text:
    NOBLE v. BESSEMER STEAMSHIP CO.
    I. 'Master and Servant — Negligent Injuries—Contributory Negligence of Fellow-Servant.
    The right of a servant to recover against his master for negligent injuries is not defeated by the contributory negligence of a fellow-servant. So held where two employés jointly used an appliance which one of them knew to be defective.
    Í? Same—Defective Appliances—Liability of Master.
    Where the tools to be used by a servant in the prosecution of a given work are not left to his own selection, but he is provided with a specific appliance (e. g., a “soft-head,” for .use in riveting metal plates), the masteris bound to see that the appliance so furnished is in the first instance reasonably safe and fit for the purpose for which it is intended.

      8. Trial—Instructions—Requests to Charge.
    Where the court, before reading certain requests to charge, said, 1 ‘ Counsel have handed me some requests, as stating propositions of law by which you should be guided in determining your verdict,” an objection that he did not say that the requests were given, or were correct propositions of law, is without force.
    4. Same—Failure to Produce Witness.
    In an action for negligent injuries, it appeared that G., a former employé of defendant, who had personal knowledge of matters testified to by plaintiff, was absent from the State; and defendant orally requested the court to charge that defendant’s failure to procure G.’s attendance as a witness should not be considered by the jury. In response the court instructed the jury that G. might have been called by either party; that, ‘ ‘ unless you find as a fact in this case that defendant had some reason for not procuring Q. as a witness, and, even if they had, that plaintiff had just as much right to call him as the defense, and you shall not infer anything against the defense in this case by reason of their omission to call him as a witness. He is not a party to the case, and plaintiff had the same right to call him as defendant.” Held, not objectionable as authorizing the jury to find that de. fendant had some reason for not procuring G.’s attendance, and, if it had, to consider its failure to produce him.
    Error to Bay; Sharpe, J., presiding.
    Submitted February 1, 1901.
    Decided June 17, 1901.
    Case by William B. Noble against the Bessemer Steamship Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      T. A. ¡E. & J. C. Weadock, for appellant.

      Pierce & Kinnane, for áppellee.
   Moore, J.

This is an action on the case for the recovery of damages on account of the loss of an eye. From a judgment of $4,000 obtained by plaintiff, defendant has brought the case here by writ of error.

Plaintiff was employed as a calker upon a vessel being constructed at F. W. Wheeler & Co.’s yard in West Bay City by defendant. Wheeler & Co. had commenced the work, but, failing in the performance of its contract, the» defendant took the yard and crew, and proceeded to finish it. Plaintiff commenced working for Wheeler & Co., and continued when defendant took over the operation of the yard. Plaintiff and his witnesses testified that on July 26, 1898, plaintiff was engaged in striking with a riveting hammer a soft-head held against a rivet then being put in on the bulkhead bar of a vessel by one John Lepan. A piece of steel flew from the soft-head, and struck him in the eye, putting it out. The soft-head in question was made from a riveting hammer, and it is claimed that the head which was to be struck with the riveting hammer was not properly tempered. Plaintiff had been a riveter for four years and upwards, and claims he knew nothing about the condition the soft-head in question was in. The defendant furnished the tools used by its employés. There were between 50 and 60 riveting gangs then at work for defendant in the yard, each gang consisting of four men, —a head riveter, an assistant riveter, a heater, and a holder-on. John Lepan was head riveter of the gang in which plaintiff was working. A tool storeroom was maintained by the defendant, in charge of a keeper named Gereoux, whose duty was to give out and furnish tools to the workmen. It is the claim of the plaintiff that Lepan went to the storeroom for a soft-head, and Gereoux gave out one to him, but, before using it at all, Lepan returned it to Gereoux, and complained of its defective condition. Lepan testified as follows:

“ I did not pick out the tool myself. Gereoux gave it to me. He was the man in charge of the storeroom where the employés were accustomed to go for tools to do their work. The soft-head which he gave me was made from a broken riveting hammer, the hammer end being out off. It was too hard, because it had been tempered as a riveting hammer, and the temper had not been taken out so as to make it a soft-head. I took it back to the storeroom the same day I received it, and wanted to get another one. Mr. Gereoux told me, if I could find a better one, to take it; but he said that was the best one he had in the storeroom. I looked over the rest of the soft-heads in the storeroom, and they were all worn out, and not fit for use. He had them thrown in one pile of cull tools. I told Mr. Gereoux that I did not want to use the tool. He said, ‘ I will give you an order to go to the blacksmith and get it fixed.’ He gave me an order to go to the blacksmith, and the blacksmith told me he could not fix any more tools unless I would get an order from Mr. Gilkey, who was foreman of all the riveters on all the boats. The blacksmith referred to was the man employed by the company to repair tools for the machine shop and the riveters. That was his business. I then went to Mr. Gilkey for an order, and told him what was the matter with the tool. ' He said: ‘John, I cannot give you an order. I have got to finish those boats with the tools we have got. I was told by the company not to make any more expense on these boats; they would have to be done with the tools we had; to do the best we could.’ I then went right down, and went to work. That was the day before Noble started to work with me. After Noble came, we used the soft-head on three rivets. We hadn’t finished the third one, just two and a half. We were finishing the third one, when this piece broke, and Noble was injured. We had not used it before he was injured, and the soft-head had remained without use from the time I took it to the shop until the time Noble was hurt. It was kept in a keg, with other tools, except when we had to shift from one boat to another. I did not tell Noble that I did not think it was a safe tool to work with, because, if I told him, he would have quit, the same as the other one quit before, and I would be out of work.”

Plaintiff also claimed that, at the time of the injury, he was striking the soft-head as riveters usually do, and Lepan was holding it against the rivet in the usual way, and that he did not know the dangerous condition of the-soft-head. The defendant denied that the tool was not reasonably safe for use, and also denied Lepan’s version of his obtaining the tool.

In his charge to the jury, after stating the claims of the parties, the trial judge said:

“Theclaim of the plaintiff—and I say to you the only ground in this case on which the plaintiff can recover—is the claim that the soft-head which he struck with that hammer was not a safe tool, was not reasonably safe to be used by men engaged in riveting as these men were at that time. Now, a hammer or soft-head might be safe when given out to workmen, and it might become unsafe by reason of its use by them; but I say to you as a matter of law in this case, and I wish you to distinctly remember that part of it, that the defendant in this case is not liable in case you find that the defect in this soft-head, if you find it was defective, was caused by the use that it had had. The plaintiff claims that at the time Lepan got it from the storehouse, or at the time he first commenced to use it, he discovered that it was not a safe tool to use; and if you find that to be the fact,—if you find that, at the time Lepan got this soft-head from the storehouse, it was not then a reasonably safe tool with which to do the class of work which it was expected by the defendant Lepan and those associated with him would do,—then the company is negligent. The law imposes the duty upon those who employ laborers, and who furnish them with tools to use, to see to it that' those tools are reasonably safe and fit for the use for which they are intended; and when Lepan went to the storehouse, if he was given this tool by the person whose duty it was to keep those tools and deliver them out to the men, that was a representation by the defendant itself that that tool was reasonably safe and fit for'use.

‘ ‘ Now, it appears from the testimony that Lepan, before he used it, discovered that it was not so, as he claims. That would not be any defense to this defendant in this case unless you find that it became so from use. If this tool was reasonably safe and fit for use at the time Lepan got it, then the company has done all that their duty called upon them to do; but when Lepan took it back, and asked for another, the company, while they should have given him another, or should have put this in proper order, as a matter of mere right, were not under any legal obligation to do it. He knew that the tool was unsafe, and it was his option either to work with it or to quit. If he continued to work with it after he knew it was unsafe, he was guilty of just as much negligence as the company was, and you haven’t any right to award a verdict against the defendant in this case by reason of the fact that they refused to repair this tool for Lepan. That is not in the case at all, as far as your consideration of it is concerned.

“The first question for you to determine, and,the important question, is, What was the condition of this soft-head at the time it was furnished to Lepan to work with? It seems that he was the boss or the head of the gang of riveters. He had charge of that particular. gang, and this soft-head was furnished to him for the use of that gang. Now, the question is, What was the condition of it at that time? The plaintiff claims it was unsafe to use; that it was a broken riveting hammer; and that the temper had not been abstracted from the head of it that had been broken. Now, from the testimony of the witnesses in this case you must determine what you believe the fact to be. If you find that the hammer at that time was in a reasonably safe and fit condition for use, then the plaintiff in this case cannot recover, no matter what you may find the other facts to be. .On the other hand, if you find that that hammer at that time was not a reasonably safe tool with which to perform the work that the company designed for it, then the next question for you to determine is, Had the plaintiff, Noble, himself knowledge of the fact that it was unsafe? If he had, and he continued to use it after he had that knowledge, then he cannot recover in this case. After a man discovers that a tool is unsafe, if he continues to use it under the circumstances detailed by the witnesses in this case, without protest to his employer, —and he did not protest,—and I might add, further, without a promise to fix it up, and ask him to use it a little while, until they could get a chance to fix it,—those are the only circumstances under which he would be relieved of the knowledge that he had, if ’you find he did have it, that the tool was unsafe. As bedring upon that question whether or not Noble had knowledge that his tool was unsafe, if you find it was unsafe, you have a right to consider the manner in which the work was being carried on. You have a right to consider the fact as to whether it required a careful examination of the tool itself to determine its condition, or whether one could tell by a casual glance at it. You have heard the testimony of the witnesses. And, even though you may find that Noble’s attention was not particularly called to the defect in this tool by Lepan, if you find as a fact from the evidence, exercising your common sense as applied to the fact, that Noble did know as to what the condition of this soft-head was at the time it was used that day, and that he knew it was unsafe, then I say to you, as a matter of law, that he cannot recover in this suit.

“I think I have already said to you that if this soft-head was in a reasonably safe condition for use at the time Lepan got it, and if during the time that he was using it, by "use or otherwise, it became in a defective condition, and unsafe and unfit for use, that the plaintiff could not recover in this case. In that case the negligence of his fellow-servant, Lepan, in working with the tool, would be counted as the negligence of the plaintiff, and it would prevent his recovery. To make that plain to you, perhaps I should say further, if two men are working together for a common employer, at the same class of work, and one is injured through the negligence of the other, of course the employer himself is not responsible to the one who is injured. He doep not guarantee to a man, when he sets him to work, that all the other workmen with whom he is engaged will exercise care and caution.. A man, when he goes to work among a number of others, must in law be held to realize that he accepts all the dangers which are naturally incident to the business; and, if the injury in this case was caused by the negligence of his fellow-servant, Lepan, then he cannot recover. I desire to make that particularly clear to you, and I say to you again, if you find that this soft-head was in proper condition, and fit for use, at the time Lepan got it, then the company had done their full duty to Lepan and the plaintiff. They had furnished him a reasonably safe tool for use, and, if Lepan afterwards discovered that by use it became unfit for use, and continued to use it, he could not recover had he been injured; and, if he could not recover, the plaintiff could not recover, because his injury is caused by the negligence of Lepan in using this tool. If, however, it was not reasonably safe and fit for use at the time Lepan got it from the shop, then I say to you, as a matter of law, that, no matter if Lepan did use it after he knew it was unfit for use, the company were negligent themselves in failing to provide their workmen with an article or tool that was reasonably safe and fit for use, and the plaintiff can recover.

“You have a right, in determining these questions, to consider the nature of the tool. It is not an intricate piece of machinery. It has been exhibited before you, and your common sense may be applied to the question as to whether or not men who had had experience such as the plaintiff claims he had in the use of such tools would, by ordinary observation, have been able to determine whether this tool was safe or not. If you find that he knew it was not safe, and still continued to use it, he cannot recover in this case.

“ Counsel have handed me some requests, as stating propositions of law by which you should be guided in determining your verdict:

“ ‘ It is the duty of the plaintiff to satisfy you by a preponderance of evidence that all the material allegations of the plaintiff are true, and, unless he has done so, you must find a verdict for the defendant.’
“ ‘ The defendant is not an insurer of his employés against accidents, and the fact that plaintiff has lost an eye by an accident, in and of itself, does not entitle the plaintiff to a verdict.’
‘“Before you can find a verdict for the plaintiff, you must be satisfied that the defendant failed to supply the plaintiff with a reasonably fit safe tool with which to work, and that the plaintiff, on account of such failure, and wholly without negligence on his part, was injured.’
“ ‘ If you find that the tool in question was a reasonably safe one, and that the accident was such a one as might happen by the ordinary use of tools reasonably safe, then it was a risk of the employment, which the plaintiff assumes, and he cannot recover.’

“Defendant’s counsel has also suggested that I should say something to you in the way of instruction relative to their omission to produce Gereoux, the man who kept the shop, as a witness. That omission upon their part has been strongly commented upon by the attorney for the plaintiff, and it is not perhaps out of place that I should say something to you about it. Mr. Gereoux might, of course, have been called by either party. The plaintiff would have' a right to call him, or the defendant would have that right. It appears by the statement of counsel’ that he is outside of the jurisdiction of this court,—That he is in New York State, where he could not be reached by a subpoena of the court; and I say to you that, unless you find as a fact in this case that the defendant had some reason for not procuring Gereoux as a witness, and, even if they had, that the plaintiff had just as much right to call him as the defense, and you shall not infer anything against the defense in this case by reason of their omission to call him as a witness. He is not a party to the case, and the plaintiff had the same right to call him as the defendant.”

Upon the trial the judge was requested to direct a verdict in favor of defendant. It is insisted that, as Lepan knew the hammer -was a defective one, it was negligence for him to use it; that he was a fellow-servant of plaintiff; and that one of the ordinary risks incident to the employment of the plaintiff was the negligence of his fellow-servants, and for that reason the plaintiff cannot recover,— citing Hefferen v. Railroad Co., 45 Minn. 471 (48 N. W. 1); Rawley v. Colliau, 90 Mich. 31 (51 N. W. 350); Wachsmuth v. Electric Crane Co., 118 Mich. 275 (76 N. W. 497). We do not think those authorities are conclusive of this case. In the Hefferen Case the court said that the condition of the tool was the ordinary result of use;

‘ ‘And if a workman should of his own choice, and unnecessarily, use a tool thus plainly defective, when others were- provided for his use, he is not absolved from the consequences of his own choice. * * * The servant may, in general, assume, without particular inspection, that the instruments which he is thus required to use are reasonably safe; but when, from use, they have become obviously defective and unfit, and the master has provided others, so that the servant knows that he is not required to use the former, the reason of the law holding the master to responsibility is inapplicable. * * * According to the evidence, it must be taken as a fact that the servants used this particular tool because they did not choose to get another.”

In Rawley v. Colliau it was said:

“The hammer which caused the injury had been in use for a long time, and its condition had been brought about by such use. * * * We cannot assume as a matter of law that the defendants were negligent because this sledgehammer was lying about the shop with its face cracked or battered, when there were others that were sound, and in fit and safe condition for use, and when neither the plaintiff nor any of his fellow-employés were obliged or directed by defendants to use this particular hammer in their work, and when they could have used a hammer not defective.”

The court further say:

“ If this hammer had been the only one in the shop, or the only one that could be used, or defendants had directed it to be used, knowing its condition, another case would be presented.”

In Wachsmuth v. Electric Crane Co. the court said::

“The record shows defendant furnished’an excellent-quality of steel from which to make the tool. It was made by a competent blacksmith. There is no claim that-when made it was not a proper tool with which to do the work required. * * * The men were not required or expected to use a tool after it became unsafe because .of use or from any other cause. They were at liberty to take a defective tool at once to the blacksmith, and have it repaired, or get a new one in its place. * * * The only testimony to the contrary is given by the -plaintiff, who never saw the tool, but was of the opinion, judging from the appearance of the small piece of steel taken from his eye, the tool was not a proper one to use.”

In none of these case was it shown that the master, the alter ego, knew the tool was defective, and, after such knowledge, directed its continued use, the injured person not knowing of the defect. In the Hefferen Case it was also said:

“ The responsibility of the master for injuries resulting from unsafe instruments or machinery may be said to rest upon the ground that these are the means, by which the servant is expected and required to do his work. The master furnishes them for that purpose, and expects and intends that the servant shall use them. The servant knows that this is expected of him. He may, therefore, in general, assume, without particular inspection, that the instruments which he is thus required to use are reasonably safe. But when, from use, they have become obviously defective and unfit, and the master has 5 provided others, so that the servant knows that he is not ’ required to use the former, the reason of the law holding the master to responsibility is inapplicable. If the master provides the proper tools for the use of his servants, responsibility for neglect to remove from the premises such as have become obviously unfit for use, if such responsibility exists, must rest, not on the ground that it is the duty of the master to furnish reasonably safe means for the prosecution of the work which his servants are required to do, but upon the ground that he is chargeable with negligence in suffering dangerous things to be where his servants may be injured by them. This principle is applicable under many circumstances,—as in respect to concealed dangers, like a pitfall. It cannot be applied under the circumstances here stated without ignoring the duty of the servant to exercise ordinary care in respect to matters concerning which he has no right to assume that there is no danger. If he knows that safe tools are provided for his use, he cannot be expected to use those which have become so defective that the defects could not be overlooked.”

In the case of Paulmier v. Railroad Co., 34 N. J. Law, 151, an engine broke through a trestle, killing a fireman. It was claimed the engineer knew of the insecurity of the trestlework, and had been directed not to go upon it. It was claimed in that case, as it is claimed, here, that, because the negligence of the fellow-servant contributed to the injury, there could be no recovery; but it was held the company was. liable. In Hunn v. Railroad Co., 78 Mich. 513 (44 N. W. 502, 7 L. R. A. 500), Justice Champlin had occasion to refer to this case, and used the following language:

“The defendant requested a charge to the effect that, although the jury might find the defendant guilty of negligence, yet, if the fellow-servant of deceased contributed to produce his death, the plaintiff could not recover. This request was rightly refused. The correct rule, and the reason for it, are stated in Paulmier v. Railroad Co., 34 N. J. Law, 155, as follows:

‘“The servant does not agree to take the chance of any negligence on tho part of his employer, and no case has gone so far as to hold that, where such negligence contributes to the injury, the servant may not recover. It would be both unjust and impolitic to suffer the master to evade the penalty for his misconduct in neglecting to provide properly for the security of his servant. Contributory negligence, to defeat a right of action, must be that of the party injured.’

Grand Trunk R. Co. v. Cummings, 106 U. S. 700 (1 Sup. Ct. 493); Keegan v. Railroad Corp., 8 N. Y. 175 (59 Am. Dec. 476 ); Chicago, etc., R. Co. v. Swett, 45 Ill. 197 (92 Am. Dec. 206); 2 Thomp. Neg. 981; Perry v. Lansing, 17 Hun, 34; Busch v. Railroad Co., 29 Hun, 112; Gray v. Railway Co., 24 Fed. 168.”

See, also, Selleck v. Railway Co., 93 Mich. 380 (53 N. W. 556, 18 L. R. A. 154), and cases there cited.

Exception is taken to the manner in which the trial judge gave defendant’s requests to charge. Counsel state their contention as follows:

“ It will be observed that the circuit judge failed to say that he gave the requests so read by him, or that the propositions of law therein were correct. During the argument of the law questions, the jury was excused from attendance upon the court, and it had no means of knowing that the particular requests were only part of those made, and therefore considered by the court to be correct. The court simply stated that counsel had handed them up as stating the law. Upon information, we will say that parties who heard the charge did not understand that the requests read were given. We wish to say that we understood them to be given, and were somewhat chagrined when informed that the jury did not; but, upon reading the charge, we see the force of the claim, and it is apparent that the jury was not given to understand that the requests as handed up embodied the law upon the subjects mentioned therein, and should control them in arriving at their verdict. This is made more apparent when attention is given to the court’s action in relation to the oral requests, for in that case he stated the oral requests,- and then proceeded to state his view. We were entitled to have these requests given, and, had we been impressed with the true situation at the time the charge was delivered, we should have called the court’s attention to it; but the error carinot now be remedied except upon a new trial.”

If the record were in a condition to raise the question, we do not think the point is well taken. A reading of the charge in connection with what occurred satisfies us the jury must have understood the requests were given.

Complaint is also made of that part of the charge referring to the oral request to charge the jury that they have no right to consider the failure of the defendant to procure the attendance of Mr. Gereoux as a witness. It • is said the court told the jury that it might find the defendant had some reason for not procuring Gereoux as a witness, and, if so, then that should be considered. We do not so understand the charge. The request to charge was not in writing, but was oral, and evidently the court did not have much time to consider it. While the language used by the court at first is somewhat involved, it calls the attention of the jury to the statement of counsel as to why Mr. Gereowx was not present, and concludes by saying to the jury:

“You shall not infer anything against the defense in this case by reason of their omission to call him as a witness. He is not a party to the case, and the plaintiff had the same right to call him as the defendant.”

We do not think the jury could have failed to understand this plain language.

Other questions are discussed by counsel. ■ We have examined them carefully, but do not deem it necessary to refer to- them further in this opinion. Many questions of fact were in dispute. We think they were properly submitted to the jury.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CITY OF MT. CLEMENS v. MT. CLEMENS SANITARIUM CO.
    1. Municipal Corporations — Streets — Obstruction — Injunction.
    A bill by a city to restrain the obstruction of a public street ■will not be dismissed, and the city remitted to an action of ejectment, merely because the premises are in the possession of the defendant.
    ■2. Same—Dedication and Acceptance.
    Where land was platted by the owner, the plat recorded, and lots sold by him according thereto, and the plat was ac. cepted by resolution of the village council, and a street shown thereon subsequently used by those having occasion to use it, such street became a public way by dedication in pais and acceptance, although the plat was not acknowledged in the manner required by the statute, and although the land (being a cul-de-sae) was for a time inclosed by the adjoining proprietors, and used for their own purposes.
    3. Same—Adverse Possession.
    While title to land within the limits of a public highway may be acquired by adverse possession, all of the essential elements of such a possession must be clearly established.
    Appeal from Macomb; Eldredge, J.
    Submitted February 12, 1901.
    Decided June 17, 1901.
    Bill by the city of Mt. Clemens against the Mt. Clemens Sanitarium Company, Limited, to restrain the obstruction of a public street. From a decree for complainant, defendant appeals.
    Affirmed.

      O. C. Lungerhausen, for complainant:
    There was a complete dedication in pais and acceptance of the streets shown by the- plat. 1 Comp. Laws, §■ 3383; Baker v. Johnston, 21 Mich. 340; White v. Smith, 37 Mich. 291; Plumb v. City of Grand Rapids, 81 Mich. 381, 392 (45 N. W. 1024); Village of Grandvillev. Jenison, 84 Mich. 54, 66 (47 N. W. 600); Ruddiman v. Taylor, 95 Mich. 547 (55 N. W. 376); Alton v. Meeuwenberg, 108 Mich. 629 (66 N. W. 571); Conkling v. Village of Mackinaw City, 120 Mich. 67 (79 N. W. 6 ); Gage v. Township of Pittsfield, 120 Mich. 436 ( 79' N. W. 687).

      Byron R. Erskine, for defendant:
    Cited to the contrary: People v. Jones, 6 Mich. 176; Tillman v. People, 12 Mich. 405; Baker v. Johnston, 21 Mich. 344, 345; County of Wayne v. Miller, 31 Mich. 449; Field v. Village of Manchester, 32 Mich. 279;, Supervisors of Cass Co. v. Banks, 44 Mich. 477 (7 N. W. 49); Diamond Mpitch Co. v. Village of Ontonagon,. 72 Mich. 257 (40 N. W. 448); City of Detroit v.
      Beecher, 75 Mich. 469 (43 N. W. 986); Village of Grandville v. Venison, 84 Mich. 67 (47 N. "W. 600); State v. Trash, 6 Vt. 355 (37 Am. Dec. 554); Bushnell v. Scott, 31 Wis. 451 (94 Am. Dec. 555 ); Morgan v. Railroad Go., 96 U. S. 716; Bridge Co. v. Bachman, 66 N. Y. 361.
   Hooker, J.

The city of Mt. Clemens filed the bill in this cause to prevent the defendant from appropriating to its own use for the site of its building a parcel of land which the city claims to have been dedicated to the public for a,city street by a former proprietor. The land was platted in 1874, and there is evidence clearly showing an acceptance of the plat by the common council. The dispute arises as to that portion of Greiner street, forming a cul-de-sac, between blocks 1 and 3 of Greiner’s addition, which, respectively, lie east and west of the street. The defendant owns a portion of each of said blocks, and proposes to use it for a site for its sanitarium, and this, if done, would obstruct, and effectively close up, the street. The evidence indicates that this portion of the street was used but little, and that, about the time that defendant purchased the land, it claimed that the dedication was not valid; but, to cut off any dispute, an attempt was made to induce the common council to vacate this part of the street, or in some way surrender any public rights therein, but the measure failed to pass the council. It is claimed, and there is perhaps little doubt, that the refusal to do this was based upon an understanding on the part of the council that there was no street to vacate; but this does not signify, as a vacation of the street cannot be thus accomplished. Some months before this suit was instituted, the defendant put a wire fence across the street, thus making the disputed portion a part of its inclosure. Subsequently the city highway officers forcibly took possession and destroyed the fence, and did some grading, a •collision of some violence occurring at the time between them and defendant’s agents. Soon after, defendant replaced the fence, and restored the premises to their former condition, and was in possession at the time that this suit was commenced to compel the removal of the obstruction and prevent the erection of the building in the street.

Counsel for the defendant makes the claim that the form of action is inappropriate, and that the defendant has a right to have its claim to title tried in ejectment. It is the rule that a bill to quiet title does not lie at the suit of one not 'in possession, and we have held that it will not lie in behalf of one who has taken possession by force for the purpose of filing such bill. See Watson v. Brewing Co., 61 Mich. 595 (28 N. W. 726); Wakefield v. Mining Co., 85 Mich. 622 (49 N. W. 135); Lillie v. Snow, 118 Mich. 613 (77 N. W. 241). And it was applied to one who sought to restrain the closing of a private alley, where the complainant had forcibly invaded the premises, and destroyed a fence which defendant had erected for the purpose of closing the alley. De Sale v. Millard, 108 Mich. 581 (66 N. W. 481). This bill is filed for a different purpose, viz., to compel the defendant to desist from obstructing a public way. It is a common method of abating a public nuisance, and we have in several instances granted relief upon such bills where the defendants have been in possession. 3' Pom. Eq. Jur. § 1349; State v. Goodnight, 70 Tex. 682 (11 S. W. 119); Mayor, etc., of Jersey City v. Railroad Co., 40 N. J. Eq. 417 (2 Atl. 262); City of Eau Claire v. Matzke, 86 Wis. 291 (56 N. W. 874, 39 Am. St. Rep. 900); City of Big Rapids v. Comstock, 65 Mich. 78 (31 N. W. 811); Village of Grandville v. Jenison, 84 Mich. 54 (47 N. W. 600); Village of Essexville v. Emery, 90 Mich. 183 (51 N. W. 204); Village of Red Jacket v. Pinton, 126 Mich. 194 (85 N. W. 567).

Our investigation of the record leads us to the conclusion reached by the learned circuit judge who tried the cause." The plat and the subsequent conduct of the proprietor clearly indicate a design to dedicate this land for the purpose of a street, and the resolution of the council shows as clear an intention to accept the dedication. The street was subsequently used by those who had occasion to use it for a time, and the testimony that it was after-wards closed up and used for agricultural purposes, to the exclusion of the public, is not conclusive either of the fact (for it is disputed) or of the intention on the part of the owners to make more than a temporary use of it. There was a good dedication in pais, even if the plat was informal, and a valid acceptance; and we think that title by adverse possession on the part of the defendant and its grantors is not proved. Public rights are peculiarly subject to infringement, because of the proverbial indisposition of the public to resent every aggression or invasion of its rights; and this is especially true as regards its highways. So long as an encroachment does not prevent use altogether, travelers are prone to put up with the inconvenience, and pass on'. The propriety of permitting title to be obtained in this way to the public highways is of more than doubtful expediency, and is not common in other jurisdictions, though sanctioned here, when it is clearly established. Our views upon this subject were expressed in the case of Village of Red Jacket v. Pinton, which was a similar case in many respects.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, J. Per Curiam.

text:
      In re MALLARY’S ESTATE.
    1. Executors and Administrators—Compensation.
    The question of the compensation of an executor or administrator is one for the court.
    2. Wills—Life Estate—Gift—Diversion of Funds—Accounting—Vested Remainder.
    A testator gave the bulk of his estate, both real and personal, to his wife, ‘ ‘ to use as she shall see ñt, or so much of the same as she shall need for her support, comfort, and maintenance ” during her lifetime, the residue, after her death, to be divided equally among three persons, “ or their legal heirs or representatives, in case either should die before final settlement.” The widow was appointed executrix, and acted as such until her death. Held:

    (1) That the widow did not take an absolute title to the property, and hence further administration, after her death, was proper.
    (3) That a payment of $1,000 made by the widow to a residuary legatee from funds of the estate was properly charged against his distributive share on final settlement, though intended by the widow as a gift, and though she was possessed of property in her own right.
    (3) That the widow had no authority to remit the interest on a mortgage owned by the estate; she being bound to account for the income of the estate as well as the principal
    (4) That an estate in remainder vested in the residuary legatees at the testator’s death, so that, in the event of the death of one of them before the -widow, his share would pass to those then constituting his heirs at law, rather than to those who might sustain that relation to him at the termination of the life estate.
    Error to Macomb; Eldredge, J.
    Submitted February 14, 1901;
    opinion filed June 17, 1901.
    Rebearing
    granted December 3, 1901;
    reargued January 29, 1902;
    former opinion affirmed March 4, 1902.
    In the matter of the estate of Charles F. Mallary, deceased : Appeal of Charles R. Greene from the allowance of the final account of Dwight N. Lowell, administrator de bonis non with the will annexed. The judgment of the probate court was substantially affirmed in the circuit, and appellant brings error.
    Affirmed.

      James H. Pound, for appellant:
    The widow took an absolute estate, at least as to the personalty. Jones v. Jones, 25 Mich. 401; Proctor v. Robinson, 35 Mich. 291; Sutphen v. Ellis, Id. 446; Jones v. Deming, 91 Mich. 483 ( 51 N. W. 1119); Forbes v. Darling, 94 Mich. 622 (54 N. W. 385).
    In any event, the estate did not vest in the remainder-men until the widow’s death, and, the devisee Flora having died in 1894, and her sole surviving issue in 1896, before the death of the widow, Flora’s share passed to appellant, her brother and sole heir at law, rather than to .her husband.

      T. M. Crocker (Geer & Williams, of counsel), for appellee:
    Cited, on the question of the nature of the widow’s •estate, in addition to the cases mentioned in the opinion, Glover v. Reid, 80 Mich. 228 (45 N. W. 91); McCarty y. Fish, 87 Mich. 48 (49 N. W. 513). . Also, to the point that the estate of the residuary legatees vested at the testator’s death, Rood v. Hovey, 50 Mich. 395 (15 N. W. •525); Porter v. Porter, 50 Mich. 456 (15-N. W. 550).
   Hooker, J.

Charles F. Mallary died, leaving a will, which contained the following provisions:

‘ ‘ Third. All the rest of my estate, both real and' personal, of all kinds, or any other of which I shall .be in possession of at the time of my decease, I give and bequeath to my wife, Nancy Mallary, to use as she shall •see fit, or so much of the same as she shall need for her •support, comfort, and maintenance during the whole term of her natural life, and her funeral charges and burial.

“Fourth. After the death of my .wife, and all the fore.going items are settled and paid in full, I direct, give, and bequeath that all of my said estate, both real and personal, that may remain, shall be divided equally, share and .share alike, between my adopted daughter, Frances A. Morton, and my nephew, Charles R. Greene, and my niece, Flora J. Greene, the wife of Charles H. Betts, or to their legal heirs or representatives in case either of them should die before the final settlement; and, if my said, •daughter should die leaving no direct heirs, then and in that case I direct that her share shall be divided between the said Charles R. Greene and Flora J.' Betts, or their legal heirs and representatives.

“Fifth. In case that my wife should die before my decease, then and in that case I direct that all my estate, both real and personal, shall be disposed of according to tlfe foregoing fourth section of this instrument.

“Sixth. I do hereby appoint my wife, Nancy Mallary, sole executrix of this, my last will and testament, without bail or security, and, in case of her death before my decease, I appoint Charles R. Greene executor in her place and stead.”

Mrs. Mallary qualified as executrix, and took possession of the property, which she kept in her custody and control until she died, except as she used it for her support, or made other disposition of it. Mr. Dwight N. Lowell acted as adviser, at the suggestion of the other legatees, who thought their mutual interests required that she have proper legal advice. He received a yearly retainer of $25, presumably paid from the estate by Mrs. Mallary. Upon the death of Mrs. Mallary, the persons interested had a meeting, at which it was agreed that Mr. Lowell should be appointed administrator de bonis non, with a view to-converting the property into cash and dividing it. He-consented to act in that capacity on the express understanding that he should not so act for the usual legal fees, and the agreement that he should have reasonable pay for his services. The controversy before us arises upon the-hearing of his final account.

Counsel for the appellant, Greene, makes three general contentions, which we will consider. He contends:

First. That all of the property passed to Mrs. Mallary under the will absolutely; and that, she being the absolute owner, there was no unadministered estate of Charles F. Mallary calling for an administrator de bonis non, and that what Lowell did was in the capacity of an agent of the parties, and that he should look to them for compensation.

Second. He insists that, if this view should not be taken by'the court, a charge of $1,000 and interest, made against the appellant, should not be sustained, it being claimed that the amount was a gift from Mrs. Mallary.

Third. Objection is made to the allowance of compensation to Mr. Lowell upon the ground that it is excessive.

The case was heard in part with a jury, and a verdict taken upon questions submitted by the learned circuit judge, after which more testimony was taken before him, and a finding of fact and law filed.

In none of the questions presented by this record, unless it be in relation to the $1,000 item, could a verdict of a jury be more than advisory. The construction of the will was clearly for the court, and the allowance of compensation was also a matter for the court. See Ward v. Tinkham, 65 Mich. 698 (32 N. W. 901); In re Brewster’s Estate, 113 Mich. 561 (71 N. W. 1085); In re Pfeffer’s Estate, 117 Mich. 207 (75 N. W. 454); McCarthy v. Kent Circuit Judge, 118 Mich. 365 (76 N. W. 756). The judge so treated them, and as to the other questions he followed the verdict.

We think that the circuit judge was not in error in holding that the testator did not intend to give Nancy Mallary the'unqualified and absolute title to all of his property, and that there was occasion for further administration after her decease. Counsel have cited the authorities, and they clearly support the conclusion of the circuit court. Schehr v. Look, 84 Mich. 263 (47 N. W. 445); Cousino v. Cousino, 86 Mich. 323 (48 N. W. 1084); Barnes v. Marshall, 102 Mich. 248 (60 N. W. 468); Godshalk v. Akey, 109 Mich. 350 (67 N. W. 336); Gadd v. Stoner, 113 Mich. 689 (71 N. W. 1111); Hull v. Hull, 122 Mich. 338 (81 N. W. 89).

We think, also, that there was no injustice in the allowance of compensation. See authorities hereinbefore cited.

During the period of the administration of the estate by Mrs. Mallary, the appellant, Greene, received from her the sum of $1,000. He insists that this was a gift. On the other hand, Lowell and Betts testified that, at the interview first mentioned, Lowell made up a statement of amounts which had been received by the various legatees from their statements, and Greene admitted that he had received this $1,000. The bank books show that it was checked to him by Mrs. Mallary against the account of the estate. It is said that Mrs. Mallary had means of her own, and that, instead of a charge against Greene on behalf of the estate, the estate must be reimbursed for this gift from her estate. The jury found that he received money belonging to the estate from Mrs. Mallary, and -that she intended it as a gift. In the court’s finding of law he held that, while the estate of Mrs. Mallary might be liable for any sum misappropriated from the estate of her husband, it was competent to apply the sum received by the appellant from the estate of Mr. Mallary upon his distributive share, together with any sum due from him to that estate as interest. We think these conclusions correct upon the facts found.

Was there error in submission to the jury ? The record contains all of the testimony, and we feel justified in saying, as was said by the court in the case of In re Brewster’s Estate, 113 Mich. 564 (71 N. W. 1085), that, as to the question of compensation, “we are convinced that no error, was committed which has resulted in prejudice to the appellant.”

Among the assets of this estate was a mortgage of $2,200, or thereabouts, against appellant’s wife. It was conceded that whatever should be found to be due upon it should be applied on appellant’s distributive share; but it was contended that the interest was remitted by Nancy Mallary, and that she had the right to do this, because, as life tenant, the earnings of the estate were hers absolutely, at all events. She had the right to the possession of the estate, and to use what was necessary from the aggregate estate, as in the case of Hull v. Hull, but she was under obligation to account for the income as well as .the principal.

There is a long list of errors assigned, but we find no others requiring discussion.

The order of the circuit court is affirmed, with costs against the appellant.

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

ON REHEARING.

Per Curiam.

Our former opinion implies that an estate in remainder vested in Flora J. Greene and others at the death of Mallary. It has been the contention of counsel that a proper construction of the will would lead to a different conclusion; but, after a reconsideration of the question, we are of the opinion that our former view was correct, and our former order is therefore affirmed.

Long, J., did not sit.


author: Long, J.

text:
    AVERY v. FOREST LAWN CEMETERY CO.
    Exemptions—Cemeteries—Enforcement of Judgment—Power of Chancery Court.
    Under 3 Comp. Laws, § 10332, providing that all cemeteries, tombs, and rights of burial, while in use as repositories of the dead, shall be exempt from levy and sale on execution or any other final process of a court; and the proviso to section 437, 1 Comp. Laws, that the power'of the chancery court to decree the satisfaction of judgments on creditors’ bills shall not extend to ‘'property exempt from execution,”—a court of chancery has no power to enforce a judgment by directing the sale of property used as a cemetery, though the owner be a private corporation organized for financial profit.
    Appeal from Wayne; Hosmer, J.
    Submitted February 14, 1901.
    Decided June 17, 1901.
    Bill by John H. Avery and others, executors of the last will and testament of Darius N. Avery, deceased, against the Forest Lawn Cemetery Company, to enforce a judgment against defendant by the sale of its lands. The Detroit Savings Bank was permitted to intervene as a defendant. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Gray & Gray, for complainants.

      Sidney T. Miller and James Cosslett Smith, for defendant bank.
   Long, J.

The bill is filed in this case by the executors of the last will of Darius N. Avery against the Forest Lawn Cemetery Company to obtain a decree against said company authorizing the sale of certain real estate held by the company for cemetery purposes, to pay a judgment obtained by complainants’ testate in the Wayne circuit court on December 31,1898, for $18,519.55 and costs taxed at $22.

The defendant company was organized in 1889 under Act No. 12, Laws 1869, entitled “An act to authorize and encourage the formation of corporations to establish rural cemeteries, and provide for the care and maintenance thereof.” After its formation the company purchased certain real estate for burial purposes. It first purchased 80 acres in December, 1889, and shortly thereafter purchased on executory contract a 20-acre tract adjoining. In 1893, under the authority of the act for the formation of such companies, it prepared a plan for laying out said two parcels of land as a cemetery, with burial lots, ornamental grounds, roads, and pathways, and recorded said plan in the office of the company, and has from time to time since granted to various persons rights of burial in certain parts of the cemetery, it being intended that the whole should remain as a cemetery under the plan aforesaid. In June, 1898, the company purchased an additional 10 acres for the purpose of dividing the same into burial lots. This last 10 acres was purchased under an executory land contract, and the company, being indebted on the contract for the 20 acres, as well as for the 10 acres, was unable to pay for the said 10 acres. That .contract was afterwards declared forfeited, and reverted to the vendor in the contract. The defendant company paid about $25,000 for the land now held, and has expended thereon about $85,000. It has no assets except these lands. It appears that at one time, in order to raise funds, it issued interest-bearing stock. It became further embarrassed, and borrowed money from time to time of Darius N. Avery. He held 264 shares of preferred and 618 shares of common stock. The Detroit Savings Bank, one of the defendants, owned 116 shares of stock, of the par value of $11,600. After the bill in this cause was filed, the Detroit Savings Bank was permitted to intervene as a defendant.

It is alleged in the bill that the corpoi’ation has not sufficient funds with which to continue the maintenance of said cemetery; that it has no claim against any of the stockholders, because said stock in their hands is fully paid;

“That your orators have proposed to the other stockholders that all shall unite in paying in a sufficient sum to insure the maintenance of said cemetery; that about three-fourths of the stockholders in value are prepared to pay such assessment as may be necessary for this purpose, but that the remaining stockholders are unwilling to make any advances, and the majority are unwilling, therefore, to make any payments which shall inure to the ■ benefit of the minority unless the latter contribute their proportion.”

The prayer of the bill is that, in order to preserve the present burial rights in the cemetery, the lands may be sold, with such provision as the court may deem proper for the preservation of burial rights; that the proceeds of the sale be applied to the payment of the judgment; and that the cancellation of the contract for the purchase of the 10 acres be confirmed.

The defendant Detroit Savings Bank filed an answer to the bill, alleging that the lands first described in the bill are exempt from sale under any decree or order of the court, and prayed the same advantage of the answer as if it had pleaded or demurred to the bill. The bill was taken as confessed by the cemetery company, and heard on pleadings and proofs taken in open court as to the Detroit Savings Bank. The court found by the decree that the defendant company had the lands described, but that they had been laid out as a cemetery, with burial lots, ornamental grounds, roads, and pathways, and that it had no other property; “that the sale of said lands or any part thereof, under the decree of this court, for the purpose of satisfying the claim of the complainants, is forbidden by law, and this court therefore denies a sale thereof, either directly or through a receiver or other officer of this court.” No costs were granted. The complainants appeal.

It appears that there had been about 1,700 burials in the cemetery at the time of the hearing in the court below. The statute in reference to such cemeteries provides by-section 8406, 3 Comp. Laws, that:

“All the lands of said corporation inclosed .and set apart, for cemetery purposes, and all rights of burial therein, shall be wholly exempt from taxation of any kind whatsoever.”

Section 840? provides:

“No mortgage or other lien or incumbrance shall be executed upon any of the lands of such corporation actually used for burial purposes, and no rights of burial upon any mortgaged lands of such corporation shall at any time be granted or sold by it.”

And by section 10322 it is further provided:

“ The following property shall be exempt from levy and sale under any execution, or upon any other final process, of a court: * * * Third. All cemeteries, tombs, and rights of burial, while in use as repositories of the dead.”'

It appears that an execution was issued on the judgment obtained by complainants, and returned unsatisfied. They now seek by the aid of the court of equity to acquire , rights in the lands which they could not have or obtain in an action at law, and in lands which, by the statute, are exempt from levy and sale on execution or any other final process of a court.

The general powers, duties, and jurisdiction of circuit courts in chancery are defined in section 437, 1 Comp. Laws, as follows:

“The court shall have power to compel such discovery, and to prevent such transfer, payment, or delivery, and to decree satisfaction of the amount remaining due on such judgment out of any property, money, or other things in action belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by proceedings in chancery, whether the same were originally liable to be taken in execution at law or not: Provided, this act shall not apply to property exempt from execution.”

Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law. In Skinner v. Shannon, 44 Mich. 86 (6 N. W. 108, 38 Am. Rep. 232), which involved the statutory exemptions of the members of a partnership, it was said :

“If the property is exempt under the statute, parties dealing with them must take notice of that fact; and it is no hardship whatever to enforce the right when the oc~ casion arises which demands it.”

In Wolford v. Cemetery Ass’n, 54 Minn. 440 (56 N. W. 56), foreclosure was attempted of a mortgage on cemetery lands. The statute forbade conveyance except for burial purposes. It was the contention of the complainant that, though the land was impressed by law with a perpetual use for cemetery purposes, his mortgage would be operative to the extent of the defendant’s interest in the premises; its grantee would take the land subject to the same use; and complainant would succeed to the proprietorship of the land, holding it, as defendant held it, for the purpose of and subject to use for burial. This right was denied to the complainant, and it was held that the mortgage was void, and its foreclosure unavailing-

It is the settled policy of this State, in common with the universal sentiment of mankind, to preserve and maintain the burial places of the dead. The legislature has, by express enactment, prohibited the sale, except for burial purposes, or mortgaging, of lands set apart for cemetery purposes. It has also in express terms provided for the exemption from levy and sale on execution, or upon any other final process of a court, of all cemeteries, etc., while in use as repositories of the dead. This was within the power of the legislature to do, and so careful has the legislature been to preserve such properties for burial purposes that it has also in express terms taken it out of the power of the court of chancery to decree satisfaction of any judgment out of such exempt property.

The decree of the court below must be affirmed, with costs of this court to defendant Detroit Savings Bank.

The other Justices concurred.


text:
    PEOPLE v. CLEMENT.
    1. Criminal Law—Attempt to Incite Perjury—Sufficiency of Information.
    An. information under 3 Comp. Laws, § 11308, for attempting to incite the crime of perjury, which avers that the testimony sought to be procured was false, to respondent’s knowledge, is not fatally defective in failing to aver that the person approached also knew it to be false.
    2. Same—Instructions—Sufficiency of Evidence.
    A conviction will not be reversed because the trial court said to the jury in the first part of his charge, apparently through inadvertence, that they might convict if satisfied of respondent’s guilt by a preponderance of the evidence, where he afterwards told them clearly several times that, in order to convict, they must be convinced of such guilt beyond a reasonable doubt.
    Exceptions before judgment from Schoolcraft; Steere, J.
    Submitted February 15, 1901.
    Decided June 17, 1901.
    Ludger Clement was convicted of an attempt to incite the crime of perjury.
    Affirmed.

      G. W. Dunton and T. J. Dundon, for appellant.

      F. H. Peters and Virgil I. Hixson, Prosecuting Attorneys, for the people.
   Long, J.

The respondent was informed against and convicted under section 11308, 3 Comp. Laws, which provides .

“If any person shall endeavor to incite or procure any person to commit the crime of perjury, though no perjury be committed, he shall be punished by imprisonment in the State prison not more than five years, or imprisonment in the county jail not more than one year.”

It is alleged in the information that respondent had theretofore been arrested upon the charge of bastardy, and after such arrest, and pending a hearing before the justice upon said charge, had procured the signature of the complaining witness to a letter directed to the justice, in which the witness denied that the respondent was the father of her child. The letter is set out in full in the information, after which the information alleges:

“ Which certain writing was introduced as evidence in the defense of said Ludger Clement on said complaint at the hearing of the same * * * before the said justice, * * * which said writing was false and untrue, and which the said Ludger Clement then and there, upon the said hearing, * * * knew to be false and untrue, and procured by said Ludger-Clement for the purpose of inciting the said Exina Carifiell [the complaining witness], when sworn as a witness upon the said hearing, to commit the crime of perjury. And also the said Ludger Clement did * * * endeavor to incite and procure said Exina Carifiell to commit the crime of perjury upon the hearing •of the aforesaid complaint before * * * said justice, by then and there, * * * when she, said Exina Carifiell, was to be sworn as a- witness therein, inciting her to testify that he, said Ludger Clement, was not the father of said child; contrary to the form of the statute. * •* * ”

It is the contention of counsel for respondent that the ■information states no offense under the statute, for the reason that it does not aver that the testimony of the complaining witness would be false, and also does not aver that the witness knew that her proposed testimony would be false. It appears upon the face of the information that the charge is made that the testimony of the complaining witness sought to be introduced was false. The information avers that the testimony was false, and that respondent knew it to be false. The only question is whether it is necessary, under this statute, to aver that the witness knew that her proposed testimony would be false.

An attempt or endeavor to suborn a person to commit perjury was, at common law, a misdemeanor. Tiff. Cr. Law, p. 1005; 2 Chit. Cr. Law, 180. A very different question is presented under this statute than would be presented under the statute for subornation of perjury. It may be true that on a charge for subornation it would be necessary to aver and prove that the witness did falsely, wickedly, willfully, and corruptly say, depose, and swear, etc., or some words equivalent thereto; but in a charge under this statute the offense is complete if averred and proved that the respondent did endeavor to incite or procure the witness to commit the crime of perjury, and it need not be. averred that the witness knew that the testimony sought to be procured was false. A somewhat analogous question was presented in State v. Keyes, 8 Vt. 66 (30 Am. Dec. 150). In that case the grand jury had presented an indictment against one Howe, which was-pending, and one Keezer was a material witness on the part of the State, and about to be summoned to attend the trial as a witness. It appeared that the respondent knew these facts, and that Howe was about to be arrested and held. It was alleged in the information that Keyes “ did endeavor to persuade and induce the said John Keezer to abscond and refrain from appearing before the court, * * * with intent to obstruct and impede the due course of justice.” Mr. Justice Redfield said in that case:

“The question here is not whether the witness has been guilty of a contempt in disobeying the process of the court, but whether there has been a corrupt attempt to obstruct the due course of public justice by spiriting away or preventing the attendance of a witness. If the person induced to absent himself knew of his being a witness, and was induced to absent himself, the offense was complete in him. If the respondent knew of his being a witness and about to be compelled in due course of law to attend the trial, and endeavored to dissuade and hinder him therefrom, in the language of the indictment, his offense is complete. * * *

“ It is further argued that the information is insufficient because it contains no allegation that the offense was consummated, but only an attempt to hinder the witness from attending the trial. This question was formerly much discussed in Westminster Hall, but is now well settled. * * * It is well settled at common law that an attempt or endeavor to commit a felony or misdemeanor is punishable itself, as a substantive misdemeanor. An attempt to bribe the first lord of the treasury to procure the reversion of the office of clerk of the supreme court of Jamaica was, in Lord Mansfield’s time, held clearly indictable. Rex v. Vaughan, 4 Burrow, 2494; * * * Rex v. Philipps, 6 East, 464.”

The case of State v. Keyes, supra, was cited with approval in State v. Carpenter, 20 Vt. 9.

Our statute has made the offense as it existed at common law punishable as a felony, and it is no more necessary under this statute to aver and prove that the witness knew that the testimony sought to be procured was false, than it was necessary in the Vermont'case to aver that the witness there knew that he was about to be a witness. The information fully apprised the respondent of the charge made against him, and would be sufficient if laid in the words of the statute. Rice v. People, 15 Mich. 9; People v. Kent, 1 Doug. 42; 3 Comp. Laws, § 11914.

It is contended that the testimony given on the trial fails to make out a case. An examination of the record convinces us that this contention cannot be sustained. The complaining witness testified on the trial that she met the respondent at the house of Father Kunes; that respondent there handed her the letter in question to sign, and said that would settle the matter up; that he gave her $100, and said some more would be given her every month; that they went from the house over to the court, and respondent said to her: “ All I had to say was that he was not the father of the child. This was in the court-room; and I told him I would not swear false.”

At the close of the testimony the court charged the jury upon the main question in the case as follows:

“ It is charged that proceedings were had before Justice Hill, a magistrate of this county, on the complaint of Exina Carifiell, charging this respondent with being the father of her illegitimate offspring; and it is charged that he was in fact the father; that, knowing that fact, while those proceedings were pending he secured from the mother of the child a statement in writing that he was not the father of the child; and it is charged that, at an adjourned day of the hearing before the magistrate, he sought to induce her to swear falsely at that hearing in his behalf, to the effect that he was not the father of that child. And that is the issue in this case. On the part of the defense, that is denied. And now, if the testimony in . this case, taken as a whole, satisfies you by a preponderance of evidence that he was the father of this child, that he knew it and she knew it, and that at the hearing he endeavored to procure her to swear falsely,—sought to induce or incite her to take the stand, and, under oath, at the hearing before the magistrate, in his behalf testify that he was not the father of the child,—then the offense is made out, and it is your duty to convict.”

Immediately following this part of the charge, the court continued as follows:

“As you canvass the testimony in this case, you, of course, will be governed by the evidence, and nothing else. It is not for you to theorize or conjecture or surmise as to any fact outside of the testimony, as to why witnesses were or were not sworn. You are not to allow yourselves to be governed by any assertions made by counsel in their argument, or anything which has been said to prejudice or excite you. But you are expected to decide calmly and impartially the testimony, remembering that every man is presumed to be innocent until proven guilty,'and. the burden of proof is upon the prosecution to make out these facts beyond all reasonable doubt. And now, if at the time of the alleged conversation at the magistrate’s office between the respondent and Exina Carifiell there existed a reasonable doubt in the minds of either of them as to the paternity of the child, or if the respondent honestly believed that he was not the father of this child, there could be no conviction, because it is necessary for you to find that he was the father of this child, and that he knew it at the time. And, in order to justify a conviction, you must be satisfied to a moral certainty, and beyond all reasonable doubt, that the respondent is the father of the child in question, and that, at the time of the alleged con-, versation with her, both he and she knew he was the father of the child, and, knowing it, under those circumstances, he feloniously endeavored to induce her to make oath to the contrary and swear falsely. Now, that is the issue for you to determine, and you have the testimony before you. You are the judges of the credibility of the witnesses, and it is for you to say, from what has happened in this case, whether or not the prosecution has made out those facts to your satisfaction and beyond all reasonable doubt.”

It is contended by counsel for respondent that the court committed error in the first portion of this charge, prejudicial to the respondent, in stating to the jury that:

“If the testimony in this case, taken as a whole, satisfies you by a preponderance of evidence that he was the father of this child, * * * it is your duty to convict.”

The charge must be taken as a whole, and we are of the opinion that the jury could not have been misled by the court’s use of the word “preponderance.” He may have done so inadvertently; but, whether so or not, we think the error was cured by the concluding portion of the charge, where the rule was fully stated.

We find no error in the record, and the conviction must be affirmed.

The other Justices concurred.


text:
    PEOPLE v. DORNBOS.
    1. Fish—Weight—Illegal Possession—Construction of Statute—Title to Act.
    Section 2 of Act No. 88, Pub. Acts 1899, providing that it shall be unlawful to have in possession any lake trout weighing less than 1-J pounds in the round, applies not only to fishermen, but to any one having such fish in his possession; the title to the act (i. e., an act “to regulate the catching of fish in the waters of this State by the use of pound or trap nets * * * or other apparatus ” ) being sufficiently broad to warrant this conclusion.

      2. Same—Elements of Offense—Stripped Fish.
    To authorize a conviction under said section, it is not necessary that the fish should have been in the round when found in respondent’s possession; it being sufficient if the fish so found never weighed li pounds each.
    3. Same—Pleading and Proof.
    Nor, under a complaint charging the possession of “a large number, to wit, 300 pounds,” of trout of less than the prescribed weight, is it necessary to prove that each and every fish of such quantity was under weight.
    4. Same—Defenses—Importation of Fish.
    It is no defense to a prosecution'under said section that the fish were caught in another State; the proviso to the section, that it shall be lawful to transport and sell any trout “ legally caught” during any season of the year, having reference solely to fish not under the specified weight.
    Exceptions before judgment from Ottawa; Padgbam, J.
    Submitted February 15, 1901.
    Decided June 17, 1901.
    Henry Dornbos and Gerrit Dornbos were convicted of a violation of tbe fish laws.
    Affirmed.

      Walter I. Lillie, for appellants.

      P. II. McBride, Prosecuting Attorney, for the people.
   Long, J.

Respondents were charged with having in their possession, contrary to law, a large' number of lake trout, to wit, 300 pounds, each weighing less than impounds in the round. The complaint was made under the provisions of section 2, Act No. 88, Pub. Acts 1899. A trial was had before the justice, and respondents were convicted. An appeal was taken to the circuit court, and on a trial before a jury the respondents were again convicted. The case comes into this court on exceptions "before judgment.

The title of the act is :

“An act to amend sections one and two, and to add sections six and seven, of act number one hundred fifty-one of the public acts of eighteen hundred ninety-seven, entitled ‘An act to regulate the catching of fish in the waters of this State by the use of pound or trap nets, gill nets, seines, or other apparatus.’”

Section 2 of the act of 1899 provides:

‘ ‘ It shall be unlawful to market or have in possession any sturgeon or rock sturgeon weighing less than fifteen pounds, any white fish weighing less than two pounds, any lake trout weighing less than one and one-half pounds, * * * in the round.”

Section 2 of the act of 1897, of which this is an amend-, ment, provides that it shall be unlawful to market or have in possession any sturgeon or rock sturgeon weighing less ■than 15 pounds, or any white fish weighing less than 2 pounds, in the round. The only change made in section 2 by the act of 1899 is to include lake trout and other small fish not enumerated in section 2 of the act of 1897. It is contended by counsel for respondents that these acts ■of 1897 and 1899 were intended to apply only to fishermen, and not to persons who do not catch fish, and whose offense it is to have them in possession; that, if the acts were intended to apply to persons having such fish in possession, the same was not set forth in the titles to the acts. Counsel cites, as sustaining- his contention, the case of Osborn v. Charlevoix Circuit Judge, 114 Mich. 655 (72 N. W. 682).

That case places no such limitation upon the act of 1897. The title to the act is, we think, broad enough to warrant the placing of the provisions of section 2 therein. It is one of the means intended by the legislature to regulate the catching of fish in the waters of the State. If it be made unlawful to market or have in possession these small fish, then fishermen of the State would have no occasion or purpose in taking them from the waters. Section 1 of the act regulates and prescribes the duties of fishermen in the catching of fish, and makes it unlawful for them to use' any but the prescribed kinds of nets; and section 4 makes any violation of the act a misdemeanor, and prescribes the penalty. Counsel also cites People v. Allen, 45 N. Y. Supp. 74, as sustaining his contention. The court had under consideration there a section of the statute making it unlawful to take clams from their beds less than the size therein specified. It was held that the persons contemplated by such section were the catchers of clams, and not restaurant keepers. So far as shown by the opinion in that case, there was no reference in the statute to any persons except those who were dredging or digging for-clams. If the statute of Michigan under consideration had not contained the provisions of section 2, it would likely follow that the act could not be applied to one having fish in possession.

Counsel for respondents asked the court to charge the jury:

“Unless you find from the evidence in this case, and beyond a reasonable doubt, that the fish mentioned in the evidence in this case were each in the round, and each; weighed less than one and one-half pounds, when found in their possession, your verdict will be not guilty.”

This was refused, and the court charged:

“The question in this case is, Did these respondents, have in their possession—it makes no difference how few —lake trout that weighed less than a pound and a half in the round? Now, what is meant by ‘in the round?’ It. is before they are cleaned. It is claimed by the respondents that this phrase means that they shall be in the round when they are found in the possession of the party. That is not the construction of the law, as I read it. * * * If you find that they were fish that never weighed a pound and a half, they would be liable under this statute.”

' We think the court was not in error in refusing the request asked nor in the charge as given. The legislative intent is clear that the prohibition was against the taking or having in possession fish weighing at the time of taking less than the prescribed number of pounds, and the having in possession of one or more of such fish is a violation of the terms of the statute.

But one other question is raised which we deem of any importance to the rights of the respondents. On the trial the question was asked of one of the people’s witnesses on cross-examination, ‘ ‘ Do you know what kinds or sizes of fish can be caught in Indiana ?” This was objected to, and the objection sustained. Counsel in his brief now asserts that this was error, and claims that one might catch fish of the prohibited weight in Indiana, and bring them into this State, without violating the statute, as, by the proviso of section 2 of the act, it is made lawful “to transport and sell any of said described kinds of fish legally caught during any season of the year.” That proviso has sole reference to fish not prohibited by that section from being caught,—that is, fish weighing more than the number of pounds specified in the act,—and as to those fish they might be transported and sold during any season of the year. -Undoubtedly it would be an offense under the statute to bring into this State to market, or have in possession, prohibited fish weighing less than that prescribed by the act. In Massachusetts the statute provides:

“Whoever sells or offers for sale, or has in his possession, a lobster less than ten and one-half inches in length, * * * shall forfeit five dollars for every such lobster.”

It was held in Com. v. Savage, 155 Mass. 278 (29 N. E. 468), that the act applied to lobsters caught and sent in from the British possessions.

It follows that the conviction must be affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    PEOPLE v. DOWD.
    1. Homicide—Evidence—Impressions of Witnesses.
    It is error in. a prosecution for homicide to permit a witness to state her impression that respondent was envious of deceased.
    2. Samé—Testimony at Inquest—Identification—Üse in Argument.
    Where a witness in a homicide case is shown his testimony before the coroner, and admits his signature thereto, and it is -then offered in evidence and admitted without objection, it is error to refuse to allow it to be read in argument on the ground that it was not sufficiently identified.
    3. Same—Self-Defense—Disposition of Deceased.
    In a prosecution for homicide, specific acts of violence on the part of deceased towards other persons, which do not form part of the res gestae, are not admissible in support of a claim of self-defense.
    Exceptions before' judgment from Allegan; Padgham, J.
    Submitted February 15, 1901.
    Decided June 17, 1901.
    Charles Dowd was convicted of manslaughter.
    Reversed.

      W. B. Williams & Son & Thompson (Wilkes & Hoffman, of counsel), for appellant.

      Charles N. Thew, Prosecuting Attorney, and Gerrit J. Diekema, Assistant Prosecuting Attorney, for the people. ■
   Montgomery, C. J.

The respondent was convicted of the crime of manslaughter. The information charged murder. The killing occurred in an affray or contest over the possession of a house. The circuit judge charged the jury as follows:

•‘I charge you that if you find from the evidence that, in this affray between Charles and Ernest Dowd on that Sunday afternoon, Ernest assaulted Charles with a stick, and that Charles did what he could to avoid the affray and get away from the danger threatening him, then the question is, Did Charles Dowd, under the circumstances of the assault, as it appeared to him, honestly believe that he 'was in danger ¡of his life or of great bodily harm, and that it was necessary for him to do what he did in order to save himself from such apparent threatened danger? If he did so actually believe, then he would be justified in taking the life of his assailant.”

It is claimed that in other portions of the charge the court left it open to the jury to convict of homicide if the respondent went further in the use of force than was actually necessary to hig defense, even though the force used may have appeared necessary to him. It is possible that some portion of the charge, standing by itself, may be open to this criticism; but, as we feel constrained to reverse the case on other grounds, we find it unnecessary to determine whether the language employed was calculated to mislead the jury.

The deceased was a brother of respondent, and the mother was called as a witness. She was permitted to testify as follows:

Q. From conversations you have had with your sons, do you know what the feelings were between them ?

“A. They were not the most friendly that ever was.

“Q. Were they not unfriendly ?

“A. Sometimes.

“Q. What was the trouble ?

.“A. I couldn’t say.

“Q. Was it about the-property ?

“A. Probably it was; I could not be sure. There was some envy, I think.

“Mr. Wilkes: I move to strike that out. (Motion denied, and defendant excepted.)

“Q. Envy on whose part ?

“A. I don’t know as I am right,—the impression I had that Charles was a little envious; thought Ernest was having a better chance than he.

“Mr. Wilkes: I move to strike that out. as incompetent.

“The Court: Let it stand. (Defendant excepted.)”

We think it was error to permit the witness to state her impressions as to what the state of respondent’s mind was. It is true, as stated by counsel for the people, that a witness may testify as to a state of affection between parties; but this is generally based upon outward manifestation. Whether one is actuated by envy is something not within the power of any witness to testify to as a fact. •

Thomas Hinton, a witness to the res gestae, was called by the people, and gave testimony of a damaging character. On cross-examination he was shown his testimony taken at the coroner’s inquest, and was asked if the signature appended was his signature. He answered that it was. His testimony taken at the inquest was then offered in evidence, and received without objection. On the argument, respondent’s counsel proposed to read this testimony, when the people’s counsel objected, on the ground that it was not sufficiently identified, as the witness was* not asked whether the testimony was read over, to him at the time he signed it, or whether he knew the contents of the paper. The objection was. sustained. This ruling was error. It is not necessary to inquire whether the objection urged on the argument would have been good if made when the testimony was. offered in the first instance. The testimony had been received in evidence, and the respondent’s counsel had a clear right to use it.

It is contended that the exclusion of this testimony did no injury to respondent, as there is no material discrepancy between the testimony given on the trial of this case and that at the inquest; but we are not able to agree with this contention. There is such discrepancy as might have affected the credibility of the witness in the minds of the jury.

■ We think no error was committed in excluding evidence of specific acts of violence of deceased towards other persons, not a part of the res gestee. Whart. Cr. Ev. § 71; note to Boyle v. State, 21 Cent. Law J. 70. People v. Harris, 95 Mich. 87 (54 N. W. 648), does not sustain the admissibility of evidence of isolated acts of violence directed towards third parties. In that case the threats were directed towards the accused.

None of the other questions raised aré likely to arise on a new trial. •

Conviction.reversed, and a.new trial ordered.

The other Justices concurred.


author: HodKER, J.

text:
    WOLFF v. TAYLOR.

    Partnership Accounting—Appeal—Review.
    Where the determination of a partnership accounting rested on the testimony of the parties themselves, which was taken before the circuit judge, a decree awarding complainant the amount of his investment with interest, on the theory that he was unjustly expelled from the business, and that no profits had been earned, was affirmed, even though the fairness of his claim was not free from, doubt.
    Appeal from Alpena; Kelley, J.
    Submitted February 15, 1901.
    Decided June 17, 1901.
    Bill by Myer Wolff against Henry Taylor for an accounting. From a decree for complainant, defendant appeals.
    Affirmed.

      L. G. Dafoe, for complainant.

      Joseph li. Cobb, for defendant.

       Rehearing denied January 24, 1902.

   HodKER, J.

The complainant filed a bill for an accounting as a copartner, asking a receiver for the property. The court left defendant in charge upon his filing a bond to pay any sum that should be decreed against him, and on a final hearing gave complainant a decree for the amount of his investment and interest, less money drawn out. This was upon the theory that the parties were copartners, and that defendant unjustly expelled the complainant from the business, and that the proofs showed that no profits were made. The amount of the decree was $188.93. On the part of the defendant it was claimed that there was no copartnership, though it was admitted that a written contract for a copartnership was made, and some goods belonging to the complainant went into the business.

The case is a troublesome one upon the facts, and we have doubts of the fairness of the complainant’s claim. But the case rests, in the main, upon the testimony of the parties, and we do not feel justified in saying that the . circuit judge, who saw and heard the witnesses, was in error. Upon his view of the case, the decree does substantial justice, and we think it should be affirmed, with costs. It will be so ordered.

The other Justices concurred.


text:
    MAZURKIEWICZ v. ST. ADELBERTUS AID SOCIETY.
    Benefit Societies—By-Laws—Validity—Expulsion of Member.
    Under section 4 of the act providing for the incorporation of benevolent societies (3 Comp. Laws, § 8258 et seq.), empowering such societies to mate and establish rules and regulations for governing the affairs and business of the corporation and its members, not contrary to the laws of the United States or this State, and to decide as to the necessary qualifications for membership, a by-law of such a society prohibiting members from belonging to any society not approved by the* Roman Catholic Church is valid,' and a violation thereof by the member justifies his expulsion.

      Certiorari to Kent; Perkins, J.
    Submitted February 12, 1901.
    Decided June 17, 1901.

      Mandamus by Franciszck Mazurkiewicz to compel the St. Adelbertus Aid Society of Grand Rapids to reinstate relator as a member of such society. From an order granting the writ, respondent brings, certiorari.

    Reversed.

      Dunham & Malcolm, for relator :
    The by-law in question is void as unreasonable, and not necessary to effect the object for which the society was incorporated. Boehler v. Aid Society, 22 Mich. 86; Pulford v. Detroit Fire Department, 31 Mich. 458; Stewart v. Father Matthew Society, 41 Mich. 67 (1 N. W. 931); Allnutt v. High Court of Foresters, 62 Mich. 110 (28 N. W. 802); Erd v. Belief Ass’n, 67 Mich. 233 (34 N. W. 555); Niblack, Ben. Soc. (2d Ed.) § 23; 3 Am. & Eng. Enc. Law (2d Ed.), 1062; People v. Benevolent Society, 24 How. Prac. 216; Cartan v. Benevolent Society, 3 Daly, 20; Com. v. Benevolent Society, 2 Bin. 441 (4 Am. Dec. 453); Leech v. Harris, 2. Brewst. 571; People v. Medical Society, 24 Barb. 571; State v. Mer

      chants' Exchange, 2 Mo. App. 96; State v. Chamber of Commerce, 20 Wis. 68; State v. Williams, 75 N. C. 134.

      McKnight & McAllister, for respondent.
   Long, J.

This was an application for a mandamus, made to the court below to compel the respondent society to reinstate relator as a member of that society, from which it is claimed he has been unlawfully expelled. There are only two questions involved:

1. Is subdivision c, § 5, of article 12, which reads as follows: “ No member of the St. Adelbertus Aid Society of Grand Rapids, Michigan, can be a member of any society that is not approved by the Roman Catholic Church,”—a valid, legal, and binding by-law of said respondent society ?

2. Was relator legally expelled from the respondent society ?

It appears that in November, 1872-, there was an unincorporated society organized in the city of Grand Rapids under the name of the Polish Roman Catholic Mutual Society under the Guardianship of St. Albert. This unincorporated society adopted certain by-laws for the conduct of its business, and which society was organized as an adjunct of St. Albert’s Church of said city, and which church organization was composed entirely of Poles of the Roman Catholic faith. The society existed until 1892, when several of its members desired to incorporate it, and did so in the month of November of that year, under the corporate name of St. Adelbertus Aid Society of the City of Grand Rapids, Michigan. This incorporation was under Act No. 155 of the Public Acts of this State for the year 1879. It was provided in said articles of incorporation as follows:

‘ ‘ The purposes and objects for which said corporation is formed shall be to provide for the relief of distressed members, the visitation of the sick, the burial of the dead, and such other benevolent and worthy purposes and objects as affect the members of the corporation.”

Immediately upon the incorporation of the Polish Roman Catholic Mutual Society under the name of the respondent society, it adopted as its by-laws the same bylaws that had governed it in its unincorporated condition, and one of which by-laws is the one above stated.

On October 2, 1894, relator became a member of the respondent society. In the year 1895 he became a member of the Polish-American Industrial Society. On July 17, 1899, respondent undertook to remove relator from its society, and claims that it did so, for the reason assigned by respondent that the Polish-American Industrial Society was not approved by the Roman Catholic Church, and that this was a violation of said by-law. Relator was removed from the respondent society for no other cause, always having paid his dues promptly, and in all respects had conducted himself in conformity to the by-laws of said society. At the time relator was removed, all other members of the respondent society were likewise dismissed and removed from said society who were members of the said Polish-American Industrial Society, excepting all those persons who had formerly belonged to the Polish Roman Catholic Mutual Society under the Guardianship of St. Albert. At the time relator was removed from the respondent society, there were many members of it who were also members of the Polish-American Industrial Society, but which members had formerly belonged to the aforesaid unincorporated society. All such ■ members were permitted to remain, and enjoy all rights, benefits, and privileges of the respondent society, for the sole reason that they had formerly belonged to said unincorporated society. At the time relator became a member of the respondent society, it was possessed of real estate of the value of at least $20,000, and at the time of his x-emoval from said society its real estate was worth much more than that. It owned a large and valuable club house located upon its grounds in the city of Grand Rapids, where its business and social meetings were held,

At the time relator joined the respondent society, its by-laws provided for an entrance fee of from $4 to $10, depending upon the applicant’s age (section 7, by-law 11) that a yearly tax of $3, payable monthly, as dues, must be paid by each member (section 1, by-law 12). Section 3 of this by-law also provides:

“It is the duty of every member to confess and receive holy communion twice a year in the St. Albert’s Church, together with the society, on St. Albert’s day, as a patron of our church and society, and again near the 2d of November, on Sunday, as a yearly remembrance of the organizing of the society.”

Section 6 of the same by-law provides:

‘ ‘ For the reason that this is a Catholic society, it should,, therefore, be under the guidance of the local pastor.”

' By-law 14 provides that:

“In case of death of any member or member’s wife, in either case the society is to pay $50 for funeral expenses and the amount of assistance to sick members shall be $3 per week.”

By-law 12, § 8, provides:

“Every member of this society shall send his children to the Polish school; and, if a member of this society fails, to live up to the laws of this society, and practices other immoralities concerning the Catholic Church, and the society still considers him a member, in that case the local pastor reports to the society, and it is the duty of the society to dismiss such member.”

The Polish-American Industrial Society, to which relator also belonged, provided a weekly indemnity of $3 in case of sickness, and a payment of $50 for the funeral expenses of a member or his wife.

The membership of the respondent society were Poles of the Roman Catholic faith. Father Pongannus, pastor of the St. Albert’s Catholic Church of Grand Rapids, was a member of the respondent society from the fact of his being the local pastor of said church. During the whole time relator was a member of the industrial society, respondent was cognizant of the fact, solicited and accepted his dues, covering a period from July, Í895, to October, 1899. There are many members now of the respondent society who are also members in good standing of the condemned society for the simple and only reason that they were members of the Polish Roman Catholic Mutual Society prior to 1892.

On the evening of July 17, 1899, at a meeting of the members of the said respondent society in its hall in that city, the said Father Pongannus came into said meeting, .and took the president’s seat, and demanded that all persons present who were members of the Polish-American Industrial Society should leave the society. There were no written or other charges preferred against relator except the said statement of Father. Pongannus. Relator asked that he might be heard in his defense, immediately whereupon the said meeting was dismissed, and relator and other members of the condemned society, save the excepted members before mentioned, were required to leave the hall; and, after they had gone out, and' the doors had been closed, a resolution .was passed by the remaining members of respondent society requiring that relator and the others who were expelled from the hall renounce their membership in the Polish-American Industrial Society within three months, or stand dismissed and expelled from the respondent society. Relator was after-wards notified of this resolution by personal friends of his, who remained in said hall while said resolution was passed; but he continued to pay his dues for three months thereafter, when the respondent society refused to accept any further dues, and refused to permit relator to enter said hall, or to enjoy any of the benefits of said society, and since which time he has been excluded from participating in either the business or soqial gatherings of said society upon its premises. On January 2, 1900, without any notice to relator, the respondent society passed another resolution, giving relator and the other expelled members one month’s time in which to drop out of the Polish-American Industrial Society and return to the respondent society. Relator refused to give up his protection and the protection to his family in the Polish-American Industrial Society, and he is now, and has been since July 17, 1899, excluded from all the benefits and privileges of being a member of said respondent society.

The case was heard in the court below, testimony taken, and the whole case considered there. The case comes into this court by writ of certiorari.

The return made by the court below fully sets out the facts found. The court found that the Polish-American Industrial Society was not at any time under the ban of the Roman Catholic Church prior to the hearing of the case, in May, 1900, and that the ban appears to consist wholly of the disapproval of Father Pongannus. The court also found that the respondent society is the owner of real estate of the value of $20,000, and that the order of dismissal, if valid, not only dismissed relator from said society after paying his dues thereto for 6 years, but also dismissed others who had been paying dues thereto for more than 18 years, and for no other reason than that they had provided for themselves additional weekly indemnity of $3 per week in case of sickness by becoming members of the Polish-American Industrial Society.

The act under which the respondent society is organized (being Act No. 155, Pub. Acts 1879; 3 Comp. Laws, § 8258 et seq.) provides that:

“Any ten or more persons,'residents of this State, desiring to become incorporated for benevolent purposes, may make and execute, under their hands and seals, articles of association, which said .articles of association shall be acknowledged before some officer of this State,” etc.

Subdivision 3 of section 1 provides:

“ The purposes and objects for which said corporation is formed * * * shall be to provide for the relief of distressed members, the visitation of the sick, the burial of the dead, and such other benevolent and worthy purposes and objects as affect the members of the corporation,” etc.

Pursuant to the provisions of the act, articles of association were filed, setting forth the purposes of the organization in the language of subdivision 3 of section 1 of the act. By-laws were adopted, and subdivision c, § 5, of article 12, as above set forth, became a part of the bylaws. The court below found this by-law unreasonable and void, for the reason that it was not incidental to or necessary for the carrying out of the purposes of the organization, and that the relator was unlawfully deprived of his rights in the association.

The conclusions of the court below cannot be sustained. The act under which the respondent society was organized provides by section' 4 that:

“Said corporation shall have full power and authority to make and establish rules and regulations for the regulating and governing of the affairs and business of said corporation, and members thereof-, not contrary to the laws of the United States or this State, to decide as to the necessary qualifications for and who shall be eligible to membership therein, to provide for the election of members, and to designate, elect, or appoint, in such manner as they see fit by their rules and regulations, such officers, under such names and style, as they shall decide, who shall exercise such powers, and such supervision, control, and management of the affairs of such corporations, as shall be delegated to them respectively by the constitution, rules, regulations, and by-laws of said corporations.” 3 Comp. Laws, § 8261.

Under the power thus conferred, the respondent society passed the by-law in controversy. Such by-law is not in conflict with any law of the United States or of this State. It is, therefore, binding upon the members of the society.

A very similar question was presented in the case of Bretzlaff v. Benefit Society, 125 Mich. 39 (83 N. W. 1000). Article 3 of the constitution of that society provided :

“Only such persons can be members of the society that adhere and belong to the Evangelical Lutheran Church, their congregation belonging to the Synodical Conference. They must lead a moral and virtuous life, and must not belong to any secret society or any other sick-benefit society. Members that leave the above-named church thereby lose their membership in the society.”

It was held that Mr. Bretzlaff was bound by this provision in the articles of the society, and that it was not unreasonable or against public policy; citing 3 Am. & Eng. Enc. Law (2d Ed.), 1079.

We think the present case falls directly within the rule there laid down. A person who joins such a society is bound by the charter and by-laws, which are a part of his contract. Douville v. Insurance Co., 113 Mich. 158 (71 N. W. 517); Van Poucke v. St. Vincent de Paul Society, 63 Mich. 378 (29 N. W. 863).

The order of the court below must be reversed, with costs in favor of respondent.

The other Justices concurred.