text:
    FITZHUGH v. CITY OF BAY CITY.

    Public Improvements—Assessment for Benefits—Estoppel.
    A property owner who, having full knowledge personallyánd through his agent that a street improvement is to be^ made and that his lands are to be assessed therefor, allows the improvement to be completed, and the contractor to be paid out of the proceeds of bonds issued by the city in anticipation of the collection of the assessment, without making any objection thereto, cannot thereafter maintain a bill to-restrain the collection of the assessment on the ground of' irregularities therein.
    Appeal from Bay; Maxwell, J.
    Submitted April 23,. 1896.
    Decided June 30, 1896.
    Bill by Cornelia G. Fitzhugh against the city of Bay-City and the Auditor General of the State of Michigan,, to restrain the collection of a paving assessment. From a decree for defendants, complainant appeals.
    Affirmed..

      Fatio Colt (F. A. Cooley, of counsel), for complainant.

      U. R. Loranger, City Attorney, for defendant city.

       Rehearing denied July 28, 1896.

   Long, C. J.

This bill is filed by complainant, who-resides at Groveland, N. Y., for the purpose of setting, aside an assessment upon her lands in Bay City for paving what is known as “Twelfth Street.” Ten reasons are given why the tax is void and should be-set aside. On the hearing in the court below, the tax, which was to be paid in three installments, was upheld, except a reduction in the first installment to be paid. Complainant appeals.

We think it unimportant to discuss the objections raised as to the legality of this tax. It appears that in April, 1893, the common council of Bay City adopted a resolution to grade and pave Twelfth street between Water street and the Tuscola plank road. Such proceedings were thereafter had that the board of public works entered into a contract, approved by the council, for the grading and paving. The paving in question cost $30,312.50, of which $23,049 was. assessed against the property described in a special assessment roll. The balance was paid out of that ward highway fund. The sum of $775.89 was assessed against the land of complainant. The paving was begun in the early part of June, 1893, and was completed in October of the same year. The assessment roll was put into the hands of the board of review, and finally passed upon by it on July 31, 1893, and no objections were made thereto by the complainant. To obtain the moneys to carry forward the work, the city issued bonds for that portion of the money which was assessed against the property of abutting landowners, including the complainant’s. These bonds were issued in anticipation of the collection of taxes, and were payable in two, three, and five years. There is no fund out of which they can be paid, except that derived from the collection of the assessment. This bill was filed on July 10, 1894, but before it was filed the moneys had been raised by the sale of the bonds, and the contractors paid for the construction of the work. Notice of this special assessment was given on June 20, 1893. The board held a meeting to hear and decide all objections which might be made by persons deeming themselves aggrieved by this local tax. During this time, and while this notice was being published, complainant visited Bay City, and was there three days. It also appears that her general agent and attorney knew in the latter part of May of that year that this pavement was about to be laid on Twelfth street. Mr. Hamilton Wright was called as a witness in behalf of defendants, and testified that complainant visited him in June, 1893, and that he had a conversation with her in reference to this pavement at that time. His attention was called to a petition or consent of the property owners on Twelfth street to the laying of a street-railway track on that street, dated May 18, 1893, and the signing of the name of complainant to it, by his name as her attorney. By this petition it was shown that the taxpayers would save one foot in width of the cost of the pavement by permitting the street railway to lay its track. Mr. Wright also testified that he knew of this pavement on Twelfth street some time in May, 1893.’

It appears that although notice by the board of review was published while the complainant was in Bay City, and although her agent, Mr. Wright, knew in the month of May, 1893, that the pavement was to be laid, yet no action was taken by the complainant until the time of filing this bill, in July, 1894,—more than one year thereafter. It is apparent that the complainant and her agent both knew that the lands were so situated that any assessment, whether on the basis of benefits or frontage on the street, would include such lands, and yet they allowed the contractors to go on with the work, and receive their pay therefor, without objection. The collection of a special assessment for improvements will not be restrained at the suit of one who hás stood by and raised no objection to the improvement. Byram v. City of Detroit, 50 Mich. 56; Lundbom v. City of Manistee, 93 Mich. 170; Goodwillie v. City of Detroit, 103 Mich. 283.

The decree of the court below must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    MARTIN v. WARREN.

    Mechanic’s Lien—Construction of Statute—Notice to Owner.
    A contractor is not relieved from a compliance with section 4 of the mechanic’s lien law (Act No. 179, Pub. Acts 1891), requiring him to furnish to the owner a sworn statement, giving the names of all laborers and material men under his contract, with the amount due each, before he can maintain a suit to enforce his lien, by the fact that the 60 days after full completion of the work, limited for the filing of liens by subcontractors, laborers, or material men, have expired at the time he files his bill.
    Appeal from Wayne; Adams, J., presiding.
    Submitted April 24, 1896.
    Decided June 30, 1896.
    Bill by James J. Martin and others against Charles W. Warren, Kitty M. O’Donnell, and others, to enforce a mechanic’s lien. From a decree for complainants, defendant O’Donnell appeals.
    Reversed.

      Bowen, Douglas & Whiting, for complainants.

      John H. McDonald (T. E. Tarsney 'and W. W. Wicker, of counsel), for appellant.

       Rehearing denied July 21,1896.

   Hooker, J.

This case is ruled by Sterner v. Haas, 108 Mich. 488. It is contended that it should not-be held to fall within the spirit, although within the letter, because in the present case more than 60 days had elapsed after the full completion of the work by the contractor at the time the hill was filed, and hence there was no chance for a lien to be perfected and enforced against said premises by subcontractors, laborers, or material men. If this contention is sound, the landowner must determine, at his peril, when said 60 days expires. If he be convinced by tbe contractor that the time has expired, and make payment, others asserting liens filed later may be able to convince a court to the contrary, and his payment be lost. It is no great hardship for a contractor, asserting a lien to furnish to the landowner the statutory statement that shall make him safe, before subjecting him to costs of litigation upon the contractor’s lien, though he might be able to show that the time within which the premises were subject to subcontractors’ liens had actually expired; and it is no more than just that the landowner should be protected from unnecessary annoyance and risk of loss. Such appears to be the requirement of the act, and the case is therefore reversed, and bill dismissed, with costs of both courts.

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


author: Montgomery, J.

text:
    VREELAND v. CINCINNATI, SAGINAW & MACKINAW RAILROAD CO.
    Railroad Companies—Accident at Crossing—Contributory Negligence.
    A motorman. who, having stopped his car 35 or 40 feet from a railroad crossing to see whether a train is approaching, attempts to cross the track without again looking for a train, although, from a point 10 feet from the center of the track, a train might be seen for a distance of 576 feet, is guilty of contributory negligence, precluding a recovery for injuries received by a collision at the crossing.
    Error to Bay; Maxwell, J.
    Submitted April 24, 1896.
    Decided June 30, 1896.
    Case by Edwin C. Vreeland against the Cincinnati, Saginaw & Mackinaw Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      T. A. E. & J. G. Weadock (James E. Duffy, of counsel), for appellant.

      T. F. Shepard, for appellee.
   Montgomery, J.

Plaintiff was a motorman in the employ of the Bay Cities Consolidated Railway Company. On April 6, 1893, plaintiff was engaged in running a car along Henry street, in West Bay City. Henry street, at the intersection of Ninth street, is also crossed by the track of the defendant company. When the car reached the crossing, it was struck by the engine of a passing train, and thrown from the track. Plaintiff’s shoulder blade was broken, and he suffered other injuries. He brings this action, claiming that the injury resulted wholly from negligence of defendant’s servants, while he himself was in the exercise of due care. The alleged negligence of the defendant consisted in running the train at a prohibited and high rate of speed, and testimony fairly tended to establish such negligence. There was perhaps a question, also, as to whether the bell was rung, although the testimony on this point was negative in its character. The circuit judge directed a verdict for the defendant, on the ground that the plaintiff was guilty of contributory negligence. This direction raises the sole question in the case which we need consider.

The street-railway track occupied the center of Henry street, which runs in a north and south course. The track of the defendant road runs from the northwest, past Ninth strept, in a general southeast course, curving somewhat to the south. At a point 10 feet from the center of the crossing of the two tracks, a train going northwest could be seen for a distance of 576 feet; from a point 40 feet from the intersection, a train could be seen for a distance of 567 feet; and, at a point 20 feet from the railroad track, a train would be visible for a distance of 570 feet. Plaintiff testified that he was going north with his car, and stopped on a switch, at a point which would be about 260 feet south of the crossing, for a south-bound train to pass him; that he then proceeded north till within about 35 or 40 feet of the crossing, when he brought his car to a stop, looked in all directions, saw no train, and then started ahead again. He further testified: “I don’t think I looked back up the track after I started ahead. Before I discovered the train coming, I had got about 4, 5, or 6 feet from the track. The train was then within 200 feet from me, I should think.” He also testified that the motor car could have been run within 5 or 6 feet of the crossing before stopping, but that the purpose of stopping back 35 or 40 feet was to enable him to get up headway, so that he could pass over the track of the railway without current. It would seem, therefore, that, if we accept the plaintiff’s statement, he intended to, and did, after stopping his car 35 or 40 feet back of the track, start his car ahead at a rate of speed intended to give it headway sufficient to pass over the track. This statement can hardly be reconciled with the fact that he must have been traveling at a rate of speed scarcely equal to two miles an hour; for if it be assumed that, when he discovered the train, 200 feei distant, he had traveled 30 feet, after his stop, the train must have traveled in the meantime not less than 376 feet, or more than 12 times as far, and the testimony of plaintiff’s witnesses tends to show a rate of speed of not more than 20 to 25 miles an hour. It is also difficult to understand why, if the plaintiff was running his car at a slow pace, he could not and did not stop his car before the collision. Altogether, the most reasonable explanation is that he was mistaken in his recollection of the events; but, however this may be, we think that it was not due diligence to stop at a point so far distant from the crossing, and then proceed without looking back, as he testifies he did. See Shufelt v. Railroad Co., 96 Mich. 327; Houghton v. Railway Co., 99 Mich. 308; Haas v. Railroad Co., 47 Mich. 401. The plaintiff cannot be treated in all respects like one driving an ordinary vehicle. The Public Acts of 1889 (Act No. 222, p. 330) provide:

“Street-railway companies shall require the drivers of street cars to bring such cars to a full stop before going upon a street-railway crossing of the tracks of a steam railroad, and to make sure that no engine or cars are approching such crossing before he proceeds to go upon the same.”

The circuit judge was right in holding that the plaintiff did not use due precaution.

Judgment affirmed.

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


author: Grant, J.

text:
      In re CHADWICK.
    1. Contempt op Court—Power to Punish.
    The power to punish for contempt is inherent in, and as ancient as, courts themselves.
    2. Same—Statutory Limitation.
    Whether the authority of the judiciary to punish for contempt of court is subject to limitation by legislative enactment, —quaere.

    3. Same—Rights op Aocused-^Trial by Jury.
    Proceedings for contempt of court are not criminal causes, within the intent and meaning of the Federal and State Constitutions, and the accused is not entitled to a trial by jury.
    4. Same.
    The power of a court of record to punish for contempt persons guilty of vilifying the court in its judicial character is not limited to contempts arising out of pending proceedings.

      5. Same—Criticism op Degree.
    A letter criticising a decree, and charging the judge with submitting to private interviews with interested parties in regard to the case pending his decision, and intimating unfairness and partiality upon the hearing, is an attack upon the official conduct of the court, and constitutes a contempt, .for which the writer is liable.
    6. Same—Answer—Disavowal op Intent.
    One guilty of publishing a report of a judicial proceeding, the only fair construction of which tends to defame and degrade the court in the eyes of the litigants and the public, cannot purge himself of the contempt by a denial of any intended wrong, and an assertion that he meant the publication to bear a different and harmless construction.

      Certiorari to St. Clair; Daboll,. J., presiding.
    Submitted April 24, 1896.
    Decided June 30, 1896.
    Anson E. Chadwick was found guilty of contempt of court, and brings certiorari.

    Affirmed.
    The respondent, Anson E. Chadwick, was found guilty of contempt of court in the circuit court for the county of St. Clair, and has brought the proceedings to this court for review upon the writ of certiorari. Mr. Chadwick was one of the solicitors for the defendant in the case of McMorran v. Fitzgerald, 106 Mich. 649. The decree of the court below was entered November 2, 1894. judge Vance was the judge of the St. Clair circuit. Judge Eldredge, who heard and decided the case, was called in by Judge Vance to preside at the hearing.
    On the 8th of November, 1894, Mr. Chadwick wrote and caused to be published on that day and the following, in the Port Huron News, a newspaper published in the city of Port Huron, the following letter:

      “Editor Port Huron Netos: I am driven, by the constant inquiries of citizens concerning the decision of Judge Eldredge in the case of McMorran and Botsford against Fitzgerald, and the impossibility of giving time for individual information, to beg as much space as your indulgence will grant in a matter of this importance to the qitizens of Port Huron. James H. Fitzgerald, being burned out, located his shops where now operated in the honest belief in his right to do so, and positive knowledge that it was the best location possible for his convenience and that of his patrons. He and his counsel have no doubt of his right to operate them as long as grass grows and water runs without prohibition of any competent court on a fair hearing. It is not the question of what the court will do, but of his ability, in his circumstances, with the present business depression, to bear the burden of a long* and expensive contest. In the testimony taken it was proved that he had been-threatened with financial and social ruin if he attempted to build and operate these shops on his own land at this point. So far they have attempted to keep that pledge. They caused, by misleading or other inducement, the common council of this city, without even giving Mr. Fitzgerald a hearing, to order a suit and injunction to be brought and obtained against him to stop the erection of "part of his buildings, thus compelling him to the expense of that contest in getting the injunction dissolved, and the bill dismissed, as well as the delay in his work. Nobody doubts that the common council were moved solely by the influence of McMorran and his co-confederates to take this step solely to help McMorran and others. This failing, McMorran and Botsford, and those joined with them, began their series of steps to ruin Mr. Fitzgerald financially and socially, and have rained down on him suits, threats against his customers, and every petty annoyance which could tend to destroy his business and eat up his profits. It has been, not a question of injunction and decree, but of how long Fitzgerald could last under the enormous expense of continuous litigation. They have caused their lawyers to write threatening letters to every vessel owner on the lakes, such as threats of libel should boats stop at Fitzgerald’s in distress for repairs.
    “While the citizens of Port Huron universally believe Judge Vance to be an upright, independent judge and man, these complainants judged him so unrighteously that, on his refusal to give a private hearing to one of the complainants’ wives, she took possession of his chamber, and drove him out, and assumed and declared that, if he was too honest to hear her case privately, he was too dishonest to decide it as she thought it ought to be decided,, and by persistent attacks upon him and his motives drove him out of the case. Since the decision, a good deal is known of facts which she and the complainants thought warranted them in submitting the case to Judge Eldredge. • These reasons are an insult to Judge Eldredge, but they care nothing about that, of course. It will surprise the good citizens to know that this principal manager and lobbyist of the complainants’ case undertook to and did make a trip to Mt. Clemens, in state, to wit, on their private yacht, to visit and interview the judge. She thinks she argued and submitted the case while there, and, of course, the complainants agree with her. Now, Mr. Fitzgerald, having expended a large amount of money in his defense so far, and suffered inconceivable nuisances and injury from their conduct, finds that an appeal to the Supreme Court, which he has no doubt will result in an entire reversal and dismissal of the bill, will cost him further large sums of money, and that he will be under the storm of petty annoyances in pursuance of the threat and effort to ruin him. What assurance has he that the city, through its council, will not again lend its aid to these people to oppress him; or, having recovered a final decree dismissing all of complainants’ suits and bills, with full costs, and vindicating his right to remain and operate his business there forever, he will not still be subjected to other and constant trumped-up suits, the defense of which will eat up all his earnings? The talk of good citizens and candidates for city offices about doing everything to promote manufacturing enterprises is sheer nonsense, when these same good citizens stand by and see their interests betrayed by their own officials, and see the destruction of existing industries by such means, which, of itself, is a warning to any new ones not to attempt to establish a business here. Mr. Fitzgerald cannot afford to work a lifetime merely to earn money to spend upon courts or ' counsel, even to defend an undoubted right. To set at rest once for all any talk about any other site in the city of Port Huron for Mr. Fitzgerald, I desire to say that he will carry on his business where he now is, or, if he quits, will quit the city with that business. He knows, and we all know, if we had any sense, that this decree, as it stands, is an absolute prohibition forever upon the erection and maintenance of any manufacturing plant within 300 or 400 feet of any residence in the city limits, whether worth $1,000 or $100,000, and will make the proprietor subject to be blackmailed or driven out through any conspiracy of the owner or others, unless it is money, and not human rights, that now control the judgment of our courts.
    “One word more. Within the radius of 1,000 feet from defendant’s smokestack and steam hammer are eleven residences owned by their occupants. This appeared in the testimony. Will it not shock the sense and judgment of men to learn that of these eleven but four, to wit, John E. Botsford, Henry McMorran, and E. O. Carleton, desired the removal of these shops, or pretended to claim they were offensive in the least degree? But two of these residences were nearer than 300, feet, the other two from 450 to 800 feet. Three of these residences are but temporary homes for the owners, and they have not pretended for years to make them their permanent residences. Of the seven remaining residences the owners and occupants of five testified positively that they were so far from being a nuisance that they were not in anything the slightest annoyance; and these comprised not only the nearest, but, on the average, much nearer than the others; and these five owners were as clean in their habits, as intelligent and respectable, if not as rich, as the complainants.
    ■ “I will say one word more. It will surprise the great majority of the people of this city who have used their eyes, ears, and sense of smell for the last three years, and utterly failed to discover the thing complained of by the complainants, to find that Judge Eldredge, who refused to examine the premises and locality, although urgently and repeatedly requested to do so by defendant’s solicitors, could find what they failed to discover. This decree prohibits Fitzgerald from even carrying on the business of banking, hotel keeping, warehousing, or merchandising on that property. Is that the law’s decree, or is it the decree of a conspiracy to ruin Fitzgerald?The citizens can now deal with this matter; but, when they have decided, I caution them to look closely after their public servants, to see that the cold-blooded and silent lobby does not overrule them.
    “A. E. Chadwick.”
    A petition was filed in the circuit court for the county of St. Clair by A. R. Avery, P. H. Phillips, and E. W. Harris, members of the bar of St. Clair county, setting forth the above letter, and asking the court to proceed against Mr. Chadwick for contempt. The petition was accompanied by affidavits denying the material charges made in' the letter. To this petition the respondent made answer by filing' two affidavits, in the first of which he stated that Judge Eldredge, who made the order of citation served upon him, was disqualified from sitting .in the matter by reason of his personal interest therein and relation thereto, and by reason of his knowledge of facts which would be controverted when a proper issue was framed, and because he was a material and important witness for the respondent; that the matters complained of, if a reflection upon the judge and his conduct, affected him personally, and not as a court, and sitting as a judge; that the object of that proceeding was not to punish or try the respondent for contempt of court, but was resorted to in the interest of complainants and their agents for private vindication or satisfaction, as well as the private vindication of said James B. Eldredge, and not of said James B. Eldredge, circuit judge, or sitting and acting as a court, since, on the face of the record, there was not then, nor at the time of the publication, any suit pending or being tried in court between McMorran and Botsford as complainants and the Fitzgeralds as defendants. The second affidavit states that, as to the facts set up in the letter, he believed them to be true, and then argues at considerable length to show that the letter was a justifiable criticism upon the decree of the court, charges that the proceeding against him is partisan, oppressive, and unlawful, and that the letter does not reflect upon the judge, but upon complainants and other persons. Interrogatories' were framed, to which the respondent interposed objection that some of them involved immaterial matter, and in which he accused the committee of partisan conduct, insisted that his letter was not susceptible of the interpretation placed upon it, and that he did not intend to attack the integrity, honesty, or motive of Judge Eldredge. He was required, however, to answer the interrogatories, to one of which he answers as follows:
    “That he emphatically denies that, either by direct assertions or by construction or implication, he charged or stated in said letter that the defendants were denied a fair hearing’ by Judge Eldredge so far as he, Judge Eldredge, acted in, heard, or decided the cause, or that he was otherwise than fair, painstaking, courteous, honest, and sincere, or that he was in any sense unfair, corrupt, or dishonest. And respondent, writing in respect to the pleading, issue, and proceeding in the cause, intended, as seemed and seems to him plainly apparent, to refer to a rehearing on appeal, and to say that a jury, which was asked for in the answer, would have arrived at a different conclusion on the facts, and also that, had Judge Eldredge personally examined the premises and surroundings, as prayed in said answer, and seen defendants’ shops in full operation under the conditions stated in said answer, to wit, under the absolute control of complainants themselves, he, Judge Eldredge, would have arrived at a different conclusion; the plain meaning being, not at all a criticism upon the motives, purity, integrity, and honesty of Judge Eldredge, but a mere statement that, had he exercised a different discretion as to ordering a jury or viewing the premises himself, the result might or would have been different; and respondent emphatically disclaims any—the slightest—doubt, or that he has had any—the slightest—doubt, but that Judge Eldredge is a man of high and pure motives and incorruptible integrity, and denies that his letter either does, or that by it he intended to, state otherwise, or reflect upon him in any manner; and respondent believes that no member of this bar has ever had at any time or at all times a higher respect or regard for Judge Eldredge than respondent. This respondent further most solemnly asserts that, wholly independent of any consequences to himself personally in this matter, or to his pleasant relations with Judge Eldredge in the future as in the past, he should most keenly, and all his life, regret deeply the possibility that he had said or written a word even tending in the slightest degree to detract from his high character as a man and lawyer, his usefulness on the bench, or raise a shadow of doubt of his perfect integrity, or wound his feelings as a man and gentleman, or that any portion of said letter could be so differently construed than he intended.”
    S. B. Daboll, of the Twenty-Ninth judicial circuit, was called in to preside at the hearing. Testimony was taken, and the conclusion of the court, after hearing the case, was as follows:
    “I find in the case that the respondent was an attorney and solicitor in this court during all the time covered by the matter in question; that he was solicitor for the defendants in said chancery suit; that the article was written and published by him during two days, or in two issues of the Port Huron News, a newspaper published in Port Huron, and circulated largely in Port Huron and St. Clair county; that the respondent, in said letter so written and published by him, deliberately charged and intended to charge:

      “First. That the said defendants had not had a fair trial of the issue in said cause, but that they had been denied it.

      “Second. That Judge Yance was driven out of the case, and Judge Eldredge procured to try it, because there was some reason—not a proper one—for wishing Judge Eldredge to try the case.

      “Third. That the wife of one of the parties, who, it is claimed and stated in the letter, was the principal manager and lobbyist of the complainants’ case, went to Mt. Clemens to interview Judge Eldredge in regard to the case, and argued and talked about the case, and was permitted to do so by the judge, in an improper and unbecoming manner, while the said case was under consideration and undetermined by him, tending to bring Judge Eldredge, and the administration of justice, and the court and its dignity and authority, into contempt and disgrace, and impair the 'standing and reputation of the court.

      “Fourth. That he intended to charge and did charge in said letter that it is money, and not human rights, that control the judgment of our courts; and that the judgment in this case was brought about by the use and influence of money and wealth, and was not the honest and unbiased judgment of Judge Eldredge, based on justice and law.

      “Fifth. That there was a conspiracy existing in the case aforesaid, in which the parties and judge were participants, and that the decree therein was controlled by said conspiracy and money; and that the purpose of said conspiracy was to ruin and bankrupt Fitzgerald, the defendant in said cause.

      “Sixth. That respondent was guilty of and did publish a false and grossly inaccurate account of proceedings of the court and of Judge Eldredge in stating that he allowed and permitted an interview, and • that he allowed and permitted an argument and submission of a case pending before him, by an interested party, under such circumstances as would render it highly improper to allow such interview, argument, submission, or discussion of the said case, or the issue thereof; that the entire letter is intended and well calculated to and did and does have the effect of greatly impairing the authority and dignity of the court and judge thereof, and does and did greatly lessen and impair the confidence of the public therein.”

      J. B. McIlwain, for appellant.

      A. R. Avery, P. H. Phillips, and E. W. Harris (William T. Mitchell, of counsel),, committee for bar of St. Clair county.
   Grant, J.

(after stating the facts). The power to punish for contempt is inherent in, and as ancient as, courts themselves. It is essential to the proper administration of the. law, to enable courts to enforce their orders, judgments, and decrees, and to preserve the confidence and respect of the people, without which the rights of the people cannot be maintained and enforced. Law writers and decisions, both ancient and modern, have recognized this power. Blackstone said:

“Contempts may arise by speaking or writing contemptuously of courts or judges acting in their judicial capacity, by printing false accounts of causes then depending in judgment, and by anything, in short, that demonstrates a gross want of that regard and respect which, when once courts of justice are deprived of, their authority, so necessary for the good order of the kingdom, is entirely lost among the people. The process of attachment for these and the like contempts must necessarily be as ancient as the laws themselves. A power, therefore, in the supreme courts of justice to suppress such con-tempts by an attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly, we find it actually exercised as early as the annals of our law extend. The contempts that are thus punished are either direct, which openly insult or resist the powers of the courts or the persons of the judges who preside there, or else are consequential, which (without such gross insolence or direct opposition) plainly tend to create an universal disregard of their authority.” 4 Cooley, Bl. 283-286.

Similar statements of the existence and exercise of this power are found'in other, earlier law writers. This power exists in the legislature, though it is not expressly authorized by the Constitution. “It is a necessary and incidental power, to enable the house to perform its high functions, and is necessary to the safety of the State. It is a power of protection.” The judicial department of the government cannot review these proceedings before the legislature. Cooley, Const. Lim. 133, 134. Is it not equally essential and necessary for the protection of the courts? The Constitution of Michigan is entirely silent upon the subject of contempts, in both the legislative and judicial departments. The legislature, acting upon this power inherent in itself, early enacted provisions for the punishment of contempts of its authority. 1 How. Stat. §§ 38, 39.

Proceedings for contempt are not criminal causes within the intent and meaning of the Constitution of the United States or of this State. If they were, then the party accused of contempt would be entitled to a jury trial. Our own. Constitution provides that “circuit courts shall have original jurisdiction in all matters, civil and criminal, not excepted in this Constitution and not prohibited by law.” Article 6, § 8. It also provides that “in every criminal prosecution the accused shall have the right to a speedy and public trial by an impartial jury.” Article 6, § 28. We are not aware of any decision under a constitution similar to ours holding that pne accused of contempt is entitled to a jury trial. It is apparent that this power should be lodged in the court. It is repugnant to all ideas of propriety to say that a jury should determine whether an act committed or statement made in the presence of the court or outside it was insulting and degrading to the court itself, and tended to obstruct the due course of justice. The authorities are nearly uniform that the court must determine the question. Such has been the uniform practice in the courts of this State. “Cases of contempt of court were never triable by jury, and the object of the power would be defeated in many cases if they were. The power to punish contempts summarily is incident to courts of law and equity.” Cooley, Const. Lim. (4th Ed.) 394, note 2. The judicial department is entirely distinct from the legislative, and the Constitution leaves this power existing in the court as it was at the common law. The legislature enacted the following provisions in regard to contempts in courts of record:

“Every court of record shall have power to punish, as for a criminal contempt, persons guilty of either of the following acts, and no others: (1) Disorderly, contemptuous, or insolent behavior, committed" during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority; (2) any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings; (3) willful disobedience of any process or order lawfully issued or made by it; (4) resistance willfully offered by any person to the lawful order or process of the court; (5) the contumacious and unlawful refusal of any person to be sworn as a witness; and, when so .sworn, the like refusal to answer any legal and proper interrogatory; (6) the publication of a false or grossly inaccurate report of its proceeding; but no court can punish as a contempt the publication of true, full, and fair reports of any trial, argument, proceedings, or decision had in such court.” 2 How. Stat. § 7234.

In State v. Morrill, 16 Ark. 384, in a very able and exhaustive opinion, the court discusses this power, and denies the right of the legislature to interfere with the .jurisdiction of the courts on this subject. The limits imposed by the Arkansas statute are the same as in that of Michigan. The above provisions of our statute, in so far as they define contempts, are simply declaratory of the common law upon the subject. LangdonY. Wayne Circuit Judges, 76 Mich. 367. Of this statute this court "there said:

“ Courts of record in this State have inherent power to Pear and determine all contempts of court which the superior courts of England had at the common law, and the statute has not undertaken to limit or prohibit their jurisdiction in the matter of contempts. The statutes ■are in affirmation of the common-law power of courts to punish for contempts, and, while not attempting to curtail the power, they have regulated the mode of proceeding and prescribed what punishment may be indicted.”

Many other States have adopted similar provisions, but whether under constitutions like our own we have not taken the time to ascertain. Usually these provisions have been found ample, and undoubtedly the desire of the courts has been to follow them without questioning the power of the legislature to absolutely control their jurisdiction in this regard. It would seem to follow that, if the legislature may curtail this jurisdiction, and determine that in no other matters than those for which it may provide shall the courts have jurisdiction, it may take away the power to punish entirely. Judges of courts of record are amenable to the people for the abuse of the power conferred upon them by the Constitution, and may be impeached. The case of Judge Peck is a notable example. In State v. Morrill, supra, the court uses this forcible language:

‘ ‘ The legislature may regulate the exercise of, but cannot abridge, the express or necessarily implied powers granted to this court by the Constitution. If it could, it might encroach upon both the judicial and executive departments, and draw to itself all the powers of government, and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the Federal and State institutions, and a favorite theory in the governments of the American people. As far as the act in question goes, in sanctioning the power of the courts to punish as contempts the ‘ acts ’ therein enumerated, it is merely declaratory of what the law was before its passage. The prohibitory feature of the act can be regarded as nothing more than the expression of a judicial opinion by the legislature that the courts may exercise and enforce all their constitutional powers, and answer all the useful purposes of their creation, without the necessity of punishing as a contempt any matter not enumerated in the act. As such, it is entitled to great respect; but to say that it is absolutely binding upon the courts would be to concede that the courts have no constitutional and inherent power to punish any class of contempts, but that the whole subject is under the control of the legislative department; because, if the general assembly may deprive the courts of power to punish one class of contempts, it may go the whole length, and divest them of power to punish any contempt.”

If the legislature should enact a law that courts have not the power to punish a juror for contempt for refusing to obey its mandate summoning, him to appear as a juror, or if, when appearing, he should refuse to act, would such act be constitutional? No high-minded and self-respecting lawyer would occupy the position of judge under such circumstances. In Cooper v. People, 13 Colo. 367, it is said

“It was said in argument by counsel for respondents ‘that by the common law every judge was regarded as the direct representative of the sovereign, and upon this fiction the power to punish for contempt was based/ With us the people have been substituted for the crown. The courts are created by the people, and are dependent upon the popular will for a continuation of the powers granted. They are the people’s courts, and contemptuous conduct towards the judges in the discharge of their official duties, tending to defeat the due administration of justice, is more than an offense against the person of the judge; it is an offense against the people’s court, the dignity of which the judge should protect, however willing he may be to forego the private injury.”

In Re Woolley, 11 Bush, 111, the court uses this language:

“We will not, in this case, determine whether, under the Constitution, the legislative department, under the guise of regulating proceedings in cases of contempts, can take from the judiciary the power to preserve its independence and equality by protecting itself against insults and indignities. The right of self-preservation is an inherent right in the courts. It is not derived from the legislature, and cannot be made to depend upon legislative will.”

In Ex parte Robinson, 19 Wall. 510, the court said:

“ The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of' the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.”

In the same opinion it was doubted whether the act of Congress of March 2, 1831, upon the subject of contempts, could be held to limit the authority of the Supreme Court, which derives its existence and power from the Constitution. It was, however, held to apply to those courts which were the creatures of Congress, and not of the Constitution.

Chief Justice Wilmot, in Rex v. Almon, 8 State Tr. 59, said:

“The arraignment of the justice of the judges * * • * excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiance to the laws is so fundamentally shaken it is the most fatal and the most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private individuals, but because they are the channels by which the king’s justice is conveyed to the people.”

See, also, Middlebrook v. State, 43 Conn. 268 (21 Am. Rep. 650).

We have referred to this subject and the authorities bearing upon it for the purpose of showing that this power of the legislature is, at least, an open question. Fortunately, it is not necessary to pass upon it in this case, and we refrain from doing so. We must not, however, be understood as assenting to the proposition that the legislature, under the guise of regulation, may destroy a constitutional power of the courts.

The contention of the respondent that his letter did not refer to a case pending in court cannot be maintained. The decree had not been enrolled. It was still subjéct to modification upon motion. The court might order a rehearing. No appeal had then been taken to this court. The costs had not been taxed, and no execution issued. Neither was it in condition to issue execution. The case cannot, therefore, be held to have reached that stage where it can be said that it was not pending in that court. Fishback v. State, 131 Ind. 304. Aside from the above consideration, however, the statute does not, in terms, limit the power to, punish for contempt to cases pending in the court. Under respondent’s contention, a party may threaten to do an act, or charge corruption upon the judge, or that he has submitted to private interviews with the litigants, and, if the case is then pending, he will be subject to summary punishment by the court, but, if the decree has been pronounced, or judgment rendered, or order made, he may, the next moment, with impunity do the same acts or utter the same statements, and leave the judge to the sole remedy of an action for libel or slander. This is too narrow a construction of the law of contempts, and is not sustained by the best-considered cases. In this connection the language of Chief Justice Kent in Yates v. Lansing, 5 Johns. 282, is applicable:

“Whenever we subject the established courts of the land to.the degradation of private prosecution, we subdue their independence and destroy their authority. Instead of being venerable before the public, they become contemptible, and we thereby embolden the licentious to trample upon everything sacred in society, and to overturn those institutions which have hitherto been deemed the best guardians of civil liberty.”

This question is very ably discussed in the leading case of Com. v. Dandridge, 2 Va. Cas. 408, in which case a party litigant in a suit which the court had decided met the judge shortly after on the steps leading into the courthouse, and charged him with having acted corruptly in the case.

The true rule is stated in Neel v. State, 4 Eng. (Ark.) 259 (50 Am. Dec. 209):

“By the common law, a court may punish for contemptuous conduct toward the tribunal, its process, the presiding judge, or for indignities to the judge while engaged in the performance of judicial duties in vacation, or for insults offered him in consequence of judicial acts; but indignities offered to the person of the judge in vacation, when not engaged in judicial business, and without reference to his official conduct, are not punishable as contempts.”

The charges in the letter of Mr. Chadwick had direct reference to the official conduct of the judge, and not to his private character and acts. Fortunately, the occasion for the exercise of this power by the courts of this State has been infrequent. The courts have seldom, if ever, assumed jurisdiction and inflicted punishment where an enlightened public conscience has not justified it. So long as critics confine their criticisms within the facts, and base them upon the decisions of the court, they commit no contempt, no matter how severe the criticisms may be; but when they pass beyond that line, and charge that they have not had a fair trial or hearing on account of the corruption of the 'presiding judge, or his listening to arguments and personal interviews out of court, the tendency is to poison the fountain of justice, and to create distrust, and destroy the confidence of the people in their courts, which are of the utmost importance to them in the protection of their rights and liberties. It is said in Com. v. Dandridge:

“And if the power of punishment stop here, a curious consequence may ensue. A man may be attached for threatening to do that for which he could not be attached when actually done. One says of a judge, ‘ If he render a certain judgment against me, I will insult or beat him.’ For this he may be attached. But, if (the judgment having been rendered) the insult be actually offered, an attachment no longer lies, because the contempt is in relation to the past conduct of the judge, and to a case no longer pending. A recurrence to original principles—the only true test—by demonstrating that the weight, authority, and independence of the court may be equally assailed either way, will prove that this distinction is merely ideal.”

It is next insisted by the respondent that he purged himself of the contempt by his answers, both to the petition and to the interrogatories, by stating that he intended no charge of improper conduct on the part of the presiding judge, and that the subsequent proceedings were, therefore, beyond the jurisdiction of the court. Where the language is susceptible of two interpretations or constructions, and the party charged asserts under oath that he did not intend the article to be construed as alleged in the innuendoes, he is purged of the contempt; but if the publication is fairly susceptible of but one construction, and its purport is to defame and degrade the court in the eyes of litigants and the public, his dehial of any intended wrong does not operate to purg’e him of the contempt. People v. Wilson, 64 Ill. 195 (16 Am. Rep. 528); Fishback v. State, 131 Ind. 304; Sturoc’s Case, 48 N. H. 428 (97 Am. Dec. 626); In re Woolley, supra.

It remains to be considered whether the language was of such a character that his denial of intended wrong purges from the contempt. We should be glad to so hold if we considered it possible to do so. The language, however, is susceptible, in our judgment, of but one interpretation, namely, that the defendants in that suit, the clients of the respondent, had not had a fair trial; that this was due to the action, largely, of Judge Eldredge; that the regular circuit court judge, whose duty it was to hear the case, if there were not legal obstacles in the way, was driven from the performance of his duty by persistent attacks upon him; and that Judge Eldredge had submitted to private interviews with Mrs. Botsford in regard to the case. If this language, published and scattered among the people, does not tend to throw discredit upon the courts, to create suspicion as to their fairness, and to degrade them in the eyes of the people, it would be difficult to find language which would. The publication bore its natural fruit. A public meeting was called and held, ostensibly to aid the Fitzgeralds, and to raise money to assist them in appealing their case to this court. At that meeting the name of Judge Eldredge was hissed, and there were cries from some in the audience, “To hell with Judge Eldredge! ” It was disclosed by the evidence that there was no foundation whatever for the charge that Judge Vance had been driven from hearing the case, or that Judge Eldredge had submitted to private interviews with Mrs. Botsford.

We are compelled to hold that the finding of the circuit court was correct. The proceedings are therefore affirmed, and the record remanded.

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


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    SHEPARD v. KENT CIRCUIT JUDGE.
    Contempt—Refusal of Debtor to Make Disclosure.
    Under sections 9 and 10 of the statute authorizing proceedings at law in the nature of a judgment creditor’s bill (3 How. Stat. § 8107 et seq.), the circuit court has power to punish as for contempt a debtor who refuses to appear before a circuit court commissioner, and make discovery on oath concerning his property, pursuant to the provisions oí said act.

      Mandamus by C. Sidney Shepard and others to compel William E. Grove, circuit judge of Kent county, to issue an attachment against one Joseph Berles for contempt in failing to comply with an order of a circuit court commissioner to appear and make discovery concerning his property.
    Submitted April 7, 189 6.
    Writ granted June 30, 1896.

      Rood, & Ryan, for relators.

      Fletcher & Wanty, for respondent.
   Grant, J.

The relators obtained a judgment in the circuit court for the county of Kent against Joseph Berles. Berles v. Comstock, 104 Mich. 139. After that decision, ’ Mr. Berles refused to appear before the commissioner a,nd make disclosure, and the relators thereupon applied to the circuit court for an attachment against him for-contempt. An order to show cause was issued and served. Mr. Berles replied thereto, den ying the jurisdiction of the court to punish for contempt. This presents the sole issue in the case.

The validity of the act of the legislature under which this proceeding was instituted was sustained in Lee v. Kalamazoo Circuit Judge, 101 Mich. 406. It is alleged that this is not a proceeding pending in court, but before a circuit court commissioner, whose sole authority is derived from the statute. The power of courts to punish for contempts has been fully discussed in Re Chadwick, ante, 588. The only provision of chapter 278, 2 How. Stat., in regard to punishing witnesses or parties for disobeying the order of the commissioner, is section 8115, which reads as follows:

“If any party or witness shall disobey any order of the judge or commissioner, made in pursuance of this act, and duly served, such party or witness may be punished by the judge as for a contempt, in the same manner as the circuit court may punish for contempt.”

The power thus lodged by this section in the circuit judge is not exclusively in that officer. It is a cumulative remedy, and does not take away the jurisdiction of the courts in such case. We think the learned circuit judge was in error in holding that the circuit court had no jurisdiction. It is true that the commissioner does not proceed under the direct order of the court, but by virtue of the power conferred upon him by statute. The proceeding is supplementary to the judgment rendered in court. The power to punish for contempt is directly conferred upon the circuit judge. We think that this order, which a circuit judge is authorized to make at chambers, may also be made by the court. 2 How. Stat. § 8116. If there be no power to compel the debtor to make disclosure, then the statute is nugatory, and of no use. The circuit court commissioner is a constitutional officer, and, by section 16 of article 6, “may be vested with judicial powers not exceeding those of a judge of the circuit court at chambers.” In this matter he acted judicially, and the only method by which his jurisdiction can be sustained is by proceedings for contempt. The following authorities, we think, sustain this position: Tremain v. Richardson, 68 N. Y. 617; Wicker v. Dresser, 13 How. Prac. 331; People v. Kelly, 22 How. Prac. 309. See, also, Lathrop v. Clapp, 40 N. Y. 328 (100 Am. Dec. 493). The writ must issue.

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


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    COE v. HINKLEY.

    1. Debtor and Creditor—Defenses—Suit by Assignee.
    That the assignment was gratuitous is no defense to an action against a debtor by an assignee of the claim sued upon.
    2. Garnishment—Jurisdiction—Service.
    Service upon the principal defendant after the time within which, under 2 How. Stat. § 8087, jurisdiction of a nonresident principal defendant must be acquired to support garnishment proceedings, in an action commenced by the filing of a declaration and entry of rule to plead, will support a judgment subsequently entered against the garnishee, where he did not avail himself of his right to a discharge. Iron Cliffs Co. v. Lahais, 52 Mich. 894, distinguished.
    3. Same—Rule to Plead.
    A rule to plead in the principal cause may be entered nunc pro tunc as of the time of filing the declaration, under 2 How. Stat. § 7685, in order to support a judgment against a garnishee, where a copy of the rule to plead served was indorsed on the copy of the declaration returned.
    4. Same—Parties—Conclusiveness of Judgment.
    Where the assignee of a claim intervenes in garnishment proceedings brought by a creditor of his assignor against a guarantor of the claim assigned, and a valid judgment is rendered against the guarantor, from which no appeal is taken by the intervener, the amount of such judgment must be credited to the debtor in reduction of the claim.

      ■5. Pleading—Trial—Notice of Special Defense—Amendment, A notice under a plea of the general issue of the pendency of a prior suit may be amended so as to allege the recovery of a judgment in such suit, and to claim it as a set-off against the claim of the plaintiff in the case at bar.
    ■6. Garnishment—Sufficiency of Affidavit.
    An affidavit for a writ of garnishment which, while averring an action arising upon contract, does not show whether the contract is express or implied, and fails to aver an indebtedness upon such contract, is fatally defective. Weimeister v. Manville, 44 Mich. 408, followed.
    Error to Berrien; Coolidge, J.
    Submitted April 28, 1896.
    Decided June 30, 1896.

      Assumpsit bj- Henry H. Coe and Frederick Wilkes against Myron Hinkley upon an assignment of an account for the purchase price of corporate stock. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      George W. Bridgman and Howell & Carr (A. Plummer, of counsel), for appellant.

      Taggart, Knappen & Denison, for appellees.

       Rehearing was denied December 9, 1896, but motion to modify judgment was granted, and judgment was thereupon entered in favor of plaintiffs for the amount recovered below, less the McDonald & Carroll judgment.

   Hooker, J.

Hinkley and Sinclair were stockholders in the Alanson Manufacturing Company. They made a written contract, dated October 30, 1893, whereby Sinclair agreed to sell and Hinkley to buy 243 shares of stock in said company for the sum of $2,400, payment to be made in installments, to be guaranteed in writing upon the contract by the Alanson Manufacturing Company, which guaranty was duly indorsed of the same date. The amount remaining unpaid and in controversy is $725, less two small orders, given by Sinclair upon the Alanson Manufacturing Company and paid by it, ■amounting to $78. On April 11, 1894, Sinclair made a contract in writing with Coe & Wilkes, of Painesville, ■Ohio, by which they agreed to manufacture and deliver to him at their shop, on or as near as possible to May 15th then next ensuing, one veneer machine, for which Sinclair agreed to pay them $640, as follows: $200 May I, 1894, $200 September 1, 1894, and $240 December 1, 1894, with interest from date of delivery of the machine. The contract recited that collateral security had that day been made by the assignment of the contract between Sinclair and Hinkley. Upon the same date, i. e., April II, 1894, the contract between Sinclair and Hinkley was assigned to Coe & Wilkes, by a writing signed by Sinclair, the same appearing upon the back of the copy of the contract held by him, viz.:

“Painesville, 0., April 11, 1894.
“ I hereby assign over my interest in above contract, to the amount of $640 and interest, payable as due 1st May, 1st Sept., and 1st Dec., 1894, and agree that Myron Hinkley shall pay over to Coe & Wilkes the full amounts as they become due. This is given as collateral security for notes given in payment of a veneer machine.
“Geo. Sinclair.”
There was evidence showing that upon the same day, i. e., April 11, 1894, Sinclair wrote and mailed the following letter to Hinkley, viz.:
“ Painesville, Ohio, April 11, 1894.
“ Mr. Myron Hinkley,
“Benton Harbor, Mich.
Dear Sir: I have this day assigned to Coe & Wilkes all my interest in my contract with you, and request that you pay over to them the amounts as they become due, and their receipt for the same will be the full release to you. Coe & Wilkes have your contract in their possession, and will indorse payments on the same as made.
“ Yours respectfully,
“Geo. Sinclair.”

Upon the back of a copy of the Coe & Wilkes contract, under date of August 6, 1894, was an assignment of the same by Sinclair to one Phillips as collateral security for two notes, amounting to $300, given by Sinclair to Phillips about June, 1892; the contract to be reassigned if the notes should be paid at maturity, but, if not, the “assignment was to be complete, transferring the entire title to said Phillips.” When these notes would mature did not appear, nor is it shown whether or not they were paid.

On April 13, 1894, McDonald & Carroll, a business firm of Grand Eapids, commenced an action of assumpsit against Sinclair, by declaration, in the Emmet county circuit court, and on the same day instituted garnishee proceedings against the Alanson Manufacturing Company as a debtor of Sinclair, the affidavit alleging that Sinclair was a resident of the State of Ohio. Similar actions were begun against the same parties, on the part of one Jay Ferris, in the same court, on June 6, 1894. Judgments were taken against the garnishee in both cases, and in the former such judgment was affirmed by this court. McDonald v. Manufacturing Co., 107 Mich. 10. In the case of McDonald, Coe & Wilkes were permitted to intervene in said cause, as claimants of the fund, by an order made upon their motion previous to final judgment. The evidence shows that the veneer machine has never been delivered by Coe & Wilkes to Sinclair, who testified that they owed him such machine; but the record is silent as to the reasons for such nondelivery, and there is no evidence tending to show that it was called for or that they refused to deliver said machine.

The action now before us is assumpsit, brought by Coe & Wilkes upon the contract between Sinclair and Hinkley, assigned to them, and the questions before us are:

1. Whether their right of recovery is affected by the failure to show a performance of their contract with Sinclair.

2. Whether the garnishee judgments constitute a defense to-the action.

The defendant, Hinkley, cannot question the consideration for the assignment from Sinclair to Coe & Wilkes, which on its face gave to them the authority to receive payments as they fell due. Hinkley could not be heard to object if the assignment was gratuitous, and defendant cannot deny the right of the assignee to collect, by suit or otherwise, on that ground. Briscoe v. Eckley, 35 Mich. 114; Seligman v. Ten Eyck’s Estate, 49 Mich. 107.

McDonald & Carroll and Ferris were creditors of Sinclair. They planted their garnishee suits, not against Hinkley, the primary debtor of Sinclair, but against the company, which had, in effect, guaranteed the payment of the purchase price of the stock. Had Coe & Wilkes received payment from the guarantor, it would have been •a payment for the benefit of Hinkley,—one which Hinkley might set up and maintain against them. He may do the same in this instance, if the garnishee proceedings can be held binding upon .Coe & Wilkes. At the time the writ of garnishment in the McDonald Case was issued and served, nothing was due upon the Hinkley contract, and the liability was, upon the face of the papers, a contingent one, though it was claimed, and sopie testimony was offered tending to show, that the company was the actual purchaser of the stock, the contract being made for its benefit. The defendant was secretary and manager of the Alanson Manufacturing Company, and he made and filed the disclosure, in.which he unqualifiedly stated that said company was indebted to Sinclair in the sum of $725, due as follows, viz.: $225 on or before May 1, 1894, $200 on or before September 1, 1894, and $300 on or before December 1, 1894. The disclosure further says that, of this sum of $725, none was due at the time the writ was served, and it was also subject to orders for $78, given by Sinclair upon the manufacturing company, of which it had notice. It also stated that, after the service of the writ of garnishment, it received the letter from Sinclair, alluded to, notifying it of the assignment to Coe & Wilkes.

The record shows no entry of a rule to plead in the principal cause, and the service of the declaration and notice of the rule to plead was made on September 28th. The disclosure upon which judgment was taken was made June 18, 1894, by Hinkley, and filed July 6, 1894. The affidavit for garnishment in that cause alleges that Sinclair was a resident of the State of Ohio, and under 2 How. Stat. § 8087, jurisdiction might have been acquired by delivering a copy, etc., to the defendant, and by proof of the fact by affidavit duly filed. The record contains a paper purporting to be an affidavit of such service, sworn to before “B. F. Crofoot, clerk of courts, Lake county, Ohio,” with the word “Seal” affixed. No authentication of any kind was attached, and on motion of Sinclair, who appeared specially for the purpose, the judgment which had been rendered against him was vacated and set aside on October 16th. Subsequently a new default was entered, based upon the service of September 28th, and judgment on default absolute followed. The failure of the plaintiffs to obtain jurisdiction of the principal defendant within the statutory period, he being a nonresident, might have entitled the garnishee to a discharge, under Noble v. Bourke, 44 Mich. 194, and Axtell v. Gibbs, 52 Mich. 641; but it did not avail itself of the opportunity, and permitted judgment to be taken later upon its disclosure made in July, and which, under the case of Iron Cliffs Co. v. Lahais, 52 Mich. 394, was of no force, notwithstanding the subsequent service upon the defendant, unless we are to distinguish that case upon the ground that it was commenced against the principal defendant by attachment, which was not properly served, and therefore the proceedings were void, and carried the garnishee proceeding down with it, while in this case a declaration was filed and ultimately served, and therefore supported the garnishee proceedings, inasmuch as they had not been previously dismissed. We think this a proper distinction to make. The case of McDonald v. Manufacturing Co., 107 Mich. 10, determines that the filing of the declaration, and presumably the entry of rule to plead, supported the writ of garnishment, though issued and served before service of the declaration upon the principal defendant. The court then had jurisdiction of the garnishee defendant, subject to the necessity of its acquiring jurisdiction of the principal defendant.

We do not overlook the fact that the record is said to contain no evidence that the rule to plead was entered when the declaration was filed. The original record shows that a copy of the rule to plead served was indorsed on the copy of the declaration returned. If, as a fact, the rule to plead was not entered, it might be entered nunc pro time, under 2 How. Stat. § 7635. Howe v. Maltz, 35 Mich. 500; Granger v. Judge of Superior Court, 44 Mich. 385; Steere v. Vanderberg, 67 Mich. 536; Barber v. Smith, 41 Mich. 138; Emerson v. Spring Co., 100 Mich. 131.

The plaintiffs saw fit to intervene in the garnishee case, and, after obtaining a vacation of the judgment, though not a dismissal of the proceedings, which they asked, they paid no further attention to the matter, which proceeded to another judgment, from which they took no appeal, and the judgment was affirmed. Various reasons are mentioned for claiming that judgment to have been erroneous, but, in our opinion, these. questions relate to irregularities, and cannot be reviewed here; the judgment being final and conclusive upon the plaintiffs, who were before the court, unless void for want of jurisdiction. If that judgment was binding upon the Alanson Manufacturing Company and these ■ plaintiffs, it should be credited to Hinkley, as much as though the same had been paid, without suit, by the guarantor to these plaintiffs.

A question is raised upon the pleadings. At the time the plea was filed in this cause, the garnishee case had not gone to judgment. The defendant pleaded the general issue, with a notice of a prior suit pending. Before trial, however, the judgment was taken, and the notice was amended, so as to allege the same, and claim it as a set-off to the claim of the plaintiffs. The amended notice raised a new issue upon the merits, and, if the facts alleged were proved, they were a bar to the action to the amount of the judgment. See Cir. Ct. Rule No. 106; Burt v. Wayne Circuit Judges, 90 Mich. 522.

"We are of the opinion that the circuit judge erred in excluding testimony relating to the McDonald & Carroll judgment. The Ferris judgment stands upon a different footing. It seems to have been fatally defective under the case of Weimeister v. Manville, 44 Mich. 408. The court did not err in excluding this evidence.

For the'error mentioned, the judgment is reversed, and a new trial ordered.

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


text:
    BRECKON v. OTTAWA CIRCUIT JUDGE.
    1. Pleading—Defenses — Pendency of Prior Suit—Plea in Abatement.
    Plaintiff, having caused the arrest of defendant on a capias ad respondendum, ordered his discharge on account of a supposed defect in the proceedings, and sued out a new writ. The prior suit was not formally discontinued before the second arrest. Held, that defendant, if he desired to interpose the defense of the pendency of the former suit, should have pleaded the same in abatement.
    2. Capias—Second Arrest.
    An arrest in a civil action, and a subsequent discharge at the instance of the party procuring the same, does not render one exempt from a second arrest for the same cause of action, where the circumstances show a want of malice and of attempt to oppress.

      Mandamus by Charles L. Breckon to compel Philip Padgham, circuit judge of Ottawa county, to enter an order quashing a writ of capias ad respondendum.

    Submitted April 28, 1896.
    Writ denied, June 30, 1896.

      McBride & Danhof and Walter I. Lillie, for relator.

      Gerrit J. Diekema and John V. B. Goodrich, for respondent.
   Montgomery, J.

Relator was arrested on a capias ad respondendum, and, after giving common bail, moved to be discharged from arrest on the ground that hé had been previously arrested at the suit of the same plaintiff for the same cause of action. After the first arrest, plaintiff discovered what he took to be a defect in the proceedings, and ordered the relator discharged. The present writ was thereupon sued out. The former suit was not formally discontinued before the second arrest. The circuit judge returns that he found that the second writ was not sued out to harass or annoy the defendant, and upon this finding refused to discharge the relator. The circuit judge held, also, that the defense, so far as it constituted an attempt to set up a former suit pending, should have been made by a plea in abatement.

The cases which hold that a second arrest cannot be made on capias ad satisfaciendum are not in point, as in these cases the' defendant is taken in satisfaction (Damon v. Carrol, 163 Mass. 404), and the defendant is in custody of his bail, as is also the case when another action is pending, and the plaintiff has done nothing to discharge the defendant from custody. But in this case the defendant was, by the action of the plaintiff, by his own instructions, discharged from custody, and was neither under bonds nor under a former arrest when arrested in the present action. Does the fact that he had been once arrested and discharged prevent a new arrest in a new action? For, as far as the application is based upon the pendency of another suit, the circuit judge was clearly right in holding that such defense should be pleaded in abatement, giving the plaintiff opportunity to reply. Gruler v. McRoberts, 48 Mich. 317; Fenton v. Miller, 94 Mich. 215. But, if the defendant was privileged from arrest for any reason, we think an application for discharge from arrest might be made by habeas corpus, and we can see no good reason why the question may not be raised on motion.

We think that the question is, therefore, whether, after an arrest and discharge of a defendant in a civil action, he is for all time exempt from arrest for the same cause of action, when it appears that the second attempted arrest is not made maliciously, or with a view to harass the defendant. On principle it would seem that this question should be answered in the negative. The first arrest on mesne process is clearly not a satisfaction of the claim, and, when the defendant has been discharged in the first action, a second arrest is not an interference with the rights of his bondsmen or their custody of the principal. If a second arrest is not permitted, it must be because the plaintiff cannot be permitted to harass the defendant a second time. If this view be adopted, the instance of such limitation stands by itself in civil and criminal proceedings, except in cases where, in criminal proceedings, the respondent has been put in actual jeopardy.

The cases cited do not sustain the contention of the relator. In Clark v. Weldo, 4 Yeates, 206, the defendant had been previously arrested in New Castle county, Del., and had given special bail. He was also, in contemplation of law, in the custody of his bondsmen at the time of his second arrest. The court said:

“One should not be twice held to bail for the same cause of action, unless under very special circumstances. No grounds are here shown which can justify the court in varying the general rule.”

If the case be construed as deciding only what was before the court, what was held was that the defendant could not, while in custody of his bail, be held to bail in a second action, by the same plaintiff for the same cause of action. And even on this point the decision is in con■flict with other cases in so far as it treats the arrest in another jurisdiction as an impediment to a second arrest.

The case of Green v. Foskett, 11 Rich. Law, 332, has no application, so far as we are able to perceive. In Lambert v. Moore, 6 N. J. Law, 131, the demand had merged into a judgment in the first action. Post v. Sarmiento, 2 Wash. C. C. 198, does not touch the question.

In Parasset v. Gautier, 2 Dall. 330, the question was ruled in accordance with the ruling of the circuit judge in this case. In that case an arrest had been made in the State court, and the defendant had, on application, been discharged on common bail, and been relieved from giving special bail. The suit in the State court was thereupon dismissed, and a suit brought in the Federal court. Application was made to relieve the defendant from giving special bail, which application was based upon the fact of the previous arrest, the action of the State court, and the dismissal of the suit. The defendant was required to enter special bail notwithstanding this showing.

We are not cited to, nor have we found, any reported case in which it has been held that bail may not be required in a second action when the defendant is not-in custody under a former arrest, and where the circumstances show no attempt to oppress the defendant.

The writ will be denied.

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


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    DAMM v. DAMM.
    1. Estates in Land—Duty to Discharge Incumbrance—Life Tenant in Expectancy.
    As between a tenant for life in possession and the remainder-man, the duty to pay the principal of an incumbrance rests upon the remainder-man, the tenant being holden for interest only; and the obligation of the tenant is not extended where the life estate is in expectancy.
    2. Same—Interest—Apportionment.
    A life tenant in expectancy is bound to contribute to a remainder-man who pays an incumbrance upon their estates, to which the estate of the tenant in possession is not subject, an amount equal to his proportionate share, according to his expectancy, of the interest which would accrue during the expectancy of life of the tenant in possession, and the entire interest which would accrue during his expectancy of life after the commencement of his life estate in possession, less such sum as may be proper on account of immediate payment.

      S. Life Expectancy—Evidence—Mortality Tables.
    While mortality tables may afford the most satisfactory basis for estimates as to the expectancy of life, they do not in a given case constitute conclusive evidence, but must be considered in the light of, and are subject to variation by proof concerning, the age, health, and habits of the individual in question.
    Appeal from Wayne; Haire, J., presiding.
    Submitted April 29, 1896.
    Decided June 30, 1896.
    Bill by Mary A. Damm against Amelia Damm and another to foreclose a mortgage. From the decree rendered, defendant Amelia Damm appeals.
    Reversed and remanded.

      Brooke & Spalding, for complainant.

      James H. Pound, for appellant.
   Hooker, J.

Mary A. Damm, aged 69 years, was the owner of an unincumbered life estate in certain premises. She was also owner of the fee of said premises, subject to-a life estate in Amelia Damm, aged 43 years, which in-turn was subject to a mortgage, to which mortgage Mary Damm’s interest in fee was also subject. Mary Damm was in possession, and purchased the mortgage; thereby paying it, to the extent of her liability thereon, as we held when the case was before us. 91 Mich. 424. The question now before us is, what share is chargeable upon the expectant life estate of Amelia Damm?

It is contended by counsel for the defendant Amelia Damm that her liability is limited to the payment of the interest, and that the principal is chargeable upon the remainder in fee, as between her and the owner in fee, who is Mary Damm. On the other hand, it is claimed that the mortgage was in existence when'both of the estates were created, and that both are estates in expectancy; that the estate in possession is liable for neither; and that the two estates in expectancy should share, in proportion to their respective values, the burden of the mortgage, principal and interest. It is conceded in the brief of counsel for the complainant that “the rule is uniformly laid down that, as between a life tenant in possession and a remainder-man, the life tenant is bound to pay the interest, and the remainder-man the principal;” citing Cogswell v. Cogswell, 2 Edw. Ch. 231; 4 Kent, Comm. marg. p. 74; 1 Washb. Real Prop. p. 129, and note, and p. 319 (marg. pp. 96, 257). And they cite us to authorities holding that the obligation upon the life tenant includes arrearages of interest. It is urged, however, that this obligation is not limited to interest, where the life estate is in expectancy, though no authority is cited in support of this contention; and we think there is little reason for a distinction between estates for life in possession, and those in expectancy, if, as counsel contend, the latter is obliged to protect the remainder-man in fee against arrearages of interest due from, but not paid by, Ms predecessor. It would seem that he should be satisfied with protection against the interest. Kent calls this a hard rule, though he says it was laid down in Penrhyn v. Hughes, 5 Ves. 99, cited by counsel. See 4 Kent, Comm. 75. The rule is doubted in Sharshaw v. Gibbs, Kay, 339, where it was said to have been unnecessary to lay down so wide a rule. And in Caulfield v. Maguire, 2 Jones & L. 141, 160, Lord St. Leonards questions the rule, and the case of Tracy v. Hereford, 2 Brown, Ch. 128, which the case of Penrhyn v. Hughes professes to follow, saying:

“I am not prepared to fix the defaults of every previous tenant for life on the last taker for life. It is as incumbent on the reversioner in fee to look after the tenant for life" in possession as it is on a tenant for life m remainder.”

This language means much. It substantially says that the owner of a life estate in expectancy does not owe the duty to the reversioner of preserving the estate, until he acquires possession; that such duty rests upon the first life tenant; and that Ms estate is liable for the performance of such duty, which the reversioner may enforce, if he cares to do so (as can the second life tenant), but he cannot require the latter to do so, or to make good the default, if he himself does not choose to enforce his rights. Furthermore, this seems to imply that the life tenant in expectancy owes no duty of paying the principal, or a proportionate part of it, for, if it were otherwise, he would certainly be liable for at least a proportionate share of such arrearage.

The first life tenant was under no obligation to pay the interest during her tenancy. That was a charge upon the estates to follow. Neither party has immediate income from her estate, and therefore the profits from the land cannot be applied to such payment. Yet the interest must be paid, to protect the expectant estates, and this we think a matter of mutual concern to the ■ owners thereof. We hold, therefore, that Amelia Damm should contribute to Mary Damm, who paid it, a proportionate share of such interest, to be computed upon the basis of the relative values of the estates. See Defreese v. Lake, ante, 415.

It therefore becomes necessary to ascertain what share of this interest is equitably due from Amelia Damm, for the amount thereof is the sum for which the complainant should be entitled to a decree against the life estate of Amelia Da,mm. Of the interest to the date of the commencement of the life estate of Amelia Damm, she should pay her share according to her expectancy, and the owner of the remainder should pay the rest. To this should be added an amount equal to the present value of the incumbrance on Amelia Damm’s estate, viz., the interest which would be payable annually on |500 during the period of her life estate. Hodges v. Phinney, 106 Mich. 537; 1 Scrib. Dower, 537, and cases cited; House v. House, 10 Paige, 158; Atkins v. Kron, 8 Ired. Eq. 4. The interest which may be expected to accrue during the life estate of Mary Damm, and that which will follow, cannot be computed upon the same basis, because Amelia Damm should pay all of the latter, and but a proportionate part of the former. To ascertain the former, the proportion that her life estate bears to that of the remainder-man is the proportion of the interest she should pay. As to the latter, her expectation of life must be ascertained, to determine the aggregate amount of interest that she must provide for. When that is ascertained, the present value can be determined by a computation, in which the fact that it is to be paid immediately, instead of at the commencement of her term, should be considered. In both these questions the expectancy of life of both parties is involved. Expectancy of life is a question of fact, and while life tables are very convenient aids, and perhaps afford the most satisfactory basis of an estimate, they are not conclusive, being considered in the light of, and subject to variation by proof concerning, the age, health, and habits of the parties. .

The decree entered must be reversed, and the case remanded to the circuit court in chancery, with directions to refer the case to a master to take proofs, and compute and report to said court the amount equitably dué upon said mortgage from said Amelia Damm, under the rule laid down herein, or that said court, if it be deemed advisable, take such proof and make such computation, and that upon such report or computation a decree of foreclosure be entered in favor of the complainant for such sum. The defendant will recover costs of this court.

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


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    PEOPLE v. MACARD.
    1. Criminal Law—Perjury—Materiality oe Issue.
    Where, in a prosecution for murder, there is no direct evidence connecting the respondent therewith in the absence of proof that a witness for the people, who has confessed that the respondent and himself committed the crime, was at a certain house on the night before the murder, the whereabouts of the witness on that night is a material issue, and perjury can be predicated upon the evidence of one who falsely testifies that the witness was not at the house in question.
    2. Same—Evidence—Court Files.
    In a prosecution for perjury alleged to have been committed upon a trial for murder, the papers returned by the examining magistrate in the murder case may be introduced in evidence for the purpose of showing the regularity of such proceedings.
    3. Evidence—Stenographer’s Minutes—Proof of Correctness.
    Testimony of a stenographer that, by the aid of his minutes, lie can give, “just as it was given in court,” the testimony taken at a former trial, is sufficient proof of the correctness of such minutes.
    4. Perjury—Evidence—Materiality.
    It is not error to permit the stenographer to read in full the testimony of one accused of perjury, as given at the trial upon which the crime is alleged to have been committed, where it all has a bearing, more or less remote, upon that portion of his testimony which is the basis of the charge.
    5. Same.
    The testimony of other witnesses at the former trial may likewise be read in evidence, where its purpose is expressly limited to showing the materiality of the alleged false testimony.
    6. Same—Corrupt Intent.
    In a prosecution for perjury alleged to have been committed on the trial of respondent’s brother for murder, testimony that respondent offered money to witnesses to prevent them from testifying upon the former trial, and that he proposed to secrete them to avoid service of subpoena, is admissible to show corrupt motive and intent.
    7. Appeal—Bill of Exceptions—Unauthorized Addition.
    An assignment of error based upon the refusal of the court to give certain requests to charge is not available, where the requests appear to have been added to the bill of exceptions without authority, and are not certified to by the court.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted April 30, 1896.
    Decided June 30, 1896.
    William Macard was convicted of perjury, and sentenced to imprisonment for 15 years in the state prison at Marquette.
    Affirmed.
    The respondent was convicted of the crime of perjury, alleged to have been committed on the trial of his brother Charles for the murder of one Mrs. Mary McKendrick. Upon that trial the people claimed that Charles Macard and Henry Prame came from Chicago to Grand Rapids, and remained at the home of the mother of Charles until the crime was committed, on January 17th following; that Charles and Prame slept together on January 15th and 16th. Prame subsequently confessed that he and Charles Macard committed the murder. Upon the trial of Charles the defense insisted that ■a man by the name of Lewellen slept with Charles, at his mother’s, on the night of the 16th, and that Prame had left on the afternoon of the 15th. The testimony, so far as essential, will be referred to in connection with the points raised.
    The information was as follows:
    “ Alfred Wolcott, prosecuting attorney for the county of Kent, aforesaid, for and in behalf of the people of the State of Michigan, comes into said court in the March derm thereof, A. D. 1895, and gives it here to understand and be informed: That one William Macard, late of the township of Wyoming, in the county of Kent, aforesaid, on, to wit, the 19th day of July, A. D. 1894, at the city of Grand Rapids, in the county of Kent, aforesaid, at a session of the superior court of Grand Rapids, at the superior court room in the city hall of said city, before the Hon. Edwin A. Burlingame, then being judge of the superior court of Grand Rapids, aforesaid, a certain issue before then duly joined in the said court between the people of the State of Michigan and one Charles Macard, then being charged in an information duly filed in said court by the prosecuting attorney of said county with a capital crime, to wit, the crime of murder, upon a plea of not guilty, duly entered in said cause by order of said court, came on to be tried in due form of law, and was then and there being tried by a jury of the city of Grand Rapids, in said county, in that behalf duly sworn and taken between the parties aforesaid, upon which trial the said William Macard, late of the township of Wyoming, in said county, then and there appeared as a witness for and in behalf of the said Charles Macard, and was then and there duly sworn and took his corporal oath on, to wit, the 19th day of July, A. D. 1894, before the said Hon. Edwin A. Burlingame, judge of the superior court of Grand Rapids, aforesaid, that the evidence (testimony) which he, the said William Macard, should give to the court there, and to the said jury so sworn as aforesaid, touching the matter in question material to the issue then being tried between the people of the State of Michigan and the said Charles Macard, should be the truth, the whole truth, and nothing but the truth, the said oath then and there being administered in due form of law before the said Hon. Edwin A. Burlingame, judge of the superior court of Grand Rapids, aforesaid, by one Fred J. Adams, then being the clerk of the said superior court of Grand Rapids, aforesaid, he, the said Fred J. Adams, clerk of said court, aforesaid, then and there having sufficient power and authority to administer the said oath to the said William Macard in that behalf, and the said oath then and there being material to said issue then and there being tried, and then and there an oath required by law to be administered to witnesses in said court.
    ‘ ‘ That at and upon the trial of the issue so j oined between the people of the State of Michigan and the said Charles Macard it then and there became and was a material question whether a certain Henry Prame passed the night of the 16th day of January, A. D. 1894, in company with the said Charles Macard, and whether any person other than Henry Prame passed the night of the 16th day of January, A. D. 1894, with and in company with Charles Macard, aforesaid. That the said William Macard, being so sworn as aforesaid, contriving and intending to prevent the due course of law and justice, and to unjustly aggrieve the people of the State of Michigan, the plaintiff in said issue, then and there, on the trial of the said issue, upon his oath aforesaid, before the said Hon. Edwin A. Burlingame, then judge of the superior court of Grand Rapids, and before the said jurors so sworn as aforesaid, falsely, corruptly, knowingly, willfully, and maliciously did depose and swear, amongst other things, in substance and to the effect following; that is to say, in answer to questions then and there put to him by counsel: ‘ Charles,’ thereby then and there meaning the said Charles Macard, defendant in said issue, ‘was there,’ thereby then and there meaning at the residence of his mother, in the township of Wyoming, in the county of Kent, and State of Michigan, ‘on Tuesday night,’ thereby and then and there meaning Tuesday night, the 16 th day of January, A. D. 1894. ‘That another man who had been subpoenaed, but who was not in attendance on the court, passed the night of the 16th day of January, A. D. 1894, with the said Charles Macard at the residence of his mother’ (she being the mother of said witness and the said Charles Ma-card) , ‘ in the township of Wyoming, in said county. ’ That a man called ‘Prame,’ who was known to the said William Macard as ‘Hank,’ was not seen about and did not stay at the residence of said William Macard’s mother, in the township of Wyoming, in the county aforesaid, any time after three, four, or five o’clock on the afternoon of Monday, the 15th day of January, A. D. 1894. That the man who did stay at the residence of his, William Macard’s, mother, in the township of Wyoming, aforesaid, on the night of the 16th day of January, A. D. 1894, and who passed the night of the said 16th day of January, 1894, with and in company with said Charles Macard, was one Loren Lewellen, as sworn and deposed to by the said William Macard; but thereby then and there meaning Oren Lewellen, being one, the same, and identical person, but whose given name is Oren, and not Loren.
    ‘ ‘ Whereas, in truth and in fact, the said Henry Prame did pass the night of the 16th day of January, A. D. 1894, in company with the said Charles Macard, at the residence of his, the said William Macard’s, mother, in the township of Wyoming, in the, county aforesaid, and that another man who had been subpoenaed, but who was not in attendance on the court aforesaid, did not pass the night of the 16th day of January, A. D. 1894, at the residence of his, said William Macard’s, mother, in the township of Wyoming, in the county aforesaid, with and in company with said Charles Ma-card. That Loren Lewellen, being the said Oren Lewellen, only one and the same person as aforesaid, did not stay at or pass the night of the 16th day of January, A. I).’ 1894, at the residence of his, said William Macard’s, mother, in the township of Wyoming, aforesaid, in said county, in company with said Charles Macard, and that said Lewellen was not there at any time during the day or night of the said 16th day of January, A. D. 1894.
    “Whereby and wherein the said William Macard, on the said 19th day of July, A. D. 1894, at the city of Grand Rapids, in the county and State aforesaid, before the said Hon. Edwin A. Burlingame, judge of the superior court of Grand Rapids, at a session of said superior court of Grand Rapids, held at the superior court room in the city ball of said city, and at the trial of the issue aforesaid, he, the said Hon. Edwin A. Burlingame, judge as aforesaid, then and there having power and jurisdiction to hear, try, and determine the said issue then and there being tried between the people of the State of Michigan and the said Charles Macard, and he, the said Fred J. Adams, clerk of said court, then and there having sufficient power and authority to administer the said oath as aforesaid, and said oath then and there being material to said issue, and required by law as aforesaid, by his own act and consent, and before the said jury so sworn as aforesaid, and of his own most wicked and corrupt mind, in manner and form as aforesaid, falsely, wickedly, willfully, and corruptly did commit willful and corrupt perjury; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of «the State of Michigan, and to the evil example of all others in like cases offending.”

      Nathan P. Allen, for appellant.

      Alfred Wolcott, Prosecuting Attorney, and Charles E. Ward, Assistant Prosecuting Attorney, for the people.
   Grant, J.

{after stating the facts).

The respondent’s counsel moved to quash the information upon the ground that the testimony given by respondent was not material to the issue on the trial of Charles Macard. This contention cannot be sustained. The substance of the alleged false testimony is set out in the information, and its materiality and falsity alleged. Prame was an important witness upon the murder trial. If it had been proven that he was not at Mrs. Macard’s on the night of the 16th, there would have been no direct evidence connecting Charles with the- murder. The whereabouts of Prame was, therefore, a material issue in that case.

Counsel complains of the introduction in evidence of the papers returned by the examining magistrate in the case of People v. Charles Macard. These papers were not read in evidence, and appear to have been offered for the sole purpose of showing the regularity of the proceedings in that case. Comment is unnecessary.

Error is alleged in permitting the stenographer to read from his notes taken upon the murder trial, for the reason that he did not testify to their correctness. There are two answers to this contention: (1) No such objection was made when the testimony was offered; (2) the stenographer did testify that by the aid of his minutes he could “give the testimony just as it was given in court, question and answer.” This was a substantial statement that his minutes were correct.

The stenographer was permitted to read the testimony of the respondent given upon the murder trial. The objection to it is that it contained statements not connected with the specific charge set up in the information. The objection was without merit. It all had a bearing, more or less remote, upon his testimony that Prame was not at his mother’s on the night of the 16th.

The testimony of Henry Prame given upon the murder trial was read in evidence. This was for the purpose of showing the materiality of the testimony given by the respondent. The court, in its instruction, expressly limited the testimony taken upon that trial, outside of that of the respondent, to show the materiality of the alleged false testimony.

Complaint is made of the rejection of certain testimony offered on behalf of the respondent. The testimony was subsequently admitted, and therefore no error was committed.

Several witnesses testified that they knew this Lewellen, who, respondent claimed, slept with his brother, Charles, on the night of the 16th, and told his whereabouts at that time. The precise objection was that there was no evidence to show that the Lewellen about whom the witnesses were testifying was the same Lewellen who was claimed to have slept at Mrs. Macard’s. We think there is ample evidence to justify the jury in finding that he was the same person.

The eighth, ninth, eleventh, and twelfth assignments of error refer to the testimony of witnesses to conversations between them and the respondent. They were offered and received for the purpose of showing the corrupt motive of the respondent. To illustrate, one of these witnesses testified that the respondent told her that he would rather give her $500 than to have her go as a witness upon the trial of his brother, and that, if she would not go before it was time for her to be subpoenaed, he would secrete her. Such testimony was competent, and was not rendered incompetent by the fact that it tended to prove that respondent was guilty of another offense. Any act or statement made by him in connection with his brother’s trial was competent to throw light upon his intent and motive. People v. Seaman, 107 Mich. 348.

Objection was made to certain portions of the court’s instructions. . We find no error in the charge as a whole, and no question is raised which we deem of enough importance to be discussed.

Complaint was made of the refusal to give three requests on the part of respondent. These requests ,are not a part of the bill, of exceptions. They appear to have been added without authority, and are not certified to by the court. They cannot, therefore, be discussed.

The conviction is affirmed.

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