author: Montgomery, J.

text:
    DETROIT, LANSING & NORTHERN RAILROAD CO. v. McCAMMON.

    1. Equity Pleading — Verification of Plea.
    A plea to a bill in chancery, which sets up a public record of the same court in which the suit is pending, need not be verified.
    3. Same — Practice.
    Defendant entered a plea to a bill in chancery, and, no replication being filed, noticed the same for argument. After the lapse of 20 days, complainant, claiming that defendant should have secured an order of reference to a master to obtain a report as to the truth of the plea, petitioned for an order that the bill be taken as confessed, which order was denied. Upon argument, the plea was sustained; and, after the lapse of 10 days, the complainant not having taken issue on the plea, a decree was made dismissing the bill. Held, that the practice pursued was that prescribed by Chancery Rule No. 25, which contemplates that the truth of the plea shall be determined after issue joined.

      S. Same — Sufficiency of Plea.
    While it is proper for the defendant to assert in his plea that he does not confess or acknowledge all or any of the matters set forth in complainant’s bill, it is not essential to a good plea that he should do so.
    4. Same — Plea in Bar — Sufficiency—Amendment.
    A plea to a bill in chancery, setting up the dismissal of a former bill asking for the same relief, is insufficient if it fails to aver that the former decree was on the merits. An''omission in this respect, however, may be supplied by amendment.
    5- Same — Res Judicata.
    A decree dismissing a bill in chancery after a hearing upon the merits is a bar to a subsequent suit having the same object, and based ux>on the same state of facts, although the transaction is set forth in amplified form, and the prayer for relief is not identical with that of the former bill.

      Appeal from Ingham; Person, J.
    Submitted December 6, 1895.
    Decided February 26, 1896.
    Bill by the Detroit, Lansing & Northern Railroad Company against Mel vina R. McCammon to enjoin the prosecution of a suit in ejectment. From a decree dismissing the bill upon a plea in bar interposed by the defendant, complainant appeals.
    Reversed.

      M. V. & B. A. Montgomery, for complainant.

      Cahill & Ostrander, for defendant.

       Rehearing denied May 6, 1896.

   Montgomery, J.

The complainant filed a bill setting up, in substance, that in March, 1871, the defendant was the owner of the quarter section of land within which the •strip in controversy is included; that on March 8, 1871, the defendant conveyed to the Detroit, Howell & Lansing Railroad Company a strip of land described, etc.; that, before the making of the deed, the railroad company had completed the ‘ ‘ entire work of clearing and grading across the said quarter of said section;” that everybody supposed that the railroad track was laid on the strip so deeded until “sometime in the year A. D. 1882,” at which time the defendant “was advised that the roadbed and right of way of complainant was not located and constructed upon said strip; ” that, as a matter of fact, however, the line was constructed nearly 200 feet south of the ■strip described in the deed; that in March, 1886, defendant began ejectment “to recover possession of said last-mentioned strip;” that issue was jbined, a trial had, and verdict and judgment rendered for plaintiff, which judgment was affirmed by the Supreme Court (66 Mich. 442); and that thereafter the complainant paid the costs, and took a new trial. The prayer was—

“ That the amount of compensation, if any, to which said defendant may be fairly, reasonably,, and equitably entitled, because of the premises, may be ascertained under the direction of this honorable court; that, upon payment to said defendant by yonr orator of said sum so to be ascertained, she (said defendant) may be thereafter perpetually enjoined and restrained from the further prosecution of said suit in ejectment, and from interfering in any way with said last-described strip of land, and with your orator’s possession and occupancy thereof; and that your orator may have such other relief and such further relief in the premises as may be agreeable to equity and good conscience.”

To this bill defendant filed a plea setting up a former suit in bar. The plea stated—

“That complainant heretofore, to wit, on the 31st day of March, 1892, exhibited its bill of complaint in this court against this defendant and Hannah Rice (who was, at the time of the exhibiting of this bill, deceased) for the recovery of the very same rights, claims, and causes of action as in this bill now pending are sought to be recovered, as appears by a copy of said bill hereto attached, marked ‘ Exhibit A,’ and made a part of this plea; and such proceedings were afterwards had that this defendant filed her answer to said bill in said court, and the complainant filed a general replication thereto, and, the said cause thereupon being at issue, proofs were taken on both sides in open court before the Honorable Rollin H. Person, then sitting as circuit judge, and the said cause was, after the taking of said proofs, duly argued by counsel for the respective parties; and afterwards, and upon due consideration thereof by the court, on, to wit, the 12th day of October, 1893, a decree was duly made, signed, filed, and entered in said cause dismissing said complainant’s bill, which said decree and the proceedings theretofore had in said cause were afterwards, and on the 13th day of November, 1893, duly enrolled by the register of said court, and now remain and are of record therein; that no appeal was ever taken from said decree, nor has said decree ever been set aside, vacated, or held for naught, but was, at the time it was so entered and enrolled, and has ever since continued to be, in full force and effect, — ■ all of which more fully and at large appears by the said bill so formally exhibited, and by the answer and decree therein so made, entered, and enrolled, to which bill, record, and decree, for greater certainty, defendant prays leave to refer.”

The appended copy of the bill, in the first place, shows that there was set np in that proceeding the fact of the execution of the deed; that, when it was executed, the railroad company had filed its map, and had entered upon the construction of its road over and across defendants’ land, until the entire work of clearing and grading the roadbed was completed, and that the road was soon after completed, and that the complainant had since maintained a continuous and exclusive possession; that in 1882 defendants were advised that the roadbed and right of way over and across this land was not located upon the strip described in the deed; that, at the time of the execution of the deed, the defendants knew precisely where the right of way was in fact located, and the said roadbed actually constructed; that there was a mistake made in the description of the land conveyed; that complainant had endeavored to effect an amicable settlement, but that its efforts had failed. The bill prayed—

“That said defendants, and each of them, be enjoined and restrained from the further prosecution of their ejectment suit above mentioned; that the said deed from said defendants to said Detroit, Howell & Lansing Railroad Company be so reformed that the description of the premises thereby conveyed shall describe the land which was actually intended to be conveyed thereby, as above stated; and that your orator have such other relief and such further relief in the premises as may be agreeable to equity and good conscience.”

This plea was not verified. Complainant filed no replication. The defendant noticed the plea for argument under Chancery Rule 25. On the argument the plea was sustained, and the complainant, standing on the claim of insufficiency of the plea, appeals. A decree was made, after the lapse of 10 days, dismissing complainant’s bill, and from this decree complainant appeals.

A preliminary question of practice is to be considered. It is contended by complainant that defendant should have obtained an order of reference to a master, and obtained a report as to whether or not the plea was true. Acting upon this idea, complainant, after the lapse of 20 days, petitioned for an order that the bill be taken as confessed. The circuit judge denied this order, and passed upon the sufficiency of the plea. We think the practice pursued is that prescribed by Chancery Rule No. 25. This rule provides that,' when the defendant pleads to a bill, the complainant shall have 20 days to file a replication to the plea or amend his bill; and that, if he does not take issue on the plea or amend the bill within that time, either party may notice the plea for argument; and that if, on argument, the plea is allowed, the complainant may, within 10 days, take issue upon the plea, upon payment of costs. This rule clearly contemplates that the truth of the plea shall be determined after issue joined.

It is also urged that the plea is insufficient for the reason that it is not verified. But the practice does not require a verification of the plea when it sets up a public record of the same court in which the action is pending. Jenn. Ch. Prac 69; 1 Barb. Ch. Prac. 118.

We conclude, therefore, that the question of the sufficiency of the plea was properly before the court, and we are to determine whether the circuit judge properly ruled that it was sufficient.

Some criticism is made of the formal parts of the plea. It is said that a plea to .the whole bill should protest that neither all nor any of the matters alleged in the bill are true. The form adopted was “by protestation, not confessing or acknowledging the matters and things in and by said bill set forth,” etc. The complainant’s counsel cite the precedent in Puterbaugh. It is proper to assert that defendant does not confess or acknowledge any or all of the matters set forth. Does it follow that it is essential to a good plea to do so? We think not. In Story, Eq. Pl. § 694, it is said:

“As to the form of a plea, it is, like a demurrer, always prefaced by a protestation against any confession or admission of the facts stated in the bill. But the only •use of this seems to be to prevent any conclusion in another suit; because, for the purpose of deciding the validity of the plea, the bill, so far as it is not contradicted by the plea, is admitted to be true.”

Counsel are mistaken in assuming that the plea does not assert that it is to the whole bill.

Counsel contend that the plea is not sufficient in substance, for the reason that it does not assert that the former cause was heard on its merits, or that the decree was based upon such hearing, or that the former decree determined that complainant had no title to the relief sought by its present bill, or that the answer to the former bill was to the whole of the said bill. The plea must negative intendments. See Mitf. Ch. Pl. 349 (*298). The meaning of an intendment is that, allowing an averment to be true, but that at the same time a case may be supposed consistent with it which would render the averment inoperative as a full defense, such case shall be presumed, unless specifically excluded by particular averment. Id. 350 (*299), citing Lube, Eq. 343. We think this objection to the plea well taken.

If it be assumed that the former case was dismissed on its merits, is it a bar? That is the principal question. The additional facts shown in the present bill are:

“When the road was completed, and trains began to run, the officers of the Detroit, Howell & Lansing Railroad Company, as well as the defendant, each and all supposed that it [the road] was located upon the strip described in the deed.”
‘ ‘ The road was not constructed upon the strip conveyed, but, instead thereof, it was constructed in the center of a strip which began at a point nearly 200 feet south of the land described in the deed,” etc.
“Until sometime in the year 1882, all the officers and agents of the railroad company, as well as the defendant, supposed that the strip of land occupied by the railroad was the same strip described in the deed.”
“Complainant has expended many thousand dollars in constructing its line across this strip of land. The same is of no use to the defendant. The defendant does not expect or desire possession, and she is not attempting or intending to secure such possession, but, on the contrary, she is manifestly attempting and undertaking to compel complainant to pay her a large and unconscionable sum of money.”
“The new bill admits that the strip of land actually occupied contains one or two more acres than did the land described in the deed; that complainant cannot surrender it without subjecting itself to many thousand dollars damage; that, ever since the mistake was discovered, complainant has always been, and now is, ready and willing, and it now offers, to fully and liberally compensate defendant, McCammon, for such additional amount of land so occupied by it, and for any and all benefits accruing to it by reason thereof, as well as any and all damage or compensation to which said defendant may be fairly entitled by reason thereof.”

Do these statements present a different case than that presented in the former bill? It is not contended, of course, that the charges in the bill relate to a different piece of property. It cahnot be contended but that the relief sought is based upon the same claim of mistake upon the part of complainant. The first bill avers action taken by complainant based upon such mistake, and in the belief that the company was occupying the land purchased. The additional facts set up are amplifications of the facts set up in the former bill. Can the complainant, then, set up a transaction like that in question, the chief fact in which is the mistake of complainant as to the land intended to be conveyed, permit the case to proceed to a final decree, and then file a bill setting up the same transaction in amplified form, but still requiring the same fact to support the bill, i. e., the averment of mistake? We think not. To admit this would admit of as many new bills as there happen to be incidental facts which could be successively set up. Barker v. Cleveland, 19 Mich. 235; Pierson v. Conley, 95 Mich. 619. This rule may work a seeming hardship in the present case, as it appears that the solicitor for the complainant, who had charge of the for^ mer suit, died after the decree, and before time limited for appeal; but this is conjectural. At all events, the proper remedy would be by application for leave to file a bill of review.

We think the plea defective in the one particular of not averring that the former decree was on the merits. We have no doubt of the right of the court to grant an amendment. Mitf. Ch. Pl. 327 (*281), note; 2 How. Stat. § 7631.

The decree will be reversed and remanded. The defendant will he at liberty to apply to the court below for leave to amend within 20 days from the entry of this decree.

Longí, Grant, and Hooker, JJ., concurred. Mc-Grath, C. J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    SHELDEN v. BARLOW.
    1. Mortgage — Foreclosure—Execution for Deficiency — Statute of Limitations.
    2 How. Stat. § 8721, which excepts from the period limited for the commencement of personal actions the time during which the debtor shall, after the cause of action has accrued, be absent from and reside out of the State, is applicable to the 10-year limitation imposed upon the right of the complainant in a foreclosure case to take out an execution for a deficiency arising upon a sale of the mortgaged premises.
    2. Same — Substituted Service — Laches.
    The proceeding for execution being essentially a new one, substituted service of the application upon the person liable for such deficiency cannot be given extraterritorial effect, and a neglect to resort to that method of service during the period of his absence from the State does not constitute such laches as will bar a proceeding taken on personal service.

      3. Same — Interest—Decree.
    A mortgage note, piayable 10 years after date, bore interest at the rate of 7 per cent, for the first two years, after which it was to bear 10 per cent, interest. Before the two-years had expired, the payee elected, under the interest clause in the mortgage, to treat the entire amount of the note as-due. Held, that a foreclosure decree, entered upon the day following the expiration of the two-year period, should bear interest at the rate of 7 per cent.
    Appeal from Clinton; Daboll, J.
    Submitted January 8, 1896.
    Decided February 26, 1896.
    Bill by Allan Shelden against Edwin. Barlow and another to foreclose a mortgage. Defendant Barlow appeals from an order awarding an execution for a deficiency.
    Modified and affirmed.

      Spaulding & Cranson, for complainant.

      Walter Barlow, for appellant.
   Montgomery, J.

Defendant Barlow appeals from an order-of the circuit court for Clinton county, in chancery, awarding an execution for a deficiency reported after sale in a foreclosure case. The decree for foreclosure was entered November 19, 1877, authorizing a sale on or after May 1, 1878. Sale was made on June 15, 1878, and on the same day a deficiency was reported by the commissioner. The present proceeding was instituted on the 14th of August, 1895.

Defendant contends that complainant had lost his right to proceed by laches. It appears, from the record, that from October 24, 1885, until July 30, 1895, defendant Barlow was a resident of the State of Kansas, and was absent from this State. In Wallace v. Field, 56 Mich. 3, it was held that the complainant has 10 years from the date of decree to make his claim by execution. While the reason for this holding was not given, it is evident that the limitation was adopted in analogy to that fixed by the statute of limitations. 2 How. Stat. § 8736. And we see no reason why the saving clause of section 8721, that “the time of the absence of the debtor from the State shall not be taken as any part of the time limited for the commencement of the action,” should not apply. It is suggested that a substituted service might have been ordered, on the authority of Ransom v. Sutherland, 46 Mich. 489. But, as the proceeding to compel payment oí a deficiency is essentially a new proceeding (Johnson v. Shepard, 35 Mich. 122), such substituted service could not be given extraterritorial effect; and we think it should not be held that the neglect to resort to such uncertain and incomplete remedy constitutes such laches as bar a proceeding taken on a personal service.

A question is raised as to whether this decree for deficiency should bear interest at 7 per cent, or 10 per cent. The note read as follows:

“$4,500. Detroit, November 18, 1875.
“Ten years after date, we jointly and severally promise to pay to Allan Shelden, or bearer, the sum of forty-five hundred dollars, at his office in Detroit, with semi-annual interest at the rate of seven per cent, per annum for the first two years from date hereof, and after two years from date hereof interest at the rate of ten per cent, per annum, payable semi-annually.
“T. M. Cody.
“Edwin Barlow.”

Before the two years had expired, complainant had elected to treat the entire amount of the note as due, under a clause in the mortgage giving him the right to do so in case of default in payment of interest. The note' was a 7 per cent, note when the decree was entered, and never became a 10 per cent. note. We think the decree should bear interest at the rate of 7 per cent. It does not appear that this point was specifically made in the court below.

The order will be modified by fixing the rate at which interest is to be computed at 7 per cent., and, as modified, will be affirmed, without costs to either party in this court.

The other Justices concurred.


author: Grant, J.

text:
    HUGHES v. JONES.
    Appeal — Findings on Conflicting Testimony.
    Complainants filed a bill to set aside certain conveyances on the ground that they were obtained by fraud and duress. Proofs were taken in open court, and the material testimony was in direct conflict. Held, that a decree in favor of complainants would not be disturbed.
    Appeal from Cass; Coolidge, J.
    Submitted January 8, 1896.
    Decided February 26, 1896.
    Bill by George A. Hughes, executor of the last will and testament of Minor T. Jones, deceased, Fred Jones, and Della Jones, against Minor T. Jones, Emery Anderson, Mary A. Jones, and one Foster, to set aside a deed, an assignment of mortgage, and a contract, on the ground that they were executed under duress. From a decree for complainants, defendant Minor T. Jones appeals.
    Affirmed.

      J. H. Carr, for complainants.

      Spafford Tryon (Harsen D. Smith and George M. Stevens, of counsel), for appellant.

      Charles JE. Sweet, for defendant Mary A. Jones.
   Grant, J.

One Minor T. Jones died testate December 24, 1892, without issue. Complainant Fred Jones had lived with the deceased from his infancy, and had married the daughter of defendant Mary A. Jones by her former marriage. He had practically adopted Fred as his son. His property inventoried nearly $13,000. He made bequests to certain relatives, devised a mortgage of about $3,300 to his wife, defendant Mary A. Jones, and made Fred the residuary legatee. The principal portion of the estate thus coming to Fred was a farm worth between $4,000 and $5,000. The will was admitted to probate in the probate court. Defendant Minor T. Jones was a nephew of the deceased, contested the will, and appealed from the decision of the probate court to the circuit court, where the case was pending when the transactions now complained of took place. Defendant Mary A. Jones was suspected by defendant Minor T. Jones to have administered poison to her husband, and to have burned two of his barns. Complainants and the defendant Mary A. Jones lived in Cass county'; defendants Minor T. Jones, Foster, and Anderson, in Chicago. Anderson had formerly been in the employ of the deceased. Defendant Mary A. Jones went to Chicago the latter part of January, 1894, where she was met at the depot by defendant Anderson, and taken to an hotel where he had engaged a room for her. She wrote a letter to the complainant Fred Jones, requesting him and his wife to come to Chicago at once, saying that she was in trouble. This letter was taken by Anderson to complainant Fred Jones, and delivered between 9 and 10 o’clock in the evening. They went by the first train to Chicago, Anderson return1ing with them. He took them to a cheap hotel, where they found Mrs. Jones. Soon after their arrival, the defendant Foster was introduced as the attorney of Mrs. Jones. Anderson pretended to be her friend, and was her advisor, in whom, for some reason, she placed great confidence. The next day after their arrival in Chicago, the defendant Mrs. Jones executed an assignment of the above-mentioned mortgage to defendant Minor T. Jones, and complainants Fred and his wife made an absolute deed to him of the real estate devised to Fred. At the same time the four executed a contract reciting the will, the bequests, the contest then pending, and agreeing that, in consideration of the assignment and deed by Fred and his yife, defendant Minor T. Jones would pay Fred $1,000, — $100 to be paid in cash, and the other $900 as soon as the estate of the deceased was finally settled,— and would discontinue his appeal. All this was done in the room of Mrs. Jones in the hotel, in the presence of Minor T. Jones and his attorney, who drew the papers, and defendants Anderson and Foster. Complainants, upon their return home the following day, went to an attorney, and stated to him the above transactions. They thereupon at once filed this bill to set these conveyances and the contract aside upon the ground that they were obtained by fraud, and threats of criminal prosecution against Mrs. Jones. Proofs were taken in open court, and a decree entered setting them aside, and restoring the appeal from the"probate of the will, and placing the parties in statu quo.

The learned circuit judge filed a written opinion, reviewing the testimony and giving the reasons for his conclusion. The question is one entirely of fact. The material testimony is in direct conflict. This is one of those cases where much depends upon the credit to be given to the witnesses, and their appearance and character in open court are important factors in reaching a conclusion. Anderson was one of the chief witnesses for the defense, and the court finds that he is utterly unworthy of belief, and in this conclusion we fully concur. It would profit neither the profession nor the parties to enter into a detailed statement of the evidence. Any one desiring it can obtain a copy of the able opinion of the circuit judge. After seeing the witnesses and hearing their testimony, he finds the facts to be with the complainants, and in his findings and conclusion we concur.

The decree is affirmed, with costs.

The other Justices concurred.


author: Long, C. J.

text:
    MARINETTE IRON WORKS CO. v. CODY.
    1. Payment — Acceptance of Draft.
    The taking by a vendor of the vendee’s acceptance for the purchase price of the goods sold does not operate as a payment, where the parties regard the acceptance merely as evidence of the amount to be paid.
    3. Lien for Machinery — When Lost — Authority of Agent.
    The vendor’s right to enforce a lien upon machinery furnished to the lessees of a mill is not lost by the action of his attorney in taking from the vendees a bill of sale of the machinery, where the attorney’s authority to accept a bill of sale was conditioned upon his securing the right to remove the property, and the consent of the mill owner to such removal was not obtained.
    3. Same — Forfeiture of Lease.
    The vendor’s lien upon machinery furnished to the lessees of a mill, existing under Act No. 179, Pub. Acts 1891, as amended, is not defeated by the forfeiture of the lease, although the lease provided that “all machinery added to the mill shall, at the termination of the lease, whether by forfeiture or otherwise, remain in the mill as the property of the lessor.”
    Appeal from Chippewa; Steere, J.
    Submitted January 8, 1896.
    Decided February 26, 1896.
    Bill by the Marinette Iron Works Company against Lorenzo J. Cody, Fred Proctor, and John F. Carver, to enforce a lien for machinery sold. From a’decree dismissing the bill, complainant appeals.
    Reversed.

      Clark & Pearl, for complainant.

      Horace M. Oren (George A. Cady, of counsel), for defendant Carver.
   Long, C. J.

This bill was filed to establish and enforce a lien under the provisions of Act No. 179, Pub. Acts 1891, and the amendments thereto, against certain property at what is known as “Sailors’ Encampment,” an island in the St. Mary’s river.

Defendant Carver was the owner of this property, and on December 7, 1892, he executed a lease thereof to defendant Cody. The lease was recorded in the office of the register of deeds, as being situate in the county of Chippewa, and known as the “mill property at Sailors’ Encampment,” more particularly described as follows, to wit: “Including herein the real estate, with the mill and the other buildings thereon, lately owned by John X. Russell, together with all the loose personal property, mill fixtures, etc., belonging to said mill.” The term for which the lease was made was from December 7, 1892, until December 7, T897, “unless such term is before then terminated, by forfeiture or otherwise.” The rent reserved was the sum of $2,000 per year, and also all taxes and assessments that might be levied upon such property, which defendant Cody agreed to pay in semi-annual installments. The lease contained the provision that no assignments should be made without the written assent of the lessor, and a condition that, if the rent was not paid as stipulated, the lessor might declare it at an end, and might re-enter into possession, and that the second party should surrender the premises upon such forfeiture by reason of nonpayment. The lease further provided that—

‘ ‘All improvements and additions made to said mill property by said party of the second part during the term of this lease shall be furnished by the party of the second part, and paid for at his cost; and it is expressly agreed between the parties to this lease that all such additions to the mill property, whether it be in buildings, or machinery, or tools, or anything necessary to operate the mill, shall, at the termination of this lease, whether by forfeiture or otherwise, remain in the mill, and on said premises, as the property of the party of the first part.”

Defendant Cody went into possession of the property after the execution of this lease, and took as a partner in the milling business defendant Proctor.

The complainant in this case is a manufacturing corporation at Marinette, Wisconsin. On April 22, 1893, the complainant sold a band mill outfit and other mill machinery to Cody & Proctor for the sum of $5,782, to be put in the mill on the land in question at Sailors’ Encampment. The mill was shipped to Cody & Proctor, and the complainant drew a draft, on April 22,1893, upon Cody & Proctor, for the amount of the purchase price. This draft was accepted, by writing across the face of it the words, “Accepted May 6, 1893,” and signed by Cody & Proctor. This was after the machinery had arrived at the mill. The draft was protested for nonpayment on July 24th, thereafter. After Cody & Proctor had made default in payment of this draft, they made a proposition to Hurst & Sullivan, attorneys at Sault Ste. Marie, that they would make a bill of sale of the machinery purchased from complainant for $4,000, and allow the complainant to take judgment for the balance. This proposition was submitted by Hurst & Sullivan to the complainant in a letter dated December 1, 1893. On December 8th the complainant acknowledged receipt, and stated:

“If they have absolutely nothing, then we would prefer by all means to have the bill of sale stipulated for the full amount of our claim, at least that of the invoice price, provided, however, the title should be absolute with us, and also that a reasonable time for the removal of the machinery could be secured.”

It was further stated in the letter:

“If there is any property belonging to Cody & Proctor against which a judgment would be applicable, then we would take judgment; if not, the bill of sale should be for the full amount of the invoice.”

December 11th Hurst & Sullivan wrote the complainant as follows:

“We have this day, in conformity to the suggestion made in your letter of the 8th inst., obtained bill of sale of the property sold by you to Cody & Proctor for the full amount of your claim. Mr. Carver, the lessor, has a lease, so we understand, with some stringent conditions, and of which we were solicitous that he might make you some trouble; not that we think it would avail him anything. So we think better to advise you to move the machinery at once, if you can possibly do it to any advantage. .We have this day placed the bill of sale upon record.”

The machinery was not removed from the premises, when, on January 31, 1894, defendant Carver gave notice of the forfeiture of the lease by reason of nonpayment of the'rent reserved therein; and on February 19th defendant Cody wrote a letter to him that he surrendered all claim under the lease, and Mr. Carver went into possession. Prior to that time, and on June 23, 1893, the complainant had caused to be filed in the office of the register of deeds of Chippewa county a statement and claim of lien upon the lands covered by the lease from Carver to Cody and of the property situate thereon. The certificate and statement of lien recites that “the furnishing of said materials, machinery, etc., was begun on the 5th day of May, 1893, and the last of such materials, machinery, etc., was furnished on the 5th day of May, 1893,” and that the amount due the complainant, for which the lien was sought, was $5,782.

5 On the hearing, the complainant gave testimony that it did not take the draft of Cody & Proctor as payment for the machinery, but simply as evidence that Cody & Proctor were to pay the amount thereof for the machinery in 90 days from its date.

Complainant wrote Hurst & Sullivan, December 15, 1893, as follows:

“You appear to have acted in this matter in disregard of our instructions, which contemplated that we should get the absolute title to the property without complications, and a reasonable time for its removal. It seems that we are still exposed to the liability of litigation with Mr. Carver, whom we take to be the owner of the property. * * * If we get nothing by the bill of sale, we do not desire to be bound by it; but, in view of the unfortunate complications which have arisen in this matter, we would he willing to relinquish, our interest in the property to Mr. Carver for not less than fifty cents on the dollar of our original claim. If that cannot be done, and the bill of sale is not sufficient to pass the title and right of possession to us, we want you to take immediate action, and reinstate the pending suit, or file a new bill, if you think that is safe to do, so that our rights may not be extinguished by lapse of time.”

Under this state of facts, it was claimed by the complainant; on the hearing below:

1. That the letter from the complainant to Hurst & Sullivan did not authorize them to take a bill of sale of the property, except upon certain conditions, which were not complied with.
2. That a time draft did not release its lien upon the mill machinery, as it was not intended as payment.
3. That it was entitled to have its statutory lien enforced against the property, and that the relations existing between Cody & Proctor and Carver are such that the complainant has a lien on the property for the purchase price, both against Cody & Proctor’s interest, and that of Carver in the mill and machinery and land.
i. That, even if the lien could not reach Carver’s interest in the land, the forfeiture of the lease to Carver would not give him the right to hold the machinery sold to Cody & Proctor, and .that Carver could not prevent the complainant from removing the machinery to enforce the lien against Cody & Proctor.

The court below found that the bill of sale given by Cody & Proctor passed the title to the machinery back to the complainant; that the complainant had a lien on the property against the title of Cody & Proctor for the purchase price, and that this lien was filed with the register of deeds within the time prescribed by the statute; that the property was attached to the mill of Carver; and that, when the lease became forfeited while the property was so attached, the complainant lost all right of lien thereon, as, by the forfeiture of the lease, the title passed to Carver. The court further found that Hurst & Sullivan' had authority to take the bill of sale; that the lease was terminated by the action of Carver and the consent thereto of Cody; and that Carver became repossessed of the premises, and the mill and machinery contained therein, including the machinery in question. The court stated, further:

“ Were it material to this issue, I should hold that the surrender made by Cody could not in any way affect the complainant’s lien upon this property. As a result of these facts, the ruling of the court is that the bill of sale and proceedings in relation thereto resulted in a surrender and cancellation of complainant’s lien upon Cody & Proctor’s interest in the property, and that therefore the decree should be in favor of the defendants.”

The decree was rendered in favor of the defendants, from which the complainant appeals.

The defendants’ contentions in this court are:

1. That the complainant has no lien against any of the property for the reasons—
(1) That the statute under which the proceedings were brought does not give a lien, in respect to engines and machinery sold, unless the vendor constructs, repairs, or puts up the engine, machinery, or appurtenances upon the land which is sought to be charged with the lien.
(2) That the complainant failed to file its notice of. lien with the register of deeds in the county of Chippewa within the time required by the statute.
2. That, even though the complainant may have, at the outset, brought itself within the provisions of the lien law, yet it withdrew itself therefrom when, through its attorneys of record, ft settled its claim against Cody & Proctor, discontinued its suit on the draft taken at the time of the sale of the machinery, and received a return bill of sale of all of Cody & Proctor’s interest in the machinery ; that, in consequence of such action on complainant’s part, there was no longer a subsisting indebtedness upon which a lien suit could be predicated.
3. That in no event, under the circumstances of this case, can a lien attach upon the premises of defendant Carver, or upon the added building and machinery, which became his, when attached, conformably to the terms of the lease.

It will be seen that the result of the decree below is that complainant has lost the entire machinery sold to Cody & Proctor, and that, by the forfeiture of the lease, Mr. Carver has acquired title thereto. This result is so inequitable that the decree should not stand unless the complainant has in some way estopped itself from claiming any rights therein, or Mr. Carver, under the technical rules of law, has by this forfeiture acquired title which cannot now be disturbed.

It appears conclusively, from the testimony, that the acceptance for the machinery was not taken as payment, but simply as evidence of the amount to be paid for it; and, from the conduct of the complainant and of Cody & Proctor in relation thereto, it is evident that neither party regarded the acceptance in any other light. It is elementary that neither a note nor an accepted draft would be payment unless it was intended by the parties to be so. Hotchin v. Secor, 8 Mich. 494; Brown v. Dunckel, 46 Mich. 32.

The mill and machinery' were purchased to put upon the property in question, and there to be used and operated by Cody & Proctor, the lessees. It was so placed and used. The complainant, in order to save its rights, and within the time prescribed by Act No. 179, Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893, filed a lien in the office of the register of deeds of that county. This lien covered the property in controversy, and, as against the machinery so purchased, must be held to be a valid and subsisting lien, unless the complainant, by the act of Hurst & Sullivan in taking the bill of sale, released its right -to insist upon the samó. The authority given to Hurst & Sullivan was to take the bill of sale if the right to remove the property was secured to the complainant. The bill of sale was taken, when it appears that defendant Carver declared the lease forfeited, and, under the terms of the forfeiture clause, claimed that the title to the mill and machinery had passed to him. Under these circumstances, the complainant was not bound to stand by the bill of sale. It at once directed its attorneys to make no claim under it and to enforce the lien. This it had the right to do. It could not be bound by the bill of sale, and be held to have surrendered its rights under its lien claim. It apparently was acting in the utmost good faith, and willing to get out of the difficulty by receiving the machinery back. It was not permitted to do this, but was met with the claim of Carver that, under the forfeiture of the lease, the title to the mill and machinery had passed to him. We think this claim cannot be sustained. The lease was in force at the time the mill machinery was erected, and when the claim of lien was filed in the office of the register of deeds. This was notice to Mr. Carver of the claim which complainant made. He must be held as having notice of this at the time of the forfeiture of the lease. While, as between Cody & Proctor and Carver, the forfeiture may have conveyed the title of the mill and machinery to Carver, yet this would not deprive complainant of its rights under its lien.

The statute provides for such liens, and their enforcement by sale of the property. Act No. 199, Pub. Acts 1893, provides that — •

“Every person who shall, in pursuance of any contract, express or implied, written or unwritten, existing between himself as contractor, and the owner, part owner, or lessee of any interest in real estate, build, alter, improve, repair, erect, ornament, or put in, or who shall furnish any labor or materials in or for building, altering, improving, repairing, erecting, ornamenting, or putting in, any house, building, machinery, wharf, or structure, * * * shall have a lien therefor upon such house, building, machinery, wharf, and other structure and its appurtenances, and also upon the entire interest of such owner, part owner, or lessee in and to the lot or piece of land,” etc.

By paragraph 4 of section 9 of the act, it is also provided that—

“The liens for such labor or materials furnished, including those for additions, repairs, and betterments, shall attach to the building, machinery, erection, structure, or improvement for which they are furnished or done, in preference to any prior title, claim, lien, incumbrance, or mortgage to or upon the land upon which such building, machinery, erection, structure, or improvement belongs or is put.”

. This section also provides that, if the machinery, etc., were furnished in the construction or erection of an independent building or other, improvement, commenced since the attaching of any prior title, claim, etc., the court may, in its discretion, order such erection or improvement to be sold separately, and the purchaser may remove the same within such reasonable time as the court may fix.

Mr. Carver, as lessor of the premises, had the right, under the forfeiture of his lease, to re-enter the premises ; but this did not give him any interest or title to the machinery furnished by the complainant superior to the complainant’s lien. That lien held, good as against the property furnished by it to Cody & Proctor, notwithstanding the forfeiture of the lease; and the complainant, under its bill to enforce the lien, had a right to a decree against all the defendants, and, under the statute, a right to have this property sold separately from the land which Carver owns.

The decree of the court below will be reversed, and a decree entered here in accordance with these views, and the proceedings transferred to the court below to carry out its provisions. Complainant will recover costs of both courts.

The other Justices concurred.


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    KENNEDY v. DETROIT RAILWAY.
    1. Street Railways — Location op Tracks — Rights op Abutting Owners.
    Abutting property owners have the right to insist that a street-railway track be laid in the center of the street, as required by the ordinance authorizing the construction of the road, where such location of the track is practicable.
    2. Same — Construction op Ordinance.
    The “head” of a street which runs into another street at an acute angle, within the meaning of a municipal ordinance granting the right to construct a street railway along the center of the latter street to the “head” of the former street, and thence along the center of such street, is the point where, in its full width, it terminates, giving to the other street the " additional width formed by the junction, where such a construction is consistent with the manner in which the respective streets have been regarded by the municipal authorities and by the public at large.
    Appeal from Wayne; Donovan, J.
    Submitted January 8, 1896.
    Decided February 26, 1896.
    Bill by Pemelia Kennedy to restrain the Detroit Railway from locating its track upon the side of the street adjoining complainant’s premises. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Henry M. Dujfield, for complainant.

      Charles Flowers and John B. Corliss (H. H. Hatch, of counsel), for defendant.
   Montgomery, J.

The defendant was authorized by an ordinance of the common council of the city of Detroit, approved by the mayor, to construct and operate street railways in the streets of said city of Detroit therein described, among them the following:

“A double track in, along, and upon Fourteenth avenue, from the northerly city limits to Bagg street; thence a single track in, along, and upon Bagg street, easterly, to Cass avenue; thence in, along, and upon Cass avenue, southerly, to the head of Clifford street; thence in, along, and upon Clifford street, to the intersection of Henry street.”

Henry street is the street next south of Sibley street.' The ordinance further provides (section .3):

“The railways in said streets shall be laid in the center thereof, if a single track, * * * and the gauge of the tracks shall be 4 feet 8£ inches.”

The complainant, on the 17th of June, 1895, filed a bill setting up that she was the owner of premises having a frontage on Cass street; that the width of Cass street opposite complainant’s premises was about 82 feet; that it was entirely practicable for defendant to construct its track down Cass avenue to Clifford street, along the middle of Cass avenue, with a single slight curve opposite Ledyard street; that, if constructed on such line, it would be at least 35 feet from the center of the track to the curb;' that the company was proceeding to construct its track so that, in front of complainant’s property, it would come within 9 feet of the curb. The bill averred that, if so constructed, it would result in great damage to complainant, that the ordinance did not justify such construction, and prayed an injunction.

The answer admits that, under the ordinance, it is the duty of defendant to construct its track in the center of streets over which it is to operate its road, but denies that Cass street is 82 feet in width in front of complainant’s premises, and avers that “that portion of the roadway which complainant calls Cass street is, in effect, a continuation of Clifford street, although for convenience it has been designated as' Cass avenue.” The answer also denies that it is practicable for defendant to construct its track along Cass avenue to Clifford street in the middle of said avenue by making a curve opposite Ledyard, but avers that such a construction would require the placing of an additional curve, would be a great interference with travel on said street, and would mar the beauty of said street. The appended map will illustrate the situation; showing the method of constructing a track in the center of the street, and the track as constructed by defendant.

The proofs were taken informally, and some question ib made whether complainant’s title is sufficiently shown; but we think enough appears, particularly as it is manifest that the case turned below entirely upon the questions of the feasibility of the route in the center of the street, and the proper location of the head of Clifford street, within the meaning of the ordinance.

We think it is clearly established that the line in the center of the street is practicable, and, this being established, it is the right of abutting owners to insist that that line be adopted. There can be no doubt that, in many instances, a street railway opposite the property of an abutting owner is, in fact, an inconvenience; nor do the cases denying compensation proceed upon the idea that this is not so, but rather rest upon the doctrine that such use is fairly contemplated in the original dedication, and that any injury which results from such use is damnum absque injuria.

The important question is whether the street in front of complainant’s premises is 82 feet wide. Defendant’s contention is that Clifford street really extends to the north line of Sproat street, and that that portion of the open space in front of complainant’s premises, equal in width to Clifford street further south, is a distinct street, and that it is a compliance with the terms of the ordinance to place the track in the center of this street. The map on page 395 will aid to an understanding of defendant’s contention. It appears from the evidence of the city surveyor that Cass avenue is the eastern limit of Cass Farm, and, as it was dedicated to the public, its eastern limit was indicated by the dotted line on the map; and' the city engineer draws the conclusion from this that that portion of the thoroughfare north of the

southern boundary of Ledyard street, which lies east of the dotted line, was originally part of Clifford street. By an ordinance passed in 1876, the common council changed the name of Clifford street, north of Sproat street, to Cass •avenue; and defendant’s contention is that, now, Clifford street extends to the north line of Sproat, and that it is to be treated as a street 60 feet in width to this point. But we do not discover that any of the part west of the dotted line was ever a part of Clifford street. It would result, then, that the head of Clifford street is to be treated either as the space between the dotted line and the northeast corner of Sproat street, at its intersection with Cass and Clifford, or that the dotted line from the point A to the point B is to be treated as the head. It is quite evident that the common council could not have intended that the track should be laid in the center of the space between point A and the east curb of the street, as this space is so small as to make it impracticable. If the line between A and B is to be considered as the head, it is evident that the line must be placed considerably farther west than its present location. »

But, as before stated, it is evident, on actual inspection, that there is but one street in front of complainant’s premises, and there is strong evidence to show what was meant by the council by the designation of the head of Clifford street. In 1889, the council let a contract for paving Cass ■avenue from the north curb line of Ledyard street to the south curb line of Warren avenue, and included in that space was that part east of the dotted line. In 1893 a contract was let for paving Clifford street, and the northern terminus of this pavement was the south line of Ledyard street. In addition to this, it appears that the street in front of complainant’s premises is known as “Cass Avenue,” and the buildings are numbered as on Cass avenue. We are satisfied that, when the council described the route of defendant’s road “along Bagg street, easterly, to Cass avenue; thence along Cass avenue, southerly, to the head of Clifford street; and thence along Clifford

street, to the intersection of Henry street,” — by “the head of Clifford street” was intended the point where that street, in its full width, terminated, and where it had been paved to, viz., the south line of Ledyard street.

The complainant moved promptly, and the defendant has persisted in laying its track, notwithstanding complainant’s protest and prompt assertion of her rights. The decree will be reversed, and a decree entered in accordance with the prayer of the bill. Complainant will recover costs of both courts.

The other Justices concurred.


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    WOODS v. CHICAGO & GRAND TRUNK RAILWAY CO.
    1. Master and Servant — Injury to Railroad Employé — Defective Machinery — Negligent Inspection — Evidence.
    Plaintiff, a locomotive engineer in defendant’s employ, was injured by the explosion of the boiler of the engine, alleged to have been caused by the negligence of the defendant in not properly inspecting the boiler, and in permitting its use when a large number of its stay-bolts were broken. The last hammer test was made by two of defendant’s inspectors not more than 14 days before the explosion. One of the inspectors testified that, if the bolts were broken off, but the ends were tight together, there might be very little difference in the sound of the hammer and the jar from what there would be if they were solid, —not enough to convince him that they were broken; that, if there were four bolts broken in a row, their discovery might depend upon whether or not the sheet was sprung. There was testimony tending to show that at least 90 per cent, of the broken bolts could have been discovered by the hammer inspection; that a large number of bolts had been broken for so long a time before the injury that their ends had become smooth; that the process of wearing them smooth must necessarily have been very slow; and that these holts break gradually. Held, that it was a question for the jury whether or not a proper hammer inspection was made.
    2. Same — Inference of Negligence.
    Even though the proof of'the plaintiff depended upon inference to establish the main fact, the question whether or not that inference was sufficiently rebutted was for the jury; the rule being different than where the defense consists of a distinct fact, not inconsistent with the plaintiff’s proofs.
    3. Same — Notice of Defects.
    Defendant’s locomotive inspector testified that, four days before the accident, he examined the left side of the fire-box, and that it was leaking badly; that he noted this fact in a book kept f orthat purpose, with an instruction that the fire-box be examined; and that it was the duty of one B. to examine it and see to its repair. B. testified that he made said examination, and stopped the water squirting from the mouthpiece on the left side, after which there was nothing to indicate that there was anything wrong; that he reported this repair, but did not, as was his duty, note on the book the fact of such examination. Held, that it was competent for the jury to infer that the inspector of engines was right in saying that there was a leak on the left side of the fire-box, and that a careful examination at that time would have disclosed a defective condition of the boiler, and prevented the accident.
    4. Same — Reasonableness of Inspection — Instructions to Jury.
    The circuit judge instructed the jury that, if they should believe from the evidence that the engine was overhauled and inspected, and subjected to the hydrostatic test, by competent men, within two years from the time of the explosion, and also thoroughly and carefully tested by the hammer test, by competent testers, within 30 days of the explosion, — it appearing from the testimony that those ways of testing had been adopted by railway companies as the best tests they could give, —then defendant had done all that it could be asked to do, and was not guilty of the negligence charged. Held, that this instruction defined what would, as a matter of law, be a reasonable inspection, and what would constitute a reasonable time, and that it operated to remove all ground for an objection that earlier portions of the charge were not sufficiently definite in these particulars.
    5.Same — Evidence.
    A witness who had not counted the old breaks, but who showed sufficient knowledge to enable him to estimate the number, was properly permitted to give such estimate.
    6. Same — Opinion Evidence — Competency of Witness.
    A witness who had been a locomotive engineer for five or six years, who had known stay-bolts to break, and seen them taken off, and who had been in railroad shops a great deal during the time mentioned, was competent to testify whether the bolts examined by him had been recently broken.
    7. Same — Excessive Damages — Discretion of Circuit Judge.

    Defendant moved for a new trial on the ground of excessive damages. The verdict was for §6,500. Plaintiff was 31 years old when injured, and was earning §103.54 per month. The proofs tended to show that he was disabled from following his profession, and was able to do scarcely any work of any kind, and that in all probability his disability was permanent. Held, that the discretion of the circuit judge in denying the motion, would not be overruled.
    Error to Calhoun; Smith, J.
    Submitted January 9, 1896.
    Decided February 26, 1896.
    Case by "William Woods against the Chicago & Grand Trunk Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Geer & Williams (E. W. Meddaugh, of counsel), for appellant.

      M. L. Howell, for appellee.
   Montgomery, J.

The plaintiff was a locomotive engineer in the employ of the defendant. On the 13th of June, 1892, while he was engaged in running engine No. 29 in the usual and customary way, and, as he testified, with no more pressure than usual, and with less than was allowed, the boiler exploded, and by force of the explosion the plaintiff received serious injuries. The negligence imputed to the defendant was in not having inspected its boiler properly, to ascertain whether it was in safe condition, and in permitting its use when in bad repair, by the reason of a large number of stay-bolts being broken, and others corroded, and permitted to remain so for a long time, to wit, 30 days, prior to the injury.

The rule relating to the duty of the defendant in supplying appliances for the use of its employes is well settled. While not an insurer, it is nevertheless its duty to use reasonable and ordinary diligence in providing safe machinery and appliances in the first instance, and, by continued inspection at such intervals as the reasonable and proper conduct of such a business requires, to ascertain whether the appliances continue in safe condition, and, if unsafe, to put them, in safe condition. The master is not responsible for latent defects, not discoverable by inspection; but, to the extent that this duty of inspection goes, it is the master’s duty, which he cannot escape or delegate. Anderson v. Railroad Co., 107 Mich. 591; Tangney v. J. B. Wilson & Co., 87 Mich. 455; Fuller v. Jewett, 80 N. Y. 46 (36 Am. Rep. 575); Ford v. Railroad Co., 110 Mass. 259. The defendant’s counsel do not contend against the rule as stated, but assert that the evidence in the present case shows conclusively that the engine was originally constructed in the proper manner; that proper inspection was made at such intervals as was usual and customary in good railroading, and that there was no direct testimony disputing the testimony of defendant’s witnesses called to prove such inspection, and no evidence from which neglect in this respect could be inferred; and, furthermore, though the court should be of opinion that evidence adduced by the plaintiff tended, by inference, to show the want of proper inspection, the positive testimony adduced by the defendant repelled such inference, so that at the close of the testimony it was the duty of the court to direct a verdict for the defendant.

The testimony offered by the plaintiff tended to show that the stay-bolts connecting the inner and outer sheets of the boiler, and supporting and sustaining them, had become broken, to the number of about 50 or 60, and had been broken for a sufficient length of time before the explosion so that the ends had become worn smooth; that the material of which the boiler was constructed was of the first quality, and could not explode if kept in good repair; that hydrostatic and hammer tests, employed by this defendant and other companies, when properly conducted, were, either, sufficient to show the presence of broken bolts; that, by the hammer test, at least 90 per cent, of the broken stay-bolts could be discovered. The last hammer test which defendant’s witnesses claimed to have made was about the first of June,- — not more than 14 days before the explosion. It is contended that these broken stay-bolts show by their appearance that they must have been broken for a much longer period, in order that the broken ends should become worn smooth. It is difficult to account for these broken ends, yet it is a fact, established by credible testimony, that they were smooth. Various theories are advanced by plaintiff’s counsel as to what caused the smooth ends of the broken parts, any of which would imply that considerable time must have elapsed after the breakage, and before the broken parts could be in the condition presented after the explosion. The two witnesses who made the hammer test on or about the 1st of June are Mr. Hunter and Mr. Neeley. Neeley testified on cross-examination that if the stay-bolts were broken off, but the ends were together pretty tight, there might be very little difference in the sound of the hammer and the jar from what there would be if it were solid,' — -‘‘not enough to convince me it was broken. ” He further testified that if there were four stay-bolts broken in a row, whether they were discovered or not might depend upon whether the sheet was sprung, There was other testimony tending to show that 90 per cent., at least, of the broken stay-bolts would be discovered by the hammer inspection. We think, in view of this testimony, and the testimony which tended to show that a large number of the stay-bolts were broken a sufficient length of time before the injury so that their ends had become worn smooth, and that the process of wearing them smooth must have been very slow, according to any theory, and in view of the fact that the testimony shows that these bolts break gradually, it became a question for the jury whether the witnessess Hunter and Neeley made a proper hammer test at the time stated. If their testimony could not be disputed in the manner adopted in this case, it follows that, however incredible the surroundings may make their testimony that they performed their full duty, their testimony must be accepted as true. Even though the proof of the plaintiff depended upon inference to establish the main fact, yet whether the inference was sufficiently rebutted was a question for the jury. Crosby v. Railway Co., 58 Mich. 458; Hagan v. Railroad Co., 86 Mich. 615. The rule is different if the defense consists of a distinct fact, not inconsistent with the proofs offered by the plaintiff.

There is other significant testimony in the case, which not only has a direct bearing on the question of whether a proper inspection was made, but tends strongly to show subsequent negligence by defendant’s servants, if it does not show such negligence conclusively. James Spear-man was locomotive inspector for the defendant. On the 9th day of June, four days before the accident, he discovered defects, which he noted in a book kept for this purpose, as follows: “Put bolt in right jaw of engine truck, and tighten up others all around. Examine left side of firebox; leaks badly. ” He testified on the stand that he examined the left side of the fire-box, and that it was leaking badly, and that it was the duty of Thomas Browning to examine it and see to its repair. This witness was •called, and, on cross-examination, testified as follows:

Q. While you were there, what did you notice at the left, side?
“A. I noticed nothing at the left side, — only the water .squirting from the mouthpiece on the left side. After stopping that, there was nothing to indicate there was .anything wrong.
Q. The inspector who reported there was a leak there was mistaken?
A. He was mistaken.
Q. Either he or you were mistaken?
A. I know I was not mistaken.
Q. You are sure of that?
“A. Yes, sir.
Q. Did you make any entry besides this?
“A: No, sir; because I did not think there was any need of it.
“ Q. You reported the mouthpiece corked?
“A. Yes, sir.
“Q. You did not say anything about whether there was any leaking, or whether you had examined this?
“A. No, sir; because—
“Q. (interrupting). Never mind why. The way that was given here was this: ‘Examine left side of fire-box;
leaks badly.’ You were not required to do anything but examine, and you didn’t think it worth while to report you had examined it, did you?
“A. There was nothing there leaking.
“Q. After you had found that there was nothing there to show that it was leaking, wasn’t it your duty to put on this book that you had examined it?
“A. There is lots of work we don’t put on that book.
“Q. Was it not your duty to put it on that book?
“A. It might have been.
“ Q. Wasn’t it?
“A. Well, yes.
Q. Well, why didn’t you do so? Why didn’t you do it?
“A. Because there was nothing there to enter. There was nothing there to be done. There was nothing wrong.
“Q. If there was any work to be done— Supposing a stay-bolt had been broken, or was broken.
“A. Then I would report it.
“Q. Who found out whether there were any stay-bolts broken, — you?
“A. I would have found out.
Q. Don’t you have two inspectors?
“A. Yes, sir.
Q. Was it not your duty to report to them about this requiring an examination, instead of making it yourself?
“A. If I found anything wrong.
“Q. They were the fellows to go there and find anything wrong, were they not?
“A. I very often found things wrong, and reported them.
“Q. Who was this entry made by, — about the leaking fire-box?
“A. By Spearman, the inspector of engines.
“Q. Is he over or under you?
“A. He is over me.”

I¡n view of the peculiar nature of this testimony, it was certainly competent for the jury to infer that Spearman was right in saying that there was a leak on the left side of the fire-box, and that it was not attended to, and that a careful examination at that time would have disclosed a defective condition of this boiler, and prevented the accident.

This testimony is important to be considered in connection with defendant’s criticism of the instruction to the jury:

“ It was the duty of the defendant to exercise reasonable care and skill in keeping its boiler in a reasonably safe condition; and, if need be for the accomplishment of that purpose, it was its duty to frequently inspect, examine, and test its strength and sufficiency. If any defect existed which a reasonably careful test or inspection would have discovered, the defendant should have had notice of such defect, and is responsible for it. * * * If the stay-bolts were broken for some considerable time before the explosion, and if you believe that a reasonably careful examination of the boiler within such time would have disclosed such defects, it was the defendant’s duty to have known of such defects.”

In view of the foregoing testimony, it is difficult to see how defendant could have been damaged by this instruction ; for it appears that here was a discovered leak, suggesting inspection. There can be no doubt that a proper inspection, by the hammer test, at that time, would have disclosed the defect which resulted so disastrously four days later; and it would have been error for the court to have charged, as matter of law, that the defendant’s agents were not negligent in attending to the defect. Rut a further answer to this criticism is that the court afterwards charged the jury specifically as follows:

“These ways or manners of testing, as shown by the evidence, are adopted by railways as the best tests they can give. I i'efer to the inspections and tests which have been shown you are in general use regarding locomotive engines. And if you believe from the evidence given you in the case that these tests were made — actually made — by the defendant; that is, that this engine was overhauled and inspected, and subjected to the hydrostatic test, by competent men, within two years of the time of the explosion, and also thoroughly and carefully tested by the hammer test, by competent testers, within 30 days from the time of the explosion, — I say, if you find these tests were made, then defendant has done all that it can be asked to do, and would not be guilty of negligence, and ought not to be held in this action.”

This instruction defined what would, as a matter of law, be a reasonable inspection, and what would constitute a reasonable time, and could not have been misunderstood by the jury.

Error is assigned upon the admission of testimony by a witness of the plaintiff, giving his judgment as to the length of time the stay-bolts had been broken. But no objection or exception was taken to this testimony. Objection was made to his testifying to the number of old bi’eaks, but on the ground that he did not count them. This objection was not good, as he gave an estimate, and showed sufficient knowledge to entitle him to do so. Objection was made to the question, “What do you say as to whether these stay-bolts that you speak of as old breaks were recent?” This was objected to for the reason that he had not shown himself competent, but we think he was competent to answer this question. He had been a locomotive engineer for five or six years, and had known stay-bolts to break, and had seen them taken off, and had been at the Battle Creek shops a great deal during that time.

The court charged the jury as follows:

‘ ‘ It is the province of the jury to pass upon the credibility or truthfulness of witnesses. They go upon the stand here. You see them; you note their demeanor and their bearing, and the reasonableness of what they tell before you; and from all these things you pass upon their credit, as to whether they are telling the truth or not. Now, in this case there, perhaps, may he some conflict of testimony. At any rate, it has been suggested here that some of the witnesses have not testified to the facts just as they were. It is for you, taking into consideration their surroundings, the interest they may have in the case, if any, their bearing upon the stand, and the reasonableness of' their story, to say whether they have told the truth or not. You are not obliged to believe a person because he swears to a thing, but you should be governed by those elements of common sense which guide you in determining the truth of matters in every-day life; bearing in mind, of course, that witnesses are under a solemn oath.”

This is excepted to, and, it is said, must have been understood by the jury as applied to Hunter’s and Neeley’s testimony, and that it was not proper, for the reason that they were uncontradicted; but, as we have already stated, it was a question for the jury as to whether there was not contradiction in the testimony offered by the plaintiff.

Defendant moved for a new trial on the ground of excessive damages. The verdict was for $6,500. Plaintiff was 31 when he received the injury, and was drawing $103.54 per month; and the proofs tend to show that he is now disabled from following his profession, and is able to do scarcely any work of any kind, and that he is probably permanently disabled. We do not, under these circumstances, feel warranted in interfering with the discretion of the circuit judge, who saw the plaintiff, and could better judge of his condition than we can.

Judgment affirmed.

The other Justices concurred.


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    EAMES v. MILLER.
    Partnership — Accounting—Review on Appeal.
    Upon an appeal in a partnership accounting case, it appearing that the accounting made by the court below was full and fair as between the parties, the decree was affirmed.
    Appeal from Kalamazoo; Buck, J.
    Submitted January 17, 1896.
    Decided February 26, 1896.
    Bill by Charles B. Eames against George W. Miller, Horace G. Haines, George S. Foster, Gardner T. Eames, and others, for a partnership accounting. Complainant appeals.
    Affirmed.

      Edwards & Stewart, for complainant.

      Boudeman & Adams, for defendants Miller and Haines.
   Long, C. J.

This bill is filed for the dissolution of a partnership called the Eames Pulley Company, and for an accounting between the partners. In October, 1889, the complainant, who resides at St. Louis, Mo., and his brother, defendant Gardner T. Eames, residing at Kalamazoo, this State, were interested in certain letters patent for the making of wood split pulleys. They had theretofore been engaged in making pulleys under said patents at Bacine, Wis., and had a half interest in that business, which was carried on by Stecher, Webber & Huetton. That business, apparently, had failed, and all there was left of it was certain machinery, engines, boiler, and other fixtures. Complainant and his brother also had certain other property at Kalamazoo, but which was largely incumbered. Defendant Foster resided at St. Louis, Mo. Through him, defendants Miller and Haines, who resided at Kalamazoo, became acquainted with the complainant and his brother, Gardner T. Eames, and an arrangement was made by which it was agreed to form a partnership called the Eames Pulley Company. Articles of copartnership were drawn and signed by the parties, complainant and his brother, Miller, Haines, and Foster, each owning two-ninths interest, except the complainant, who owned one-ninth. By the copartnership agreement, complainant and his brother were to assign to the copartnership all their title and interest in the patents upon the pulleys, and to transfer to Miller, Haines, and Foster their interest in the property at Racine, Wis., and at Kalamazoo, and Miller, Haines, and Foster were to furnish the moneys to purchase from Stecher, Webber & Huetton their interest in the Racine property at the sum of $2,200, and to pay the debts of Eames Bros., contracted in the Kalamazoo factory and for the property and machinery placed therein, amounting to $4,300. Foster was to be president of the company, Miller vice president and general manager, Haines secretary and treasurer, and Gardner T. Eames superintendent of the works. It was further agreed in the articles that Gardner T. ■ Eames, as superintendent, was to give his entire time to the business, under the direction of the general manager, and for his services was to receive $1,200 per year, payable weekly; but it was further provided that, if his services were not satisfactory to the majority of the copartnership, he was, at their request, to resign his position. Eames Bros, were to pay nothing into the business, except as before stated. These articles of copartnership were dated October 11, 1889, and the copartnership commenced and dated from November 11, 1889. The machinery was brought from Racine, and Gardner T. Eames, as superintendent, commenced work in placing the machinery in position, getting ready for business, etc. Miller and Haines, becoming dissatisfied with his management after the lapse of a few months, — Foster joining with them, — requested Gardner T. Eames to resign his position, which he did; and Miller then took charge, and carried on the business a few months longer, when it was closed down. In the meantime Miller and Haines had advanced moneys, over and above the amount stipulated to be paid above, to carry on the business. The debts of the concern had, in the meantime, run up to about $5,000, and to secure these Miller and Haines had given security upon the company property to the defendant the First National Bank of Kalamazoo.

Upon the filing of this bill, defendants answered; and Miller and Haines claim, by their answer, — and they gave testimony on the hearing tending to substantiate the claim, —that they were induced to enter into the copartnership by Eames Bros, upon the. representation that Gardner T. Eames was a good mechanic, and would make a first-class superintendent of the shop; that the pulleys had proved satisfactory, and large numbers had been sold at Racine, which’had given good satisfaction; that they had also sold a great many pulleys in the East, and that 33 per cent, profit could be made; also, that the shop would have a capacity of 75 pulleys per day after it got to running, and that Gardner T. Eames would have the shop running in six or seven days after the machinery was received from Racine. They gave testimony, upon the hearing, showing, further, that but few pulleys had been sold at Racine; that of the car load shipped east only $79 had been paid thereon, and the balance refused; that they had not given satisfaction; and that they were too expensive to make to meet the demands of the trade with any profit. They further showed that, within 10 weeks after the company organized, it became, under Gardner T. Eames’ management, largely indebted, and that no product of consequence was turned out.

After the filing of the bill, a receiver was appointed, who took possession of the property, and, under the direction of the court, sold the same at public auction. The moneys arising from the sale were paid, by order of the court, over to the First National Bank of Kalamazoo, to pay the indebtedness of the rcompany. No appeal was taken from that order. Upon the final hearing, after the proofs were taken, the court made a decree dissolving the copartnership, in accordance with the prayer of the bill; and the court found that there was due from the complainant to Miller and Haines the sum of $356.51, and that there was due from defendant Gardner T. Eames to Miller and Haines the sum of $713.02. The costs of the proceedings were awarded to Miller and Haines against the complainant. Defendant Foster’s interest in the matter had been settled amicably between himself and Miller and Haines before the entry of .the decree. Complainant appeals from the decree.

We have examined the testimony with care, and are satisfied that the decree was correct. The accounting made by the court was full and fair as between the parties, and it would not profit anyone to set out in detail further of the facts. It was purely a question of fact, and we think the decree abundantly supported by the evidence.

The decree will be affirmed, with costs, to be taxed in favor of defendants Miller and Haines.

The other Justices concurred.


author: Hooker, J.

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    TOWL v. BRADLEY.
    Jurors — Voir Dire Examination — Statute of Limitations.
    Under a plea of the statute of limitations, counsel for the defendant has a right, as a means of determining whether or not to exercise the right of peremptory challenge, to question jurors with reference to their prejudices against such a defense.
    Error to Muskegon; Russell, J.
    Submitted January 17, 1896.
    Decided February 26, 1896.

      Assumpsit by Albert Towl against James M. Bradley for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Reversed.

      F. W. Cook, for appellant.

      Bunker & Carpenter, for appellee.
   Hooker, J.

This case is within the rule laid down in Monaghan v. Insurance Co., 53 Mich. 245. The defendant had a right to question the jurors upon the subject of their prejudices against the defense of the statute of limitations, as a means of determining whether or not to exercise the right of peremptory challenge.

As the other assignments of error are not discussed in the brief, we do not pass upon them.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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      In re HOGMIRE’S APPEAL.
    1. Wills — Mental Capacity — Non-expert Witness.
    Non-expert and non-professional witnesses, before being permitted to give an opinion as to the mental competency of a testator, must state facts and circumstances as a basis for their opinion.
    3. Same — Hypothetical Questions.
    The opinions of such witnesses cannot be sustained or attacked by their further opinions based upon hypothetical questions.
    Error to Branch; Yaple, J.
    Submitted January 15, 1896.
    Decided February 26, 1896.
    Agnes Hogmire appealed from an order probating the will of John Sager, deceased. The will was again sustained at the circuit, whereupon she removed the cause to this court by writ of error.
    Judgment reversed.
    The issue involved in this case is the competency of the deceased, John Sager, to execute a will. One of the witnesses to the will was Henry Brooks. The proponents introduced him as a witness, and simply proved its execution, asking no questions as to the mental condition of the testator. The will was executed August 10, 1893. The contestant, on cross-examination, elicited from him testimony to the effect that he had known deceased from 1863 to the time of his death, had more or less conversation with him as a neighbor, talked about business matters, had been with him on a trip to buy property, noticed a change in him as he grew older; he was excitable, and at times did not know what he wanted to do; he was forgetful; and, from what he knew of him, he did not consider that he was competent at the time to make a will. On redirect examination, the' following question was asked:
    “Mr. Brooks, supposing that a man was troubled with a stomach trouble, as you say Mr. Sager was, and about his age, and he sent for a justice of the peace, and he told him that he wanted some deeds drawn, why he wanted them drawn, how he wanted them drawn; and, when he came back, it was not drawn just exactly as he wanted it, and he pointed out to him the thing he wanted in the will that was not there, and the man goes back and writes a new will, and then he goes back, and that man signs the will, — taking those circumstances just as I have stated them, what do you say as to the mental capacity of that man to make a'will?”
    This was objected to on the ground that the witness was not an expert or professional witness, and it was therefore incompetent to put to him hypothetical questions. The objection was overruled, and exception taken. His answer was, “If a man knew enough to do that right there, it would be all right enough.” The jury sustained the will. '

      H. H. Barlow, for appellant.'

      H. C. Loveridge (John B. Shipman, of counsel), for proponents and appellees.
   Grant, J.

(after stating the facts). The admission of this evidence is the sole allegation of error. The proponents seek to sustain it upon the theory that it was not aimed at the testator’s capacity, but at the competency of the witness to give his opinion, or, in other words, for the purpose of ascertaining the witness’ idea of mental competency. They also insist that the same rule of cross-examination applies to non-professional and non-expert, as to professional and expert, witnesses. They cite in their brief several cases from the courts of New York, Indiana, California, and Wisconsin. In all the cases cited, the question arose upon the testimony of professional expert witnesses. No case cited involves this question. The case of Rambler v. Tryon, 7 Serg. & R. 90, cited by the contestant, is directly in point, and holds such testimony incompetent. While the question has not been directly before this court, the case of Rice v. Rice, 50 Mich. 448, is of some import. Similar questions were propounded to non-expert witnesses upon the direct examinations, and were held incompetent. In the present case, while the question arose upon the redirect examination, yet, practically, it was cross-examination, and must be so regarded under the authority of Kempsey v. McGinniss, 21 Mich. 148, wherein it was held:

“ In this particular class of cases, and upon the question of mental soundness or unsoundness, after a prima facie case has been established by the proponents, the case, for all purposes connected with the order of proof upon that question, stands the same as if the burden of proof throughout rested upon the contestants to show mental incapacity.”

The firmly-established rule in this State is that non-experts and non-professionals, before they can give any opinion upon the incompetency of the testator, must state facts and' circumstances as a basis for their opinions. Without giving some such facts or circumstances inconsistent with competency, such opinions are inadmissible. The reason for the rule has been frequently stated in the decisions of this court. Beaubien v. Cicotte, 12 Mich. 459; Kempsey v. McGinniss and Rice v. Rice, supra.

The question propounded to Mr. Brooks involved conditions and supposed facts of which he knew nothing. It was a hypothetical question, and we find no authority to sustain its admissibility. On the cross-examination of experts, a broad latitude is allowed, and some cases hold that it is not necessarily confined to the facts in evidence. Hnderh. Ev. § 188, and authorities there cited. The ■opinions of laymen are limited to the facts and reasons ■derived from actual observation. Their opinions based thereon are only admissible because the courts have recognized the difficulty in the ability of witnesses to describe to the jury all the appearances and conditions which enter into their opinions. Subscribing witnesses have generally been held competent to testify upon the mental condition of the testator, without even stating the facts upon which their opinions are based. But many early cases held that the opinions of laymen, aside from subscribing witnesses, were incompetent, and there is much force in their reasoning. Rogers, in his work on Expert Testimony (section 67), states the consensus of authority as follows:

“The result has been that many of the earlier cases have been overruled, and the principle has come to be -generally recognized that non-professional witnesses may give their opinions as to sanity, as a result of their personal observation of the person whose mental condition is in question, after first stating the facts which they have observed.”

He cites a large list of authorities. The courts in New York and Massachusetts still exclude such opinions. Rog. Exp. Test. § 67, pp. 158, 159, where the decisions in those States will be found cited. We see no sound sense or reason in holding that the opinions of laymen upon mental competency, which, at the best, are not of great value, should be sustained or attacked by their further opinions upon hypothetical questions. The rule in regard to such evidence should not be enlarged.

It follows that the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


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    FRACTIONAL SCHOOL DISTRICT NO. 1, PAW PAW AND ANTWERP TOWNSHIPS, v. YERRINGTON.
    1. Schools and School Districts — Nonresident Pupil — Liability op Parent por Tuition.
    It is not necessary, in order to charge the father of a nonresident infant pupil for tuition, that notice of an intention to charge tuition, or of the adoption of a resolution fixing the rate of such tuition, should he given to the father by the district board.
    2. Same — Remedy op District.
    There is no force in the contention that the remedy of a graded school district for the nonpayment of tuition by a nonresident pupil is by the statute (Act No. 21, Pub. Acts 1891) limited to the expulsion of the pupil.
    Error to Van Burén; Buck, J.
    Submitted January 16, 1896.
    Decided February 26, 1896.

      Assumpsit by Fractional School District No. 1, Paw Paw and Antwerp Townships, against Charles E. Yerrington, to recover tuition for a nonresident, pupil. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Titus & McNeil, for appellant.

      T. J. Cavanaugh, for appellee.
   Hooker, J.

The plaintiff, a school district, brought an action against the father of a nonresident infant pupil, for tuition, and appeals from an adverse verdict, directed by the circuit judge, upon the ground that it had “failed to prove that the defendant had any legal or sufficient notice that such tuition would be charged.” Counsel for the defendant contends that the direction to find a verdict was warranted, not only by the reason given, but by other reasons, viz.:

1. That the defendant was not shown to be a nonresident of the district.
2. That a resolution, declaring rates of tuition, had not been legally passed and recorded by the school board.
8. That the defendant had no notice of the adoption of such resolution.
4. That no agreement to pay such tuition was shown.
5. That the remedy was by expulsion of the pupil, and not by action.

The record shows that a resolution was passed and recorded, fixing rates of tuition for nonresident pupils. As the brief does not point out wherein this resolution or record was defective, we have no occasion to discuss it.

There was testimony showing that the defendant was a nonresident of the school district.

There is no evidence that notice of the existence of the resolution fixing rates of tuition was given to the defendant. The defendant’s daughter attended school during the school years of 1893 and 1894, during which period she lived in the family of a Mrs. Koons. She was brought there by a Mr. Mosier, who was shown to be “ county agent.” A week later the defendant came, and made arrangement by which she was to live there, and attend school, he to furnish her with clothes and to pay her expenses, aside from her board, which, under arrangement made between Mosier and Mrs. Koons, she was to work for.

Apparently, this is a case where a child living in one district is sent to another to “board and go to school.” In Thompson v. School District, 25 Mich. 483, the court held that, “before any action could be maintained for the tuition of defendant’s child, the district board must have fixed the rate of tuition for nonresident pupils by resolution, duly recorded.” There is nothing in the case that warrants the assertion that it was there held necessary to notify the defendant of the adoption or existence of the resolution, or that tuition would be charged. There is, in this case, however, evidence that the defendant was notified twice, by mail, that tuition was due, and two or three dollars was paid upon it. This was paid to the board by Mr. Titus. It does not appear why he paid it. "We think it was unnecessary that notice of the adoption of the resolution, or of an intention to charge tuition, should be given. Every citizen should know that nonresident- pupils have no right to share the school privileges with resident children, except by virtue of action taken by the board under the statute; and until the board has taken such action, and fixed the rates of tuition, the nonresident pupil has no right to attend. When such pupil does attend, the proper action having been taken by the board, there is no reason for denying compensation to the district, which the defendant impliedly promised to pay when he sent his daughter to the plaintiff’s school. The adoption of the resolution and its proper record removed any disability of the district to sue which might otherwise have existed.

We think there is no force in the claim that its only remedy was by expulsion of the pupil.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    GILL v. BACKUS.
    1. Judgment — Collateral Attack — Log-Lien Suit — Bond of Intervener.
    In an action upon a bond given by an intervener in a log-lien suit, conditioned for the payment of any judgment that might be rendered against the property, neither he nor his sureties can question the validity of the judgment so rendered, unless it is void in whole or in part upon its face.
    3. Same — Costs.
    The defendants in a suit upon such a bond, given on proceedings instituted in the circuit court, sought to attack the judgment, in so far as costs were included therein, on the ground that the amount of plaintiff’s lien, as found by the jury, was less than $100, and that costs should have been awarded to the defendant. Held, that this was at most but •an irregularity, remediable only by proceedings in the original suit, and did not render the judgment open to collateral attack.
    Error to Alcona; Simpson, J.
    Submitted January 29, 1896.
    Decided February 26, 1896.
    Debt by George A. Gill against Absalom Backus, Jr., Joseph Van Buskirk, and Bernard P. Cowley, upon a bond given for the release of property attached under the log-lien law. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.
    O. H. Smith, for appellants.

      J. H. Killmaster and M. J. Oonnine, for appellee.
   Hooker, J.

Gill brought an action in circuit court by attachment, under the log-lien law, against Morrill & Morrill, copartners, claiming a lien for $135 upon certain lumber. Backus intervened as owner of the lumber, and gave a bond for the release thereof. The trial resulted in a verdict in favor of Gill for 1105.64 damages, $52.50 thereof being found to be a lien upon the lumber. Judgment was rendered upon the verdict, for the. damages aforesaid, and concluded as follows:

“And it is further considered, ordered, and adjudged that the said plaintiff do have a lien upon the property-described in his declaration in this cause to the amount of fifty-two dollars and fifty cents, with his costs, disbursements, charges, and expenses of suit to be taxed, and that the plaintiff have execution thereof.”

Costs were taxed at $45.56.

In an action upon the bond, the plaintiff recovered $101.98, made up as follows: The damages to amount of lien, $52.50; costs taxed, $45.56; interest, $3.92.

The only question raised in the case is the validity of the judgment for costs in the original attachment case, it being contended that the defendant, and not the plaintiff, should be entitled to costs where the amount recovered in circuit court is less than $100. The defendant Backus took no steps to review the judgment in the attachment case,. and, as the bond undertakes to pay the judgment, neither Backus nor the sureties can question the judgment, unless it is void in whole or in part upon its face. Clinton v. Laning, 73. Mich. 284; Clinton v. Rice, 79 Mich. 359. The circuit court had jurisdiction of the case, inasmuch as the amount of lien claimed in the affidavit exceeded $100 over and above all legal set-offs. 3 How. Stat. § 8427g. No claim is made that it had not jurisdiction of the parties. Section 8427Í permits a recovery of costs, and their collection by sale of the property attached. The most that can be claimed by the appellants is that, under 2 How. Stat. § 8967, the court should not have awarded costs to the plaintiff, and should have given the defendant costs, inasmuch as the jury found that the lien was less than $100. But this was at most an irregularity, which could only be corrected by proceedings in that cause. The judgment cannot be collaterally impeached. It therefore becomes unnecessary to discuss the other questions in the case.

The judgment is affirmed.

The other Justices concurred.