text:
    WILLIAMS v. McKEAND.

    Wills — Residuary Clause — Enumeration oe Residue — Lapsed Legacies.
    Testator, after making several specific bequests, devised and bequeathed to a son “all the residue of my real estate and personal property not hereinbefore enumerated, as hereinafter described.” lliien followed specific descriptions of substantially all of testator’s property not included in the bequests to others. Held, that the son was not entitled to take as residuary legatee-any property — such as lapsed legacies —not enumerated in the bequest to him.

      Appeal from Oakland; Smith, J.
    Submitted June 17, 1898.
    Decided March 14, 1899.
    Bill by Julien Williams and Flora Burt, executor and executrix of the last will and testament of Ferdinand Williams, deceased, against Mary McKeand, Ferdinand W. Tilden, Florence Cooper, and Forrest Bradley Wright, for a construction of said will. From a decree for defendants, complainants appeal.
    Affirmed.

      James H. McDonald (A. & S. H. Perry, of counsel), for complainants.

      Bowen, Douglas & Whiting (contending with complainants), for defendants Tilden and Cooper.

      Aug. C. Baldwin (Elliott G. Stevenson, of counsel), for defendant McKeand.

      John Pi. Patterson for defendant Wright.

       Rehearing denied May 23, 1899.

   Montgomery, J.

This bill was filed by the complainants, as executors of the last will and testament of Ferdinand Williams, deceased, late of Oakland county, Mich., to obtain a construction of the will. The estate consists of about $13,400 in cash, of household furniture, arms, stock and utensils on his farm, appraised at $692, and of real estate consisting of his home farm, located in Oakland county, appraised at $5,000, and of real estate (all vacant) located in the city of Detroit, appraised at about $115,000. The will was drawn by the testator, a man of liberal education, but not versed in law. The first clause appoints the complainants executor and executrix. The second makes certain bequests, including a life estate in the home farm, and all stock and tools thereon, to the wife of the testator, on condition that the wife' make and deliver a good and sufficient release of dower on the whole of the residue of the real estate of which the testator should die possessed. These were followed by várious other specific bequests to the children, and then follows a bequest to Julien as follows:

“To my son Julien Williams, his heirs, executors, and assigns, I do give, devise, and bequeath all the residue of my real estate and personal property not hereinbefore enumerated, as hereinafter described. [Here follows a description of lands.] I also give, devise, and bequeath to my son Julien Williams all my real estate in the township of Springwells, county of Wayne, State of Michigan, remaining after the aforesaid bequests, to wit: Lot number twelve (12) in the rear concession of private claim number thirty (30), also lot number thirty-seven (37), also lot number forty-seven (47), in said rear concession of private claim thirty (30), together with the rights, hereditaments, and appurtenances thereto belonging. Also I give to my son Julien my real estate in the county of St. Joseph, State of Michigan, to wit: Thirty-nine (39) acres of land adjacent to the village of Mottville, in said county and State, and also two blocks of lots, and three or four lots over and above said blocks, there pertain pertaining to me. I also give to my said son Julien all the arms of which I may die possessed, including guns, rifles, pistols, revolvers, etcv. Also, I charge my said son Julien to pay out of his proper share, as herein set forth, all my debts and liabilities; also my necessary funeral charges.”

This will was executed November 8,1863. The testator survived until November 12, 1896. He survived his wife, who died April 29, 1892, and his son Saxton Cook Williams, who died February 20, 1893. The will, by its terms, disposed of substantially all the property which the testator had at its date, except the remainder in the farm after the life estate of the wife expired. Subsequently, the estate of the testator increased from $40,000 to about $135,000, which was its value at the time of Mr. Williams’ death. The question which arises for discussion is whether, under the last clause, Julien Williams is entitled to take as residuary legatee the lapsed legacies and property not specifically disposed of, or whether this clause is a specific bequest to him of enumerated property. The learned circuit judge adopted the latter construction, and from his decree complainants appeal.-

The question is not free from difficulty. We are not cited to any cases precisely in point. We are cited to many cases in which a general residuary clause has been held effectual, although followed by enumeration of specific property less than the whole; but in most instances these cases have been determined by the terms of the will, which were held to manifest an intention of naming a residuary legatee.. The rule that such a construction should be given as will, if possible, avoid intestacy, is invoked; also, the rule that the will speaks from the time of the death of the testator; and undoubtedly the intention should be sought with both rules in mind, but neither rule should be so applied as to extend the force of terms which are obviously restricted.. Gold v. Judson, 21 Conn. 622. The will in question exhibits on its face an intention to specifically describe the property which the testator intended to give to each beneficiary. The fact that all the real estate was carefully described indicates this; but what is more persuasive is that, when the bequest to Julien is reached, the first reference is to such property as has not been already enumerated, showing that the testator had before him a list of all his property, or, at least, had it in mind. Having disposed of certain portions, he now proceeds to deal with what was remaining; and the conclusion is to our minds inevitable that he is attempting to deal, not with an uncertain holding, and that he did not have in mind after-acquired property, but he is still writing with.the inventory before him. “All the residue of my real estate and personal property.” That reference is to the definite property which he has in mind, and has started out to dispose of. He describes it, therefore, by excluding that which has been before enumerated, and describing specifically that which he intends to grant to Julien. The words which he employs are words of limitation and restriction, and we think should be so construed. While, as before stated, no case “on all fours” is cited, we think the following cases give support to the view here expressed: Quinn v. Hardenbrook, 54 N. Y. 83; Springett v. Jenings, 6 Ch. App. 333; Wheeler v. Brewster, 68 Conn. 177.

In Kedfield on Wills, in a note to page 110 of volume 2,. the decision of the master of the rolls, Sir John Eomilly, in Be Kendalls’ Trust, 14 Beav. 608, is quoted, as follows: “Asa general rule, I should consider that where a testator expresses that he gives to A. everything he dies possessed of, and afterwards enumerates what it is that he intends to give, (the bequest would be confined to the specific enumeration;” and the learned author adds: “This, as it

seems to us, brings this class of exceptions to one very intelligible point, and almost the only one to be extracted from the cases. How extensive its application may be is more questionable.” If this .test be applied to this case, we find that the construction contended for by the appellees must be adopted. Indeed, the case is stronger for the appellees than that put by the master of the rolls, in the language quoted; for in the present case the general words do not in terms extend to any other than the property owned at the time of the execution of the will, and it is as clear as language can make the intent that there is- an attempt to enumerate what it is that the testator intends to give. This intention is not manifested alone by the fact of the enumeration (as was the fact in many of the cases cited by appellants), but is made manifest by the words which precede the enumeration, “ as hereinafter described.”

The decree of the circuit court accords with the construction which we have given the will, and will be affirmed.

The other Justices concurred.

       Upon this point counsel cited King v. George, 36 L. T. N. S. 759; Cambridge v, Rous, 8 Ves. 26; In re Goodyar’s Goods, 1 Swab. & T. 127, 4 Jur. N. S. 1243; Bridges v. Bridges, 8 Vin. Abr. 295; Kendall v. Kendall, 4 Russ. 360; Dean v. Gibson, L. R. 3 Eq. 713; Fisher v. Hepburn, 14 Beav. 626; De Trafford v. Tempest, 21 Beav. 564; Swinfen v. Swinfen,_ 29 Beav. 207; Nugee v. Chapman, Id. 290; Hodgson v. Jex, 2 Ch. Div. 122; Chapman v. Chapman, 4 Ch. Div. 800; In re Champion, 1 Busb. Eq. 246; Clark v. Preston, 2 La. Ann. 580; Burnside’s Succession, 35 La. Ann. 708; In re Miner’s Will, 72 Hun, 568, 146 N. Y. 121; Floyd v. Carow, 88 N. Y. 560; Hardenbergh v. Ray, 151 U. S. 112; Martin v. Smith, 124 Mass. 111; Stout v. Stout, 44 N. J. Eq. 479; Le Rougetel v. Mann, 63 N. H. 472.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    BEATH v. RAPID RAILWAY CO.
    1. Personal Injuries — Declaration—Averment of Damages— Mental Suffering — Postponement of Marriage — Evidence.
    Plaintiff in an action for personal injuries is not entitled to damages for mental suffering occasioned by the postponement of her marriage on account of her injuries, where the declaration contains only a general averment of mental suffering, anxiety, and suspense.
    2. Same.
    Nor is plaintiff entitled in such case to have the circumstance considered by the jury in fixing the damages under the general averment, though submitted under instructions that it is not to be deemed, “independently, an element of damage.”
    3. Same — Declarations of Pain — Res Gest.®.
    Testimony concerning manifestations and declarations of present pain and suffering, by a witness who observed' them, is admissible, in an action-for personal injuries, as part of the res gestos, although it relates to a period some length of time after the accident occasioning the injuries.
    4. Same — Damages—Shame and Mortification.
    In an action for personal injuries, shame and mortification suffered by plaintiff from being obliged to use crutches as a result of the injuries sustained is a proper element of damages, where the declaration avers mental as well as physical suffering.
    5. Same.
    Under a declaration alleging injury to the hip, hip joint, pelvis, and thigh, a resulting disease of the sciatic nerve may be shown.
    Error to Wayne; Lillibridge, J.
    Submitted January 4, 1899.
    Decided March 14, 1899.
    Case by Rebecca C. Beath against the Rapid Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Fred H. Warren, for appellee.
   Long, J.

Plaintiff was a passenger on one of defendant’s cars, and was seriously injured in a collision. On the trial in the court below, the defendant did not deny liability for the actual damages sustained. The jury returned a verdict for $4,600. Defendant brings error.

The plaintiff was a single woman, and it is alleged that the court erred in admitting testimony showing that she was engaged to be married, and that the marriage was postponed in consequence of the injury, and also in charging the jury that they might consider the fact of plaintiff’s marriage engagement, and the postponement of the same, as an element of damages, as bearing upon her mental strain and anxiety, as such damages were not counted upon in the declaration. There was no averment in the declaration of this character. While the plaintiff was on the witness stand as a witness in her own behalf, and after she had detailed her injuries in full, she was asked:

“ I wish you would tell the jury what the effect of all this was upon your mind, — how it affected you. * * *
“A. I cannot tell. I know that it worried me considerably, and I was totally discouraged. I had plans made for the future, and these things had to be postponed. I was constantly getting worse, and didn’t see any hopes for the future at all.
“Q. Were you engaged to be married ? * * *
“A. I had made some preparations for that event.
* X *
“Q. I will ask you whether that had any influence upon your mental condition, and getting discouraged ?
“A. Yes, sir.”

The question was then asked whether the marriage had been put off, and why it was put off, The question why the marriage was put off was withdrawn. The court charged the jury upon the subject of damages as follows:

“Now, the elements which you are to consider are several. In estimating the amount which you will award the plaintiff, you are to take into consideration the following elements: She is entitled to recover, if at all, for her fright and shock suffered at the time of the collision; for pain and suffering and personal inconvenience and sickness she has endured; for pain and suffering she has endured by reason of the surgical appliances which it became necessary for her to use and wear in the process of recovery, and the personal inconvenience resulting from the same. You are not only to take into consideration the physical pain and suffering she has endured, but also the mental pain and suffering, anxiety, and suspense which you believe she has passed through, and the nervous prostration which you believe she has passed through, as a result of the inj ury she has received. In this connection, gentlemen, as bearing upon the mental strain and anxiety, you may consider the undisputed fact that this'plaintiff was engaged to be married at the time this injury occurred, and that, as a result of the injuries she received, the marriage had to be postponed. That, gentlemen of the jury, is not, independently, an element of damage, but an element for you to consider as bearing upon the mental strain and anxiety and suspense which she was under at the time of the injury and afterwards. You may also consider the shame and mortification which she has suffered by reason of being obliged to use crutches, or a crutch and cane, and also the personal inconvenience arising from such use. Also, you may consider the extent to which she was compelled to deny herself social pleasures and enjoyments, and to forego participation -in the activities of life, which she had been accustomed to enjoy before the injury. You should also consider the question whether this injury is liable to be permanent, and in making up your verdict, if you believe she has not recovered, and that she will continue to suffer from these injuries in the future, you should award her such sum as in your judgment will compensate her for the bodily and mental pain and suffering and inconvenience which she will be obliged to endure hereafter. ”

The court was in error in permitting this testimony, and in stating to the jury that they might consider, as bearing upon plaintiff’s mental strain and anxiety, the fact that she was engaged to be married, and that, as a result of the injuries received, the marriage had to be postponed. These facts were not counted upon in the declaration, and only such damages were recoverable in the action as necessarily flowed from the injury. This rule in negligence cases is well settled in this State and elsewhere. In Shaw v. Hoffman, 21 Mich. 158, it was said:

“But the only damages which can be recovered under the general allegation, without stating their particular nature, and how they arose, are those which the law implies or presumes from the acts or matters set forth in the declaration as the grounds- of the plaintiff’s claim; and these are such only as necessarily arise from the matters alleged, under the circumstances stated in the declaration.”

As well stated by counsel for defendant:

‘ ‘ The reason of the rule is quite apparent, and its expediency cannot be doubted. A defendant can properly be held to anticipate that proof will be offered to establish such results of his wrongful act as necessarily flow from it. A man is presumed to intend the necessary consequences of his act, and he is also presumed to anticipate that he will be held for the necessary consequences of an injury which he inflicts. On the other hand, any result which is not necessary, or which may occur by reason of incidental circumstances which he cannot be presumed to know, he cannot be held, without any notice, to anticipate ■evidence of on the trial. This question is.one of pleading, and is distinct from the question of defendant’s liability. He is liable for all natural and ordinary consequences of his wrongful act, but he is not presumed to know that proof of anything beyond the necessary consequences of the wrongful act will be offered against him.”

It is clear that the postponement of a particular marriage engagement existing between the plaintiff and a third person is not such a circumstance as would necessarily be the result of a personal injury. The general rule is that all damages which do not flow necessarily from the wrongful act must be pleaded specially.

In Hopkins v. Atlantic, etc., Railroad, 36 N. H. 9 (72 Am. Dec. 287), the court held that the expenses of nursing could be recovered as a necessary consequence of a wrongful injury, although they had not been specially pleaded. The court said:

“They are not special damages, in the sense of that term as it is used in the law of pleading and evidence. They are not caused by any incidental fact, or by the peculiar situation and circumstances of the party, but are the natural and uniform effects of the injury itself.”

In Gulf, etc., R. Co. v. Hurley, 74 Tex. 593, it was held that where the plaintiff had been ejected from a train, in the night-time, at some distance from a city, he could not, on the trial, prove the fact that he was endeavoring to reach the .sick-bed of his child, for the purpose of enhancing his damages for mental anxiety and suffering, of which there was no allegation in the pleadings. It was said:

.“When, for the purpose of explaining the existence of mental distress, or of enhancing the amount of damages by enlarging its degree, it is intended to offer any evidence beyond the trespass or act of physical violence complained of, a proper predicate in the pleadings must be laid.”

The general rule as to special damages is laid down in accordance with these cases in Brink v. Freoff, 44 Mich. 69; Joslin v. Ice Co., 50 Mich. 516 (45 Am. Rep. 54); Silsby v. Car Co., 95 Mich. 204.

Counsel for plaintiff admits that the cases cited tend to 'support the proposition that damages which are not the necessary consequences of the injurious act complained of are not recoverable, unless specially alleged in the declaration; but he alleges that this rule was not violated in the present case, because he says no such damages were asked or allowed. His contention is that the plaintiff is entitled to recover damages for mental suffering, anxiety, and suspense; that all these are alleged in the declaration; and that the only question which confronts the court is whether it is necessary to allege each separate circumstance or thing which went to make up the whole sum of mental pain, anxiety, and suspense, or whether a general allegation is sufficient to admit proof of the various elements affecting her mental condition. It is also asserted that the jury were not allowed to speculate upon the testimony, but were told that they must not consider it as an independent element of damages, but only as bearing upon the mental strain, anxiety, and suspense which the plaintiff was under at the time of the injury and after-wards.

This contention of counsel for plaintiff cannot be .sustained. The court very plainly directed the jury that they might consider the undisputed fact that the plaintiff was engaged to be married at the time the injury occurred, and that, as a result of the injury, the marriage had to be postponed, ns these facts had a bearing upon the mental strain and anxiety of the plaintiff. The jury must have understood from this charge that the postponement of the marriage might be taken into consideration in fixing the damages which plaintiff sustained, notwithstanding the fact that no such claim was made in the declaration. We find no case which sustains this charge, but, on the con-. trary, the law is settled the other way. Just what the court meant by saying that it was not an independent element of damages, we are unable to ascertain, unless it was meant that the jury, in fixing the damages for mental pain and anguish, might take the postponement of the marriage into account; and that is undoubtedly what the court intended that the jury should consider.

It is also contended that the court erred in permitting proofs of plaintiff’s Condition by her manifestations and complaints a length of time after the accident. We think this question need not be discussed. The testimony so given was not hearsay, or a narration of past conditions, but simply showed the manifestations and declarations of present pain and suffering, and related to facts which fell under the observation of the witnesses themselves, and therefore was a part of the res gestee.

It is further contended that the court was in error in charging the jury that they might consider the shame and mortification which the plaintiff had suffered by being obliged to use crutches, or a crutch and cane. We think there was no error in this part of the charge. It was one of the elements of damages which might naturally flow from the injury. The plaintiff was not confined in her recovery to damages sustained by reason of physical pain and anguish, suffered, but had the right to recover for the mental pain and anxiety she was compelled to undergo by reason of the injuries sustained. If she was compelled to use crutches, or a crutch and cane, that fact was a matter which the jury should take into consideration. While the precise question has not been before this court in the former cases, yet the rules laid down in Friend v. Dunks, 37 Mich. 30, Ross v. Leggett, 61 Mich. 445 (1 Am. St. Rep. 608), and Welch v. Ware, 32 Mich; 84, seem to settle the point in controversy against the defendant.

But one more question need be discussed. It is said that the court was in error in refusing to strike out all testimony in relation to the disease of the sciatic nerve. We think not. The point is settled in Montgomery v. Railway Co., 103 Mich. 46..

For the error pointed out, the case must be reversed, and a new trial granted.

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

       The declaration contained an averment of “a serious and permanent injury to plaintiff’s right hip, hip joint, pelvis, and thigh.”


author: LONG, J.

text:
    CONELY v. COLLINS.
    1. Corporations — Managing Agent — Authority—Conveyance of Assets.
    One left in control of the affairs of a corporation, the stockholders holding no meetings and doing nothing concerning the management of the corporate business, can bind the corporation by a conveyance of the assets to a trustee for the benefit of creditors.
    2. Assignments for Benefit of Creditors — Preferences — Chattel Mortgages.
    A conveyance to a trustee of all the property and accounts of a corporation, to be sold and collected by him, and the proceeds applied, first, to the payment of certain debts in order, as specified in a schedule attached, second, to the payment of a stated compensation to the trustee, the balance, if any, to be turned back to the company, is void for the preferences created, since it constitutes, not a mortgage, but an assignment for the benefit of creditors.
    Error to Wayne; Carpenter, J.
    Submitted January 6, 1899.
    Decided March 14, 1899.
    Replevin by Clarence Conely and another against Charles P. Collins and another. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Reversed.

      Keena & Lightner, for appellants.

      Hcmg, Yerkes & Duffie (John D. Gonely, of counsel), for appellees.
   LONG, J.

This action of replevin was brought in the Wayne circuit court, and about $300 worth of lumber was taken under the writ. Plaintiffs had verdict and judgment by direction of the court. Defendants bring error.

It appears that in 1894 one Gilbert Hathaway executed, in behalf of the Mascotte Lumber Company, a conveyance of that company’s stock in trade, consisting mostly of lumber, to Thomas H. Lynch, upon certain conditions therein named, which will be spoken of more at large, and which conveyance empowered Lynch to sell the property and pay certain debts, according to a schedule attached. After Lynch had paid part of these debts, he sold the entire remaining stock, except a portion that was claimed by Salliotte & Ferguson, to the plaintiffs. Under this sale an indebtedness due to the plaintiffs was canceled, and their note given for the balance. Very shortly after, the defendants in this suit attached the stock thus transferred to the plaintiffs, and took it into possession. Thereupon this suit in replevin was brought, and the property taken by plaintiffs.

1. It was contended by the defendants below, and is contended here, that the conveyance executed by Hathaway was illegal, and transferred nothing, for the reason that Hathaway, as shown by the evidence in the case, had no authority to execute it. The court below, in passing upon this question, said: “To determine what Hathaway’s authority was, you should look rather at what he did by the assent of the stockholders, than by what he called himself.” It. appears that the stockholders of the Mascotte Lumber Company were Sarah V. Bishop, Susan Sage, Carrie F. Schwer, and John C. Hartz. Sarah V. Bishop was Hathaway’s aunt; Susan Sage, his grandmother; and Carrie F. Schwer became his wife. John C. Hartz was second cousin to Carrie F. Schwer. No meetings of the stockholders of the company were held, and apparently the business was left with Hathaway to manage and control. None of the stockholders did anything concerning the management of the business. Hathaway employed Lynch to assist him, and exercised all the power of management of the business in every particular, and presumably so by the consent of the stockholders. He continued to exercise such authority up to the time the transfer was made, June 22, 1894. He had as much power in the management of the affairs of the company as had George T. Smith in the case of Preston Nat. Bank of Detroit v. George T. Smith Middlings Purifier Co., 84 Mich. 364; and in that case it was held that Smith had the power to execute a mortgage on the assets of the company. This case was followed and approved in Michigan Slate Co. v. Iron Range, etc., R. Co., 101 Mich. 14. The court below was not in error in holding that Hathaway had power to execute the conveyance.

2. It is claimed that the conveyance was void under the provisions of 2 How. Stat. § 6184, and 3 How. Stat. § 8739, or at least that the question should have been left to the jury to determine whether it was made for the purpose of hindering and defrauding creditors, and therefore void, under the terms of section 6203, 2 How. Stat. The claim is that the conveyance was a voluntary assignment, and that, as it prefers certain of the creditors, it is therefore void as to creditors. We think this contention is correct, and that the court was in error in holding it to be a mere chattel mortgage. The conveyance transfers all the property of the Mascotte Lumber Company to Lynch in trust; he to sell the same, and apply the proceeds to the payment of the indebtedness. He is given power to collect accounts due the company, and use the same in the payment of the debts; the West Bay City Manufacturing Company to be paid first. The trustee is to pay himself $50 per month after the unsecured debts are paid; surplus money or property in his hands to be turned back to the Mascotte Lumber Company or its assigns. In all essential particulars, the conveyance is in the exact form of an assignment for the benefit of creditors. It is therefore void, as it makes preferences. The case falls within Kendall v. Bishop, 76 Mich. 634; Burnham v. Haskins, 79 Mich. 35; Pettibone v. Byrne, 97 Mich. 85; Hill v. Mallory, 112 Mich. 387. The learned court below was of the opinion that the case is ruled by the case of Austin v. First Nat. Bank of Kalamazoo, 100 Mich. 613. There the conveyances were worded as mortgages, and authorized the mortgagee to take possession upon default. They were held not to make an absolute title in the mortgagee. Here Lynch was authorized to take possession and sell the property. The assignment conveyed an absolute title in the property to Lynch.

We need not consider the other assignments of error, as the court should have directed a verdict in favor of the defendants.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    POTTER v. LAPEER CIRCUIT JUDGE.
    Appeals prom Justice’s Court — Unavoidable Delay.
    Where one who had relied upon the assurance of his co-defendant, who was indebted to him, that he would seasonably perfect their appeal from a justice’s judgment by payment of the necessary costs, discovered, on the last day for perfecting such appeals, that his co-defendant had been intentionally misleading him with the purpose of preventing an appeal, and thereupon himself made unsuccessful efforts to find the justice and perfect the appeal in time, he was within 3 How. Stat. § 7005, authorizing the circuit court to grant an appeal after the expiration of the regular time therefor where the party complaining “has been prevented from taking the same by circumstances not under his control.”

      Mandamus by Carrie Potter to compel George W. Smith, circuit judge of Lapeer county, to vacate an order allowing an appeal from justice’s court.
    Submitted January 31, 1899.
    Writ denied March 14, 1899.

      R. L. Campbell, for relator.

      H. W. Smith, for respondent.
   Long, J.

Mandamus is asked to compel the court below to set aside an order allowing an appeal from justice’s court after the lapse of five days. The action was replevin, brought by the relator here against Richard Johnson and Ira R. Dodge. On the trial in justice’s court the plaintiff had judgment. The defendants neglected to perfect an appeal within the five days allowed by statute, and thereafter defendant Johnson made application for the allowance of an appeal, setting up substantially that he was misled by his co-defendant, Dodge; that at this time he was working for said Dodge upon his farm; that Dodge represented that he would appeal said cause; that the affidavit and bond were filed with the justice; that, upon the last day the appeal could be perfected, he represented to Johnson that he was going to the office of the justice to pay the costs, as he was at that time indebted to Johnson; that Dodge did go to Imlay City, where the justice resided, and remained until very late in the evening, and when he returned he informed Johnson that he did not appeal the case; that Johnson immediately went to Imlay City, and called at the justice’s office and at his residence, but was unable to find said justice, or to arouse any one at his house. Johnson’s affidavit further states that he “is informed and believes to be true that said Ira R. Dodge made these representations in order to prevent this deponent from appealing this case.” There was no counter showing, and, upon the showing made, the court below determined that Johnson was prevented from taking his said appeal by circumstances not under his control.

Section 7005, 2 How. Stat., provides:

“Appeals may be authorized by the circuit court or by the judge at chambers after the expiration of five days, when the party making the appeal has been prevented from taking the same by circumstances not under his control.”

Sickness of the appellant or some member of his family has been held to be such a circumstance. Braastad v. Iron Mining Co., 54 Mich. 258. It has also been held that, where the party desiring to take the appeal has relied upon his attorneys, and they have been honestly mistaken as to the date of an adjournment, so that they did not become aware of the judgment until after it was too late to appeal, the party was prevented from taking an appeal by a circumstance not under his control. Capwell v. Baxter, 58 Mich. 571. What were the circumstances here ? The appeal' had been so far perfected that the necessary bond and affidavit had been filed with the justice, and all that remained was the payment of the necessary costs. Dodge had agreed with Johnson to go to Imlay City, and pay these costs. He was owing Johnson, and Johnson relied upon him to make the payment. Dodge went to Imlay City, and returned without making the payment. At once Johnson attempted to perfect the appeal. He went to Imlay City, but was there too late to find the justice. Dodge was interested equally with Johnson in making the appeal, or at least Johnson had the right to believe he was. When Dodge failed him, he did all in his power to make the appeal within the time allowed by the statute. He was honestly mistaken in the matter; and, within the rule in Capwell v. Baxter, he was prevented from taking the appeal by circumstances not under his control.

The court was not in error, and the writ must be denied, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    ANKETELL v. HAYWARD.
    1. Drains — Order of Determination — Sufficiency of Desorip- ■ tion.
    An order of determination in a drain proceeding contained a description of the line of the proposed drain, which, construed as the center line of the strip to be taken, was definite and certain, otherwise not. Held, sufficient, under 3 'How. Stat. § 174067.
    2. Same — Completion of Unfinished Drain — Taxes—Constitutional Law.
    Act No. 254, Pub. Acts 1897, chap. 6, § 16, which provides that, in case a drain tax is set aside for a cause that does not deprive the commissioner of jurisdiction to construct the improvement, he may begin proceedings anew at the stage where they are correct, is not unconstitutional, although the expense of the commissioner’s mistake has to be borne by the persons benefited by the drain.
    3. Appeal — Supplemental Briefs.
    An objection not mentioned by appellant in his original brief cannot properly be urged as a ground of reversal in a supplemental brief.

      Certiorari by Elizabeth M. M. Anketell and Allen Shelden to review the action of Hiram S. Hayward, county drain commissioner, and Watson Beach, circuit judge, acting as judge of probate, of Sanilac county, in locating and establishing a drain.
    Submitted January 24, 1899.
    Writ dismissed March 14, 1899.

      John H. Farley and William H. Aitkin, for plaintiffs in certiorari.

      William H. Burgess and Babcock & Meredith, for defendants in certiorari.

   Hooker, J.

The plaintiffs in certiorari are owners in severalty of lands traversed by what is known as the “Dwight Drain,” which was constructed in 1891, and is about five miles long, upon which there are yet some outstanding and unpaid drain orders. At that time "William Thompson owned the lands now owned by plaintiff Shelden, and another 40-acre parcel, being 80 acres in all, which was assessed for benefits as one parcel. It is claimed, and, so far as we "have discovered, not denied, that plaintiff Anketell acquired title to the lands now owned by her since the drain was constructed. Thompson paid the tax upon one 40-acre parcel, the other being sold to Shelden.. Shelden and Anketell contested the tax for this drain, and it was declared void. The entry shows this to have been upon the ground that the “probate citation was not directed to the owners of the land, though well known.” This was at the hearing of the auditor general’s petition in 1893. They were reassessed, and again set aside in 1896. The remainder of the tax upon the entire drain was paid, and the matter rested until these proceedings were begun. The drain was laid out and constructed by a former drain commissioner, named McKenzie. In 1898 his successor, one of the defendants, made an application to the probate court for the appointment of special commissioners for the purpose of condemning the right of way across plaintiffs’ lands. The plaintiffs appeared in answer to a citation to show cause, and objected to the appointment, for the reason, among others,'—

“ That the original application for the drain * * * and the first order of determination * * * contain no sufficient description of said drain, or the quantity of land proposed to be taken or occupied for the construction of said drain, or the commencement, route, or terminus thereof; that said application and said order do not describe the land needed for the construction of said drain, nor the center line thereof, nor the width of land required.”

The circuit judge, acting as probate judge, overruled . the objection, and appointed special commissioners. Plaintiffs took no further part in the proceedings, and, after the drain commissioner had made and filed his final order of determination establishing the drain, they removed the proceedings to this court by certiorari.

This proceeding is based upon a statute, and but for this statute would be unauthorized and of no effect. It must conform to the statute, both as to the circumstances under . which it was resorted to and the procedure. The statute (Pub. Acts 1897, No. 254, chap. 6, § 16) reads as follows:

“In case any drain tax heretofore or to be hereafter assessed shall be set aside except for causes that would deprive the county drain commissioner of jurisdiction to construct the drain, the commissioner may begin procpedings anew at the stage where they shall be correct.”

The original proceedings to lay out said drain were taken under the act of 1885, and we are of the opinion that .the description of the drain was sufficiently specific to comply with the law. See 3 How. Stat. § 174067; Kinnie v. Bare, 68 Mich. 625.

The first order of determination contained a description of the line of the drain. It also contained a table showing the numbers of the stations, the depth, width of surface excavation, width of bottom, and width of ground for deposition of earth. If the line of the drain can be said to mean the center line of the strip to be taken, the description is definite and certain; if it cannot be, there is no way of determining what land was intended. The statute prescribes what the record shall show as his determination ; and, if the line is treated as the center of the strip, the requirements of the statute constitute a perfect and certain description, while, if we do not treat the line as the center line of the tract, we must say that something more than what is required by the statute is essential to the validity of the order of determination We are of the opinion that the former is the reasonable construction, and, therefore, that this order was valid, and it was not necessary for the commissioner to make a new first order of determination.

In a supplemental brief, counsel attempted to raise the question of the constitutionality of the law; asserting that it is not within the power o£ the legislature to subject persons to assessment to pay for the mistakes of the commissioner in the first proceedings. If it was intended to raise this question, it should have been mentioned in the original brief. We think, however, that it is not meritorious. It is competent for the legislature to provide for the completion of a partly-finished drain, and point out a way for the correction of errors, so as to make it possible to complete it, although the expense is increased thereby. The increased expense must be paid by those who are benefited by the drain, as a-part of its cost. Brady v. Hayward, 114 Mich. 326; Hauser v. Burbank, 117 Mich. 463.

The writ is dismissed, with costs.

The other Justices concurred.


text:
    POUND v. ATTORNEY GENERAL.
    1. Public Officers — Quo Warranto — Institution of Proceedings — Statutes—Presumption of Validity.

      It would seem that where the aid of the prosecuting officer of the State or county is invoked to attack one’s right to hold office under a statute claimed to be unconstitutional, and it appears that the petitioners have no personal interest in the matter, the officer might properly base a refusal of the request upon the presumption of the validity of the law, leaving the question unsettled until some person having a private interest sufficient to move the court to grant him the right to prosecute should seek its determination.
    3. Same — Attorney General and Prosecuting Attorney — Jurisdiction.
    2 How. Stat. § 8662, provides that informations in the nature of quo warranto may be filed in the circuit court, and that all powers conferred on the judges of the Supreme Court in regard thereto shall be possessed by the circuit judges, provided that no such information shall be allowed by the circuit court against any State officer; also, that the information may be filed by the prosecuting attorney of the proper county, on his own relation, or that of any citizen of the county, without leave of court. Held, that, where the dispute is over a county office, an application to have an information filed should be made to the prosecuting attorney, and not to the attorney general.

      Mandamus by James H. Pound and others to compel Horace M. Oren, attorney general, to file an information in the nature of a quo warranto.

    Submitted February 10, 1899.
    Writ denied March 14, 1899.

      James H. Pound, for relators.

      Horace M. Oren, Attorney General ( O. D. Joslyn and T. T. Leete, Jr., of counsel), for respondent.
   Hooker, J.

The relators have asked a mandamus to compel the attorney general to file an information in the nature of a quo warranto to -try the right of Alex. I. McLeod to the office of treasurer of Wayne county. The material facts are undisputed, and are, in substance, as follows: At the fall election in 1894 Mr. McLeod was elected treasurer for a term of two years, to commence January 1,1895. The legislature, at its 1895 session, passed a law (Act No. 394, Local Acts 1895) changing the time for the commencement of the term of office of the treasurer of Wayne county thereafter from January 1st to July 1st next succeeding his election, and providing that the term of the incumbent should end on the 30th day of June, 1897. McLeod subsequently filed his official bond to cover the period between January 1 and July 1, 1897. At the fall election in 1896 Mr. McLeod was re-elected treasurer, and received his certificate of election. At the fall election of 1898 Mr. Buhrer, who during the incumbency of Mr. McLeod was deputy treasurer, was elected to the office of treasurer, over Mr. Licht, one of the petitioners to the attorney general. Since January 1 1899, Mr McLeod has continued to hold the office, and proposes to continue to hold it until July 1, 1899. Mr. Buhrer conceded his right to so hold said office. Licht and two others then filed a petition with the attorney general, requesting him to institute proceedings in the nature of quo warranto to oust McLeod from the office, and upon a hearing, at which both parties were represented, that officer refused compliance ; and, as already stated, the case is now before us on an application to compel the attorney general to act. The petitioners claim that the law changing the time for the beginning of the official term is unconstitutional. This is denied by respondent; and the further point is made on his behalf that his action in the matter is discretionary,. and that these petitioners have no such interest in the matter as to give them the right to have his discretion reviewed. His answer states that he gave the parties a hearing by counsel, and came to the conclusion that the act is not unconstitutional, and therefore declined to allow the use of his name.

The office in question is a county office, and the circuit court has jurisdiction to hear such cases. 2 How. Stat. § 8662. And this court should not be asked to entertain them, unless the case is quite exceptional. Coon v. Attorney General, 42 Mich. 65. It may be that it was the expectation that the attorney general would commence such proceeding in the circuit. This statute permits a citizen to file an information, without the intervention of a public officer, upon leave of court; but this provision has been held to have been intended for the benefit of persons making claim to the office, and others could not be allowed to institute proceedings without the aid of the prosecuting officer of the State or county. Vrooman v. Michie, 69 Mich. 42. The relators’ standing must, then, depend upon their right to compel the proper officer to attack the title of McLeod to the office. The case of Lamoreaux v. Attorney General, 89 Mich. 151, has determined that' citizens may bring mandamus to compel the proper officer to commence proceedings to oust an usurper, and that the courts have jurisdiction to review his discretion. It does not follow that the court will compel proceedings in every case where such an application is made, though the right of the matter is in doubt. On the contrary, the case last cited turns on the point that the action of the officer should not be disturbed in a doubtful case. The court said:

“Under the holdings of this court in Vrooman v. Michie, 69 Mich. 42, the relator has not made out such a case.as warrants the interference of this court with the action of the attorney general. The attorney general ought not to institute proceedings by quo warranto, upon the relation of a citizen having no claim of title to the office, unless the showing is such as to afford reasonable grounds for the belief that the incumbent of the office is an intruder therein, or one not competent, under the Constitution, to hold it. We are satisfied that not only is there no ‘ precise and positive showing ’ such as the law requires, but that the evidence produced in support of the relator’s claim, taken in connection with the counter-affidavits, does not afford any reasonable ground for the belief that such proceedings would result in the determination that John McQueen is an alien.”

And we doubt the propriety of compelling such proceedings where based alone upon advice to the relator that the law under which the incumbent holds is unconstitutional. The strong presumption is that all laws are constitutional. It would seem to be the duty of the attorney general and the prosecuting officers to uphold the laws, and try to enforce them, rather than to attack them by all available methods; and the practice of permitting moot cases, where no private right is involved, and no public interest of importance is to be subserved, deserves no encouragement. And we are of the opinion that the prosecuting officer might properly place his refusal upon the presumption of the validity of the law, leaving the question unsettled until a case where a person having a private interest sufficient to move the court to grant him the right to prosecute should arise. But we do not care to place the decision of this case upon this ground.

The application in this case was to the attorney general. The office in 'dispute is not a State office, and the questions before us are within the jurisdiction of the circuit court. We do not discover that any application has been made to the prosecuting attorney, though the statute cited clearly indicates that, in cases where other than State officials are involved, he is the proper officer to move; and, if application were shown to have been made to him, and refused, mandamus would lie to compel him to act,-as well as against the attorney general, and it might issue from the circuit court. If the attorney general is to be compelled to deal with applications to proceed against county treasurers, he is equally subject to applications involving the title to township, school-district, highway, and municipal offices. We think the design of section 8662 is manifest, and that local offices are within the jurisdiction of local courts and officers, and that the principal law officer of the State may require parties to seek relief through such channels. It would doubtless be a convenience to the parties if this court would take original jurisdiction in this case, and so, doubtless, it would be in any case; and though we might be disposed to determine all of the questions raised, now that they are here, it would be but an illy-concealed invitation to seek similar favors. These favors it is not our province to bestow, and we feel that, as a rule, we should devote our attention to the interests of parties who have a right to it. We see little excuse in this case for appealing either to this court or to the attorney general. The remedy, if there is one, is in the circuit court.

The writ will be denied, with costs.

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


text:
    CANADIAN TYPOGRAPH CO. v. MACGURN.
    1. Conditional Sale — Election of Remedies.
    A vendor of goods under a contract reserving title until payment of the purchase price does not, by bringing assumpsit upon the contract, and proceeding to judgment therein, elect his remedy, so as to preclude his resort to replevin.
    2. Judgments — Merger of Cause of Action.
    Whether a foreign judgment, or a judgment in rem, will operate as a merger of the original cause of action, — quaere.
    Error to Wayne; Donovan, J.
    Submitted January 25, 1899.
    Decided March 14, 1899.
    Replevin by the Canadian Typograph Company, Limited, against Foster Macgurn. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Chamberlain & Guise, for appellant.

      Edward McNamara, for appellee.
   Hooker, J.

The defendant, a retailer, bought bicycles from the plaintiff, under a contract which reserved the title in the plaintiff until paid for; and the wheel in question in this action was bought by the defendant subject to the terms of such agreement, and was in the possession of the defendant when replevied. The plaintiff rendered a statement of account to the defendant. It afterwards began an action in assumpsit in a Canadian court, based upon said account, including this bicycle. The summons was served in Detroit, and there was no service in Canada. We infer that the defendant did not appear, and the case went to judgment against him 12 days before this action was begun. It is admitted that the foreign judgment has no extraterritorial force, and also that any of the defendant’s property in Canada may be taken upon execution, and sold to satisfy said judgment. This action of replevin was subsequently commenced as stated, and upon the trial the circuit judge directed the jury to find a verdict for the plaintiff. The defendant has appealed, alleging error upon the refusal to direct a verdict for the defendant.

Counsel contend that, by bringing assumpsit, the plaintiff elected its remedy, and cannot now resort to replevin. The contract binds the defendant to purchase, and provides for a settlement. It reserves the title in the plaintiff until the settlement is fully satisfied. The record shows an account rendered, though it is not clear that an adjustment of accounts was had; but, whether there was or not, the contract reserves title until the same is satisfied. In the case of Fuller v. Byrne, 102 Mich. 461, the court held that the fact that a personal judgment was rendered was not sufficient to pass the title. In that case the contract provides that “the said instrument [a piano] is and shall remain the property of Estey & Camp until each and every of said amounts, and interest thereon, and any judgment rendered thereon, is paid in full. ” The language of the contract in the present case is not the same, but we think that it evinces an intention that the title should not pass until the wheel should be paid for.' Again, if the doctrine of merger can be said to have any application in such cases, it may be doubted whether anything less than a judgment in a case where the plaintiff has a full and complete opportunity to recover his whole demand against his debtor will suffice. Thus, in the case of Toby v. Brown, 11 Ark. 308, it was held that a judgment against a steamboat- — that being a judgment in rem — was not enforceable against the property of the owners if unsatisfied, and could not be pleaded in bar to a subsequent action. Furthermore, it is commonly held that a foreign judgment, unsatisfied, does not merge the original cause of action. 2 Black, Judgm. § 847. But we need not decide this question, as we think the case within the rule of Fuller v. Byrne, supra.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    SUNDERLIN v. BOARD OF SUPERVISORS OF IONIA CO.
    1. Justices op the Peaoe — Statutes—Sufficiency of Title.
    The title of Act No. 108, Pub. Acts 1888 (2 How. Stat. § 7185a), ‘ ‘ An act to define the duties of justices of the peace in certain cases,” sufficiently indicates its provisions, making it unlawful for justices to issue warrants in criminal cases (with certain exceptions) until an order therefor, signed by the prosecuting attorney, is filed with the justice, or security for costs is given.
    2. Same — Jurisdiction—Legislative Regulation — Pees.
    Under Const, art. 6, § 18, providing that justices of the peace “shall have such criminal jurisdiction and perform such duties as shall be prescribed by the legislature,” the legislature has the right to provide for the filing of security for costs, or of an order from the prosecuting attorney, before justices may entertain criminal complaints, and for their reporting all such proceedings to the prosecutor, and to prescribe, as the penalty for neglect or refusal to observe the requirements, the forfeiture of fees.

      Certiorari to Ionia; Davis, J.
    Submitted January 3, 1899.
    Decided March 23, 1899.

      Mandamus by Harry E. Sunderlin, administrator of the estate of Alonzo A. Sunderlin,- deceased, to compel the board of supervisors of ■ Ionia county to allow a bill for services rendered by deceased as a justice of the peace. From an order granting the writ, respondent brings certiorari.

    Reversed.

      V. H. & H. H. Smith and Morse & Locke, for relator.

      John B. Chaddock, for respondent.
   Moore, J.

Harry E. Sunderlin is the administrator of the estate of Alonzo A. Sunderlin, deceased. Alonzo A. Sunderlin was a justice of the peace from July 4, 1896, until his death, February 3, 1898. Forty-seven persons were convicted before him charged with being disorderly, within the meaning of section 1, Act No. 264, Pub. Acts 1889 (3 How. Stat. § 1997a), as amended. At the January session, 1898, of the board of supervisors, he presented his bill for services in these cases to the board of supervisors. His bill was not allowed, because Mr. Sunderlin did not comply with the provisions of 1 How. Stat. §§ 772, 773, and 2 How. Stat. § 7135a. Application was then made to the circuit judge for a writ of mandamus to compel the board of supervisors to allow these fees. The writ was ordered. Certiorari is brought to review this action of the circuit judge.

The record shows that none of the following things were done by the justice of the peace in any of the cases in which he sought to have his fees allowed:

1. No order in writing, signed by the prosecuting attorney of the county of Ionia, had been filed with said justice before issuing his warrant.
2. No security for costs in any of the cases had been filed with the justice before issuing his warrant.
3. No report had been filed with the prosecuting attorney within 10 days after the final determination of the proceedings had before him in these cases, and for which he claimed he was entitled to fees.

Section 7135a, 2 How. Stat. (Act No. 108, Pub. Acts 1883), reads as follows:

“That it shall not be lawful hereafter for justices of the peace to issue warrants in any criminal cases, except in cases not cognizable by justices of the peace, or breach of the peace committed in the presence of the officer making the arrest, until an order in writing allowing the same is filed with such justice, and signed by the prosecuting attorney for the county, or unless security for costs shall have been filed with said justice: Provided, this act shall in no way limit or affect the force of section 11 of Act No. 259 of the Session Laws of 1881, as to security for costs.”

Section 772 requires the justice, within 10 days after the final disposition of any criminal or other proceedings to which the people of this State are a party, or wherein the county may be liable for any costs, to make a report to the prosecuting attorney of the county, and provides in detail what the report shall contain. Section 773 provides, among other things, that, if the justice neglect or refuse to make such report, he shall forfeit all right to any fees for his services in any proceeding where such neglect or refusal occurs.

It is said the first of these sections is unconstitutional, because the title of Act No. 108, Pub. Acts 1883, reads, “An act to define the duties of justices of the peace in certain cases.” It is argued that the phrase “define the duties ” can never be construed, and never has been construed, to mean the prohibition of action on the part of such officers; that the act is unconstitutional, since its object is not set forth in its title; citing People v. Bradley, 36 Mich. 452. This contention is not tenable. The statute does not prohibit the magistrate from acting in all cases, but simply requires that, as to some of them, before he shall act he must do the things required by the statute.

It is urged the magistrate may ignore the provisions of both of these statutes; that he is a constitutional officer (People v. Kent Circuit Judge, 37 Mich. 474),. vested with judicial power by the Constitution (article 6, § 1); and that one in whom judicial power has been vested cannot be deprived of it (Allor v. Board of Auditors of Wayne Co., 43 Mich. 101; People v. Kent Circuit Judge, supra). It is also said that section 7135a was not intended to limit or curtail the jurisdiction of justices of the peace in criminal cases (citing People v. Griswold, 64 Mich. 722), and that, as the magistrate had jurisdiction and performed the services, “all the supervisors can do, by way of adjusting them, is to see that the services have been actually rendered, and that the fees charged are in accordance with the fees established by law for such services;” citing People v. Supervisors of Macomb Co., 3 Mich. 480; People v. Board of Auditors of Wayne Co., 13 Mich. 237; People v. Supervisors of Manistee Co., 26 Mich. 426; People v. Wayne County Treasurer, 25 Mich. 90; Board of Metropolitan Police of Detroit v. Board of Auditors of Wayne Co., 93 Mich. 306.

It is true, a justice of the peace is a constitutional officer with judicial powers. It is well, however, not to overlook article 6, § 18, of the Constitution, which reads:

“In civil cases, justices of the peace shall have exclusive jurisdiction to the amount of one hundred dollars, and concurrent jurisdiction to the amount of three hundred dollars, which may be increased to five hundred dollars, with such exceptions and restrictions as may be provided by law. They shall also have such criminal jurisdiction and perform such duties as shall be prescribed by the legislature.”

This section has been construed in the following cases: Boot v. Mayor, 3 Mich. 433, where it was held it was competent for the legislature to provide that suits against municipalities should not be brought before justices of the peace, even though the amount involved was less than $100. Gurney v. Mayor, etc., of St. Glair, 11 Mich. 202; Goodsell v. Leonard, 23 Mich. 374. In Allor v. Board of Auditors of Wayne Co., 43 Mich. 100 (38 Am. Rep. 159), it is said the power of justices of the peace to try criminal offenders is statutory. In Milroy v. Mining Co., 43 Mich. 231, it is said:

“The Constitution does not prohibit the legislature from giving circuit courts jurisdiction in cases where the amount claimed is less than $100. The Constitution (article 6, § 18) gives to the justices of the peace in civil cases exclusive jurisdiction to the amount of $100, with such exceptions and restrictions as may be provided by law. ”

See, also, Messenger v. Teagan, 106 Mich. 656; Sterling v. Regents of University of Michigan, 110 Mich. 383 (34 L. R. A. 150).

The language of the Constitution is very clear, that magistrates shall have such criminal jurisdiction and perform such duties as shall be prescribed by the legislature. No mention of the fees to be paid to justices of the peace is made in the Constitution. It would doubtless be competent for the legislature to provide their services should be rendered, as they, are in some countries, without pay. It has not seen fit to do so, but has provided the amount of fees which shall be paid and to whom the bills shall be presented. Can the right of the legislature to provide in what criminal cases the magistrate shall entertain a complaint, and in what cases he shall decline to entertain a complaint, be questioned, in view of the broad powers conferred upon the legislature by the Constitution ? May not the legislature, in cases where the people are a party, and the county may have to respond for the costs of the proceedings, prescribé the duties of the magistrate, and provide that, in case of neglect or refusal to perform his duty, he shall not have the fees provided bylaw? We think both of these questions must be answered in the affirmative, and that the plain requirements of the statute cannot be ignored by the magistrate.

The order of the circuit' court is reversed.

Th§ other Justices concurred.

       1 How. Stat. § 2280.


author: Grant, C. J.

text:
      In re O’BRIEN.
    Municipal Corporations — Sidewalk Requirements — Validity.
    Where the common council of a city is by the charter given control of the streets, it may determine of what material and in what manner the sidewalks shall be constructed; and the requirement that within a specified district they shall be of stone is not unreasonable, nor is it an unlawful interference with private property.
    Thomas O’Brien, -being in custody for the violation of a sidewalk ordinance of .the city of Grand Rapids, sued out a writ of habeas corpus.

    Submitted February 7, 1899.
    Petitioner remanded March 23, 1899.

      Charles B. Blair, for petitioner.

      Henry J. FeTker, City Attorney, and Harvey Joslin, Assistant City Attorney, for the city.
   Grant, C. J.

The charter of the city of Grand Rapids confers upon the common council the control of its streets. A street includes not alone the roadbed, but sidewalks. The city’s jurisdiction and control extend over the entire street dedicated to travel on foot as well as travel in vehicles. The common council have the same right to determine of what material and in what manner sidewalks shall be constructed as they have to say of what material and in what manner the roadbed shall be constructed. The common council enacted an ordinance establishing a district in which the sidewalks should be constructed of stone. The "petitioner lived within this district. He insisted on putting down a tar instead of a stone sidewalk, was arrested for the violation of this ordinance, and petitioned this court for a writ of habeas corpus to secure his release.

The position of the petitioner is that this ordinance is unreasonable, and therefore void; that all the law requires is that the sidewalks shall be reasonably safe and fit for public travel, and that he may, therefore, put down a sidewalk of any material he chooses; that the ordinance is unconstitutional as an unlawful interference with the use of his own property. If this contention be true, then the city has no control over its sidewalks except to see that they are reasonably safe for public travel, and the sole question to be presented in any case would be, Is the sidewalk, when constructed, reasonably safe? Walks composed of some material get out of repair and in an unsafe condition more readily than others. A wooden sidewalk requires more constant examination and care than does a stone or cement one. There is no unlawful interference with the property rights of the petitioner. He has no interest in the street except that common to the general public. He may own the fee subject to the public easement, and when the street is vacated the entire title will revert to him; but until.then the municipality has the exclusive control. We are not cited to any authority which holds that the common council, under a charter like that of Grand Rapids, has not the power to determine the character and material of both sidewalks and roadbeds, and direct how they shall be constructed. We think the case of Scribner v. City of Grand Rapids, ante, 188, is conclusive. It was there held that, although the plaintiff had commenced to build a sidewalk of one description, the common council possessed the power to include the locality within the stone-walk district, and compel him to change from one material to another.

The writ is dismissed, and the petitioner remanded to custody.

The other Justices concurred.


text:
    BAKER v. PARKHURST.
    Garnishment — Fraudulent Conveyances —Liability oe GarNISHEE.
    By an arrangement between the parties to an unfiled chattel mortgage and a prospective purchaser of a portion of the property covered thereby, the property to be sold was released from the mortgage, the sale effected, and the purchase price applied upon the mortgage debt. Thereafter the proceeds were garnished by one who had extended credit to the mortgagor in ignorance of the mortgage. Held, that, in view of 8 How. Stat. § 8091, providing that, if any garnishee shall have received and disposed of any property of the principal defendant which was held by a conveyance or title void as to defendant’s creditors, he may be adjudged liable on account thereof, the garnishee was liable, since the mortgage was void as to plaintiff.
    Error to Manistee; McMahon, J.
    Submitted January 6, 1899.
    Decided March 23, 1899.
    Garnishment proceedings by William E. Baker against L. K. Parkhurst, J. W. Parkhurst, and James M. Reed, composing the firm of L. K. Parkhurst & Co., as garnishees of Thomas R. Welsh. Prom a judgment for defendants, plaintiff brings error.
    Reversed.

      Dovel & Smith, for appellant.

      Judkins & Perkins, for appellees.
   Long, J.

The plaintiff resides in Manistee, and is engaged in the lumber business. In April and May, 1897, Welsh, the principal defendant, lived at Reed City, and owned a mill plant, machinery, lumber, etc. During said months he purchased lumber from the plaintiff on credit. He also during this time purchased lumber on credit from the R. G. Peters Salt & Lumber Company. These debts not being paid by Welsh, suits were commenced against him by these firms, and judgments obtained thereon in both cases. Garnishee proceedings were also commenced in both cases against L. K. Parkhurst & Co., who were then engaged in banking and other business at Reed City. The garnishees filed disclosures denying liability. Interrogatories were then filed, served, and answered, and the statutory issues were brought on for trial before the court without a jury. Judgments were rendered in favor of the garnishee defendants in both cases, and, by stipulation, the R. G. Peters Salt & Lumber Company case is to abide the event of the present case.

The court below, at the request of the parties, found the facts and conclusions of law. From the findings, it appears that the bank was owned and controlled by L. K. Parkhurst & Co., of which L. K. Parkhurst was president, J. W. Parkhurst cashier, and James M. Reed a stockholder; that, during the time this lumber was being purchased, Welsh was indebted to L. K. Parkhurst & Co. in the sum of upwards of $15,000, and that during this time L. IL Parkhurst reported for mercantile agencies at Reed City, and among others reported the standing of Welsh, and recommended him as worthy of fair or good credit, and gave him a rating of between $20,000 and $25,-000, and continued to make these reports on Mr. Welsh up to the spring of 1897; that in February, 1897, Welsh was indebted to the garnishee defendants in the sum of $18,000, represented by promissory notes, renewed from time to time; that during that month he sold his residence for $2,500, and applied the proceeds on his indebtedness to L. K. Parkhurst & Co.; that on February 27, 1897, he executed a real-estate mortgage covering all his real estate, and a chattel mortgage covering all his personal property, to the garnishee defendants, to secure the payment of the balance of his indebtedness to them; that, in addition to this, they also held as security certain policies of insurance on the life of Welsh, amounting to $26,000; that, apparently to avoid injuring the credit of Welsh, the chattel mortgage was withheld from file until June 24, 1897, and the real-estate mortgage was given to the register of deeds of the county, with instructions to record it if anything came to his office for record affecting this property, otherwise not to record it; that Welsh remained in possession of the mortgaged property as apparent owner; that during the months of April and May, 1897, while these mortgages were withheld from record, and without knowledge or in.timation of their existence, the plaintiff sold to Welsh considerable'quantities of lumber on credit; that on July 23, 1897, the mill plant, machinery, etc., and everything belonging to the mill, were conveyed, to W. E. Williams, a brother-in-law of Parkhurst, one of the garnishee defendants, by bill of sale, for the sum of $10,000; that this bill of sale was not filed until July 38, 1897, and during this time Welsh remained in possession as the apparent owner; and that the $10,000 on said purchase was paid to the garnishee defendants.

The court further found that:

“Parkhurst & Co. also agreed in this transaction to release the property which Williams had bought from the lien of their mortgage, and hold their claim against the lumber in the mill yard, and such property as was not included in the sale of Welsh to Williams. The balance due Parkhurst & Co. was $5,500, and the lumber and property covered by their mortgage, and not included in the sale to Williams, was not worth that amount. The price paid by Williams for the mill and machinery was a fair price, under all the circumstances. * * * The sale was a bona fide one. * * * It is clear, of course, that there was a perfect understanding between Parkhurst & Co., Welsh, and Williams, during the negotiations which led up to the sale by Welsh to Williams. All knew of, and took into account, the mortgages of Parkhurst & Co. It was understood that the amount which Williams paid for the plant should be applied upon Parkhurst & Co.’s mortgage upon the plant; that such part of the plant as Williams purchased should be released from the mortgage; and that Parkhurst & Co. should hold the balance of the property as security for the balance of their claim. The transfer of Williams’ check from Welsh to Parkhurst & Co. was intended as a payment of Welsh’s indebtedness to that extent, and was so treated by a surrender of Welsh’s notes to that amount. I am pleased to be able to say that, in my judgment, there is not a taint of fraud in any of the transactions involved in this case. ”

Exceptions were taken to some of the findings of fact and to the conclusions of law.

It is shown by the findings that the garnishee’ defendants kept their mortgages off the record and off the file,, and that during that time the plaintiff’s debt accrued, and that plaintiff had no notice or knowledge of the mortgages. This court has uniformly held that the withholding of a chattel mortgage from file is a fraud upon parties extending credit to the mortgagor during the time it is withheld, and in ignorance of it, and that such mortgages are void as to such creditors. Fearey v. Cummings, 41 Mich. 383; Brown v. Brabb, 67 Mich. 30 (11 Am. St. Rep. 549); Buhl Iron Works v. Teuton, 67 Mich. 628; International, etc., Transportation Co. v. McMorran, 73 Mich. 467. The same rule applies to real-estate mortgages. Belcher v. Curtis, ante, 1. The court below recognized this rule, and in his conclusions of law says:

“The claim made by plaintiff’s counsel is that, as to plaintiff, these mortgages given by Welsh to Parkhurst & Co., not having been filed, were fraudulent and void; that, the plaintiff having sold lumber to Welsh while these mortgages were kept from record, the mortgages were of no validity, under the statute, for any purpose whatever, as against plaintiff. They further insist that the money received by Parkhurst & Co. (the $10,000) was received by them upon the mortgages, by reason of the mortgages, and therefore wrongfully, fraudulently, and that the money is the money of Welsh in their hands, and liable to garnishment. Counsel for the garnishee defendants admit that, as to the plaintiff, the mortgages were fraudulent and void; that, for instance, had the plaintiff levied upon the plant at any time before its sale to Williams, he would have been entitled to have the mortgages declared null and void. But they say, admitting that, as against the plaintiff, these mortgages were void, yet that fact would not prevent Welsh, from paying his indebtedness to Parkhurst & Co; there was a bona fide indebtedness existing long before and independently of the mortgages, and Ibis Welsh could recognize and pay whenever he chose. Counsel admit that had Parkhurst & Co. foreclosed their mortgages, sold the property under them, and received the $10,000 in that way, the plaintiff would have a right to treat the money as the money of Welsh, and subject to garnishment; but counsel deny that a voluntary payment by Welsh of his indebtedness can have the same result.”

The court then seeks to draw a distinction between this case and Heineman v. Schloss, 83 Mich. 156, and holds that the case is governed by Folkerts v. Standish, 55 Mich. 463. The court says further:

“There is nothing in the record to show that the transfer of the $10,000 from Welsh to Parkhurst & Co. was anything else than a payment pro tanto of the debt he owed them. The notes they held for that amount were surrendered, and Welsh received credit for the amount. The transaction was an honest one. * * * I am entirely satisfied that the transfer of the $10,000 from^Welsh to Parkhurst & Co. was a payment upon his indebtedness to them. Parkhurst & Co. never received either the property mortgaged or the proceeds thereof by virtue of a ‘conveyance void as to creditors.’ The $10,000 was not transferred to them by any such conveyance. They received it as a payment upon the notes they held for money loaned to Welsh. This was a bona fide indebtedness, and a part of it was paid in a perfectly legitimate way.”

Act No. 244, Pub. Acts 1889 (3 How. Stat. §§ 8059, 8091), provides:

“ Sec. 2. From the time of the service of such writ, the garnishee shall be liable to the plaintiff to the amount of property, money, goods, chattels, and effects under his control belonging to' the principal defendant, or of any debts due or to become due from such garnishee to the principal defendant, or of any judgment or decree in favor of the latter against the former, and for all property, personal and real, money, goods, evidences of debt, or effects of the principal defendant which such garnishee defendant holds by conveyance, transfer, or title that is void as to creditors of the principal defendant, and for the value of all property, personal and real, money, goods, chattels, evidences of debt, or effects of the principal defendant which snch garnishee defendant received or held by a conveyance, transfer, or title that was void as to creditors of the principal defendant; and snch garnishee defendant shall also be liable on any contingent right or claim against him in favor of the principal defendant.”
“Sec. 35. If any person garnished shall have in his< possession any of the property aforesaid of the principal defendant which he holds by a conveyance or title that is void as to creditors of the defendant, or if any person garnished shall have received and disposed of any of the property aforesaid of the principal defendant which is held by a conveyance or title that is void as to creditors of the defendant, he may be adjudged liable as garnishee on account of such property, and for the value thereof, although the principal defendant could .not have maintained an action therefor against him.”

We think, when the court found the facts that “there was a perfect understanding between Parkhurst & Co., Welsh, and Williams during the negotiations which led up to the sale;” that “all knew of and took into account the mortgages of Parkhurst & Co.; ” that it was understood that the amount Williams paid for the plant should be applied on the Parkhurst & Co. mortgage upon the plant, that such part of the plant as Williams purchased should be released from the mortgage, and that Parkhurst & Co. should hold the balance of the property as security for their claim,” — it was in error in concluding, as matter of law, that the payment of the $10,000 was nothing more than a payment pro tanto of the debt owing by Welsh to Parkhurst &.Co., and that Parkhurst & Co. never received the proceeds of - the property covered by the mortgage by virtue of a mortgage void as to creditors.

The evidence is returned in the record, and such evidence supports the findings of fact made by the trial court; but the facts found do not support the conclusions of law reached by the court. Mr. Parkhurst was sworn as a witness, and testified substantially that Williams was told that the real-estate mortgage was not recorded; that it was arranged between the parties that Parkhurst & Co. should release their security under the chattel mortgage on the machinery; that this was done, and the mortgage was then filed, so that it might cover the balance of the personal property, securing the remaining debt of Parkhurst & Co. We think that the facts, lead inevitably to the conclusion that, by the arrangement that Parkhurst & Co. should release their mortgage on the property sold, Parkhurst & Co. received the proceeds of the chattel-mortgaged property, within the meaning of this] statute (3 How. Stat. § 8091), which provides that:

“If any person garnished shall have received and disposed of any of the property aforesaid of the principal defendant which is held by a conveyance or title that is void as to creditors of the defendant, he may be adjudged liable as garnishee on account of such property, and for the value thereof.”

The taking of these mortgages, and leaving them off the record, was a fraud in law, if not in fact, against the plaintiff; for, during the time they were left off the record, the principal defendant was enabled to obtain credit, as he was apparently the owner of all the property, free and unincumbered. Having obtained this credit while the mortgages were kept from the record, the garnishee defendants could assert no rights under the mortgages as against the plaintiff. If they had taken the property under the mortgages, it is admitted that they would have been liable to garnishment, under the statute, for the value thereof. Instead of doing that, the parties got together, and, “taking the mortgages into consideration,’» arranged a sale to Williams, the garnishee defendants releasing the mortgages. In effect, the same- result is reached as though the garnishee defendants had taken the property on the mortgages. By keeping them off the record, they had enabled Welsh to obtain a credit. After this was obtained, they put their mortgages on record, and now seek to shield themselves by saying that they did not take this property; that they have none of the proceeds of it coming to them by a void mortgage; that it was a valid sale to Williams by Welsh; and that 'the proceeds of the sale, not obtained under the mortgage, were paid over to them on a valid debt. We think such a contention should not be sustained. In Folkerts v. Standish, 55 Mich. 463, there was no evidence that the lumber was turned out on the chattel mortgage, or that the defendant received or took possession of it under or by virtue of the mortgage, and it was therefore held that the court could not follow the proceeds into the defendant’s hands. In Heineman v. Schloss, 83 Mich. 153, this garnishee statute was under consideration, and.it was held that the defendant was liable as garnishee for the proceeds of the sale of the property taken under a void mortgage. It is true that in that case there was no question but that the property was received upon the mortgage; but we are of the opinion that this record shows that the proceeds of the sale received by the garnishees were in fact the proceeds of the mortgage. Mr. Parkhurst testified that Welsh could not dispose of the property without paying the mortgage, and that he so told Williams. This is what all the parties understood, and in arranging the sale they evidently treated the mortgages as though they were valid.

The judgment below must be reversed, and judgment entered here in favor of plaintiff, with costs of both courts.

The other Justices concurred.


author: Montgomery, J.

text:
    KEYES v. KONKEL.
    Replevin — Human Corpse.
    Ahúman corpse is not the “property” of the next of kin in such a sense as will authorize him to maintain replevin against undertakers refusing to surrender it.

    Error to Saginaw; Wilber, J.
    Submitted January 6, 1899.
    Decided March 23, 1899.
    Replevin by John Keyes against Xavier B. Konkel and another. From a judgment for plaintiff, defendants bring error.
    Reversed.

      James H. Davitt, for appellants.

      Harris & Kendrick, for appellee.

       On the subject of rights and duties in regard to burial of the dead, there is a note to Larson v. Chase, (Minn.) 14 L. R. A. 85.

   Montgomery, J.

This is an action of replevin to recover the dead body of plaintiff’s brother. The deceased died at a hospital, and defendants, who are undertakers, took charge of the corpse by request of the hospital authorities. The plaintiff, after the defendants had performed some services in fitting the body for burial, demanded possession of the body, and defendants refused to deliver the body up unless paid for their services. Thereupon plaintiff instituted this suit.

The question presented is whether replevin will lie in this State for a human corpse. The question is happily more novel than difficult. The statute (section 6856, 2 How. Stat.) provides for the proceeding of replevin in justice’s court, and requires an affidavit by the plaintiff setting forth that his “personal goods and chattels” have been unlawfully taken or are unlawfully detained. The replevin statutes (2 How. Stat. §§ 8346, 8347) provide for a judgment for defendant, when the plaintiff fails in his case, for a return of the property or for its value. It is apparent that no return of the property can be ordered in case of the replevin of a dead body, and it is equally true that its value in money can neither be appraised nor ascertained by a jury. It was formerly held in England that there could be no property in a human body. Williams v. Williams, 20 Ch. Div. 659, also reported in 21 Am. Law Reg. 508; Guthrie v. Weaver, 1 Mo. App. 141; Meagher v. Driscoll, 99 Mass. 284 (96 Am. Dec. 759); Pierce v. Proprietors of Cemetery, 10 R. I. 227 (14 Am. Rep. 667); Weld v. Walker, 130 Mass. 422 (39 Am. Rep. 465). In certain modern American cases, a dead body has been said to be a quasi property, and the right to control and bury it, and to recover against one who mutilates the corpse, has been maintained. Pierce v. Proprietors of Cemetery, supra; Weld v. Walker, supra; Burney v. Children’s Hospital, 169 Mass. 57 (38 L. R. A. 413, 61 Am. St. Rep. 273); Larson v. Chase, 47 Minn. 307 (14 L. R. A. 85, 28 Am. St. Rep. 370); Foley v. Phelps, (Sup.) 37 N. Y. Supp. 471. Recovery for the refusal of the right to bury or for mutilation of the body is rather based upon an infringement of a right than upon the notion that the property of plaintiff has been interfered with. The recovery in such cases is not for the damage to the corpse as property, but damage to the next of kin by infringement of his right to have the body delivered to him for burial without mutilation. In numerous cases equity has taken jurisdiction to prevent interference with the control of a dead body by persons entitled to control it. See Weld v. Walker, supra; Pierce v. Proprietors of Cemetery, supra. And in Peg. v. Fox, 2 Q. B. 24&, the remedy by mandamus to a jailer was granted. But on every consideration we are of the opinion that replevin cannot be maintained.

It is not contended that the defendants are entitled to maintain a lien. It is obvious that return cannot be adjudged. The only proper judgment is one dismissing the -proceeding, with costs of all the courts to the defendants. It is so ordered.

The other Justices concurred.


text:
    MACKEY v. NEWBERRY FURNACE CO.
    Master and Servant — Steam-Pipes—Faulty Connection — Assumption oe Risk.
    Plaintiff’s intestate, who had been for 10 months in charge of a steam-boiler, was killed by the bursting of a pipe used to discharge the sediment from the boiler into a sewer. A faulty connection at one of the joints of this pipe occasioned the aocident. A workman employed by the intestate to take the pipe apart and clean it had informed him of the defect, but had been directed by him to replace the pipe as he found it. Held, that .the intestate assumed the risk. .
    Error to Luce; Steere, J.
    Submitted January 26, 1899.
    Decided March 23, 1899.
    Case by Mary F. Mackey, administratrix of the estate of James A. Mackey, deceased,' against the Newberry Furnace Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Henry Hoffman (Wells, Angell, Boynton & McMillan, of counsel), for appellant.

      F. H. Peters (Charles A. Withey, of counsel), for appellee.
   Hooker, J.

The plaintiff recovered a verdict and . judgment in an action for negligence. The undisputed evidence shows that the deceased, her husband, was a man 52 years old, and for 10 months before his death had full charge of the defendant’s boiler-room. A boiler under his charge was connected with the sewer by a three-inch gas-pipe; said pipe being used for blowing the water and sediment out of the boiler, which it was the duty and custom of the fireman to do at intervals. The pipe extended horizontally, from the mud-drum, through the wall encasing the boiler, and then turned parallel with the wall, Still keeping its horizontal position for several feet, when it turned downward to the sewer. Two valves near the point where it came through the wall controlled the flow of water and steam. The following drawing shows the situation:

The deceased opened the valves numbered 1 and .4, when the pipe parted at the point numbered 7, and the elbow, 3, turned at the point marked 2; and the deceased was struck and killed by the pipe and elbow numbered, respectively, 5 and 6.

The theory of the plaintiff is that the perpendicular pipe extending to the sewer was not screwed into the elbow at 7 sufficiently to be safe, and this is substantially the negligence upon which plaintiff relies. It is stated as follows in the brief of counsel for the plaintiff:

“(a) That when defendant hired Mackey to attend to firing its boiler, etc., it knew him to be, and he was, wholly inexperienced in that kind of work.
“(6) That it was the duty of the defendant to make and keep its blow-off pipe strong, firm, and safe; that it negligently left it in a loose, unsafe, and dangerous condition ; that it was not screwed together sufficiently to resist the pressure incident to its use.
“(c) That the defect was latent.”

It is conceded that Mackey, the deceased, had worked about iron furnaces and foundries for 26 years; that he was familiar with gas-pipe, which was used for the circulation of water about the stacks; and there was testimony ' that he had aided in one job of steam-fitting. Counsel, however, urge that he had had no experience with pipes under pressure when he was put at work iú the boiler-room. Counsel contend that it could not be determined from observation whether the pipe was screwed into the elbow much or little, and, therefore, that the defect was latent. Plaintiff’s counsel contend, further, that the pipe was not properly put together when the boiler and blow-off pipe were erected, and that it had not been changed up to the time of the accident. This statement is based upon the testimony of a bricklayer who built the wall, who says that he saw the pipe connected with the boiler, and he thought it was the same blow-off pipe that was connected with the boiler at the time Mackey was killed. He was then asked by the plaintiff’s counsel:

“Q. Do you know whether or not that blow-off pipe was in the same condition at the time Mr. Mackey was' killed that it was when it was put in there ?
“A. I don’t know. It was in the same shape; that is, in the same place that it always- — ■ It was in the same place that it was before then.”

He testified to seeing the pipe after the accident, and was asked by plaintiff’s counsel:

“Q. State whether or not the blow-off pipe had ever been interfered with from the time the boiler was put in there until the time this accident happened.
“A. No, sir.”

On cross-examination he said he saw the men working at the pipe when it was erected, and that he was present on one occasion when the boiler was cleaned. The examination proceeded as follows:

“To clean out the boilers, they generally scale the scales off the flues and wash them out, but not necessarily take apart the connections. Generally take the caps off the boilers, and clean out the pipes.
“ Q. Take the blow-off pipes off, with the rest of them ?
“A. Not generally; no, sir.
Q. I ask you if they didn’t do that there.
“A. I didn’t see them do it.
Q. You say you were present in October when some work was being done, cleaning the boilers. Now, I understand you to say that the boiler had been cleaned two or three times between that time and the time the boilers were set, — at the time you built the brick wall.
‘A. I said a couple of times that I know of.
Q. Were you present at these two times?
“A. I was not both times; no, sir.
Q. Then you can’t testify in regard to that, if you were not there ?
“A. I can testify to the last time it was cleaned out. I was there, — twice that I was there; that I saw them working at the boilers, cleaning, and, to my knowledge, these blow-pipes were not taken down.
Q. Do you know whether they were or not?
“A. I don’t. I don’t think they were.
‘ ‘ Q. Then, if you don’t know whether they were taken down or not, how can you testify that they were not interfered with from the time of construction until the accident?
“A. Because I had been around them more or less, and I never noticed any difference in them.”

Counsel for the plaintiff proved by another witness, and in their brief say that it was conceded, that the pipe was' taken down in October before the accident. We need not, therefore, further consider the claim that the construction was faulty, and that the deceased had no occasion to know it, as he was in charge of the boilers at that time, and had been for several months.

Alexander Labombard was called by the plaintiff, and testified that in October he was employed by Mackey, as a common laborer, to help clean the hoiler, and that they could not use the blow-pipe, because it was stopped up, so they drew the water out of the hand-hole to the mud-drum, and then disconnected the pipe at both elbow joints. The witness did this himself, by Mackey’s direction; and he found that the thread was barely caught in the elbow at point 7, and then and there told Mackey that there was only one thread on the pipe. Counsel sought to make it appear that Mackey might not have heard this; and, while the witness said that he could not swear that he heard it, he said that he was only eight feet away, where he could have heard it, and that he supposed he did hear it, and that Mackey said, when the pipe was taken off, that he did not think there was any pressure there. He testified further that, when he put it back, he found the thread battered on the pipe, and he could not get it in; that he again called Mackey’s attention to it, and he told him to put it together the same as he found it. This testimony is uncontradicted.

The court should have directed a verdict for the defendant. The simplicity of gas-pipe is such that the method of putting it together is a matter of common knowledge, and the same may be said of the effect of steam pressure. Moreover, the deceased was engaged in the management of steam boilers, and for 10 months had charge of them. He could not have performed his duties without a knowledge of steam pressure, and no man could run a boiler and engine long without learning about it. The pipe was taken down and put up, by his own direction, by a common laborer; and he did not take the trouble to supervise it, although the common sense of the laborer led him to inform Mackey of the dangerous condition of the pipe both when he took it down and when he replaced it. It was a part of his duty to.keep this pipe in working order, and he assumed the risks attendant upon its use. Upon this ground, as well as upon the ground of deceased’s own negligence, the plaintiff must fail.

The judgment is reversed, and a new trial ordered.

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