text:
    AMERICAN MIRROR & GLASS-BEVELING CO. v. BULKLEY.
    1. Equity Practice — Case Heard on Bill and Answer.
    An answer to a bill in equity is to be taken as true, where the cause is heard on bill, demurrer, and answer.
    2. Same — Construction of Pleadings.
    A general allegation in a creditor’s bill against the stockholders of an insolvent corporation, that a large number of subscriptions to the capital stock were not paid at all, while some were paid in worthless patent rights and some in goods at fictitious prices, is sufficiently met by an averment in the answer of an individual stockholder that he has fully paid for the stock subscribed by him.
    3. Corporations — Legality of Organization — Estoppel.
    Where an association has been recognized by the public authorities as a duly-organized corporation, and has done business and filed its annual reports as such, creditors who have dealt with it and brought suit against it as such corporation cannot attack its corporate existence, and hold its stockholders liable as partners.
    4. Same — Unissued Stock — Liability of Stockholders.
    A stockholder who has paid for his stock in full is not personally liable to the creditors of the corporation for its unissued stock, in the absence of a showing that he subscribed for or purchased his stock in furtherance or with knowledge of a fraudulent scheme to organize and carry on an illegal corporation.
    Appeal from Kent; Adsit, J.
    Submitted December 3, 1895.
    Decided December 17, 1895.
    Bill by the American Mirror & Glass-Beveling Company to establish the individual liability of the stockholders in the Michigan Cabinet Company for the payment of its debts. From a decree sustaining the demurrer of the defendant Abby A. Bulkley, complainant appeals.
    Affirmed.

      Wesselius & Corbitt, for complainant:
    A corporation, in the absence of legislative permission, has no legal right to begin its business operations and incur debts until the entire capital stock fixed by its charter has been subscribed, and, in case of failure to observe this requirement, the corporators are individually liable to the creditors of the corporation to the amount of the unsubscribed stock. Beach, Priv. Corp. § 118; Mor. Corp. §§ 408, 823, 824; Thomp. Corp. § 2969; Haslett v. Wotherspoon, 1 Strob. Eq. 209; Burns v. Beck, 83 Ga. 471; Association v. Walker, 88 Mich. 62; Hawes v. Petroleum Co., Ill Mass. 200.
    Complainant did not, by obtaining judgment against the corporation, waive its claim against the defendant stockholders. Cook, Stockh. §§ 219, 222; Beach, Priv. Corp. § 698; Mor. Corp. §§ 899, 900.

      Champlm & Stone, for defendant Bulkley:
    At the common law, there is no individual liability of members of a corporation for corporate debts beyond the enforcement of their agreed contributions to the capital stock. Beach, Priv. Corp. § 143; Terry v. Little, 101 TJ. S. 216; U. S. v. Knox, 102 TJ. S. 422; Manufacturing Co. v. Bank, 6 Rich. Eq. 227.
    A failure to comply with all of the statutory requirements in the organization of a corporation does not render the corporators liable to creditors as copartners. Fay v. Noble, 7 Cush. 188; Bank v. Almy, 117 Mass. 476; Bank v. Walker, 66 N. T. 424; Salt Co. v. Heidenheimer, 80 Tex. 344; Stokes v. Findlay, 4 McCrary, 205; Society Perun v. Cleveland, 43 Ohio St. 481.
    A subscription of the whole amount of the capital stock is not a condition precedent to the legal existence of a corporation, unless it is made such in terms by the governing-statute. Thomp. Corp. §§ 246, 2988; Cook, Stockh. § 243; Johnson v. Kessler, 76 Iowa, 411; Sweney v. Talcott, 85 Iowa, 103; Th»rnton v. Balcom, Id. 198; Qhilds v. Smith, 55 Barb. 45; Manufacturing Co. v. Moving. 15 Gray, 211; Turnpike Co. v. Valentine, 10 Pick. 142; Bank v. Investment Co., 74 Tex. 421; Massey v. Building Association, 22 Elan. 624.
    Complainant, having dealt with the defendant company as a corporation, is estopped to deny its legal existence. Swartwout v. Bailroad Co., 24 Mich. 394; Monroe v. Bailroad Co., 28 Mich. 274; Bank v. Stone, 38 Mich. 779; Manufacturing Co. v. Stuart, 46 Mich. 482; Manufacturing Co.v. Bun

      neis, 55 Mich. 130; Jones v. Building Association, 77 Ind. 340; Poehelu v. Kemper, 14 La. Ann. 308; Oresswell v. Oberly, 17 111. App. 281; Salt Óo. v. Heidenheimer, 80 Tex. 344; Snider v. Troy, 91 Ala. .224; Cory v. Lee, 93 Ala. 468; Stout v. Zulick, 48 N. J. Law, 599; Bank v. Padgett, 69 Ga. 159; Bank v. Palmer, 47 Conn. 443; Blanchard v. Kaull, 44 Cal. 440; Thornton v. Balcom, 85 Iowa, 198; Cochran v. Arnold, 58 Pa. St. 399; Baton v. Aspinwall, 19 N. T. 119; Powder Co. y. Sinsheimer, 46 Md. 315.
   Grant, J.

The bill sets up the articles of association of the Princess Dressing-Case Company in full; alleges that said corporation began to do business; the amended articles by which its name was changed to the Michigan Cabinet Company, and its capital was increased to $100,000, and its shares to 10,000; the annual report; that said corporation did business until September, 1893, and created a large indebtedness; that at that time it gave a trust mortgage, and ceased to do business; that, at the time it gave said mortgage, all of its capital stock was not subscribed for, and had not all been paid in in money, but some had been paid for in nearly worthless patent rights, and not to exceed one-third of the capital stock had been subscribed for in any manner; that the annual report was not true; that, at the time said mortgage was given, said Michigan Cabinet Company was indebted to the complainant in the sum of $570; that on December 19, 1893, the complainant obtained a judgment against the said Michigan Cabinet Company in the circuit court for $570.33 and costs, for which sum it had execution, but that said execution was returned nulla bona; that the said Michigan Cabinet Company owas not legally organized to do. business; that the said stockholders became individually liable thereby for its indebtedness; that, by means of the premises, defendants became indebted to the complainant for the indebtedness of said Michigan Cabinet Company up to $100,000, or such part thereof as shall be required to pay said complainant; prays answers to the several interrogatories based on said averments; asks for the appointment of a receiver to collect debts of said Michigan Cabinet Company for the creditors; that the stockholders may be decreed individually liable for said indebtedness. This defendant, Abby A. Bulkley, answered that, long before the said Princess Dressing-Case Company became liable to said complainant, she had paid the said Princess Dressing-Case Company the full amount of her subscription; and to the remainder of said bill she demurred generally, and the demurrer was sustained.

1. This case is before us on bill, demurrer, and answer. The original articles of association were executed in December, 1889, and were duly fiied in the offices of the secretary of state and county clerk of Kent county. The corporation immediately entered upon its business, and carried it on until September, 1893. Meanwhile, in October, 1892, it amended its articles by increasing its capital stock to 1100,000, which amendment was also duly filed in the proper offices. It was recognized by the public authorities as a duly-organized corporation; did business and made and filed its annual reports as such. The complainant dealt with it and brought suit as such. The complainant cannot now attack its legal existence, and hold the stockholders liable as partners. Swartwout v. Railroad Co., 24 Mich. 389; Merchants’, etc., Bank v. Stone, 38 Mich. 779. Many authorities are cited in these two cases. See, also, Pochelu, v. Kemper, 14 La. Ann. 308; Cresswell v. Oberly, 17 Ill. App. 281.

2. It is alleged in the bill that “a large amount of what was subscribed for was not paid for in any manner, and some of the said subscriptions for stock had been paid for in patent rights, which were nearly worthless, and some paid for in goods at fictitious prices.” There is no allegation to connect the defendant Bulkley with any of these supposed fraudulent transactions. The complainant has chosen to accept the. issue as made by the pleadings. Her answer must therefore be taken as true. By this it appears that she has paid the full amount of her stock. There being no actual fraud charged against her, the decree dismissing the bill as to her was correct, unless she can be held liable for the entire amount of the unsubscribed stock, or sufficient thereof to pay the debts of the corporation.

3. The defendant corporation was organized under Act No. 232, Pub. Acts 1885, as amended by act No. 170, Pub. Acts 1889. The act does not provide that the entire capital stock shall be subscribed as a condition precedent to its organization and the right to carry on business. It provides that 10 per cent, of it shall be paid in, and this requirement was fulfilled when that amount was paid in by the actual subscribers. Mrs. Bulkley was not a director, and is not shown to have had anything to do with the management of the business, or with the alleged fraudulent annual report made by the three directors in February, 1893. There is no allegation that she knew that the entire capital stock was not to be subscribed, or that there was any understanding or agreement that they should enter upon and carry on the business without the subscription of the entire stock. This is not a. contest between the corporation and the stockholder to enforce a subscription or assessment, as was the case in International Fair, etc., Ass’n v. Walker, 88 Mich. 62.

In Haslett v. Wotherspoon, 1 Strob. Eq. 209, the stockholders were held liable because they had represented that the entire capital stock of $60,000 was subscribed and paid in, whereas, in fact, only about half that sum had been paid in. This case was commented on in South Carolina Manfg. Co. v. Bank of South Carolina, 6 Rich. Eq. 227. It was there held that stockholders incur no personal liability except as prescribed by the terms 'of the charter. Speaking of the power of the corporation to enter upon business before a certain amount of capital stock has been paid in, and the liability of individual stockholders, the court say: “In the absence of such prohibitory provision, to render each subscriber responsible for the payment of the whole amount of the capital stock would not only ingraft a new liability, but be fatal to the establishment of any such institutions.”

In Burns v. Beck, 83 Ga. 471, two parties undertook to form a corporation. All the stock had not been subscribed for, or the minimum amount paid in. They held the corporation out as duly organized, and then made a fraudulent assignment of the corporate property. The court say: “Taking the allegations of the bill as true, they were connected with the corporation through fraud at both ends of its career, and throughout the whole intervening space.” The parties held liable were the sole organizers of the pretended corporation, and perpetrators of the fraud.

In Hawes v. Petroleum Co., 111 Mass. 200, no stock had been issued, and only one of the members had agreed to take a certain number of shares. It was held that they were the joint owners of the entire capital stock, and, by the express terms of the Massachusetts statute, were jointly and severally liable for the corporation debts.

'The above are the principal cases cited by the complainant in support of the liability of Mrs. Bulkley. They are not in point. The sole question presented to us now is, can a stockholder, whose ordinary contract is to pay the par value of his share, and who has paid it, be held liable to creditors of the corporation for its unissued stock, without any allegation or showing that he either subscribed for or purchased his stock with knowledge or in furtherance of a fraudulent scheme to organize and carry on an illegal corporation? We find no authority, and we see no reason, to support such a proposition. It seems to us contrary to the principles of justice and equity. We pass no opinion upon a case where parties have launched such a corporation intentionally, and with a full knowledge of the situation. That case is not before us.

It follows that the decree must be affirmed, with costs.

McGrath, C. J., Long and Hooker, JJ., concurred; Montgomery, J., took no part in the decision.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    MEISEL v. WELLES.
    1. Estoppel — What Constitutes.
    To constitute an equitable estoppel, the party must have been misled to his prejudice, by conduct well calculated to induce, the action taken.
    2. Same.
    Defendant, having purchased certain exempt property from his debtor, told plaintiff, another creditor, upon inquiry, that he had taken the goods on attachment. Plaintiff thereupon went to the town where the debtor was engaged in business, several miles distant, and procured from him an assignment of his right of exemption in the goods. Held, in trover for the property, that, as defendant’s statement was not of a nature to induce plaintiff to go to such place, and as plaintiff parted with no new consideration and lost no rights after reaching there, and was advised of defendant’s claim before bringing suit, defendant was not estopped to claim title tinder his purchase.
    Error to Arenac; Sharpe, J.
    Submitted December 4, 1895.
    Decided December 17, 1895.
    Trover by Herman Meisel and another against Arthur H. Welles and another. From á judgment for defendants, plaintiffs bring error.
    Affirmed.

      Frank 8. Pratt, for appellants:
    An alleged purchaser of goods, who causes an execution to be levied upon them as the property of the vendor, is estopped from claiming the goods in any other way than by virtue of such levy. Herman, Estop. § 977; Smith v. Taylor, 14 La. Ann. 663; Drew v. Kimball, 43 N. H. 282; Field v. Langsdorf, 43 Mo. 32.
    Defendants, by their words, acts, and conduct, having led plaintiffs to believe that the goods belonged to Hagley at the time at which they now claim they themselves were the owners, and having thus induced plaintiffs to incur further expenses in trying to collect or secure their claim against Hagley, are now estopped from claiming the goods as their own. Morrill v. Mackmgn, 24 Mich. 279; Meister v. Birney, Id. 435; Wilber v. Goodrich, 34 Mich. 84; Vanneter v. Grossman, 42 Mich. 465; Bartlett v. Railway Go., 82 Mich. 658; Condon v. Hughes, 92 Mich. 367.

      Mortimer D. Snow, for appellees:
    There can be no estoppel unless a party is misled to his prejudice by the conduct of the person against whom it is set up, and acts are done relying upon conduct calculated to mislead. Gorham v. Arnold, 22 Mich. 247; Palmer v. Williams, 24 Mich. 328; Grane v. Reeder, 25 Mich. 303; DeMill v. Moffat, 49 Mich. 125; Thirlby v. Rainbow, 93 Mich. 164.
   Montgomery, J.

The defendants are merchants, and do.ing business under the name of Welles & Co., in the village of Standish, and have been engaged in that business for a number of years. Albert Hagley, during the year 1894, and for a number of years previous thereto, was doing business in the village of Omer, — a small village in Arenac county, situated about 10 miles from Standish. He had a shingle mill there, and was dealing-in lumber. He also was carrying- on a small grocery business, but on a very limited scale. Mr. Hagley was indebted to the defendants in March, 1894, for goods he had purchased from them while conducting his business at Omer. Defendants began suit in attachment against Mr. Hagley. The writ was placed in the hands of the sheriff of Arenac county. This suit was started March 2, 1894. On the same day, Arthur H. Welles, the sheriff, and one Mr. Nerreter went to Omer to see Mr. Hagley in regard to the matter. Shortly after they arrived at Omer, Mr. Welles had a conversation with Mr. Hagley in regard to his indebtedness to defendants, and, during the conversation, purchased the stock of groceries of Mr. Hagley. Mr. Welles said that he had come out there to put an attachment on the lumber and shingles. Mr. Hagley informed Mr. Welles that he had given a mortgage to his father on that property. Mr. Welles then asked him about the goods in the store. Hagley then told Welles that he would let him have the goods in the store, and that Welles could give him credit for the same on his account. Mr. Welles then purchased all of the goods in the-store, and was to take an inventory of the goods, and give Hagley credit for the amount, at what the goods cost. After the goods were sold to Welles & Co., Hagley said to Mr. Welles and the sheriff that he was owing some parties in Bay City for groceries, and would like to have the sheriff give him a copy of the attachment, so that he would have an excuse for the parties in Bay City, and could show them that the goods were taken on attachment. The goods were taken from Mr. Hagley’s store under the direction of Mr. Welles.

The plaintiffs in this case reside in Bay City, and are engaged in the wholesale grocery business. Hagley was indebted to them for groceries. On the morning of March 2 or 3, 1894, Mr. McDonell, Mr. Meisel, and Mr. Gilbert left Bay City for the purpose of going to Omer to see Hagley. Mr. Gilbert at that time was acting as attorney for plaintiffs. The three men called upon Welles, at Standish, and asked him what the matter was with Hagley; and in reply to that question Mr. Welles told them that Hagley was in a bad fix, that defendants had attached the goods of Hagley, and that defendants’ teams were over at Omer for the goods. None of the gentlemen intimated at the time to Mr. Welles that they intended to purchase any of the stock of goods, or that they were interested in them in any way, or that they intended to seize any of Hagley’s goods. After they arrived at Omer, they told Mr. Hagley that, according to the laws of Michigan, he was entitled to an exemption of $250, and persuaded Hagley to sign over to them his right of exemption in said goods. Subsequently, plaintiffs demanded the property of defendants, and, on their refusal to deliver it, brought this action. Before suit was brought, defendants informed plaintiffs that they had bought the property of Hagley. The question of whether there was an actual sale was a controverted one, but as the jury found that there was such a sale, under proper instructions, we treat that as an established fact.

The principal contention of plaintiffs is that, by this action at Standish, defendants estopped themselves from claiming title to the property in question under the sale from Hagley. We do not think the elements of an estoppel are present. We think the statement made by defendant was neither intended to, nor was it in its nature calculated to, induce the action which plaintiffs after-wards took, and when they reached Omer they parted with no new consideration, and refrained from no action which they could otherwise have taken against this or other property of Hagley’s. As to this property, it was admittedly exempt from seizure on process, and, before any suit was instituted by plaintiffs, they were notified of the fact that defendants claimed to have bought the goods. But the plaintiffs contend that there was evidence that, if the plaintiffs had been told by defendants that they (defendants) had bought the goods of Hagley, plaintiffs would not have gone to Omer. This is, of necessity, speculative, as the question was not presented to the parties; but, if this is to operate as an estoppel, we ought to be further able to say what would have been the plaintiffs’ course as to going to Omer if defendant had said nothing upon the subject of these goods. As they had started for Omer, it is to be assumed that they would have gone there; and, if this is so, their course in that regard was not changed by anything defendant said. But a further answer to this contention is that there was nothing in the fact that Hagley’s stock had been attached, and that it was exempt, which afforded any inducement for plaintiffs to go to Omer. The statement was not calculated to induce such action, but quite the reverse. So far as the plaintiffs’ ability to reach the property by process was concerned, either the fact of a sale or an attachment of property not subject to execution would have precisely the same effect. No statement of defendant was of a nature to induce plaintiffs to go to Omer, and, as they parted with no new consideration and did not lose any rights after reaching there, the court rightly held that there was no estoppel growing out of the statement attributed to Welles.

The case of Pickard v. Sears, 6 Adol. & E. 469, is the leading case on the subject of equitable estoppel, and the rule in that case is stated to be that—

“Where one, by his words or conduct, willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.”

The meaning of the word “willfully,” as employed in this connection, was subsequently explained in Freeman v. Cooke, 2 Exch. 654, where it was said:

“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth.”

In short, as is said by Mr. Herman, in his work op Estoppel (section 754), in commenting upon this case, the representations are to be regarded as willful when the person making them means them to be acted upon, or if, without regard to intention, he so conducts himself that a reasonable man would take the representation to- be true, and believe it was meant he should act upon it. Continuing, this author says:

“Whatever may be the motive, one who so acts or speaks that the natural consequence of his words or conduct will be to influence another to change his conduct is legally chargeable with an intent or willful design to induce the other to believe him, and to act upon that belief, if such prove to be the actual result.”

And at section 781 it is said:

“Several things are essential to be made out in order to enforce the operation of this doctrine: (1) That the act or declaration of the person must be willful, — that is, with knowledge of the facts upon which any right he may have must depend, or with intention to deceive the other party; (2) he must, at least, it would seem, be aware that he is giving countenance to the alteration of the conduct of the other, whereby he will be injured if the representation is untrue; and (3) the other must appear to have changed his position by reason of such inducement.”

It will be seen that it is of the essence of this rule that, in the absence of an actual intent to induce action by 'another, the statement must be of a fact the existence of which is calculated to induce action. See Thirlby v. Rainbow, 93 Mich. 164.

The cases cited by plaintiffs to the point that an alleged purchaser of goods, who causes the property to be levied upon under an execution, is estopped from claiming title by purchase, are cases in which the question arose between subsequent execution creditors and the party guilty of the misleading conduct. A levy of an execution upon property as the property of A., which property is subject to levy, may well be said to be an assertion to other creditors that the property is the property of A.; but in the present case the plaintiffs acted on no such inference. On the contrary, the property was exempt, and, in the absence of a levy by defendants, would not have been subject to levy at the instance of plaintiffs.

■We think that there was no error in the proceeding. The judgment will be affirmed.

Long, Grant, and Hooker, JJ., concurred. McGrath, CJ. J., did not sit.


text:
    SWINEY v. SWINEY.
    1. Divorce — Alimony—Support of Children.
    Under 2 How. Stat. § 6245, providing that, upon granting a divorce, if the estate of the wife is insufficient for the suitable support and maintenance of herself and the children committed to her care, the-court may decree to her such part of the personal estate of the husband, and such alimony out of his real and personal estate, as shall be just and reasonable in view of all of the circumstances, the court cannot direct that an amount awarded for the support of a child be paid to its guardian, instead of to the wife.
    3. Same — Reasonableness of Allowance.
    An award of $1,000 alimony to a wife who is granted a divorce and the custody of a minor child will not be disturbed, where the wife has pioperty valued at $3,500, and the husband has property worth $5,500.
    Appeal from Livingston; Dodds, J., presiding.
    Submitted December 4, 1895.
    Decided December 17, 1895.
    Bill by Sarah G. Swiney against James Swiney for ■divorce. From a decree for complainant, both parties .appeal.
    Modified and affirmed.

      William P. VanWinhle, for complainant.

      ■Judd Yelland, for defendant.
   Montgomery, J.

This is an appeal from a decree granting the complainant a divorce from the bonds of matrimony, the custody of the minor child of the parties, Sarah Catharine Swiney, and $1,000, to be paid to the guardian of the minor child for her support and maintenance. The complainant has also appealed, claiming a further allowance of alimony.

An examination of the testimony convinces us that the decree for a divorce was justified. The testimony of defendant alone is sufficient to show acts and conduct on his part to fully justify the decree, unless his conduct is excused by acts of the complainant. While the case is not as clear on this point as we might have wished, yet we are on the whole satisfied that much of the ill temper which complainant át times exhibited can be accounted for by the wrongs which she suffered‘at the hands of the defendant.

As to the question of alimony, it appears that the complainant herself is possessed of $3,500, and that the defendant is worth $5,500. The court below was of the opinion that, in view of the fact that the custody of the only dependent child of the parties was accorded to complainant, an allowance of $1,000 should be made for her support and maintenance. We are satisfied that this conclusion was not inequitable, but under section 6245 of 2 Howell’s Annotated Statutes the award in such cases should be made to the wife, and we find no authority for making an allowance to a child or its guardian.

The decree will be modified, and the sum of $1,000 will be awarded to complainant in full for alimony, and, as so modified, the decree will stand affirmed, with costs.

Long, Grant, and-Hooker, JJ., concurred. McGrath, C. J., did not sit. . . • ■


author: McGrath, O. J.

text:
    DENNISON v. VAN WORMER.

    1. Appeal — Refusal of Requests to Charge.
    Errors assigned upon the refusal of requests to charge cannot be considered where the requests do not appear in the record.

      2. Intoxicating Liquors — Civil-Damage Law.
    The right of action conferred by the Michigan civil-damage law (3 How. Stat. § 2283e3) is limited to cases where the injuries are the direct result of acts done while intoxicated, or where they indirectly result by reason of the intoxication.
    3. Same — Action by Wife — Instructions.
    Hence, in an action by a wife for injury to her means of support, arising from the imprisonment of her husband upon his conviction of burglary committed while intoxicated, an instruction authorizing a recovery if the jury should find that the husband formed the intent to commit the offense by reason of the intoxication, or that he was so intoxicated at the time as to be incapable of forming any intelligent intent, is sufficiently favorable to the plaintiff.
    Error to Genesee; Wisner, J.
    Submitted December 5, 1895.
    Decided December 17, 1895.
    Case by Harriet Dennison against Charles W. VanWormer, a saloonist, and Myer Ephraim and Thomas Doyle, his bondsmen, under the civil-damage act. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      David P. Halsey, for appellant:
    Counsel cited, in addition to the cases referred to in the opinion, McMahon v. Dumas, 96 Mich. 467; Beers v. Wutilizer, 43 Hun, 254; Mead v. Stratton, 87 N. Y. 493; King v. Haley, 86 111. 106.

      Johnson & Stevens, for appellees.

       Rehearing denied March 3, 1896.

   McGrath, O. J.

This is case against a saloon keeper and his bondsmen. The declaration alleges that the sale occurred on Sunday; that plaintiff’s husband was intoxicated at the time of the sale, and was in the habit of getting intoxicated, to defendant Van Wormer’s knowledge; that he drank the liquor sold to him, and became more intoxicated; that while so intoxicated, and being thereby deprived of his reason, he committed the crime of burglary, by breaking and entering a certain store in the night-time, for which crime he was arrested, tried, and convicted, and sentenced to the house of correction for the term of three years. It appeared upon the trial that the husband had previously committed like offenses, and had served time in Detroit and Cleveland for two of them. The jury returned a verdict of no cause of action.

The errors assigned upon the refusal of the court to instruct as requested cannot be considered. The requests do not appear in the record. Baylis v. Stout, 49 Mich. 215.

The court instructed the jury that, to entitle plaintiff to recover, they must find “that while intoxicated at such time, and by reason thereof, he formed the intent of entering the store and committing the offense for which he was convicted, or that, when he entered the store to commit the offense, he was intoxicated to such an extent as to be incapable of forming any intelligent intent, or to realize the true character of the act which he committed, — either that by reason of the intoxication he formed the intent to enter the store, or that he was intoxicated to such a degree that he was incapable of forming an intent.”

A number of witnesses were sworn as to whether the husband was intoxicated at the time of the burglary. Three of them testify that he was not intoxicated; one, that he did not act as though intoxicated; and three say that they thought that he had been drinking, but would not say that he was drunk. There was also evidence tending to show that the husband, in making his exit from the store, went out by the back way, then up the back stairway, and down the front- stairs of another building, to cover his tracks. Thus we have a case involving criminal intent and purpose, which are not ordinarily the results of intoxication. It does not involve destruction of property, or injury thereto, or injury to person. The crime for which the conviction was had involved a breaking and entering with intent, — an act done by one who had committed a number of thefts; one who had been twice convicted of like offenses; who had been discovered on other occasions trying to enter other places, evidently with the same purpose; who had earned the appellation of “thief and burglar.”

The language of the statute (3 How. Stat. § 2283e3) is:

“Every wife, child, parent, guardian, husband, or other person who shall be injured in person or property or means of support or otherwise by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling, giving, or furnishing any spirituous, intoxicating, fermented, or malt liquors to any person, shall have a right of action in his or her own name against any person or persons who shall, by selling or giving any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury.”

This statute clearly refers to such injuries to persons, property, or means of support as are the direct results of the acts done while intoxicated, and to such other injuries as indirectly result by reason of the intoxication. In Brockway v. Patterson, 72 Mich. 122, Lane and Brock-way were both intoxicated, and quarreled, Lane striking Brockway and causing his death. In Thomas v. Dansby, 74 Mich. 398, Thomas and Free were both intoxicated, and the former’s leg was broken by the latter. In Wright v. Treat, 83 Mich. 110, the buggy in which plaintiff was riding was overturned, and plaintiff was injured, by a collision with a vehicle driven by Wells and Shafer, who were intoxicated and were recklessly driving. In Doty v. Postal, 87 Mich. 143, plaintiff’s husband was killed by an intoxicated person. In Eddy v. Courtright, 91 Mich. 264, plaintiff’s adult son was drowned while intoxicated. In Neu v. McKechnie, 95 N. Y. 632, plaintiff’s father killed the former’s mother and then himself while intoxicated. In these cases the act done injured plaintiff’s person, or took from plaintiff the means of support. In the present case, plaintiff’s husband was not injured or killed by an intoxicated person, nor did the act done by him cut off her support. The act done was not a direct blow at her person, property, or means of support. It was his arrest, conviction, and sentence which deprived her of his aid. And, too, a felonious intent' was an essential ingredient of the crime for which he was convicted. Whether that conviction was or was not conclusive, it is unnecessary here to determine. The trial court submitted the question to the jury under instructions most favorable to plaintiff.

As to the refusal of the court to permit plaintiff to answer the two questions, it appears that the subject-matter was fully covered by her testimony, and answers given to these very questions.

The judgment is affirmed.

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


author: McGrath, C. J.

text:
    GALE v. ECKHART.
    1. Summary Proceedings — Evidence.
    la summary proceedings to recover the possession of land, a deed purporting to convey the premises in question to the complainant is admissible to show his right of possession.
    2. Same — Fraud—Title to Lands.
    The question of fraud in the procurement of a deed is triable in a court of equity only, and cannot, therefore, be raised in summary proceedings, to oust the commissioner of jurisdiction.
    Error to Clinton; Daboll, J.
    Submitted December 5, 1895.
    Decided December 17, 1895.
    Summary proceedings by Maritta A. Gale against Charles Eckhart and another to recover the possession of land. From a judgment for defendants, complainant brings error.
    Reversed.

      Fed&wa, & Walbridge (8. F. Smith, of counsel), for appellant.

      Lyon & Looting, for appellees.
   McGrath, C. J.

On October 30, 1893, defendants executed and delivered to plaintiff a deed of certain farm lands. The deed contained the following: “Parties of the first part reserve the use of said described lands until April 1, 1894.” After said date, defendants refused to vacate, and summary proceedings were commenced before a circuit court commissioner to oust them. To show her right to possession, plaintiff produced her deed. The defense was that plaintiff procured the deed by fraudulent misrepresentations. The commissioner found defendants guilty. On appeal to the circuit, defendants were permitted to go into thé alleged defense fully, and the jury found for plaintiff. The court, however, after-wards set aside that verdict, upon the ground that a question of title was involved, and dismissed the complaint, and plaintiff appeals.

The rule must be regarded as settled in this State that the question of fraud in the procurement of a deed is properly triable in a court of equity only. Paldi v. Paldi, 95 Mich. 410; Moran v. Moran, 106 Mich. 8. The defense here made would not be available in ejectment, and could not be invoked to oust the commissioner of jurisdiction.

Plaintiff’s deed Avas admissible for the purpose for which offered, viz., to show plaintiff’s right of possession. Vos v. Dykema, 26 Mich. 399; Bennett v. Robinson, 27 Mich. 26; Gage v. Sanborn, 106 Mich. 269.

The judgment is reversed, and judgment entered here for plaintiff, with costs of all the courts.

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


text:
    BACKUS v. MORRILL.
    Logging Contract — Set-Ope—Laborers’ Liens.
    A claim for cutting and hauling a quantity of logs is not available as a set-off in a suit brought by the owner, where the logs are subject to labor liens in favor of employés of the defendant to an amount exceeding defendant’s charges.
    Error to. Alcona; Simpson, J.
    Submitted December 5, 1895.
    Decided December 17, 1895.

      Assumpsit by Absalom Backus, Jr., against Levi Morrill and another, for adArances on certain contracts. From a judgment in his favor for less than the amount claimed, plaintiff brings error.
    Reversed.
    O. B. Smith and B. J. Kelley, for appellant.

      H. K. Gustin and TF. K. Depew, for appellees.
   McGrath, C. J.

Plaintiff brings ■assumpsit for advances made under certain contracts, aggregating $17,577.98. Defendants gave notice of set-off aggregating $12,321.13. Plaintiff had judgment for $25.

■ One of the items of set-off was for cutting, hauling, and skidding a quantity of logs, amounting to $546.83. It appeared that the laborers who worked for defendants in getting out these logs had filed lien claims and attachments against the logs, and that the same were in possession of the sheriff, who held the logs by virtue of the attachments. Plaintiff objected to the allowance of this item, and, the objection being overruled, sought to show that the aggregate of the liens filed not only exceeded the amount of defendants’ charges, but was more than the value of the logs. The court refused to admit the testimony.

This was error. This item was not a proper subject of set-off, except as to the surplus over and above the liens. Plaintiff could not be compelled to pay for the cutting, hauling, and skidding of these logs while in the hands of the sheriff, under attachments in favor of lien claimants, unless it appeared that there was a surplus over and above the liens. Saxton v. Krein, ante, 62.

The judgment is reversed,, and a new trial granted.

The other Justices concurred.


text:
    BACKUS v. BARBER.
    1. Log-Lien Proceedings — Validity of Judgment — Collateral Attack.
    A judgment under the log-lien law, reciting that the amount due plaintiff is for labor in “cutting, skidding, scaling, hauling, and manufacturing the property mentioned in the declaration,” is not open to collateral attack on the ground that it includes a claim for scaling and hauling lumber, for which no lien is given by the statute, where the declaration avers the labor to have been performed in “ cutting, skidding, scaling, hauling, banking, driving, running, rafting, booming, and manufacturing into lumber, boards, plank, and scant-ling” all of the lumber in and about a certain mill, the words “ scaling” and “ hauling,” appearing in the judgment entry, being properly referable to labor upon the timber from which the lumber was manufactured.
    2. Same — Excessive Levy.
    Proceedings under the log-lien law are not vitiated by an excessive levy.
    3. Same — Question for Jury.
    The question whether a levy was excessive is one of fact for the jury.
    4. Same — Justice’s Judgment — Unauthorized Fees.
    Under 2 How. Stat. § 7046, providing that no judgment of a justice of the peace shall be reversed on account of any fees having been improperly allowed by the justice, a justice’s judgment in proceedings under the log-lien law is not invalidated because an attorney’s fee is improperly included therein.
    Error to Alcona; Simpson, J.
    Submitted December 5, 1895.
    Decided December 17, 1895.
    Replevin by Absalom Backus, Jr., against Eustasch R. Barber. From a judgment for defendant, plaintiff brings error.
    Modified and affirmed.

      O. H. Smith (ft. J. Kelley, of counsel), for appellant.

      K. K. Gtistin and TV. E. Depew, for appellee.
   McGrath, C. J.

This is replevin against a constable for lumber seized on attachment under Act No. 229, Pub. Acts 1887 (3 How. Stat. § 8427a et seq.).

It is insisted that the judgments rendered in the lien proceedings were void upon their face. The entries in the docket of the justice were that the amount found “is due for work and labor performed by * * * in manufacturing, cutting, skidding, scaling, and hauling and manufacturing the property mentioned in the plaintiff’s declaration.” The labor performed is described in the declaration as “labor and services done and performed by * ':i in manufacturing, cutting, skidding, scaling, hauling, banking, driving, running, rafting, and booming, and manufacturing into lumber and boards, plank and scantling, * * * all lumber and boards, plank and scantling,” etc. The statute requires that the justice shall, in addition to finding the sum due, also find that the same is due for labor performed upon the products described in the declaration, and shall render judgment in accordance with such finding. The words “hauling and scaling” do not necessarily refer to the hauling and scaling of the lumber, especially as those words are used in connection with the words “cutting, skidding, banking, driving, running, rafting, and booming,” which clearly refer to labor upon the material out of which the lumber was manufactured. The case of Villenuve v. Sines, 92 Mich. 556, came up on appeal, and the record disclosed that the claim was for labor in hauling the lumber. Here, however, a judgment- is attacked collaterally, and it must be presumed that nothing was improperly included in the amount for which the lien was adjudged. The language used is, we think, referable to labor for which a lien may be asserted under the statute.

It is next insisted that the levy was excessive. An excessive levy does not vitiate the proceedings. Campau v. Godfrey, 18 Mich. 27; Black v. Nettles, 25 Ark. 606; Green v. Burke, 23 Wend. 490; Ostrander v. Walter, 2 Hill, 329. Conceding that the question can be raised in this manner, what constitutes an excessive levy is a question of fact, and the court left that question to the jury.

The justice allowed an attorney fee of five dollars as costs in each of the eleven suits. This allowance was improper. The inclusion of these accounts did not, however, invalidate the judgments. 2 How. Stat. § 7046. The appellee conceded the impropriety of the allowances, and requested the court to instruct the jury to disallow the amount. It will, therefore, be deducted from the judgment.

The other questions relate to the admission in evidence of the bills of particulars in the cases in justice’s court, and the refusal to allow plaintiff to cross-examine the justice respecting the nature of the testimony upon those trials.

The judgment is affirmed as modified, with costs here to appellee.

The other Justices concurred.


author: Grant, J. Grant, J.

text:
    HOSMER v. WELCH.
    1. Life Insurance — Wager Policy — Payment—Action Against Beneficiary — Mutual Benefit Associations.
    Where a life-insurance company sees fit to recognize the validity of a policy by payment to the beneficiary, an heir of the insured cannot maintain an action against such beneficiary to recover the money so paid, on the ground that the latter had no insurable interest in the life of the deceased, and that the policy was therefore void. Whether the rule is the same in a case where the beneficiary named in a mutual benefit certificate, though a legal beneficiary at common law, is not competent to take under the statute, — qucere.

      2. Same — “Heirs” of Insured — Construction of Statute.
    The word “heirs,” as used iu a statute authorizing the issuance of policies of insurance for the benefit of the “heirs” of the insured, has reference to those who would be entitled to the property of the insured if he should die intestate.
    3. Same — Insurable Interest.
    At the common law, a sister has an insurable interest in her brother's life.
    4. Same — Family Relations.
    One who separates from his wife without a divorce, and thereafter lives with a sister, paying no board and being cared, for by her as one of the family, may procure a valid policy upon his life for the benefit of the sister, in a company author ized by statute to issue policies of insurance payable to a member of the “ family ” of the insured.
    Error to Wayne; Donovan, J.
    Submitted December 6, 1895.
    Decided December 17, 1895.
    Rehearing denied May 26,1896.

      Assumpsit by Margaret Hosmer against Elizabeth E. Welch to recover money received upon an insurance policy. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Frank T. Lodge, for appellant:
    At common law, defendant was a legal beneficiary of the deceased (1) because she was his sister (Loomis v. Insurance Oo., 6 Gray, 396; Lord v. Fall, 12 Mass. 115; Insurance Co. v. France, 94 H. S. 561; Grattan v. Insurance Go., 15 Hun, 74; Ireland v. Ireland, 42 Hun. 212; Insurance Go. v. Kane, 81 Pa. St. 154; Watson v. Life Association, 21 Fed. 698; Assurance Society v. Paterson, 41 Ga. 338; Ghisholmv. Insurance Go., 52 Mo. 213; Aid Association v. JKoughton, 103 Ind. 286); (2) because they were members of the same family ( Carmicliael v. Benefit Association, 51 Mich. 494; Folmer’s Appeal, 87 Pa. St. 133; Carpenter v. Insurance Go., 161 Pa. St. 9; Wilson v. Goehr an, 31 Tex. 677); (3) because the policy was a tona fide and not a wager policy {Aid Association v. Koughton, 98 Ind. 149, 103 Ind. 286; Miner v. Benefit Association, 63 Mich. 338; Warner v. Life Association, 100 Mich. 157; Insurance Go. v. Schaefer, 94 H. S. 460; Insurance Oo. v. France, Id. 564; War nock v. Davis, 104 H. S. 775; Clark v. Allen, 11 R. I. 443; Fitzpatrick v. Insurance Co., 56 Conn. 116; Valton v. Assurance Co., 20 N. Y. 38; Bawls v. Insurance Co., 27 N. Y. 282; Batdorf y. Fehler, 9 Atl. 468); (4) because the deceased had the vested right to name his beneficiary (Mutual Association y. Montgomery, 70 Mich. 587; Wolf v. Grand Lodge, 102 Mich. 23; Lemon y. Insurance Co., 38 Conn. 294; Fitzpatrick v. Insurance Co., 56 Conn. 116; Clark v. Allen, 11 R. I. 439; Taitón y. Assurance Co., 20 N. Y. 32; Bawls v. Insurance Co., 27 N. Y. 282; Insurance Co. v. France, 94 TJ. S. 561; Lamont v. Grand Lodge, 31 Fed. 177; Brown v. Grand Lodge, 80 Iowa, 287; Barton v. Belief Association, 63 N. H. 535; Cunningham v. Smith, 70 Pa. St. 450; Folmer’s Appeal, 87 Pa. St. 133); (5) because he voluntarily selected the defendant as such beneficiary {Lamont v. Grand Lodge, 31 Fed. 177; Lemon v. Insurance Co., 38 Conn. 294; Heinlein v. Insurance Co., 101 Mich. 250; Cunningham y. Smith, 70 Pa. St. 450; Scotty. Dickson, 108Pa. St. 15; Maneely v. Knights of Birmingham, 115 Pa. St. 305; Carpenter y. Insurance Co., 161 Pa. St. 9; Supreme Lodge v. Martin, 13 Wkly. Notes Cas. 160; Supplee v. Knights of Birmingham, 18 Wkly. Notes Cas. 280; Amick v. Butler, 111 Ind. 578; Tucker y. Mutual Life Co., 50 Hun, 54; Massey v. Belief Society, 102 N. Y. 523); (6) because, after his death, defendant’s rights vested {Mutual Association v. Montgomery, 70 Mich. 587; Benefit Association y. Bolfe, 76 Mich. 153; Ireland v. Ireland, 42 Hun, 212; Brown y. Grand Lodge, 80 Iowa, 287; Benefit Society v. Burkhart, 110 Ind. 189; Amick v. Butler, 111 Ind. 578); (7) because the association has paid over the money to her {Worthington y. Curtis, 1 Ch. Div. 419); and neither the charter nor the by-laws of the association changed the common law in this respect, but, on the contrary, they ratified and confirmed it (Carmichael v. Benefit Association, 51 Mich. 494; Benefit Association v. Bolfe, 76 Mich. 146; Mutual Association v. Montgomery, 70 Mich. 587).

      Keena & lAghtner, for appellee:
    Unless appellant is a proper beneficiary under the statute, it makes no difference what rights she might have had at common law, or in case this had been an ordinary life-insurance policy. Nib. Mut. Ben. Soc. ( 2d Ed.) § 158, and cases cited; Silvers v. Benefit Association, 94 Mich. 46. But, at common law, a sister has no insurable interest in the life of her brother unless she is dependent upon him. Cook, Life Ins. § 61; Mb. Mnt. Ben. Soc. (2d Ed.) § 195; Lewis v. Insurance Co., 39 Conn. 104; Stambaughv. Blake,22 WMy. Notes Cas. 407, 15 Atl. 705; Burton v. Insurance Co., 119 Ind. 207.
    The class of beneficiaries permitted by the statute under which an association is incorporated cannot be enlarged by the association, even with the consent of the member. 16 Am. & Eng. Enc. Law, 48; Nib. Mut. Ben. Soc. ( 2d Ed. ) § 158; Supreme Lodge v. Nairn, 60 Mich. 50; Benefit Association v. Bolfe, 76 Mich. 146; Wolf v. Grand Lodge, 102 Mich. 34; Legion of Honor v. Smith, 45 N. J. Eg. 470; DiMessiah v. Gem, 30 N. T. Supp. 824,
    Defendant was not an heir of the deceased, within the meaning of the statute (Nib. Mut. Ben. Soc. [2d Ed.] §§ 189, 190; Silvers v. Benefit Association, 94 Mich. 46; Hanna v. Hanna, 30 S. W. 820); nor was she a member of his family (Nib. Mut. Ben. Soc. [2d Ed.] §§ 194, 231; Benefit Association v. Hoyt, 46 Mich. 473; Carmichael v. Benefit Association, 51 Mich. 494; Supreme Lodge v. Nairn, 60 Mich. 44; Hanna v. Hanna, 30 S. W. 820; Legion of Honor v. Smith, 45 N. J. Eg. 470; Keener v. Grand Lodge, 38 Mo. App. 543).
    Defendant not being a proper beneficiary, plaintiff is entitled to recover the fund. 16 Am. & Eng. Enc. Law, 48, 49, 62; Nib. Mut. Ben. Soc. (2d Ed.) §§ 158, 162, 176, 177, 195, 348; Supreme Lodge v. Nairn, 60 Mich. 53; Benefit Association v. Bolfe, 76 Mich. 151; Lyons v. Yereos, 100 Mich. 214; Wolf v. Grand Lodge, 102 Mich. 34; Maybury v. Berkery, 102 Mich. 126; Legion of Honor v. Ferry, 140 Mass. 590; Daniels v. Pratt, 143 Mass. 216; Bindge v. Mutual Aid Society, 146 Mass. 286; Sargent v. Supreme Lodge, 158 Mass. 563; Clarke v. Schwarzenberg, 162 Mass. 98; Brit-ton v. Boyal Arcanum, 46 N. J. Eg. 109; Bolton v. Bolton, 73 Me. 299; Hanna v. Hanna, 30 S. W. 820; Keener v. Grand Lodge, 38 Mo. App. 553; Herkimer v. Bice, 27 N. T. 163; DiMessiah v. Gem, 30 N. T. Supp. 824; Gilbert v. Moose, 104 Pa. St. 74; Wendt v. Legion of Honor, 72 Iowa, 686.
   Grant, J.

Plaintiff is the widow, and defendant the sister, of George F. Hosmer, deceased. Plaintiff and Mr. Hosmer were married in 1860. They separated a few years after that, but were never divorced. For several years prior to the death of Mr. Hosmer, he made his home with the defendant. In May, 1892, he secured a policy of insurance in a fraternal association known as the “United Friends of Michigan,” organized under Act No. 104, Pub. Acts 1869 (1 How. Stat. § 3949 etseg.). The policy was made payable, as requested in his application, equally to the defendant and a nephew. The insurance company recognized the validity of the insurance contract, and paid the money, $1,000 to the defendant, and $1,000 to the nephew. Plaintiff now sues the defendant to recover the $1,000, on the ground that she was not a proper beneficiary, and that as to her and the nephew the policy was void, and that she (the plaintiff), as one of the heirs at law of Mr. Hosmer, was entitled to recover it.

If it be granted that this policy was void under the statutes of Michigan, the plaintiff is not entitled to the money. The policy was not in fact secured for her benefit. The insurance company has seen fit to recognize it as valid, and to pay it to the beneficiaries. Other parties have no interest in the matter. Smith v. Pinch, 80 Mich. 335; Standard, etc., Ins. Co. v. Catlin, 106 Mich. 138.

Judgment reversed, and no new trial ordered.

The other Justices concurred.

ON APPLICATION POE REHEARING.

Grant, J.

A rehearing is asked upon the ground that this was not a wager policy, and that, therefore, the cases cited in the former opinion do not apply.

It is true that Mrs. Welch was not a legal heir upon the death of Mr. Hosmer, since he left surviving a widow and child, who, under our laws of descent, were his sole legal heirs and entitled to his property. The statute authorized the United Friends of Michigan to issue policies of insurance, and authorized the insured to name the beneficiary, who might be one of his family or heirs. The plaintiff and Mr. Hosmer were married in 1860. They lived together as husband and wife about 2} years, and constituted a family. Meanwhile they had one child. They then separated, and from that time on did not occupy the family relation. Why they separated, and he left her, and went away from his home, does not appear. All evidence on this point was excluded by the court, which directed a verdict for the plaintiff upon the ground that the defendant was not a beneficiary recognized by the law and by the articles of association. It is conceded that this was not a wager policy. At the common law the defendant had an insurable interest in her brother’s life. After Mr. Hosmer separated from his wife, their family relations were broken off, and never after resumed. For many years prior to the issuance of this policy he made his home with his sister. He paid no board. She nursed him in sickness, and took care of him as a brother and member of the family. Were it not for the fact that he- was married, no question could arise. Does it follow that he could not acquire family relations, and become a member of his sister’s family, notwithstanding the fact of marriage? If husband and wife •separate by mutual consent, or if either leaves the home and the family relation through the misconduct of the other, may not either enter into family relations with a brother, a sister, or son or daughter, though there be no •divorce? The term “ family ” is elastic, and will be liberally construed. It is not confined to a husband and wife and their children. Carmichael v. Benefit Association, 51 Mich. 494; Folmer’s Appeal, 87 Pa. St. 133. See, also, Wilson v. Cochran, 31 Tex. 677. This is not the case of Supreme Lodge v. Nairn, 60 Mich. 44, where the beneficiary was-not a relative, but only an intimate friend; nor the case of Keener v. Grand Lodge, 38 Mo. App. 543, where the beneficiary was the mistress of the insured, :and lived with him in an “ unlawful, illicit, and licentious way.” It is evident that Mr. Hosmer did not intend to make any contract with this benefit association for the benefit of his wife, and that he would not have taken it out for that purpose. He undoubtedly felt under moral obligation, and was bound by the ties of kinship, to his sister. Both he and the association recognized this relationship, and as well the family relation, without which the policy would not have been issued. We think the family relation existed, and that the defendant was a proper beneficiary. She not only took care of him before, but after, the issuance of the policy. She had nothing to do with procuring it. She took care of him in his last sickness, paid his funeral expenses, and, in accordance with his last request, took his body to Cleveland, Ohio, and buried it beside those of his father and mother.

We may, in the former case', have given a wrong reason for a right conclusion, and have therefore given this further reason upon this motion.

Rehearing denied.

Long, O. J., Montgomery and Hooker, JJ., concurred.

       1 How. Stat. § 3949.


text:
    ALLURED v. VOLLER.
    1. Service oe Process — Waiver—Jurisdiction.
    A stipulation indorsed by tbe defendant upon a summons in connection with an acceptance of service, that the plaintiff may proceed with the case the same as though service had been made as commanded in the summons, is sufficient to confer jurisdiction upon the court, although it was made beyond the territorial jurisdiction.
    2. Judgment — Assumpsit—'Void Lien Proceedings.
    A judgment in assumpsit is not void because of an ineffectual attempt to enforce a mechanic’s lien in the same proceeding.

      3. Same — Execution—Validity.
    An execution whose command is general, issued upon such judgment, is not invalid because it recites that the suit was instituted to enforce such lien, and describes the property against which it was asserted. Koepke v. Dyer, 80 Mich. 311 j distinguished.
    Error to Osceola; McMahon, J.
    Submitted December 6, 1895.
    Decided December 17, 1895.
    Ejectment by Robert A. Allured against James H. Voller. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      O. M. Beardsley, for appellant.

      O. H. Bose, for appellee.
   Montgomery, J.

This is an action of ejectment. Plaintiff recovered a judgment, and defendant appeals. Special findings of fact were filed, from which it appears that prior to September 8, 1892, one Elbert D. Pierson was the owner of the property in question. Plaintiff on that day filed a claim of lien with the register of deeds, and the defendant at about the same date also filed a claim of lien. On the 3d of November, 1892, plaintiff and defendant both commenced suit in the Osceola circuit court against Pierson. Defendant, it would appear, failed to prosecute his suit to effect, but after the levy upon plaintiff’s judgment, hereinafter referred to, procured a quitclaim deed from Pierson, and claims title thereunder. In the suit instituted by plaintiff the summons was in the usual form in assumpsit, with a statement added to the effect that the suit was instituted to enforce a mechanic’s lien. The declaration filed in the case was on the common counts in assumpsit, with a like statement appended. The judgment was in assumpsit, with a statement that the suit was instituted to enforce a lien on’ the property in question. An execution was issued, in which the sheriff was commanded to make the amount of the judgment, costs, etc., “of the goods and chattels of Elbert D. Pierson, and, for want thereof, then of his lands and tenements.” This execution also contained a recital of the fact that the suit was instituted to enforce a mechanic’s lien on the property in question. Under this execution a levy was made on the property in question, and a sale subsequently made thereunder to the plaintiff. The sheriff, in his return, certified that he was unable to find any goods and chattels in his bailiwick. In the suit referred to there was no return of service upon defendant, but the following acceptance of service was filed, and the genuineness of the signature proved by affidavit:

“Flint, Mich., 11-8-1892,
“I, Elbert D. Pierson, defendant in the within attached summons, do hereby accept service of the same this 11th day of November, 1892, and hereby waive formal service by an officer, and alieno the plaintiff herein named to proceed with the case, the same as .though service had been made as commanded in said summons. ^
“Signed in the presence of ^
“Lizzie Pieeson.
[ Signed ] “Elbeet D. Pieeson.”

It is contended that the acceptance of service at Flint gave the court no jurisdiction in the assumpsit case, and that, the execution being in form under the lien statute,, and that statute not being operative, the sale was void.

1. The authorities are not harmonious on the question of the effect of a mere acceptance of a service of a writ beyond the jurisdiction of the court. Perhaps -by the weight of authority such acceptance operates as evidence of a service at the place where such acceptance is indorsed, and has no greater effect than proof of an actual service made at that place. 2 Enc. Pl. & Prac. 638, and cases cited. But see Vermont Farm Machine Co. v. Marble, 20 Fed. 117; Cheney v. Harding, 21 Neb. 65; Johnson v. Monell, 13 Iowa, 300. But in the present case the indorsement on the summons was something more than an acceptance of service. It contained a stipulation that plaintiff might “proceed with the case the same as though service had been made as commanded in said summons;” that is, in the county. If an appearance may operate to waive service, as is universally held, it is difficult to understand why an agreement to waive service, duly signed, and evidently intended to be filed in the case, may not and should not have a like effect. It has been held that the admission of service is, if accompanied by an agreement to enter an appearance, sufficient to confer jurisdiction, even though such agreement be made beyond the territorial jurisdiction of the court. Keeler v. Keeler, 24 Wis. 525; Shaw v. Bank, 49 Iowa, 179. See, also, cases cited above.

2. The execution wras not- invalid. Defendant’s counsel relies upon the case of Koepke v. Dyer, 80 Mich. 311. In that case it was held that, although the plaintiff had attempted to foreclose his lien in a proceeding at law, and although this attempt was ineffectual, yet the judgment in assumpsit was good as a personal judgment. The execution was, however, set aside, for the reason that the command of the writ was to levy on the specific property covered by the lien, and was not general. The writ in the present case is not open to any such criticism. The command was general, and the mere recital of the lien did not modify this command in any way.

Judgment affirmed, with costs.

Long, Grant, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


text:
    PERRY v. CHURCH.
    Writ op Error — When Lies.
    An order sustaining a demurrer as to certain counts of a declaration, and overruling it as to others, is not reviewable by writ of error prior to the entry of final judgment.
    Error to Kent; Adsit, J.
    Submitted December 6, 1895.
    Decided December 17, 1895.
    Trespass de boms by Franklin D. Perry and another against Isaac R. Church. Defendant interposed a demurrer, which was sustained in part and overruled in part. Both parties bring error.
    Writs dismissed.

      Franlc A. Rodgers, for plaintiffs.

      Sweet, Rerldns & Judldns, for defendant.
   Montgomery, J.

Plaintiffs brought a suit against defendant, and filed a declaration containing four counts. Defendant demurred on various grounds, some of them on the whole declaration, and some of them on particular counts. A hearing was had on demurrer, and the court sustained the demurrer to the third and fourth counts, and overruled the demurrer as to the remainder of the declaration. The order granted concludes by directing that plaintiffs have 20 days in which to amend their declaration, and defendant have 10 days thereafter in which to plead. No judgment appears to have been entered, although both parties have sought to have the action of the court reviewed by writ Of error.

We cannot entertain jurisdiction of the case until final judgment is entered. The office of a writ of error is to review final judgments, and it can only be employed in cases where the affirmance of the judgment of the inferior court leaves nothing for that court to do further.. 2 Enc. Pl. & Prac. 52; Brady v. Railroad Co., 73 Mich.. 457; Bostwick v. Brinkerhoff, 106 U. S. 3; Clark v. Village of North Muskegon, 86 Mich. 29.

The case will he dismissed, and the record remanded, but without costs to either party.

Long, Grant, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


author: Long, J.

text:
    DUMMER v. NUNGESSER.
    1. Fraudulent Debtor Act — Sufficiency of Affidavit — Reference to “Revised Statutes.”
    A reference to “ chapter 141 of the Revised Statutes of this State,” contained in an affidavit for a warrant of arrest under the fraudulent debtor act (2 How. Stat. chap. 304), sufficiently designates the Revision of 1846, as all other revisions are entitled “ Compiled Laws” or “ Howell’s Annotated Statutes.”
    2. Same — Allegations of Indebtedness.
    An allegation in such affidavit that defendant is justly indebted to plaintiff in a specified sum upon two promissory notes sufficiently shows the character and amount of the indebtedness, within the requirement of section 4 of the act.
    3. Same — Knowledge of Affiant.
    It is no objection to the affidavit that it was made by plaintiff’s attorney, and that it contains no showing that he had personal knowledge of the matters therein set forth, where the facts essential to the jurisdiction are stated positively, and are not of such nature that they could not have been within the knowledge of the affiant.
    4. Same — Constitutional Law — Imprisonment for Debt — Cruel ■ and Unusual Punishment — Rights of Accdsed Person — Jurisdiction of Circuit Court Commissioner.
    Said act is not in conflict (1) with section 33, art. 6, Const., prohibiting imprisonment for debt founded upon contract, since such, section expressly excepts cases of fraud; (2) with section 81, art. 6, prohibiting the imposition of cruel or unusual punishment, since, under section 11 of the act, the debtor may secure his release from imprisonment by paying the debt, by giving security for its payment, by assigning his property and obtaining a discharge under chapter 806, 2 How. Stat., or by giving security that he will obtain such discharge; (3) with section 28, art. 6, guaranteeing certain rights to the accused in every criminal prosecution, since the action provided for is a civil and not a criminal proceeding; or (4) with section 1, art. 6, vesting the judicial power in certain courts and in justices of the peace, in that it assumes to confer such power upon a circuit court commissioner.

      Certiorari by Charles H. Dummer and Henry C. Dummer to inquire into the cause of their detention by William Nungesser, sheriff of Manistee county.
    Submitted October 1, 1895.
    Writ dismissed December 24, 1895.

      Snmrthwaite & Fowler, for petitioners:
    The affidavit was fatally defective, the allegations of indebtedness being insufficient ( Wilson v. Arnold, 5 Mich. 98; Proctor v. Prout, 17 Mich. 477; Badger v. Peade, 39 Mich. 771; In re Lee, 49 Mich. 629; Sheridan v. Briggs, 53 Mich. 572; Marble v. Curran, 63 Mich. 288), and the facts relied upon to establish the fraud not being within the personal knowledge of the affiant {Proctor v. Prout, 17 Mich. 475; Brown v. Kelley, 20 Mich. 33; Badger v. Peade, 39 Mich. 774; Sheridan v. Briggs, 53 Mich. 571; Stensrud v. Delamater, 56 Mich. 147; Marble v. Curran, 63 Mich. 288).
    The term u imprisonment for debt” had at the common law a clear, fixed, and definite meaning, namely, imprisonment by virtue of an execution issued upon a judgment for debt; and the framers of the Constitution must be presumed to have had this meaning in view when they excepted cases of fraud from the prohibitive provision. Cooley, Const. Dim. 73; Kill v. People, 16 Mich. 351; People v. Marion, 29 Mich. 31; Underwood v. People, 32 Mich. 1; Swart v. Kimball, 43 Mich. 443; Pisser v. Koyt, 53 Mich. 185; People v. Luby, 56 Mich. 551; People v. Man-gold, 71 Mich. 335.
    The act provides for a cruel and unusual punishment, since defendants, in order to obtain tbeir release, áre required (1) to pay the debt, which they cannot; (2) to give security to pay it, which they cannot; or (3) to enter into a bond that they will apply for an assignment, as provided by chapter 306, 2 How. Stat., which they cannot, because (a) they are unable to procure sureties, (6) they have nothing to assign, and, (e) if they had, they are precluded from such relief because they did prefer creditors, contrary to chapters 305 and 306. See Cooley, Const Dim. 402; State v. Danforth, 3 Conn. 112; Stnrges v. Orowninshield, 4 Wheat. 122.
    The act is void, in that it deprives the courts before which cases are tried of all discretion as to the sentence that should be imposed, and undertakes to confer upon the plaintiff in any action brought under it the right to determine how long the defendant shall be imprisoned, extending even to imprisonment for life. Chandler v. Nash, 5 Mich. 409; In re Buddington, 29 Mich. 472; Underwood v. People, 32 Mich. 1; In re Burger, 39 Mich. 203; Bisser v. Hoyt, 53 Mich. 185; People v. Cummings, 88 Mich. 249.
    The act inflicts punishment, and is in its very nature and penalty a criminal act, within the meaning of section 28, art. 6, Const., and yet it makes no provision for the personal safety and security of the accused, as required by said section. Bromley v. People, 7 Mich. 477; Underwood v. People, 32 Mich. 1; Swart v. Kimball, 43 Mich. 443.
    The act is also void because it assumes to confer judicial power upon circuit court commissioners. Daniels v. People, 6 Mich. 381; Streeter v. Patón, 7 Mich. 341; Bdgarlon v. Binehman, Id. 352; Waldby v. Callendar, 8 Mich. 430; Case V. Dean, 16 Mich. 12; Bowe v. Bowe, 28 Mich. 353; In re Buddington, 29 Mich. 472; In re Burger, 39 Mich. 203; Bailway Co. v. Dunlap. 47 Mich, 456; Bailey v. Gadwell, 51 Mich. 217; Bisser v. Boyt, 53 Mich. 185.

      George L. Billilcer, for respondent:
    The act in question is clearly within the exception to the constitutional provision prohibiting imprisonment for debt.
    The punishment is not cruel and unusual, as the defendant may terminate his imprisonment at any time in any of the ways pointed out by the statute.
    The proceeding is not a criminal one. Johnson v. Maxon, 23 Mich. 129; Wayne Co. v. Bandall, 43 Mich. 137.
    It is competent for the legislature to confer upon circuit court commissioners power to hear and determine cases of this nature. Streeter v. .Patón, 7 Mich. 341; Shurbun v. Hooper, 40 Mich. 503.
    A statute should not be. declared unconstitutional unless the conflict between the Constitution and the statute is palpable and free from every reasonable doubt. Green v. Graves, 1 Doug. 351; Scott v. Smart, 1 Mich. 295; South-worth v. Railroad Go., 2 Mich. 287; People v. Gallagher, 4 Mich. 244; Tyler v. People, 8 Mich. 320; People v. Blodgett, 13 Mich. 127; People v. Mahaney, Id. 481; Inkster v. Carver, 16 Mich. 484.
    A statute is not unconstitutional unless in plain violation of some provision of the Constitution, and its constitutionality will be supported by all possible presumptions not clearly inconsistent with the language and subject-matter. Sears v. Cottrell, 5 Mich. 251; Waleott v. People, 17 Mich. 68; Attorney General v. Preston, 56 Mich. 177.
   Long, J.

The petitioners were arrested on a warrant issued by a circuit court commissioner of Manistee county. The affidavit for the arrest was made under the fraudulent-debtors act. On a trial before the commissioner, the petitioners were found guilty. They appealed to the circuit court. The case was there tried before a jury, and the petitioners were found guilty, and are now held by the respondent as sheriff, under a commitment issued by that court. This proceeding is by certiorari to the respondent to inquire into the cause of such detention. The petition was filed in this court, and a return has been made to the writ. The contentions of counsel for the petitioners are:

(1) That the affidavit upon which the warrant was issued by the commissioner is defective, and conferred upon the court no jurisdiction in the cause.

(2) That the act under which the prosecution is had is unconstitutional and void.

1. It is contended that the affidavit is defective:

(a) Because it wholly ignores- the time of the enactment of the statute under which the proceedings are had, and does not state any compilation or other volume within which it can be found.- The affidavit in the case now before us seems to have been lost; but another case was commenced at the same time, and the petitioners were arrested in that proceeding. That affidavit is in the present record, upon which the later arrest was made, and the statements are to be gathered from that. The affidavit, in referring to the statute, recites that the defendants “ cannot be arrested or imprisoned according to chapter 141 of the Revised Statutes of this State.” We think the petitioners could not be misled by this statement. The statement that it was made under the Revised Statutes of this State means the Revision of 1846, as all the other revisions of the statutes are entitled “ Compiled Laws ” and “ Howell’s Annotated Statutes.” Chapter 141 of the Revised Statutes of this State, being the Revised Statutes of 1846, now stands as chapter 304 of 2 Howell’s Statutes.

(b) Because the allegations of indebtedness contained in the affidavit are insufficient. The affidavit states that “Charles H. Dummer and Henry C. Dummer, copartners, doing business under the firm name and style of CH. Dummer & Son, are justly indebted unto the First National Bank of Manistee in the sum of $826, upon two promissory notes, * * * which sum is now due from said Charles H. Dummer and Henry C. Dummer to f.he said First National Bank.” This was a sufficient statement of the amount due and the character of the indebtedness. It is not set forth by way of recital, as in Re Lee, 49 Mich. 629. That affidavit stated that “ deponent says that the amount of the plaintiff’s claim against the defendant is about the sum of $4,230.78, as near as deponent can fix the same.” Here the amount is stated definitely, with the further statement that that indebtedness is $826 upon two promissory notes, and that the amount is now due. •

(c) Because the affidavit was made by the attorney of the bank, and there is no showing in it that he had personal knowledge of the transaction between the parties or the amount due. While many statements are made which could not have been within the knowledge of the affiant, yet we think there was a sufficient statement of facts within his knowledge to give the court jurisdiction to issue the warrant. These facts are not stated on information and belief, but are positive statements of facts within his knowledge. He states that no consideration was given for any of the chattel mortgages or the real estate mortgage, but that they are held in trust for the Dummers, and with the intent to defraud creditors. The affidavit states all‘that is required by the several provisions of the statute.

The objections to the affidavit cannot be sustained.

2. It is next contended that the act is unconstitutional, as it contravenes section 33, art. 6, of the Constitution of the State, which provides:

“No person shall be imprisoned for debt arising out of or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers or in any professional employment.”

The title of the act in question is “ The Punishment of Fraudulent Debtors,” and it stands as chapter 304 of 2 Howell’s Statutes. The title is as it stood in chapter 141 of the Revised Statutes of 1846. The act has been amended several times; but no substantial changes have been made since the Revision of 1846, at least in so far as affecting the question before us.

Section 1 of the act provides:

“No person shall be arrested or imprisoned on any civil process issuing out of any court of law, or on any execution issuing out of a court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract, expressed or implied, or for the recovery of any damages for the non-perform.ance.of any contract.” , .

By section 2, proceedings for contempt to enforce civil remedies, and actions for the collection of fines, penalties, and forfeitures, and on promises to marry, and actions to recover moneys collected by public officers, and for misconduct of officers, are excepted from the provisions of section 1.

It is then provided by section 3:

“ In all cases where, by the preceding provisions of this chapter, a defendant cannot be arrested or imprisoned, it shall be lawful for the plaintiff who shall have commenced a suit against such .defendant, or shall have obtained a judgment or decree against him, in any court of record or justice’s court, to apply to any judge of the court in which such suit is brought, or to any circuit judge or circuit court commissioner, Or to any justice of the peace before whom such suit is pending or judgment obtained, or before whom such proceedings shall have been transferred, for a warrant to arrest the defendant in such suit.”

Section 4 provides:

“No such warrant shall issue unless satisfactory evidence shall be adduced to such officer, by the affidavit of the plaintiff or of some other* person or persons, that there is a debt or demand due to the plaintiff from the defendant, and specifying the nature and amount thereof, as near as may be, for which the defendant, according to the provisions of this chapter, cannot be arrested or •imprisoned, and establishing one or more of the following particulars.”

The particulars of subdivision 3 are—

“ That he has assigned, removed, or disposed of, or is about to dispose of, any of his property, with the intent to defraud his creditor or creditors,”

The act makes provision for the cases excepted by the Constitution. It is only in cases where fraud is charged that a warrant can be had; and the Constitution, by section 33, art. 6, expressly excepts cases of fraud, breach of trust, and moneys collected by public officers or in any professional employment. This act has been on the statute books since its passage, in 1839. It has been several times before this court, and its provisions discussed, and this is the first instance, so far as can be ascertained, where claim has been made that it contravenes the provisions of the State Constitution as to imprisonment for debt. We think it too clear that it falls within the excepted cases in the Constitution to need extended argument. The contention now made cannot be sustained.

It is insisted, however, that the act is void, because it imposes cruel and unusual punishment, contrary to section 31, art. 6, of the Constitution. The act provides several modes in which the defendant may be released from imprisonment: (a) He may pay the debt or demand claimed, (b) He may give security for the payment of it. (c) He may enter into a bond in a penalty of not less than twice the amount of the debt, conditioned that he will, within 30 days thereafter, apply for an assignment of all his property, and for a discharge, as provided in the 143d chapter of the Bevised Statutes, and diligently prosecute the same until he obtains such discharge. Chapter 143 of the Bevised Statutes of 1846 is chapter 306 of 2 Howell’s Statutes. By the first section it is provided that every insolvent debtor may present a petition to a circuit judge or circuit court commissioner praying that his estate may be assigned for the benefit of all his creditors, and that his person may thereafter be exempted from arrest or imprisonment by reason of any debts arising upon contracts previously made, or any judgments existing against him in civil cases, and, if in prison, that he may be discharged from imprisonment. On presenting such petition, the insolvent shall deliver therewith a schedule containing an account of his-creditors and an inventory of his estate, and annex thereto an affidavit in the form prescribed by the statute. The creditors have the right to appear and contest the facts set up in the petition and schedules, and on a hearing, if the petition and the allegations in the affidavit are found to be true, it is the duty of the circuit judge or commissioner to discharge him. These are the modes pointed out by the statute by which the defendant arrested and convicted under the act may be discharged from his imprisonment. It cannot be said that the punishment provided by the act is cruel and unusual, within the meaning of the Constitution.

The action is a civil one, and not criminal, as held in Wayne Co. v. Randall, 43 Mich. 139, and the purpose of the act is to compel the payment of the debt. The action is based upon the conduct of the defendant in making an unlawful disposition of his property with intent to defraud his creditors; and the remedy to compel payment of the debt is by imprisonment until such time as the defendant may, by his own act, release the property in payment and discharge thereof.

It is also contended that the act is void for the reason that it confers judicial power upon a circuit court commissioner. That question was settled in Streeter v. Paton, 7 Mich. 341, and need not be further discussed.

The petitioners must be remitted to the remedy which the statute gives, as they are properly held under the commitment from the circuit court.

The other Justices concurred.


author: Grant, J.

text:
    HYDE v. LEISENRING.
    1. Husband and Wipe — Alimony—Allowance op Claim por Necessaries.
    An allowance of temporary alimony to a wife who had separated from her husband, taking their infant child with her, granted upon a petition to which was appended a physician’s bill for attendance on the child, verified by the affidavit of the physician, is presumed to include the amount of such bill, and the husband, having paid the allowance, is exonerated from further liability for such services.
    2. Same.
    The sufficiency of an allowance of temporary alimony cannot be attacked collaterally.
    3. Parent and Child — Liability por Necessaries.
    The law will not imply a promise on the part of a father to pay for necessaries furnished his infant child while in the custody of its mother, who had left the father’s home without cause. Per Grant, J.
    4. Same — Burden op Proof.
    One who seeks to hold the father liable for necessaries furnished under such circumstances must show that the mother was justified in taking the child away. Per Grant, J.
    5. Same — Evidence.
    In such case, a decree dismissing a bill for divorce filed by the wife is not conclusive, as against the creditor, that the husband was without fault. Per Grant, J.
    Error to Eaton; Smith, J.
    Submitted October 11, 1895.
    Decided December 24, 1895.

      Assumpsit by Rufus J. Hyde against John W. Leisenring for medical services rendered to defendant’s infant child. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The facts found by the trial court in this case are as follows:

      “First. That plaintiff is a physician residing at Eaton Rapids, Mich., and in the month of November, 1890, and the months of January, March, April, May, and August, 1891, made professional visits to defendant’s infant child; that the child was very dangerously and seriously sick, and the much greater number of these visits were made in the months of March, April, and May, 1891; that the child was born in October, 1890.

      “Second. That some time during the month of December, 1890, the defendant and his wife, Susan, separated; and that Susan was the mother of the child.

      “Third. That plaintiff knew of the separation, and, with the exception of the first visit to the child, made his visits to the home of the mother, in whose custody and care the child was at the time.

      “Fourth. That plaintiff was in no way employed by the defendant to care for the baby, but that the baby needed the care and attention of a physician, and was so seriously sick as to need a nurse constantly, a great portion, if not all, of the time during the months of March, April, and May, 1891.
    ' “Fifth. That on December 15, 1890, the said Susan Leisenring filed her bill for divorce against her husband, all of which plaintiff knew and was fully advised, and that the said bill alleged extreme cruelty and failure to provide.

      “Sixth. That, during the pendency of said divorce proceedings, orders and decrees were made for the payment of temporary alimony and expenses to said complainant as follows: February 7, 1891, $50 for expenses, and $3 per week from that date for the support of the said child; May 9, 1891, $20 for additional temporary alimony; July •11, 1891, $75 within 10 days, as additional temporary alimony, and $4 per week from that date for the support of the child, instead of $3 per week as before ordered, and that all of said orders were complied with by the defendant; that the mother of the child had no property or means of support except as she received it from her husband, the defendant in this case.

      “Seventh. That in April, 1892, said divorce cause was heard in open court, and the bill was dismissed.

      “Eighth. That plaintiff’s bill for services was $52.50 at the date of the last visit, August 8,1891, no part of which has been paid, and that his charges were reasonable for the services rendered.

      “Ninth. That, while the suit was pending in the justice’s court, defendant paid into court the sum of $9.10, $2.10 being for costs, and the balance, $7, being the admitted indebtedness to the plaintiff, with the interest thereon.

      “Tenth. That the orders for temporary alimony made upon May 9, 1891, and July 11, 1891, were made in pursuance of the petition of complainant, Susan Leisenring, supported by the affidavit of Rufus J. Hyde, the plaintiff herein, and others, to which affidavit was attached a copy of plaintiff’s bill of items, for which this suit is brought; and that such items so attached to such affidavit are identical with those upon which this suit is brought, up to April 30, 1891.”
    Upon these facts the court rendered judgment for the plaintiff, on the ground that an implied contract existed on the part of the defendant to pay for necessaries furnished his infant child.

      Fred J. Slayton (N. F. Pennington, of counsel), for appellant.

      J. B. Sendee and 0. 0. Markham (John M. Corbin, of counsel), for appellee.
   Grant, J.

(after stating the facts). 1. No creditor can complain of a husband, or bind him for necessaries on the ground of an implied contract, where the wife herself could not. Crittenden v. Schermerhorn, 39 Mich. 666. Persons trusting a wife, living separate and apart from her husband, upon his credit, do so at their own peril. Gill v. Read, 5 R. I. 345; Bennett v. O’Fallon, 2 Mo. 57. The home, which the father, and husband has furnished, is the place in which the law gives him the right to provide for his wife and children. When he has done this, and is ready and willing there to provide for them, according to his means, he has fully performed both his legal and moral obligation. When, therefore, a minor child of the age of discretion voluntarily and without cause abandons his home, the father is not liable for his care or support. For the same reason, when a wife leaves her husband without justification, and takes their infant child with her, she does not carry with her the credit of her husband for necessaries furnished for either herself or her child. Corry v. Lackey, 105 Mich. 363; Bazeley v. Forder, L. R. 3 Q. B. 559; Baldwin v. Foster, 138 Mass. 449; Weeks v. Merrow, 40 Me. 151; Angel v. McLellan, 16 Mass. 28; Gotts v. Clark, 78 III. 229.

None of the authorities cited by the plaintiff, unless it be Gill v. Read, supra, support the opposite doctrine. Some of them hold that when a decree of divorce has been rendered dissolving the marital relation, but making no provision for the custody and support of the children, the father’s duties and obligations remain the same towards his children as they are without a divorce. Gilley v. Gilley, 79 Me. 292. Bauman v. Bauman, 18 Ark. 320, goes no further than to hold that if the wife, complainant in a bill for divorce, is dissatisfied with the allowance, made by the court for the support of her child, she need not accept the allowance, but may cast the burden upon him by surrendering the child to him. The court said in that case that it did not appear that the father was unwilling to take the child or was an unfit person.

In Rummy v. Keyes, 7 N. H. 571, the facts were that the husband and wife had never lived together, and he had never made any provision for the support of his wife and child, in consequence of which, she being ill, and unable to support herself and child, both became a charge upon the town. The decision seems to-be based upon the fact that under the laws of that State the father had a right to the custody of his children, and might obtain possession of their persons by habeas corpus, but that, by suffering them to remain with their mother, he constituted her his agent to contract debts for clothing and necessaries. The court stated that it had found some difficulties in considering the case on account of the brevity with which it was drawn. The opinion, however, states: “The facts, as stated, leave little doubt that the abandonment was on the part of the husband, but this is not explicitly shown. Sufficient, however, appears to compel the defendant to set up some defense to the claim.” The case of Gill v. Read appears to be based upon that of Rummy v. Keyes. In this State, however, in the case of the separation of husband and wife, the mother is entitled to the custody of children under 12 years. 2 How. Stat. § 6294. And the court of chancery, in a divorce suit, is authorized to make such order for the care and custody of the children and their suitable maintenance during the pendency of the suit as shall be deemed proper and necessary. Id. 6237. While the former statute would not probably relieve the father of the support of his infant children, it takes away from him the custody of the children, and renders these last two decisions inapplicable to this case. A doctrine directly to the contrary of those decisions is held in Hancock v. Merrick, 10 Cush. 41; Husband v. Husband, 67 Ind. 583; Baldwin v. Foster, 138 Mass. 449. In this State, where the decree of divorce in favor of the wife gave her custody of the child, and made no provision for her support, it was held that the father was not liable to a stranger for the support of his child. Johnson v. Onsted, 74 Mich. 437.

The decree in the court of chancery adverse to the wife, who was complainant, has established the fact, conclusive between them, that the defendant was without fault, and that she voluntarily and unjustifiably abandoned her husband and his home. Such decree has been held by this court not conclusive as to third parties. Corry v. Lackey, supra. It was clearly incumbent upon the plaintiff to prove the implied contract upon which he relied. Such contract is predicated upon the wrong of the husband and father. There is no presumption that the mother was justified in taking her infant child away. The wrong of the father must he proven. There is no evidence in the case to sustain it. The only evidence in the case is against her, viz., the decree. See Hunt v. Thompson, 3 Scam. 179; Schouler, Dom. Rel. § 237.

2. I am of the opinion that plaintiff’s claim was included in the wife’s allowance for alimony made by the chancery court. It is true that a part of plaintiff’s services were rendered previous to any allowance for alimony. As a ground for the allowance made July 11, 1891, plaintiff’s bill, amounting then to $44, was appended to her petition, accompanied by an affidavit by the plaintiff setting forth the services rendered to the wife and child. Upon this petition and the proofs adduced, the court allowed additional temporary alimony to the amount of $75, and increased the weekly allowance for the support of the child. I think it the fair inference that the plaintiff’s bill was included in that allowance, although the order did not so specifically state. No other; purpose in presenting this claim is apparent than to secure its payment in that proceeding, and to have it included in the allowance. Such, too, is the common practice. It was held in Baumm v. Bauman, supra, that, in the absence of evidence to the contrary, it would be presumed that solicitor’s fees were considered in fixing the amount of alimony pendente Ute. If this be so, the sufficiency of the allowance cannot be attacked collaterally. Crittenden v. Schemerhorn, supra.

Judgment reversed, with the costs of all courts, and-no new trial granted.

McGrath, O. J., and Montgomery,- J., concurred in the reversal upon the second point. Long and Hooker, JJ., did not sit.