author: Per Curiam.

text:
    TAYLOR v. MONTCALM CIRCUIT JUDGE.
    Appeals from Justice’s Court — Plea op Title — Jurisdiction.
    1 Comp. Laws 1897, §§ 782, 789, which provide that a defendant prevailing-in the circuit court in a suit which he caused to be certified from justice’s court upon his notice that the title to land was involved shall not recover his costs if the trial judge shall certify that title did not come in question, but shall in such case pay costs to the plaintiff, contemplate that causes so certified shall be tried in the circuit courtmpon the merits, and it is therefore error for a circuit judge to dismiss such a case for want of jurisdiction upon a finding merely that title is not involved.

      Mandamus by Henrietta W. Taylor to compel Frank D. M. Davis, circuit judge of Montcalm county, to vacate an order dismissing an appeal from justice’s court.
    Submitted January 2, 1900.
    Writ granted February 20, 1900.
    Delator brought suit in justice’s court in trover for the conversion of certain stone which she alleged the defendant removed from her land. The defendant, with his plea, gave notice that the title to the land would come in question, filed the statutory bond, and the case was thereupon certified to the circuit court. The case was heard before the court without a jury. The court found that the title to the land was not in question, and dismissed the appeal for want of jurisdiction, and ordered that either party might have 20 days to refer the case back to the justice’s court for trial. The relator now asks the writ of mandamus to compel the circuit court to proceed and try the case.

      William O. Webster, for relator.

      Frank A. Miller, for respondent.
   Per Curiam.

The provisions of the statute applicable to this case are sections 782, 789, 1 Comp. Laws 1897. They read as follows:

“Sec. 782. In every action where the title to land shall in anywise come in question, the defendant may give notice thereof, under the general issue, upon the return day or any adjourned day of such action, and he may also give notice as in other cases of any other matter of defense.”
“Sec. 789. If the judgment in such suit in the circuit ■or district court shall be for the plaintiff, he shall recover double costs; if it be for the defendant (other than judgment of nonsuit), and the. presiding judge of the court before which the issue is tried shall certify that the title to lands did not come in question, the defendant shall not recover costs, but shall pay costs to the plaintiff.”

We think the learned circuit judge was clearly in error. When the defendant has removed his case to the circuit coui't under this law, the statute contemplates that the trial upon the merits should be had in that court. The proper practice in these cases is that followed in Dolahanty v. Lucey, 101 Mich. 113, and Newcombe v. Irwin, 55 Mich. 620, and many other cases which might be’ cited.

The writ will issue, directing the circuit court to set aside the order of dismissal, and to proceed with the trial of the case.

/


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    GRANT v. BOARD OF WATER COMMISSIONERS OF DETROIT.
    Municipal Corporations — Water Board — Negligent Laving op Pipe — Damage to Pavement — Rights op Contractor.
    A paving contractor who, after completing the paving of a city-street, was put to expense in remedying depressions therein, caused by the settling of the earth around water mains laid under the direction of the board of water commissioners before the paving was begun, cannot recover against the board, as the omitted duty to pack the earth in the excavation was at most a duty owing to the public, and not to the individual who might contract to pave the street.
    Error to Wayne; Waite, J.
    Submitted January 10, 1900.
    Decided February 20, 1900.
    Case by Archibald Grant against the board of water commissioners of the city of Detroit for alleged negligence in laying water-pipes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

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

      H. M. & D. B. Duffield, for appellee.
   Hooker, J.

The plaintiff is a paving contractor. On June 15, 1891, he made a contract with the city of Detroit whereby he engaged to pave a portion of Jefferson avenue, and to keep and maintain such pavement in good condition and repair for five years. About April, 1894, he was notified by the board of public works that he must repair this pavement, on account of depressions therein, and he did so, at an expense of about $535. It is claimed on his behalf that the depressions were caused by the failure of the water board to properly fill and settle a trench in which it laid a water-pipe previous to the time that the plaintiff laid the pavement, by reason of which the ground settled, allowing the pavement to go down with it.

In the act creating the water board it is provided that:

“They [the commissioners] may at all times enter upon and dig up, with like restrictions as to travel, such street, alley, road, or way, to lay such pipes or construct such aqueducts and other works beneath the surface thereof, and to maintain and repair or renew the same, returning the street, alley, or way to its former condition, so far as may be.” Act No. 359, 3 Laws 1873, § 8.

It is contended that a failure to restore the earth to its original condition was a neglect of duty, and that a right of action exists in favor of the plaintiff for the injury which the settling of the ground occasioned him. He accordingly brought this action, and appeals from a verdict of no cause of action directed by the court.

There were no contract relations between the water board and the plaintiff. If, as he contends, he had a right to rely upon the supposition that the street was uniformly solid and would not settle (in other words, if the city were under obligations to furnish him a foundation ), he was under no obligations to make repairs made necessary by the defective foundation. On the other hand, it was competent for him to take his own risks in this respect, and apparently he supposed that he did so. The, water board was required by law to fill its trench. Perhaps it could have been compelled to do so by the city, if it had omitted this duty. Nothing shows that it did not put back all of the dirt removed, nor does it appear that some of it was not afterwards removed before it had fully settled, either by the city or the contractor himself. It is evident that the complaint made is that the earth was not so packed by the employés of the board that it would not settle. But suppose this be so; this was, at most, a duty owed to the public, to be enforced by the public, and not a wrong perpetrated upon the man who might subsequently make a contract to grade or pave the highway. Counsel cite no case that sustains the plaintiff’s contention, and we have found none. In our opinion, the alleged failure of the water board was not an actionable wrong to the plaintiff.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    PRESTON v. MARQUETTE COUNTY SAVINGS BANK.
    Banks and Banking — Right to Buy and Sell Stock — Liability for Acts of Cashier.
    Buying and selling stock being outside the legitimate business of a bank, it cannot be held liable in trover for the conversion by its cashier of shares of stock bought for plaintiff upon a check drawn to the cashier individually, without its knowledge or authority.
    Error to Marquette; Stone, J.
    Submitted January 10, 1900.
    Decided February 20, 1900.
    Trover by George C. Preston against the Marquette County Savings Bank. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Button & Culver, for appellant.

      Charles B. Brown & Son, for appellee.
   Grant, J.

Action of trover for the conversion of 800 shares of stock of the Santa Fé Copper Company. One Barnes was the cashier of the defendant. In 1892 plaintiff applied to Barnes to purchase the stock. The purchase was made from Stackpole & Ely, of Boston, Mass. The stock was retained by Stackpole & Ely until June 26, 1894, when they sent the same by letter to Mr. Barnes stating as the reason for sending it that it was of no value. This letter was addressed to Mr. Barnes individually, and the account kept by Stackpole & Ely was also with him individually. Plaintiff gave his check for the price to Mr. Barnes individually, and not as cashier. The transaction did not appear upon the books of the bank. The bank was not engaged in buying and selling stock for itself or for others. Mr. Barnes testified that, upon receipt of the stock, he kept it in his own private drawer of a desk in the bank, until he sold it, in January, 1899.

Buying and selling stocks is not a part of the legitimate business of a bank. 2 Comp. Laws 189?, § 6093, subd. ?. Under what circumstances a bank would be estopped to deny its authority to engage in such business we need not determine. There is no testimony in this case to show that the bank had been engaged in such business, or knew anything about this transaction, or that it had authorized its cashier, Mr. Barnes, to engage therein. The entire transaction was with Mr. Barnes individually, and not with the bank. For this reason the learned circuit judge' properly directed a verdict for the defendant.

Judgment affirmed.

The other Justices concurred.


author: Long, J.

text:
    BOWLER v. BOWLER.
    Appeal — Affirmance of Decree.
    A decree establishing in complainant a life estate in certain lands, being sustained by the proofs, was affirmed.
    Appeal from Kent; Grove, J.
    Submitted January 10, 1900.
    Decided February 20, 1900.
    Bill by Richard Bowler, Sr., against Richard Bowler, Jr., Margaret Bowler, and Edson L. O’Harrow, to establish a life estate in certain lands. From a decree for complainant, defendants Bowler appeal.
    Affirmed.

      Wolcott & Ward, for complainant.

      JE. J. Doyle (G. A.- Watt, of counsel), for appellants.
   Long, J.

This bill was filed to establish a life interest in certain lands described in the bill in the complainant, and to declare a certain mortgage given on the premises by defendants Richard Bowler and his wife to defendant O’Harrow subject to complainant’s life interest. The questions in controversy are purely of fact. We have examined the record with care, and have reached the conclusion that the circuit court was not in error. The decree-made recites and provides as follows:

“The allegations in the bill of complaint in said cause in relation to the agreement between the complainant and the defendant Richard Bowler, Jr., that the said Richard Bowler, Jr., should execute to the complainant a life lease of the lands mentioned in the bill of complaint, and deeded by complainant to defendant Richard Bowler, Jr., on December 4, 1895, to wit, * * * and the allegation in said bill in relation to the preparation of such life lease, and the execution and delivery of said life lease by the defendant Richard Bowler, Jr., to said complainant, and the subsequent loss of said life lease, are established by the proofs in the cause; and the allegation in said bill as to the knowledge of Edson L. O’Harrow, at the time of the execution of the mortgage mentioned in the said bill of complaint by Richard Bowler, Jr., and wife to the said Edson L. O’Harrow, of the rights of complainant in the land covered by said mortgage under the said life lease, and the allegations in said bill of complaint in regard to the intention of complainant at the time he erected the barn mentioned in said bill of complaint, and in regard to his right to remove the same from the land on which it was erected, are not sustained by the proofs in said cause. It is therefore ordered, adjudged, and decreed:
“First. That the said complainant, Richard Bowler, Sr., have all the rents, issues, profits, use, and income of the land above described from and after the said 4th day of December, 1895, and for and during the term of his natural life; and the said defendants Richard Bowler, Jr., and Margaret Bowler, his wife, are decreed and required to convey to the said Richard Bowler, Sr., all of the said land for and during the natural life of said complainant, in consideration of the conveyance made by the said complainant to the said defendant Richard Bowler, Jr., of the same lands on the said 4th day of December, 1895; such conveyance of said life estate to relate to and have effect from and after the said 4th day of December, 1895.
“Second. The said bill of complaint is dismissed as to defendant Edson L. O’Harrow, with costs against complainant to be taxed; and the mortgage mentioned in said bill of complaint, and executed by Richard Bowler, Jr., and Margaret Bowler, his wife, to the said Edson L. O’Harrow, upon the lands above described, is decreed to be a lien upon the life interest of complainant as well as upon the interest of the other defendants in said land, but, between tbe complainant and the said Richard Bowler, Jr., and wife, is decreed to be a charge upon the interest of the said Richard Bowler, Jr., in said land after the termination of the life estate of complainant therein.
Third. The relief prayed in said bill in relation to the ownership, possession, and right of removal of the barn mentioned in said bill is hereby denied.
“Fourth. It is further ordered, adjudged, and decreed that complainant recover his costs in this cause against the said defendant Richard Bowler, Jr., to be taxed, and that he have execution therefor.”

We think the proofs sustain the decree made. It ■ must be affirmed, with costs.

The other. Justices concurred.


text:
    NORTHRUP v. GRAY.
    Settlement — Impeachment—Laches .
    Where G. made a settlement with N., and gave him- a note for the amount due him on the basis that a certain mortgage belonged to N., he cannot, 30 years afterwards, during which time there has been another settlement on the same basis, and N. has died, claim that the mortgage belonged to him, and that he should have had credit therefor on the note.
    Appeal from Newaygo; Edwards, J. .
    Submitted January 12, 1900.
    Decided February 20, 1900.
    Bill by Nelson W. Northrup against Edgar 'L. Gray and wife to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      W. D. Fuller, for complainant.

      Edgar L. Gray (A. F. Tibbitts, of counsel), for defendants.
   Grant, J.

This is a bill to foreclose a mortgage for $1,400, given by defendants to complainant on June 12, 1894, the last payment of which was due November 1, 1895. The defendants appeared by defendant Edgar L. Gray as their solicitor; were defaulted for want of answer; stipulated the amount due for principal, interest, and the taxes which defendants had failed to pay; and. consented to a decree, which was duly entered October 5, 1896, and was duly enrolled. October 21, 1897, the premises were advertised for sale, which was twice adjourned at the request of the defendants. On January 12, 1898, defendant Edgar L. Gray filed a petition asking to have the decree opened, and that he be permitted to answer, setting forth that on June 16, 1870, he was entitled to a credit of $830 upon a promissory note for $3,086.33, dated April 20, 1868, and given by him to Dr. Daniel W. Northrup, the father-in-law of complainant. The court granted the prayer of the petition. An answer was filed. The case was heard upon pleadings and proofs taken in open court, and decree entered for complainant for the full amount claimed, including the $330.

Upon the death of Dr. Northrup, Mr. Gray’s note became the property of complainant’s wife, and he has since been her agent in the transaction. About the time the mortgage was given, Gray applied to complainant for a loan of money. It was then agreed that the amount due upon the note should be included, and a note and mortgage given to complainant to secure the amount due Mrs. Northrup and the loan made by complainant to Gray. Prior to 1868, Mr. Gray had acted as agent for Dr. Northrup, who lived in Connecticut, in loaning money. On April 20, 1868, at Newaygo, Mich., Mr. Gray and Dr. Northrup had a settlement. Upon that settlement $977.66 was agreed upon as due to Dr. Northrup. The loans made by Gray for Dr. Northrup constituted the balance of the consideration for the note. Dr. Northrup gave Mr. Gray a receipt and agreement, which is also signed by Mr. Gray, for all notes, mortgages, and evidences of debt (excepting two, which were mentioned). The agreement also provided: “Said notes are to be paid over to D. W. Northrup when called for, or handed to him when called for; and I hereby agree to assign said mortgages to said Gray whenever he desires, having received full satisfaction for the same.” Dr. Northrup died in 1872. Various payments were made by Gray, both before and after Dr. Northrup’s death. Complainant furnished Gray a copy of this note with the indorsements of payments made thereon. A settlement was again had, and $700 found to be due thereon, which was included in the note and mortgage to complainant. Dr. Northrup owned a piece of land, which was sold to one Murray for $600, $300 of the purchase price being secured by a note and mortgage. This mortgage was paid to Dr. Northrup on May 15, 1871. After the expiration of nearly 30 years, after making two settlements, and after the lips of Dr. Northrup are sealed by death, defendants now seek to establish the fact that this mortgage belonged to Gray, and that he should have had credit for it upon the note of 1868. We deem it unnecessary to enter into further detail. We think the court reached the correct conclusion.

Decree is affirmed, with costs.

The other Justices concurred.


text:
    COLE v. DARLING.
    Mortgages — Foreclosure—Set-Oee.
    Where a wife joins with her husband in a deed of his property, thereby cutting off her inchoate right of dower, upon an agreement that a purchase-money mortgage shall be given back to her and in her name, which agreement is carried out, the mortgagor cannot set off against the mort'gage debt, upon foreclosure, a claim of his against the husband.
    Appeal from Newaygo; Edwards, J.
    Submitted January 11, 1900.
    Decided February 20, 1900.
    Bill by Hannah L. Cole against James H. Darling, Alma Darling, Frank H. Smith, and others, to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      George Luton, for complainant.

      A. F. Tibbitts (W. D. Fuller, of counsel), for defendants.
   Long, J.

This bill was filed to foreclose a certain mortgage executed and delivered September 23, 1895, by defendants J ames H. Darling and Alma Darling, his wife, to complainant, for the sum of $1,500. It appears that for several years the father-in-law of complainant, one John Cole, Sr., and the defendant James H. Darling owned the property jointly upon which the mortgage in question was given. It was a lot and double store building in the village of Fremont. One-half of the building was used as a store by John Cole, Sr., and his son, and the other half by defendants James H. Darling and Frank H. Smith. John Cole, Sr., died early in 1895, leaving a widow and several children, among whom is John Cole, Jr. In March, 1895, soon after his death, negotiations were had for the purchase by Darling & Smith of the Cole interest in the building. John Cole, Jr., in pursuance of these negotiations, purchased from his mother and the heirs of John Cole, Sr., their interests in the property, and took a deed in his own name. He then sold and conveyed the premises to James H. Darling for the sum of $2,250; and, to secure the payment .of part of this purchase price, Darling gave a mortgage upon the premises for $2,000. The complainant contends that this mortgage was given to her, while defendant Darling contends that it was given to John Cole, Jr. This mortgage was never recorded. In August, 1895, James H. Darling mortgaged the entire premises to one Joseph H. Martin for the sum of $3,000, and gave his note, signed by defendant Smith, to the complainant, for $2,000, to take the place of the $2,000 mortgage above mentioned. That this mortgage was paid in that way is conceded by all the parties. This note was afterwards taken up by Darling, and paid by his giving complainant the mortgage in suit for $1,500, and his note signed by Smith for $600, the extra $100 being for accrued interest.

The defendants, in their answer to this bill, set out that, at the time of giving the mortgage in suit, the firm of Davis & Cole, composed of Lorenzo V. Davis and the said John' Cole, Jr., was indebted to the firm of Darling & Smith in the sum of $716.40 on a certain rióte, and in the sum of about $400 on open account, and that the firm is still so indebted to said firm of Darling & Smith. It is also claimed by the answer that this store property was purchased by the firm of Darling & Smith, for the joint use of the firm of Darling & Smith, from John Cole, Jr., and that while the mortgage in question was made and executed to Hannah L. Cole, the wife of John Cole, Jr., in truth and in fact it was the property of John Cole, Jr.; and they therefore claim a set-off of the debt owing them from Davis & Cole.

The court below refused to make the set-off, and decreed a sale of the premises for the amount of the mortgage. The mortgage, at the date of the decree, amounted, with interest, to the sum of $1,800. The set-offs' at that'time amounted, with interest, to $1,608.35, and, if allowed, would leave the complainant the sum of $191.65 on the mortgage. We think the court below was not in error in refusing to allow this set-off. The deed to the premises was made to John Cole, Jr.; and when Mrs. Cole, the complainant, signed the deed of the property to defendant Darling, it was with the understanding that the $2,000 should be given to her and in her name, and it appears that this was the agreement when the mother of John 'Cole, Jr., signed the deed to him. This mortgage was afterwards discharged by her, with the understanding that, after the Martin mortgage was given, she should be secured by á second mortgage and the notes of Darling & Smith. The mortgage in suit was then given in pursuance of that arrangement. She had an inchoate dower interest in this property, which was cut off by this deed. She had the title to this mortgage, and was the owner of it. There was no fraud in her taking it in her own name. She was not and is not indebted to the defendants Darling & Smith, and they have no right to set off their claim against the mortgage.

The decree must be affirmed, with costs.

The other Justices concurred.


text:
    SMITH v. COWLES
    1. Pleading — Declaration on Judgment — Omitted averments— Notice Under Common Counts.
    The omission, from the special count of a declaration upon a judgment, of averments necessary to characterize the judgment, is not aided by notice under the common counts that-the judgment will he offered in evidence on the trial.
    2. Same — Demurrer.
    A declaration upon a judgment, which fails to state the name of the plaintiff in the judgment, the date on which it was rendered, or that it remains in full force, is demurrable.
    3. Same — Failure to Demur — Omission Cured by Verdict.
    Where a defendant fails to demur to a declaration on account of the omission of certain material averments, but pleads to the merits and proceeds to a trial of the issue, upon which proof of the omitted facts is necessarily made, the omission will he held cured by the verdict.
    Error to Shiawassee; Smith, J.
    Submitted January 9, 1900.
    Decided February 20, 1900.

      Assumpsit by Albert Smith, administrator of the estate-of Ellen E. Smith, deceased, against William Cowles, upon a judgment. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    Plaintiff brought suit in assumpsit upon a judgment in favor of Albert Smith and against the defendant, William Cowles, rendered in the circuit court for the county of Shiawassee on the 22d day of May, 1889, for the sum of $465.26. The special count in the declaration recited that:
    “The said Ellen E. Smith became the owner by assignment of a certain judgment in this court against said defendant in the sum of $465.26 and accrued interest, of which defendant, at the death of Ellen E. Smith, stood convicted, and the same had in no way expired or been' paid, whereby, by reason of his trust as administrator, an action has accrued to this plaintiff to have and demand the payment of said judgment of said defendant, and claims damages, $1,000.”
    Attached to the declaration was the following:
    “To the Above-Named Defendant: Take notice that on the trial of the above cause the plaintiff, under the money counts, will give in evidence a certain judgment rendered in this court in favor of Albert Smith, plaintiff, and William Cowles, defendant, in the sum of $465.26 and accrued interest.”
    The plea was the general issue. Upon the trial defendant’s counsel objected to the introduction of any testimony under the declaration, for the reason that it failed to state a cause of action. The objection was overruled, and verdict and judgment passed for plaintiff. The alleged fatal defects urged against the declaration are:
    “1. It does not state in what court the judgment was rendered.
    “2. It fails to give the day of the month or the year when the judgment was rendered.
    “3. It does not give the names of the plaintiff and the defendant in the suit in which the judgment was rendered.
    “4. It fails to state that said judgment ‘is in full force, and not reversed, annulled, or satisfied.’”

      John T. McCurdy, for appellant.

      Albert L. Chandler, for appellee.
   Grant, J.

(after stating the facts). The notice given under the common counts cannot aid the special count. That count sets forth the amount of the judgment, the defendant, and the court in which it was rendered. It fails to give the name of the plaintiff and the date of the judgment, and to state that it is in force. The declaration is clearly defective, and the objection raised against it would have been good upon demurrer. For form of declaration upon a judgment, see 1 Shinn, PI. & Prac. 552. The defendant chose to plead the general issue. To sustain his contention, we must hold that the declaration states no cause of action. The cause of action stated is a judgment. The pleader has failed in describing this judgment as fully as good and careful pleading requires. Plaintiff could have amended upon the trial, and should have asked leave to do so. Appellate courts are authorized to amend declarations, where the issue is not altered by the amendment. 3 Comp. Laws 1897, § 10273; also see section 10272, subd. 7, and authorities cited. Under that statute this court will consider this amendment as now made. Kean v. Mitchell, 13 Mich. 207, is a case in point. The rule applicable to this case is there quoted and approved, and is as follows:

“Where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would hav”e been.a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by the verdict at the common law.” Stennel v. Hogg, 1 Saund. 228, note 1.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    JENKINSON v. COGGINS.
    1. Dogs — Keeper—Evidence.
    A woman who owned the house in which she lived, and who exercised absolute control over it and over all the property connected with it, was properly held to be the “keeper” of a dog belonging to an adult son who lived with, and worked for, her, and had no other home.
    3. Same — Injury to Traveler — Liability oe Keeper. '
    Under 3 Comp. Laws 1897, § 5598, providing that the owner or keeper of a dog shall be liable if the dog assault, or bite, or otherwise injure any person while traveling the highway, a liability exists for damages occasioned by a dog which bit at the heels of a horse, and caused it to kick and injure the driver.
    Error to Genesee; Wisner, J.
    Submitted January 9, 1900.
    Decided February 20, 1900.
    Case by William Jenkinson, Jr., an infant, against Anna Coggins, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Ed. 8. Lee (James 8. Parker, of counsel), for appellant.

      Clinton Roberts, for appellee.
   Moore, J.

From a judgment of $400 obtained by plaintiff against defendant, she has appealed. This action is brought under the provisions of section 5593, 3 Comp. Laws 1897. We do not deem it necessary to discuss all the questions raised by counsel. It was the claim of the plaintiff that, while driving upon the highway, his horse was attacked by a dog of which the defendant was the keeper; that the dog barked at the horse, and bit its heels, causing it to kick; and that plaintiff was kicked in the face by the horse. His nose was broken, and the horse ran away. It was the claim of the defendant that she was not the owner of the dog, but that it belonged to her son. She also claimed that the dog did not cause the horse to kick, and was not near it when the mischief was done.

The first thing which needs our attention is the direction the court gave the jury that, under the .evidence in the case, they must find the defendant was the keeper of •the dog, within the meaning of the statute. It is said this question should have been left to the jury. The testimony' of the defendant disclosed that while her son Martin,, a man about 28 years old, owned the dog, he made his home with her, at her residence in Flint, and worked for her upon her farm near Flint. She testified she was owner of all the personal property in the house and on the premises in the city of Flint; also of the stock and tools and farming utensils on the farm, and used in connection therewith. She further testified that she purchased and paid for all the groceries and supplies used about the house in the city, and that she was the head of the family, and had absolute charge of the house and the property thereabouts; that she owned and controlled all the personal property, including the horses, vehicles, and all farm implements; that she ran the farm, and directed all the operations on and about the farm; that Martin worked for her, and she paid him for his services in a share of the crops raised; that she directed what crops should be put in, and how the same should be disposed of. It is apparent, from the testimony, that the home of Martin was with defendant, and that the only home the dog had was upon the premises owned and controlled by the defendant. The court very properly said to the jury the defendant was the keeper of the dog. Burnham v. Strother, 66 Mich. 519 (33 N. W. 410); Newton v. Gordon, 72 Mich. 642 (40 N. W. 921); Fye v. Chapin, 121 Mich. 675 (80 N. W. 797).

The court instructed the jury that, unless the injury to plaintiff was directly caused by the assault made by the dog upon the horse, the plaintiff could not recover. It is the claim of defendant that, as the dog did not bite the plaintiff, but bit the horse, the latter was the intervening cause of the injury, and that the statute, which is penal in its terms, was not intended to apply to cases where there is an intervening cause; citing Elliott v. Herz, 29 Mich. 202, and Monroe v. Rose, 38 Mich. 347. In the first of these cases the injury was caused by a mad dog. Justices Cooley and Campbell were of the opinion that the injury from the bite of a rabid dog must be classed with those inevitable accidents which the law always leaves to rest where they chance to fall, because, as no one is in fault, there is no basis for an assessment of damages against any one. Justice Graves was of the opinion that, even in such a case, the owner or keeper was liable. Justice Christiancy did not sit in the case. In Monroe v. Rose the question arose upon the pleadings. While there is some language in the opinion which tends to support the claim of counsel, the court declined to pass upon the question, but held plaintiff could not recover, as the declaration did not aver the injury was caused by the dog. The case of Newton v. Gordon, 72 Mich. 642 (40 N. W. 921), indicates pretty clearly that the plaintiff could recover. The language of the statute is not ambiguous: ‘ ‘ If any dog * * * shall assault, or bite, or otherwise injure any person while traveling,” etc. It does not indicate that the person must be bitten by the dog to entitle him to recover. A similar statute is construed in a case almost parallel to this by the supreme court of New Hampshire. Chickering v. Lord, 67 N. H. 555 (32 Atl. 773). It was held the plaintiff was entitled to recover. We think the statute is broad enough to cover such a case as this one.

Judgment is affirmed.

The other Justices concurred.