquor within the city of Kalamazoo without first obtaining a license from the city authorities. The validity of the ordinance is attacked.

The city charter was enacted in 1883, and section 24 of chapter 17 of that act (No. 337) prescribed the “powers and duties of the city council.” This section contained 44 subdivisions, and in these were contained most, if not all, of the subjects upon, which-the council was given authority to act. Subdivision 25 was as follows: - .

, “To provide for and regulate the inspection of meats, poultry, fish, butter, cheese, lard, vegetables, flour, meats, and .other provisions; to regulate and license all taverns and houses of public entertainment, all- saloons, réstaurants, and eating houses.”

In 1887 the act regulating the traffic in liquor was passed, and it is contended that it effected the repeal of subdivision 25 of this section of the charter. This question, as applied to an ordinance of the city of Adrian, was before us in the case of People v. Furman, 85 Mich. 110. In that case the defendant was convicted of- violating the ordinance against keeping saloons open upon Sunday. The charter was passed at the same sessien, before the general liquor law. It authorized the council to “require all ale, beer, and porter houses, and all places of resort for tippling and intemperance, to be closed on the Sabbath day.” Under this provision the ordinance was enacted. It was held, Mr. Justice Grant speaking for the Court, that the subsequent act was designed to remove from cities all power of regulation under existing charters, except that of regulating the hours for opening and closing of saloons, which that act expressly gave to the common council, boards, etc., of all cities and incorporated villages; and that—

“This provision limits the power of municipalities in legislating as to the time within which saloons may be kept open, and excludes any intention on the part of the Legislature to confer upon them any further power to legislate upon the subject. The act expressly repeals all acts or parts of acts in any wise contravening or inconsistent with its provisions. It is clear, therefore, that it was the intention of the Legislature to provide a uniform rule, applicable to all alike, for the conduct of this business. The ordinance in question is certainly inconsistent with the provisions of this law. We -are therefore of the opinion that this case is not within the rule of People v. Hanrahan, and that the liquor act repealed the ordinance in question and the charter of the city of Adrian, in so far as they assume local legislation over the liquor traffic.”

This decision is applicable to the charter of Kalamazoo, and it follows that the statute of 1887 repealed subdivision 25 referred to.

In 1889 the Legislature amended the charter of Kalamazoo, re-enacting section 24. The only change made from this section, as passed in 1883, was in relation to street parades, provided for in subdivision 11. Subdivision 25 was incorporated as originally passed. The question now arises whether the re-enactment of subdivision 25 shows an intention to modify the general liquor law, as applied to Kalamazoo, repealing it, in whole or in part, by implication.

It is a general rule that repeals by implication are not favored, especially where the effect is to repeal a special act by a general law. End. Stat. §§ 210, 227, 228. Unless the legislative intent to repeal a charter-is deducible from a subsequent general act, the law will hold that the charter is not repealed by implication, and presume an intention to except the municipality from the operation of the general law. Goldson v. Buck, 15 East. 372; Supervisors of Walworth Co. v. Village of Whitewater, 17 Wis. 193; Janesville v. Markoe, 18 Id. 350. These decisions have no application where the intent is plain. See People v. Furman, supra; Kellogg v. Oshkosh, 14 Wis. 623. They are cited to the proposition that a special enactment is entitled to certain presumptions, as against a general enactment, though the latter be subsequent in point of time. It would seem that this presumption could be no less where the special act is later, and that, if incompatible with a prior general act, a repeal of the latter by implication must be found; for otherwise the special enactment could not be given effect. Sherlock v. Stuart, 96 Mich. 193, was a case of that kind, and it was held, Mr. Justice Grant again writing the opinion, that the effect of the subsequent special enactment was to repeal by implication the general liquor law of 1887, as applied to Grand Rapids, so far as the same was inconsistent with the special act. It was accordingly held that the city might grant or refuse licenses to sell liquor upon the ground of the fitness or unfitness of the proposed location, which we understand to have been the question in this case.

The only reason assigned for a different holding in this case is that the amendment to the Grand Rapids charter changed the subdivision relied upon, while in the amendment to the Kalamazoo charter there was no change. It is argued that the change in the Grand Rapids charter clearly showed a legislative intent to alter the general law for the benefit of the locality, and that this is wanting in the present case. We are cited to a number of authorities which are said to support the proposition that—

“Where a statute merely re-enacts the' provision of an earlier one, it is to be read as a part of the earlier statute, and not of the re-enacting one, if it is in conflict with another passed after the first, but before the last, act; and therefore does not repeal by implication the intermediate ohe.” End. Stat'. § 194, and cases cited.

See, also, Merrill v. Kalamazoo, 35 Mich. 216; Attorney General v. City of Detroit, 71 Id. 97. These last two cases are cited to the proposition that special charters are not to be construed to affect .general legislation, or other special acts outside of the charter, unless a- clear intent to do so appears. .

A comparison of the original and amended subdivisions of the Grand Rapids charter at this juncture may be of service.. Local Acts of 1887, p. 494, subd. 55:

“Fifty-fifth, to license and regulate the keepers of hotels, taverns, and other public houses, grocers, and keepers of ordinaries, saloons, and victualing and other houses or places for furnishing meals, food, or drink.”

■ Local Acts of 1891,- p. 505, subd. 55:

“Fifty-fifth, to license and regulate the keepers of hotels, taverns, and other public houses, grocers, and keepers of ordinaries, and victualing and other houses or places for furnishing meals or food; to restrain, license, and regulate saloons, and to. regulate and prescribe the location thereof.”

The substantial change in these subdivisions is the insertion of the word “restrain” in the latter. It precludes the claim that this subdivision was included in the amendatory act by inadvertence.

But in this case the obvious intention was to change the charter in regard to street parades by a change in one of the subdivisions of a long section, every other subdivision of which was incorporated in the new act without change, apparently under the provision of the Constitution requiring amendments to be made by re-enactment of the sections amended. In doing this it was easy to overlook the fact that subdivision 25 had been repealed by.the general liquor law, and we think the case falls within the rule of construction contended for. The following cases recognize this principle: Gordon v. People, 44 Mich. 485; Curbay v. Bellemer, 70 Id. 106; Attorney General v. City of Detroit, 71 Id. 92; In re Bushey ante, 64.

It follows that the ordinance is invalid, and the judgment must be reversed, and the prisoner discharged.

McGrath, O. J., Long and Montgomery, JJ., concurred. Grant, J., did not sit.


author: Montgomery, J.

text:
    The People v. William Kennedy.

      Liquor traffic — Failure to remove screens — Sufficiency of information — Public streets and alleys,

    1. In a prosecution for a violation of 3 How. Stat. § 2283f4, which provides that, during the time when places where liquor is sold or kept for sale must be closed, all curtains, screens, partitions, and other things that obstruct the view, from the sidewalk, street, alley, or road in front of or at the side or end of said building, of the bar or place in said room where said liquors are sold or kept for sale, shall be removed, an information which charges that the respondent, on a specified day, being an election day, was proprietor of and kept a saloon, in a specified village and county, where intoxicating liquors were sold at retail (designating the room and building in which the saloon was kept); that on said day the curtains, screens, partitions, and other things that obstructed the view, from the sidewalk and street and alley in front of and at the side of the building in which said saloon was, of the bar and place in said room where said liquors were sold and kept for sale, were not removed, but, on the contrary thereof, said respondent ■did then and there, as aforesaid, obstruct the view from said sidewalk, street, and alley in front of and at the side of the building- in which said saloon and room were, by not removing said curtains, screens, partitions, and other things that then and there obstructed the view as aforesaid — is sufficient, “said” curtains, screens, etc., being those of which it had been alleged in the previous part of the information that they obstructed the view of the bar and place in said room where liquors were sold and kept for sale.
    2. It is not incumbent upon the prosecution in such a case to show the dedication of the street or alley, but it is sufficient if the fact appear that said street or alley was at the time open to the use of the general public.
    Exceptions before judgment from Allegan. (Padgbam, J.)
    Argued March 1, 1895.
    Decided April 16, 1895.
    Bespondent was convicted of a violation of the liquor law in not removing all curtains, screens, etc., that obstructed the view from the street of the bar where lienors were sold.
    Conviction affirmed.
    The facts are stated in the opinion.

      Horace H. Pope (H. Hart and E. J. Anderson, of counsel), for respondent.

      Fred A. Maynard, Attorney General, and F. E. Fish, Prosecuting Attorney, for the people.
   Montgomery, J.

This is a prosecution for a violation of section 31 of the liquor law, being section 22834, 3 How. Stat. This section provides that—

“During the time when, by the provisions of this act, places where liquor is sold or kept for sale must be closed, all cur-tains, screens, partitions, and other things that obstruct the view, from the sidewalk, street, 'alley, or road in front of or at the side or end of said building, of the bar or place in said room where said liquors are sold or kept for sale, shall be removed. Any person who shall violate any of the provisions of this section shall, upon conviction thereof, be punished as provided in section 7 of this act.”

Two questions are raised upon this appeal; the first as to the sufficiency of the information, and the second as to the sufficiency of the proof to sustain the information.

1. The information charged that the respondent, on the 2d day of April, 1894, that being election day,—

“Was proprietor of and kept a saloon where intoxicating liquors were sold at retail in a room in the rear of the office of the Sherman House Hotel, on Hubbard street, in the village of Allegan; that on said last-mentioned date, that being a day when, by the provisions of Act No. 318, Laws of 1887, said saloon was required to be closed, the curtains, screens, partitions, and other things that obstructed the view, from the sidewalk and street and alley in front of and at the side of the building in which said saloon was, of the bar and place in said room where said liquors were sold and kept for sale, were not removed; but, on the contrary thereof, the said William Kennedy did then and there, as aforesaid, obstruct the view from said sidewalk, street, and alley in front of and at the side of the building in which said saloon and room were, by not removing said curtains, screens, partitions, and other things that then and there obstructed the view from the street, sidewalk, and alley in front of and at the side of the building in which said saloon was then situated; contrary,” etc.

It is said that this information is substantially in the same form as the complaint set out in Robison v. Haug, 71 Mich. 38, and of which Mr. Justice Campbell said: “The complaint in question is not a good one.” The majority of the Court in that case did not pass upon the sufficiency of the complaint, and it is true that Mr. Justice Campbell did not deem the complaint a good one, but for what reason is not stated in the opinion. The complaint differs in some particulars from the information in question, and we cannot regard that case as controlling. It is a general rule that in a prosecution under a statute it is sufficient to charge the commission of .the offense in the language of the statute. See People v. Taylor, 96 Mich. 576; Durand v. People, 47 Id. 332; Rice v. People, 15 Id. 9; How. Stat. § 9539; People v. Wakely, 62 Mich. 297. The offense in this case consists of the failure to remove the curtains, screens, partitions, and other things that obstruct the view from the sidewalk, street, or alley of the bar. It is very clear that the information charges that the curtains, screens, partitions, and other things that obstructed the view of the bar and place in said room where said liquors were sold and kept for sale were not removed. We think it is also clear that it sufficiently cnarges that the respondent was responsible for their not being removed, as he, under the law, being the keeper of the place, must have been. It charges — First, that he was the proprietor of and kept the saloon; second, that he then and there obstructed the view from, the sidewalk, street, and alley by not removing said curtains, screens, partitions, and other things that then1 and there obstructed the view from the street, sidewalk, and a.Pey. “Said” curtains, screens, etc., are those of which it is alleged in the previous part of the information that they obstructed the view of the bar and place in said room where liquors were sold and kept for sale. We think the information is sufficient.

2. The reason alleged why the proofs were insufficient is- that the testimony tended to show that the alley, the view from which was obstructed, was not a public place, but private ground, and it is contended that the Legislature meant by the word “alley” a public alley, similar to a public street, and not a private passageway. The evidence tended to show that the alley, the view from which was obstructed, had been in use by the public for more than 20 years; that during all that time no person was ever denied the right to travel over'it on foot or with teams. • It was used daily, and extensively; and there was testimony to the effect that on some days as many as 250 teams and persons passed ovet it.- The circuit judge charged the jury as follows: ' '

“Now, so far as this alley is concerned, gentlemen, I have charged you that it need not be a dedicated or public alley, but if you shall find from the evidence beyond a reasonable doubt that it is used by people whoever desire to use it, that people in general do use it when they want to, and you find it to be an alley under this evidence, that is a sufficient compliance with this statute that these screens shall not obscure the view from the alleys or the streets or the sidewalks. The object of this law, gentlemen, is that the officers of the town, and not only that, but that every person in town, — it is the privilege of every man or woman in the town passing along any street or sidewalk or alley, where they have a right to be, that they shall-have an unobscured and unobstructed view into a saloon through the windows, if there are windows, so as to see whether -or not the business is being carried on contrary to law. That is the object of it.”

We think this instruction sufficiently guarded the rights- of the respondent. The purpose of the statute is very clearly stated by the learned circuit judge, and under this instruction the respondent could not have been found guilty of the offense, unless the jury were satisfied beyond a reasonable doubt that it was a public alley in the sense that it had been thrown open to the public for general use. We think it is not incumbent upon the prosecution on the trial of a case of this character to show the dedication of the street or alley, but that it is sufficient if the fact appear that it is at the time open to the use of the general public.

The conviction will be affirmed, and the circuit judge directed to proceed to judgment.

Long and Hooker, JJ., concurred with .Montgomery, J. McGrath, C. J., took no part in the decision. Grant, J., did not sit. •


text:
    The People v. William C. Liphardt.

      Bribery — Inducement—Evidence.
    1. One who has committed a criminal act should not be acquitted because induced to do so by another. It is only when the criminality of the act is shown to be absent by the fact of the inducement that such proof justifies acquittal.

    2. Respondent was informed against for receiving a bribe upon an agreement to vote for the adoption of a certain school seat at a prospective meeting of the board of education, of which he was a member. On the trial the testimony of one of the witnesses for the people, who was agent for one of the competing seating companies, showed that the witness encouraged another member of the board of education to advise the respondent that the witness would accept a proposition from the respondent to sell his vote for a given sum; that the witness informed the mayor of the city of such fact; that the mayor was willing to aid in detecting the respondent, if he should make such a proposition, and to that end an interview was arranged for between the witness and the respondent within hearing of a stenographer and a police officer, whose presence was unknown to the respondent, at which, as claimed, the criminal arrangement was made. And it is held that the respondent was entitled on the cross-examination of the witness to all of the facts that led up to the transaction, including the interviews with the mayor and police officer in relation td the proposed detection of the contemplated bribery, and the names of all who had to do with it, as bearing upon the credibility of the Witness’ testimony, and perhaps furnishing the means of refuting it.
    Error to recorder’s court of Detroit. (Chapin, J.)
    Argued March 1, 1895.
    Decided April 16, 1895.
    Respondent was convicted of the crime of receiving a bribe, and sentenced to imprisonment in the State prson at Jackson for 5 years.
    Judgment reversed.
    The facts are stated in the opinion.

      Thomas J. Navin and Edwin Henderson (George Gartner, of counsel), for respondent.

      Allan If. Fraser, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.

       Instigation to a crime for the purpose of detecting it is the subject of an extensive note to Connor v. People (Colo.), 25 L. R. A. 341.

   Hooker, J.

The defendant was convicted of receiving a bribe upon an agreement to vote for the adoption of a certain school seat at a prospective meeting of the board of education of the city of Detroit, of which board he was a member. The outline of the case, as claimed by the people, is that the Manitowoc Seating Company, a corporation, through its agent, one Atcherson, was a competitor for the contract for seats to be purchased. Atcherson had a conversation with one Davis, a member of said board of education, in which Davis had said that, if Atcherson would give the defendant $100, of which $25 was to be paid in cash in advance, and the other $75 after the contract was signed, the defendant would vote for Atcherson’s desk at the next meeting of the board. Atcherson thereupon informed the mayor that there was crookedness upon the part of some members of the board, and he expressed a desire to detect it, and caused certain members of the police department to confer with Atcherson about it. A room was secured by Atcherson adjoining his own in the hotel, and some officers and a stenographer were placed therein, to overhear an interview in A/tcherson’s room when it should occur. Holes were made in the walls between the two rooms to aid in hearing and seeing what should take place. An interview was had, in which the witnesses testify that the arrangement was-stated by the defendant as understood by him, in conformity to the arrangement with Davis, above mentioned, and Atcherson then and there paid him and he received $25 in money upon his promise to vote for Atcherson’s seat. The defendant denied that he had any such interview, and sought to prove an aUM, which was substantially all of the material testimony offered in his behalf, but in this Court most of the questions arise upon the rather inconsistent theory that he was decoyed into the commission of the act through a conspiracy between Atcherson, the mayor, and the police. Some 70 assignments of error appear .in the record, and we cannot conveniently discuss each separately, but will refer to the more important only.

' Atcherson was the main witness for the people, and testified to most, if not all, of the principal facts relied upon by the prosecution. His credibility was a proper subject for investigation by cross-examination. The defense should have been permitted a full and searching-cross-examination in relation to all that he did in connection with the affair, and were entitled to go into his relations with all who appeared or could be shown to be connected with the transaction. He testified that he had “figured on a scheme'in his mind to detect them, for he* knew that they would come to him with a proposition.” He said that upon his arrival, three months before this transaction, a man, not a member, of the school board, talked with him, and asked what he would give to secure the contract. He declined to state his name, as he said it had no connection with the matter. The court refused to compel an answer. . He testified that he was satisfied from what was said to him that he would not be prosecuted, and that the mayor made him a promise of a similar nature within 48 hours before the event. He said that he talked with him concerning what he was going to do, and told him “all he had discovered, the whole story from beginning to end.” He was asked . if he understood or was told that, if they resigned, they, would not be arrested for this transaction, and his answer was excluded, under objection and exception. The court was in error in these rulings, as the defendant’s counsel were entitled to all of the facts that led up to this transaction, including the interviews with the mayor and police officers in relation to the proposed detection of bribery, and the names of all who had to do with it; not that it necessarily tended to establish a conspiracy, but that it might show one, or, at all events, might bear upon the credibility of Atcherson’s story, and perhaps furnish the means of refuting it.

The testimony of Atcherson may fairly be said to show that he encouraged Davis to advise Liphardt that he would accept a proposition from Liphardt to sell his vote for $100; that he informed the mayor of this; that the mayor was willing to aid in detecting "the defendant, if he should make such proposition, and that he caused the officers to interest themselves in the matter. It is contended that this was a conspiracy to cause crime to be committed, and that it was criminal on the part of all concerned, and the court was asked so to instruct the jury, which he declined to do. The defendant’s counsel claimed that the defendant had no intention to commit this offense until it was suggested by Atcherson, under his arrangement with the mayor to detect “boodling” by members of the board. It was also claimed that the mayor vetoed a resolution of the board selecting another seat, to give an opportunity for this scheme to be carried out, and that the mayor’s interest in the matter arose from a desire for vacancies upon the board, that he might fill the same by appointment. It was also said that, if these things were true, the defendant could not be convicted of the offense, for the reason that he was induced to commit the act, and did not himself originate the plan. Whether defendant’s claim was true -could only be determined by ‘ the jury. He had the right to show the facts by evidence in his own behalf, or by cross-examination, as. bearing upon the credibility of Atcherson and other witnesses. We know of no case that holds that' one who has committed a criminal act should be acquitted because induced to do so by another. It is merely when the criminality of.the act is shown to be absent by the fact of the inducement that such proof justifies acquittal. In cases of alleged larceny, where the master has directed a servant to deliver his property to a thief, or burglary, wrhere he has directed the admission of the burglar, the principal element of the offense is lacking; in the former there is no felonious taking, in the latter no felonious breaking and entering. The doctrine is stated in 1 Bish. Cr. Law (2d ed.), §§ 344, 345. The author says:

“The cases of greatest difficulty are where one, suspecting crime in another, lays a plan to entrap him; so that, even if there is consent, it is not within the knowledge of him who does the act. Here we see, from the principles already discussed, that, supposing the consent really to exist, though unknown to the other, no legal crime is committed. But exposing property, or neglecting to watch it, under the expectation that a thief will take this property, or furnishing any other facilities or temptations to such a wrong-doer or to any other, is not a consent in law. A common case is that of burglars, who, intending to break into a house and steal, tempt the servant of the occupant to assist them, and the servant, after communicating the facts to his master, is authorized to join them in appearance. Under such circumstances, clearly the burglars are not excused for what they personally do; but, it seems, if the servant opens the door while they enter, they arc not to be held criminally for this breaking. Yet, if he opens it at their request, why should they not •be held, he being deemed their agent for this purpose, rather than the master’s? An Irish case appears to go further than this query, for it even decides that, where persons intending to commit burglary knock at the door of the prosecutor, who, apprised of their purpose and prepared for them, himself opens it, and on their rushing in and locking the door seizes and secures them, the offense of burglary is committed. And the doctrine as to the breaking seems to be that a consent to it, obtained by fraud or by force, avails not the defendant. Also, according to decisions in North Carolina, if one delivers an article to his slave, and then stands by to detect a person trading for the article with the slave, contrary to the act of 1817, this circumstance does not make the trading lawful.
“But where the master goes further, and, instead of merely attempting to detect a crime already contemplated, directs his servant to deliver property to a supposed thief, who had not formed the particular design to steal it, this latter person, taking it with felonious intent from the servant, commits not a larceny.”

But in this case there is no opportunity for the claim made. If the facts were shown as stated, the defendant cannot excuse the receipt of money as a consideration for promised official action, merely because he was solicited by Atcherson, even if it were done at the instigation of the officers of the city, who have no right to compromise public justice in any such way. People v. Laird, 102 Mich. 135.

We think it unnecessary to review the several alleged errors upon the requests. There were many of them; among them one that the mayor and Atcherson were guilty of criminal conspiracy; and it is apparent that the policy of the defendant’s counsel was to attack the mayor and Atcherson. There was no occasion for this further than to develop the facts in the case tending to throw light upon the conduct and motives of Atcherson or other witnesses, whose credibility was for the jury. The people as well as the defendant should have the right to have the vital questions in the case submitted to the jury without being complicated by irrelevant requests to charge. If this defendant committed the offense charged, public interests demand his conviction, and it was unnecessary to determine in this case whether the acts of the mayor and Atcherson amounted to a criminal offense or not. Their relation to the case1 was a proper subject of inquiry and discussion for one purpose only, viz., that of ascertaining whether the defendant was guilty of bribery or not.

For the undue restriction of cross-examination we feel constrained to reverse the judgment. A new trial is therefore directed.

Long and Montgomery, JJ., concurred with Hooker, J. McGrath, G. J., concurred in the result. Grant, J., did not sit.


author: McGrath, C. J.

text:
    Francello A. Palmer, County Drain Commissioner, v. A. Milan Willett, Judge of Probate of Ionia County.

      Drains — Setting aside verdict of .jury — Power of probate court.

    The probate court has no power to consider upon its merits a motion to set aside the verdict of a jury in a drain proceeding finding that there was no necessity for the proposed drain.

      Certiorari to Ionia. (Daboll, J., presiding.)
    Argued April 2, 1895.
    Decided April 16, 1895.
    Relator applied to the circuit court for mandamus to compel respondent tó consider a motion to set aside the finding of a jury in a drain proceeding, and respondent brings certiorari to review order granting the writ.
    Reversed.
    The facts are stated in the opinion.

      John Wichol and Ellis & Miller, for relator.

      Ternon E. Smith, for respondent.
   McGrath, C. J.

This is certiorari to review an order made by the circuit court directing the probate court to consider upon its merits a motion to set aside the verdict of a jury finding that there was no necessity for the proposed drain. The grounds of the motion were that—

“a — The report and verdict of- said jury were brought about as the result of prejudice, undue influence, and partiality.
“5 — Said jury acted upon an erroneous basis in arriving at their verdict, in taking into consideration, and in being influenced by, the remonstrance offered in evidence by the counsel for the contestants, marked 'Exhibit A,’ and in considering and being influenced by the number of persons opposed to the improvements as against the number who were favoring the improvements, and being influenced thereby.
“e — The court erred in admitting in evidence the remonstrance attached to the affidavit of John Nichol, and marked ‘Exhibit A.’
“d — The verdict of said jury was brought about by taking into consideration and acting upon said remonstrance, marked ‘Exhibit A.’
“e — The verdict of said jury was brought about by improper conduct on the part of said contestants, and undue influence.
“† — The verdict of said jury was brought about by prejudice produced by said contestants in conversing and remonstrating and talking with said jury, while they were viewing the premises traversed by said proposed drain, and while they were separate and apart, and not acting together as a jury.
“g — That the verdict of said jury was not their honest judgment; but that a portion of said jury believed when they rendered their verdict, and now believe, that said drain was a public necessity, and would be for the benefit of the public health, convenience, and welfare.
“h — That said jury took in.to consideration the present financial condition of some of the parties, as they termed it, and rendered their verdict, in part, because they thought it would be difficult for many persons who were liable to be assessed for the construction of said drain to pay their tax, assessed for such construction, at the present time.
“i — Because said jury misconceived and misapplied the law governing such matter, and misconceived their duties.
“/ — Because said jury misconstrued the argument of counsel in said matter.
“7c — Because the verdict of said jury was contrary to law.
“I — The court erred in rejecting the evidence offered to impeach the evidence of Andrew J. Hale, being a portion of the books of records of drains of the township of Orleans, in reference to drains laid out and established by him, as township drain commissioner of said township.
“m — And also other objections, not herein enumer- ' ated, but on file in said cause.”

The drain law contains no provision empowering the probate court to set aside the verdict of a jury in such case. Section 2 of chapter 5 of Act Ho. 227, Laws of 1885, provides for an appeal to the township board by one aggrieved by an assessment. Section 3 provides that the proceedings in establishing a drain shall be subject to review upon certiorari. Section 8 of chapter 3 provides that, whenever a jury shall have been demanded,—

“The court shall proceed in the same manner as is provided by law in case a jury is demanded for taking private property for the use of railroad companies, and all further proceedings in the matter had by such court and jury shall be in conformity with the provisions of law, as aforesaid, so far as the same shall apply.”

Section 11, as amended in 1891, contemplates the correction of the return of the jury, if not in substantial conformity to the statute. There is no provision of the act requiring confirmation in case of a verdict of no necessity. Section 12 of chapter 3 provides that, in case the jury “shall decide such drain to be unnecessary, they shall so state in their return, and the drain commissioner shall thereupon dismiss the proceedings at the cost of the applicants.” The case of Fort Street Union Depot Co. v. Backus, 92 Mich. 33, turned upon the construction of How. Stat. § 3467, but the drain law contains no such provision. The general language contained in section 8 of chapter 3, above referred to, can have no application to a situation expressly provided for by the same statute.

The order directing the writ is vacated.

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


text:
    William Anderson v. Victor H. Lane, Circuit Judge of Lenawee County.

      Replevin — Service—Failure of officer to certify copy — Alias writ.

    Tlie proper practice on a motion to dismiss a writ of replevin because of the failure of the officer to certify the copy of the writ served upon the defendant is to allow an alias writ to issue to complete the service, rather than to dismiss the proceeding.

      Mandamus.

    Argued April 2, 1895.
    Granted April 16, 1895.
    Relator applied for mandamus to compel respondent to set aside an order dismissing a writ of replevin. The facts are stated in the opinion.

      Walter G. Burridge, for relator.

      James W. Wightman, for respondent.
   Montgomery, J.

The relator sued out a writ of replevin for certain goods in the possession of one William A. Bennett. The writ was returned duly served. The defendant in the case appeared specially, and moved to dismiss the proceedings for the reason that the copy of the writ served upon him was not certified by the officer. This motion was granted, and the writ dismissed. Application is now made for mandamus to require the circuit judge to vacate the order of dismissal.

The service was irregular. How. Stat. § 8326, provides that the service shall be made by delivering to the defendant personally a certified copy of the writ, if the defendant can be found; but the proper practice in such case is to allow an alias writ to issue, rather than to dismiss the proceeding. See Wells, Repl. § 466; Bell v. Circuit Judge, 26 Mich. 414; Ex parte Johnson, 7 Cow. 424. There is no reason why the default of the sheriff should compel the plaintiff to lose the benefit of his proceedings. There has been no substantial damage to the defendant. See, also, Leonard v. Woodward, 34 Mich. 514.

We think the order dismissing the proceedings should be vacated. If there be no appearance, an alias writ should be permitted, to complete the service. Relator will recover costs against the defendant in replevin.

McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.


text:
    George H. Fowler v. George S. Hosmer, Circuit Judge of Wayne County.

      Parties — Discontinuance of suit.

    After the seizure by a first mortgagee of the mortgaged property, third mortgagees agreed with a second mortgagee to advance the expenses and foreclose the second mortgage, the net proceeds to be divided equally between them. The third mortgagees employed an agent to seize the property under the second mortgage, which he did, and it was replevied by the first mortgagee, the second mortgagee and the agent being made defendants. An arrangement was afterwards made between the second mortgagee and the first mortgagee by which the property was surrendered to the second mortgagee, and the replevin suit was to be discontinued, without costs. On the hearing of á motion by the first mortgagee for leave to discontinue the suit, the circuit judge found that the first mortgagee and his bondsmen dealt with the second mortgagee in good faith, being unaware of the connection of the third mortgagees with the foreclosure of the second mortgage. And it is held that, the agent, who was not consulted as to the proposed discontinuance of the suit, being liable for costs and damages in ease of defeat in the replevin suit, and being entitled to his costs in ease he should succeed therein, the second mortgagee had no authority to stipulate a discontinuance and release of the plaintiff’s sureties, and thereby bind the agent, nor could the question of the interests of the third mortgagees in the property be thus summarily disposed of.

      Mandamus.

    Argued April 2, 1895.
    Granted April 16, 1895.
    Relator applied for mandamus to compel respondent to vacate an order discontinuing an action of replevin. The facts are stated in the opinion,

      James H. .Potmd, for relator.

      John Atlcinson, for respondent.
   Hooker, J.

William H. Saunders gave mortgages upon personal property in the following order: (1) to George W. Saunders; (2) to John J. Closs; (8) to Hincks & Johnson. George W. Saunders took possession under his mortgage. Hincks & Johnson then agreed with Closs to advance the expenses and foreclose the Closs mortgage, the net proceeds, after paying for foreclosure, to be divided equally. Hincks & J ohnson thereupon hired Fowler to seize the property under the Closs mortgage, which he did. George W. Saunders thereupon brought replevin, making Closs and Fowler defendants. An arrangement was thereafter made between Closs and Saunders by which the property was surrendered to Closs, and Saunders was to discontinue his action, without costs. Upon his motion for leave to discontinue, affidavits pro and con were received, and' the motion was granted. The circuit judge seems to have found that Saunders and his bondsmen dealt with Gloss in good faith, being unaware of Hindis & Johnson’s connection with the foreclosure of the Gloss mortgage.

Fowler was a defendant, and does not seem to have been consulted. He was liable for costs and damages in case of defeat in the replevin case. He was entitled to his costs in case he should win. Closs had no authority to stipulate a discontinuance and release of the sureties, and thereby bind Fowler. Again, Hindis & Johnson were foreclosing, in the name of Closs, for their mutual benefit. Fowler was their agent, and contends that his principals had rights to and an interest in the property as against Closs. We think that the circuit court could not summarily dispose of these questions upon this motion. The relator had a right to have his interest determined judicially in the replevin case, and judgment in accordance with such determination.

Writ granted.

McGrath, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


author: Hooker, J. McGrath, C. J.

text:
    The People v. Edwin J. Case and Frank B. Shelp.

      Criminal law — Liquor traffic — Sufficiency of information — Unwilling witness — Examination—Impeachment—Evidence.
    1. The omission of the word “liquors” from an information charging the respondent with failing to keep his saloon, where spirituous, brewed, fermented, and intoxicating [liquors] were sold at retail, closed on Sunday, said word appearing in the complaint, warrant, and recognizance certified to the circuit court by the examining magistrate, should be disregarded as a elerical error, which the record furnishes the means of correcting.
    2. ' Where, on the trial of a criminal ease, it appears that a witness • whom the prosecuting attorney is required by law to call is an unwilling witness, and adverse to the prosecution, it is not error to permit the prosecuting attorney to read to the witness his deposition taken before the examining magistrate, and interrogate him in relation to the statements made therein.
    3. The respondent was confronted by the witness on the preliminary examination, and cross-examined him at length. And it is held that the constitutional provision that a-respondent in a criminal case shall be confronted by the witnesses against him was not violated.
    4. A contrary statement contained in the deposition could not be used as substantive evidence of the fact so stated, the only effect of the impeachment, if permissible, being to eliminate the testimony of the witness from the case. '
    5. The introduction by the prosecuting attorney of the warrant and return of the examining magistrate was proper, though not necessary, said instruments being a part of the proceeding, and every juror being presumed to know that a certificate of probable cause is usually necessary to such proceedings.
    Error to Shiawassee. (Wisner, J.)
    Argued February 28, 1895.
    Decided April 16, 1895.
    Respondents were convicted of keeping their saloon open on Sunday, and sentenced to imprisonment in the Detroit House of Correction for 65 days.
    Judgment affirmed.
    The facts are stated in the opinions.

      A. L. Chcmdler and M. W. B. Wiaoom, for respondents.

      Frank H. Watson, Prosecuting Attorney, for the people.
   Hooker, J.

The defendants were convicted of a violation of the liquor law, the specific charge in the information being that they, “being then and there keepers of a saloon * * * where spirituous, brewed, fermented, and intoxicating - were sold at retail, and said 21st day of January, 1894, being the first day of the week, commonly called Sunday, .did not keep the said saloon closed,” etc.

No mention was made of the omission of the word “liquors” at the trial, the first time that it was brought to the attention of the court being at the time of the settlement of the bill of exceptions. Error is assigned upon it. In an indictment this would be a fatal defect. There would be nothing upon the face of the proceedings to show that liquors had any connection with the case, and the indictment would contain the only reliable evidence of the nature of the offense found by the grand jury to have been committed. The indictment precedes and is the foundation of action by the grand jury. In proceeding by information the practice Is different. The information is not filed until an investigation and determination of the charge by a magistrate have been had. The complaint and warrant are returned with his certificate to the circuit court. The information must accord with them in substance. If it does not, it will be quashed and a new one filed, or it may be amended before trial, and in some cases it has been amended during the trial. It stands at common law on different grounds from an indictment. See 1 Bish. Cr. Proc. § 714, and authorities cited; 1 Enc. Pl. & Prac. 696. In the case before us the complaint, warrant, and recognizance contained the word, and the court should have permitted an amendment had it been asked. There was no possible injury to the defendants, and its omission should be disregarded as a clerical error, which the record furnished the means of correcting. How. Stat. § 9535; People v. Schultz, 85 Mich. 114; People v. Perriman, 72 Id. 184; People v. Smith, 94 Id. 644; Byrnes v. People, 37 Id. 515; Gamblin v. State, 45 Miss. 658.

The complaint was made by a woman, who claimed that her husband, Mr. Hovey, procured liquor from defendants’ saloon upon the Sunday in question. Mr. Hovey was a witness upon the trial, and manifested an indisposition or inability to testify with the same degree of positiveness that he tnanifested upon the examination. The prosecutor claimed the right to ask leading questions, upon the ground that he was an adverse witness; and the court seems to have been impressed with the fact that he was an unwilling witness, to say the least. . The witness was asked by the prosecuting attorney:

“Q. Did you go to this saloon that day?
“A. Don’t know whether I did or not, for‘certain.
“Mr. Watson: I desire to read this man’s evidence that was taken in justice’s court. Then I desire to have the court give some instructions in the case.
“Mr. Chandler: I object to its being read.
“The Court: This witness must tell what he knows about this case. If the court becomes convinced that he is not telling what he knows, he will have him in prison when the time arrives, if I am convinced he is not telling all he knows about tills case.
“Q. Were you there on the 21st day of January, 1894, at that saloon?
“A. I think I was. I think I was in town. Yes, sir; I was in town.
“Q. Were you at their saloon?
“A. I don’t want to swear positively that I was in there, because I was on a spree.
“Q. Didn’t you swear positively in justice’s court?
“A. I might have.
“Q. Was it true?
“A. I am not going to say.
“Q. I ask whether what you swore to in justice’s court was true?
“A. To my best recollection, it was.
“Q. That was within a few days after this took place?
“A. I think it was.
“Q. Did you swear there that you were.at that saloon on the 21st day of January? [No answer.]
“Q. Is that your signature? [Testimony in justice’s court shown witness.]
“A. Yes, sir.
“Q. That testimony was read over to you?
“A. I think it was.
“Q. You heard it all.
“A. Yes, sir; I think I did.
“Q. Did you there at that time swear like this: ‘They kept a saloon. It was located on the south side of the street running east and west in Bancroft, Shiawassee county.’ [Objected to as incompetent, immaterial, and improper. Objections overruled, and defendants excepted.]
“The Court: He can read it, and ask the witness if he so testified.”

The prosecutor thereupon read the entire deposition of this witness taken upon the examination, and he was examined upon it. The deposition was a positive statement of facts, free from expressions of doubt, and gave the circumstances in detail.

If the record shows all that occurred upon the trial, we have failed to discover it, and we are unable to say that the court was not justified in his apparent conclusion that the witness was quibbling. The judge said nothing of the kind, but seems to have thought it necessary to inform the witness of what he might expect if he became convinced that he was refusing to tell all that he knew. This was dangerous ground, by reason of its implication, but it was not objected to, nor was any exception taken.

The next important question is that relating to the reading of the deposition. We are impressed, as the circuit judge was, that the witness was unwilling to testify. His deposition contained unqualified testimony of violation of the law, upon the Sunday mentioned, by repeated sales. If it was not a case of the people’s witness attempting to avoid testifying against a defendant, it certainly justified that claim upon the part of the prosecution. Whether it was caused by collusion or was voluntary we need not consider. The important question is whether the public has any relief in such cases, and, if so, what it is. The witness was one whom the prosecutor was required by law to call. ' It has been held that' a party might even impeach an adverse witness by showing a bad reputation for truth and veracity, when the witness was one whom the party must call: e. g., a subscribing witness to an instrument. 1 Greenl. Ev. § 443, and cases cited. The reason usually given for the rule that a person cannot impeach his witness is that he is presumed to know his character, and that by calling him he represents him as worthy of belief. 1 Greenl. Ev. § 442. And the court, in Com. v. Welsh, 4 Gray, 535, went so far as to hold that such witness, who on direct examination testified that he did not know certain facts, could not be asked if he did not on a former occasion testify to them. But in Rex v. Oldroyd, Russ. & R. 88, it was held that a party might contradict his witness by reading her former deposition. Mr. Greenleaf states that there is a diversity of opinion upon this subject, but that—

“The weight of authority seems in favor of admitting the party to show that the evidence has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial, or to what the party had reason to believe he would testify, or that the witness has recently been brought under the influence of the other party, and has deceived the party calling him; for it is said that this course is necessary for his protection against the contrivance of an artful witness, and that the danger of its being regarded by the jury as substantive evidence is no greater in such cases than it is where the contradictory declarations are proved bir the adverse party.” See 1 Greenl. Ev. § 444, and note 2 (13th ed.).

These are cases where the party voluntarily called the witnesses, and may reasonably differ from cases where they must be called. Our attention has not been called to a case where a subscribing witness called by the prosecution has been impeached by the prosecuting officer, but no good reason suggests itself why this rule should not be as applicable to criminal as to civil cases. The only effect of the impeachment would be to eliminate the testimony of such witness. A former contrary statement could not be used as substantive evidence of the fact so stated. See McClellan v. Railway Co., post, 101, where the authorities are collected. If this practice is permissible, we see no difference in- principle between such a witness and any other witness whom the people are bound to call. But impeachment was not attempted here. An attempt was made to overcome the witness’ disinclination to divulge, by confronting him with his former statements, not made privately, but taken in the form of testimony, subscribed and under oath. See Beaubien v. Cicotte, 12 Mich. 486.

The only other objections to this are that the jury might take the former testimony as substantive evidence against the defendant, and that the Constitution requires that a defendant shall be confronted by his witnesses. As to the first of these there is no more danger than in any case of impeachment, and a request to charge would have protected the defendants. To the second objection there is no force, for the defendants were confronted by and cross-examined this witness at length upon the examination, and this has been held sufficient to permit the introduction of the testimony to prove substantive facts where the witness was dead. This testimony was not received for that purpose, if it can be said, legally and technically, to have been received at all, within the meaning of this constitutional provision. It was read to the witness as a basis of interrogation merely. To say that a defendant could not cross-examine most rigidly-an adverse witness upon his former statements and depositions would be a great hardship, and there can be no difference between the defense and the prosecution in this respect, unless it be a possible difference growing out of the constitutional provision mentioned. If the propriety of the practice be once established, then it would seem to be the right of the witness to have the whole writing read. Lightfoot v. People, 16 Mich. 507; People v. Sweeney, 55 Id. 591. We think the record fails to show that error was committed in permitting the reading of this testimony.

The introduction of the warrant and return was proper, though not necessary. They were part of the proceeding. Every juror' will be presumed to know that a certificate of probable cause is usually necessary to such proceedings. It is not shown that improper use was made of these* papers.

Complaint is made of language of the prosecuting attorney. Upon the face -of the record, we might be justified in saying that abstractly one or more of his remarks to the jury were uncalled for; but we have no means of knowing whether ■ or by what they were provoked, and, as we have frequently said, ordinarily these things must be left to the trial judge to deal with.

The judgment of the circuit court will be affirmed.

Long and Montgomery, JJ., concurred with Hooker, J.

McGrath, C. J.

(dissenting). The prosecuting attorney, in addressing the jury in this case, made use of the following language:

“In considering a case, it is not expected that we are going to throw aside our knowledge as men, and you know that this Sunday trade is peculiar. And it is only when some person gets mad that the proof can be obtained, and because high-toned, respectable men do not go there, especially when they have to sneak in at the back door; and such as are there would sooner swear for their saloon-keeper than for their minister or their wife. You nor I never found a saloon-keeper yet who, when arrested for keeping open after hours or upon Sunday, would not go upon the witness stand and swear positively that it was not open at all, and get all the suckers he wanted to testify for him.”

There had been a horse trade between one Hovey and defendant Case. The complaint was made by Hovey’s wife. She says:

“Q. You may tell the jury whether or not if this complaint would have been lodged against the men who kept the saloon if they had not injured your husband or you in a horse trade in some way.
“A. Well, I don’t know. I had threatened it all summer.
“Q. Didn’t you state to them, if they traded back horses and delivered up the note, if they didn’t do that, you would have them pulled?
“A. I told them, if they would bring back the horse and the $9.50 note, that I would not.
“Q. And, if they didn’t bring the horse .back and the $9.50 note, that there would be a complaint made against them?
“A. Yes, sir.
“Q. They didn’t bring 'it back?
“A. No, sir.
“Q. So the complaint was made?
“A. Yes, sir.
“The Court, to Witness: Did you say that you had been threatening to make a complaint all summer?
“A. Yes, sir.
“Mr. Watson: You went down there after your husband came home drunk on this Sunday? You say you had been threatening to have them arrested for selling him liquor?
“A. Yes, sir.
“Q. You went down after he came home drunk on Sunday?
“A. Yes, sir.
“Q. And saw West?
“A. No, sir; Shelp.
“Q. And had a conversation with him? Now, what was that conversation?
“A. I called him out, and I told him that that horse trade and liquor had made quite a bit of trouble, and I was going to make it better or worse, and wanted them to have the horse back there the next morning and the $9.50 note, or. I would have them arrested for selling liquor on Sunday. He said he didn’t know, and I says, ‘You did no longer ago than last Sunday,’ and he said they would not do it again.”

Shelp denies this. The only other witness called by the people was the husband, who, upon the examination before the justice, had testified that himself, both of the proprietors, and seven other persons, naming them, were in the saloon on the Sunday in question. He also stated that, before the complaint was made, his wife had threatened to have defendants arrested because of the horse trade, and that “she told me that she had told Case, if he did not return the horse, she would pull the saloon.” On the trial in the circuit, both proprietors testified that the saloon was not open on the Sunday in question, and each of the seven persons testified that he was not in the saloon on that day. There was absolutely nothing brought out upon the trial affecting the credibility of a number, if any, of these witnesses. In view of the testimony tending to show a motive for the complaint, the character of the people’s principal witness, and the testimony of nine persons contradicting the people’s principal witness on the material point in the case, it is inconceivable that the defendants should be found guilty, unless the jury were influenced by the prosecuting attorney’s remarks, which were without support in the record. So far as the witness Hovey was; concerned, in view of the animus of the complaint, the most reasonable theory was that he did not tell the truth at the preliminary examination.

I think that, upon this record, defendants should be granted a new trial.

Grant, J., did not sit.


author: Montgomery, J. Hooker, J.

text:
    Margaret McClellan, Administratrix, etc., v. The Fort Wayne & Belle Isle Railway Company.

      Street railways — Injury to person on track — Contributory negligence — Evidence—Impeachment.
    1. Under the testimony in this ease, the questions of the negligence of the defendant and of plaintiff’s decedent were prop • erly left to the jury.
    2. In an action for negligently causing the death of plaintiff’s decedent, who was struck by a street ear, and received injuries from which he died, testimony of what appeared by a post mortem examination of the decedent is competent as furnishing one of the means of ascertaining what the result of the injury was.

      3. The conductor of tlie street car testified on his direct examination to a state of facts tending to show the exercise of due care on the part of the motorman, and on his cross-examination denied that he stated, shortly after the accident, that it would not have happened if he had had his own motorman. And it is held competent on rebuttal, as tending to impeach the witness, to show that he made said statement.
    Error to Wayne. (Frazer, J.)
    Argued February 15, 1895.
    Decided April 26, 1895.
    Negligence case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinions.

      Edwin F. Conely and Orla B. Taylor, for appellant.

      Alfred Lueldng, for plaintiff.
   Montgomery, J.

Decedent and a young man named Delling were traveling along Champlain street, in' Detroit, riding in a two-wheeled road cart, drawn by a colt three years old, leading another horse. They .stopped in front of a residence on Champlain street, and decedent went into the house while Delling remained in the cart. The street at this place is 25 feet and Í inches in width, and the distance from the north curb to the north rail of the street-car track is 10 feet and 1 inch. While McClellan was on the porch of the house, Delling called to him that a car was coming. He ran out to where Delling was with the horses and cart, and the testimony offered on behalf of the plaintiff tended to show that he went directly to the horse which was being led, and seized hold of the halter shank. The colt became frightened by the noise of the approaching car and the sounding gong, began prancing about, and wheeled upon the track. Delling sawed upon the bit, and tried to back and guide the colt from the track, but did not succeed in doing so. The deceased thereupon ran to the head of the colt, and tried to lead him off the track, but without success. Deceased then proceeded to shove the colt from the track, and while engaged in doing so was struck by the car, and received injuries resulting in his death. The defendant’s testimony tended to show that the colt remained quiet until the car was within eight or ten feet, and then suddenly took one step to the track, and that McClellan at that instant stepped in front of the car, and was struck. The young man Delling, however, testifies that the car was still 100 to 125 feet distant after McClellan had gone to the head of th/' colt, and Miss Williams, a witness for the defendant, testified that she saw the deceased at the head of the colt when the car was 20 to 25 feet away. This was the first she saw of the parties.

It is contended by the defendant that the evidence failed to show negligence on the part of the company, and that negligence on the part of decedent did appear. We think there was sufficient testimony from which the jury might have inferred that the situation was apparent to the motorman, and that it was his- duty to bring the car under control, and that he had ample opportunity to do so after discovering the peril to decedent. We also think that the question of whether the decedent was guilty of contributory negligence was for the jury. See Laethem v Railway Co., 100 Mich. 297; Montgomery v. Railway Co., 103 Id. 46.

Exception was also taken to the refusal of the court to strike out the testimony of what appeared by a post mortem examination of deceased. This testimony was received by the court as one of the means of ascertaining what the result of the injury was, and for this purpose we think was competent.

George EL Fuller, conductor of the car which inflicted the injury, and who testified to a state of facts tending to show the exercise of care on the part of the motorman, was asked on cross-examination if he had not stated, shortly after the accident, to one Mr. Therwachter, that the accident would not have happened if he had had his own motorman. He denied having made such statement. In rebuttal, Therwachter was called, and per-

mitted to testify that such statement was made to him by the witness Fuller. Error is assigned upon this ruling. Counsel for defendant contend that, at most, it would be an expression of opinion by the witness as to> what -was the cause of the collision. While this is in a sense true, it tended to show an admission on his part that the inexperience or want of care of the motorman was the cause of the collision, which, if true, would be inconsistent with his testimony given in chief. We are cited to no authority to sustain the position of defendant’s counsel. A very similar question arose in Beaubien v.Cicotte, 12 Mich. 459, 487, in which case one Dr. Smith had testified on his direct examination to the valid execution of a will and the capacity of the testator. He was asked whether he had not on a certain occasion declared that if the family should follow it up they would break the will, for it was not worth a snap of his fingers. This he denied, and testimony was admitted to show that he had made such statement. The Court, speaking by Mr. Justice Campbell, said:

“We think the contradiction comes properly within the rule of impeachment. When a witness testifies on the stand that a paper, was duly executed by a competent testator, his statement on another occasion that the instrument was worthless is a clear contradiction on the very essence of the issue. * * * . It was in the witness’ power, if he saw fit, admitting the conversation, to explain that it was a mere matter of opinion, and based upon the facts sworn to on the trial.’’

See, also, Patchin v. Insurance Co., 13 N. Y. 268.

We think there was no error to the prejudice of the defendant, and the judgment is affirmed.

McGrath, C. J., and Long, J., concurred with Montgomery, J.

Hooker, J.

{dissenting). The plaintiff’s intestate and a boy drove in a cart, drawn by a colt, to the residence of a relative of the intestate upon Champlain street, in the city of Detroit. They led a horse behind the cart. Champlain street was 10 feet and 1 inch wide between the curb and the street railway. Mr. McClellan, the deceased, was called by the boy (who sat- in the cart), and ran from the house, where he had called, into the street, to assist the lad to manage the horses, which were restive from the approach of the street car. 'While thus engaged he was struck and injured by defendant’s car, and he subsequently died. From a verdict and judgment for the plaintiff, the defendant has appealed.

Charles Therwachter, a witness for the plaintiff, was asked upon rebuttal about a conversation with Fuller, defendant’s conductor upon the car in question. He testified as follows:

“Q. Do you remember having a conversation with Mr. Fuller on his car, after the accident, regarding it?
“A. Yes, sir. (Objected to as incompetent and immaterial. Objection overruled. Exception for defendant.)
“A. He said, if he had had his own motorman on the car at the time of the accident, the accident would not have happened.”

This testimony was not only hearsay, but the expression of an opinion; but it is said to be admissible by way of impeachment. Fuller had testified on behalf of the defendant in relation to the accident. He had not been asked to give an opinion about the cause of the accident or the negligence of any one. He simply detailed what he professed to have seen and known. He had not stated that the accident could or could not have been averted had his regular motorman been with him. None of these things would have been competent. Impeachment may consist of showing that a witness has made contrary statements out of court from those made in court upon a subject relevant to the issue. Such statements, when declarations of one not a party to the record, cannot be received as substantive evidence to prove a material fact, for they are hearsay. Dunn v. Dunn, 11 Mich. 284; Fisher v. Hood, 14 Id. 189; Howard v. Patrick, 43 Id. 121; Hamilton v. People, 46 Id. 186; Driscoll v. People, 47 Id. 413; McDonald v. McDonald, 67 Id. 122. But they are received to prove the witness untruthful; to nullify the evidence given, by enabling the jury to say that they believe the witness to be untruthful, and will not credit his testimony. Howard v. Patrick, 38 Mich. 795; Brown v. Dean, 52 Id. 267; Callin v. Railroad Co., 66 Id. 358; Tisman v. School-District, 90 Id. 510. This was unwarranted in this case, for the statement made out of court was not at variance with any statement of fact made in court. It may be said that the testimony of this witness tended to sustain the •defendant’s contention, and this testimony was admissible because it tended to' show that he had admitted •defendant’s, negligence, out of court, which his testimony tended to disprove; but it would never do to permit the discrediting of a party’s testimony by showing that the witness giving it had formed and expressed opinions upon the circumstances which he had related. His •opinion as such was not material; so it cannot be said that his denial of the talk with Therwachter could be contradicted. To permit this would be to say, in substance, that the witness’ opinion, .though erroneous, might be taken by the jury as discrediting a truthful and exact statement of fact upon which it might be based. 2 Phil. Ev. 972; Elton v. Larkins, 5 Car. & P. 385; Holmes v. Anderson, 18 Barb. 420. That would be to set up a man of straw, that he might be knocked down. The case differs from that of Beaubien v. Cicotte, 12 Mich. 487, where a witness who had testified to the competency of a testator was discredited by showing that he had said to another witness that the will could be broken, for it was not worth a snap of his fingers. It also differs from that of Patchin v. Insurance Co., 13 N. Y. 268, where a witness called to prove that a vessel was •seaworthy was discredited by showing that in a conversation he had expressed the opinion, that she was not seaworthy. In both of these cases it was competeht to introduce the opinions of witnesses, for such opinions were material. Here the conductor’s opinion was not material, and does not appear to have been asked or given upon direct examination. Impeachment is not favored, being open to serious abuse, and the rule stated in Beaubien v. Cicotte should not be extended to this case, but we should apply the general rule that impeaching testimony must be limited to material matters. The effect of this testimony was doubtless injurious. It was proving that an employé of the defendant, in charge of the car, recognized the fact that the accident might have been avoided, and would have been, had not defendant’s car been managed by a substitute, instead of a regular, motorman.

It is unnecessary to discuss the questions of negligence and contributory negligence, as the case might present new or different features upon another trial.

For the error pointed out the judgment should be reversed, and a new trial granted.

Grant, J., concurred with Hooker, J.


text:
    The First National Bank of Ionia, Michigan, v. The Michigan Trust Company et al.

      Trust deed — Payment of prior liens.

    A provision in a trust deed authorizing the trustee to pay off the liens on portions of the trust property is held not to have been designed as a further security to the holders of said liens, but as a power to-be executed, in the judgment of the trustee, for the conservation of the estate and for the benefit of the general creditors.
    Appeal from Ionia. (Davis, J.)
    Argued January 30, 1895.
    Decided April 26, 1895.

      Bill to require the defendant trust company to apply certain insurance moneys towards the payment of complainant’s debt. Complainant appeals.
    Decree sustaining demurrer affirmed.
    The facts are stated in the opinion.

      Vernon E. Smith and Thomas F. McQarry, for complainant.

      Fletcher & Wanty, for defendant Michigan Trust Company.
   McGrath, C. J.

In November, 1892, the Lansing Lumber Company was indebted to complainant in the sum of $35,000, and, to secure the payment thereof, executed to complainant a deed of certain lands in Clare and Gladwin counties. In May, 1893, the Lansing Lumber Company executed to the Michigan Trust Company a deed of all its property in trust for the payment of the interest and principal of certain bonds then and there issued to the creditors of said Lansing Lumber Company. Subsequently the Michigan Trust Company received a large sum of money from insurers of certain property which had been destroyed by fire. Complainant files its bill to compel the trust company to apply the moneys so received to the payment of its debt, and relies upon certain provisions in the deed from the Lansing Lumber Company to the Michigan Trust Company, which are as follows:

“It is further understood that certain of the lands, embraced in this indenture, and intended to be. hereby conveyed, are already held by certain creditors, by virtue of a trust deed, as a security for indebtedness herein mentioned, and that certain other of the lands herein contained are held by the said company by virtue of certain land contracts, upon which a portion of the purchase money remains to be paid.
“And it is expressly agreed that said trustee herein is hereby authorized and empowered to advance or borrow money to pay off the money remaining unpaid on said land contracts, and the money that is secured by the said trust deed, in order that the title to all said property may be fully vested in said trustee, free of all incumbrances, for the uses and purposes of this trust, and for the better security of the holders of bonds hereunder issued. And the said party of the second part is hereby authorized and empowered to pay off the money so borrowed or advanced, with the interest thereon, to perfect the title to said lands, or release the same from existing liens, out of any money that may come into its hands as trustee, before applying any to the payment of bonds hereunder issued; and these presents shall inure as a security for the same.
“It is expressly understood and agreed that the net income from the business of the said Lansing Lumber Company shall be applied, as fast as received, to the payment of the principal and interest of said bonds, in their proper order, until the said bonds are all paid. * * *
“After a sufficient sum has been set aside by the trustee to pay current expenses of the company, and the interest on its bonds for the current half year, and after the debts which are liens upon the property are paid, all the surplus income of said company shall be applied to the payment and retirement of the bonds issued hereunder.”

Defendant Michigan Trust Company demurred, and the case comes here on appeal from a decree sustaining the demurrer and dismising the bill.

We thirdc it clear, from the face of the deed to the Michigan Trust Company, that the authority given to the trustee to pay off the liens on portions of the land conveyed was not designed as a further security to the holders of these liens, but was a power to be exercised, in the judgment of the trustee, for the conservation of the estate, and for the benefit of the general creditors.

The decree must therefore be affirmed, with costs to defendant.

The other Justices concurred.