author: Ostrander, J.

text:
    BRUCE v. CENTRAL METHODIST EPISCOPAL CHURCH.
    1. Charities — Charitable Trusts — Church Funds.
    The funds of a church, not held subject to any express trust created by their donor, but which may not be devoted to the use of any other religious denomination or to other than religious purposes, constitute a charitable trust, though they are to be used, not for the benefit of an indefinite number of persons, but for the benefit of those coming within the influence of the particular church. |
    2. Same — Liability eor Torts.
    Corporations administering a charitable trust, like all other corporations, are subject to the general laws of the land, and cannot claim exemption from responsibility for the torts of their agents, unless that claim is based on a contract with the person injured by such tort.

      3. Same — Religious Societies — Personal Injuries —Liability.
    A Methodist Episcopal Church, incorporated under Act No. 11, Pub. Acts 1899, is liable to an employé of a contractor engaged in decorating the church building, for injuries sustained by reason of the breaking of defective scaffolding furnished by the agents of the church.
    Case made from Kent; Wolcott, J.
    Submitted April 20, 1906.
    (Docket No. 34.)
    Decided March 5, 1907.
    Case by Albin Bruce against the ' Central Methodist Episcopal Church for personal injuries. There was an order sustaining a demurrer to the declaration, and plaintiff appeals.
    Reversed.

      Carroll, Kirwin & Hollway, for appellant.

      D. C. Sheldon (N. O. Griswold, of counsel), for appellee.
    Counsel in this case have assumed, and the court assumes, that defendant is incorporated under the provisions of Act No. 11, Pub. Acts 1899, entitled “An act for the organization of corporate Methodist Episcopal Churches.” It is located at the city of Belding, in this State. It is, by the terms of the act (§ 5)—
    “Subject in all matters of church government and ecclesiastical polity to the discipline, usage and ministerial appointments of the Methodist Episcopal Church in the United States of America, as from time to time authorized and declared by the general conference of said church and the annual conference within whose bounds such corporation may be situated.”
    Other provision’s of the act are (§ 7):
    * ‘ It may hold so much land as may be needful for the proper purposes of said church and its parsonage. * * * It may sell, mortgage and dispose of its personal property; and may mortgage and incumber its real estate* but not for the current expenses of the church.”
    “Sec. 9. Whenever it shall become necessary, for the payment of debts or with a view of reinvestment, to make a sale of any real estate belonging to said church, the quarterly conference of said church may, by a vote of a majority of all the members of said quarterly conference and the consent of the pastor of said church and of the presiding elder of the district of which such church may or shall be a part, authorize a sale of said real estate by the trustees of said church, with such limitations and restrictions as the quarterly conference may judge necessary and impose; and the trustees of said church, when so authorized, may sell and convey said property, and with the proceeds of such sale pay the debts of such corporation, or reinvest the said proceeds by the purchase or improvement of other property for the same uses and deeded to the corporation in the same manner as provided in section seven of this act, as said trustees may be directed by the quarterly conference: Provided, That in all cases the proceeds of such sale, after the payment of debts, if any, if not applied to the purchase or improvement of other property as aforesaid, shall be held by such corporation subject to the order of the annual conference within the bounds of which such property is located. In all cases where property belonging to any church incorporated under the provisions of this act has been abandoned, and is no longer used for the purpose for which said property was acquired, or said corporation has dissolved, or has ceased to exist, the title to the said property belonging to said corporation shall pass to the annual conference within the bounds of which said property is located; and said annual conference may, by such officer or committee as said annual conference may designate for that purpose, apply to the circuit court in chancery, for the county in which such property may be, for license to sell the same; and such license may be granted by said court after such notice of said application as the court may direct; and thereupon said property may be sold, and the proceeds of such sale applied or used as said annual conference may direct.”
    ‘£ Sec. 6. The temporalities of said church shall be managed by a board of trustees, consisting of not less than three nor more than nine members, to be elected by said corporation from its members. * * * ”
    The declaration of the plaintiff sets out, with proper allegations of duty and breach thereof, that defendant is owner and possessed of certain real estate, upon which it was building a church, to be used and occupied for the purposes of its organization, and had caused to be erected a scaffolding or stage therein for the use of employés of defendant and others engaged in the work of erecting the church; that plaintiff was employed by a contractor who had contracted with defendant to do the tinting of the ceiling and interior walls of the church, and in such service, while properly using this stage, he was, because of the defective condition thereof, thrown from the scaffold or stage to the floor of the church, sustaining severe injuries. In the second count of the declaration it is alleged that the scaffold was erected by defendant, and, further, that:
    “The said defendant had entered into a contract or agreement for the tinting and kalsominingthe interior walls and ceiling of said church with one Alfred Wixstrom, in whose service and employ the said plaintiff then was, and, as a part of said contract and agreement, said defendant agreed that said staging or scaffold was safe and suitable for the purposes for which it was used, as aforesaid, and that it would keep and maintain the same in such safe and suitable condition for-such user.”
    It is contended that, however other questions which are discussed may be answered, under this count, the contract is the foundation of the action, and the defendant therefore liable. The defendant demurred to the declaration, and for grounds of demurrer set out:
    “1. It is not shown by said declaration under what particular statute the defendant is incorporated, nor the purpose of its incorporation, except so far as the same may be inferred from its corporate name.
    “2. It is not shown by said declaration that the defendant owed to the. said plaintiff any duty, the neglect of which was the cause of the plaintiff’s injuries, as therein claimed.
    “3. It appears from said declaration that the plaintiff was not in any way or manner in the employ of the defendant, or that the relation of master and servant existed between them at the time of the plaintiff’s alleged injuries.
    “4. It appears from such declaration that the defendant is a corporation ox’ganized for the purposes of public charity, and is not liable for any neglect or default of any agent or servant having the care or custody of its property.
    “5. That the said defendant is a corporation organized for the purposes of public charity and the teaching of religion, and as such is not liable for the act or neglect of any' trustee or officer of such corporation; such corporation not being organized for the purpose of business, gain or reward.
    “6. Said declaration is otherwise uncertain and insufficient in law, and does not state a cause of action against the defendant.”
    The demurrer was sustained.
   Ostrander, J.

(after stating the facts). The course which the argument has taken makes it unnecessary to notice the first, third, and last grounds of demurrer; it is to the second, fourth, and fifth grounds that the attention of the court has been directed.

Counsel- for both parties recognize the distinction between an incorporated religious society and the church or spiritual body with which it may be affiliated, or according to the creed or discipline of which it may conduct its religious services and admit to spiritual fellowship. Hardin v. Baptist Church, 51 Mich. 137; Wilson v. Livingstone,, 99 Mich. 594; Methodist Episcopal Church v. Clark, 41 Mich. 730. Some facts are stated and relied upon in the opinions in the cases cited which cannot now be asserted, since by sections 1 and 4 of the act in question it is members of the Methodist Episcopal Church only who may organize and procure incorporation, and it is those persons originally signing the articles of association, and fellow members of the church, and all who may thereafter become members of said church, according to the discipline, rules, and usages of the Methodist Episcopal Church, who become- and are “a body politic or corporation, * * * with all the powers, rights, and privileges appertaining to religious corporations by the laws of this State.” It cannot, therefore, be now said, as was said in Wilson v. Livingstone, supra:

“ It is observable that it is not association and worship with the denominational body that give character to the member and make him a voter, but it is the corporation or society existing under the articles to which he must contribute and with which he must worship,”

—since it is evident that, under the act in question, spiritual affiliation is a condition to corporate membership. There is ground for saying that, if the act under which defendant is organized is given effect according to its terms and evident import, the property of the corporation cannot, even by the assent of all the members pf the corporation, be devoted to the uses or purposes of any other religious denomination. Compare Act No. 110, Pub. Acts 1895; Act No. 209, Pub. Acts 1897, and Act No. 11, Pub. Acts 1899. See Graham v. Muskegon County Clerk, 116 Mich. 571, and cases cited, supra. See, also, Watkins v. Wilcox, 66 N. Y. 654; Robertson v. Bullions, 11 N. Y. 243; Petty v. Tooker, 21 N. Y. 267; Isham v. Presbyterian Church, 63 How. Prac. (N. Y.) 465. However the point may be determined, it is not, in my judgment, controlling, and such argument as I shall make will proceed upon the theory that the corporation may not devote its property to the use of any other religious denomination or to other than religious purposes.

The statute under which defendant was organized, and which is the measure of its powers and duties, does not, in terms, relieve it from liability for the torts of its officers. If it is so relieved, it must be because there is some applicable rule of the unwritten law, or some reason founded in sound public policy, which the courts are bound to apply. I assume, as the argument does, that the property of defendant was not acquired and is not held subject to any express trust created by the grantor or vendor of the property, but was acquired by purchase, in the usual way, with funds contributed by the members of the church and by others; that the money to build the church was in like manner acquired.

It is claimed by counsel for defendant that the limitations, express and implied, upon the power of the corporation to dispose of corporate property, imposed by the statute and by the character and purposes of the association, have the effect of creating a trust, of which the corporation is trustee, the property of the association the trust fund, the public the beneficiary, the objects and purposes of administration charitable; that these considerations forbid all application of doctrines of corporate liability for negligent behavior of the officers and agents of defendant. Stated in terms used by counsel for defendant, the position is:

“By virtue of the provisions and limitations of said act, said defendant corporation is a public charity; said provisions and limitations being declaratory of a trust of this character. ”

Otherwise stated, the position of counsel, as I understand it, is that, whatever the liability of a trustee may be for his own torts, the fund in his hands, in the course of administering which the tort is committed, may not be diverted from purposes for which it was created if it is, in law, a fund held in trust for public charitable uses. In such case, it is said, the law is settled in favor of non-liability by Downes v. Harper Hospital, 101 Mich. 555 (25 L. R. A. 602), Pepke v. Grace Hospital, 130 Mich. 493, and like cases. Let us test, by the decided cases, the soundness of this position by supposing the case at bar to be the case just stated. In the hospital cases, the plaintiffs were patients who voluntarily accepted the benefits of the respective institutions. In each case, the court recognizes and asserts the rule that one accepting the benefits of such a public charity may not recover from it damages for personal injuries arising out of the acts or omissions of its servants or agents employed in dispensing the charity, provided such servants are selected with care. In Powers v. Homœopathic Hospital, 109 Fed. 294 (65 L. R. A. 372), the opinion reviews, exhaustively, the decided cases, with the conclusion that:

“ One who accepts the benefit either of a public or of a private charity enters into a relation which exempts his benefactor from liability for the negligence of his servants in administering the charity; at any rate, if the benefactor has used due care in selecting those servants.”

And, again:

“ The persons whose money has established this hospital are good Samaritans, perhaps giving less of personal devotion than did he, but, by combining their liberality, thus enabled to deal with suffering on a larger scale. If, in their dealings with their property appropriated to charity, they create a nuisance by themselves or by their servants — if they dig pitfalls in their grounds and the like —there are strong reasons for holding them liable to outsiders, like any other individual or corporation. The purity of their aims may not justify their torts; but, if a suffering man avails himself of their charity, he takes the risks of malpractice, if their charitable agents have been carefully selected.”

See, also, Joel v. Woman’s Hospital, 89 Hun (N. Y.), 73; Van Tassell v. Eye & Ear Hospital, 15 N. Y. Supp. 620; Collins v. Medical School & Hospital, 59 App. Div. (N. Y.) 63; Conner v. Sisters of the Poor, 7 Ohio N. P. 514, 10 Ohio Dec. 86. There is in the reasoning of the opinion in Hearns v. Waterbury Hospital, 66 Conn. 98 (31 L. R. A. 224), in which a like conclusion is reached, something of 'the same idea, found in the following language:

“Such patient, who may be injured by the wrongful act of a hospital servant, is not a .mere third party — a stranger to the transaction — he is rather a participant. The thing about which the servants are employed is the healing of the sick. This is set in motion, not for the benefit of the defendant, but of the public; surely those who accept the benefit, contributing also by their payments to the public enterprise (and not to the private pocket of the defendant), assist as truly as the defendant in setting the whole thing in motion.”

In Downes v. Harper Hospital, Mr. Justice Grant says: “Those voluntarily accepting the benefit of the charity accept it upon this condition ” — i. e., that the will of the donors, in creating the trust, must be respected. It is true that in this case it is also said that “ charitable bequests cannot be thus thwarted by negligence for which the donor is in no manner responsible,” and that “the trustees of this fund could not, by their own direct act, divert it from the purpose for which it was given, or for which the act of the legislature authorized the title to be vested in the defendant,” in this respect giving expression to doctrine, which is to be found in many of the decisions of the courts; doctrine which applies equally to the case of one who is not and one who is a beneficiary of the institution. An examination of cases, including most of those cited in the opinion in the Downes Case, shows that in many instances the institutions were in fact State instrumentalities, as well as charities, and the denial of liability might have been rested in such cases wholly, as it was in some of them in part, upon that ground. Benton v. City Hospital, 140 Mass. 13; City of Richmond v. Long’s Adm’rs, 17 Grat. (Va.) 375; Murtaugh v. City of St. Louis, 44 Mo. 479; Summers v. Daviess County Com’rs, 103 Ind. 262; Williamson v. Industrial School, 95 Ky. 251 (23 L. R. A. 200); Perry v. House of Refuge, 63 Md. 20. I am satisfied that a sound rule of decision is laid down in Powers v. Hospital for cases of patients who accept the benefits tendered by a charitable hospital, and that the application of the rule supports the conclusion reached in the Michigan hospital cases. Manifestly, this rule does not aid the defendant in the case at bar.

In none of the cases cited can express authority be found to support the proposition that, for such acts of negligence as are charged in the declaration, there is exemption from liability on the part of the corporation, and none of the reasoning employed sustains such a proposition except that which rests upon the idea of the inviolability of a trust fund or the one that immunity exists if the employment of the property be for public charitable purposes or upon both. I am not prepared to hold that the only rule of nonliability has been stated in Powers v. Homœopathic Hospital, or that, where defendant is in fact a public charitable institution, holding its property subject to the terms and directions of an express trust, the doctrine of respondeat superior will be, in all cases founded upon mere negligence of officers or agents, applied. The English cases which have been cited do not, in my judgment, aid in settling the matter one way or the other.

In the case of Mersey Docks v. Gibbs, 11 H. L. Cas. 686, aside from the rule laid down for construing the various acts of parliament under which the docks’ trustees acted, it was held: First, that in the particular case the doctrine of respondeat superior had no application; second, that defendant trustees were not public servants or servants of the government, it having been before then held, by the same tribunal, Jones v. Mersey Docks, 11 H. L. Cas. 443, that they were liable to pay poor rates as occupiers of the docks; and third, that the fact that the trustees did not collect tolls for their own profit, but to maintain the docks and to pay the debt contracted in making them, made no difference, since the docks were kept open for the public, the tolls were paid by those who used them, payment of tolls gave the right to use, and the duty to maintain them was cast upon the persons having receipt of tolls and the possession and management of the docks. In other words, the docks corporation was found to be a trading corporation,, and the mere fact that tolls collected were by the act of incorporation devoted to certain stated purposes did not relieve the trustees, though serving gratuitously, nor the funds, from liability for injuries resulting from the bad condition of the docks. The case of Gilbert v. Trinity House, L. R. 17 Q. B. Div. 795, is to the same effect. The decisions of English courts in cases where boards or bodies, incorporated or otherwise, having power to levy rates for certain purposes, more or less public in character, are charged with negligent conduct or omission, afford us quite as little aid. I have found no case in which it is asserted that a trust fund, devoted to a public, charitable use,, may be used by its administrators to pay for the result of their negligent acts, committed in the course of administration, except the one here immediately referred to. It was asserted, in Glavin v. Rhode Island Hospital, 13 R. I. 411, that a public charitable hospital is not exempt, on grounds of public policy, from liability for injuries to patients paying for their medical treatment, caused by the unskillfulness of an officer, and that the general trust fund was liable to satisfy the judgment obtained in such a case. This rule having been established by the court, the legislature changed the law with reference to such institutions as the defendant in that case.

There are decisions which affirm the general rule that trustees are liable, personally, for their own torts and those of agents appointed and controlled by them, with the further, and it would seem exceptional, rule that, in proper cases, reimbursement may be allowed them out of the trust fund. Benett v. Wyndham, 4 De Gex, F. & J. 359, is such a case. That was an action by the trustee for reimbursement. In reversing the judgment below, it was said:

The trustee in this case appears to have meant well, to have acted with due diligence, and to have employed a proper agent to do an act the directing which to be done was within the due discharge of his duty. The agent makes a mistake, the consequences of which subject the trustee to legal liability to a third party. I am of opinion that this liability ought, as between the trustee and the estate, to be borne by the estate.”

In Parmenter v. Barstow, 22 R. I. 245 (63 L. R. A. 227), servants of a trustee were chiseling stone on premises to which he held the legal title as trustee, and inflicted injury on a passer-by walking on the sidewalk. In a suit against the trustee in his official capacity, a demurrer to the declaration was interposed and was sustained. It is said, in the opinion:

‘ ‘ The law will not allow trust property to be impaired or dissipated through the negligence or improvidence of trustees, nor will it permit them to create any new or additional liabilities against the same. The beneficial interest thereof belongs to the cestuis, and it must be held intact for them.” Citing Deschler v. Franklin, 20 Ohio Cir. Ct. R. 56.

The case of Fire Insurance Patrol v. Boyd, 120 Pa. 624 (1 L. R. A. 417), is relied upon by counsel for defendant. This case' was twice before the supreme court of Pennsylvania. Boyd v. Insurance Patrol, 113 Pa. 269. The defendant below, plaintiff in error, was incorporated, having for its object the protection of lives and property in or near burning buildings It had no capital stock, made no profits, and derived funds solely from contributions It worked without charge and without discriminating between persons or property owners. It was held to be a public charity, and, in an action brought to recover for injuries received by means of the alleged carelessness of its agents, engaged at a fire, it was held to be not subject to the doctrine respondeat superior. It is somewhat significant that, in the discussion indulged in, it is said that, in the performance of its duties, it acted—

“ In aid and in ease of the municipal government in the preservation of life and property at fires. It remains to inquire whether the doctrine of respondeat superior applies to it. Upon this point we are free from doubt. It has been held in this State that the duty of extinguishing fires and saving property therefrom is a public duty, and the agent to whom such authority is delegated is a public agent and not liable for the negligence of its employ és.”

It is true that the learned judge who delivered the opinion also, later on, asserts the proposition that to use the money of defendant to pay the judgment recovered would amount to a misapplication of a trust fund. But in the headnotes to the reported decision this doctrine is, by the reporter, ascribed to the judge and not to the court. In Newcomb v. Boston Protective Department, 151 Mass. 215 (6 L. R. A. 778), a case much, like Fire Insurance Patrol v. Boyd in its facts, the supreme court of Massachusetts arrives at a precisely opposed conclusion and result, finding defendant to be a private, and not a charitable, corporation, and liable for the negligence of its servants. I apprehend the last words have not yet been said by the courts upon this subject. In my opinion, the question is not before us.

The status of defendant, in the case at bar, which has been supposed, is not its real status. The hospitals, in the Michigan cases cited, were in fact, and by the law of their creation, public charitable institutions, and their funds were, in fact, expressly trust funds. 8 Comp. Laws, §§ 8288-8296. The fact of incorporation is not essential to the reasoning, beyond this: that the act permitting incorporation of trustees of a charitable fund is an express legislative recognition of a hospital as a charitable asylum. The distinction which I seek to draw between such institutions and churches does not rest in the idea that in some sense each does not give charity — furnish what it has to bestow without pay — or in the one that a contribution to either is not charity. The distinction is none the less plain. The purpose of one is, primarily and essentially, public charity, that of the other, primarily, the grouping, for purposes of a legal entity, those of a like religious faith. The property of one is expressly trust property and is devoted to public charity; the property of the other is not trust property, and is devoted, primarily and essentially, to the purposes of the particular body which owns and occupies it. That defendant holds its property in trust for the purposes of its organization is true. Within all applicable and legally proper definitions, every corporation so holds its property. Every officer of management in every corporation is a trustee in the sense that corporate ownership of the property and corporate objects impose limitations upon his actions and involve certain rules of conduct. The relation of the trustees of defendant to the society is not that of a private trustee to the cestui que trust. They are trustees in the same sense, and no other, in which directors of any private corporation are trustees. Robertson v. Bullions, 11 N. Y. 243. There is nothing in the opinions in Allen v. Duffie, 43 Mich. 1, Methodist Episcopal Church v. Clark, 41 Mich. 730, or Hopkins v. Crossley, 132 Mich. 612, which supports the contention that defendant society is a public charitable institution, as a careful reading of them will demonstrate. That defendant and its corporate members engage, if they do, in works of charity, relieving the necessities of unfortunate persons without regard to their religious or other beliefs or connections, does not make it a public charitable organization. There are few individuals who do not, from time to time, so contribute to the relief of the unfortunate.

If the facts that the property of this corporation was contributed for purposes of its existence, that such purposes are not commercial and not for profit and make for private and public righteousness, are to be made the ground of decision, it would follow, would it not, that, in all cases where the facts existed, the rule of nonliability contended for must be applied? The number of incorporated religious, fraternal, scientific, agricultural, and benevolent associations is very great. The property of most of them is contributed, and the objects and purposes are noncommercial and morally or materially beneficent. To the works of many of them the definition of charity would apply. To any total of good deeds and of beneficial public results, each corporation of the classes named will insist that it has contributed. The law cannot classify, at least it has not classified, them by their actual accomplishments, nor can the courts enforce or relieve from the operation of rules of proper conduct according to the net showing of beneficence. The defendant corporation is a legal entity with which the law has to deal. It uses, in the accomplishment of its objects, property which it owns and manages, and in such management it acts by and through chosen agents. Incident to such management are duties which, unperformed or badly performed, may support corporate obligations. Property conveyed to it, generally, is presumed to be conveyed for the statute purposes of its organization, and is subject to the risks of corporate management.

Precise precedent is found for the position of the plaintiff in this case, and some effect may be given to the facts that in Massachusetts the statute of Elizabeth is in full force, and that the court which determined McDonald v. General Hospital, 120 Mass. 432; Benton v. City Hospital, 140 Mass. 13; Donnelly v. Cemetery Ass’n, 146 Mass. 163; Shepard v. Creamer, 160 Mass. 496; Chapin v. Holyoke Y. M. C. A., 165 Mass. 280; McAlister v. Burgess, 161 Mass. 27l (24 L. R. A. 158); Davis v. Congregational Society, 129 Mass. 367 — also determined Mulchey v. Methodist Religious Society, 125 Mass. 487, a case in which the facts were substantially as they are in the one at bar, and held that plaintiff was entitled to recover.

In the case of Davis v. Congregational Society, supra, the action was tort for personal injuries sustained by falling over a wall on defendant’s premises. Plaintiff attended an evening meeting in defendant’s house of worship under a general express invitation so to do, and claimed that in leaving the church, by reason of defendant’s failure to provide a reasonably safe way to and from the church, she was injured. It is said:

“ The application of the rules on which the defendant’s liability depends is not affected by the consideration that this is a religious society, and that the plaintiff came solely for her own benefit or gratification. It makes no difference that no pecuniary profit or other benefit was received or expected by the society. The fact that the plaintiff comes by invitation is enough to impose on the defendant the duty which lies at the foundation of this liability, and that, too, although the defendant in giving the invitation was actuated only by motives of friendship and Christian charity.”

Rector, etc., of the Church of the Ascension v. Buck hart, 3 Hill (N. Y.), 193, was a case where one passing along the street was injured by the falling of the walls of a church which had been before then destroyed by fire and the walls negligently left standing. He was held entitled to recover his damages from the church society.

On the other hand, the case of Haas v. Missionary Society, 26 N. Y. Supp. 868, is cited and relied upon by counsel for defendant. There defendant was a religious corporation, and the question was stated to be:

“Whether, under the laws of this State, the plaintiff can maintain an action to recover damages for injuries received by reason of the negligence of an employé of the defendant; there being no allegation in the complaint that such employé was not fully qualified for the work he was engaged to perform, or that there had been any negligence on the part of the officers of the corporation in his selection.”

The particular negligence alleged does not appear. After a review of some of the cases, which, the opinion states, proceed upon the ground that to permit recovery would be to divert a trust fund, it is held that religious corporations are upon the same footing as hospitals or other charitable institutions; that the objects of the organization are as worthy and the trusts as sacred as in any other class of cases. It is to be observed that the point for decision, as stated, is a very narrow one, and no mention is made of the earlier New York cases to which I have referred. Neither , does it appear whether or not the defendant was, in fact, trustee of a fund under some express trust created by the donor thereof, or whether plaintiff was a beneficiary of the fund or of the society.

I confess to a feeling which I assume is shared by many, favorable to some limitation of the liability of church societies to respond for the torts of managing officers. That they have not been so relieved by terms of positive law must be admitted. It is to my mind equally clear there is no recognized rule of public policy upon which they may rely in this case for such exemption. It is to the legislature and not to the courts that the application for relief must be made.

The judgment of the court below sustaining the demurrer to the declaration is reversed. Defendant will be given 20 days in which to plead.

Blair, J., concurred with Ostrander, J.

Carpenter, J. Defendant is a Methodist Episcopal Church, incorporated under Act No. 11 of the Public Acts of 1899. It is charged in plaintiff’s declaration' that while he (plaintiff) was at work for a contractor tinting the ceiling of defendant’s church edifice, the scaffolding upon which he stood, and which was furnished by defendant, and which was defective owing to defendant’s negligence, broke, and that he was thrown to the floor and injured. Defendant demurred to this declaration upon the ground that it “ is not liable for any neglect or default of any agent or servant having the care or custody of its property,” and upon other grounds which need not be mentioned. This demurrer was sustained, and judgment entered in defendant’s favor. Plaintiff asks us to reverse that judgment.

I agree with my Brother Ostrander that we should decide this case upon'the assumption that defendant’s property “is not held subject to any express trust created by the grantor or vendor of the property,” and that we should “ proceed upon the theory that the corporation may not devote its property to the use of any other religious denomination or to other than religious purposes.” The principle of respondeat superior — that one is responsible for the acts of his agent — applies, and makes defendant liable for the wrong done to plaintiff, unless defendant is exempt from the operation of that principle because it is administering a charitable trust. The claim is made that it is so exempt by reason of Downes v. Harper Hospital, decided by this court in 1894 and reported in 101 Mich. 555 (25 L. R. A. 602). See, also, Pepke v. Grace Hospital, 130 Mich. 493. In Downes v. Harper Hospital this court held, as correctly stated in the headnote to that case:

“A corporation organized and maintained for no private gain, but for the proper care and medical treatment of the sick, and to that end to manage a trust fund donated for that purpose, cannot be made liable for injuries sustained by a patient by reason of the negligent acts of its managers or employes.”

It is urged that that case does not apply, because a church fund which is a fund devoted to religious purposes is not — like a fund devoted to the care and medical treatment of the sick — a charitable trust fund. It is, in my judgment, important to determine whether this distinction is sound.

In Allen v. Duffie, 43 Mich. 1, this court decided.that a subscription made on Sunday for the purpose of erecting a .house of worship for a religious society was a work of charity, and therefore enforceable in the courts. In the course of that opinion, which is written by Justice Cooley, it is said:

“ Charity is active goodness. It is doing good to our fellow men. It is fostering those institutions that are established to relieve pain, to prevent suffering, and to do good to mankind in general,' or to any class or portion of mankind. * * * It was never doubted, so far as we know, that all the necessary or usual work connected with religious worship was work of charity. If it were not so, the minister who preaches, the organist and precentor who furnish the music, and the sexton who cares for the building on Sunday, would be violating the law every day they performed service for their religious society, and not only would be precluded from recovering compensation, but might be punished for services which are proper in themselves, and for which the day is specially set apart. • But their work is not illegal, because it is, in a true sense, and indeed in the very highest sense, charitable. Religious societies are formed to do good to mankind. * * * But, as the public is not taxed for the support of churches and other religious societies, a private donation in their aid is not charity in the same sense in which a donation which relieves a public burden is a charity. The charity in such case consists in giving aid to an institution whose purpose is to do good in other ways than by making pecuniary burdens lighter, and this, as is said above, is charity in a higher sense than is the mere relief from a pecuniary burden.”

It is settled by this decision that, in contributing to a church fund, one is performing a work of charity. Does it not follow that the fund contributed to is a charitable fund? Both the Am. & Eng. Enc. Law (see volume 5, p. 894 [2d Ed.]) and the Cyclopedia of Law and Procedure (see volume 6, p. 900) define public charity as:

“A gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.”

It cannot justly be contended that the notion that gifts for religious purposes are charitable is derived from the statute of Elizabeth, for it is correctly stated in 6 Cyc. p. 913:

“ Gifts for the advancement of religion were held charitable long before the statute of Elizabeth, and are, by analogy, within that statute, though the ‘repair of churches ’ is the only reference thereto in its summary of purposes,” citing Powerscourt v. Powerscourt, Beatty, 572.

It is contended that the fund of a particular church like that of defendant is not charitable within the foregoing definition, because it is to be used, not for the benefit of an indefinite number of persons, but for the benefit of its own members, or, to quote from the opinion of Justice Ostrander, its property “is devoted primarily and essentially to the purpose of the particular body which owns it.” We cannot answer this contention better than by quoting from the decision of the supreme court of Massachusetts in McAlister v. Burgess, 161 Mass. 271 (24 L. R. A. 158):

“ ‘ The very term “ church ” imports an organization for religious purposes, and property given to it eo nomine, in the absence of all declaration of trust or use, must, by necessary implication, be intended to be given to promote the purposes for which a church is instituted, the most prominent of which is the public worship of God.’ Baker v. Fales, 16 Mass. 495.
‘ ‘ It follows that the legitimate use by a church of property so given must result in its application for the benefit of those who attend upon, or are within the sphere of the influence of, the services of the church, by bringing them under the influence of religion. It is a matter of common knowledge that the individuals who attend the services of any particular church are not limited to the members of that church, but are an indefinite and varying number of persons, and there can be no question that an indefinite number of persons are constantly benefited by having their minds and hearts brought under the influence of religion by poor churches of the city of Boston and vicinity. (The gift in question was a gift ‘ for the benefit of poor churches of the city of Boston and vicinity.’) * * *
‘ ‘ In our opinion, a gift to a church, without restrictions as to the use to be made of the property, is a gift to be applied for the promotion of public worship and of religious instruction, which must necessarily influence other than church members, and, if in trust, has all the elements of a public charity.”

In this opinion the court distinguished Old South Society v. Crocker, 119 Mass. 1 (this is typical of several cases which it is contended are opposed to its reasoning), by pointing out that the property there in question was conveyed to the church (part of it was conveyed and part devised) “not for the general purposes of the church,” but “for the erection of a meetinghouse, and of a dwelling for the minister,” and concludéd by stating:

“ The case is certainly not an authority for the position that a gift for the benefit of a church, simpliciter, is not a public charity.”

It is true that the statutes of this State for the incorporation of hospitals are different from those for the incorporation of churches; but I can find nothing in those statutes from which it may be argued that the former is a public charitable institution, and that the latter is not. An examination of those statutes shows that there is a likeness and a difference between corporations organized for a hospital purpose and those organized for a religious purpose. The likeness is this: each holds its property for a trust purpose. The difference is this: the property of the hospital is devoted to the care and medical treatment of the sick, the property of the church is devoted to a religious purpose. We cannot hold that the property of a hospital is a charitable trust fund, and that the property of a church is not a charitable trust fund, unless we hold that funds devoted to a religious purpose are not charitable trust funds. The foregoing reasoning and authorities prevent our’ so holding. On the contrary, we are compelled to hold that funds devoted to a religious purpose are charitable trust funds. I conclude, therefore, that we cannot hold the principle of the decision in Downes v. Harper Hospital, supra, inapplicable, upon the ground that the funds of the church are not charitable trust funds.

This leads us to the inquiry: Is there any other ground upon which we should hold Downes v. Harper Hospital inapplicable ? There is this distinction between Downes v. Harper Hospital and this case, viz., in the Downes Case plaintiff was a patient in defendant’s hospital, and, therefore, a beneficiary of the charitable trust administered by the hospital corporation, while in this case he was an employe of defendant’s contractor, and not a beneficiary of the trust administered by defendant. If we hold that the principle of the Downes Case applies to the case at bar, we must declare that that principle exempts a corporation administering a charitable trust from all liability for the torts of its agents, and, as a corporation can act only by and through its agents, that it is exempt from all liability whatsoever for torts. What is the principle underlying the Downes Case ? Does it exempt a corporation administering a charitable trust from all liability for torts ? Those who answer this question in the affirmative cannot support their position by appealing to the reasoning of the opinion in that case. While that opinion says: “The law jealously guards the charitable trust fund, and does not permit it to be frittered away by the negligent acts of those employed in its execution,” the pith of its reasoning in my judgment is contained in the following words:

“ It certainly follows that the fund cannot be indirectly diverted by the tortious or negligent acts of the managers of the fund, or their employés, though such acts result in damages to an innocent beneficiary. Those voluntarily accepting the benefit of the charity accept it upon this condition. ”

Let us determine the principle underlying the Downes Case. In this undertaking we are not aided by cases like Fire Insurance Patrol v. Boyd, 120 Pa. 624 (1 L. R. A. 417), which held that a principal is not liable for the' negligence of one acting in the capacity of a governmental agent — for neither the Harper Hospital nor its offending servants were acting in that capacity — but we do receive aid, and great aid, by examining decisions similar to that of Downes v. Harper Hospital made by other courts. Among those decisions are: Feoffees of Heriot's Hospital v. Ross, 12 Clark & F. 506; McDonald v. General Hospital, 120 Mass. 432; Williamson v. Industrial School, 95 Ky. 251 (23 L. R. A. 200); Perry v. House of Refuge, 63 Md.20; City of Richmond v. Long's Adm'rs, 17 Grat. (Va.) 375; Hearns v. Waterbury Hospital, 66 Conn. 98 (31 L. R. A. 224); Eighmy v. Railway Co., 93 Iowa, 538 (27 L. R. A. 296); Joel v. Woman's Hospital, 89 Hun (N. Y.), 73; Van Tassell v. Eye & Ear Hospital, 15 N. Y. Supp. 620; Collins v. Medical School & Hospital, 59 App. Div. (N. Y.) 63; Conner v. Sisters of the Poor, 7 Ohio N. P. 514, 10 Ohio Dec. 86; Glavin v. Rhode Island Hospital, 12 R. I. 411; Union Pacific R. Co. v. Artist, 60 Fed. 365 (23 L. R. A. 581); Powers v. Homœopathic Hospital, 47 C. C. A. 122 (65 L. R. A. 372).

In each of these cases, except that of Glavin v. Rhode Island Hospital, it was held, as held in the Downes Case, that the beneficiary of.the charitable trust could not recover for injuries resulting from the torts of the agents of the trustee corporation. Inasmuch as this court is committed to this doctrine, we need not consider the decision of Glavin v. Rhode Island Hospital, which denies it. We are endeavoring to ascertain, not whether the doctrine is sound, but its true underlying principle. Decisions denying a doctrine afford no aid in construing it. In the latest of these cases (Powers v. Homœopathic Hospital) — the opinion is exhaustive and elaborate, and discusses nearly all the authorities — it is held that the ground upon which liability is denied is that of assumed risk; the court saying:

“One who accepts the benefit either of a public or of a private charity, enters into a relation which exempts his benefactor from liability for the negligence of his servants in administering the charity, at any rate if the benefactor has used due care in selecting those servants.”

If this is correct, it is scarcely necessary to say that that principle has no application to the case at bar. Is it correct ? The ground upon which liability is denied in nearly all the foregoing cases is that stated in the Downes Case, viz., that it would thwart the purpose of the trust; that is, it would oppose the will of the founder of the trust to pay from the trust funds damages caused by an agent’s torts. It is entirely logical to say that this will must be recognized by beneficiaries of the trust. It may justly be said that the benefit of the trust is extended to them and accepted by them upon the implied condition that they shall recognize that will. By becoming beneficiaries they agree to recognize it. But I can see no ground upon which it may be held that the rights of those who are not beneficiaries of a trust can in any way be affected by the will of its founder. The rights of such persons are those created by general laws, and the duties of those administering the trust to respect those rights are also created by general laws. The doctrine that the will of an individual shall exempt either persons or property from the operation of general laws is inconsistent with the fundamental idea of government. It permits the will of the subject to nullify the will of the people. Nor can I conceive any ground upon which a court can hold that effect can be given to that will when it relates to property devised or conveyed for the purpose of a charitable trust. Such a holding must rest upon the argument that the advantage reaped by the public from such trusts justify the exemption; that is, as applied to this case, the advantages to the public justify defendant’s exemption from liability for wrongs done to individuals. If this argument is sound — and its soundness may be questioned, for there are those who will deny that the advantages to the public justify the wrong to the individual — it should be addressed to the legislative, and not to the judicial, department of the government. It is our duty as judges to apply the law. We have no authority to create exemptions or to declare immunity.

It is true that in many of the cases above cited, it is stated that those administering a trust fund are not responsible for the torts of their agents, because damages for such torts cannot be paid from the trust fund. This statement was first made by the house of lords of England in 1839 in deciding the case of Duncan v. Findlater, 6 Clark & F. 894. In a subsequent case (Mersey Docks v. Gibbs, 11 H. L. Cas. 686) the same tribunal said that this statement was unnecessary to the decision of the case in which it was announced, and that it was an incorrect statement of the law. Precisely the same may be said of the repetition of that statement in the foregoing cases. We are justified in saying that the statement was unnecessary to their decisions, because, in determining the noncontract obligation of a trustee toward the beneficiaries of his trust (and that was the question involved in each of these cases), it was not necessary to .determine his obligation to others. It is equally true that the proposition that trust funds cannot be used to compensate wrongs committed by the agent of the trustee is not a correct statement of the law. That proposition, in my judgment, must rest on the principle — which I have heretofore endeavored to prove unsound — that the will of an individual exempts property from the operation of the general laws of the land. It should also be said that, if the trustee be an individual, he is, like other individuals, personally responsible for wrongs committed by bis agents (Powers v. Homœopathic Hospital, supra; Shepard v. Creamer, 160 Mass. 496; Baker v. Tibbetts, 162 Mass. 468; Benett v. Wyndham, 4 De Gex, F. & J. 259), and, if he is adjudged liable therefor, though an execution will not run against the trust funds, because the judgment is against him personally, he may discharge that liability, or .reimburse himself if he has discharged it, from the trust funds. Powers v. Homœopathic Hospital, supra, and cases therein cited. Parmenter v. Barstow, 22 R. I. 246 (63 L. R. A. 227), is not opposed to this principle. That case holds no more than this: that trust property may not be impaired or dissipated through the negligence or improvidence of trustees.” This does not mean that the trustee may not reimburse himself for liability occasioned, not by his own, but by his servant’s negligence. The circumstance that the trustee is a corporation instead of an individual cannot affect the question of liability. If authority is needed to justify this statement — which necessarily follows from the elementary principle of law that corporations, like individuals, are amenable to the law of the land — it is found in the following cases: Gilbert v. Trinity House, L. R. 17 Q. B. Div. 795; Foreman v. Mayor, etc., of Canterbury, L. R. 6 Q. B. 214; Mersey Docks v. Gibbs, supra. The circumstance that the trustee is a corporation and not an individual may, however, affect the method of satisfying a judgment in favor of a plaintiff who has been wronged by an agent’s, torts. I can see no reason why the execution issued in such a case may not be levied upon the trust property, particularly if that constitute the entire property of the corporation.

It has been suggested (see Hearns v. Waterbury Hospital, 66 Conn. 125 [31 L. R. A. 224]) that the true principle underlying the Downes and similar cases is that the ‘ ‘ defendant does not come within the main reason for the rule of public policy which supports the doctrine of respondeat superior. It derives no benefit from what its servant does in the sense of that personal and private gain which was the real reason for the rule.” This suggestion — which is not a necessary part of the reasoning in the’decision of that case — is without force, unless it may be said that the doctrine of respondeat superior has no application where the business in which an agent- is employed is not carried on for the purpose of profit. I think one cannot carefully read the elaborate opinion in the Hearns Case and examine the authorities therein cited (see, particularly, Foreman v. Mayor, etc., of Canterbury, L. R. 6 Q. B. 214; Gilbert v. Trinity House, L. R. 17 Q. B. Div. 795; Levingston v. Guardians of the Poor, 2 I. R. C. L. 202; and Mersey Docks v. Gibbs, supra) without reaching the conclusion that the doctrine of respondeat superior does apply, though the business is not carried on for the purpose of profit.

I conclude from this reasoning that corporations administering a charitable trust, like all other corporations, are subject to the general laws of the land, and cannot, therefore, claim exemption from responsibility for the torts of their agents, unless that claim is based on a contract with the person injured by such a tort, and that Downes v. Harper Hopital and other similar cases are consistent with this rule. They rest upon the principle, correctly stated in Powers v. Homœopathic Hospital, supra, viz., that the beneficiary of such charitable trust enters into a contract whereby he assumes the risk of such torts. It is not surprising that years should have elapsed before the correct legal principle governing these cases was announced in Powers v. Homœopathic Hospital. The discovery of correct legal principles, like the discovery of scientific and social truths, requires time and patient investigation.

It is an argument of no great force to say that, during this interval, decisions have been made which, tested by this principle, are erroneous. Indeed, it would be surprising were it otherwise. I find, however, but two such decisions. Those are Haas v. Missionary Society, a decision made, not by the highest court, but by the court of common pleas of New York, reported in 26 N. Y. Supp. 868, and Davis v. Congregational Society, 129 Mass. 367. In the Haas Case, the liability of a church society “in an action to recover damages for injuries received by the negligence of an employé ” was denied. In the Davis Case the liability of a church society for the torts of its manager to one who attends a religious meeting in its church edifice is affirmed. If the plaintiff in the Haas Case was a beneficiary of the church society — and this is a question of fact which cannot be decided from the report of the case — that decision is in harmony with this opinion. If the plaintiff in the Davis Case was not á beneficiary of the charitable trust — and this is a debatable question of law — that decision is in harmony with this opinion. Only upon the assumption that the plaintiff in the Haas Case was not, and that the plaintiff in the Davis Case was, a beneficiary of the charitable trust, are those cases inconsistent with this opinion. Upon the same assumption they are inconsistent with each other; the Haas Case denying liability for all torts committed by an agent; the Davis Case affirming liability even when a beneficiary sustains injury from such torts. Upon this assumption each of these cases stands alone. Each is opposed to the other as well as to the reasoning and authorities cited in this opinion, and, I think, should be disregarded. On the other hand, the cases of Rector, etc., of the Church of the Ascension v. Buckhart, 3 Hill (N. Y.), 193, and Mulchey v. Methodist Religious Society, 125 Mass. 487, are in harmony with this opinion. The facts in the latter case were almost precisely like those in the case at bar. In the former case, plaintiff, while passing along the street, was injured by the fall of the building of the defendant church through defendant’s negligence. In each of these cases defendant was held liable. I think these decisions sustain my principal contention. For, unless the principle of the Downes Case is as stated in this opinion, there is, in my judgment, an irreconcilable conflict between that principle and those decisions, and we are bound to say that there is no such conflict because that principle prevails in the States whose courts pronounced those decisions. It follows from this reasoning that the principle of the Downes Case is not applicable to the case at bar, and that plaintiff is entitled to recover.

It is said that, in determining that the principle of non-liability recognized in the Downes Case is limited in its application to those who are beneficiaries of a charitable trust, we decide ‘ ‘ a question not before us. ” Is this true ? We must determine whether the principle of the Downes Case applies to this case. We determine that it does not,' and it is our duty to state reasons for that determination. The only reason satisfactory to my mind is that the principle of nonliability declared in the Downes Case is limited to those who are beneficiaries of a trust fund. It is impossible for me to decide this case without giving that reason. From my point of view, then, the question under present consideration is “before us.”

The judgment of the court below sustaining the demurrer is reversed, and the defendant will be given 20 days in which to plead to the declaration.

McAlvay, C. J., and Grant, Montgomery, Hooker, and Moore, JJ., concurred with Carpenter, J.


source: Caselaw Access Project

license: Public Domain

text:
    McMILLAN v. SCHNEIDER.
    1. Mechanics’ Liens — Right to Lien — Waiver by Owner — Rights of Garnishee.
    Where a wife did not sign a contract for improving land owned by herself and her husband jointly, as required by section 10711 to create a right to a mechanics’ lien for the improvement, she cannot, by consent to the entry of a decree establishing a lien, postpone the rights of a garnishing creditor of the contractor.
    2. Garnishment — Building Contract — Amount Due — Evidence.
    Where the owner of a building, on being garnished in a suit against his contractor, discloses that the work is done but that nothing is due because the work has not been accepted and the architect’s certificate issued, and because the contractor owes his men and the building is liable for liens, the plaintiff may show that the oontract has been performed and the architect’s certificate waived or improperly withheld. ' ,
    3. Same — Evidenoe^Suffioienoy.
    On the issue whether anything was due a building contractor at the time suit was brought against him and the owner garnished, evidence examined, and held, sufficient to controvert the facts set out in the disclosure to the effect that nothing was due because the work had not been accepted and the certificate issued by the architect, and to support recovery against the owner on the theory that the work was done and the architect’s certificate waived or improperly withheld.
    Error to Wayne; Robnert, J.
    Submitted October 10, 1906.
    (Docket No. 46.)
    Decided March 5, 1907.
    Garnishment proceedings by Margaret McMillan against William Schneider as garnishee of William Lappin. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.
    Plaintiff and appellee, in October, 1904, began suit against one William Lappin in the justices’ courts of Detroit, and, in November, 1904, she recovered a judgment for $197.50, damages, and $3.75, costs of suit. At the same time, she instituted garnishment proceedings against appellant as garnishee of Lappin, and in the garnishment proceeding, in January, 1905, she obtained a judgment against the garnishee defendant for $202.50 and $2, costs of suit. From this' last-mentioned judgment, an appeal was taken to the circuit court for the county of Wayne, and, coming on, on March 21, 1906, to be tried, it was made to appear that in September, 1904, a written agreement was entered into between the garnishee defendant, Schneider, appellant here, and the said Lappin, by the terms of which Lappin was to furnish the labor and material for excavating for the foundations of a brick store building in the city of Detroit, and to be paid therefor the sum of $326, as the work progressed, on the presentation of the architect’s certificate, less' the sum of 20 per cent, on each estimate, which was to be kept in reserve until the work was completed and accepted. The property in question was owned by the defendant, Schneider, and his wife, jointly, but his wife did not sign the contract. The first disclosure made by the defendant in garnishment showed the amount due to Lappin to be $326. Subsequently, a number of disclosures in writing were filed, the first of which set up the contract just referred to, that no certificate of the architect had been issued or presented, that on or about the 19th of November, 1904, there had been served upon defendant a statement made by said Lappin, conforming to the provisions of 3 Comp. Laws, § 10713, which showed that said Lappin was indebted for labor employed in fulfilling said contract in the amount of $332.70, that defendant, under the provisions of the mechanic’s lien law, was liable to the laborers aforesaid for the respective amounts set out in said statement, and also for any additional amounts, liens for which might be asserted and filed within 60 days after the contract was performed, that the last labor performed on said excavation was October 20, 1904. There is a formal denial of any liability to the principal defendant. In January, 1905, a second written disclosure was filed, setting out that on the 12th day of December, 1904, claims of lien were filed in the office of the register of deeds for the county of Wayne and served upon defendant, including one filed by said Lappin, for the sum of $326, the total of the amount of all liens filed being $409.50. March 20, 1906, a third written disclosure was filed in the circuit court for the county of Wayne, setting up that on the 12th day of December, 1905, a bill of complaint had been filed in the circuit court for the county of Wayne, in chancery, by the assignee of one of said lienors for the purpose of foreclosing the said claimed liens; that William Schneider and Mathilda, his wife, the owners of the property, and William Lappin, the principal contractor, had been made parties to said bill; that an answer and cross-bill had been filed by said Lap-pin, setting up his claim of lien and asking that the property be sold to satisfy the amount due thereon, and that the said chancery cause was then at issue. On March 21, 1906, a further disclosure was filed in the circuit court for the county of Wayne, which set up in substance that said chancery proceeding to enforce said liens had been, on March 20, 1906, heard and determined, and that the effect of said determination, evidenced by the order and decree of the circuit court for the county of Wayne, in chancery, therein, was that defendant was indebted to said Lappin under the contract-in the sum of $326; that the other liens asserted were valid and subsisting liens for the sum of $101.57, and the lien of said Lappin was a subsisting lien for the balance of the amount due on the contract, which was the sum of $224.43, and the premises were ordered to be sold to satisfy said liens; that said decree was a complete defense to any liability on the part of said defendant as garnishee of said Lappin. Said decree contained the following recital:
    “This cause coming on to be heard after reading the proofs and pleadings on the original bill of complaint and the answer of William Lappin in the nature of a cross-bill. And thereupon, by and upon the consent in open court of said George W. Bates, Esq., as solicitor for said defendant, Mathilda Schneider, waiving any and all objection to a decree being entered in said cause declaring' the several amounts due the said Sando Allegro and William Lappin respectively, for labor as liens upon the interest of said Mathilda Schneider in the premises hereinafter mentioned equally upon the said interest of William Schneider therein as joint owners of the said premises on which improvements hereinafter mentioned were made,” etc.
    The appeal in the garnishment case resulted in a verdict for the plaintiff against the defendant for $216.42 by direction of the court. Upon this verdict a judgment was entered. Later, a motion for a new trial was made and was denied. In directing a verdict, the learned trial judge stated the questions presented in the following language•
    “There are two questions raised in the court’s mind upon this proposition; one is whether the indebtedness from Schneider to Lappin, whatever it may have been, is reachable by garnishment process as of the 29th day of October, 1904, the date when the garnishment was served in this case; and the other question is whether judgment should now be rendered in this case for the amount which is found to be due from ’ said Schneider to said Lappin under a decree of this court in the lien case, the court having decreed a lien upon Schneider’s premises for the amount. On the first proposition, I think the garnishment process can reach the indebtedness. It certainly could reach the indebtedness if no claim of lien had been filed. It does not occur to me that the law ever contemplated that it should be left to the defendant in the original suit by electing to claim a lien to exercise the privilege of determining whether garnishment process should reach it or not, and it must necessarily be left to him if his claim of lien would cut off that right. On the second proposition, the amount due Schneider to Lappin was found to be due by the decree of the court yesterday, and the court gave a lien for the amount upon Mr. Schneider’s property. That indebtedness is now due and payable, and I think it is proper to reach that indebtedness by judgment in this garnishment proceeding.

      “There may possibly be a third question, and that is whether this court can render judgment in this case how, the justice court having attempted to render judgment at the time when the indebtedness from Schneider to Lappin had not been determined in the lien case. I consider it good law, and I will hold that the appeal from the judgment in the justice court to this court, gives this court jurisdiction to try this case de novo, and that the court, now that the amount of the indebtedness is fixed in the lien proceedings, has jurisdiction to reach the, amount of that indebtednes by judgment in the garnishment suit, and verdict will be directed accordingly. And I do direct the verdict for the plaintiff against the defendant for the sum of $216.42.”
    Three propositions are advanced and are argued by counsel for appellant. They are:

      “First. That the failure to present the architect’s certificate as to the completion of the work and its acceptance by the architect, operated to prevent the amount from being due and payable, so that there was nothing due at the service of the garnishment.
    “ The disclosure of November 29, 1904, shows that the work had not been completed nor accepted by the architect. This is conclusive, unless controverted, which was not done.

      “Second. That a mechanic’s lien under the provisions of the Michigan statute takes priority to all garnishments for the contract debt made prior or subsequent to the furnishing of the materials or performance of the labor without regard to the date of filing the claims of lien.
    “1. Such law gives Lappin’s lien priority by the express words of the statute.
    “ 2. Its history shows that it was the intention of the legislature to enlarge the scope of the mechanics’ lien law to include garnishments.
    “ Third. That this judgment is void for want of jurisdiction.
    “1. There was no jurisdiction in the justice of the peace to render the judgment of January 11, 1905, because there had been no determination of the indebtedness represented by Lappin’s claim of lien, nor those of the laborers mentioned in the sworn statement.
    “2. There was also no jurisdiction in the circuit court to determine this indebtedness, because the circuit court on appeal has no further jurisdiction than that possessed by the justice.
    “3. The circuit court cannot, on appeal, render a judgment de novo.
    “4. Such indebtedness can only be determined in a court of chancery in lien proceedings.
    “ 5. The decree in Allegro v. Schneider had no bearing on the determination of this indebtedness or the validity of the liens in this suit.
    * ‘ 6. There was in fact no determination of this indebtedness.”
    The section of the statute in question reads:
    “ (10711) Sec. 2. In case the title to such lands upon which improvements are made is held by husband and wife jointly, or in case the lands upon which such improvements are made are held and occupied as a homestead, the lien given by this act shall attach to such lands and improvements if the improvements be made in pursuance of a .contract in writing signed by both the husband and wife.”

      George W. Bates, for appellant.

      Harry L. Schellenherg, for appellee.
   Ostrander, J.

(after stating the facts). The contract for the improvement and the performance of labor thereunder do not support the asserted lien. The statute before amendment read:

“And in case the title * * * is held by husband and wife jointly, the lien given by this act shall attach to such lands and improvements, if the improvements be made in pursuance of a contract with both of them, or in pursuance of a contract with one of them by and with the knowledge and consent of the other.” Section 2, Act No. 179, Pub. Acts 1891.

The decision in Jossman v. Rice, 121 Mich. 270, in which this statute was considered, goes upon the ground that the land, the title to which was in the husband and wife jointly, was also a homestead, and it was held that the lien for improvements could not affect the land or the title thereto, the contract for the improvement not having been -signed by the wife. In the present statute home-' steads and lands held jointly by husband and wife are classed together, the clear meaning being that no lien shall attach to lands so held unless both husband and wife join in a written contract for the proposed improvement. It is not necessary to determine whether the wife may, in any case, by failure to interpose objection, or by consent to the entering of a decree establishing a lien, perfect the lien and the title resulting from a sale of the land in its enforcement. It is sufficient to say that she cannot, by such action, disestablish or postpone the right of one asserting a prior right to the land or to the proceeds of the contract. Wiltsie v. Harvey, 114 Mich. 131; Dittmer v. Bath; 117 Mich. 571.

We thus dispose, adversely to him, of all of appellant’s contentions excepting the one that, at the time the garnishment suit was begun, nothing was due from defendant to Lappin because the work had not been at that time accepted by the architect. Upon this point, counsel for appellant invokes the rule approved in Hanley v. Walker, 79 Mich. 607 (8 L. R. A. 207). The application of the rule here does not necessarily defeat the recovery. The question is whether there was anything due to Lap-pin from defendant at the time the writ of garnishment was served. Upon this point, defendant had the right to set up in his disclosure and defense any and every fact which would be available in a suit brought against him by Lappin. In his first disclosure, he admitted there was due from him to Lappin the sum of $326. In the second (first written) disclosure, he denies that any sum is due, because the work is not completed and accepted by the architect, and because he had received notice from Lap-pin that he owed his men, who might file and enforce liens. In this disclosure, it is asserted that the last labor was performed before the suit in garnishment was begun. It was notthen, or at any time, claimed that any part of the contract price for the work had been paid. Assuming that Lappin had performed his contract, and that the certificate of the architect had been waived or was improperly withheld, it is clear that there was due from defendant to Lappin, at the time the writ was served, the sum of $326. The plaintiff in garnishment had the right to prove that the facts assumed were true. 1 Comp. Laws, §§ 995, 999, as amended by Act No. 172, Pub. Acts 1901. See Webber v. Bolte, 51 Mich. 113. It must be presumed that he did this to the satisfaction of the justice of the peace. At the trial of the appeal in the circuit court, the same issue was presented. There was testimony to the effect that the attorney for plaintiff called upon the architect and. was told by him that he would never issue a certificate until Lappin paid the demand of plaintiff. There was no evidence tending to prove that the work was not completed and not accepted, excepting the said disclosures. It is not now contended that defendant did not, in fact, owe Lappin, at the time the writ was served, the full contract price. There was, therefore, evidence controverting the facts set out in the second disclosure and controverting the legal conclusions which it was intended and claimed should be drawn from the facts. In my judgment, this evidence is conclusive, and supports the ruling and determination of the trial judge.

The judgment is affirmed.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    MARLATTE v. WEICKGENANT.
    1. Process — Abuse — Action — Declaration — Warrant of Arrest.
    A count alleging a use of a warrant charging a criminal offense as a means, which, when accompanied by threats of an arrest under it, resulted in frightening the plaintiff into paying over to the agents of defendant a sum of money in excess of any demand of defendant, shows a right to recover for an abuse of process.
    2. Same — Evidence—Sufficiency.
    In an action for an abuse of process in using the same to frighten plaintiff into paying over to defendant’s agents, a sum of money in excess of any demand due him, evidence examined, and held, sufficient to support a recovery.
    3. Same — Form of Action.
    An action on the case will lie to redress extprtion of money by means of an abuse of criminal process.
    4. Same — Damages.
    In an action on the case to redress extortion of money or prop- , erty by means of an abuse of criminal process the damages are not restricted in all cases to the value of the money or property obtained, but if there are Circumstances of aggravation, additional damages are allowable.
    Hooker and Grant, JJ., dissenting.
    Error to Calhoun; Hopkins, J.
    Submitted October 11, 1906.
    (Docket No. 65.)
    Decided March 5, 1907.
    Case by Lottie A. Marlatte against Jacob Weickgenant for malicious prosecution and abuse of criminal process. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Quincy A. Smith and Oscar J. Hood (Frank W. Clapp, of counsel), for appellant. •

      J. M. Powers & W. S. Powers, for appellee.
   Hooker, J.

This cause was taken from the jury, in favor of the defendant, upon one or all of the following grounds, viz.:

1. Plaintiff has failed to show want of probable cause for making complaint.

2. Plaintiff has failed to show malice on the part of the defendant in making the complaint.

3. The evidence shows the plaintiff guilty of larency, upon her own showing.

4. The plaintiff has failed to show a determination or ending of the criminal prosecution in such a way that would entitle her to commence this suit.

5. The proofs show that defendant acted upon the advice of counsel in making the complaint.

Counsel appear to agree that the twenty-ninth assignment of error only need be discussed. It was that “the court erred in directing a verdict for the defendant upon the conclusion of the plaintiff’s case.”

Each of the grounds stated requires the consideration of all evidence upon the subject, and any one of them is sufficient to sustain the verdict, on a count for malicious prosecution, if well taken. The plaintiff’s own testimony shows that in April, 1902, she resided in Battle Creek, with her husband, that on April 19th she had a transaction at the defendant’s store with his clerk, a Mr. Reide, selecting a pair of curtains which she asked to be allowed to take home upon approval, and which she would return if they did not suit, and she would want another pair if they did. Reide turned the matter over to another clerk after a short talk with her. It is inferable from her testimony that she ordered a carpet the same day, and that she told the clerk that she could not pay before June. After a conversation with a man whom she supposed to be the defendant (whom she did not know), Reide returned to her and gave her the curtains. She afterwards bought another pair of curtains. At this time the clerk who waited upon her asked her if she had a book account there, and she replied that she had. The clerk consulted the bookkeeper, and they looked at the book, when she was allowed to take the curtains. She did not use these goods in Battle Creek, for, according to her story, her husband told her to get ready to move to Lansing, which they did two or three days after the latter transaction, which occurred on April 19th, on which day, or a day or two later, the carpet was delivered. She did not communicate with the defendant or his employés or inform him or them of her intended removal, either at the time she purchased the goods; or at any other time.

Early in June following, Reide procured a warrant for the larceny of the first pair of curtains, to be issued by a justice of the peace, upon a complaint over the name of the defendant. These papers were both drawn by a justice, after a statement of the facts by Reide, and after the justice had taken the advice of counsel that they constituted larceny, which advice was, before the warrant issued, communicated to Reide. The justice testified that he could not tell whether the defendant signed the complaint or not, but we are of the opinion that there was room for an inference that he signed it. The warrant was placed in the hands of an officer, who, with Reide, went to plaintiff’s residence in Lansing, accused her of stealing the curtains, told her that Mr. Reide had the warrant for her, which was exhibited, upon which she would be arrested and taken to Battle Creek, if she did not pay for all of the goods, together with the costs and expenses. She offered to pay $25, saying it was all the money she had, but she afterwards obtained some money from a bank, upon a draft or some other paper which she seems to have had, and paid $76 to Mr. Reide, and nothing further was done. On cross-examination she admitted that, about the time she procured these goods, she obtained others on approval, from other merchants in Battle Creek, and took them to Lansing with her, without paying for or giving notice of her intention to remove, and that in one or more instances she paid for these after the transaction at Lansing with Reide, under similar threats of arrest and punishment.

The testimony in this cause might convince a jury that this warrant was used for an improper purpose. It charged a felony, and, if used for the purpose of obtaining a settlement, instead of to bring the offender to justice, it was a wrongful use. It is contended .that, whatever use was made of this warrant, the defendant cannot be held liable in this action, for the reason that there is no evidence connecting him, either with the issue or use of the warrant, and that he cannot be held liable for the wrong of his clerk, who acted outside of the scope of his authority. Reide, the clerk, caused the action taken by the justice of the peace; but there is testimony tending to show, and from which a jury might find, that defendant signed the complaint. The notice accompanying the plea is consistent therewith, and he did not choose to offer testimony to the contrary. The cause was disposed of on motion of counsel on plaintiff’s showing. While there is no positive proof that defendant had any part in the transaction, there is evidence from which it is legitimately inferable.

The same may be said as to the use of the warrant. It is a natural inference, from the circumstances, that the use made of the warrant was intended, when it was procured, and that such intention was shared by all connected with its procurement. If defendant shared an intention to make an improper use of the warrant, by using it for private purposes to the exclusion of public interests, there was malice in his action. If this is an action for malicious prosecution merely, the plaintiff cannot be said to have made a case, unless a want of probable cause has been shown. This is not inferable from malice alone. See Le Clear v. Perkins, 103 Mich. 131 (26 L. R. A. 627); Hamilton v. Smith, 39 Mich. 222; Smith v. Austin, 49 Mich. 286; Webster v. Fowler, 89 Mich. 311. It may be inferable from the facts and circumstances, however. We are asked to hold that upon this record — all of the testimony being returned — there is no evidence from which a want of probable cause is inferable. If it were demonstrable from this record that the plaintiff obtained these curtains by fraud, with the felonious intent to deprive the owner of them, we would be justified in saying that want of probable cause was not shown; but we are not able to say, as matter of law, that the plaintiff had the felonious intent, nor that the defendant, when he made the complaint, even believed that she obtained the goods with such intent. These were proper questions for the jury. See Harris v. Woodford, 98 Mich. 147; Rankin v. Crane, 104 Mich. 9; Fine v. Navarre, 104 Mich. 95; Pawlowski v. Jenks, 115 Mich. 275; Bennett v. Eddy, 120 Mich. 309; Burbanks v. Lepovsky, 134 Mich. 391; Adkin v. Pillen, 136 Mich. 682.

Another reason is given for affirming this cause. It is said that an action for malicious prosecution requires that the proceeding complained of shall have terminated by an acquittal, or in favor of the accused, and that, when it is settled, or dropped by agreement, it will not lie. Manifestly, if the defendant had been convicted and punished for larceny in that proceeding, probable cause to believe in guilt would as a general rule be treated as demonstrated, and defendant’s good or bad faith or motive would be immaterial. It is only when there is an opportunity to say that there was no probable cause that his good or bad faith becomes important. It is in cases where defendant relies upon a justification for his acts, as advice of counsel, or barely divulging his knowledge to a magistrate, that this question is involved. Rankin v. Crane, 104 Mich. 6; Phillips v. Village of Kalamazoo, 53 Mich. 33; 19 Am. & Eng. Enc. Law (2d Ed.), p. 666; 4 Current Law, p. 485, and cases cited.

In the present case it cannot be said that the proceedings terminated in what was equivalent to an acquittal. On the contrary, the plaintiff paid the debt for the obvious purpose of avoiding arrest. If there was not a clear compromise, to the extent of compounding a felony, which does not appear, it is clear enough that she paid her debt and the costs, to avoid trouble, with the concurrence of Reide. Whatever we may think of the propriety of the use made of the process, or the settlement of the matter, or its efficiency to secure her against further prosecution, we cannot say that it was tantamount to an acquittal. For this reason we think that an action of malicious prosecution cannot be maintained. See McCormick v. Sisson, 7 Cow. (N. Y.) 715; Emery v. Ginnan, 24 Ill. App. 65; Rosenberg v. Hart, 33 Ill. App. 262; Fadner v. Filer, 27 Ill. App. 506; Sartwell v. Parker, 141 Mass. 405; Gallagher v. Stoddard, 47 Hun (N. Y.), 101.

We understand it to be contended in this court that the second count charges a malicious abuse of process, resulting in extortion through duress, and mental and physical distress, and injury from a newspaper publication of this transaction. These allegations are incorporated in a count which charges the malicious procurement of the writ. There is no doubt of a plaintiff’s right to redress for the willful misuse of criminal process, if the misuse occasions injury and damage. Thus, in the case of Holley v. Mix, 3 Wend. (N. Y.) 350, one under arrest upon a valid criminal warrant for larceny was taken by the constable, who acted in collusion with the complainant, to a place appointed, where, by virtue of threats, he was led to pay the amount alleged to have been stolen. An action for false imprisonment against the constable was sustained, upon the theory that the wrongful use of the warrant removed its protection, and the detention was unlawful.

In Baldwin v. Weed, 17 Wend. (N. Y.) 224, it was held that damages for oppressive conduct could not be recovered on a count for malicious prosecution, but only on a count charging it, which might be joined with a count for malicious prosecution, however.

Wood v. Graves, 144 Mass. 365, is another case in which it was held that false imprisonment would lie for misuse of a warrant. See, also, Dishaw v. Wadleigh, 15 App. Div. (N. Y.) 210.

The case of Grainger v. Hill, 4 Bing. N. C. 220, contains an interesting discussion of this subject. Sneeden v. Harris, 109 N. C. 357 (14 L. R. A. 389); Lockhart v. Bear, 117 N. C. 298; Hewit v. Wooten, 52 N. C. 182; Prough v. Entriken, 11 Pa. 81; Adams v. Adams, 13 Pick. (Mass.) 384. See Cooley on Torts (3d Ed.), p. 220. Many, if not all, of these cases arose upon an arrest, or detention of the person or unlawful taking of property of the plaintiff, which is not this case, and the question arises whether they have application to a case like the present, where the only use made of the process is to incite fear of arrest; in other words, whether such use is an actionable abuse of the process. See Bonney v. King, 301 Ill. 47; Mayer v. Walter, 64 Pa. 283; Norcross v. Otis, 152 Pa. 487.

As we have seen, an action of false imprisonment may lie when there is a misuse of valid process (see Holley v. Mix, supra), and an action of trespass, or perhaps case, may lie for the wrongful seizure of property; but we have not such a case, either declared upon or proved. While this count is said to charge abuse of process, it is also suggested that it alleges duress, consisting of a threat to imprison (with apparent ability and right), unless money should be paid. If it should be found that this was duress, under which money had been unlawfully extorted, an action would lie therefor. Cooley on Torts (3d Ed.), p. 593 et seq.; 5 Current Law, pp. 1047, 1048. It may be accompanied by a misuse of process, in a sense, e. g., as by an exhibition of it, to give color and efficacy to the threat. The action would ordinarily be to recover the property parted with, and, in a case like this, where money is obtained through duress, assumpsit is the usual remedy, and the measure of damages the money unlawfully extorted (8 Enc. of Pleading & Prac. p. 795, and notes; 5 Current Law, p. 1048), and where case will lie, as it undoubtedly may in some cases, the damage should be specially alleged.

We are cited to no case, recognizing duress by mere threats, unaccompanied by an arrest or forcible detention of the person, or property, as a ground for personal damages. It is said tnat the case of Antcliff v. June, 81 Mich. 477 (10 L. R. A. 621), sustains the plaintiff’s contention, that case will lie for the abuse of process, under the circumstances of this case; but we need not decide the question. For the first time the plaintiff’s counsel apparently attempt in this court to distinguish this case from a malicious prosecution case. They say:

“This is strictly an action on the case — upon the facts pleaded and proven — to recover damages for injuries sustained by the plaintiff on account of the abuse, and misuse, of the criminal process of the State, for the purpose of extorting money by intimidation, fear, and duress; in other words, the wrongful and malicious use and abuse of the criminal process of the State, for the purpose of collecting a debt, and unlawful sums as costs. The facts in the case are fully stated and set forth in plaintiff’s amended declaration.”

Again:

‘ ‘ Both court and counsel seem to have failed to comprehend the charge of the declaration. It is not a declaration strictly for either false imprisonment or malicious prosecution. While sounding in both (and perhaps sufficient in either without demurrer), it does not claim a malicious prosecution, because there was no prosecution. It does not aver imprisonment, because there was no arrest, although it might be well said that she was placed under restraint and imprisonment by the conduct of Reide and Annis; but it does allege the duress, restraint, and intimidation of the plaintiff through the use of these criminal proceedings, and extorting thereby from her, wrongfully, the moneys that she paid over. It alleges the perpetration of a great wrong and injury to her, and sets forth the means by which it was accomplished.”

We need not enter upon the question whether an action, distinct from, and governed by different rules than those applicable to, malicious prosecution, would lie upon the facts of this case, for no one áppears to have thought this was such a case, or, if plaintiff’s counsel did, it was not brought to the attention of the trial court so far as we have been able to ascertain. At all eventSj our attention is not directed to anything indicating it, and, as counsel say, neither the court nor defendant’s counsel seem to have understood that the declaration was of such a character. The remarks made and reasons given by the judge at the time that he directed a verdict show that he supposed that he was disposing of a case of malicious prosecution. The motion for a verdict shows that the defendant’s counsel acted upon the same theory, there are no requests to charge upon such a theory, and the assignments of error do not point to such a question. Of the twenty-nine assignments, all but one refer to rulings on evidence, and the brief does not state the errors relied on, as required by rule. The twenty-ninth assignment is that the court erred in directing a verdict for the defendant, and this is the only one discussed. The following authorities sustain the rule that a case should not be reversed upon points and theories that were not presented to the trial court: Oatman v. Taylor, 29 N. Y. 649, 662; Adams v. National Bank, 116 N. Y. 606, 614 (6 L. R. A. 491); Sterrett v. National Bank, 122, N. Y. 659; Blair v. Flack, 141 N. Y. 53, 56; Oliphant v. Burns, 146 N. Y. 218, 236; Reich v. Cochran, 151 N. Y. 122 (37 L. R. A. 805); Krebs Manfg. Co. v. Brown, 108 Ala. 508; Greene v. Greene, 49 Neb. 546 (34 L. R. A. 110); Klotz v. James, 96 Iowa, 1; State v. Myers, 70 Minn. 179; Williamson v. Building & Loan Ass’n, 54 S. C. 582; Rivard v. Rivard, 109 Mich. 98.

The judgment should be affirmed.

Grant, J., concurred with Hooker, J.

Montgomery, J. In my opinion the record presents the question of plaintiff’s right to recover for an abuse of process. The testimony presented tended to show a use of a warrant charging a criminal offense as a means, which, when accompanied by threats of an arrest under it, resulted in frightening the plaintiff into paying over to the agents of defendant a sum of money in excess of any demand of defendant. The second count of the decíaration sets out these acts at length, and was clearly sufficient, under Antcliff v. June, 81 Mich. 477 (10 L. R. A. 621).

The record does not disclose that the plaintiff’s counsel at any time waived any right which plaintiff had to recover under this count, or in any manner restricted the claim to the count for malicious prosecution. When the defendant moved the court to direct a verdict, the question presented was whether the plaintiff had offered any testimony tending to make a case under the pleadings. Stewart v. Railroad Co., ante, 48. I think it clear she had made such a case, and that it was error to withdraw the case from the jury.

While assumpsit may be the remedy most usually sought for redress of extortion of money, it is not on principle an exclusive remedy. The wrong committed by extorting money from its owner by means of an abuse of criminal process is not different in character from extorting by the same means his horse or his ox or his ass or any other thing that is his. In either case an action on the case is permissible. See Antcliff v. June, supra. Nor do I think that damages for such an injury will in all cases be restricted to the value of the money or property obtained. If there be circumstances of aggravation, additional damages may be allowed. See 4 Sutherland on Damages (3d Ed.), § 1131, and note 10.

The judgment should be reversed, and a new trial ordered.

McAlvay, C. J., and Carpenter, Blair, Ostrander, and Moore, JJ., concurred with Montgomery, J.


author: Montgomery, J.

text:
    DOLAN v. SMITH.
    Boundaries — Ascertainment—Chancery Jurisdiction.
    Equity determines questions of boundary line only when encountered while administering a remedy which properly belongs to some recognized head of equity jurisprudence and has not jurisdiction of a bill to restrain interference with complainant’s purpose to build a sidewalk over a disputed strip along the boundary between two lots, of which strip complainant had not possession at the time the bill was filed.
    Appeal from Ionia; Davis, J.
    Submitted October 11, 1906.
    (Docket No. 53.)
    Decided March 5, 1907.
    • Bill by Terry Dolan and Mary A. Dolan against Judith E. Smith to determine the boundary line of certain lots. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      John Nichol, for complainants.

      Scully & Davis, for defendant.
   Montgomery, J.

Complainants filed a bill of complaint, alleging that they are owners of lot 31 of Merritt & York’s addition to the city of Ionia; that defendant is the owner of lot 30 adjoining 31 on the west; that complainants purchased their lot in 1881, and defendant and her former husband became the owners of lot 30 in 1883; that each lot is platted 50 feet in width; that Jackson street marks the boundary of lot 30 on the west; that measured from the east line of Jackson street as occupied to the line claimed by defendant she would have 18 inches too much width. The bill further avers:

“Fifth. Your orator and oratrix further show that shortly after they purchased said lot No. thirty-one (31), as aforesaid, they erected a line fence extending one-half the distance from the south line of said lots 'to the north line thereof, but placed the whole of said fence upon their own land, and east of the dividing line running north and south between said lots thirty (30) and thirty-one (31); that said fence is now in existence, having remained there since the time it was so erected.
“Sixth. Your orator and oratrix further show that no fence was erected upon said land between said lots number thirty (30) and thirty-one (31) upon the north half of said lots at said time, nor for several years thereafter, but that about 8 or 10 years ago said defendant erected or caused to be erected a fence upon the said north half of said division line of said lots, but placed the whole óf said fence upon the west side of said line. That said fence when so erected extended from the north line of said lot thirty (30), and upon west side to a point opposite the extreme north end of the fence erected by your orator and oratrix, but that the ends of said fence when so constructed did not meet or connect, for the reason that each of said parties had erected and placed the fences erected by them on their own lands and on their own side of the dividing line of said lots.”

The bill avers a purpose to build a cement walk in front of complainants’ premises, and threats on the part of defendant to interfere with any attempt to do so, and prays an injunction and á decree quieting title. The answer denies that Jackson street, as opened, marks the west line of defendant’s lot 30, but admits it is bounded on the east by lot 31. Admits that complainants erected a line fence on the south half of this lot, but avers that it was not built wholly on complainants’ land, but avers that it was built on the line. Admits that the fence was not extended to the north line, but states that afterwards defendant built a fence wholly on her own land extending south from the north line of the lot; that this was a temporary fence afterwards removed. Avers that the line of demarkation between the two lots was marked by an iron post set in the fence running along Main street, and avers that complainant is attempting to oust defendant of a small piece of land owned and occupied by her, and prays the benefit of a demurrer. On the hearing, the circuit judge held that the complainants had not made a case for equitable relief, and dismissed the bill without prejudice to an action at law, and without costs to either party. Complainants appeal.

The testimony is discussed at great length, as it bears upon the question of the true boundary line as shown by the surveys, and also as it bears upon the establishment of a line by acquiescence. We do not find ourselves able to assent to complainants’ contention that we should determine these questions on this record. The rule is settled by repeated adjudications that the equity court has no inherent jurisdiction to determine boundary lines. Wykes v. Ringleberg, 49 Mich. 567; Andries v. Railway Co., 105 Mich. 561. It is true that a court of equity may determine a question of a boundary line when encountered while administering a remedy which properly belongs to some recognized head of equity jurisprudence. See Campbell v. Kent Circuit Judge, 111 Mich. 575. In this case, however, the complainants do not bring themselves by their proofs within the jurisdiction in equity. They fail signally in showing that they were at the time of filing the bill in possession of the disputed strip. The testimony shows the contrary. The testimony shows that complainants have never constructed a walk over this disputed strip before. This is a plain attempt to acquire possession and settle a disputed boundary in equity.

The decree is affirmed, with costs of this court to defendant.

Grant, Blair, Ostrander, and Hooker, JJ., con-, curred.