text:
    FERRY v. HOME SAVINGS BANK.
    1. Garnishment — Bank Deposit in Name op Third Person — Knowledge of Garnishee — Question for Jury.-
    In garnishment it appeared that a draft came to the garnishee bank, indorsed by one of its directors as secretary and treasurer of the principal defendant, a corporation, and was forwarded for collection; that nearly one-half of the proceeds were used to pay an overdraft due the bank from the principal defendant, and that the balance was credited to the teller of the bank, as agent of the director who indorsed the draft; that it was so credited when process was served in the garnishment proceeding, and was subsequently turned over to the treasurer of the corporation upon the teller’s check; that the bank at the time held as security all of the stock of the principal defendant, except three shares, and had possession of its books. It was undisputed that the money belonged in fact to the principal defendant. Held, that it was for the jury to determine whether the bank had knowledge of the ownership of the fund.
    2. Same — Payment After Service of Process — Liability of Bank.
    If the bank, at the time of service of process, knew that the fund belonged to the principal defendant, it would be liable,, notwithstanding the deposit stood in the name of a third person.
    3. Same — Individual Debt of Corporate Officer — Payment out of Corporate Funds.
    The bank would likewise be liable, under 3 How. Stat. § 8059, for moneys belonging to the principal defendant, paid to it without authority as interest upon the individual debt of the defendant’s president, if it received such moneys with knowledge that they were corporate funds.
    4. Same — Bona Fide Creditor — Evidence.
    The plaintiff’s judgment against the principal defendant having been attacked by the garnishee on the ground that it was based upon a note received by plaintiff after maturity, and without consideration, several months after the payments sought to be reached were made, it was error to exclude testimony offered by him to show that the note was given for a bona fide indebtedness, which existed prior to the payments to the garnishee.

      Error to Wayne; Lülibridge, J.
    Submitted June 17,
    1897.
    Decided September 14, 1897.
    Garnishment proceedings by Henry M. Ferry against the Home Savings Bank, as garnishee of the S. H. Davis Company. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Ed. E. Kane, for appellant.

      George W. Radford, for appellee.
   Moore, J.

April 8,1895, plaintiff, who had commenced suit against the S. H. Davis Company, a corporation, caused garnishee process to be served on the Home Savings Bank to reach funds in its hands which plaintiff claimed belonged to the S. H. Davis Company. The bank made a disclosure denying that it was indebted to or had anything belonging to the S. H. Davis Company. An issue was afterwards framed, and a trial entered upon before a jury, who were directed by the circuit judge to render a verdict in favor of the garnishee defendant. Plaintiff appeals, and seeks to reach by the process of garnishment one item of $1,105 for insurance money collected upon a draft which passed through defendant bank, and $1,323 for interest received by defendant bank, which the plaintiff claims the creditors of the S. H. Davis Company are entitled to have paid to them. The plaintiff also claims the court erred in excluding testimony as to the consideration which entered into the note which was the basis of the judgment obtained by the plaintiff.

The plaintiff introduced testimony which tended to show that the S. H. Davis Company carried an insurance upon its property; that a loss occurred, which was paid by one of the companies by delivering a draft of $1,932 to the S. H. Davis Company, which was indorsed by George W. Radford, secretary and treasurer of the company, and delivered to the bank April 6, 1895, for collection. The bank received this amount, and, instead of crediting it to the S. H. Davis Company, or to Mr. Radford, its secretary and treasurer, $827 of it was used to pay an overdraft due the bank from the S. H. Davis Company, and the balance was credited to McClenahan as agent, and was afterwards checked out by him. A check of $519 was given by Mcr Clenahan, agent, to Radford, secretary and treasurer, May 17, 1895. There is no dispute but that this money belonged to the S. H. Davis Company, and that, if the cashier had knowledge it was in the bank when process was served in this case, the bank would be liable to the amount of it as garnishee defendant; but it is claimed the officers of the bank had no knowledge that the fund belonged to the S. H. Davis Company, and therefore the bank was not liable; and this was the view taken by the learned circuit judge.

We cannot agree that there was no testimony tending to show that tbe bank had knowledge that this fund belonged to the principal defendant. The draft came to the bank indorsed by the secretary and treasurer of the principal defendant, and was forwarded for collection. Hpon its collection nearly one-half of the proceeds were used to pay an overdraft due the bank from the principal defendant. Mr. McClenahan, though he was agent for Mr. Radford, secretary and treasurer of the principal defendant, was also paying teller of the bank. Mr. Rad-ford, secretary and treasurer of the principal defendant, was also a director in the bank. The bank at this time held as security all of the stock representing the S. H. Davis Company corporation except three shares, and the books of the corporation were then at the bank. We think it was a question for the jury to determine from all the evidence, under proper instructions, whether the bank had such knowledge of the ownership of the fund as would make it liable. If the fund belonged to the principal defendant, and the bank had knowledge of that fact, it would he liable to garnishment, even though the fund stood in the name of McClenahan, agent. Connor v. Third Nat. Bank, 90 Mich. 328; Bills v. National Park Bank, 89 N. Y. 343; Gibson v. National Park Bank, 98 N. Y. 87; Drake, Attachm. § 482.

When the S. H. Davis Company was organized, Mr. S. II. Davis was indebted to the bank in the sum of $20,000. The testimony of the plaintiff tends to show that upwards of $1,300 of money belonging to the S. H. Davis' Company was wrongfully received by the bank in payment of interest due from Mr. Davis as an individual. This is denied by the bank, it contending that the payments which were made as interest were made by Mr. Davis, the president and general manager; that they were made voluntarily; that the bank discounted the paper of the S. H. Davis Company upon the agreement that this interest should be paid; and that the company was perfectly solvent at this time, and that the creditors have no right to complain. The plaintiff denies that the discounting of the company paper was upon the condition that the interest due from Mr. Davis should be paid. He also claims that some of these payments were made by the bookkeeper without authority, and without the knowledge of the general manager or the board of directors; and we think there is testimony tending to show the truth of this contention. If payments of the individual debts of Mr. Davis were made with the corporate funds, and these payments were unauthorized by the corporation, and were made to the bank with knowledge that they were corporate funds, we have no doubt funds so paid could be reached by the creditors of the corporation. 3 How. Stat. § 8059; McLellan v. Detroit File Works, 56 Mich. 579; Merchants’ Nat. Bank v. Detroit Knitting & Corset Works, 68 Mich. 620; 2 Mor. Priv. Corp. § 789. See, also, Johnson v. Hersey, 70 Me. 74 (35 Am. Rep. 303); Id., 73 Me. 291. Giving the most favorable construction to the testimony possible, in favor of the bank, we think it should have been submitted to the jury whether these payments had been authorized or not, and whether they were required to be made before the bank would discount the paper of the corporation.

The bank was allowed to show that the note which was the basis of the judgment of Mr. Ferry was. received by him without consideration, after maturity; and it was the claim of the defendant that Mr. Ferry was not a creditor entitled to the benefit of the garnishee statute. The trial judge, in his disposition of the case, said:

“The note on which the plaintiff obtained judgment in the principal case is dated March 2, 1895, and due in 30 days after date. The note was protested April 4, 1895, and was subsequently, after its maturity, indorsed to the plaintiff in this case. The evidence shows, moreover, that Ferry paid no consideration for the note; in other words, that he is a merely nominal plaintiff. Under these circumstances, if these payments of interest could be attacked at all, I do not believe a merely nominal indorser of dishonored paper, who became such eight months after the alleged interest was paid, is such a bona fide creditor of the corporation as the statute contemplates.”

To meet this feature of the case, the plaintiff sought to introduce testimony to show that the note was given for a bona fide indebtedness, which existed prior to the time when the payments of interest were made. Testimony offered for that purpose was rejected. If the ownership of the note and its consideration were to be inquired into at all, we think this testimony was competent. While Mr. Ferry did not obtain the note until after maturity, the rule would be that he took it subject to any defenses that could be made against the person from whom he obtained it. If there was no defense to the note, the owner of it was a creditor, and entitled to such rights as the statute gave him.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BRADY v. HAYWARD.
    1. Drains — Review of Proceedings — Certiorari.
    A common-law writ of certiorari will lie to review proceedings to establish a drain which are alleged to be void for jurisdictional defects.
    2. Same — Assessment for Benefits — Constitutionality.

      * The provision of 3 How. Stat. § 1740e2, as amended by Act No. Ill, Pub. Acts 1895, chap. 5, § 1, for the apportionment of the expense of constructing drains on the basis of the per cent, of benefits to accrue instead of in dollars, and cents, is constitutional.
    3. Same — Amendatory Laws — Effect on Pending Proceedings.
    Proceedings begun under the drain law prior to the amendatory act of 1895 were not terminated upon the. new law’s becoming operative, but merely became subject to its provisions so far as they were applicable.
    4. Same — Sufficiency of Application — Signatures.
    3 How. Stat. § 174055, providing that an application to establish a drain shall be “signed by not less than five freeholders of the township or townships in which such drain, or the lands to be drained thereby and to be assessed therefor, may be situated, one or more of whom shall be owners of lands liable to be assessed for benefits,” does not require the application to be signed by five freeholders of each township where the drain traverses more than one township.
    5. Same — Description of Route.
    An application for the establishment of a drain which designates the proposed drain as a portion of B. river, a natural watercourse, which needs deepening, widening, cleaning out, and straightening from a point where the said river intersects the section line between two certain sections of a given township, thence in a northwesterly direction upstream, following the channel through stated sections, terminating at a point 80 rods south of the northeast corner of a given section and township, is sufficient, under the statute (3 How. Stat. § 174055) requiring the application to give “a general description of the beginning, the route, and the terminus ” of the drain.

      6. Same — Running Streams — Internal Improvements — Constitutional Law.
    The fact that the proposed drain was to be created by cleaning out and deepening a running stream did not render the work an internal improvement, within the prohibition of article 14, § 9, of the Constitution.-
    7. Same — Letting of Contract — Division Into Sections.
    The drain commissioner had the right, in the exercise of his discretionary power to divide the drain into sections for the purpose of letting the contracts, to designate a section 15 miles long, although the total length of the drain was but 19 miles.
    8. Same — Bidders—Security for Performance.
    The commissioner gave notice that persons desiring to bid on the 15-mile section must deposit with their bid a certified check for $1,000, which check should be forfeited to the drain fund if their bid was accepted and-they failed to enter into a contract. The statute (3 How. Stat. § 1740e) provides that the commissioner shall make contracts with the lowest responsible bidder giving adequate security for the performance of the work. Held, that the requirement was a proper one.
    9. Same — Release of Right of Way — Irregularities.
    The construction of a drain will not be stopped at the suit of one whose land is in the assessment district, but is not crossed by the drain, on the ground that releases for all the right of way have not been given, where the commissioner acted in good faith in procuring the right of way, and obtained releases from all who he supposed were interested therein, and the persons whose interests were overlooked have had their rights adjusted by a decree of the court, upon their application for an injunction, from which they have not appealed, and by which decree it was determined that their lands would not be damaged by the construction of the drain.
    10. Same — State Drains — Township and County Commissioners —Jurisdiction.
    3 How. Stat. §§ 1740Í6, 1740Í7, provide that the state board of control shall no longer exercise control over drains constructed by the State, and that such drains shall be under the care of the township drain commissioner. Section 1740a7 provides that the jurisdiction of the township drain commissioner shall be limited to drains wholly within his township, and that the county drain commissioner shall have concurrent jurisdiction with the township drain commissioner, ‘ ‘ and shall also have jurisdiction over all other drains within his county.” Section 1740A9 provides that drains theretofore constructed under any provision of law may be widened and deepened “under the provisions of this act.” Held, that, where a drain traversing more than one township is to be laid over a portion of an old state drain, the county commissioner has jurisdiction of the proceedings.
    Error to Sanilac; Beach, J.
    Submitted June 18, 1897.
    Decided September 14, 1897.

      Certiorari by Michael Brady to review the action of Hiram S. Hayward, county drain commissioner, and William H. Burgess, judge of probate, in locating and establishing the Black River drain. From a judgment declaring the drain proceedings invalid, defendants bring error.
    Reversed.

      H. O. Babcock and William Dawson (Chadwick & Mcllwain, of counsel), for appellants.

      J. H. Farley (F. F. Bacon and E. F. Law, of counsel), for appellee.
   Moore, J.

This is a proceeding to review the action of the circuit judge in declaring, in a certiorari proceeding, that in the establishment of the Black River drain, in Sanilac county, the proceedings were invalid. The circuit judge does not give the reason for reaching the conclusion he did. The drain does not run through the land of the petitioner, but his land is within the assessment district, and he is liable to pay a tax of about $300 if the drain is constructed.

At the outset it is claimed by the defendants that the common-law writ of certiorari is not the proper remedy to secure a review of the proceedings. Inasmuch as the petition alleges that there are jurisdictional defects in the proceedings to establish the drain, we are inclined to dispose of the case as presented here. Loree v. Smith, 100 Mich. 252; Moore v. McIntyre, 110 Mich. 237.

It is objected that the law of 1885 is unconstitutional. This law has now been in force a little more than 12 years. Its construction has been before this court repeatedly, and it has been repeatedly held to be constitutional. Mathias v. Cramer, 73 Mich. 5; Smith v. Carlow, ante, 67. We see no reason for changing these decisions.

It is also objected that the basis of the assessment is illegal, because the apportionment is made upon the per cent, of benefits to accrue, and is not made in dollars and cents. There is some language used in the case of Kinnie v. Bare, 68 Mich. 633, that might give support to this contention. But the point was not involved in that case, and the learned judge who wrote the opinion characterized what he said upon that subject as a digression, and ended by saying, “I wish to say that I express no opinion upon the validity of the law authorizing assessments for benefits for the construction of drains, as the question was not argued in this case.” Section 1740e2, 3 How. Stat., and the amendment as found in Act No. 111, Pub. Acts 1895, chap. 5, § 1, provide for the apportionment upon the basis of the per cent, of benefits to the township because of the benefit to the public health, or as a means of improving any highway, and also against lands according to the per cent, of benefit. The fact that a drain is established involves the finding of the fact that it is necessary and conducive to the public health. It is not conceivable, taking this fact into consideration, that a drain is not worth to the townships and to the land to be affected by it all that it costs. This being established, we cannot see any injustice in apportioning the cost of the drain in the manner provided by the statute. This has been done now for 12 years, and was done in the many cases which have been before this court for review during that time.

These proceedings were commenced prior to the amendments of the drain law as made in 1895. The application complied with the requirements of the law as it then existed. It is urged that the amendment of 1895, in relation to the persons who shall sign the application for the establishment of the drain, repealed the law of 1885, and that the commissioner could not go on from the point where the law of 1895 found the proceedings, but that all that had been done up to that point must be dropped, and the proceedings commenced anew; citing City of Detroit v. Chapin, 108 Mich. 136, and other cases. The record shows the requisite number of signers having the requisite qualifications required by the law as it existed at the time the proceeding was commenced to give the commissioner jurisdiction. The commissioner, after receiving the application, proceeded to make his first order of determination, and to get releases of right of way from the parties through whose lands the ditch was to fun, before the law of 1895 became operative. This law does not purport to be the enactment of a general drain law that shall take the place of the old law, but simply amends a few sections of the old law to remedy some defects found therein. It left untouched section 1740h9, which provides, “Drains for which an application has been made * * * under any provision of law heretofore enacted may be laid * * * under the provisions of this act,” and section 174015, “saving all acts doné and all rights acquired at the time this act takes effect, and any proceeding had or begun may be carried forward and completed thereunder the same as they might have done had this act not been passed.” It is impossible to read the law of 1885, with the amendments since made thereto, without coming to the conclusion that it was the intention of the legislature that drain proceedings which had been commenced were not to fail because of the amendments, but were to be carried forward to completion, subject to the provisions of the law as amended, so far as applicable. In the case of City of Detroit v. Chapin, supra, the act passed in 1895 did not purport to be an amendment of the law as it existed at that time, but was an entirely new law, covering the entire subject of taking private property for the use and benefit of the public, and, as stated in the opinion, the act is materially different from the one repealed by it. We think the case comes within the principle announced in Merkle v. Township of Bennington, 68 Mich. 133; Davenport v. Auditor General, 70 Mich. 192; Alexander v. City of Big Rapids, Id. 224; Moore v. Township of Kenockee, 75 Mich. 332; Dennison v. Allen, 106 Mich. 295. The last-named case is directly in point.

It is urged that, where a drain goes through or into more than one township, the application to establish the drain must be signed by not less than five freeholders of each township where such drain is situated, or the lands to be drained thereby are situated, one or more of whom shall be owners of land liable to be assessed in each of said townships. The statute does not so read. Section 174065, 3 How. Stat., provides that the petition shall be “signed by not less than five freeholders of the township or townships in which such drain, or the-lands to be drained thereby and to be assessed therefor, may be situated, one or more of whom shall be owners of the lands liable to be assessed for benefits,” etc. If the legislature had intended that the petition must be signed by five freeholders of each township, it would have been easy for it to have said so.

It is said the description of the drain in the application is defective. The section of the statute just referred to provides that the application shall give ‘ ‘ a general description of the beginning, the route, and the terminus thereof.” We think'the application in that respect was sufficient. Kinnie v. Bare, 68 Mich. 625, 80 Mich. 345.

The commissioner divided the drain, which is 19 miles long, into five sections, each of which was let separately. One of these sections is 15 miles long, and it is claimed that the commissioner violated the law in establishing so long a section. The same question was raised in the recent ease of Smith v. Carlow, supra, in which an opinion was handed down at this term of court, and was decided against the position here taken by the plaintiff.

It is said, too, that this work, because of its magnitude, is not a drain, within the meaning of the drain law, hut is an internal improvement, forbidden by the Constitution. The same question was raised in Smith v. Carlow, supra, and was there decided against the contention of plaintiff. See, also, Hall v. Slaybaugh, 69 Mich. 484; Gilletts v. McLaughlin, Id. 547.

In the notice of letting the contracts, the commissioner gave notice that persons desiring to bid on the 15-mile section must deposit with their bid a certified check for $1,000 as a guaranty that the person bidding would enter into a contract, which check should be forfeited to the drain fund if the person to whom the contract was awarded failed to enter into the contract. This is said to he error. Section 1740e, 3 How. Stat., provides: “The commissioner shall thereupon proceed to receive bids and let jobs for the construction of the sections, and make contracts with the lowest responsible bidder giving adequate security for the performance of the work,” etc’. It is very evident that the commissioner was not bound to receive bids and let contracts to every person who bid, regardless of their financial ability to enter into a contract if the bid should be accepted, and to perform the work if the contract should he entered into. The bidder must be a responsible bidder, able to give adequate security. In view of the magnitude of the proposed work, and of the expense and delay involved if it became necessary to readvertise and relet the contract, we do not think it can be said that the requirement made by the commissioner was an unreasonable one. Like requirements are made, as a rule, by public boards whose duty it is to let contracts for public improvements; and we think it a very wholesome requirement, and not in conflict with either the letter or the spirit of the statute.

Near the outlet of the drain was a farm, owned by Mr. Diem. He died. His widow was in possession of the farm, and the commissioner was led to believe by her and her son that she owned it. She gave a release of right of way, and the commissioner, supposing he had the right of way for the whole length of the drain, proceeded to let the contracts. The record discloses that, after this was done, three of the sons filed a bill attacking the regularity of this proceeding in many particulars, and setting up that the right of way across their land had not been obtained, and asking that the construction of the drain might be enjoined. The circuit judge made a decree in that proceeding in which he found:

“The present complainants do not clearly show that they will be damaged in their lands by the construction of this drain so as to equitably invoke the extraordinary remedy of an injunction restraining the commissioner and contractors from proceeding with other portions of the drain, even if the jurisdictional question to the original application was plain and clear. It is ordered, adjudged, and decreed that the drain commissioner and defendant contractors be restrained from entering upon the premises of the complainants for the construction of the proposed drain thereon, from precipitating upon said lands any flow of water beyond the natural flow of water conveyed by said Black river, until the right of way over said premises is obtained. Defendant drain commissioner may take proceedings in probate court for the appointment of special commissioners in reference to these particular parcels, and to obtain the right of way through the same. The proceedings, aside from this, are decreed to be valid.”

This decree was made the 6th of March, 1896, and no appeal has ever been taken from it. Under the provisions of this decree the commissioner filed a petition with the judge of probate, asking for the appointment of special commissioners, and that, when appointed, they might determine the necessity of taking the lands and fix the compensation to be made therefor. This was afterwards done, and no appeal has been taken from that action. It is now claimed that there were other children who were interested in this right of way, from whom releases have not been obtained; and it is also claimed that, because this release was not obtained before the contracts were made, the special commissioners should have been required to pass upon the necessity of taking all the property through which the drain passed, and that it was the commissioner’s duty to take entirely new proceedings to condemn the entire right of way. As already stated, the decree of the circuit judge was to the effect that these lands would not be damaged by the construction of this drain. The return of the commissioner shows that none of the said lands are subject to assessment for the construction of said drain. The return shows further:

“That the land is located at the outlet of said drain, and that across said land there is a rapid flow of water, and steep banks, and that neither the survey nor profile for said Black River drain contemplates the taking of any land across said description of lands, nor interfering with the banks nor the main bed of the present watercourse, further than to clear out some shoal places, and make the bed even, and remove the sand bars and rocks, and that it is not essential to the construction of said drain that any work be done across said lands. This respondent further says that the line of said drain across said latid is an established watercourse, and has been for all time past in the memory of man.”

The owners of said lands are not now making any complaint The commissioner acted in the utmost good faith in the procurement of this right of way. He obtained a release from the parties he supposed had the right to give it, and all of those who had a right to complain have done so in court. The question of the release of the right of way has been passed upon in such a way that they appear to be satisfied, as they have taken no appeal, and we do not think the proposed improvement can be stopped upon this application for a certiorari. We think this action of the circuit judge in making the decree he did was authorized by previous decisions of this court. Cook v. Covert, 71 Mich. 249; Gillison v. Cressman, 100 Mich. 591.

The description of the proposed drain in the application is as follows:

“The drain hereinafter proposed, known and hereby designated as a portion of Black river, is a regular natural watercourse, and the same needs deepening, widening, cleaning out, and straightening from a point in said river where the said river intersects the section line between sections 4 and 5 of T. 11 N., R. 15 E., where said Black river has a well-defined channel, about 80 rods south of northeast corner of section 5 of said T. 11 N., R. 15 E.; thence in a northwesterly direction upstream, following the channel of said river, with a view to straighten, through section 5 of T. 11 N., R. 15 E.; through sections 19, 30, 29, and 32 of T. 12 N., R. 15 E.; through sections 1, 12, and 13, of T. 12 N., R. 14 E.; through sections 36, 25, 26, 23, 14, 15,10, and 3 of T. 13 N., R. 14 E.; and through sections 34, 27, 28, 22, and 21 of T. 14 N., R. 14 E., terminating at a point 80 rods south of the N. E. corner of section 21 in T. 14 N., R. 14 E.”

It is claimed that a large part of the Black River drain is laid over certain state drains established by the state board of control, and that these drains have never been discontinued. It is also claimed that these ditches have been put under the care and control of the township drain commissioner, and that the county drain commissioner has no authority whatever over these drains,—citing Zabel v. Harshman, 68 Mich. 273; Tomlin v. Newcomb, 70 Mich. 358. In each of these cases the bill was filed by the owner of the lands through whose premises the drain was located. In the case at bar the owners of the land where it is proposed to construct the new drain are not complaining. The State is not complaining. The town drain commissioners are not complaining. The drain commissioner returns that he has obtained releases of the right of way through all of the lands through which the drain is to pass. The land of the petitioner is not invaded, nor is he called upon to help defray expenses for an improvement for which he has once already paid. As long ago as in 1887 (3 How. Stat. § 1740i6) the legislature provided that the state board of control should no longer exercise control over drains con tructed by the State. It is urged that the control as given by section 174017 to the town drain commissioners, and not to the county drain commissioners. We think, however, that the section just referred to should be construed in connection with section 1740a7, 3 How. Stat., which provides : “ The jurisdiction of the township drain commissioner shall be limited to all drains having their beginning, entire course, and terminus within his township. * * * The county drain commissioner shall have concurrent jurisdiction with the township drain commissioner, and shall also have jurisdiction over all other drains within his county,” etc.; and section 17407i9, 3- How. Stat., which provides: “Drains for which an application has been made, or which have been constructed or partly constructed under any provision of law heretofore enacted, may be laid, constructed, completed, relaid, cleaned out, widened, deepened, or extended, as the case may be, under the provisions of this act.” The law should be so construed as to give, if possible, effect to all its provisions. If the last-named provisions are to be given effect, the contention of the petitioner cannot be sustained.

The legislature has indicated its desire to make this law a practical working law, by means of which the beneficial results intended to be accomplished by it can be wrought out. Section 1740grl, 3 How. Stat., provides that the proceeding shall not be declared “absolutely' void in consequence of any error or informality of any officer in the location and establishment thereof, nor by reason of any error or informality appearing in the record of the proceedings by which any such drain shall have been located and established, nor on account of any irregularity or informality in the condemnation of right of way, nor for want of any record thereof; but the court * * * shall, if there be manifest error in the proceedings, allow the plaintiff in action to show that he has been injured thereby.” Matrau v. Tompkins, 99 Mich. 528. The record discloses that the proposed undertaking is one of great magnitude and importance, involving a great many persons and a great many descriptions of land. The record shows that great care has been taken on the part of the drain commissioner to comply with all the provisions of the law. A large sum of money has already been expended in making surveys, securing releases, in advertising, and in other ways. It has been twice decided that the proposed drain is a public necessity conducive to the public health. There is nothing to indicate any fraud or want of good faith. Such defects as have been shown are not jurisdictional, but are mere irregularities that may be either waived or cured. It is not shown that injury has been done the petitioner, or will be done to him if the drain is constructed. We think the writ of certiorari should have been dismissed, and it is so ordered, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    JOHN HANCOCK MUTUAL LIFE INSURANCE CO. v. DICK.
    Equity Jurisdiction — Cancellation oe Insurance Policy— Fraud.
    A bill in equity will lie to enjoin the prosecution of a pending suit at law upon a policy of life insurance, and to compel the surrender of the policy for cancellation, where the policy was reinstated during the insured’s last illness, after it had been allowed to lapse for nonpayment of premiums, upon the false and fraudulent certification of the insured and his physician that he was then in as good health as when first examined upon his application for the policy.
    Appeal from Wayne; Haire, J., presiding.
    Submitted June 16, 1897.
    Decided September 14, 1897.
    Bill by the John Hancock Mutual Life Insurance Company against Elizabeth Dick for the cancellation of a policy on the life of one John J. Dick, and for an injunction against the prosecution of an action at law thereon. From an order overruling her demurrer to the bill, defendant appeals.
    Affirmed,

      Alfred Bussell, for complainant:
    In support of the equitable jurisdiction, counsel cited: Stewart v. Railway Co., 2 DeG., J. & S. 321; Wheeler v. Bank, Har. Ch. 449; Wales v. Newbould, 9 Mich. 45; Wright v. Hake, 38 Mich. 525; Wyckoff v. Sewing Machine Co., 43 Mich. 309; Tompkins v. Hollister, 60 Mich. 470; Brown v. Kalamazoo Circuit Judge, 75 Mich. 274; Sherman v. Stove Co., 85 Mich. 169; Cogswell v. Mitts, 90 Mich. 353; Railway Co. v. Miller, 91 Mich. 166; Warren v. Holbrook, 95 Mich. 185.

      Philip T. Van Zile, for defendant.
   Hooker, J.

The complainant’s bill alleges that:

1. The complainant issued a life policy of $2,000 on the life of John J. Dick, payable to the defendant, wherein it was stipulated that, if any installment should not be paid when due, the policy should be void, except as to its paid-up value. The company was accustomed to accept past-due installments, and to reinstate the policy, provided the insured would furnish a proper certificate of good health; said certificate stating further that the insured agrees that the payment is received and policy reinstated on condition of the truth of such certificate.

2. This practice was followed by Dick, who defaulted habitually.

3. January 8, 1896, an installment became due, notwithstanding two notices to pay, and the policy lapsed, except for its paid-up value.

4. Thirty-eight days after default, Dick became- ill, and died within 48 hours.

5. “ He called his family doctor that day, Dr. Judson, to attend him; and the same day Dick’s son, learning of his father’s illness and of the physician’s visit, went to the company’s agent, and, concealing the facts of illness and doctor’s attendance, offered to pay up. The agent, suspecting nothing, said a health certificate must be furnished, and handed the son a printed form, which insured signed; and on the same 18th of February the son’s wife took the form, which was signed by the patient, to the physician, to get his name as a witness, although he had not seen the insured sign. The physician signed the attestation, and added the words, ‘Physician o£ Family,’ and the next morning, February 19th, the son took the certificate and money to the agent, who received same, and gave receipt reinstating the policy.”

Copy of certificate:

“Detroit, Mich., Feb. 18, 1896.
“I, John J. Dick, of Detroit, Mich., being the person whose life is insured under policy No. 28,251 in the John Hancock Mutual Life Insurance Company, do hereby certify that I am in as good health as when first examined on my application for said policy, and that my family record is unchanged. I also understand and agree that the payment of premium due January 8,1896, is received, and said policy is now reinstated, by said company, on condition of the truth of the above statement.
[Signed] “John J. Dick.
‘ ‘ Witness: -.
“Note any change in family record below.
“I witness the above.
[Signed] “H. C. Judson, M. D.,
“Physician of Family.”'

The next day, February 20th, the insured died of the said illness.

6. “The bill charges that the representations in the certificate were false, and were known to be so by the insured, his son, his son’s wife, and his physician; and that they confederated to defraud the company by. preparing and delivering the certificate to the agent, with intent, by means thereof, to procure the acceptance of the past-due quarterly premium; and that the agent relied on the false certificate, and accepted and receipted for the money in ignorance of the facts.

7. “April 11, 1896, the agent, having ascertained the fraud, tendered the quarterly premium back, and also the paid-up value, and offered to pay the same (and same is paid into court). Defendant refused the tender, and has sued the company at law in Wayne circuit court, although she is bound, in equity, to surrender the policy and receipt.

“Prayer: To declare the policy void (except for paid-' up value), and that it may be delivered up to be canceled; and that the receipt reinstating policy, so obtained by fraud, be delivered up; and for a preliminary and final injunction against the prosecution of the suit at law.”

8. Action was commenced on the policy, and was enjoined in these proceedings pending the suit.

This bill was demurred to (1) for want of equity; (2) because a legal remedy exists. The demurrer was overruled, and the defendant has appealed from the order.

There is no doubt that the alleged fraud, if proved, should defeat the claim of the plaintiff to any sum beyond the paid-up value of the policy in a court of law. Such court could not, however, have canceled or compelled the surrender of the renewal receipt, though there is force in the. suggestion that such cancellation would be of little importance after an adjudication that it was void. It is urged that the case falls within the general rule that equity has no jurisdiction where there is an adequate remedy at law, especially when the latter has been resorted to by the opposite party. Counsel for defendant cites two cases decided by the federal courts, which sustain his contention, under circumstances closely resembling the situation in this case. These decisions are leased upon the 16th section of the federal judiciary act, which provides that “suits in equity shall not be sustained in the courts of the United States in'any case where a plain, adequate, and complete remedy may be had at law. ” Rev. Stat. U. S. § 723. We have no similar statute, and we are cited to several cases which sustain the jurisdiction of chancery, even after action at law is commenced. These cases will be found collected in the complainant’s brief, and they seem to rest upon two grounds: (1) That the jurisdiction is concurrent in cases of fraud; (2) that the equity courts may grant more complete relief, where an instrument is fraudulently obtained, by compelling cancellation or surrender, and by rendering equitable relief. As counsel suggests, there are cases which, to some extent at least, may seem to militate against this theory; but they do not appear to have been so considered by the court. See Bay City Bridge Co. v. Van Etten, 36 Mich. 210; Shaw v. Chambers, 48 Mich. 358; Teft v. Stewart, 31 Mich. 367. Shaw v. Chambers was an bjectment case, and the only ground of equitable jurisdiction was an alleged estoppel in pais. This was disposed of on the well-settled rule (in Michigan) that titles to land cannot rest on estoppel in pais, and nothing remained but a legal defense. In Teft v. Stewart a jurisdiction was invoked for chancery so broad that Mr. Justice Graves said, in disposing of the case:

“It appears to me quite impossible, in the face of the objection taken and insisted on, to sustain this decree without sanctioning the right to come into equity in all cases to recover damages where the grievance asserted is a fraud committed by one upon another in a dealing in personal property. If the right contended for and carried out by the decree can be maintained, no reason is perceived why, upon the same principle, a party claiming to have been cheated in a horse trade, or in a purchase of any chattels, where the amount is sufficient, may not, at his election, proceed to sue in chancery for damages, and preclude an investigation before a jury.”

We must therefore consider the question settled in this State in accord with complainant’s clairq. We see no occasion to disturb the order of the circuit court in chancery, which is therefore affirmed.

The other Justices concurred.

         Insurance Co. v. Bailey, 13 Wall. 616; Ætna Life Ins. Co. v. Smith, 73 Fed. 318.


author: Long, C. J.

text:
    COFFIN v. BOARD OF EDUCATION OF DETROIT.

    Mandamus — Teacher’s Salary — Remedy at Law.
    Respondent hired relator to teach in the public schools for one year, beginning in September. On December 18th she was served with a copy of a resolution adopted by the committee on teachers, which provided that she be relieved from further duty pending the action of the school board. At its next meeting the board approved of the committee’s action, and provided that the release from duty be continued during the term for which she had a contract with the board. The relator’s salary was paid to January 1st, but at the meeting of the hoard in January it was resolved to discontinue it. Mandamus proceedings were thereafter instituted to compel the payment of the salary fixed by the contract. Respondent answered, claiming that it had discharged the relator in the exercise of its power to discharge teachers for good and sufficient reasons. Held, that mandamus was improperly granted, for the reason that the usual action at law afforded 9,n adequate remedy.

      Certiorari to "Wayne; Hosmer, J.
    Submitted June 22, 1897.
    Decided September 14, 1897.

      Mandamus by Mathilde Coffin to compel the board of education of the city of Detroit to pay her the salary provided in her contract of employment as teacher in the city schools. From an order granting the writ, respondent ‘brings certiorari.

    Reversed.

      John J. Speed, for relator.

      William E. Bauhie, for respondent.

       Rehearing denied November 23, 1897.

   Long, C. J.

It appears that relator was named in the report of the committee on teachers and schools as one of the special teachers, with title of assistant superintendent, in the public schools of Detroit for the year beginning with the month of September, 1896. Her name appeared upon the list of special teachers, with the salary reported at $235 per. month. This report was adopted by the board, and the relator given notice of such action. That notice contained the following:

“The conditions of this appointment are that you are subject to assignment or transfer at the discretion of the board, and that you will faithfully observe the rules and regulations adopted by the board for the government of the public schools of the city, and that you will contribute a sum not exceeding one per cent, of your monthly salary, as the board may require, to the public school teachers’ retirement fund.”

September 12, 1896, the relator accepted this employment as follows:

“I accept the appointment of teacher in the public schools of Detroit tendered to me in your notice dated June 24, 1896, at the salary named, and according to the conditions prescribed therein. ”

On December 22, 1896, the committee on teachers and ■ schools made a report to the board as follows:

“Your committee beg leave to report and ask your approval of the action taken by this committee at a meeting held December 18th, when the following resolution was unanimously adopted: ‘ That Mathilde Coffin be relieved from further duty pending the action of the board at its next meeting, it being deemed advisable for the best interests of the schools; that the chairman be instructed to notify Miss Coffin of this action.’ Miss Coffin was at once notified, and given a copy of the above resolution, and we now ask your concurrence in our action, and that the release from duty of Mathilde Coffin for the reason above stated be continued during the term for which she has a contract with the board.”

This report was adopted by the board. Miss Coffin was paid to January 1, 1897, but at the meeting of the board in January it was resolved not to continue her pay. Proceedings were thereafter commenced in the Wayne circuit court for mandamus to compel the respondent to pay the salary fixed. Respondent appeared, and answered the petition in that court. Thereafter the court made an order settling issues, and directed such issues to be heard before a jury. A jury was impaneled, but, after the testimony was taken, the court discharged them, and made a finding himself, and thereafter awarded the writ against the respondent, directing it to pay the salary named. The case comes into this court by writ of certiorari.

The first question raised is whether the writ of mandamus is the proper remedy. The answer to the order to show cause in the court below sets up facts which, if true, would undoubtedly determine the case in favor of the respondent. The contract of employment was not like the one in Carver v. School District, 113 Mich. 524. There the statute prescribed what the contract should contain. But in that case the rule stated in Tripp v. School District, 50 Wis. 651, was quoted with approval, where it was said:

“We think the only power which the board have to discharge a teacher is the power which they may exercise on behalf of the district when the teacher is guilty of some breach of his contract which, at common law, would justify an employer in discharging his servant, or when the teacher has lost all right to teach the school by reason of the annulment of his certificate in the way prescribed by the statute.”

In this view of the relations existing between the relator and the school board, it is difficult to see how she could have the use of the writ of mandamus to settle the controversy. If she was dismissed for cause which would be sufficient to warrant an employer to dismiss his servant, then she had no right of action. It was said in Degen v. Railway Co., 113 Mich, 66:

“The rule is that the neglect or refusal of an employe to obey the directions of the employer as to the manner of performing his work is a breach of the contract which justifies his discharge.”

But, whatever may be the rule in this case which must determine the rights of the' relator, it is evident that she has an adequate remedy at law. It is an ordinary contract of employment as a teacher in the public schools. She claims to have lived up. to its requirements, that she was unjustly and unlawfully discharged, and that she is now entitled to be paid. On the other hand, the respondent contends that it had power to discharge her, and did discharge her for good and sufficient cause. Courts will not permit the use of the writ of mandamus when there is a plain, direct, and adequate remedy at law. Merrill, Mand. § 10, and cases there cited. We are not disposed to carry the use of this writ beyond the bounds to which we have already gone, or permit its use in cases where there is so plain a remedy as here shown. The proceedings below must be reversed, and the writ of mandamus quashed, with costs in favor of respondent.

The other Justices concurred.


author: Grant, J.

text:
    GOODSON v. BOARD OF HEALTH OF DETROIT.
    1. Municipal Corporations — Extra Services op Employé— Mandamus.

      Mandamus is not the proper remedy to secure payment for services rendered after hours by a clerk in a municipal office.
    2. Same — Settlement op Claim.
    The presentation by a clerk in a city office of a bill for extra services, and its allowance, constitute a settlement of all claims by him for extra services prior to such time, where he accepts the sum allowed, and gives his receipt, without in any way indicating that he has a further claim.
    3. Same — Board op Health — Authority op Commissioner.
    The Detroit charter (section 382) gave to the local board of health exclusive power to appoint clerks for the health office, and to prescribe their duties and determine their compensation. The regular hours of work in such office, as fixed by the health commissioner, were from 8 a. m. to4p. M. Eelator, who was accustomed to work after 4 o’clock and into the evening, was told by the commissioner that he should be paid for his extra services. At -the expiration of his term oí employment, he sought to compel the board of health to make such payment. Held, that the board was not bound by the action of the commissioner.

      Certiorari to Wayne; Frazer, J.
    Submitted July 6, 1897.
    Decided September 14, 1897.

      Mandamus by John W. Goodson to compel the board of health of the city of Detroit to páy him for extra services as clerk in the health department. From an order granting the writ, respondent brings certiorari.

    Beversed.
    , The relator was appointed clerk in the health department of the city of Detroit at a salary of $100 per month, and was so employed from October, 1892, to January, 1895. In 1895 the board of health which employed him went out of office, and a new board was created. Belator then presented to this new board the following bill :
    The Board of Health of the City of Detroit, in Account with John W. Goodson, Dr. f
    To extra services rendered necessary by exigencies arising by reason of the increase of contagious diseases, and the natural increase of labor incident thereto:
    October 1, 1892, to December 81, 1892, 13 Sundays and 1 legal holiday-------------------------- 14 days
    January 1, 1893, to December 31, 1893, 54 Sundays and 7 legal holidays--------------------------- 61 “
    January 1, 1894, to December 31, 1894, 53 Sundays and 7 legal holidays........■-------------------- 60 “
    January 1, 1895, to January 18, 1895, 2 Sundays and 1 holiday.................................. 3 “

    Whole number of days wrought in extra service. - 138 days
    Total amount due for said extra services at $3.92 per day for 138 days--------------------------i.. $540 96
    Number of hours wrought in extra overtime and in night work, from May 1, 1894, to January 18, 1895, 1,315 hours, making, at 8 hours for each day, 164 days and 3 hours, at $3.92 per day----- 644 25
    Total........................................§1,185 21

      By cash on account paid by the old board, July 19,1894 ....................................... §100 00
    Balance due relator January 18, 1895, and when the old board was legislated out................§1,085 21
    Interest on §1,085 from January 18 to October 18, 1895, at 6 per cent............................. 51 90
    Amount of claim October 18, 1895................§1,137 21
    Amount paid by the respondent, the board of health of the city of Detroit, to relator, October 18, 1895, to apply on account......-........... 200 00
    Balance of relator’s claim October 18, 1895 _____. $937 21 Interest on S987.21 from October 18, 1895, to Jan-
    uary 7, 1896, at 6 per cent______________________ 59 18
    Amount of John W. Goodson’s claim at the date of filing of his petition_________________________ $996 39
    The new hoard, after due consideration, allowed relator 1200, which he took, and for which he gave a receipt in full. Relator claims to have received this $200 on account of the claim, and to have so stated when he received the money and gave the receipt. He then instituted this suit by a petition for the writ of mandamus to compel the board to allow and pay his bill for the alleged extra services. The respondent answered, and issues were framed, upon which the jury found (1) that the board of health employed relator to do the extra work set forth in his bill; (2) that he did not perform the work; (3) that the board agreed to pay him for said extra work; (4) that the old board paid him $100 on account of said extra work; (5) that the board did not owe hini the sum of $1,085.21; and (6) that he did extra work, for which he had not been paid, to the amount of $100. The court entered an order directing the payment of this amount and the costs of suit. Respondent brings the case to this court by the writ of certiorari to review the proceedings.

      Ervin Palmer, for relator.

      James H. Pound and G. D. Joslyn, for respondent.
   Grant, J.

(after stating the facts). Mandamus is not the proper remedy. The proper remedy is by a suit at law. Inasmuch as this point' is not raised, we will dispose of the case upon its merits.

The authority for the appointment of relator is found in section 382 of the charter of 1893. This section gives the appointing power to the board of health alone, and the power “to prescribe the powers and duties and determine the annual salary and compensation of each and all herein referred to.” There was no contract between relator and respondent to perform these extra services, unless one is to be implied from the fact that he rendered the services and that the board had knowledge thereof. He presented no itemized bill to the old board. During the entire term of his employment he was paid semi-monthly, and gave receipts in full for his services. He testified that he was employed by the health officer and secretary of the board as clerk of the department of contagious diseases at a salary of $100 per month, and that his hours of labor were to be from 8 to 4, with one hour to himself at noon. Not only did relator not present any claim to the board, but he never talked with any members thereof in regard to this extra work, although he knew that the board alone had the authority to employ him. He was at one time paid $100 for extra services. We give his own version of the circumstances under which this was paid:

“Q. You didn’t present an accurate account at that time?
“A. No, sir. He said it was not necessary. He said, ‘ Just make a claim there.’
“Q. Just make a claim generally, and let it go at that?
“A. Just make a claim for a certain amount, and, if there was any more coming after that, I could make a claim for that later on.
“ Q. That is, you were going to make two bites at the cherry of what was due you ?
“A. If you want to put it that way.
“Q. That is, you expected to get part of it that was already due you, and then at some future time make the claim over again for back pay?
“A. I expected to get a part that was due, and the balance remaining I expected to get later.
“Q. What part did you expect to get?
“Ü. The balance that was due me.
“Q. But the first time we are talking about?
“A. I expected to get a reasonable amount that was due me for services rendered up to that date.
‘ ‘ Q. But you got $100 ?
“A. Yes, sir.
“Q. What part of the services was that intended to cover ?
- “A. To cover some of the services that had already ■ been rendered.
ilQ. What part?
“A. They did not designate.
“Q. How was the board ever to know when it had got through paying you?
“A. I didn’t ask the board that question.
“Q. Could you tell now, do you think?
“A. I don’t know that I would be apt to tell.
“Q. In presenting your claim, did you tell the board that that was only part of it ?
“A. I told Dr. McLeod.
“Q. But you didn’t tell the board ?
“A. No, sir.
“Q. You had no relations whatever with the board ?
“A. No, sir; he represented the board to me.”

From this testimony it appears that relator presented at that time a bill for extra services, which was allowed and paid, and for which he gave a receipt. This was a settlement of all his claims prior to that time. He neither did nor said anything to indicate to the board that this was to be a partial payment upon his account, or that he had any other claim. A large part of his claim — about one-half — was for services rendered prior to the allowance of that $100. Neither did he make any claim to the board for extra services when he was paid semi-monthly. Bartlett v. Railway Co., 82 Mich. 658.

The health commissioner was not invested with the authority to fix relator’s hours of' labor, to determine how many hours should constitute a day’s work, and bind the city to pay therefor. If relator was dissatisfied with his employment and hours of labor and compensation, he should have applied to the board to fix them. The charter gives the exclusive right to the board of health to fix the compensation of its employes. The board has twice acted upon the relator’s compensation for this extra work. Its action is conclusive. He entered upon the employment with full knowledge of this power of the board. The court should have denied the writ.

Reversed, and writ of mandamus denied.

The other Justices concurred.


text:
    DUFLO v. WAYNE CIRCUIT JUDGE.
    Drains Traversing Two Counties — Review of Proceedings— Certiorari — Parties.
    A writ of certiorari to review the joint proceedings of the drain commissioners of two counties, whereby they undertook, under 3 How. Stat. § 1740p7, to lay out and establish a drain traversing portions of both counties, was properly dismissed, where it named as a party only the commissioner of the county in which the proceedings were sought to be reviewed.

      Mandamus by John B. Duflo to compel Willard M. Lillibridge, circuit judge of Wayne county, to set aside an order dismissing a writ of certiorari allowed to relator for the review of certain drain proceedings.
    Submitted June 22, 1897.
    Writ denied September 14, 1897.

      Edwin Henderson and Horace H. Backham, for relator.

      Byron B. Erskine and Durfee & Altor, for respondent.
   Hooker, J.

The relator, an owner of land in the county of Wayne, sought to remove by certiorari, to the circuit court for the county of Wayne, certain proceedings of the drain commissioners of the counties of Wayne and Macomb, whereby- they undertook to lay out and establish a drain traversing portions of both of said counties. The notice was not served seasonably upon the commissioner for the county of Macomb, nor was he a party named in the writ, which issued only to the drain commissioner of the county of Wayne. Section 1740p7, 3 How. Stat., requires joint action by the commissioners in such cases. They practically act as a board, and both should have been made parties to the writ, not only because of their joint official action and control of such proceedings, but because of the fact that each of said counties is interested in the proceeding, and entitled to a hearing through its drain commissioner. Wilson v. Gifford, 41 Mich. 417; 4 Enc. Pl. & Prac. 183. Unlike the case of Wilson v. Gifford, supra, the writ failed to mention the commissioner of Macomb county officially or by name. We are of the opinion, therefore, that the proceeding was properly dismissed, and the writ of mandamus is therefore denied.

The other Justices concurred.


text:
    RYERSON v. WAYNE CIRCUIT JUDGE.

    1. Appeal — Practice—Objection Not Raised Below.
    . An objection that a motion to set aside service on a foreign cor poration was not. the proper remedy, but that the question should have been raised by plea, is not available when first made on appeal.
    2. Nonresident Corporations — Service oe Process — Salesman as Agent — Statutes.
    One in the employ of a nonresident corporation in the capacity of a traveling salesman, supplying goods to retail dealers in several States, is an agent of such corporation, within the meaning of Act No. 61, Pub. Acts 1895, authorizing service of process in commencement of suit against any corporation not organized under the laws of this State, in all cases where the cause of action accrues within the State, upon “any agent” of the corporation.

      Mandamus by Albert W. Ryerson to compel Joseph H. Steere, presiding circuit judge of Wayne county, to vacate an order setting aside the service of a summons in a suit against a foreign corporation.
    Submitted July 6, 1897.
    Writ granted September 14, 1897.

      Bowen, Douglas & Whiting, for relator.

      Frank E. Bobson, for respondent.

       Rehearing denied November 23, 1897.

       On the question who may be served with process in a suit against a foreign corporation, there is an.extensive note to Foster v. Charles Betcher Lumber Co., (S. Dak.) 23 L. R. A. 490.

   Moore, J.

March 11, 1897, relator, a resident of Detroit, commenced a suit by summons in the Wayne circuit court against the Beach & Clarridge Company, a Massachusetts corporation, for a cause of action accruing in Wayne county. The service was made upon H. L. Baker, who is said by relator to be the traveling agent of said corporation. Motion was made to set aside the service, because unauthorized. The service was set aside and the proceedings dismissed. It is sought to review that action here.

It is claimed the service was authorized by Act No. 61 of the Public Acts of 1895, which reads:

‘ ‘ Suits may be commenced at law or in equity in the circuit court for any county of this State where the plaintiff resides * * * against any corporation not organized under the laws of this State, in all cases where the cause of action accrues within the State of Michigan, by service * * * upon any officer or agent of the corporation,” etc.

The record shows that Mr. Baker was a traveling salesman of the Massachusetts corporation. His business was the taking of orders for goods in this and a number of other States. He had no office in this State. He did not have charge of any men under him. His duties were those of the ordinary traveling agent, selling goods to retail dealers.

Relator contends that the motion to set aside the service was not the proper remedy; that the question should have been raised by plea. The record does not disclose that this objection was made in the court below. There the relator filed counter affidavits, and proceeded to a hearing of the motion as made. We do not think the point can be raised here for the first time.

It is the claim of the respondent that Mr. Baker was not such an agent as is meant by the statute, where it authorizes service upon an agent; citing Newell v. Railway Co., 19 Mich. 336; Watson v. Wayne Circuit Judge, 24 Mich. 38; Lake Shore, etc., R. Co. v. Hunt, 39 Mich. 469; Pettit v. Booming Co., 74 Mich. 214; Kirby Carpenter Co. v. Trombley, 101 Mich. 447. These cases do not throw much light upon the discussion, as the statute construed by them is quite different from the one to be construed here. In the last three cases the statute reads that service might be made on certain officers,. and the “general or special agent, superintendent, or other principal officer.”

Counsel also cites Maxwell v. Railroad Co., 34 Fed. 286. In this case Justice Brown held: “It does not appear to me that the law of this State with respect to suits against foreign corporations (2 How. Stat. § 8145) cuts any figure in the case, since it provides for service of process upon the agent of a foreign corporation only where the cause of action arises within this State;” and he held that the cause of action did not arise in this State, and for that reason the court did not get jurisdiction. In the case of Fairbank & Co. v. Cincinnati, etc., R. Co., 4 C. C. A. 403, 54 Fed., 420, there was a dissenting opinion, which we think is more in harmony with the later decisions of this court, which we shall hereafter cite, than the prevailing opinion. In Gottschalk Co. v. Distilling, etc., Co., 50 Fed. 681, it was held that the person called a “distributing agent” was not an agent, but was a purchaser of the goods of defendant.

We think the record fairly discloses that the Massachusetts corporation was doing business in this State, and that it was done through the agency of Mr. Baker, its traveling-agent, and that the case comes within the provisions of the statute. There can be no doubt of the right of this corporation to do business in this State, and of its right to sue its debtors in the courts of this State. When it undertakes to do business here, it must do so in compliance with our laws, which provide for the bringing of suits and the method of service. Vorheis v. People’s Mutual Ben. Soc., 86 Mich. 31; Shafer Iron Co. v. Iron Circuit Judge, 88 Mich. 464; Turner v. Tunnel Co., 102 Mich. 574.

We think the service of process was good. The writ will issue as prayed.

The other Justices concurred.


text:
    PEOPLE v. DUNN
    Larceny — Evidence—Sufficiency.
    Upon a prosecution for the larceny of a buggy, it appeared that H. hired the buggy from a liveryman, and took respondent driving; that H. became intoxicated, and was arrested; and that respondent thereupon drove to a neighboring city with the buggy, and traded it off. Respondent claimed to be a bona fide purchaser for value from H., but there was evidence of- admissions made by him subsequent to the arrest, tending to show that he knew where and how H. had obtained the buggy, and that they had intended to trade it off. Held, that a conviction was justified.
    Error to Saginaw; Wilber, J.
    Submitted June 17, 1897.
    Decided September 14, 1897.
    William Dunn was convicted of larceny, and sentenced to imprisonment in the state prison at Jackson for five years.
    Affirmed.

      Emory Townsend, for appellant.
    ' Fred L. Eaton, Jr., Prosecuting Attorney (B. L. •Crane, of counsel), for the people.
   Long, C. J.

The respondent was informed against jointly with one Humes in the Saginaw circuit for the larceny of a buggy valued at $40. On a separate trial before a jury he was convicted of the offense.

It appears that Humes, on September 15, 1895, rented a buggy from one George W. Hill, a liveryman at Saginaw, for the afternoon of that day. He and respondent drove around that city for a time that afternoon, when Humes became intoxicated, was arrested, and taken to jail. Respondent then drove with the buggy to Bay City, where he traded it off for another. The defense interposed was that respondent had nothing to do with the renting of the buggy from Hill, but, after it was rented, he purchased it from Humes, paying $7.50; that he acted in good faith in selling it, believing that Humes had a right to sell it to him. These questions were left to the jury by the trial court, as follows:

“His claim is that he bought this buggy for $7.50; that he bought it of Humes; that, after he had purchased it, he, with this woman who has been a witness here, after driving about town for awhile, drove to Bay City, and did not come back, and he disposed of it. If you find as a matter of fact that, although he had no right to take it, if he honestly believed that Humes had a right to sell him the buggy, and he did buy it of him, then he would not be guilty of larceny, even if he did take it and Humes had no right to it. * * * But if he sold it without any color of right, and did not believe that he had any right or authority to do so, then your verdict would be 1 Guilty.’ ”

It is contended by counsel that there is no proof in the case that the respondent was present when the buggy was hired from Hill, that the testimony all tends to show that he bought it from Humes, and that he acted in good faith in selling it at Bay City. We cannot agree with counsel’s contention. We think there is some testimony, taken in connection with the circumstances surrounding the case, which the jury had a right to consider in determining the guilt or innocence of the respondent. After his arrest at Bay City, he had a talk with the officer making the arrest, in which he said that, when Humes got the buggy, they (Humes and respondent) figured on trading it for a wagon with some one, but finally Humes got drunk, and was arrested; and that he did not propose to stay around in Saginaw, and drove to Bay City, and traded the buggy off. He had been told by the officer that 'Humes had been arrested for the larceny of the buggy, and said, “I might as well tell you the whole thing.” He then stated to the officer how Humes got the buggy, and, after Humes got drunk, where he (respondent) traded it at Bay City. It is true, there is some testimony tending to show that he paid Humes $7.50 for it; but the jury bad tbe right to draw their own inferences from the facts and circumstances of the case, and to consider the conduct of the parties, and might rely upon the officer’s testimony as to the respondent’s confession, rather than upon the testimony of the.witness who claimed to have been present when she says the respondent paid the $7.50. The testimony and circumstances tend to show that the respondent knew how Humes became possessed of the buggy, and that he knew it was not his property, but was rented from the livery barn of Mr. Hill. In view of this, we need not discuss the other questions in the case.

The conviction is affirmed.

The other Justices concurred.


text:
    STOCK v. TOWNSHIP OF JEFFERSON.
    1. Waters — Diversion—Injunction.
    An injunction to restrain the unlawful diversion of water from a mill will not be refused to one who has acted promptly in asserting his rights, on the ground that the injury to him from the diversion of the water will be trivial compared with that sustained by the persons seeking to make the diversion in case they are not permitted to do so.
    3. Same — Estoppel.
    A mill owner is not estopped to enjoin the maintenance of a ditch whereby water is diverted from his premises, where he forbade the digging of the ditch in the first instance, and, when it was continued, served upon those engaged in its construction a copy of an injunction issued in favor of his grantors in a similar controversy a number of years previously, although some 16 months were- occupied in the digging of the ditch, and it had been completed at the time the bill was filed.

      3. Same — Rights of Property.
    The diversion of water from a mill, without due process of law and without compensation, cannot he justified on the ground that it will result in the improvement of the highways and the reclaiming of marsh lands.
    Appeal from Hillsdale; Lane, J.
    Submitted June 18, 1897.
    Decided September 14, 1897.
    Bill by Frederick W. Stock against the township of Jefferson and George E. Porter to enjoin the maintenance of a drain. From a decree for complainant, defendants appeal.
    Affirmed.

      Frankhauser Bros., for complainant.

      Chester & Twiss, for defendants.
   Moore, J.

September 4, 1894, the complainant commenced this proceeding, praying for an injunction compelling the defendants to fill up a ditch they had dug to lower Pleasant Lake, and carry the water therefrom south and east into the St. Joseph river, and then into the Maumee, and then into Lake Erie; complainant alleging that the waters from Pleasant Lake had always run to the north and west, and through a chain of lakes and St. Joseph river to his mill, and from there on into the waters of Lake Michigan.

Prior to 1853 a flouring mill was built at Hillsdale, which mill was run by water taken from the St. Joseph river. This river has its source in a chain of lakes four or five in number, the largest of which is Baw Beese Lake, and the farthest of which is Lake Pleasant. In 1853 parties began to dig a ditch to carry the water in the direction in which the defendants have taken it. The then owners of the mill filed in the circuit court of Hillsdale county a bill praying for a writ of injunction to restrain the parties from pursuing their work. A decree was rendered in that case in accordance with the prayer of the bill. In 1869 the complainant became the owner of the mill in question, and has owned and operated it ever since. The defendant township and George E. Porter, highway commissioner, caused a ditch to be dug in the summers of 1893 and 1894, for the purpose of improving a highway in the township of Jefferson, in which there was a sink hole, which gave the township authorities a great deal of trouble. In the summer of 1893, while defendants were digging this ditch, complainant saw and talked with a number of those engaged in the work, and notified them that the water they were diverting belonged to him, and that he used it for the purpose of conducting his business in the city of Hillsdale; and on April 27, 1894, when defendants resumed their work on the ditch, complainant caused a copy of the decree that was made in 1853 to be served upon the highway commissioner, and forbade their continuing their work. As they failed to do so, this bill was filed.

The case was heard in open court. In addition to hearing the testimony, the trial judge visited the premises, and saw what had been done, and the topography of the country. The judge found that much of the water which naturally flowed out from Lake Pleasant and from the big marsh about one of the other lakes-would come down to the mill pond of the complainant if not diverted, and that Mr. Stock, as owner of the mill, had a right in the waters which naturally flowed from Lake Pleasant and this big marsh into his mill pond, and that the defendants were not justified in the action they had taken in digging this ditch, and the effect of it was to divert the water - from the mill, and granted a decree in the case, enjoining the defendants from diverting the waters which would naturally come to complainant’s mill pond, and directing that the ditch be filled up at a certain point, to a certain depth, from which decree defendants appeal.

While the testimony is conflicting, we have no doubt, from an examination of the record, that the conclusion of the learned trial judge that the digging of this ditch was without, legal right, and that its effect was to divert from complainant’s mill a very considerable quantity of water to which he was entitled, is fully justified by the evidence. There can be no question from the record that the complainant was legally entitled to the use of all the water that would naturally come to his mill pond. The defendants were not riparian proprietors on the stream, and there is no question of the adjustment of the rights of several riparian proprietors on the same stream of water. So far as defendants diverted water to which complainant Was entitled, they were trespassers.

It is the claim of the defendants that the loss to the complainant caused by the diversion of the water is trivial, while the damage the defendants would sustain if a permanent injunction is granted would be very great, and that, therefore, the injunction ought not to be allowed; citing Potter v. Street Railway, 83 Mich. 298, and cases there cited; Torrey v. Railroad Co., 18 N. J. Eq. 293; 10 Am. & Eng. Enc. Law, 799, and note; City of Logansport v. Uhl, 99 Ind. 539 (50 Am. Rep. 112). None of these authorities establish the doctrine that, where one trespassed against acts promptly after notice of the trespass, equity will not interfere, where the trespass is of a continuing nature, and is irreparable in its character. An examination of these cases will show either that it was doubtful if any damage would be done, or the complainant had not acted promptly in appealing to equity. It does not appeal to one’s sense of justice to say that the exercise of a right possessed is not of as much benefit to the possessor as the taking of that fight from the owner would be to the trespasser, and therefore the trespasser should be allowed to continue his trespass.

"We think it clearly appears from the testimony that a large amount of water has been diverted from complainant’s mill to which he was entitled, and that the diversion will continue if the action of the circuit judge is not sustained. It is doubtless true that many owners of lowlands about Pleasant Lake and the large marsh are benefited by the cutting of this ditch, but one man is not to be deprived of property rights because to do so would benefit others more than he is injured.

‘ ‘ It has always been settled that the owner of realty is entitled to the aid of equity to prevent permanent and continually-recurring injuries to the enjoyment of his property. To deprive him of such enjoyment is to deprive him of the property itself, wholly, or to the extent of the mischief. Neither can it be allowable for wrong-doers to rely on their own wrong to change or lessen his means of redress. When they do mischief, it is their own fault if they render a stringent remedy necessary, and they, and not the party injured, must take the consequences.” Koopman v. Blodgett, 70 Mich. 610, 618 (14 Am. St. Rep. 527); Hall v. City of Ionia, 38 Mich. 493; 1 High, Inj. § 804; Ang. Watercourses, § 447; Corning v. Nail Factory, 40 N. Y. 191.

In the case of Koopman v. Blodgett, supra, it is said:

“A person owning a suitable place for a mill site cannot be deprived of it because some one else has wrongfully interfered with the stream above him. Without either such a lapse of time as will bar suit or indicate acquiescence, or some act of estoppel, rights of property are not to be barred.”

In the case at issue, the complainant and his grantors had maintained a mill at this place for more than 40 years, and whenever an attempt was made to divert the water in the manner it has been diverted by the defendants the courts were appealed to. Counsel say complainant stood hy, and allowed defendants to incur large expense, and that he is estopped from appealing to equity now. We cannot agree with counsel in their contention. The defendants knew the complainant was opposed to what they did. He forbade their acts, and, when they continued them, he caused a copy of a decree made more than 40 years ago, in favor of his grantors, to be served upon them, and, when they paid no attention to all this, without unreasonable delay he appealed to the court. If they have expended considerable sums of money in committing this trespass, it is their own fault, and they must lose it.

It is urged very earnestly by counsel that Mr. Stock’s right to maintain his dam and to use the water that would naturally come to his mill must give way to the right of the public to improve the highways, to drain lands, and to generally improve the country. It is sufficient reply to this argument to say that it has long been the fundamental law of the land that a man is not to be deprived of his property without due process of law, and without compensation.

Decree is affirmed, with costs.

The other Justices concurred.