author: Long, j.

text:
    The Iosco County Savings Bank v. Orlando M. Barnes.

      Attachment — Dissolution— Evidence — Findings of circuit judge.

    1. On the hearing of -an application for the dissolution of an attachment, the burden of proof is upon the plaintiff to sustain the averments in the affidavit for the writ as to the. existence of the statutory causes authorizing its issuance; and the conclusion of the circuit judge as to the truth of said averments is not reviewable, if there is any testimony warranting the same.

      2. The conveyance hy a debtor some two years prior to the attachment of his property, and at a time when he was not indebted to any considerable extent as compared with his assets, which aggregated in value upwards of $500,000, of his homestead to his wife in exchange for other real estate owned by her, is not evidence of an intent to defraud his creditors.

      S. On a review of the testimony of the, defendant, upon which the plaintiff relies to sustain the writ of attachment issued in this case, it is held that there is not a particle of evidence showing or tending to show any fraud or concealment on the part of the defendant in the disposition of his property, and that all of his actions have been in the interest of creditors, or of some of them; and the order dissolving the attachment is affirmed.

      Certiorari to Ingham. (Person, J.) Argued February 2, 1894. Decided April 10, 1894.

      Certiorari to review - proceedings resulting in the dissolution oí a writ of attachment.
    Affirmed.
    The facts are stated in the opinion.

      Alfred Lucking, for petitioner.

      Cahill é Ostrander (M. V. $ R. A. Montgomery, of. counsel), for respondent.

      dissolution of attachments.
      For cases bearing upon the proper construction of and practice under Act No. 125, Laws of 1851 (How. Stat. §§ 8026-8029), which authorizes any defendant whose property may be attached to apply to the judge of the circuit court or the circuit court commissioner of the county where the writ of attachment issued for a dissolution of such attachment, and of Act No. 247, Laws of 1881 (How. Stat. § 8030), which provides for an appeal from the determination, order, or judgment of any circuit court commissioner under the provisions of the act first cited, see:

        Constitutionality of Act.

      1. Chandler v. Nash, 5 Mich. 409, holding that Act No. 84, Laws of 1853, which attempted to authorize dissolution proceedings before a notary public in certain cases, was in conflict with section 1, art. 6, of the Constitution, which vests the judicial power in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace, and in such municipal courts as may be established by the Legislature in cities.
      2. Edgarton v. Hinchman, 7 Mich. 352, holding that in conferring power upon circuit court commissioners to dissolve attachments the act does not give powers beyond those which may properly be exercised by a circuit judge at chambers, and therefore is not unconstitutional.

        Who May Apply for Dissolution.

      1. Paddock v. Matthews, 3 Mich. 18, holding that a defendant who secures the release, and restoration of the attached property, by executing a bond to pay any judgment which may be recovered against him in the attachment suit, cannot apply for the dissolution of the attachment.
      2. Chandler v. Nash, 5 Mich. 409, holding that an insolvent debtor, who has made an assignment of his property for the benefit of his creditors which is valid as to him, cannot apply for the dissolution of an attachment subsequently levied upon the property.
      3. Hyde v. Nelson, 11 Mich. 353, holding that a defendant, by appearing and pleading to the action, does not estop himself from applying for the dissolution of the attachment.
      4. Edwards v. Hughes, 20 Mich. 289, holding that where partnership property is attached upon an affidavit charging all of the partners with being about to dispose of their property with intent to defraud their creditors, and no grounds exist as against one of the defendants for the attachment, he, being entitled to the possession of all of the partnership property as against such unauthorized attachment, may apply for its dissolution without joining as co-applicants a co-defendant who was not served with the writ, and the remaining co-defendant, against whom cause existed for its issuance.
      5. Patterson v. Goodrich, 31 Mich. 225, holding that a defendant who is the owner of and entitled to have restored to him a portion only of the attached property has a right to apply for the dissolution of the attachment.
      6. Rowe v. Kellogg, 54 Mich. 206, holding that a husband, in joint possession with his wife of land belonging to her, but used as the family homestead, has, as head of the family, such an interest in the land as entitles him to complain of any unlawful interference with it; and if he is defendant in an attachment suit in which the land has been levied upon as his own, he is entitled to apply for the dissolution of the attachment.
      7. Gott v. Hoschna, 57 Mich. 413, holding that the assignee of an insolvent debtor cannot apply for the dissolution of an attachment, that right being confined to a defendant who is entitled to a return of the property.

        Application.

      1. Osborne v. Robbins, 10 Mich. 277, holding that the application should show that the applicant’s property has been attached, and set.forth the property taken,’and must be verified.
      2. Nelson v. Hyde, 10 Mich. 521, holding that a statement in the application that the applicant’s property, to the value of more than $3,000, has been attached by virtue of the writ, is not a sufficient ■description of the attached property to give the commissioner jurisdiction.
      3. Macumber v. Beam, 22 Mich. 395, holding that the continued ownership by the applicant of the attached property is sufficiently shown in the application by a positive allegation that the property ■of the applicant, describing it, has been attached, followed by a prayer “that the said attachment of his property above described may be dissolved, and that the said property be restored to this applicant.”
      4. Patterson v. Goodrich, 31 Mich. 225, holding that the cause assigned for suing out a writ of attachment will be held to have been sufficiently negatived, at least after the parties have proceeded to a hearing on the merits, by an application to the truth of which the applicant makes oath, and in which he prays for the dissolution of the attachment for the reason that the affidavit made therefor was false, and that the applicant was not, as averred in said affidavit, about to assign or dispose of his property with intent to defraud his creditors.
      5. Johnson v. DeWitt, 36 Mich. 95, holding that the application should allege a right in the applicant to the possession of the attached property, and if, upon the hearing, such allegation is negatived by proof that the possession was held by officers of the law under and by virtue of valid executions issued against the goods and chattels of the defendant, the application should be denied. (Overruled by Association v. Printing Co., 58 Mich. 487.)
      6. Smith v. Collins, 41 Mich. 173, holding that an application for the dissolution of an attachment on lands need not aver the right of the applicant to the restoration of the attached property.
      7. Zook v. Blough, 42 Mich. 487, holding that where an allegation of ownership in the defendant of the attached property is distinctly made in the application, and there is nothing in the case indicating that any other person has acquired any right in opposition thereto, the legal presumption that the owner of property is entitled to its possession may very fairly be indulged in for the purpose of giving the commissioner jurisdiction.
      8. Bank v. Steele, 81 Mich. 93, holding that an application in which the applicant denies that he has assigned, disposed of, or concealed his property with intent to defraud his creditors is not objectionable on the ground that such denial is in the alternative.

        Citation.

      1. Pearson v. Creslin, 16 Mich. 281, holding that, where the citation is insufficient, the applicant will be considered as having abandoned the dissolution proceedings, and the same will be quashed as irregular and without jurisdiction.
      2. Campfield v. Cook, 92 Mich. 626, holding that the service on November 29, of a citation returnable December 3, is insufficient, if one of the three intervening days is Sunday.

        Burden of Proof.

      1. Macumber v. Beam, 22 Mich. 395, holding that, on the hearing of the application, the plaintiff has the affirmative, and the burden of proof is upon him to show to the satisfaction of the commissioner the existence of such facts as justified the issuance of the writ.

        2. Brown v. Blanchard, 39 Mich. 790, holding that the plaintiff in attachment has the burden of satisfying the commissioner that the writ was well founded.
      8. Bank v. Barge Co., 52 Mich. 164, holding that the affidavit for the attachment is prima facie sufficient cause for issuing the writ, but, upon the facts therein set forth being denied in the application, the burden is cast upon the plaintiff to make good the cause he alleges by other competent proof, in addition to that contained in his affidavit for the writ.

        Evidence.

      1. Hyde v. Nelson, 11 Mich. 353, holding that a defendant in attachment, who is chai’ged in the affidavit with being about to remove his property from the State with intent to defraud his creditors, may show by his own testimony on the hearing of the application for the dissolution of the attachment, as bearing upon his alleged fraudulent intent, that when the attachment was served he did not know that he was owing any one.
      2. Blanchard v. Brown, 42 Mich. 46, holding .that the existence of reasons for the plaintiff’s belief that a statutory cause existed for suing out a writ of attachment is not necessarily in issue in proceedings to dissolve the attachment, but the inquiry is whether the defendant has actually done what the affiant believed him to have done.
      8. Carver v. Chapell, 70 Mich. 49, holding that, on the hearing of an application for the dissolution of an attachment sued out on the ground of a fraudulent concealment and disposition of defendant’s property, testimony tending to show that a portion of the property was exempt from execution, and that a portion belonged to the defendant’s wife, is admissible to rebut the alleged fraud.
      4. Estlow v. Hanna, 75 Mich. 219, holding that a writ of attachment issued on the ground that the debt sued for was fraudulently contracted will be dissolved if it appears that a portion of the claim is not affected by such fraud.
      5. Bank v. Steele, 81 Mich. 93, holding that the intent to defraud must be found to exist as a fact in order to maintain the writ, and it is not enough to show that the debtor has conveyed or mortgaged his property, but it must be proved to have been done under such circumstances as warrant the conclusion that he actually had this fraudulent intent in his mind.

        Order for Restoration of Property.

      1. Price v. Reed, 20 Mich. 72, holding that there is no authority in the statute for an order simply dissolving the attachment, and that to entitle a defendant to apply for its dissolution he must be in a position to be entitled to an order for the restoration of the property, which order the statute contemplates shall be made in u,Dy case in which the applicant is successful.
      2. Bank v. Whittle, 41 Mich. 365, holding that the lien of a ■sheriff under an execution, and his right to custody by virtue of it, cannot be disturbed by an order for the restoration of the property to the defendant made on the dissolution of an attachment of the property.
      3. Blanchard v. Brown, 42 Mich. 46, holding that it is the business of the defendant to see to the enforcement of the order for the restoration of the property.

        Appeal.

      1. Publishing Co. v. Association, 61 Mich. 336, holding that the recovery by the plaintiff of a judgment in the attachment suit pending his appeal from an order dissolving the attachment will not affect the question of his right to the original writ, nor will the levy of an execution issued on said judgment on the attached property so merge the attachment lien as to nullify its original force, or invalidate or impair the office of the writ previous to such merger.
      2. Harvey v. Circuit Judge, 63 Mich. 572, holding that How. Stat. § 8030, does not authorize an appeal from the order of a circuit judge made in proceedings to dissolve an attachment.
      3. Free Press Co. v. Association, 64 Mich. 605, holding that the abandonment of an appeal from an order dissolving an attachment is not shown by proof of the rendition of judgment in the main case pending the appeal, the levy of an execution on the attached property, its replevin by a third party and the consequent return of the execution unsatisfied, the levy of an alias execution, and the filing of a bill in aid thereof.
      4. Roskopp v. Circuit Judge, 97 Mich. 628, holding that notice of trial of an appeal from an order dissolving a circuit court writ of attachment is properly served upon the attorneys of record for the plaintiff in the attachment suit, who appeared and defended for the appellant in the dissolution proceedings, and one of whom made the affidavit for appeal, in which he stated that he was one of the attorneys for the appellant in said proceeding, and made the affidavit for and in his behalf.

        Revieio of Proceedings by Certiorari.

      1. Hyde v. Nelson, 11 Mich. 353, holding that, where there is testimony on both, sides bearing upon the issue made on the application for dissolution, the Court is not at liberty to inquire into the facts of the case as thus presented, and review the findings of the commissioner on mere questions of fact.
      2. Mendelsohn v. Smith, 27 Mich. 2, holding that certiorari will not lie where the plaintiff in the attachment suit claimed on the hearing of the dissolution proceedings, and claims in the petition for certiorari, to be the owner of the attached property.
      3. Hitchcock v. Sutton, 28 Mich. 86, holding:
      a — That where, the error assigned in an affidavit for certiorari to review the decision of a circuit court commissioner refusing to dissolve an attachment is that there was no evidence showing or tending to show the existence of the grounds upon which the writ issued, it is the duty of the commissioner to return all of the evidence on that subject, which he will be presumed to have done where he states that he returns a statement of all plaints levied or affirmed before him, together with all things touching the same, in the dissolution proceeding, and, if in fact other evidence was given, the party making such claim should apply for a further return.
      b — That where the return shows an entire want of evidence to support the grounds upon which the writ of attachment issued, the order of the commissioner will be reversed, and the attachment dissolved.
      4. Patterson v. Goodrich, 31 Mich. 225, holding:
      a — That an objection not taken before the commissioner will not be favored.
      b — That a record which shows that, on the evidence of the plaintiff that the defendant was the owner of a portion only of the attached property, the commissioner erroneously decided that the defendant was not entitled to a dissolution of the attachment, and dismissed the proceeding for want of jurisdiction, but which fails to show expressly that all of the evidence is returned, is not open to the inference that the order of the commissioner was made on other evidence which satisfied him that there was sufficient cause for the attachment.
      5. Taylor v. Circuit Judge, 32 Mich. 95, holding that under article 6, § 8, of the Constitution, the circuit court may issue, subject to the appellate jurisdiction of the Supreme Court, a writ of certiorari to review proceedings before a circuit court commissioner for the dissolution of an attachment; citing Thompson v. School-District, 25 Mich. 483, which rules this case.
      6. Brown v. Blanchard, 39 Mich. 790, holding:

        a — That where the record shows that no claim was made before the commissioner that there was no testimony to be considered in favor of the respondent, and the affidavit for certiorari does not rest on a total want of testimony, but on an erroneous finding by the commissioner, no question of law is presented'.
      b — That the decision of the commissioner on the testimony introduced before him is not open to review where he has fully passed upon it; and see Bank v. Whittle, 41 Mich. 365, holding- that the conclusion reached by the commissioner upon the facts is not reviewable on certiorari.

      7. Zook v. Blough, 42 Mich. 487, holding that a circuit court commissioner has power to allow a writ of certiorari to review-proceedings before another commissioner for the dissolution of an-attachment, and the circuit court has jurisdiction to issue the writ, and hear the case; citing Merrick v. Township Board, 41 Mich. 630.
      8. Schall v. Bly, 43 Mich. 401, holding that the refusal of a. circuit court commissioner to pass on objections to the admission of evidence works no prejudice, as such rulings would not be reviewable if made.
      9. Sheldon v. Stewart, 43 Mich. 574, holding that the special findings of fact made by the commissioner are conclusive if there was any evidence to support them.
      10. Bank v. Barge Co., 52 Mich. 164, holding that the decision of the circuit judge on the testimony will not be reviewed unless there is an entire absence of proof on some material point, but-that questions of law arising in the case, when properly presented, are open to review.
      11. Carver v. Chapell, 70 Mich. 49, holding that it is not the province of the appellate court to review questions of fact,’ or pass upon the weight of the testimony or the credibility of the witnesses, nor was it' intended in Loder v. Littlefield, 39 Mich. 512, to countenance such a practice.
      12. Lord v. Wirt, 96 Mich. 415, holding that rulings of the cir-cuit judge on the admission of evidence cannot be reviewed, and that a finding that the defendant has not disposed of his property • with intent to defraud his creditors is conclusive, if there is any evidence to support it.
      13. Jaycox v. Balch, 98 Mich. 160, holding that an alleged copy of a writ of certiorari issued to review proceedings resulting in the dissolution of an attachment, which is not attested by any public officer, is not of itself competent proof of the reinstatement of the attachment lien by the removal of the dissolution proceedings to the Supreme Court.

        Dissolution of Justice's Court Attachments.

      1. Albertson v. Edsall, 16 Mich. 203, holding that the statute applies to justice’s court attachments, and that a motion for a supersedeas to stay the further prosecution of an attachment suit, ■commenced before a justice of the peace after the dissolution of an attachment of the same prox>erty in the circuit court and the ■discontinuance of that suit, will not be entertained, as the defendant has his' appropriate remedy by applying for the dissolution of the second attachment.
      2. Hills v. Moore, 40 Mich. 210, holding that the dissolution of* 1234 a justice’s court attachment will not oust the justice of jurisdiction over the person of the defendant if he has been personally served, but, in the absence of such service, such dissolution will ■deprive the justice of all jurisdiction in the premises, unless the commissioner, as a condition thereto, requires the defendant to appear in the suit.
      3. Churchill v. Goldsmith, 64 Mich. 250, holding fhat the dissolution by a circuit court commissioner of a justice’s' court attachment, and an appeal to the circuit court, pending the adjournment of the main case for 30 days in default of the appearance of the defendant, will not prevent the rendition of judgment in favor of the plaintiff on the adjourned day; but, if the defendant was not served and did not appear, the dissolution of the attachment on the trial of the appeal will vacate said judgment.

        Miscellaneous Cases.

      1. Bower v. Town, 12 Mich. 230, holding that the only mode by which a defendant can contest the truth of the facts stated in the affidavit as.grounds for issuing the attachment is by an application under the statute for its dissolution; and that a plea in abatement negativing such alleged facts is prop'ferly stricken from the files.
      2. Linn v. Roberts, 15 Mich. 443, holding that the statute empowers the commissioner to impose costs upon the defeated party.
      3. Vinton v. Mead, 17 Mich. 388, holding that a circuit court commissioner can only dissolve an attachment for reasons going to show that the plaintiff “has not a good and legal cause for suing out such writ;'’ and that this includes nothing but an inquiry into the facts or the sufficiency of the affidavit, and all ether defects in the proceedings must be passed upon by the court,
      4. Folsom v. Teichner, 27 Mich. 107, holding that the language of the statute that, “if said judge or commissioner shall be satisfied that such plaintiff has not a good and legal cause for suing out such writ,” he may order the attachment dissolved, refers to •the state of facts made to appear at the hearing; and that the “good and legal cause,” which alone can sustain the writ, must be a cause existing in fact, and not merely in the belief of the plaintiff, however well founded it may have appeared to him, when he made the affidavit for the attachment.
      5. Smith v. Collins, 41 Mich. 173, holding that the statute authorizes the dissolution of an attachment on lands; following Edgarton v. Hinchman, 7 Mich. 352.
      6. Schall v. Bly, 48 Mich. 401, holding that the right of a debtor to apply for the dissolution of an attachment levied on his land is not cut off by the levy of subsequent attachments thereon.
      7. Sheldon v. Stewart, 43 Mich. 574, holding that the existence of other attachment levies is not such an impediment as ought to bar the defendant from the statutory remedy, and compel him to submit to an ex parte allegation of fraudulent misconduct, but he is entitled to an opportunity to impeach the cases one by one as they were instituted, unless a different course is stipulated, and before he can be debarred his remedy the court must be able to say that he has lost his right to a return, and it has no right to make an arbitrary assumption of that sort.
      8. Gray v. York, 44 Mich. 415, holding that error will not lie on the order of the circuit court affirming on certiorari the order of a circuit court commissioner dissolving an attachment, judgment having in the mean time been rendered in favor of the plaintiff in the main case.
      9. Bank v. Barge Co., 52 Mich. 164, holding that an application for the dissolution of an attachment is in the natur.e of a motion, and can be disposed of at chambers; but that a hearing is required, and a trial of the questions of fact must be had, and there is no reason why the rules governing the trial of such issues should not be applied upon the hearing.
      10. Rowe v. Kellogg, 54 Mich. 206, holding that the powers of a circuit judge in proceedings to dissolve an attachment are identical with those of a circuit court commissioner, and he does not exercise the full judicial authority of the court itself.
      11. Association v. Printing Co., 58 Mich. 487, holding that the levy of an execution, issued on a judgment in favor of another creditor, upon attached property in the possession of the officer making the levy, is no bar to the dissolution of the attachment, but the execution lien will not be affected by such dissolution.
      12. Publishing Co. v. Association, 61 Mich. 336, holding that the object and intent of the decision in Association v. Printing Co., 58 Mich. 487, was to place proceedings for the dissolution of attachments upon the same basis as other suits, to the end that the rights of the parties upon the hearing should stand and be adjudicated, as in other actions, as they were when the attachment suit was commenced, unless the defendant, by his own acts, had lost his right to the possession of the attached property, as in Chandler v. Nash, 5 Mich. 409, and Price v. Reed, 20 Id. 72.
      13. Gore v. Ray, 73 Mich. 385, holding that proceedings for the dissolution of an attachment are not superseded by the rendition of judgment in the case, and the defendant has a right to a hearing upon the issue made in such proceedings, unless he has in the mean time voluntarily parted with his right to the possession of the property, or by some other act estopped or debarred himself from insisting upon a dissolution.

   Long, j.

Plaintiff commenced suit in the Ingham circuit court against the defendant by attachment on September 6, 1893. The affidavit upon which the writ issued averred that the defendant had assigned and disposed of his property with intent to defraud his creditors, and also that he was about to assign and dispose of his property with intent to defraud his creditors. A levy was made under the writ upon a large number of parcels of real estate in Ingham county, and the writ was personally served upon the defendant. September 23, 1893, the defendant presented a petition to the circuit judge of that county for a dissolution of the writ, and upon the hearing the writ was dissolved. The case comes to this Court by certiorari.

On the hearing before the circuit judge it appears that the plaintiff moved to quash the proceedings for the dissolution so far as related to certain lots in the city of Lansing, because it was shown by the petition for the dissolution that the defendant had no interest in those lots as owner, except a claimed homestead right.

The errors assigned in the affidavit for the writ of certiorari are that the circuit judge erred—

1. In denying the motion to quash the proceedings so far as related to such lots.

2. In sustaining the objection of counsel for defendant-to the question, I ask you where it is,” when petitioner's-counsel was asking as to the whereabouts of the remainder of certain money owned by the defendant, and about which he was testifying.

3. In excluding the question, “I ask for an answer,” and in instructing the witness, You need not answer it just at present.” This inquiry related to the whereabouts of $6,000 owned and. controlled by the defendant.

4. In concluding that the defendant had not assigned and disposed of his property with intent to defraud his creditors.

The return of the circuit judge to the writ of certiorari shows that the claim made on the first point was that the homestead could consist of no more than a single lot in the city, and that, the defendant did not specify which of the lots, being five in number, constituted the homestead; and that he overruled this objection. The return further shows that on the hearing for the dissolution of the writ of attachment before the circuit judge the plaintiff called Mr. Barnes as a witness, and that he testified, in substance, that he had made an arrangement to borrow oí Jeptha H. Wade, oí New York, the sum of $100,000, for use in the adjustment of certain debts upon which the witness was liable, as indorser or otherwise, for the Lansing Iron & Engine Works-and others; that for the purpose of securing the payment of this $100,000 in five years from the date of making the loan he had executed a mortgage to Wade for that amount June 30, 1893, covering a large portion of his real estate. The witness further testified that he had not received all of the money secured by this mortgage, but had received $50,000 of it, and that of that amount he had paid out $43,000 or $44,000 to creditors, and had $6,000 or $7,000 of it left. He was then asked by plain tiffs counsel:

“What have you done with the remainder of the money?
“A. I do not cafe to state where it is, unless that is important.
“Q. I ask you where it is.
“Defendant’s Counsel: I object to it.
“A. The money is in my control, that remains.
“Q. Will you pay our debt with it?
“A. I am ready to pay it out on the debts whenever the proposition is accepted.
Q. What proposition? -
“A, I obtained this money to fulfill my engagement with these creditors if they accepted that 20 per cent.
Q. Have they accepted it?
“A. A part of them have, and have been adjusted with the' rest of the debts.
Q. Then you are willing to pay us if we will take 20 per cent. ?
“A. I am willing you should be paid fully, but the proposition was that I would pay out of my own means 20 per cent, if they would take the principal debtors’ property for the other 80.
Q- Then you will not pay us unless we will take 20 per cent.?
“A. I cannot say that. I would pay, sir, all of these debts, if I had the money to pay it. I made the best proposition that I was able to do that time. * * *
Q. Will you pay the Iosco County Savings Bank this debt of $5,000 or more that you owe them?
“A. Weil, if you speak of my disposition to do so, I will say that if it was right for me to do it I would; but I do not think I should pay, to be frank, that Iosco County Savings Bank, and let everybody else lose. I would be glad to divide every dollar I had among these creditors, and have them satisfied.”

The witness further testified that he was an indorser for upwards of $315,000 for the Lansing Iron & Engine Works, $300,000 for the Lansing Lumber Company, and that he had become an indorser for O. E. Barnes, upon which there still remained unpaid upwards of $140,000, for which he was liable; that, if' he paid all the O. F. Barnes debts in full, and paid 20 per cent, upon the other indebtedness, it would exhaust every dollar of his property. He was then asked:

“How much are you offering the creditors of O. E. Barnes?
“A. I have not made any offer to them. I have been to tRose having the largest obligations, and offered them' all the security I could. I have not been able to pay them any money.
“ Q. You have offered them some security?
“A. Such as I had.
“ Q. At what rate?
“A. At full. If I do not pay those debts in full, I shall not realize my desire in coming in and making myself liable. I have not asked anybody to discount a debt a dollar. I have asked them to take full pay.
Q. In what way?
“A. The iron works, as I said to you; take the iron works property for whát it is worth, and let me pay the balance; and then I believe I can, if all the creditors will have patience with me, pay off the O. F. Barnes debt.”

The witness was later, on asked:

“1 think you said this $6,000 was under your control?
“A. Yes, sir.
“ Q. It is not where the creditors can reach it?
“A. I don’t say that. I have not taken any pains to place it where they would reach it. I am not keeping it from creditors; I am keeping it for creditors.
“ Q. Keeping it for those that accept the 20 per cent, offer?
“A. Well, I want to pay the interest. I have said that I would pay the interest on the debts there up to the time when this bargain was made, — when this mortgage was made, — that is, on some interest on their papers. I expected to have paid that in money, and have said I would pay it in money, and am endeavoring to keep a reserve to meet that payment,
“ Q. Where is this $6,000?
“A. I have said I preferred not to answer it unless it is material.
“ Q. I ask for an answer.
“ The Court: You need not answer it just at present.”

The return further shows that, after hearing all the testimony and the arguments of counsel, the circuit judge determined that the defendant had not assigned and disposed of his property with intent to defraud his creditors, and therefore dissolved the writ.

We have not set out here the testimony in reference to the homestead property, but it appears that this real estate was deeded to the defendant’s wife some two years prior to the time when these proceedings were had; that the deed was made under an arrangement by which the defendant took from his wife certain other real estate, and also at a time when the defendant was not indebted to any considerable extent, as compared with the amount of property held and owned by him, which was upwards of $500,-000. We think the circuit judge was right in holding that*in this transaction there was no evidence of an intent to defraud any one. A consideration was paid for the homestead by the wife; and whether it was entirely adequate or not can have but little weight, under the testimony in the case. At. least, the circuit judge had the right to determine the question of fact, and there was testimony warranting the conclusion which he reached that no fraud was shown in this transfer. The burden of proof was upon the plaintiff in that proceeding to show affirmatively that, whatever disposition was made of his property by "the defendant, it was with intent to defraud creditors; and we cannot say, as matter of law, that the circuit judge was in error in his finding. State Bank v. Whittle, 41 Mich. 365; Schall v. Bly, 43 Id. 401; Genesee County Sav. Bank v. Barge Co., 52 Id. 164.

We think the circuit judge was correct, not only in the finding made in the matter of the homestead interest, but also in finding upon the main question that there was no evidence showing or tending to show that the defendant had disposed of his property with intent to defraud his creditors. The testimony not only fails to show any such intent, but does show the utmost good faith upon the part of Mr. Barnes to pay his creditors. He was an indorser to a large amount upon the paper of the Lansing Iron & Engine Works, the Lansing Lumber Company, and of O. F. Barnes. He attempted to aid all these parties in the payment of their debts. His proposition was that the creditors of the Iron & Engine Works should receive from him 20 per cent, of that indebtedness if they would look to the principal debtor for the other-80 per cent. This was attempted, and to meet the 20 per cent, these mortgages were made. He had, in the mean time, paid up over $300,000 of the O. F. Barnes paper. There is no proof of any concealment of property, no artifice or bad faith. The disposition which he sought to' make of his property was to pay as fast and as far as lie could. If the arrangement could be carried out to pay 80 per cent, from the property of the Iron & Engine Works, he believed he could pay the debts of his son, O. F. Barnes, in full. This was the inducement which led him to make the attempt, and the record is clear that he has disposed of none of his property except in payment of the debts of these concerns. The 16,000 or $7,000 which had been received from the mortgage was kept for the purpose of carrying out tha,t arrangement. He had made no disposition of it. He kept it, and had it under his control, to meet the interest in that matter. This is conclusively shown by his testimony.

It is said, however, that the arrangement made with the creditors of the Iron & Engine Works was fraudulent, in that it was a proposition to them to take 20 per cent, and release him, or he would not pay anything. This is not the testimony of Mr. Barnes, and the circuit judge held that it did not bear that construction; and in that the circuit judge was correct. The whole situation must be looked at and the arrangement viewed in the light of the surrounding circumstances. It appears to us that the circuit judge was right in saying that the testimony' warranted the construction that it was an honest effort to pay all he could out of his property, and not an effort to defraud anybody.

It is claimed, however, that the giving of the mortgage for $100,000, and receiving only $50,000 thereon, is an evidence of fraud. We do not think so. The money received on the mortgage, or the most of it, was at once turned over to creditors; and the reason of giving it for $100,000 is fully explained.

It is said, also, that the refusal to disclose where the $6,000 was deposited or kept was evidence of fraud. When it is remembered for what purpose it was kept on hand, there can be no question that such safe-keeping was in the interest of creditors, and not against their rights. It was to aid in carrying out the arrangement made, and to pay the interest on the amount necessary to do so. The keeping it away from one set of creditors to the advantage •of another would be no evidence of fraud. He had the right to prefer one creditor over another, and to pay off •one class first in preference to another. If the circuit judge had permitted the answer to the question, and the defendant had answered that he had the securities for this $6,000 concealed at his house, or the amount in cash in his pocket, it would not warrant any inference of fraud, under the circumstances here stated. Gore v. Ray, 73 Mich. 385.

No witness was called by the plaintiff except the defendant. It is upon his testimony alone that plaintiff relies to sustain its suit; and, as we have already said, there is not a particle of evidence showing or tending to show any fraud or concealment. All his actions have been in the interest of creditors, or some of them. We have no power to reverse the findings of the circuit judge upon the questions of fact if there is evidence to sustain them. We think they are sustained by the evidence, and that the circuit .judge was not in error in ruling out the question as to where the $6,000 was kept by defendant.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    The Cheboygan Lumber Company v. The Delta Transportation Company.

      Negligence — Setting fires by steamboats — Insufficient appliances— Interstate commerce — Construction of federal statutes.

    1. The owner of a steamboat is not under the legal duty to use the most effective means known to prevent the escape of sparks from its smokestack, and, if he uses an appliance or device which experience has shown to be reasonably effective in accomplishing that result, he is not required to use additional appliances or devices, although the danger might thereby be greatly lessened.
    2. The improper use of proper appliances to prevent the escape of sparks from the smokestack of a steamboat must be distinctly averred in order to be available as a ground of recovery in a suit for the loss of property set on fire, as claimed, by sparks thus emitted,
    3. Where, in such a suit, the sole theory of the plaintiff is that reasonable care and precaution, under the common law, required the defendant to provide the smokestack of its steamboat with a screen or spark arrester, and that its failure to da so caused the fire complained of, and the theory of the defendant, which is supported by evidence, is that it did provide suitable appliances, in dampers and a flue cap, to prevent the escape of sparks, and that they were as effective as a screen, if not more so, as preventives, it is entitled to an instruction that if the jury find that the steamboat was so equipped that, by closing her dampers and opening the flue cap, no sparks or fire'sufficient to have set the plaintiff’s property on fire could have escaped from said smokestack, the plaintiff cannot recover, even though they find that the dampers were not closed or the flue cap open.
    4. The effect of such a request, if given, is entirely negatived by the additional instruction that the jury must further find “that the use of ordinary care did not require the defendant, in addition, to have the smokestack of its boat equipped with a. fire screen to prevent the escape of sparks.”
    5. The act of Congress (IT. S. Rev. Stat. chap. 1, 2, title 12), and the regulations adopted thereunder by the board of supervising inspectors, relating to the equipment of vessels engaged in interstate commerce upon our lakes and rivers, do .not abrogate all the rules of the common law relative to liability for injuries inflicted by the negligence of vessel owners in not supplying their vessels with appliances which common experience has shown to be requisite for the proper protection of persons and property upon shore, and the use of which would not endanger the safety of persons and property on board.
    6. A spark arrester is not an “instrument, machine, or equipment,” within the meaning of U. S. Rev. Stat. §§ 4400, 4491, which provide that no kind of instrument, machine, or equipment for the better security of life, provided by the act of which said sections are a part, shall be used on any steam vessel navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation, excepting public vessels of the United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals, which shall not first be approved by the board of supervising inspectors, and also by the Secretary of the Treasury
    7. The first duty of a vessel owner is the protection of those on board, and who are directly under his care, and any device, appliance, or equipment which endangers them cannot be required by law, no matter how great the protection it would furnish to the property on the shore; and when the dangerous character of such devices is in issue, and the evidence is conflicting, the jury should be instructed that if they find the device, upon the use or absence of which an allegation of negligence is based, would be dangerous to the boat and to the property or persons on board, the law does not require its use.
    Error to Cheboygan. (Pailthorp, J.) Argued January 17 and 18, 1894. Decided April 10, 1894.
    Case.. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Simonson, Gillett & Gourtright {T. E. Tarsney, of counsel), for appellant.

      Humphrey & Grant (Benton Hanchett, of counsel), for plaintiff.
   Grant, J.

The plaintiff, a corporation, owned and operated a steam saw-mill on the east side of Cheboygan river, in the city and county of Cheboygan, Mich. On the west side was another mill. Lumber was piled on the docks on both' sides of this river, the space between the docks and lumber piles being about 260 feet. Plaintiff’s lumber was piled about 25 feet high above the water, and extending to the breakwater. All steamboats and vessels going to the city of Cheboygan passed between these lumber piles. The defendant, a corporation, owned several boats running between different points along the lakes, and was running one propeller, named the Minnie M., between 'Cheboygan and Sault Ste. Marie, Mich., and intermediate points, and was engaged in carrying both freight and passengers. This propeller had a Steeple compound engine, with the ordinary marine boiler for making steam, and burned pine slabs for fuel. She had no spark screen attached to her smokestack. About half past 4 o’clock on the morning of November 25, 1890, the propeller started •on her last trip from Cheboygan to Sault Ste. Marie. No •other boat, except one known as the George W. Cuyler, had been up or down the river that morning.' It had passed before the Minnie M., but burned coal, and there is no evidence from which it can fairly be inferred that it caused the fire now complained of. The plaintiff introduced evidence tending to show that the Minnie M., on the morning in question, emitted an unusual amount of sparks from her smokestack; that a strong wind, amounting almost to a gale, was blowing to the eastward; that the sparks were blown by the wind onto the lumber piles of the plaintiff; that within from 10 to 20 minutes afterwards the lumber was on fire; and that the boat, as it went out, drifted towards the plaintiff’s docks.

The declaration contains three counts: The first count is based on Act No. 183, Laws oí 1881, which requires the owners and masters of steam vessels navigating the waters of this State to provide fire screens for their smokestacks, and makes the owners liable for any damages resulting from the neglect to comply with the act. The second count is not based upon the statute, but charges- the defendant with negligence in having no fire screens attached to its smokestack, to prevent the escape of fire and sparks therefrom. The third count is also based upon the statute.

The evidence on the part of the defendant tended to show that at the time in question the smokestack emitted no sparks; that the use of fire screens upon the smokestack of a vessel was impracticable and dangerous; that it was so equipped that, by closing the dampers and opening the flue cap, danger from sparks . was avoided; that the dampers were closed and the flue cap open; and that these were reasonable and common appliances to prevent the escape of sparks. Plaintiff, in rebuttal, gave evidence tending to prove that spark screens were used upon the smokestacks of steam vessels, and that there was no danger in using them for the short time required to pass up and down the Cheboygan river.

At the close of the evidence, counsel for the plaintiff announced that it sought to recover under the second count only; claiming that it was based upon the common law, and not upon the statute. Counsel further stated, in the same connection:

There is no occasion to say anything to the jury on the subject of that statute. It is in no way or manner so presented in the trial of this case, and it is merely a question here of submission to the jury, under the circumstances of the case, — the law requiring reasonable care to be used, — whether, in the exercise of that reasonable care, it was the defendant's duty to use a spark catcher attached to the smokestack, and without doing that the defendant exercised reasonable care, or whether, by failure to adopt that measure as reasonable care, the injury occurred.''

Counsel for the defendant requested an instruction that the plaintiff was not entitled to recover under either count of the declaration. Also that—

“ The Minnie M., on the day alleged in the declaration, being engaged in interstate commerce, is not liable for any damages she may have caused by reason of not having a fire screen attached to her smokestack, as required by Act. No. 183 of the Laws of 1881, such act being an attempted regulation of interstate commerce; and the plaintiff cannot, therefore, recover.”

Also:

■“The laws and regulations passed by Congress, regulating steam vessels, contain no provisions requiring fire screens to be attached to the smokestacks of steam vessels; and the Minnie M., on the date alleged in the declaration, being engaged in interstate commerce, her owners and masters were not bound to have such an appliance on its smokestack.”

Also:

“Under the evidence in this case, it appears that, if the Minnie M. had been provided with a fire screen attached to her smokestack, adequate provision could not have been made to prevent sparks and flames from being driven back through the fire door into the vessel, and thus endangering the vessel, its cargo and passengers. The plaintiff cannot, therefore, recover.”

Also:

“It appearing from the undisputed testimony in this case that the Minnie M., on the date in question, was provided with devices and appliances that would have as effectually prevented the escape of sparks as would a fire screen attached to the smokestack of the vessel, as required by the statute, and that a fire screen attached to the smokestack would not more effectually have prevented the escape of sparks, the plaintiff cannot recover.”

Also:

“It appearing from the undisputed testimony in this case that the use 'of fire screens attached to the smokestack of steam vessels is not consistent with the safety of the boat, in that, by getting clogged, it operates as a damper and tends to obstruct the draught through the smokestack, and thus interfere with the motive power of the boat, and that it has been found impracticable to use it, and that there is danger of its causing the flames and sparks to be set back through the fire door, and' thus to endanger the boat, her cargo, and the lives of passengers, defendant was not required to provide the said vessel with any fire screen, as required by the provisions of Act No. 183, Laws of 1881, and the plaintiff ■ canno.t, therefore, recover.”

Also:

“ If the jury find that on the morning of November 25, 1890, when the Minnie M. left the dock, and went down and out of the Cheboygan river, she was so equipped that, by closing her dampers and opening the flue cap, no spark or fire sufficient to do injury to property, or set it on fire, could escape -from her smokestack, the plaintiff cannot recover, even though you find that the dampers were not closed or the flue cap open.”

These instructions were refused by the court.

In its oral charge, the court read' to the jury the second count of the declaration; stated the claims of the respective parties; instructed them that, if they should find that the fire did not originate from the sparks escaping from the defendant’s boat, they should find for the defendant; and that the burden of proof was upon the plaintiff. The court then instructed the jury as follows:

“It was the duty of the defendant, in the operation of its steamboat the Minnie M. on the Cheboygan river, while passing the plaintiff’s property, to use reasonable care to avoid setting fire to the plaintiff’s property by sparks or fire escaping from the smokestack of the steamboat. It is for the jury to determine what would be reasonable care, under the circumstances. In determining what would be reasonable care, the jury are to take into account the danger which was incurred by sparks or fire escaping from the smokestack, in setting fire to the plaintiff’s property. In determining that, the jury may take into account the character of the steamboat; the fuel used; the manner in which the boat was managed by the crew; the likelihood of sparks to escape from the smokestack, with the danger of setting fire when they escaped; the plaintiff’s property; its situation; the character of the season, as to being wet or dry; also, how near the plaintiff’s property the boat passed, and the conditions and circumstances which the evidence shows in relation to what danger there was, if any, to setting fire to plaintiff’s property from sparks or fire escaping from the defendant’s smokestack. In determining what would be reasonable care to be used by the defendant, the jury may take into account the means of care which the evidence shows the defendant did use, and the evidence given in the case in relation to the use of spark screens attached to the smokestack of steamboats as a means of preventing the escape of sparks and fire, and to avoid the dangers arising therefrom. If you shall find from the evidence that it was, under the circumstances of this case, the duty of the defendant, as a means of using reasonable care, to use a spark screen attached to the smokestack of' the steamboat while passing the plaintiff’s property, and if you find that the defendant did not use any such spark screen, and by its neglect to use it the defendant did not use reasonable care, and, by such neglect to use such spark screen, sparks and fire escaped from the smokestack, and fell upon the plaintiff’s docks, lumber piles, and tramways, and by means whereof the plaintiff’s docks, lumber piles, and tramways were burned and destroyed, the plaintiff is entitled to recover for the damage suffered by it thereby. If, on the other hand, you find that upon the morning of November 25, 1890, when the Minnie M. left her dock, and went down and out of the Cheboygan river, she was so equipped that, by closing her dampers and opening the flue cap, no sparks or fire sufficient to do injury to the property, or set it on fire, could escape from her smokestack, and that the use of ordinary care did not require the defendant, in addition, to have the smokestack of its boat equipped with a fire screen to prevent the escape of sparks, then the plaintiff cannot recover, even though you find that the dampers were not closed or the flue cap open. In other words, you will determine from the evidence in the case whether the mere fact of having that boat equipped with a damper and fine cap, in the absence of a screen in the smokestack, was negligence or not, or whether due care, under the instructions I have already given yon, required them, in addition, to have a screen in the smokestack of its propeller.'’'’

The jury rendered a verdict for the plaintiff for $14,000.

The only ground of negligence upon which recovery is now sought is the failure of the defendant to supply the smokestack of its boat with a spark arrester. The plaintiff, by abandoning its first and third counts, and electing to rest its claim upon the second count, based upon the common law, eliminated from the case the statute of this State requiring spark arresters to be placed upon the smokestacks of steam vessels. This statute, therefore, is not before us for construction; and we need not discuss its validity, or whether it is in conflict with the laws of the United States. Were it before us, important and doubtful questions would be presented for determination.

All the material facts in the case were disputed, and the evidence in regard to them is conflicting. We need not, therefore, refer to them, except in their bearing upon the charge of the court, and the refusal to instruct as requested by the defendant. No question is raised upon the admission of evidence, and if the charge of the court is correct, the verdict must be sustained, unless the law of Congress-has abrogated the rule of the common law.

It is argued by the learned counsel for the 'defendant-that the record establishes conclusively the fact that the' dampers of the boiler were closed, and the flue cap open,, from the time that the boat left her dock until she passed the lumber piles, and entered the Straits of Mackinaw.. Defendant had introduced evidence, of a very positive-character, showing that there was no danger from sparks, if the dampers were closed and the fine cap open, and that; the proper use of the dampers and flue cap was one of the most effective means known to prevent the escape of sparks. Some of its witnesses testified on cross-examination that, if a large volume of sparks came from the smokestack, there.was some mistake about the dampers being closed and the flue cap being open, and that, when a large volume of sparks is being emitted, it shows that they are putting in a new' fire, or that it is being stirred up, and they are forcing it by artificial draughts. If, therefore, the witnesses on behalf of plaintiff testified truly as to the amount of sparks which were being emitted, one of two conclusions must have been reached by the jury, — either that the dampers and flue cap were ineffective when properly used, or that they were improperly or carelessly used bj the defendant’s employés. While the latter conclusion may seem more probable, still the conclusion to be drawn was for the jury, and not for the court. It is true that there was nothing in the record to contradict the evidence of the employés on board the boat that the dampers were closed and the flue cap open, or the evidence as to the effectiveness of the appliance used, except the fact — if proven by the plaintiff’s evidence— that the sparks did issue from the smokestack in large and unusual quantities, and of unusual size. But this created •a conflict of evidence. The fact that sparks were pouring ■out in such quantities is not consistent with the evidence of the defendant, upon either of its theories. Alpern v. Churchill, 53 Mich. 613.

The general rule of diligence applicable to the case is not in doubt. It was, in general terms, correctly stated by the circuit judge to be “the use of reasonable care to avoid setting fire to the plaintiff’s property by sparks or fire escaping from the smokestack of the steamboat.” It must be borne in mind that it is probably impossible to prevent, entirely, the escape of sparks, where wood is used for fuel; that the defendant was engaged in a lawful business; that it was lawful for it to use wood for fuel; and that the fact that a fire resulted is not, of itself, evidence of negligence. Yet appliances should be used which experience has shown to be reasonably effective in avoiding danger. Such is the rule at the common'law. One is not under the legal duty to use the most effective means known, and, if he use an appliance or device which experience has shown to be reasonably effective in accomplishing the result, he is not required to use any additional appliances or devices, although the danger might thereby be greatly lessened. If he is, negligent in the use of the proper appliances, provided an injury results, another ground of liability arises, viz., negligence in the improper use of proper appliances. But this negligence must be distinctly averred. Now, the theory of the plaintiff was that reasonable care and precaution, under the common law, required the defendant to provide its smokestack with a screen or spark arrester, and that the failure to provide it caused the fire. The theory of the defendant, on the other hand, was that it had provided suitable appliances, in dampers and a flue cap, which were as effective as the screen, if not more so, in preventing the escape of fire and sparks.. Each introduced evidence in support of .its theory. Each was entitled to have the case submitted to the jury upon its theory, and the evidence in support thereof. The case was submitted on the theory of the plaintiff, but we think that the theory of the defendant was practically excluded from the consideration of the jury. One witness on behalf of the defendant, who had been engaged in the vessel business all his life, and had been master of vessels for eight years, testified:

“With the dampers closed and the flue cap open, the screen would be of no use, because there would be nothing for it to catch.”

Another, of still larger experience, testified:

“ The best-known device to prevent the escape of sparks from the smokestack of a marine boiler is to close the dampers and open the flue cap. When the damper is closed, it acts as a spark arrester; and, when the flue cap is open, it stops the draught from coming up through the fire, by allowing cold air to come up and fill the stack.”

If this testimony was true, — and this was a question for the jury, — then it is clear that no further or other appliances were required, and the defendant had, in thus equipping its boat, performed its entire duty. The defendant was therefore entitled to have the following -request given to the jury:

“If the jury find that on the. morning of November 25, 1890, wheh the Minnie M. left the dock, and went down and out of the Cheboygan river, she was so equipped that, by closing her dampers and opening the flue cap, no spark or fire sufficient to do injury to property, or set it on fire, could escape from her smokestack, t he plaintiff cannot recover, even though you find that the dampers were not closed or the flue cap open.”

The court gave this request, but its effect was entirely negatived by the additional instruction that the jury must further find “ that the use of ordinary care did not require the defendant, in addition, to, have the smokestack of its boat equipped with a fire screen to prevent the escape of sparks.”

How could the use of ordinary care require an additional appliance, when those in use were sufficient to prevent the escape of sparks which could have set the plaintiff’s property on fire? The reason for this request more clearly appears in view of the strong, if not uncontradicted, evidence in the record that the spark arrester is a detriment to the boat; that it easily and quickly becomes clogged with sparks; that it checks the draught; that the wires, alone, occupy about one-third of the area of the stack; and that its use is to be avoided, when possible. Mr. Kitchen, a witness for plaintiff, with 14 years’ experience as master of steam vessels, testified on cross-examination that he did not think it was for the best interests of a boat to have one; that it interfered materially with the motive power of the boat, caused extra labor on the part of the crew, and, in a large furnace, would endanger a man standing close to it, where his duties called him. Mr. Harrington, an engineer, a witness for plaintiff, who had had 10 years5 experience in burning slabs in the furnaces of boats, testified that with a low-pressure boat and a condensing engine, and without any artificial draught, generally no sparks would be emitted, and those which did come out would be small, and the heavier the wind the quicker they would burn up. It is unimportant to refer to the evidence in contravention of the above. It is essential to .refer to that on the part of the defendant to show the relevancy of the instruction asked, and the importance of so instructing the jury. The charge', as given, virtually said to the jury that, though they might find the- means used reasonably effective, yet they were at liberty to find that another device, in addition, should have been used. This was error, for which the case must be reversed.

It is further argued, on behalf of the defendant, that its boat was .equipped and provided with all the machinery and mechanical appliances required by the act of Congress, and the regulations adopted thereunder by the board of supervising inspectors; that this legislation covers the entire subject of the equipmént of vessels engaged in interstate commerce upon our lakes and rivers, and abrogates all the requirements of, and therefore excludes all liability which exists at, the common law. It is conceded that, in the absence of federal legislation, the common-law rules relative to the protection of the property of citi?§ns may be enforced in the state courts. Eeliance is placed upon chapters 1 and 2 of title 52 of the Eevised Statutes of the United States, — particularly on the following sections:

“Sec 4400. All steam vessels navigating any.waters of the United States which are common highways of commerce, or open to general or competitive navigation, excepting public vessels of tbe United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals, shall be subject to the provisions of this title.”
“Sec. 4405. * * * The board [of supervising inspectors] shall establish all necessary regulations required to carry out in the most effective manner the provisions of this title, and such regulations, when approved by the Secretary of the Treasury, shall have the force of law.”
“ Sec. 4470. Every steamer carrying passengers or freight shall be provided with suitable pipes and valves attached to the boiler, to convey steam into the hold and the different compartments thereof, to extinguish fire; and every stove used on board of any such vessel shall be well and securely fastened, so as to prevent it from being removed or overthrown, and all wood-work or other ignitable substances about the boilers, chimneys, cook-houses, and stovepipes exposed to ignition, shall be thoroughly shielded by some incombustible material, in such a manner as to leave the air to circulate freely between such material and woodwork or other ignitable substance; and, before granting a certificate of inspection, the inspector shall require all other necessary provisions to be made throughout such vessel to guard against loss or danger from fire.”
“Sec. 4491. No kind of instrument, machine, or equipment for the better security of life, provided for by this title, shall be used on any steam vessel which shall not first be approved by the board of supervising inspectors, and also by the Secretary of the Treasury.”
“ Sec. 4500. The penalty for the violation of any provision of this title, not otherwise specially provided for, shall be a fine of $500, recoverable one-half for the use of the informer.”

The boat was duly licensed as an enrolled vessel, “to carry on the coasting and foreign trade on the northern, northeastern, and northwestern frontier, otherwise than by sea, for one year,” and had received her certificate of inspection, in which the particulars of inspection are enumerated, and her equipment stated. Among the appliances and equipment required, no reference whatever is made to dampers, flue caps, or spark arresters.

It is manifest that the purpose of the United States statute is the protection of the boat, its passengers, crew, and freight. None of the provisions of the law show any intent to legislate upon, or provide for, the protection of persons and property on land. If we look to the regulations adopted by the board of inspectors, the same purpose is manifest. Nothing enumerated in the certificate of inspection conflicts with the common-law rule as to the duty which is imposed by the common law in regard to the protection of persons and property upon shore, and within the jurisdiction of the respective states. It would seem, therefore, to be a reasonable conclusion that it was not the intention of Congress to abrogate all the rules of the common law relative to liability for injuries inflicted by the negligence of vessel owners in not supplying their vessels with appliances which common experience has shown to be requisite for the proper protection of persons and property upon shore, and the use of which would not endanger the safety of persons and property on board. It is a matter of common knowledge that steam vessels using wood for fuel, and traversing the public highways of commerce, which are often narrow, upon whose banks is, and of necessity must be, placed valuable and combustible property, are a source of danger. The intent to take away this liability, as well as the right of the state to enact laws for the protection of the lives and property of its citizens, should clearly appear. Here, again, the distinction between a failure to furnish proper appliances and the negligent use of proper appliances furnished must be remembered. In the latter case the common-law liability remains, unless the act is a maritime tort, over which the admiralty courts have exclusive jurisdiction. So, if it should be found that the defendant's dampers and flue cap were reasonably sufficient to prevent the escape of sparks, but that the negligent and careless use of them, or the failure to close the one and open the other, set fire to, and caused the destruction oí, plaintiff’s property on shore, the defendant’s liability at the common law, under a proper declaration, would be clearly established.

It is argued that the defendant is prohibited, impliedly if not expressly, by section 4491, from using a spark arrest-er, and that, if it did so without the approval of the board of supervising inspectors and the Secretary of the Treasury, it would be liable to a penalty of 1500, under section 4500. But, as already stated, both the law and the regulations are silent as to its use, and we do not think that a spark arrester is an “instrument, machine, or equipment ” designed or intended “ for the better security of life,” within the meaning of the law. Furthermore, the object of the act of which these sections are a part is stated in the title “ to provide for the better security of life on board of vessels propelled in whole or in part by steam.” We are aided to this conclusion by the fact appearing upon this record that many steam vessels have used them, that others are still using them, and the knowledge, obtained from the judicial decisions in our own and in other states, that they have for many years been in common use upon railroad engines, mill stacks, and vessels navigating our rivers and lakes. There is no evidence upon this record to show, nor have we any information or knowledge, that there is more difficulty in using them upon mills and railroads than there is upon vessels. So common has been their use upon vessels that we are justified in taking judicial knowledge of the fact that the United States inspectors, whose duty it is to inspect vessels from time to time, must have had knowledge of their existence, and have not considered them dangerous to the safety of a vessel, or they would have prohibited their use. At least, this is a fair presumption, and must hold until the contrary appears.

We cannot, therefore, hold that the act of Congress relieves the defendant from its liability' at the common law, and its duty to nse appliances which experience has shown to be requisite, by common prudence, for the protection of property on the banks of the public highways traversed by its boats. Of course, the first duty of a vessel owner is the protection of those on board, and who are directly under his care. It follows that any .device, appliance, or equipment which endangers them cannot be required by the law, no matter how great the protection it would furnish to the property on shore. When the dangerous character of such devices is in issue, and the evidence is conflicting, the jury should be very carefully and clearly instructed in the direction above indicated. They should be distinctly told that if they find the device, upon the use or absence of which negligence is based, is dangerous to the boat, and to the property and persons on board, the law does not require its use.

Of the many authorities cited in the briefs of counsel, mainly from the federal courts, no one involves facts parallel to those of the present case. Nearly all of the cases cited from the federal courts involve the statutes of the various states, which were claimed to be in conflict either with 'the laws or the Constitution of the United States.

In Cuddy v. Horn, 46 Mich. 596, the plaintiff recovered damages on account of the death of his decedent, caused by a collision between two vessels in the Detroit river. No question of jurisdiction appears to have been raised.

In John Spry Lumber Co. v. Steam-Barge, 76 Mich. 320, the jurisdiction of the State court was challenged. The injury was caused to the plaintiff’s boom in St. Mary’s river. We said in that case:

“Locality, by all the authorities, is the test in cases of tort by which to determine whether the wrongful act is one of admiralty cognizance.”

And several authorities are there cited.

In Johnson v. Elevator Co., 119 U. S. 388, the jib-boom of a vessel being towed in the Chicago river struck a building, injuring it, and causing the loss of personal property. Suit was brought in the state court, and it was held that that court had jurisdiction.

In Sherlock v. Alling, 93 U. S. 99, a collision occurred between two vessels on the Ohio river, within the territory of the state of Indiana, by which a passenger was killed. His administrator was allowed to recover in the state court under a statute of that state allowing damages for torts resulting in the death of a person injured. It was claimed that by the common and maritime law the right of action for personal torts dies with the person injured, and that the statute enlarged the liability, and constituted a new burden on commerce. It was held to constitute no encroachment upon the commercial power of Congress. By parity of reasoning, a person injured would be entitled, under the common law, to maintain an action for injury in the state court.

In King v. Transportation Co., 1 Flip. 1, it was held that the act of Congress of March 3, 1851, limiting the liability of vessel owners to the value of the interest of such owners in the same, did not apply to damage' done by a vessel to property situated on land, such as the burning of a warehouse by sparks proceeding from the chimney of a steam tug. The language of that case seems so applicable to this case that we quote from it as follows:

“Each state has exclusive control over all matters pertaining to its own internal police. It can establish and regulate ferries across its rivers, control the moving of vessels in harbors within its borders, and enact health and inspection laws, which, by quarantine or otherwise, may operate on persons brought within its jurisdiction in the course of commercial operations. The Supreme Court of the United States, in the case of City of New York v. Miln, 11 Pet. 139, broadly declared the doctrine that a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States; that by virtue of this it is not only the right, but the bounden and solemn duty, of a state, to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, or by the recognition of the principles of the common law, which it may deem to be conducive to these ends, where the power over the particular subject, or the manner of its exercise, is not restrained by or surrendered to the federal government, and that all those powers which relate mainly to municipal law, or what may, perhaps, more properly be called f internal police/ are ■ not thus restrained and surrendered; and that consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.”

In Transportation Co. v. Gagnon, 36 Fed. Rep. 123, it was held that the statute limiting the liability of ship owners to their interest in the vessel and its freight “for any embezzlement, loss, or destruction by any person of any property * * „ * shipped or put on board, * * * or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred without the privity or knowledge of such owner or owners,” did not include liability for the destruction of buildings and goods on the land by fire alleged to have been communicated by a vessel, though duly licensed and engaged in the coast trade.

Many other similar decisions might be cited, but we deem it unnecessary. While most of these cases do not involve the appliances or equipment of vessels, but are cases of the negligeht use or management of properly equipped vessels, still we think the principle there enunciated applies to the present case.

Judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    John Owen v. Mary A. Campbell et al.

      Trusts — Sale of stock by trustee — Inability.
    This case involves the question of the alleged sale by a trustee of stock in a dry-dock company, held by him in trust for certain heirs, for less than its value, thereby benefiting the trustee by a large increase in his salary as an officer of the company, and enabling him to make a large profit upon his own stock, and that subsequently purchased of another stockholder. And the finding of the circuit judge that after a most careful review of the entire testimony in the case, under the facts as they are made to appear, the trustee could not be held chargeable with misconduct in the discharge of his office or the management of the trust property, is concurred in by the Court.
    Appeal from Wayne. (Gartner, J.) Argued February 13, 1894. Decided April 10, 1894.
    Petition by Alexander McVittie for his discharge as trustee for defendants under the will „of Gordon Campbell, deceased, and for the settlement of his accounts. Defendants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      William H. Wells (George W. Radford, of counsel), for petitioner.

      Edwin F. Qonely and Orla B. Taylor (F,. A. BaTcer, of counsel), for defendants.
   Hooker, J.

One Gordon Campbell died leaving a will, by the. terms of which John Owen was appointed trustee 'to manage the property of the estate until testator's youngest child should reach the age of 21 years. Subsequently, Owen filed a bill in chancery, tendering his resignation, and asking that he be discharged. Such order was made, and Alexander McVittie and William J. Gray were appointed trustees in his place. At this time most of testator’s children had attained their majority. The youngest did so on May 11, 1891. The estate was large,' amounting to $200,-000 or more, and a part of it consisted of 2,400 shares of the stock of the Detroit Dry-Dock Company, a concern in which both Owen and McVittie held stock; the latter being the manager, and the former a director. On January 21, 1887, McVittie and Gray, with the consent of some of the Campbell heirs, sold the 2,400 shares of stock to James McMillan; and on May 11, 1891, the estate was distributed by Gray (McVittie being in California), who took a receipt from the Campbell heirs embodying an inventory of the property on hand, and the following:

ffWe hereby acknowledge the receipt from Alexander McVittie and William J. Gray, trustees of the estate of Gordon Campbell, deceased, the securities above described; the trust having terminated upon the majority this day of the youngest child of Gordon Campbell, and the children procuring a release of the trustees by Mary Campbell and Ann Campbell.
Detroit, May 11, 1891.’’

On June 16, 1891, McVittie filed a petition in the circuit court, in chancery, praying for his discharge. An answer was filed by the Campbells opposing such discharge, alleging fraud by McVittie in the sale of the dry-dock stock, and asking a decree against him for a large sum on account thereof.

The testimony taken shows that the concern had been in existence for quite a long period, and had, in the main, been successful; large dividends having been declared some years, while others had passed without any. It had not escaped embarrassment, however; a strike having been inaugurated early in 1886, which was not satisfactorily adjusted until late in the year, and brisk competition having arisen in the building of vessels. As late as October, 1886, some stock changed hands at par, and one stockholder asked McYittie to find him a purchaser for his stock at $30 a share. Another offered him a commission of $1 a share if he would sell his stock at $28 per share. Frank E. Kirby, the master mechanic, who had long been with the company, was anxious to get out of the concern, and there were indications of unrest and dissatisfaction on the part of others. Again, there was a suspicion that one Darling, who was the largest stockholder, might desire to obtain a controlling interest; and the feeling was shared by most of the members that this would be disastrous, and would depreciate the stock. A proposition was discussed, looking to the sale of a majority of the stock to James McMillan, and a number of the stockholders consented to let their stock go to him at that price, viz., $30 per share. They were as follows: Owen, 2,704 shares; Peck, 1,100 shares; McYittie, 800 shares; Frank E. Kirby, 1,068 shares; Campbell heirs, 2,400 shares; total, 8,072. The offer was made to Mr. McMillan, who, after the lapse of some weeks, declined it, but subsequently accepted the offer as to the Campbell stock; and it was assigned to him, and paid for. Before he would purchase this, he required an agreement from Kirby and McYittie that they would remain with the company. Subsequently, at his suggestion, McVittie bought the 1,100 shares belonging to Peck at $30 per share, the money to pay for the same being loaned him by the company. An agreement was then made by McMillan, Owen, McYittie, and Kirby, with a view to preventing the concern from getting into unfriendly hands, and business was successfully prosecuted. Large orders for vessels were given to the company by concerns with which Mr. McMillan was connected, through his influence, and the business proved very profitable. Two or three years later the stock was contracted to an English syndicate at $60 a share, but they failed to take it; and it was then sold at that price to the present owners, of whom Mr. McMillan is one. This was in March, 1890. McVittie’s salary was increased from $5,000 to $10,000 per year soon after the sale of the Campbell stock.

From these circumstances the defendants argue that they were made the victims of a scheme by Mr. McVittie to sell their stock for less than its value, thereby benefiting himself (1) by a large increase in salary; (2) by enabling him to make a large profit upon his stock, and that subsequently purchased of Peck. It is argued that McVittie worked upon the fears of the Campbell heirs and others by portraying the dangerous consequences of control by Darling, when at that time he had the option of purchasing the 1,100 shares belonging to Peck, by the purchase •of which he could have prevented Darling’s control; that he asked secrecy, and required a hasty decision by defendants; that he pretended that' he and .several others were going to sell to McMillan, when such was not the intention; and that he did not inform the defendants or his ■cotrustee, Gray, of the fact that McMillan had concluded not to purchase his and other stock, but allowed them to .sell the estate’s stock in ignorance of that fact; and, further, that he represented the price obtained to be a good one, when, as a fact, it was then worth, and could have been sold for, much more, viz., $37.50 per share.

From the testimony, we reach the conclusion that the desire of Peck and Kirby to sell their stock was Iona fide, and that McVittie may well have been disturbed at the thought of such sale, and the withdrawal of Kirby from active participation in the management of the affairs of the company. At the same time, Owen was willing to sell for $30; and it is a significant fact that no one cared to buy, unless, perchance, it was Darling, who was a speculator, and whom no other stockholder wanted to see in control. There was an ominous unanimity on the part of the stockholders upon this subject. Again, McYittie did not avail himself of the opportunity to make $3,300 by a^ purchase of Peck’s 1,100 shares at $27 per share, which profit, according to the claim of defendants’ counsel that the stock was worth $37.50, would have amounted to $11,550. This was not stock which was quoted upon the market, with a value. Such sales as had been made were at par. It was offered in large blocks at $28 and $30; and that, too, by the men longest connected with, and most essential to the welfare of, the company. In short, those having the best opportunity to j'udge were concerned about it to an extent that made them desire to get out of the company. McYittie’s concern was a double one: First, he had his personal interest to care for; second, he was trustee with another for an estate holding three times as much stock as he possessed, and it was his duty to be diligent in caring for such interest. On the one hand, he had no right to use corruptly the property of the estate for the advancement of his own interests, or use it for speculative purposes. On the other hand, he would not be excused if he neglected to manage prudently the property of his cestids que trwstent. Had McYittie looked after his own interest, by merely selling his own stock, leaying the estate stock to- suffer from the abandonment of the concern by Kirby and himself, these defendants would have complained; and had Mc-Yittie and others sold a maj'ority of the stock to McMillan or a syndicate, without trying also to sell that of the estate, defendants would probably have been dissatisfied, if loss resulted to them. As it is, they waited these many years, until success has attended the enterprise,, and now ask the profits, without having carried any of the risks. McYittie had a right to look after his own interests, first by offering his stock to McMillan, so long as it was done in good faith. He had a right to do the next best thing when he could not sell it, viz., to remain with the concern, and aid in building it up. We think that the claim of fraud is not proved, and that, as matters then stood, it was prudent management to sell the Campbell stock, notwithstanding the fact that the business had latent possibilities under, another control. But for this change, which appears to have been the only one possible, there is no reason to think that the stock would have increased in value; and we think the evidence clearly establishes the fact that $30 was its reasonable market value at the time. We are satisfied that the fears of Darling were general and spontaneous, and honestly held by McVittie, as well as by the Campbells and Gray, who were asked to, and did, investigate the question of the condition and value of the stock, and the wisdom of the proposed transfer to McMillan. There was nothing in "the request for an early decision. McVittie wanted to make an offer, and may have thought delay likely to endanger the project. The matter hung fire for several weeks before acceptance, and the offer could have been withdrawn, had either Gray or the Campbells changed their minds about it. The injunction of secrecy as to the proposed deal may have-been a wise one, and it should not be construed to mean that the parties should not inform themselves regarding the advisability of selling their stock at $30. We have no-doubt of the good faith of -the statement by McVittie that he expected to sell his stock to McMillan, and the evidence shows no effort at concealment when the proposition was changed. We therefore concur in the view expressed by the circuit judge in his finding filed in the case, that. after a most careful review of the entire testimony in the case, under the facts as they are made to appear, and which are, as a matter of fact, not disputed, Mr„ McYittie could not be held chargeable with misconduct in the discharge of his office, or the management of the trust property.”

The decree below will be affirmed, with costs.

The other Justices concurred.