text:
    McPHERSON v. BRISTOL.
    1. Judgments — Joint Defendants.
    Where, after a judgment against joint defendants, one defendant severs for the purpose of prosecuting a writ of error, and, upon a second trial, judgment again passes for the plaintiff, with no discontinuance as to the nonappealing defendant, the new judgment must he entered against both.
    2. Same — Amendment—Appeal.
    Where judgment should have been entered against two joint defendants, but was, without objection below, entered against one only, the appellate court will treat it as having been entered against both, the trial court having authority to amend the judgment.
    3. Partnership — Purchase for Nontrading Firm — Liability of Partners.
    Express authority need not be shown in order to hold a member of a nontrading firm for the price of a horse purchased by his copartner, and necessary to the proper conduct of the firm business.
    4. Same —Theory of Defense —Recoupment —Requests to Charge.
    Where a partner, sued on a debt contracted by his copartner, defends on the theory of nonliability, and fails to demand recoupment of damages, he cannot complain of a. refusal to charge that proof that the property was of little value was competent as tending to show the seller’s bad faith.
    Error to Livingston; Smith, J.
    Submitted October 6, 1899.
    Decided December 21, 1899.

      Assumpsit by William McPherson, Jr., and Alexander McPherson against John Bristol, impleaded with J. S. Day, upon a promissory note. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      William P. Van Winkle and W. E. Scott (Bollin H. Person, of counsel), for appellant.

      Louis E. Howlett and Judd Yelland, for appellees.
   Long, J.

This is an action of assumpsit, the declaration containing all the common counts, with a copy of note attached. Defendants appeared separately, and filed separate pleas. Defendant Bristol, with his plea, filed an affidavit denying the execution of the note. Demand for bill of particulars was made, and, among other items set forth in the bill served, were:

“One promissory note, dated June 24, 1896, given by J. S. Day and John Bristol to C. L. Cook, or bearer, for $200.
“Money loaned by O. L. Cook to J. S. Day and John Bristol, which account has been assigned to the plaintiffs.”

The jury upon the first trial returned a verdict against both defendants, and judgment was entered thereon for the amount of the note and interest. Defendant Bristol alone appealed to this court, and the judgment was here reversed. 115 Mich. 258. The case has again been tried in the circuit, and a judgment given for plaintiffs; not, however, for the amount of the note, but for the purchase price of the horse which the note represented.

The facts are sufficiently set out in the former opinion, and only such further facts will be stated as are necessary to an understanding of the points now here involved. It was stated in the former opinion that the questions presented were:

“1. Was there a partnership in fact?
“2. If there was no partnership in fact, was there such a holding out to the world as to justify those dealing with the members in believing that such a partnership existed ?
“3. If there was a partnership in fact, was it a trading or nontrading partnership ?
“4. If there was such a holding out, was it a holding out of the firm which justified strangers in believing that authority existed to execute the note in question?”

This court then said:

“In nontrading firms one partner does not generally possess the power to bind the partnership by way of contracting debts and executing commercial paper. * * * The power to make commercial paper by a member of a nontrading firm exists only when it is expressly conferred, or when the giving of the paper is necessary to carry into effect an original purpose for which the partnership was formed.”

At the close of the testimony on the present trial, the plaintiffs asked the court to submit the following special questions to the jury, and they answered the same:

“1. Was there a partnership agreement of any kind existing during the years 1895 and 1896 between Mr. Day and Mr. Bristol?
“A. Yes.
“2. If there was a partnership agreement existing between these parties, did that agreement contemplate that these parties should raise fruit for the market, buy and sell fruit for a profit, or to prepare produce for sale or market at a profit?
“A. No.
“3. Did Mr. Bristol conduct himself, or knowingly permit Mr. Day to so conduct himself, prior to June 24, 1896, as to lead the people in general, and Mr. Cook in particular, to believe that a partnership agreement of a trading character existed between Mr. Day and Mr. Bristol?
“A. No.
“4. If there was a partnership agreement of some kind existing between Mr. Day and Mr. Bristol, was the horse purchased of Mr. Cook, on or about the time it was purchased, reasonably necessary to carry on the business of the firm ?
“A. Yes.”

Defendant submitted the following special questions, which were answered by the jury:

“1. Did John Bristol expressly authorize J. S. Day to execute the note in question ?
“A. No.
“2. Did John Bristol expressly authorize J. S. Day to borrow $25 in money of C. L. Cook, and pledge the credit of said Bristol therefor ?
“A. No.
“ 3. Did John Bristol expressly authorize J. S. Day to purchase the horse of C. L. Cook, and pledge the credit of said Bristol therefor ?
“A. No.
“4. Was said $25 necessary to carry into effect an original purpose for which the partnership then existing between Mr. Day and Mr. Bristol was formed ?
“A. No.
“5.* Was the horse purchased by Day of- Cook necessary on the 24th day of June, 1896, to carry into effect an original purpose for which the partnership then existing between Day and Bristol was formed ?
“A. Yes.”

The jury returned a general verdict in favor of the plaintiffs of $202.59, which it appears was the price agreed by Day to be paid for the horse, with interest at 6 per cent.

The circuit court explained to the jury the distinction between a trading and a nontrading firm, and directed them that, if this was found to be a trading firm, or held out as such, the plaintiffs should recover on the note. The court then said further:

‘ ‘ I charge you that each member of a nontrading partnership has the legal right to purchase articles which are necessary in the business, and by the said purchase to bind himself and the other member of .the firm for the payment thereof. * * * It makes no difference in this case how many horses Mr. Bristol individually owned, or how many horses Mr.. Day individually owned. If you find that the horse in question was reasonably necessary in carrying on the business of the firm, then Mr. Day had the legal right to purchase it, and fix the price therefor, and to bind defendant Bristol thereby. * * * -If you find that the horse in question was reasonably necessary in carrying on the business of the firm, and that Mr. Day agreed to pay Mr. Cook $175 therefor, your verdict should be for the plaintiffs for that amount, and interest at 6 per cent, from Juné 24, 1896.”

The verdict and judgment were entered against Bristol alone.

1. It is contended by counsel for defendant Bristol that it was error to enter judgment against Bristol alone. There can be no doubt but that judgment should have been entered against both defendants. It could not stand against Bristol alone. If he be liable at all, it is as a partner of Day. This question does not seem, however, to have been raised in the court below. The judgment on the first trial was against both. Defendant Bristol severed for the purpose of bringing the case to this court. The case has been again tried. No discontinuance has been entered against Day. It is conceded by counsel for defendant Bristol that the proceedings on the present trial were in fact against both defendants, and the judgment should have been so entered. The judgment should be amended in the trial court, and will be treated here as having been entered against both.

2. The special findings of the. jury are not so inconsistent as-to justify a reversal of the case. Defendant Bristol admits that he was in partnership with Day. There is no doubt whatever as to certain business of that partnership. It was raising and selling fruit from a 40-:acrefarm. Day was intrusted with the management of the business. It is evident that the business could not be carried on without the use of horses. There was evidence tending to show that the horse was necessary to the proper conduct of the business. This question was properly left to the jury. The fact that no express authority was given by Bristol to Day to purchase the horse was not fatal to the action.

3. Defendant Bristol gave notice, with his plea, that the horse was represented by Cook to be sound, and worth $175; that Cook knew this was untrue; that the horse was not sound; and that he would recoup damages against any claim proved by the plaintiffs. At the conclusion of the testimony, defendant’s counsel requested the court to instruct the jury that, if they should find that the horse was not worth $175, and that Cook knew that fact at the time of the sale, that would be evidence they might consider tending to establish Cook’s bad faith, and tending to prove conspiracy between him and Day to defraud defendant Bristol. Defendant introduced evidence tending to show that the horse was not worth to exceed $50. Under this notice of recoupment he might have been reimbursed the difference between the actual value and the purchase price, provided he had been able to establish fraud and conspiracy on the part of Day and Cook. Under the findings of the jury, the horse was properly bought, and became the property of the partnership. The law would not permit the defendant to retain the horse, and escape all liability by showing fraud and conspiracy in the sale. Defendant preferred no request for the recoupment of damages. The case evidently was not tried upon that theory, but upon the theory that there was no liability whatever. Under this state of facts, the request was properly refused.

The judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    BRITTON v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroad Crossings — Care in Approaching — Pleading and Proof — Variance.
    Where plaintiff, who had alleged in his declaration that, as he approached a railroad crossing,' he slowed his horse down to a very slow walk, and looked and listened for trains, and that he continued so to do until he was struck by a train, which he had been unable to see because of obstructions, — was given leave to amend his declaration so as to cover testimony that he stopped his horse, leaned forward, and looked out at the side of his closed carriage, and refused so to amend, the ad" mission of the testimony was reversible error. '
    2. Same — Signals — Conflicting Evidence — What Constitutes.
    The testimony of the occupants of a closed carriage, struck by a train at a railroad crossing, that, although they stopped-two rods from the track, and listened, they heard no crossing signals, does not rise, to the dignity of evidence, so as to take the question to the jury, where all the members of the train crew, and a bystander, an entirely disinterested witness, testify positively that the signals were given, and state the reasons for their recollection.
    3. Same — Looking and Listening — Contributory Negligence.
    The duty of one about to cross a railroad track, to look and listen for approaching trains, is not discharged by stopping his horse 30 feet from the track, and looking and listening, but he should look and listen for the entire distance; and where one, after so stopping, rode the 30 feet in a closed carriage, paying no heed to the light cast upon the track by the headlight of an engine, for the reason that he thought it the reflection of an electric lamp located 400 feet away, he was guilty of contributory negligence, precluding a recovery for injuries caused by the train’s striking him at the crossing.
    Error to Shiawassee; Smith, J.
    Submitted October 6, 1899.
    Decided December 21, 1899.
    Case by Martinus S. Britton against the Michigan Central Railroad Company for personal injuries caused by a collision with defendant’s train at a highway crossing. From a judgment for plaintiff, defendant brings error.
    Reversed.

      B. A. Montgomery, for appellant.

      Watson & Chapman, for appellee.
   Long, J.

1. It is a common and just rule of pleading that the plaintiff must stand upon the averments in his declaration. He cannot allege one case of negligence, and prove another. He cannot be permitted to show a state of facts entirely different from that charged in the declaration. Plaintiff averred that, as he approached the crossing,—

“He looked and listened for an approaching train, slowed his horse down to a very slow walk, and continued to look and listen for an approaching train as he neared the point where said railway crossed Chipman street, at which time it was so dark that said plaintiff could not see; that his view was obstructed by the line of freight cars above mentioned; * * * and he began so listening when he was within about 20 rods' of said crossing, and continued to so listen until he was struck by said train on ■said crossing, and he did not hear any train approaching said crossing; but, just as the horse and part of the buggy in which he was riding got upon said crossing, they were struck by said train.”

Upon the trial plaintiff testified that he and his companion stopped the horse, leaned forward, and looked out at the side of their inclosed carriage. This was objected do upon the ground that it was directly contrary to the facts set up in the declaration. The court evidently was at first inclined to so hold, and gave plaintiff permission to amend his declaration. This was refused, and the court admitted the testimony. I think this was error for which the judgment should be reversed.

2. I think the plaintiff did not make out a case of negligence on the part of the defendant. The engineer, fireman, conductor, brakeman, and baggageman all swear positively that the crossing signals were given, and state the reasons for their recollection. In addition to this, an entirely disinterested witness, a merchant, testified that he stood in front of his store, about 200 feet south of the crossing, saw the horse and buggy come along, heard the train come, heard the whistle blow, and watched the parties until they were struck at the crossing. The only testimony opposed to this is that of the plaintiff and his companion, who were, riding in this inclosed carriage, who stopped about two rods from the sidetrack — not the main track — for about a quarter to a half minute. They were not at all certain how far they were from the track. A strenuous effort was made on the part of the plaintiff’s attorneys to locate them as near the track as possible when they stopped. They immediately started up, and went from there to the track in this inclosed carriage. I do not think this testimony rises to the dignity of evidence, in the face of six witnesses in a position to know, who swear positively that the signals were given.

3. I think the plaintiff was guilty of contributory negligence. He knew he was approaching a dangerous place, where the train was at any time liable to cross. He rode at least 30 feet, and probably more, without taking any steps to ascertain if a train was approaching. In a second he could have thrown back the top of his carriage,, which would have given him and his companion a clear and unobstructed view. He saw a light shining upon the track, and thought it was the light of an electric lamp located about 400 feet away. It was, in fact, from the headlight of the engine. It is also worthy of note that eight .witnesses, some of whom had no connection whatever with the railroad, and therefore had no interest, and were unimpeached, testified that the plaintiff said, shortly after the accident, that he saw the train and heard the signals, but thought he had time to get across. Plaintiff admits that, if he had stopped again within a rod of the track, he would undoubtedly have seen the reflection of the light and heard the train. Considering the situation,, the darkness of the night, the liability of trains to approach at any moment, it was his duty to keep on the alert from the time he knew he was approaching the track, which he testifies they did when within about four rods, until they reached the track. Does the law justify a party in riding a distance of 30 feet or more from a railroad track without availing himself of the means at his disposal to look and listen ? Has he performed his duty by once stopping and looking and listening F According to plaintiff’s own testimony, while he was riding these two rods the train would go sixteen rods. Clearly, his duty was to look and listen for the entire distance, and he might have done so, without any inconvenience to himself, by simply pulling the braces of the.top of his buggy, and letting it back. Phillips v. Railway Co., 111 Mich. 274 (66 Am. St. Rep. 392). In my judgment, he was guilty of contributory negligence.

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

Grant, C. J., and Hooker, J., concurred with Long, J. Moore, J., concurred in the result. MONTGOMERY, J., did not sit.


author: Montgomery, J.

text:
    REID, MURDOCH & CO. v. PARKS.
    1. Replevin — Judgment.
    3 Comp. Laws 1897, § 10660, providing that in replevin, if the goods and chattels specified in the writ shall not be found, or shaU not be delivered to the plaintiff, he may proceed in the action for the recovery of the same, or the value thereof, does not authorize a recovery for goods not in defendant’s possession when the writ was sued out.
    2. Same — Possession—Presumption.
    Goods not in the possession of defendant in replevin on the day the writ issued were presumably not in his possession when the writ was sued out.
    3. Same — Partial Recovery — Bar—Assumpsit.
    A judgment in replevin for such portion of the goods described in the writ as were in defendant’s possession when -the writ was sued out is not a bar to an action of assumpsit for the value of the remainder.
    4 Same — Costs.'
    Nor should the fact of the former suit deprive plaintiff of his right to costs in the latter.
    Error to Berrien; Coolidge, J.
    Submitted October 24, 1899.
    Decided December 21, 1899.

      Assumpsit by Reid, Murdoch & Company against Jerome Parks for goods sold and delivered. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      O ’Sara & O ’Hara, for appellant.

      Charles W. Stratton and Lawrence C. Fyfe, for appellee.
   Montgomery, J.

The plaintiff, from July 9, 1897, to August 19, 1897, inclusive, sold to the defendant various bills of groceries, amounting in the aggregate to $303.43 in value. On September 3, 1897, the plaintiff commenced an action of replevin to recover these goods on the claim that they were obtained fraudulently, and with intent not to pay for tliem. The writ and declaration covered all the goods sold between these dates, but the record shows that only a portion of the goods, amounting to $86.85, were recovered. The replevin case proceeded to judgment, which was in favor of the plaintiff for six cents damages and costs. There was no recovery for the value of the goods not replevied. The present action is brought to recover the value of the goods not recovered in the action of replevin, the plaintiff waiving the tort, and suing in assumpsit. The defendant brings error, urging two grounds: First, that the replevin suit is a bar to this action; second, that, in any event, the plaintiff should not recover costs in this action.

If the plaintiff might have recovered for these goods in the former action, that action should be held a bar to the present. Bond v. Markstrum, 103 Mich. 11. Whether the plaintiff could have recovered for the goods in that action depends upon the construction to be given sections 10648, 10660, 3 Comp. Laws 1897. The first of these sections provides that replevin may be brought for the recovery of goods or chattels unlawfully taken or unlawfully detained. The latter section provides that, if the goods and chattels specified in any writ of replevin shall not be found, or shall not be delivered to the plaintiff, he may proceed in the action for the recovery of the same, or the value thereof. Section 10676 prescribes the form of judgment in such cases. It has been repeatedly held that these provisions do not authorize a recovery for goods not in the possession of defendant when the action of replevin is brought. Section 10654 requires an affidavit to be attached to the writ, stating, among other things, that “such goods and chattels are unlawfully detained by the defendant in such writ.” In Hinchman v. Doak, 48 Mich. 168, the court said:

“When the defendant established the fact that he was not in possession when suit was instituted, he showed that he was entitled to have the case dismissed out of court, and to recover his costs.”

See, also, Reid, Murdoch, & Co. v. Ferris, 112 Mich. 693.

The evidence on this trial shows that the goods not recovered in the action of replevin were not in defendant’s possession on the day the writ issued. This testimony was not disputed, and the only reasonable inference is that the goods were not in his possession when the writ was sued out. They could not, therefore, have been recovered in that action. This being so, there would be no more propriety in treating such action as a bar than in so regarding a premature action. See "Wells, Res Adj. § 454. The question involved in this case has been, in effect, decided by this court. Farwell v. Myers, 59 Mich. 183, 64 Mich. 234; Reid, Murdoch & Co. v. Ferris, 112 Mich. 693.

The same considerations dispose of the question of costs raised by defendant.

Judgment is affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    BLADES v. BOARD OF WATER COMMISSIONERS OF DETROIT.
    1. Municipal Corporations — Waterworks—System of Support —Change by Statute — Insufficient Title.
    Act No. 408, Local Acts 1899, entitled “An act to transfer to the city of Detroit the title to all the property, of every name and nature, now owned, operated, and controlled by the board of water commissioners of the city of Detroit under [ an act of 1853 and amendments], and to give to said city of Detroit the possession, control, and operation and management of said property,” and embracing provisions for the supplanting of the existing system of waterworks, supported by a levy of water-rates upon all consumers, by a system involving free water to the municipality and for domestic consumption, to be provided for by a general tax levy, is in contravention of article 4, § 20, of the Constitution, providing that no law shall embrace more than one object, which shall be expressed in its title.
    2. Same, — Compulsory Taxation for Looal Purposes — II- - LEGALITY.
    The provisions of section 9 of Act No. 408, Local Acts 1899, which constitute the mayor and certain other officers of the city of Detroit a board for the purpose of estimating annually, and reporting to the common council, the amount of money which they deem a just proportion of the total amount required for the support of the waterworks, as previously determined by the council and board of estimates, for the expense of furnishing water for domestic and other specified uses, and which provide for the levy and assessment of the proportionate amount so reported upon the taxable property of the city, without submission to the board of estimates or to a vote of the frpemen, are unconstitutional and void, as imposing taxation for a purely local purpose without the consent of the electors or their chosen representatives.
    3. Same — Water Benefits — Frontage.
    The provision of section 6 winch contemplates an assessment against the individual lot-owner of his proportionate share of the cost of laying water-pipe in the block in which his lot is situated, such proportion to be ascertained “by finding the ratio which the narrowest frontage of said lot bears to the entire frontage on both sides of the street or alley in the block,” is also illegal.
    4. Same — Construction op Statutes.
    The unconstitutional scheme of taxation provided for in sections 6 and 9 of Act No. 408, Local Acts 1899, is so interwoven with the entire frame of the act, that the whole act must fall.

      Certiorari to Wayne; Carpenter, Lillibridge, Hosmer, .and Waite, JJ.
    Submitted October 24, 1899.
    Decided December 21, 1899.

      Mandamus by Francis A. Blades, comptroller of the -city of Detroit, to compel the board of water commissioners of said city to turn over to him the books, papers, and property of the waterworks system, in accordance with the provisions of Act No. 408, Local Acts 1899. From an •order denying the writ, relator brings certiorari.

    Affirmed.
    In 1853 the legislature passed an act (Act No. 90, Laws 1853) entitled “ An act to amend the laws relative to supplying the city of Detroit with pure and wholesome water,” which act was approved February 14, 1853. ' Under this act the present board of water commissioners of the city of Detroit was organized, and it has ever since conducted its affairs under that act and acts amendatory thereof. The material provisions of that act are as follows:
    “Section 1. The People of the State of Michigan enact, That Shubael Conant, Henry Ledyard, Edmund A. Brush, William B. Noyes, and James A. Van Dyke be and they are hereby named and constituted as a ‘ board of water commissioners of the city of Detroit,’ who, and their successors in office, shall be known by the name and style of the ‘Board of Water Commissioners of the City of Detroit,’ and by that name shall have power to contract, sue, and be sued, to purchase, hold, and convey personal and real estate, to have a common seal, to alter and change the same at pleasure, to make by-laws and ordinances, and do all legal acts which may be necessary and proper to carry out the effect, intent, and object of this act.
    “Sec. 2. The said commissioners shall hold their offices respectively for the term of three, four, five, six, and seven years from the first Tuesday in May of the year one-thousand eight hundred and fifty-three. Said commissioners shall, within sixty days after the passage of this act, decide by lot their respective terms, which decision shall be notified by a written statement to the common council of said city, which shall be entered of record on the books of the said common council; and at their first regular meeting in the month of April in the year one-thousand eight hundred and fifty-six, and annually thereafter, the said common council shall elect and appoint a citizen of said city, being a qualified voter and a freeholder, as a commissioner, who shall hold his office for five years from the first Tuesday in the May next following : Provided, that this section shall not be so construed, as to disqualify any member of the said board for reappointment; and in case of the death, or resignation, or removal from the city of any of said commissioners, the common council shall, as soon thereafter as possible, appoint to fill such vacancy, for the remainder of the term, some citizen of said city, being a qualified voter and freeholder.”
    “Sec. 4. The said commissioners shall have power to loan from time to time, upon the best terms they can make, after giving public notice by advertising in the city papers for sixty days, and in one paper in Boston, and two in New York, for such time as they shall deem expedient, a sum of money, not exceeding two hundred and fifty thousand dollars, upon the credit of said city of Detroit, and shall have authority to issue bonds pledging the faith and credit of said city for the payment of the principal and interest of said bonds; which bonds shall issue under the seal of said board of commissioners, and shall be signed by them, or a majority of them, and bearing interest not exceeding eight per cent, per annum. And it shall be the duty of said commissioners to cause to be kept an accurate register of all the bonds issued by them, showing the number, date, and amount of each bond, and to whom the same was issued; and it shall also be their duty to cause to be furnished to the auditor of said city a copy of such register as soon as the same is made, which shall be preserved by said auditor, and copied into the records of said city.
    “Sec. 5. It shall be the duty of said commissioners to examine and consider all matters relative to supplying the city of Detroit with a sufficient quantity of pure and wholesome water, to be taken from the Detroit river, or such other source as may be deemed expedient, for the use of its inhabitants.
    ‘ ‘ Sec. 6. Said commissioners shall have, power to employ superintendents, clerks, collectors, assessors, engineers, surveyors, and such other persons as, in their opinion, may be necessary to enable them to perform their duties under this act, and to specify the duties of such persons so employed, and to fix their compensation: Provided, that in no case shall said commissioners receive, directly or indirectly, any compensation for their own services.
    “Sec. 7. Said commissioners shall have power, and it is hereby made their duty, as soon as may be after the necessary funds have been procured as herein provided, to purchase such land and materials, and to construct such reservoirs, buildings, machinery, and fixtures, as shall be deemed necessary or desirable to furnish a full supply of water for public and private use in said city.
    “Sec. 8. Said commissioners shall have power to construct reservoirs, jets, and fire hydrants at such localities in said city as they may deem expedient and necessary, and to lay pipes in and through all the alleys and streets of said city; and also to construct in such localities as they may deem expedient, not exceeding one to each block, hydrants for public use, and to keep the same in repair; and also, with the consent of the common council of said city, to construct fountains in the public squares, or such other public grounds of said city as they shall deem expedient.
    “Sec. 9. Said commissioners shall, from time to time, cause to be assessed the water-rate to be paid by the owner or occupant of each house or other building having or using water, upon such basis as they shall deem equitable; and such water-rate shall become a continuing lien, until paid, upon such house or other building, and upon the lot or lots upon which such house or other building is situated.”
    “Seo. 13. Whenever the receipts of said board, from water-rates or other sources, shall accumulate so that there shall be a surplus, amounting to a sum of hot less than five hundred dollars, not needed for the payment of the current expenses or the extension of said works, it shall be the duty of the commissioners, together with the auditor of said city, who shall be associated with them for that purpose, to invest the same in some safe stocks, or upon other real or personal securities. Such investment shall be made in the name of said board, and in such manner as to make the same available for the payment of interest and principal of the bonds issued as aforesaid as soon as may be. It shall be the duty of said commissioners to pay the interest on such bonds, and, as fast as such surplus fund will permit, also the principal, as the bonds become due, as funds for such purpose shall from time to time accumulate. The said commissioners may, when they have funds for that purpose, purchase the bonds so issued as aforesaid, whether the same have become due or not; and in case the said commissioners shall at any time not have funds on hand sufficient to meet any of the said bonds at the time when they shall become due, they shall have the right to issue new bonds, for such amount and on such time as they shall deem expedient, in the place of bonds so becoming due as aforesaid; the said old bonds to be canceled in the registry thereof, and the said new bonds to be recorded in the manner hereinbefore provided.”
    “Sec. 24. It shall be the duty of said commissioners, at least thirty days before the time fixed by the ordinance of said city for assessing city taxes, to make a special report to the common council of said city, what, if any, sum will be needed by said commissioners, over and above the revenue of said board, to meet the payment of interest or principal of the bonds issued as aforesaid; and it shall be the duty of the common council to raise said amount by special tax in the same manner as general taxes, to be designated a water tax; and the said amount shall be paid over to said board by the treasurer of said city.”
    “Sec. 26. All lands, lots, docks, buildings, machinery, pipes, logs, hydrants, and all fixtures whatsoever, purchased, designated, or used for the present waterworks of the said city of Detroit, are hereby conveyed to and vested in said board of commissioners, who shall have full power to regulate, protect, and control the same; and all the authority, rights, and power heretofore exercised and had by said city over said works are hereby continued to and vested in said board of commissioners.”
    By subsequent acts of the legislature, the respondent was authorized to issue bonds for the purpose of extending and improving the waterworks. In 1873 a loan of a million dollars was authorized. Section 2 of that act (Act No. 302, 3 Laws-1873) is as follows:

      “If the said commissioners shall, at any time, not have funds on hand sufficient to meet any of the said bonds at the time when they shall become due, they shall have the right to issue new bonds, for such amount and on such time as they shall deem expedient, in the place of the bonds so becoming due as aforesaid, or such part thereof as said commissioners shall be unable then to pay. The said old bonds so taken up shall be canceled, and such cancellation recorded or otherwise indicated in the registry thereof, and the said new bonds shall be recorded in the manner hereinbefore provided. It shall be the duty of the common council, and said council is hereby empowered, to cause to be levied and assessed annually, upon the taxable property in said city, the sum of seventy-five thousand dollars, the same to be included in each annual tax assessment levied on said city, and the same shall not require or be conditioned upon the vote of the freemen of said city. The said sum shall be collected the same as other general taxes, and shall, from time to time, as received, be paid over to said board by the treasurer of said city; and the moneys so paid over by said treasurer to said board shall be used and appropriated by said board, first, in payment of tbe interest of said bonds; second, if there be any surplus after payment of the interest accruing during the year, said moneys shall be paid into and form a part of the sinking fund of said board, and used and appropriated to the payment of said bonds when due, or to the purchase of the same, or of any other of the bonds heretofore issued by said board, as the said board may, from time to time, think expedient.”
    The purpose of this loan was the removal of the waterworks outside the territorial limits of the city of Detroit. In 1887 an act (Act No. 539, Local Acts 1887) was passed which, among other things, authorized the respondent to accept a bequest made to it by Chauncey Hurlbut, who had been for many years the president of the board.
    The value of the property under the control of the commissioners January 1, 1899, was $6,030,963.29. Up to 1875 it had been supported by water-rates alone. From that year to the present a general per annum tax has been levied, under the direction of the common council, under the section last above quoted, amounting to from about $18,000 to about $74,000.

      In 1899 the legislature passed an act (Act No. 408, Local Acts 1899) entitled:
    “An act to transfer to the city of Detroit the title to all the property, of every name and nature, now owned, operated, and controlled by the board of water commissioners of the city of Detroit, under the powers, rights, and privileges granted said board of water commissioners by an act entitled ‘An act to amend the laws relative to supplying the city of Detroit with pure and wholesome water/ approved February fourteenth, eighteen hundred fifty-three, and the acts amendatory thereto, and to give to said city of Detroit the possession, control, and operation and management of said property, and to repeal all acts and parts of acts in conflict herewith.”
    Section 1 provides for the transfer of all the property, authority, rights, and powers of the board of water commissioners to the city of Detroit, and provides that the operation, extension, and improvement of the system shall be under the direction and supervision of the board of public works.
    Section 2 provides for the laying of pipes, mains, etc., in the streets and through private property; defining the proceedings to be instituted for condemnation.
    Section 3 provides for the purchase of lands, and the erection of buildings and machinery.
    Section 4 provides for the assumption by the city of Detroit of the bonded and other indebtedness of the board of water commissioners, and also of all lawful contracts entered into by said board of commissioners, and for the prosecution of all suits then pending.
    Section 5 provides for the erection of drinking hydrants for public use.
    Section 6 provides for the erection of a separate department of the board of public works, to be known as the “Water Department” thereof, and for the employment of superintendent, clerks, etc.; for the removal of the superintendent ; for the classification of the work of the department, and the keeping of accounts. It also contains the following provisions:

      ‘ ‘ It shall keep a separate account of the cost of laying distributing pipes, aqueducts, and mains hereafter laid, so that the cost thereof in each block may be ascertained at any time, and so that, whenever a pipe or main larger than six inches in diameter is laid, the cost of laying the six-inch pipe in each block, had it been laid, may also be ascertained. The just proportion of the cost of laying said six-inch pipes shall be assessed to each lot benefited. Such just proportion shall be ascertained by finding the ratio which the narrowest frontage of said lot bears to the entire frontage on both sides of the street or alley in the block where said lot is located. The amount of such just proportion due from each lot, when ascertained, shall be assessed as a special assessment upon such lot. The common council shall provide by ordinance for the collection of all such special assessments. Lots already supplied with water shall not be subject to special assessment for water-pipes hereafter laid. No lot shall be supplied with water from any pipe, main, or aqueduct hereafter laid, without there is first paid to the city treasurer the just proportion of the cost of laying a six-inch pipe in the street or alley on which said lot abuts, with interest thereon from the time said pipe is laid. Such money, when paid, shall be credited to the water department construction fund.”
    Section 7 provides for the distribution of water outside the city.
    Section 8 provides for a division of the revenues and moneys of the water department of the board of public works into separate funds.
    Sections 9 and 10 are as follows:
    “Sec. 9. It shall be the duty of the board of public works to transmit to the common council of the city of Detroit, on or before the fifteenth day of February in each year, an estimate of the amount of moneys which said board may deem necessary for improving and enlarging the pumping works and plant of the waterworks of the city of Detroit; also an estimate of the amount of money said board may deem necessary to pay the cost of extending water mains and pipes, and for any other purpose essential to the proper maintenance and operation of the waterworks and water system of said city. Such estimates, or so much thereof as the common council shall approve, shall be submitted to the approval of the board of estimates, at the meeting thereof required by law for the approval of annual taxes voted by said common council ; and so much of said estimates as shall be approved by the board of estimates shall be placed upon the general assessment rolls, and shall be assessed, levied, and collected the same as other city taxes. Said money, when collected, shall be paid into the city treasury, and shall be credited to the construction fund of the water department. They shall also transmit to the common council, on or before the fifteenth day of February of each year, an estimate of the total amount of money they deem necessary to pay the cost of maintaining and operating the water plant for the ensuing fiscal year, which shall include all necessary repairs. Such estimate, or so much thereof as the common council and board of estimates shall approve, shall be levied and collected as hereafter provided.
    “The board for fixing water-rates, as provided for in section ten of this act, shall prepare and transmit to the common council, on or before the first day of May in each year, an estimate 'of the amount of money they deem a just proportion of the total estimate for maintenance as a reasonable charge for the expense of furnishing water for domestic purposes to the inhabitants of the city of Detroit, such domestic purposes to include such use,of water in and about places of residence as are usual for household purposes; and for water used for water-closets and washroom facilities in all buildings used wholly or in part for other than residence or household purposes; to the city of Detroit, including its agencies and municipal boards, the Detroit house of correction, the public schools, and such charities as the common council shall have determined to exempt from the payment of water-rates, — which estimate shall be in detail, specifying the objects of such expenditure, the sums desired for each, and the reasons therefor. It shall be the duty of the common council to cause to be levied and assessed, upon the taxable property of the city, the sum so stipulated, as contemplated in the preceding paragraph, and the same shall not be submitted to the board of estimates or to a vote of the freemen of the city. When such tax is collected, it shall be paid into the city treasury, and credited to the water department maintenance fund. The balance of the total estimate for operating expense shall be assessed as water-rate, to be paid by the owner or occupant of each house or other building having or using water, and against any persons using water, except for domestic purposes, in the city of Detroit, upon such basis as they shall deem equitable; and such water-rate shall become a continuing lien, until paid, upon such house or other building, and upon the lot or lots upon which the house or other building is situated; and all such water-rates, when collected, shall be paid into the city treasury, and credited to the water department maintenance fund.
    “Any surplus of moneys remaining in the maintenance fund at the end of any fiscal year shall be applied to and credited to the maintenance fund of the ensuing fiscal year, and shall be used for no other purpose. Any surplus of money remaining in the construction fund at the end of any fiscal year shall be applied to and credited to the construction fund of the ensuing fiscal year, and shall be used for no other purpose. On and after the first day of July, eighteen hundred ninety-nine, the water-rates, as heretofore levied and collected by the water commissioners, shall continue to be levied and collected under the supervision of the board of public works, until the first day of July, nineteen hundred, when said rates shall cease, and thereafter the water-rates shall be assessed and collected as provided for in this act.
    “Seo. 10. The superintendent of the water department, the mayor, the president of the board of public works, the city comptroller, and the city treasurer shall constitute a board for fixing water-rates, which shall, on or before the • first day of May of each year, fix a schedule of the water-rates to be collected for the ensuing'fiscal year, which schedule shall comply with the requirements of the preceding section. The water-rates so fixed shall be collected by the receiver of taxes in such manner and at such times as shall be provided by an ordinance by the common council.”
    Section 11 provides for an annual report by the city comptroller of the financial condition of the water department, and provides for access to the books for that purpose.
    Section 12 provides for a distribution of the revenue received from the house of correction, and that all the bonds mentioned and provided for in this act shall continue to be exempt from the charter provision limiting the bonded indebtedness of the city.
    Section 13 provides a penalty for injuring any of the property of the waterworks.

      The act contains no repealing clause.
    The respondent refused to turn over to the relator the books, property, etc., under its control. Thereupon he applied to the circuit court for the county of Wayne for a writ of mandamus to compel such delivery. The case was there heard before four of the circuit judges, three of whom (Judges Carpenter, Lillibridge, and Hosmer) held the law to be void. The majority opinion held that the scheme of taxation provided in section 9 of the act is unconstitutional, because, in a matter purely local, the power of taxation was conferred upon a board appointed by the legislature, in which the taxpayers and freemen of the city were allowed no voice, either by direct vote or by those chosen to represent them for that purpose, and that this unconstitutional scheme was so interwoven with the entire frame of the act that the entire act must fall. In a concurring opinion filed by Judge Hosmer, he held that the object of the law was not expressed in its title, and that the act was, for this reason, void. Judge Waite dissented, and, while he held that certain provisions were unconstitutional, he also held that the waterworks might be carried on and maintained as heretofore, and that the balance of the act could stand, without the unconstitutional provisions.

      Charles Flowers and Charles D. Joslyn (John J. Speed, of counsel), for relator.

      Fred A. Baker (Henry M. Du field, of counsel), for respondent.
   Grant, C. J.

(after stating the facts). The validity of the act of 1899 presents the sole question involved in this proceeding. Its validity is attacked upon numerous grounds. The only ones necessary to discuss and determine are involved in the following questions: (1) Is the object of the act expressed in its title, within section 20, art. 4, of the Constitution, that “no law shall embrace more than one object, which shall be expressed in its title?” (2) Is the scheme of taxation provided by the act valid ? (3) If not valid, can the act stand with this provision stricken out ?

1. The present board of water commissioners holds, and has possession of, this property as a trustee for the city. The city is the owner, just as effectually as though the ■deeds were made direct to it. Under the new act, the property is np more and no less the property of the city than it was under the old act. The legislature so understood; for section 1 declares the title to be conveyed to, and vested in, the city by virtue of the act. No deeds of conveyance or evidences of transfer from the board of water commissioners are required. The operation, extension, and improvement of the system, as provided in the act, are intrusted to the direction and supervison of the board of public works of said city, which is directed to have a separate department, to be known as the “Water Department of the Board of Public Works,” with power to employ superintendent, clerks, etc., and to specify their duties, their compensation to be fixed by the common council. The administrative control and management is transferred from the water board to the board of public works, the principal difference between the authority of the former board and the latter being that the latter is more under the control of the common council than the former; in other words, the board of water commissioners can do certain acts without the consent of the common council, whereas the board of public works cannot do them without such consent. We are not prepared to hold that, looking into the body of the act, its sole object is to transfer the control and management of the waterworks to the board of public works. It is unnecessary to decide this question.

It is pertinent here to determine what the object of the act is, as expressed in the title. It was not to transfer the title to the property to the city, for that the city already had. It was evidently to transfer and give to the city the “possession, control, and operation and management,” which had theretofore been exercised by the board of water commissioners. Does the title purport to contemplate a complete revision of the system by which the waterworks had been supported for nearly half a century, and the transfer of its management under rules and regulations radically different from those which had theretofore existed ? If this were an original act to authorize the city to establish a water department, and to provide for the control, operation, and management thereof, such title would undoubtedly be sufficient, as is clearly shown in People v. Mahaney, 13 Mich. 495, and People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103). We have given the two acts almost in full, so that the difference may be readily seen. The purpose of this constitutional provision is that legislators, and as well parties interested, may understand from the title that only provisions germane to the object therein expressed will be enacted. Would the title to this bill, as introduced in the legislature, when read by a taxpayer of Detroit, be notice to him that the system of supporting the waterworks was to be changed from that of water-rates to that of taxation? Would it be notice to the manufacturers and the business men of Detroit that they were to pay water-rates, while all the rest — a great majority — of the city were exempt, and were to have free water, and that they were to be taxed to furnish free water to their neighbors ? Clearly, no such object can be found in the title, which simply authorizes the transfer from one department of the city government to another, and gives to the transferee the possession, control, operation, and management thereof. Obviously, it would not naturally be inferred that the legislature, under such a title, intended to make the radical changes provided for in the body of this act. What is there to-indicate an intention to virtually abolish the water-rate system, and substitute taxation in its stead? or to provide free water to the inhabitants of the-city? or to give water to private individuals, and charge its cost to the taxpayers? As is well stated by Judge Hosmer in his, opinion, there is “no natural connection between the title of the act and the extraordinary provisions for raising the means necessary to defray the incidental expenses.” What we said in Grosvenor v. Duffy, 121 Mich. 220, is equally applicable here. See, also, Ryerson v. Utley, 16 Mich. 269. The fair inference to be drawn from this title is that the object is to take away the possession of the waterworks, and its control and management, from the board of water commissioners, and transfer them to the city, and that the body of the act would contain only such provisions as were essential to accomplish that object.

2. The method provided by this act for the support and maintenance of the waterworks is unconstitutional and Void. While the provisions of the act are somewhat incongruous, it is apparent that it imposes compulsory taxation for purely local purposes. The board established by section 10, to fix water-rates, is also, by section 9, directed to prepare and transmit to the common council an estimate of the amount they deem a just proportion of the total estimate for maintenance as a reasonable charge for furnishing water for domestic and other purposes therein specified. It is then made the duty of the common council to levy and assess upon the taxable property of the city the sum so fixed, and that it shall not be submitted to the board of estimates or to a vote of - the freemen of the city. The furnishing of water to the city and its inhabitants is a purely local matter, and it is not within the power of the legislature to compel taxation for that purpose, without the action of the freemen of the city or their chosen representatives. This question was fully and ably discussed in People v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202), which is the leading case in this State upon the subject. In an exhaustive opinion by Justice Cooley, where the attempt was made by the legislature to impose compulsory taxation for the maintenance of a park, he closes his discussion with the following pertinent language:

“No precedent entitled to respect can justify such a change of powers; for, from the very dawn of our liberties, the principle most unquestionable of all has been this: That the people shall vote the taxes they are to pay, or be permitted to choose representatives for the purpose.”

In a concurring opinion, Justice Campbell said:

“From time immemorial, every municipal government, properly so-called, and acting within its peculiar sphere, has acted through its common council, composed either of the burgesses or their representatives, subject in some cases to checks and vetoes, but not subject to legislation or final action in defiance of their own decisions. Their supremacy cannot be given up by themselves any more than it can be taken from them. No doubt the State can limit their powers, but it cannot transfer them. ”

The question' is there so thoroughly discussed that we deem it unnecessary to further consider the question. See, also, Commissioners of Parks & Boulevards of Detroit v. Common Council of Detroit, 80 Mich. 663.

The judges below all agree that the provision contained in section 6 for assessing the cost of laying a six-inch pipe in front of each lot is void, and in this opinion we concur.

3. The body of this act provides a complete revision and change in the system of maintaining and conducting the waterworks. The leading feature in it is the change from maintaining it by water-rates to that of taxation and free water. Nearly all its provisions are in conflict with the act of 1853. The leading feature in the body of the act is not the transfer from one department to another, but the complete change in the system. It cannot be said that the legislature intended simply to transfer the property, control, and management, and not to impose upon the new body the provisions incorporated for such management and the method for raising the necessary funds to sustain and carry it on. This would require the courts to say that the legislature intended to retain the old system if the new one could not prevail. This would amount to judicial legislation, and compel us to legislate into the act that which it does not contain. With these provisions eliminated, resort must be had to the old system of water-rates, which it was the clear intention of this act to substantially eliminate. The unconstitutionality of these provisions renders the whole act void. See Quinlon v. Rogers, 12 Mich. 168; Campau v. City of Detroit, 14 Mich. 276; Warren v. Mayor, etc., of Charlestown, 2 Gray, 99; Jones v. Robbins, 8 Gray, 339; Slanson v. City of Racine, 13 Wis. 398.

The judgment is affirmed.

. The other Justices concurred.


text:
    PRESTON NATIONAL BANK v. LEONARD.

    Fraudulent Conveyances — Husband’s Use of Wife’s Money— Evidence of Loan.
    Where semi-annual dividends upon stock belonging to a married woman, but purchased in part with her husband’s money, were, for a period of 12 years, turned over to the husband and used by him, without any understanding that they constituted a loan from the wife that he was expected to repay, a conveyance of property to the wife in repayment of the dividends, made after the circumstances of the parties have become reduced from affluence to insolvency, will not be upheld as against an execution creditor of the husband.
    Appeal from Wayne; Frazer, J.
    Submitted October 25, 1899.
    Decided December 21, 1899.
    Bill by the Preston National Bank of Detroit against Henry R. Leonard, Annie E. Leonard, and Albert L. Stephens in aid of execution. From a decree declaring a lien in favor of defendant Annie E. Leonard, complainant appeals.
    Reversed.

      De Forest Paine, for complainant.

      Gteorge W. Radford, for defendants Leonard.

       Rehearing denied April 3, 1900.

   Montgomery, J.

This case relates to a portion of the property dealt with in Stephens v. Leonard, ante, 125. The present bill is filed to subject the equity of the Eliot-street property (less the homestead interest) to a sale to satisfy a judgment obtained by complainant against Henry R. Leonard.

The defendant Henry R. Leonard conveyed this property to his wife, Annie E. Leonard, by quitclaim deed, on the 25th of April, 1898, while suit was pending on complainant’s demand, and two days before judgment rendered. Under Act No. 99, Pub. Acts 189?, the burden rests on the defendants to show the bona jMes of the transfer. Whelpley v. Stoughton, 119 Mich. 314. The defendants undertook this burden, and testified that Mrs. Leonard, in 1886, became the owner of $5,000 of stock of the Detroit & Cleveland Steam-Navigation Company; that from that date until after Mr. Leonard was financially crippled by a fire which burned down the building on the Gratiot-avenue property, referred to in Stephens v. Leonard, she received dividends semi-annually on this stock at the rate of 10 per cent, per annum, except for one year, when the rate was 8 per cent.; that she turned the proceeds over to her husband, who used the proceeds, and has never accounted for them to her, except by the conveyance in question. The circuit judge treated the various transactions as loans, and declared a lien in favor of Mrs. Leonard for the several amounts, with interest. This holding was based upon the testimony of Mr. and Mrs. Leonard. The important question is, Was it a loan ? The two witnesses, it is true, refer to it in general terms as a loan, but neither attempts to tell what was said at any time between them. Mr. Leonard testified in regard to one of the dividend checks as follows:

“Q. What did she do with it?
“A. I have testified that she handed it' over to me.
“Q. Indorsed it over to you ?
“A. Loaned it to me; yes, sir.
“Q. She loaned it to you?
“A. Yes, sir.
“Q. She indorsed it over to you ?
“A. Whenever they came in. She did the same thing . for 12 years.
“Q. What did she say when she indorsed over that dividend check to you ?
“A. I have no recollection. * * *
“Q. Did you ever have any agreement with her to pay interest?
“A. On what ?
“Q. On dividends.
“A. No, sir; no specific agreement.
“Q. Did she ever ask you to pay interest?
“A. She has; yes, sir; since.
“Q. Since the fire ?
“A. Yes, sir.”

Mrs. Leonard testified on her direct examination as follows:

“Q. Since the purchase of that stock, who has received the dividends paid by the company ?
“A. I have received the checks from Mr. Carter.
“Q. What did you do with them ?
“A. I gave them to my husband; loaned them to invest for me, or to take care of them for me, I might better say, perhaps; I didn’t need them.
“Q. State whether at anytime you had any intention or anything was said whereby you were making him a present of those moneys.
“A. I didn’t intend to make him a present of them; no, .sir.”

On cross-examination the witness testified further as follows:

“Q. You have a recollection that those dividend checks came to you, from time to time, twice a year ?
“A. Yes, sir.
“Q. That is all you do remember about it, — that you got the checks and turned them over to Mr. Leonard ?
‘A. I got the checks, and I gave them to him to invest for me, or take care of them for me, I might better say; I don’t mean invest. * * *
‘‘Q. And can you remember what was said to Mr. Leonard by you at any time when you indorsed over one of those checks to him ?
‘A. No; I have already testified that I could not, before the commissioner, clearly.
“Q. Can you remember what he said to you ?
“A. No.
“Q. When, at any time, did you say to Mr. Leonard that he owed you any money for anything ?
“A. I don’t know but that was the first time after the fire. * * *
“Q. What did Mr. Leonard say to you?
“A. Mr. Leonard agreed with me that first day after the fire. We were pretty downhearted.
“Q. He agreed with you that your money had gone with the fire ?
“A. Yes, sir.
“Q. Prior to that time, had you ever received any note or writing from him acknowledging a debt to you ?
“A. No, sir.
“Q. Had you ever talked to him at any time about paying you interest ?
“A. No, sir; I never should have asked him at that time to pay me interest, I suppose.
“Q. You say you gave these dividend checks to Mr. Leonard to take care of for you ?
“A. That was the understanding.
“Q. When was that understanding?
“A. With myself, in my own mind. I didn’t suppose my husband would defraud me of them. I never knew that it was necessary to make any agreement with my husband for money that might be coming to me or owing to me. I could have gotten it if I wanted to.
Q. You always considered, when you wanted money, you could have it, until the time of the fire ?
“A. I did.
Q. All you had to do was to ask for it ? As a matter of fact, up to the time of the fire, did you ever suppose that you had a legal claim against your husband that you could enforce at law ?
“A. If I thought anything about it, I should have supposed so. I never thought of my husband in that connection. I didn’t think I should take any legal action against my husband. It never occurred to me that I would have to.
Q. You were living prosperously, and never had occasion to think of such things? You never had occasion, when you indorsed over those dividend checks, to think of such things ?
“A. No; if I had, I should have mentioned them, I suppose.”

We think it is clear enough from this testimony that the dividend checks were handed over to the husband without any expectation of recovering the amount. The situation of the parties supports this theory. They were living at the time in affluence. Some $1,500 of Mr. Leonard’s money had gone into the purchase of this very stock. What more natural than that the income should be turned into his hands? There was no agreement to repay. The money was handed to him freely, and, we are convinced, without any understanding by either that an indebtedness was being created. That money of the wife, thus appropriated by the husband by her consent, and without any intention of creating an indebtedness, cannot be the basis of an equitable right to sweep away the assets from creditors, is, we think, clear. Ball v. Phenicie, 94 Mich. 355; In re Hauer’s Estate, 140 Pa. St. 420 (23 Am. St. Rep. 245); Humes v. Scruggs, 94 U. S. 22; Case Manfg. Co. v. Perkins, 106 Mich. 349; Hanson v. Manley, 72 Iowa, 48; Grover & Baker Sewing-Machine Co. v. Radcliff, 63 Md. 496.

Some criticisms are made of the procedure. The criticisms are lacking in merit.

The decree will be reversed, and a decree entered in this court for complainant, with costs of both courts.

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


text:
    FLANAGAN v. FLANAGAN.
    1. Divorce — Denial of Marriage — Submission to Jury — Waiver of Right.
    Defendant in divorce proceedings, who denies the marriage, waives the right to have the issue submitted to a jury, under the provisions of 1 Comp. Laws 1897, § 444, where he makes no request for its submission.
    2. Common-Law Marriage — Evidence.
    Where a marriage ceremony is performed between two persons, who afterwards cohabit for eight years, until the woman " discovers that the man, at the time of the ceremony, was undivorced from a former wife, and the parties agree, upon a divorce being obtained, that they will treat the cerfemony as binding, and they continue for three years more to live together, they are properly held, in divorce proceedings, to be husband and wife.
    Appeal from St. Clair; Vance, J.
    Submitted October 25, 1899.
    Decided December 21, 1899.
    Bill by Charlotte Flanagan against Howard Flanagan for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Avery Bros. & Walsh (Sparling, Law & Moore, of counsel), for complainant.

      William E. Leonard, for defendant.
   Montgomery, J.

This is an appeal by defendant from a decree for divorce and alimony. The case was before this court for the purpose of having a review of a preliminary order. The decision of the former appeal is reported in 116 Mich. 185. The case has since been heard before the court, and the decree passed for the complainant, with an allowance of $400 permanent alimony.

It is contended that no marriage between the parties was proven; that, the marriage being in dispute, the question should have been tried by a jury, under the provisions of section 444, 1 Comp. Laws 1897; and that there was a settlement between the parties which concludes complainant.

As to the question of procedure, it should be stated that the defendant made no demand or request that the issue as to the marriage be submitted to a jury, and must, therefore, be held to have waived the right, as was held in Schafberg v. Schafberg, 52 Mich. 429. See, also, Maier v. Wayne Circuit Judge, 112 Mich. 491. '

On the former appeal it was insisted that no valid marriage existed between the parties, but, after a review of the cases upon which defendant now chiefly relies, Chief Justice Grant held that proofs were necessary to determine what the relations of the parties were. Such proofs have now been had, and the circuit judge has found that in September, 1885, a marriage ceremony was performed between the parties, and that they continued to live and cohabit together from that time forward; that complainant knew that defendant had been previously married, but was told by him that he was divorced; that in 1893 defendant was for the first time divorced from his first wife, and that this came to the knowledge of complainant ; that she then insisted on a new marriage ceremony, but defendant insisted that a new marriage ceremony would create a scandal; that it was not necessary; that they would treat the former marriage as binding; that they did continue to live together as husband and wife until December, 1896; and that the defendant introduced the complainant as his wife, and had her join with him in executing legal instruments, in which she was designated as his wife. The circuit judge was evidently of the opinion that there was an agreement to take each other as husband and wife, made after the former divorce, and that this made a valid marriage. In this view he is sustained by our former holdings. Hutchins v. Kimmell, 31 Mich, 126 (18 Am. Rep. 164); Peet v. Peet, 52 Mich. 464; Flanagan v. Flanagan, 116 Mich. 185.

The alleged settlement was not made under such circumstances as would justify a court of equity in enforcing it.

The decree will be affirmed.

The other Justices concurred.


author: Grant, C. J. Long, J.

text:
    PEOPLE v. LONSDALE.
    1. Manslaughter — Abortion—Dying Declarations.
    Where a physician, who visited deceased 11 hours before her death, found her suffering from the effects of an abortion, and informed her that she was a very sick girl, and that he could promise her nothing in the way of recovery, but would do all that could be done under the circumstances, and deceased, appearing to realize' her condition, told the physician, in answer to a question as to the cause of her sickness, that respondent produced the abortion by means of an instrument, the statement implicating respondent was properly admitted, on a prosecution for manslaughter, as a dying declaration. Long, J., dissenting.
    2. Same — Intent—Distinct Offense — Irrelevant Testimony.
    Upon a prosecution for manslaughter, where the evidence is conclusive that a criminal abortion was procured, the issue is whether or not the respondent procured the abortion, the guilty knowledge or intent of the person committing the crime being deducible from the crime itself; therefore, testimony as to what respondent did when applied to upon a certain occasion to produce an abortion upon witness, offered for the alleged purpose of showing the intent, is irrelevant, and its admission reversible error.
    Error to recorder’s court of Detroit; Chapin, J.
    Submitted October 26, 1899.
    Decided December 21, 1899.
    Alice Gr. Lonsdale was convicted of manslaughter, and sentenced to imprisonment in the Detroit house of correction for five years.
    Reversed.

      Orville B. Oragg (Philip T. Van Zile, of counsel), for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.
   Grant, C. J.

Respondent was convicted of the crime of manslaughter by abortion. The theory of the prosecution was that on February 21, 1899, the respondent used an instrument for the purpose of procuring the abortion; that the womb was perforated; that deceased aborted on the morning of the 21st; and that she died at 5 o’clock on the 23d. That an abortion had been committed was conclusively established.

1. The first error alleged is the admission of the dying statement of the deceased that the respondent committed the act. The objection is that it does not appear that the dying declaration was made under a sense of impending death. The decisions upon this subject are many. See People v. Knapp, 26 Mich. 116; People v. Olmstead, 30 Mich. 431; People v. Beverly, 108 Mich. 509; People v. Weaver, Id. 649; People v. Simpson, 48 Mich. 477. The mother of the deceased testified that the daughter was ill on the morning of the 22d; that later in the day she had pains and cramps; that she vomited, was feverish, and looked very ill. Dr. Day was sent for in the evening, but was unable to come until about 6 o’clock on the morning of the 23d. The doctor testified that on entering the room he formed his opinion very quickly, from the odor, . that the girl had blood poison, brought on by an abortion. Her pulse was between 130 and 140; her temperature 103 or 104; her condition very low.

Q. Did you communicate to her her condition ?
“A. I told her that she was a very sick girl, and that I was surprised to find her in that condition; that under such circumstances I could promise her nothing in the way of recovery, but that I would simply promise to do all that medical skill was able to do under the circumstances; and that it would be impossible for me to properly treat her in her own house, and that she would have to be taken to the hospital for proper treatment.
Q. Did she seem to realize that she was liable to die?
“A. Yes, sir.
Q. How did she look ?
UA. She looked like a person dying.
Q. Then?
“A. Then; yes, sir.
Q. Did she appear to realize it after you told her this ?
“A. Yes, sir.
‘ ‘ Q. Did you ask her then any questions as to the cause of her sickness ?
“A. I told her that, considering the grave condition in which I found her, that it was only fair and right that she should tell me how she happened to get in such a condition.”

The deceased then told the doctor that the respondent produced the abortion by means of an instrument.

The girl was removed to the hospital about 8 o’clock that morning, and died at 5 in the afternoon.

Greenleaf says:

“It is enough if it satisfactorily appears, in any mode, that they [ dying declarations ] were made under that sanction [impending death], whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct, or other circumstances of the case.” 1 Greenl. Ev. § 158.

The admission of dying declarations forms an exception to the law of evidence, and is now confined to cases of homicide. Their admission is based —

“Upon the ground of the public necessity of preserving the lives of the community by bringing manslayers to justice. For it often happens that there is no third person present to be an eye-witness to the fact; and the usual witness in other cases of felony, namely, the party injured, is himself destroyed.” 1 Greenl. Ev. § 156.

When there is evidence to show that they were made in extremis, they are admissible, and the weight to be given to them in each case is the province of the jury.

In People v. Knapp, this court, speaking through Justice Campbell, said:

“Their value depends on their intrinsic probability, and the candor and truthfulness of the person making them, as well as upon the fullness and fairness with which they are taken and reported. Where they are taken under sus- . picious circumstances, or drawn out by doubtful means, they are not excluded, but go to the jury for what they are worth. The whole admission is from necessity,— the witness having passed away, — and the objections are therefore confined to the weight and value of the declarations.”

The language of the court, speaking through Justice Marston, in People v. Simpson, at pages 477, 478, 48 Mich., is applicable here. This language is quoted with approval in People v. Weaver, at page 651, 108 Mich.

The reason for admitting these declarations is especially applicable to cases of abortion, where usually only two parties have knowledge of the crime, — the abortionist and the person upon whom the abortion is produced. While this is no reason for relaxing the rule that they must be made in view of impending death, yet it is a reason why appellate courts should be slow to reverse the holding of the trial judge, who saw the witnesses, and can better judge of their truthfulness and of the surrounding circumstances. We think there was sufficient evidence, within the former rulings of this court, to justify the admission of the declaration.

2. The prosecution introduced the testimony of a witness to show that she had applied to the respondent to have an abortion produced upon her. The testimony was very weak, and was evidently that of an unwilling witness. However, there was sufficient in it to show the purpose of the woman’s visit, and that some acts were done towards the accomplishment of that purpose. The attorneys for the people justify this testimony on the ground that it tended to prove guilty knowledge or intent, and rely upon People v. Seaman, 107 Mich. 348 (61 Am. St. Rep. 326). This case is not within the rule there announced, or within the authorities there cited. This case does not form an exception to the general rule of evidence. Where the intent or guilty knowledge is a necessary conclusion from the act done, proof of other offenses of a similar character is inadmissible, and violates the rule that the evidence must Tie confined to the issue. Upon the record, there is no room for an inference that death resulted from accident, or that the operation was performed to save the life or health of the deceased. On the contrary, if the jury found that the dying declaration of the deceased was true, the crime was complete, and the jury could not find otherwise than that it was done with guilty knowledge and intent. This testimony should have been excluded, and for this reason the conviction must be set aside.

3. Error is assigned upon a remark of the prosecuting attorney during the taking of testimony. The remark was highly improper, but no more so than the remark made by the attorney for the respondent which provoked it. Whether the remark was sufficiently prejudicial to justify a reversal, we need not determine, as the case is reversed upon another ground. We are constrained to say again that such conduct in the trial of causes, especially criminal ones, is discreditable to attorneys; and the courts should, without waiting for objections, promptly suppress the language and reprimand the attorneys.

Reversed, and new trial ordered.

Montgomery, Hooker, and Moore, JJ., concurred with Grant, O. J.

Long, J.

I concur in reversing the judgment on the ground stated by my Brother Grant, but I am of the opinion that the testimony given on the trial did not establish the fact that the so-called dying declaration was made under such circumstances that it became competent evidence. It seems to me that there is no testimony showing that the declaration was made under the fear of death.


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    DAVIS v. McLAULIN.
    Malicious Prosecution — Probable Cause.
    On. a payment* of rent, a controversy arose between the tenant and defendant, the landlord. The tenant demanded a return of rent he had just paid, or a receipt. Defendant started to leave the premises, when the tenant assaulted him, and plaintiff, coming to the tenant’s assistance, to prevent defendant from getting into the street, pushed him back. Defendant sued them by capias for the assault, and judgment was rendered of no cause of action. Plaintiff then sued for malicious prosecution. Held, that the court should have charged that defendant had probable cause for instituting the suit.
    Error to Wayne; Hosmer, J.
    Submitted October 27, 1899.
    Decided December 21, 1899.
    Case by William Davis against John D. McLaulin for malicious prosecution. From a judgment for plaintiff, defendant brings error.
    Reversed.

      James H. McDonald, for appellant.

      James H. Pound, for appellee.
   Grant, C. J.

The plaintiff and his brother, John, were convicted of an assault and battery upon the defendant. After that conviction, defendant brought suit against plaintiff and his brother by capias. Trial was had, and verdict rendered of no cause of action. Plaintiff then instituted this suit for malicious prosecution, and recovered a verdict and judgment for $400. The court left it to the jury to determine whether there was probable cause for issuing the capias, and held that the conviction for assault and battery was conclusive of probable cause in the criminal case. It is insisted by the defendant that he fully and fairly stated all the facts in the case to his attorney, that the same attorney was present upon the trial for assault and battery, and there heard all the facts and circumstances of the assault. After such information by the defendant, and the attorney’s knowledge gained upon the criminal trial, defendant was advised by his attorney that he had a good cause of action for damages, and for issuing the writ of capias. The order to hold to bail was duly indorsed upon the affidavit for the writ. Both the plaintiff and his- brother, John, testified upon this trial that they were witnesses in the criminal prosecution, and there stated all the circumstances of the case. Defendant was also a witness upon that trial, and gave his version of the transaction. In my judgment, therefore, it conclusively appears that defendant’s attorney was in possession of all the facts in the case, both from the defendant and from the plaintiff and his brother. There is no testimony in this record to show that defendant did not truthfully state all the material facts to his attorney. The details of the trial brought by defendant for damages are not before us, and we have no means of determining the basis of the verdict of the jury. I think it conclusively appears in this record, from the testimony of plaintiff and his brother, that they were both guilty of an unjustifiable assault upon the defendant. Plaintiff’s brother was a tenant of defendant, who, on the occasion of the controversy, went to the shop to collect the rent. John paid him $16. This was not the full amount of the rent due. John claimed that he had paid $4.50 for certain repairs, which he insisted made up the difference. ■ Defendant denied his liability for repairs, and refused to allow it. Defendant had taken the money, and put it in his pocket, and started to go out the door without giving a receipt. ' John’s version as to what happened is as follows:

‘ ‘ I said I wanted a receipt for the money, which he had already put in his pocket. He’s always putting the money in his pocket first. Mr. McLaulin started out of the door, I said, ‘You come back and give me a receipt for that money, or hand that money back.’ He kept on moving, and I jumped the counter just as he got to the doorway. I grabbed him. ‘Now,’ I said, ‘you either give me that money back or give me a receipt.’ Just as I grabbed him, he raised his hand and struck at me, and I struck him several times somewhere around the face. He kind of came down on his knees. I took him then by the shirt collar, and told him to come right in and give me a receipt, or else give me the money back. * * * This happened just outside the door. * * * McLaulin had some blood on him after we got through. His collar was fairly broken away.”

During the conversation between John and defendant, plaintiff had entered the shop, and heard some of the dispute. Plaintiff admits that he ran after defendant to prevent his leaving. His testimony is as follows:

“The only thing I did was to prevent McLaulin from leaving the shop until that thing was settled. I did what I would do for any one that would come in and pick up any goods.
Q. Tell us just what you did in preventing him from leaving the shop.
“A. I got between the sidewalk and him, and prevented him from backing off into the street. I stood in his way. I never hit him. I just stood in his way, and prevented him coming into the street.
Q. What did you do ? Push him back into the shop ?
“A. Well, if he got against me, I was not going to let him push me back.
Q. Did he come against you?
“A. Yes, sir. [Continuing:] I prevented him from getting away from the shop, but I did nothing but press against him; that is, I stood between him and the street. My brother was in front of him, trying to pull him back.
•“ Q. So that your brother, John, was pulling him into the shop, and you were pressing him in, and both of you had hold of him ?
“A. I did not have hold of him. I may have put my hands on him to push him there, but I did not grapple with him, strike him, or grab him.”

Under this testimony, plaintiff was guilty of an actual assault. Plaintiff and John had no legal right to assault and detain the defendant to compel him to either give a receipt or surrender the money. If defendant was liable for the repairs, the rent was paid. If he was not liable, it was not paid. In either event, defendant lawfully retained the money, and the rights of the parties could have been adjusted in a civil suit. Resort to force was unnecessary, illegal, and unjustifiable.

The facts were undisputed. The question, therefore, was one of law for the court, and not for the jury. The court should have instructed the jury that defendant had probable cause for instituting the suit, and should have directed a verdict for the defendant.

Judgment reversed, and new trial ordered.

The other Justices concurred.


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    JOURNEAUX v. E. H. STAFFORD CO.
    1. Master and-Servant — Dangerous Machinery — Assumption of Risk.
    A factory employé who tripped and fell upon a small circular saw, the edge of which extended about 2 inches above the surface of an equalizing machine, in which it was set at a place 18 inches from the front, 26 inches from the rear, and 8 inches from the edge of the table of such machine, cannot recover from his employer for his injuries, where it appears that he was acquainted with the situation, and had been warned of, and appreciated, the danger of coming in contact with the saw; the risk being assumed by him as incident ±o his employment.
    2. Same — Screening Saws — Duty of Master.
    A manufacturer is under no legal duty to provide guards or screens for all machinery the contact with which would be dangerous, where employés are warned of the danger, and are - given room to carry on with reasonable safety the work they are expected to perform.
    3. Same — Custom Among Manufacturers — Evidence.
    A general custom among manufacturers of screening the small circular saws in use on equalizing machines is not shown by the testimony of a single witness that it is customary to screen such saws, and that he has seen screening devices in use on equalizing machines in another State, but never in this State.
    Error to Muskegon; Russell, J.
    Submitted October 27, 1899.
    Decided December 21, 1899.
    Case by John Journeaux, an infant, by Mary Journeaux, his next friend, against the E. H. Stafford Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The following statement of facts is taken substantially from the defendant’s brief, and is not disputed' by the plaintiff: The injury of which plaintiff complains occurred on the 30th of December, 1898, and during his employment at defendant’s factory. He was 15 years old on the 7th of April, 1899, and was employed on the written application of his mother, his father being dead. His ordinary work was to carry material which had passed through a small planing machine, called a “sticker,” from the machine to a place of temporary deposit. In the same room was what is known as a “combination machine,” sometimes called an “equalizer,” and which was operated by one Lewis, an employé of defendant. This machine was located near the southwest corner of the room, 4 feet from the west wall. The machine is in two sections, each 4 feet 4 inches long, 2 feet 5 inches wide, and 36 inches high. The section complained of was at the time of the accident provided with a small circular saw, placed 18 inches from the front, 26 inches from the rear, and 8 inches from the westerly edge of the table of the machine, its upper edge extending far enough (about 2 inches) above the surface to do the work required. At the time of the accident it was being operated on small boards, 20 inches long, 15 inches wide, and § of an inch thick. The operator, Lewis, had been doing this kind of work, himself carrying the pieces to a table near the southwest corner of the machine, before the plaintiff went to assist him, and, when plaintiff went to him, was nearly through with that work. . The plaintiff knew the danger of his surroundings, and was instructed how to do his work, to be careful not to come in contact with the saw, and not to touch anything until the pieces being operated upon had passed the saw. He had avoided coming in contact with the saw all that day, and at other times while at work there he had been careful to avoid it. Before the plaintiff commenced this particular work, he had seen Lewis carry the material, after it had been worked, to a little table near the north end of the machine. He knew that ordinarily the pieces constituting a lot were kept together, and that it Was necessary to take the pieces he carried to the same place to which Lewis had taken a part of the same lot, and he did so a part of the time; but at the time of the accident he was engaged in carrying three pieces from the rear of the machine to a place back of Lewis, making it necessary to go between the machine and the wall. The change by plaintiff of the place of deposit was on his own motion, and without instruction from any one. Near the north end of the machine was a slight rise of the floor, abóut 1 inch; and plaintiff says that he stumbled on this rise of the floor, and fell so that his left arm came in contact with the saw 8 inches from the edge of the table of the machine; that he was then carrying three pieces, having placed one on another, and having taken hold of the ends, with one edge resting against his body, his elbows extended, and raised to a height a little higher than the top of the surface of the table of the machine. He was perfectly familiar with the rise in the floor. But this is not the subject of complaint. He could see the saw plainly, and kñew it was running. He also knew that if he stumbled so that his arm, in the position described, came in contact with the saw, he would get hurt. He had worked in that room about four months. He was injured at 5:30, and had been engaged at that machine all day, and had worked at it about two months before, but how long he does not state. Why he walked so near the machine is unexplained. The negligence claimed is the failure to provide a hood, screen, or device for protecting the saw so that persons employed upon or about the machine could not come in contact with the saw. The only material fact about which there is any dispute is whether plaintiff was carrying the pieces of board at the time he was injured. The testimony on the part of the defendant tended to show that he was not. Plaintiff recovered verdict and judgment.

      Smith, Nims, Hoyt & Erwin, for appellant.

      Turner & Turner and Cross & Lovelace, for appellee.
   Grant, C. J.

{after stating the facts). Plaintiff was a very intelligent boy; had been employed in this room in similar work for four months; fully comprehended the situation, the danger, and the necessity of keeping away from the saw; had a space of 4 feet within which to carry boards 15 inches wide; had been duly cautioned of the dangers and care required of him about his work; had worked before at this particular machine; and had nearly completed this day’s work with safety. There is no room for claiming, nor is it claimed, that he was inexperienced, unintelligent, or so young as not to appreciate the situation. There was no unknown or latent danger into which he was sent. The accident was not one which a prudent man would probably anticipate or provide against. Plaintiff’s fall was either the result of his own want of care, or else was purely accidental. There was no danger from the side of the machine. No injury could come to the plaintiff unless he got his arm on the table of the machine, 3 feet from the floor, and on the saw, 8 inches from the side. Such an event was not probable.

The court instructed the jury as follows:

“ Now, it is claimed on the part of the defendant here that when this young man went in there, and looked .the surroundings over, and saw the saw and the table, and the surroundings, and the work that was to be done, and all that sort of thing, that from his own testimony, and from his ability and experience, he knew the dangerous character of the saw, — in fact, that he took in the situation, and that he knew all of the danger and all of the surroundings in connection with this machinery and the work that he had to do; that he appreciated it fully. Now, if you find that that is true, gentlemen, why, of course, he cannot recover here, because he had a perfect right, if he desired to do so, to go there and work with a saw that had not any hood on,— one that was dangerous,— if he understood the entire surroundings. If he did that," as I say, he cannot recover.”

The plaintiff’s own testimony showed that he saw the situation, had been instructed in his work, and had been warned of and appreciated the danger. He therefore assumed the risk. The case is clearly within the following decisions: Sjogren v. Hall, 53 Mich. 274; Lindstrand v. Lumber Co., 65 Mich. 254; Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133;. McGinnis v. Bridge Co., 49 Mich. 466; Richards v. Rough, 53 Mich. 212; Schroeder v. Car Co., 56 Mich. 132; Borck v. Nut Works, 111 Mich. 129; Prentiss v. Manufacturing Co., 63 Mich. 478.

The facts were undisputed, and the court should have directed a verdict for the defendant. The danger was open and apparent to all. Defendant had provided sufficient room around the machine wherein plaintiff could work with safety. Manufacturers are under no legal duty to provide guards or screens to machines of this character, where they have left sufficient room to carry on the work around them, and have duly instructed their employés in such work, and warned them of the dangers attending it. To hold otherwise would be to require all machines, the contact with which would be dangerous, to be provided with guards or screens, and to require the use of every possible safeguard against áccident. The authorities do not so hold. There is always more or less danger in operating and working around machines like that in use by the defendant. It is a part of the employe’s contract that he assumes that danger. Sullivan v. Manufacturing Co., 113 Mass. 396.

It is urged that plaintiff introduced testimony to show the common use of screens or hoods over machines of this character for the purpose of protection to those working in the position of plaintiff., One witness was produced to show such custom. He testified that he had seen those devices on machines in factories in Mishawaka and Elk-hart, Ind., where he had worked, and that he had also been in a great many other factories. He then testified:

“It is the custom in factories of this kind to protect saws of this character, as a general rule, by splitters; and, if they have no guard over the top of the saw (that is, a patent guard), they have an iron bent over on which they hang a lever to arrest the dust from flying in the man’s eyes that is in front of the saw.”

From this testimony it would appear that the object of the screens and hoods is to protect the person standing in front of and operating the saw. After asking the witness if, in his opinion, plaintiff would have been injured if the machine.had been thus protected, and eliciting the answer, “If there had been anything there, any protection at all, it would have been impossible for him to get onto the saw,” his attorney put the leading question: “Is that the main object for which these devices are used, or.one of the objects?” Witness answered, “Yes.” On cross-examination the witness testified as follows:

Q. I understand you to say that it is customary to use a screen or hood, or some device, on machines of this character, — equalizing machines?
“A. I said it was customary to use it on all rip-saws.
Q. Is it customary to use a screen, hood, or other protection to the saw on an equalizing machine?
“A. It can be used on equalizing machines.
Q. Will you kindly answer my question ?
“A. I have seen it used on equalizing machines.
Q. Will you please answer my question ?
“A. Yes, sir.
Q. You say it is customary ?
“A. Yes, sir.
Q. Why hesitate about answering it?
“Mr. Lovelace: Because you would not let him explain it.
“ Q. I didn’t ask for any explanation. Maybe he can tell why he hesitates, as well as counsel.
“A. I would like to explain these things. I like to explain them just as they are.
“ Q. I .understand you to say it is customary to use these screens, hoods, or other devices on equalizing machines ?
“A. I have seen them used on equalizing machines in different factories.
“ Q. Do you understand my question ?
“A. Yes, sir; I do.
Q. Do I understand you to say now that it is customary to use them on equalizing machines ?
“A. When they are used as a rip-saw, it is.
‘ ‘ Q. And you have seen them on equalizing machines in Michigan ?
“A. No, sir; I never saw them in Michigan.”

The testimony fails to sustain the claim that these devices are in common use on machines like this one, or that they are designed to protect those who are employed in carrying material to and taking it away from the machine, and who have ample room provided for the work without coming in contact with the saw. The machine was used for a variety of work. Defendant gave evidence tending to show that some of this work, such as grooving, could not be done on the machine if provided with the device, and that its presence would interfere with the operator, and materially affect the efficiency of the machine, on the kind of work then being done. Plaintiff makes no case for the application of the rule that railroad companies and manufacturers are required to adopt those inventions for the protection of their employés which are in ordinary use, and the failure to adopt which is negligence.

Judgment reversed, and new trial ordered.

The other Justices concurred.