text:
    COTTRELL v. HATHEWAY.
    1. Attachment — Joint Debtors — Dissolution.
    Plaintiff in attachment against two defendants jointly on the ground of a fraudulent disposition or concealment of their property must, in order to sustain the writ upon an application for its dissolution, show joint action on their part, under 2 How. Stat. § 8015, authorizing ’ the issuance of a writ of attachment against the property and effects of such of two or more joint debtors as are brought within the provisions of section 7987, prescribing the circumstances under which the writ may issue in general.

      2. Same — Sufficiency of Application.
    An application for the dissolution of an attachment by one of the defendants, alleging that she has not assigned, disposed of, or concealed, or attempted to assign, dispose of, or conceal, her property, or any portion thereof, with intent to defraud her creditors, is sufficent to cover all property owned by her, whether individually or jointly with a codefendant.

      Certiorari to Macomb; Eldredge, J.
    Submitted January 9, 1896.
    Decided March 24, 1896.
    Attachment proceedings by William Cottrell against Gilbert Hatheway and Eveline L. Hatheway. From a judgment dissolving the attachment on petition of Eveline L. Hatheway, plaintiff brings certiorari.

    Affirmed.

      James G. Tucker (Byron E. Erskine, of counsel), for plaintiff.

      Mark Norris, for defendant Eveline L. Hatheway.
   Long, C. J.

Application for dissolution of attachment. On June 23, 1893, the plaintiff sued out a writ of attachment in the circuit court of Macomb county against the defendants for an indebtedness of $3,607.58, contracted in July and November, 1891. The attachment was levied the same day on the lands of the defendant Eveline L. Hatheway situate in that county. The affidavit upon which the attachment issued was in the usual form, and alleged that—

“The plaintiff has good reason to believe, and does believe, that the defendants, Gilbert Hatheway and Eveline L. Hatheway, have assigned, disposed of, and concealed, and are about to assign, dispose of, and conceal, their property, with intent to defraud their creditors.”

Eveline L. Hatheway, on November 7, 1893, filed a petition for the dissolution of said attachment, with one of the circuit court commissioners of that county. The petition, which was duly verified, alleged, as ground for the dissolution, that—

“At no time, either prior to the issuing of said writ or subsequent thereto, has this deponent assigned, disposed of, or concealed, or attempted to assign, dispose of, or conceal, her property, or any portion thereof, with intent to defraud her creditors; that the property seized under said writ of attachment is the property of this deponent, and that the said Gilbert Hatheway has no interest therein of any kind; and that no property of the said Gilbert Hatheway was seized under said writ of attachment.”

Upon the filing with the commissioner of said petition, a citation was issued, returnable on November 24th, and an attempt was made to serve the same upon the plaintiff. On the return day the plaintiff did not appear, and the commissioner entered an order in his docket reciting that there had been no legal service of the citation; and thereupon, without further showing, issued another citation, returnable December 5th following. Service of. this citation was made on the plaintiff, and, on the return day, he not appearing, the commissioner entered an order dissolving the attachment, with costs. On December 8th following, the plaintiff took a special appeal to the circuit court for said county, from the- action of said commissioner, upon several grounds, which we need not here set out. The special appeal was argued at the April term of said court, 1894, and, no error being found by that court, the proceedings before the commissioner were in all things affirmed, and the cause ordered to stand for trial on the merits. At the January term, 1895, the cause was brought on for trial before a jury, and at the conclusion of the testimony the court directed a verdict in favor of the defendants. The court stated its reasons therefor as follows:

‘ ‘ In this matter, the burden was upon the plaintiff to establish by proof the existence of the facts alleged in the affidavit for attachment in the cause; that is, he is required to show that, not only were the defendants, Gilbert Hatheway and Eveline L. Hatheway, jointly indebted to him, but also that they assigned, disposed of, and concealed their property, with intent to defraud their creditors, or that they were, at the time of making the affidavit, about so to do with that intent. Construing the affidavit, as I feel compelled to do by the law as I understand it, as alleging not only a joint indebtedness, but alleging joint action or intended action on the part of both defendants, as to their joint property, with a common intent on their part to defraud creditors, and being of the opinion that the plaintiff in this case has failed to show any joint action or intended action on the part of the defendants towards the assignment or disposal of their joint property with the intent to defraud creditors, I instruct you that your duty is to render a verdict for the defendants, and that the plaintiff has not shown sufficient cause why the attachment issued in this cause should not be dissolved, and that the plaintiff has not a good and legal cause for suing out the writ of attachment. ”

The plaintiff brings the cause to this court by writ of certiorari.

We have examined the case with great care, and are satisfied that the court below was correct in finding that there is no evidence showing or tending to show that the parties jointly had assigned, disposed of, or concealed their property with intent to defraud their creditors, or that they were about to assign, dispose of, or conceal their property with intent to defraud their creditors; and we are also satisfied that there is no evidence showing or tending to show that the defendant Eveline L. Hatheway has assigned or disposed of-her property with intent to defraud her creditors, or that she has attempted to do so-

But it is contended that the application for the dissolution did not negative these allegations, as it simply set out that Mrs. Hatheway had not assigned, disposed of, or concealed, or attempted to assign, dispose of, or conceal, her property, or any portion thereof, with intent to defraud her creditors. We think this allegation was sufficient to cover any and all property which Mrs. Hatheway had, whether her individual property or that owned jointly with another. If she and Gilbert Hatheway had j oint property, whatever interest she had therein would have been a part or portion of her property, and the concealment or disposal of joint property would necessarily include a portion of her property. This question was expressly settled in Sword v. Lenawee Circuit Judge, 71 Mich. 284.

We also think the court was not in error in holding that the plaintiff was required to show that the defendants were jointly indebted to him, and also to show joint action or intended action on the part of the defendants. The use of the word “their” has several times been construed by this court to import a joint obligation. Edwards v. Hughes, 20 Mich. 289; Miller v. Bay Circuit Judge, 41 Mich. 326; Geiges v. Greiner, 68 Mich. 155; Sword v. Lenawee Circuit Judge, 71 Mich. 285. Subdivision 2, § 7987, 2 How. Stat., authorizing the issuance of writs of attachment in certain cases, provides, among other causes,—

‘ ‘ That the defendant has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, any of his property, with intent to defraud his creditors.”

Section 8015 also provides:

“When two or more persons are jointly indebted as joint obligors, partners, or otherwise, and an affidavit shall be made as provided in section 2 of this chapter, so as to bring one or more of such joint debtors within its provisions and amenable to the process of attachmént, then the writ of attachment shall issue against the property and effects of such as are so brought within the provisions of said section,” etc.

In Edwards v. Hughes, supra, the defendants in attachment were partners, and the affidavit was to the effect that the defendants were about to dispose of certain of their property with intent to defraud their creditors. On proceedings for dissolution, it appeared that the plaintiff was able to show grounds for the attachment against one of the defendants, but none at all against the others. It was claimed, on the part of the defendant moving for dissolution, that an attachment which proceeds against three as guilty of a contemplated joint fraud, where two of them are wholly innocent, was unwarranted, and it was so held by this court. In referring to section 8015, above quoted, it was said:

‘ ‘ It will be seen, from this section, that when the plaintiff is able to make a case against one of several debtors, whether they are indebted as partners or otherwise, he is not to allege a joint wrong by them all, but must set forth his case in the affidavit according to the facts.”

In Jaffray v. Jennings, 101 Mich. 521, this court, in discussing the two statutes referred to, in speaking of section 7987, said:

“ Under the previous statute (section 7987), attachment lay against all joint debtors, whether partners or not, where it could be shown, as matter of fact, that all participated in the act constituting a cause. It was also plain that, where one joint debtor only committed such act, his property only was subject to the writ, unless there was a partnership. There was, then, no necessity for legislation to reach either of these cases; for joint debtors, where not partners, were fully protected, where innocent of wrong, and the creditor had his remedy against both where both pai’ticipated, and against the offender where only one was guilty. In this condition of affairs, the legislature passed section 8015, thereby giving immunity from attachment to joint debtors, including partners, who were not themselves participants in the wrongful act.”

It will be seen, therefore, that the construction of the statute has always been that, where a joint act is alleged, a joint act must be proved; and if the plaintiff desires to rely upon several acts, by each of the joint debtors, he must so allege in his affidavit, or’ fail to maintain his action.

Some complaint is made upon the rulings of the court in admitting and rejecting testimony, but we are not able to find any error in such rulings.

We think there is no force in the contention made that the court erred in overruling the questions raised by the special appeal. We have examined the questions, and think the court was not in error in holding against the claims there made.

The judgment below will be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J. Montgomery, J.

license: Public Domain

text:
    CLARK v. DILLMAN.
    1. Agency — Actual Authority — Admissions.
    The question of the actual authority of an agent of plaintiffs to make a contract for the sale of a piano for a specified price is properly left to the jury, where there is some testimony showing an admission by plaintiffs of such authority.
    2. Evidence — Agent’s Authority — Instructions to Jury.
    The exclusion of evidence that an agent was not authorized to make sales of musical instruments generally, offered by the plaintiffs in replevin for a piano claimed to have been sold by such agent, is error, unless the jury are instructed that he was not authorized to make the sale in question.
    3. Agency — Burden of Proof.
    Where, in replevin for a piano, the defendant claims to have purchased the instrument from an employé of the plaintiffs, who was their agent for that purpose, or at least held out by them as such, the burden of proof to establish such agency, oían estoppel on the part of the plaintiffs to deny it, is upon the defendant.
    4. Estoppel — Agent’s Authority — When Principal May Deny.
    The mere holding out of one person by another as authorized to make a sale of a piano for the latter does not estop him to deny the validity of a sale by the person thus held out, unless the purchaser acted in good faith, and in the honest belief that the agent was authorized to make the sale.
    Error to Wayne; Frazer, J.
    Submitted January 15, 1896.
    Decided March 24, 1896.
    Replevin by Seward E. Clark and Junius I. Bruce, co-partners, as S. E. Clark & Company, against Louis F. Dillman, for a piano. From a judgment for defendant, plaintiffs bring error.
    Reversed.

      George W. Radford, for appellants.

      Charles Flowers, for appellee.
   Hooker, J.

The plaintiffs are copartners engaged in the business of selling musical instruments. They appeal from a judgment against them in an action of replevin brought by them for a piano which at one time belonged to them, but which the defendant claims to have purchased from one Pressburg, claiming that Pressburg was plaintiffs’ agent, duly authorized to sell said piano, or at least that the plaintiffs held him out as such agent.

The undisputed evidence shows that the negotiations for the piano were in part between members of the firm and the defendant’s wife, and that Pressburg, who was in plaintiffs’ employ, was sent with a contract note, duly filled out, for $675, to obtain the defendant’s signature, the instrument being at the time at the defendant’s house. Pressburg did not present this instrument to the defendant, but accepted $55 in cash and notes for $100; keeping the cash, and returning the note he had received from the plaintiffs, upon which he forged the name of the defendant. The plaintiffs ascertained in some way that Pressburg had engaged in crooked transactions, and called upon the defendant, and discovered the true situation, and offered to make the defendant whole by paying him $55 and giving a bond of indemnity to secure him against the note or notes signed by him; but the defendant chose to disregard the patent fact that he was profiting through another’s fraud, at the expense of the plaintiffs, and insisted upon his technical rights, or, as he expressed it, “to stand pat on the contract as made by Pressburg.” Thereupon the plaintiffs replevied the piano.

The case turned upon the right of the defendant to deal with Pressburg as the agent of the plaintiffs; and, while the court seems to have considered the only question in the case to be whether there was a holding out, the charge left to the jury the question of Pressburg’s actual authority. This was proper, as there was some testimony tending to show an admission of such authority by the plaintiffs; but, if that question was to be left to the jury, the plaintiffs should have been permitted to show whether Pressburg actually was their agent, authorized to make sales generally, which they offered to do, but the testimony was excluded. At the time this offer was made, the court seems to have taken the view that the case should turn upon an estoppel growing out of the holding out as agent, and therefore excluded the testimony upon the subject of agency as immaterial. This was error, unless the jury were to be instructed that Pressburg was not authorized to make this sale.

Again, there was no dispute that the plaintiffs were entitled to recover unless the defendant had a right fo rely upon the agency of Pressburg. It was necessary for the defendant to show Pressburg’s authority, or facts constituting an estoppel. The court instructed the jury as follows: “You must find for the plaintiffs by a preponderance of proof; that is, the testimony of plaintiffs must satisfy you that Pressburg was not their agent.” There was no presumption of authority or estoppel, and the burden of proof, as to these matters, was upon the defendant.

The charge is silent upon another essential. It is undoubtedly the law that a person may be bound by the representations and acts of another, as agent, where there has been such a holding out as to reasonably lead one dealing with him to believe in the existence of such agency. But all of the elements of an estoppel must be present. There must be conduct calculated to mislead, and it must be under circumstances which justify the claim that the alleged principal should have expected that the representations would be relied and acted upon; and, further, it must appear that they were relied and acted upon, in good faith, to the injury of an innocent party. Mechem, Ag. §§ 85, 86; Saginaw, etc., R. Co. v. Chappell, 56 Mich. 190. The rule that estops a party from denying the existence of an agency is a shield, and not a sword; and unless the jury could find from the evidence that the defendant acted in good faith, and in the honest belief that Pressburg had authority to sell this piano for $455, and that he purchased it to his injury, a verdict for the defendant should not have been rendered. There is no allusion in the charge to the other elements essential to an estoppel, and, in the testimony returned, we discover no avowal of belief in, or bona fide reliance upon, the authority of Pressburg, unless the circumstances were sufficient evidence to go to the jury upon this subject. In any event, there was ample opportunity for the jury to find the contrary. Maxwell v. Bridge Co., 41 Mich. 454; Ferguson v. Millikin, 42 Mich. 443; Morrill v. Mackman, 24 Mich. 279, note; De Mill v. Moffat, 49 Mich. 125, 131; Fletcher v. Kalkaska Circuit Judge, 81 Mich. 193; Townsend Savings Bank v. Todd, 47 Conn. 219. We do not discover that the plaintiffs’ counsel asked instruction upon this subject, and he could not complain of the failure to mention it, but for the fact that the charge, as given, was objectionable by reason of the exclusion of these important considerations.

The first request of defendant was given, and included the statement that “if, by word or act, they were led by the plaintiffs to believe he [Pressburg] had authority, the plaintiffs cannot repudiate the contract he made, and your verdict must be for the defendant.” The fact that, by word or act, the plaintiffs led the defendant and his wife to believe that Pressburg had authority, did not require a verdict for defendant. This was making the doctrine of estoppel too broad, and, by omitting all of the elements but the representation, the jury may have been led to understand that reliance upon the representation, and action in good faith, were not essential.

The judgment is reversed, and a new trial ordered.

Long, C. J., Grant and Moore, JJ., concurred with Hooker, J.

Montgomery, J.

I concur in the result, but I think the first request of defendant hot open to the criticism made by Mr. Justice Hooker.


author: Moore, J.

text:
    ALTON v. MEEUWENBERG.
    1. Pleading&emdash;Notice op Special Defense&emdash;Amendment.
    In an action for trespass to land certified to the circuit court for trial, the defendant gave notice under his plea of the general issue that the land where the alleged trespass was committed was a public highway, legally laid out, established, and used as such, and that the acts complained of were done by him as commissioner of highways. The circuit judge permitted the defendant to amend the notice by substituting for the words, “and used as such,” the words, “and a public highway by dedication and user.” Held, that the amendment did not make a new issue, or affect substantial rights, and its allowance was not error.
    2. Instructions to Jury &emdash; Requests to Charge &emdash;Duty op Court.
    The trial judge is not bound to follow the exact language of counsel presenting requests to charge, if he properly states the law as applicable to the evidence introduced, and the several theories of the case presented by counsel.
    3.Highways&emdash;Dedication&emdash;What Constitutes.
    To constitute a common-law dedication of land for a highway, the owner of the land must set apart for such purpose so much of the land as he intends to be appropriated therefor, and must give it over to the public with the intention that it he used as such, and there must be an acceptance thereof by the public.
    4.Highways&emdash;Right by User&emdash;How Acquired.
    To constitute a highway by user, there must be a defined line, and it must be used and worked upon by the public authorities, and traveled over and used by the public, for 10 consecutive years, without interruption, and the possession thereof by the public must be open, notorious, and exclusive.
    Error to Newaygo; Palmer, J.
    Submitted January 15, 1896.
    Decided March 24, 1896.
    Trespass quare clausum fregit by Dallas D. Alton and another against John Meeuwenberg. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      L. A. Miller, for appellants.

      A. F. Tibbitts and Martin Bozema, for appellee.
   Moore, J.

Plaintiffs sued defendant in justice’s court for an alleged trespass committed by him upon land of which they claimed to be in the exclusive possession. The 'acts which were claimed to be trespasses were the setting of stakes and the digging of ditches. The defendant pleaded the general issue, and gave notice that the land where the alleged trespass was committed “is, and at the time the said injuries were supposed to have been committed was, a public highway, * * * legally laid out, established, and used as such;” that the defendant was commissioner of highways; and that what was done, was done as such commissioner. The defendant also gave a bond, and paid such fees as the law requires, and the justice certified the case to the circuit court for trial. The case was afterwards tried before a jury, who rendered a verdict in favor of the defendant.

No record title was introduced on the part of the plaintiffs. They claimed to be in the actual possession of the premises in question. Their testimony was to the effect that they built a one:story cottage on the premises in 1893, and shortly afterwards inclosed the premises with a fence, a part of which was cut away soon after, and that the present fence was built in the spring of 1894. They claimed to have built a dock along the lake front, to have graded the grounds, and to have made other improvements; that the trespass complained of consisted of the digging of two parallel ditches, about 2 rods apart, through some boggy, wet land. These ditches were 12 to 26 inches deep, 3 feet wide, and about 10 rods long. It was claimed, on the part of the defendant, that in 1878 one Smallegan was the owner of the land upon which these ditches were dug; that in that year he gave to the public, for the purpose of a highway, a strip of land that would embrace the land in question in this suit; that he built a brush fence along the whole line of said strip, throwing it open to the public, the south end opening into the section line road, and the north end opening into a piece of new road which the owner of the land on the north (one Jones) had in like manner opened to the public. It was further claimed that, while Smallegan cleared up the rest of the land, he and the subsequent owner never made any improvements on this strip, except for highway purposes, and never claimed any title to it after 1878. At about this time some attempt was made by the authorities to lay out a highway on this line. It was claimed that in 1878 one Waters made a survey of said strip, and placed his notes of that survey on record with the town clerk, and that it was made by the consent and with the assistance of Smallegan and Jones, and others of the adjoining neighbors. It was also claimed by the defendant that, every year since 1878, highway labor had been performed on that strip under the direction of the commissioners and overseers of highways. At about the middle of this strip, about halfway between its ends, is a marshy spot. The defendant also claims that the piece of land opened by Jones, as far south as the eighth line, was a well-traveled road, and that the strip given by Smallegan, as far south as the marshy spot, had been used for travel by the public for several years. It was not claimed by the defendant that the strip of land that was marshy, or that the land south of it to the section line, was generally traveled; but it was claimed that highway labor was expended upon its entire length, and upon every part of it. These various claims of the defendant were disputed by the plaintiffs. In September, 1893, the plaintiffs fenced in the north end of the Smallegan strip; their north fence being on the eighth line, and their east fence on the line of fence placed there by Smallegan in 1878. The east fence runs through to the lake, and takes in about one-half of the marshy spot; the piece of land fenced in by them being about 60 rods long. Smallegan and Banega protested against the building of this fence, and tore away at least a part of it. In July, 1893, the defendant was petitioned by seven freeholders to ascertain, describe, and enter of record the center line of this road. He caused a survey to be made, and placed the proceeding upon record with the township clerk. By some error in marking the course of the angles of that survey, one of them was marked “south” instead of “north” in the field notes, which would make it appear that the road turned off into the lake. The plat attached to the field notes shows this was an error. This was also shown by -the surveyor, and it was also shown by him that the line, as actually surveyed in 1893, followed substantially the line run in 1.878. It was claimed by the defendant that the plaintiffs occupied their cottage only during the heated season of 1893, and again in 1894, staying there at night and over Sunday, and that they permitted others to occupy it during the season of 1894; that their permanent residence was in Fremont. On August 11, 1894, the defendant went upon £he land inclosed by plaintiffs, and, as highway commissioner, let a job of ditching on this marshy spot at the extreme south end of plaintiffs’ inclosure, and about 40 rods south of the cottage, Mr. Miller, claiming to represent the plaintiffs, ordered the defendant off the premises. The plaintiffs claimed that the Smallegan strip of land was never dedicated to the' public, but that it was fenced in by Smallegan, and used by him as a pasture. Proof was introduced bearing upon the several claims of the parties.

The first 8, and the 10th, 11th, 12th, 14th, 15th, 16th, 17th, and 18th assignments of error relate to the rulings of the trial judge upon the admission of testimony. We think none of them are well taken.

The 9th and 13 th assignments of error relate to the ruling of the judge in allowing an amendment to the notice attached to the plea, by substituting for the words, “and used as such,” the words, “and a public highway by dedication and user.” This was objected to by counsel for plaintiffs, he claiming that it made a new issue, and a different issue from the case certified by the justice, and he cites 2 How. Stat. § 6896. In McFarlane v. Ray, 14 Mich. 471, which was a case in trespass, brought originally in justice’s court, though the proposed amendment to the declaration in that case was denied, it was stated: “We have no doubt of the power of the circuit court to allow amendments that do not affect substantial rights.” This is the only decision we can find in our own courts where this feature of the statute has been construed. The purpose of the notice attached to the plea in this case was to apprise the plaintiffs that the defendant claimed the disputed land was a public highway, and that what he did was done as a commissioner of highways. The notice, before it was amended, fully accomplished that purpose. It was not necessary to amend it to allow the testimony to be received which was offered in support of defendant’s theory. The amendment did not make a new issue, or affect substantial rights, and its allowance was not error.

The only other questions open for discussion relate to the refusal of the circuit judge to give plaintiffs’ several requests to charge, and to the charge as given by him. We have repeatedly held that the trial judge is not bound to follow the exact language of the counsel who presents the requests, if he properly states the law as applicable to the evidence introduced, and the several theories of the case presented by counsel. That portion of the charge, not relating to the questions already disposed of in this opinion, so far as it is necessary to give it in this discussion, reads as follows:

‘ ‘ The title to these premises was put in issue by this defendant under his plea. He claims that he is entitled to the possession of the premises because the premises were a public highway, and that involves to some extent the title. There is a statutory mode of creating a highway, called a ‘dedication,’ ‘statutory dedication.’ But that mode was not followed in this case. That is an admitted fact upon all sides. But they say it became a highway by user, or by dedication not under the statute, but by common law. Now, a dedication of land is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by or in behalf of the public. Now, you will see where the title comes in. To constitute a public highway by dedication, the owner of the fee of the premises must dedicate the land.,, Now, it is an admitted fact, in this case, that, at the time they claim the land was dedicated and set apart to public use, Mr. Smallegan was the owner of the premises in question. Mr. Smallegan has testified that, so far as he was concerned, he told the public authorities they might pass over a certain portion of the premises, and, at or about that time, he designated that portion of the premises that he donated, or attempted to, by building a fence, a brush and log fence, or something of that character, running parallel, nearly, with the red line indicated upon the map, and the whole length of the line. That, of itself, is not sufficient to constitute a dedication. There are always two parties to a contract, and it was necessary for the public authorities, after that, to accept this dedication, this easement, this right of way over the land. And there was no dedication without first the party owning the land dedicated it, and intended to give it over to the use of the public, and an acceptance on the part of the public of that piece of land. That act, as between the owner of the land and the public, would constitute a public highway. Now, there is another material ingredient. The owner of the land must, at the time he dedicates or seeks to set apart for public use for the purpose of a highway, — must have intended, at that time, to appropriate so much of the land as he set apart for purposes of that kind. He must have intended to do so, and the public authorities at that time must have intended to accept so much of that land for purposes of this kind, for purposes of a highway; and the intent of the parties is determined by their acts and by their declarations. Now, one of the acts of the parties, as bearing upon the question of intent, is the use made of the lands. How did this man Smallegan act, at the time and afterwards? What use did he make of the lands, as showing an intent upon his part of dedicating the land? How was the land treated by the public authorities, with reference to its being a highway ? Did they open a highway all along the line? Or what portion of it did they open? Such portions of it as are actually worked by the public authorities would evidence an intent upon their part to accept it for the purposes dedicated by the owner of the land, and only such portions as are actually worked would operate as a dedication. The other would be an offer to dedicate. Where land is dedicated for public uses by the owner, and accepted by the authorities — And I will say right here there was no formal acceptance, as the proof shows, by the authorities, of this particular land; and whether they accepted the land or not, or this highway or easement or not, must necessarily be shown by what they did. If they worked upon. the entire line of the highway; if they put statutory labor upon it; if the land was in such condition as to make it capable of being used for a highway; if, by any act, they evidenced an intent upon the part of the public authorities to make that a highway, — the entire line, — and the owner of the land at the time intended to appropriate the entire line for a highway, and such was the intention of the owner, and such the intention of the public authorities, as evidenced by their acts, then the entire line would become a highway. But if, on the contrary, only upon a certain portion of it statutory labor was performed, and only upon a certain portion work was done, that portion only, under this dedication, would become a public highway, and the remainder of it would be simply an offer to dedicate, never •accepted by the public authorities. Now, you have the particular place alleged to have been trespassed upon. Did that ever become a public highway ? Did the public authorities ever accept that certain portion of the premises alleged to have been trespassed upon? They never did accept it formally; and, if they have accepted it, under the evidence in this case, it must be determined by the facts and circumstances surrounding this transaction, as evidenced by what they did upon the land. Did they ever perform any statute labor upon it ? Have they, from the time of the dedication, up to and including the time of the alleged trespass, performed statutory labor upon it? And has it ever been in such a condition that the public could use it ? Have they ever done any acts towards or with reference to it that would indicate that the public authorities intended to make that portion of the land trespassed upon passable and fit for the purposes of a public highway? These are questions for you to determine, from the evidence in the case; and, unless you believe, from the evidence, that they did, then that certain portion never became a public highway.
“There is another mode of creating a highway, under the statute, in this State, and that is by user. But, to constitute a highway by user, there must be a defined line, and it must be used and worked upon by the public authorities, and traveled over and used, for 10 consecutive years, without interruption. It must be such a road that the public have exclusive possession of, as against the owner of the soil or any other person, — the exclusive right. If it is a public highway, the public authorities have the exclusive use and control of it; if it is not, they have not. And, to constitute a public highway by user, the particular portion of the premises alleged to have been trespassed upon must have been used by the public as a highway for 10 consecutive years, before it would become a highway by user. It must be open; it must be notorious; it must be accepted by the public generally; it must be traveled upon as a public highway, and the possession of the public must be exclusive, so that, if any person entered upon the premises and sought to use it in a manner other than as a public highway, the public authorities would have a)n action- against such person for trespass upon the road. -
“Did this highway, under this rule that I have given you, ever become a highway by user? Did it become a highway in any manner? It is not claimed by this party defendant here that the road was ever legally laid out. There was never any statutory dedication of the road. Now, the testimony is undisputed, as I have before said to you, that the northerly end of this road was opened up, and was used, and was worked upon, and that highway labor was expended upon it every year, and, as to that certain portion of the road, there is no question about its being a public highway. The other end of the road, that next to the section line, as indicated upon the map, — certain highway labor was performed upon that, and a certain portion of that end of the road became a public highway, and the trespass, however, was committed, and the ditch that was dug upon the land, came to within 20 rods of this cottage. In other words, the end of the ditch was 20 rods south, or about that distance, from this cottage. About that point the alleged trespass was committed. Was that ever a public highway by dedication, user, or by any other mode? Was it ever worked upon? Was it ever traveled over? Did it ever become a public highway ? Take into consideration the surface of the ground. Was it capable, even, of being traveled over as a public highway, at any time, from 1878 down? If it was not, and there is nothing in the evidence to indicate that the public so regarded it, and so used it, and so traveled it, and so worked it, then it was not a public highway, and these plaintiffs would be entitled to your verdict for six cents. Upon that question of fact, and that alone, depends your verdict in this case; and you must determine that from the evidence alone, uninfluenced by anything that may have been said or done outside of the evidence. Mr. Meeuwenberg, acting in the capacity of a highway commissioner, was the agent of-the township. He had charge of the roads, and was acting for the general public with reference to the roads in the township; and if, at the time he entered upon the land in question, at the point which he entered, if that portion of the premises was at that time a public highway, created in any manner, or in the several manners, or in any one of them, that I have called your attention to, then Mr. Meeuwenberg had a right to enter the close, and he had a better right to the possession than1 these plaintiffs. But, if this certain land, designated by the map, which was inclosed by these plaintiffs, at the very point that Mr. Meeuwenberg entered (if he did, and did this work), if that particular portion of the premises was not, on the 11th day of August, 1894, the day that he says he went upon the land, — if it was not then a public highway, and used by the public as such, or capable of being used by the public as such, then Mr. Meeuwenberg did a wrong, and your verdict should be in favor of the plaintiffs for six cents damages.”

The facts that controlled the case were disputed facts; the plaintiffs claiming one thing, and the defendant another. The charge of the trial judge was fully as favorable as the plaintiffs were entitled to have it. It was a fair and full presentation of the law, in all its phases, applicable to this case. We shall not discuss the-cases, but content ourselves with citing some of them. People v. Jones, 6 Mich. 176; Baker v. Johnston, 21 Mich. 340; City of Detroit v. Detroit & M. R. Co., 23 Mich. 173, and cases there cited; Village of Grandville v. Jenison, 84 Mich. 66; Wayne County Savings Bank v. Stockwell, 84 Mich. 586; Ruddiman v. Taylor, 95 Mich. 550.

The judgment is affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

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    RYAN v. MEYER.
    Fraudulent Conveyances — Homestead—Husband and Wife.
    Property conveyed by a husband to his wife is properly subjected to execution against him, although the husband was indebted to the wife, where the value of the property so conveyed, together with a mortgage received by her on the transfer of other proioerty, exceeds the indebtedness to the wife and the homestead valuation to an amount substantially equaling the execution debt.
    Appeal from Isabella; Dodds, J.
    Submitted January 17, 1896.
    Decided March 24, 1896.
    Bill by John F. Ryan against Alexander Meyer and others in aid of execution. From a decree for complainant, defendants appeal.
    Affirmed.

      Francis JR. Dodds, for complainant.

      Fancher & Sangster, for defendants.
   Montgomery, J.

This is a bill in aid of execution. After the indebtedness to complainant was incurred, and before execution was issued, defendant Alexander Meyer conveyed to his wife, Rosana, 120 acres of land. At the same date he conveyed to George Walter another 40 acres of land, and transferred to him personal property. The transactions with Walter are not directly involved, except as matter of evidence bearing on good faith. The defendants set up that in 1871 defendant Rosana Meyer advanced to her husband $1,200, which was invested in land in Ohio; that this land was sold two years later, and another piece of land bought, which, after three years more, was traded for the land in suit and $1,400 in money; that the deed to this last-mentioned piece of property was taken in the name of Alexander Meyer with the express understanding and agreement that the said Rosana Meyer was to have $3,000, with interest thereon, on request. It should be stated that the two descriptions of land held at different times in Ohio were in the name of Alexander Meyer. We are convinced by the testimony that there never was any such agreement to repay Rosana Meyer $3,000, with interest, as set up in the answer, or to pay any other sum than the $1,200 with interest; and this conclusion is based upon the testimony of Alexander Meyer himself and the admissions of Mrs. Meyer. We are also, convinced that the transactions were not in good faith. The farm was fairly worth at least $5,000, as we find from the testimony. If we treat the advance of $1,200 as a lien, it would amount, with interest, at the date of the transfer, to $2,856. There was a mortgage of $600 on the place, leaving an excess over indebtedness of about $1,600. Defendants contend that the homestead might have been transferred, and that creditors could not complain. This homestead claim is not set up in the answer, and, if it is to be treated as within the issue, the entire transaction occurring at the same time ought to be considered; and, from the testimony of George Walter, it appears that on the occasion of the transfer of the property to him, made at the same time, he executed to defendant Rosana a mortgage for $500, which, with the excess in this property over the homestead valuation and what was in fact due Rosana, would substantially equal the claim of complainant.

We think the purpose of placing this property beyond the reach of creditors was the moving cause of the transfer, and that the circuit judge was right in subjecting the property to complainant’s levy.

The decree will be affirmed, with costs.

The other Justices concurred.


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    CULVER v. TRAVIS.
    Certiorari — Special Appeal.

      Certiorari will not lie, in advance of final judgment, to review the action of the circuit court in overruling the errors assigned on a special appeal from a justice’s judgment.

      Certiorari to Ionia; Davis, J.
    Submitted January 29, 1896.
    Decided March 24, 1896.
    Trover by Albert Culver against Benjamin Travis. From an order overruling a special appeal from justice’s court, defendant brings certiorari.

    Writ quashed.

      Mains & Mains (Frederick Mains, of counsel), for plaintiff in certiorari.

      B. H. Bartow and McGarry & Nichols, for defendant in certiorari.

   Montgomery, J.

This is certiorari to review the ruling of the circuit court in overruling the objections of plaintiff in error taken by special appeal. No final judgment has been rendered. It was intimated on the argument that the writ was improvidently issued. We so hold. See Palms v. Campau, 11 Mich. 109. In Peter son v. Fowler, 76 Mich. 258, final judgment had heen entered.

Writ will be quashed, with costs.

The other Justices concurred.


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    LEWIS v. EMERY.
    1. Master and Servant — Competency op Employé — Duty op Master.
    A master does not insure the competency of his servants, but contracts to use all ordinary care in their selection and retention.

      2. Same — Evidence.
    Where, in a personal injury case, one of the questions involved is the competency of an employé of the defendant, who was acting as head sawyer in defendant’s sawmill at the time of the accident, to fill that position, it is competent for defendant’s foreman and regular head sawyer, with whom said employé had worked, to testify whether or not he was a competent head sawyer.
    Error to Iosco; Simpson, J.
    Submitted January 29, 1896.
    Decided March 24, 1896.
    Case by Grant Lewis against Temple Emery for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Henry & Pugh, for appellant.

      W. E. Depew, for appellee.
   Montgomery, J.

The plaintiff was employed in defendant’s sawmill as tail sawyer. He received an injury by reason of the carriage getting beyond the control of the head sawyer, one Fred Harrington. The questions open for litigation on the record were whether Harrington was, at the time, a competent sawyer, and, if not, whether the defendant had used due care in employing him in that capacity, or in putting him to that work. It appears that, at this time, Harrington had never been steadily employed as head sawyer; that his usual employment was that of setter; that, from time to time, on the occasion of the absence of the head sawyer, he had acted in that capacity; and that, at the time in question, the head sawyer had been absent on account of sickness for some eight days, and Harrington had taken his place. The defendant and his foreman, who testified that he was authorized to employ the men and judge of their competency, and who set Harrington to work as head sawyer, knew, in a general way, of his qualifications, and that his usual work was that of a setter. The jury found a verdict for the plaintiff, and defendant brings error. The record contains numerous assignments of error, but we pass over those which are not likely to arise on a new trial.

1. Defendant called, as witnesses, the foreman of the mill and the head sawyer, with whom Harrington had worked, and asked them to state whether Harrington was a competent head sawyer. This testimony was objected to and excluded. We think this was error. While the opinions of these witnesses would not be conclusive upon the jury, and the jury might find, from the want of experience of Harrington, and the nature of the injury, that he was incompetent, yet the opinions of those who had seen him engaged in this employment, and who were familiar with the requirements of the place, were competent to be received and weighed by the jury. While we are cited to no case in Michigan directly in point, we find that such testimony has been received in other jurisdictions. In Houston & T. C. R. Co. v. Patton, (Tex.) 9 S. W. 175, it is deemed competent to inquire of a -witness, having a knowledge of the subject, whether an engineer was competent. In Gahagan v. Railroad Co., 1 Allen, 187 (79 Am. Dec. 724), defendant’s witnesses were permitted to testify that certain servants were careful, temperate, and attentive. In Laros v. Com., 84 Pa. St. 200, a witness, who was a physician, was permitted to testify that another witness, also a physician, sworn in the case, was competent, and qualified to make a certain analysis. The court said:

“It was not a question of mere reputation, but of Dr. Green’s own knowledge, acquired from full opportunity of observation. If I have seen a workman doing his work frequently, and know his skill myself, surely, if I am myself a judge of such work, I can testify to his skill.”

The two witnesses whose testimony was excluded in the present case stood in precisely the same relation to Harrington. Each was familiar with the requirements of the position of sawyer. Each had seen Harrington at his work for some time, and we think it competent for them to testify whether he was skilled in this work or not. The fact that he had not been long employed at that work, and that their opportunities for observation were not as great as though he had been in the service for a longer time, only goes to the weight of the testimony. It appears that the ordinary apprenticeship of a head sawyer is that of a setter. The promotion is from that of tail sawyer to setter, and from setter to head sawyer; and, as before stated, the setter acts as head sawyer, if competent, in the absence of the head sawyer.

2. The court, in charging the jury, left the rule in some obscurity. In the charge, the court said: “The law imposes upon every man that runs a sawmill the duty to employ and use reasonably safe appliances, and to employ reasonably skillful and competent employés,” — and in other parts of his charge used language which might be interpreted by the jury as laying down the rule that, if the defendant employed an incompetent servant, he would be liable to all others employed, even though he used due care in selecting the defaulting servant. In other parts of his charge, on request of defendant, he instructed the jury that, in order to find a verdict for th^ plaintiff, it must be found, not only that Harrington was incompetent, but that defendant or his foreman knew of Harrington’s incompetency, or by reasonable inquiry could have ascertained the fact that Harrington was incompetent. It is improbable that the court intended, in the main charge, to lay down any different rule, and we should hesitate to believe that the jury could have been misled by the instructions, but we refer to the subject in view of a new trial. The rule is that the master does not insure the competency' of his servants, but he contracts to use all ordinary care in their selection and retention. 7 Am. & Eng. Enc. Law, 845; Hilts v. Railway Co., 55 Mich. 437; Davis v. Railroad Co., 20 Mich. 105.

The other questions discussed are not likely to arise on a new trial.

Judgment reversed, and anew trial ordered.

The other Justices concurred.


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    LONGYEAR v. MINNESOTA LUMBER CO.
    Pleading — Variance—Demurrer.
    A declaration in a suit commenced by attachment is not demurrable on the ground of a variance between the cause of action stated therein and that set forth in the affidavit for the writ. The proper remedy in such case is by a summary application to the court to set the declaration aside for irregularity.
    Error to Gogebic; Haire, J.
    Submitted January 29, 1896.
    Decided March 24, 1896.
    Trover by John M. Longyear and another against the Minnesota • Lumber Company, a foreign corporation. From a judgment for defendant on demurrer to the declaration, plaintiffs bring error.
    Reversed.

      Francis P. Midlam (Irving D. Hanscom, of counsel), for appellants.

      Charles F. Miller, for appellee.
   Moore, J.

The plaintiffs commenced suit against the defendant, a foreign corporation, by attachment; filing, as a basis for said proceeding, an affidavit in which it is stated that defendant is indebted to plaintiffs ‘ ‘ in the sum of $1,038.39; * * * that it is due * * * for various trespasses done” by said defendant “on lands belonging to said plaintiffs, as hereinafter described.”

“And deponent further says that during the winter of 1892 and 1893 the Minnesota Lumber Company, by divers agents and employés of the said company, entered upon a certain piece of land situated in the northern peninsula of Michigan, and known and described as the ‘southeast quarter of the northeast quarter of section 31, township 45 north, range 38 west,’ and cut and felled thereon one white pine tree, and took and carried the same away.”

Then came, in the affidavit, statements of other acts of entering, upon several other descriptions of land, and of cutting and carrying away trees, which acts are described in substantially the same language as that quoted above, and then comes this language:

“And deponent further says that by reason of the said several trespasses committed by the said Minnesota Lumber Company, as above described, the said John M. Long-year and the said Frederick Ayer, plaintiffs in the annexed writ of attachment, have been damaged to the extent of $1,038.39, as near as the deponent can estimate. And deponent further says that the said Minnesota Lumber Company, defendant in the annexed writ of attachment, is now justly indebted to the said John M. Long-year and the said Frederick Ayer, plaintiffs in the annexed writ of attachment, in the sum of $1,038.39; as near as deponent can estimate the same, over and above all legal set-offs, and that the said sum of money is now due and payable for the various trespasses above set forth. And deponent further says that the said Minnesota Lumber Company is a foreign corporation, existing by virtue of the laws of the State of Minnesota, and that the said Minnesota Lumber Company is now the owner of prop■erty within the State of Michigan. And deponent says that the said several causes of action above described, for which- the annexed writ of attachment is issued, arose in the State of Michigan, as above set forth; and further deponent says not.”

Later a declaration was filed, which was demurred to; whereupon an amended declaration was filed, which, after the formal commencement, reads as follows:

“For that the said plaintiffs on, to wit, the 13th day of December, 1892, at the county of Gogebic and State of Michigan, were lawfully possessed, as of their own property, of one white pine tree, cut and felled and lying prostrate, of the value of $15, and, being so possessed thereof, the said plaintiffs afterwards, to wit, on the day and at the place last aforesaid, casually lost the same out of their possession, and the said one white pine tree after-wards, to wit, on the 13th.' day of December, 1892, at the said county of Gogebic, came into the hands of the defendant by finding; yet the said defendant, well knowing the premises, has not, although often requested so to do, delivered the said one white pine tree to the said plaintiffs, but afterwards, to wit, on the 13th day of December, 1892, at the said county of Gogebic, wrongfully converted and disposed of the same to its own use, to the damage of the plaintiffs of $15.”

Two other counts of a similar character were contained in the declaration. Defendant demurred to this declaration, claiming there was a fatal variance between the cause of action stated in it and the cause of action stated in the affidavit for attachment. The circuit judge sustained the demurrer, and the case is brought here for review.

The defendant does not question the validity of the affidavit to base an attachment upon, but it is its contention that, while it may be deemed entirely sufficient for the purpose of allowing the issue of an attachment in an action of trespass to real estate, it is not sufficient to authorize the issuing of an attachment in an action for the conversion of personal property, and that, as it would not authorize the issuing of a writ of attachment for conversion, there was no suit of that character commenced, and the plaintiffs cannot be allowed to declare in an action of trover in this proceeding.

It is claimed on the part of the plaintiffs that Act No. 89, Pub. Acts 1893, authorizing the commencement of suits by attachment in actions of tort against nonresidents, only requires that the affidavit shall state a cause of action, and that a cause of action is “the union of a right in the plaintiff, and an invasion of such right by the defendant;” citing Post v. Campau, 42 Mich. 96. The plaintiffs also claim that the statement of facts in the affidavit ■ not only shows a trespass to the realty, but also shows a conversion of the trees and logs after they were separated from the soil, and that there was no variance between the cause of action stated in the declaration and the cause of action as stated in the affidavit. They also claim that, the moment the trees were severed from the soil, they became personal property, and the taking away of them amounted to a conversion; citing Cooley, Torts (2d Ed.), p. 449; Final v. Backus, 18 Mich. 218; Wood v. Elliott, 51 Mich. 320; and a large number of' other cases.

It is not our opinion that there is a fatal variance between the declaration and the facts stated in the affidav it. In the case of Smith v. Wayne Circuit Judge, 27 Mich. 87, it was held that a declaration could not be set aside for a variance from the writ. It is not necessary, however, in the disposition of this case, upon the record as now made, to pass upon either of these contentions. The rule, as stated in Chitty, is:

“It is an indispensable requisite of every declaration that it substantially adhere to the form of action stated in the process, and, if it deviate, the defendant may apply to the court or a judge to set aside the declaration for irregularity, so that the plaintiff must abandon his first process, and issue a fresh writ, stating the form of action adapted to that in his declaration. The objection is not ground of demurrer to the declaration, but merely of a summary application to set aside the declaration for irregularity.” 1 Chit. Pl. p. 269. See, also, Rogers v. Rogers, 4 Johns. 485.

The demurrer should have been overruled.

The case is reversed, with costs.

The other Justices concurred.


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    PEOPLE v. WEAVER.
    1. Evidence — Dying Declarations.
    Upon a trial for murder, evidence that deceased, half an hour after being shot, told the doctor that she believed she could not live, and that he informed her that her case was hopeless, warrants the admission, as dying declarations, of her statements then made to the doctor, and her sworn statements made a few hours later, although she further stated that she hoped for the best, and although she did not die until six days thereafter.
    2. Instructions to Jury — Requests to Charge — Duty oe Court.
    A respondent in a criminal case cannot complain that his requests to charge were not given in the exact language in which .they were presented, where the trial judge carefully and correctly stated the law as applicable to the facts in the case and the different theories of counsel.
    Error to St: Joseph; Loveridge, J.
    Submitted January 30, 1896.
    Decided March 24, 1896.
    John W. Weaver was convicted of murder in the second degree.
    Affirmed.

      Nevoton H. Barnard, for appellant.

      Bishop 'IS. Andreios, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted of murder in the second degree. He and one Tempia Ann Cotton, colored people, were living together at Three Rivers, though not married to each other. On the morning of the 12th of December, 1892, she and one Radford had gone to Cassopolis together. This did not please Weaver. She returned home about 5 o’clock in the afternoon of December 12th. That evening the respondent had his revolver fitted with cartridges. At about 3 or 4 o’clock the next morning, she went into the room where Weaver slept. About 4 o’clock he shot her three times. What occurred before the shooting is disputed. Mrs. Cotton died at 5 o’clock in the afternoon of December 19th. Before dying, she made declarations as to the circumstances of the shooting, which were admitted in evidence as dying declarations. This is assigned as error.

The shooting was at 4 o’clock. Dr. Scidmore got there not to exceed a half hour later, and found her in her night clothing, lying on a couch, quite bloody. After examining her, he came to the conclusion that she was fatally wounded. The doctor told Mrs. Cotton that while there was life there was hope. She expressed to him a desire to" live, though she did not think she could live. She said she could live but a little bit. The doctor informed her that it was practically a hopeless case. Upon the trial, after testifying to these facts, the doctor was allowed to state what Mrs. Cotton said about the shooting.

Mr. Van Horn, a justice of the peace, also had a conversation with Mrs. Cotton, on the same day, lasting from about 9 o’clock until 12, and he took her statement in writing, which was sworn to. Before taking her statement, he asked her whether, from her knowledge of herself and what the doctor had said to her regarding her condition, she believed she would live. She answered that she thought probably she must die, but she hoped for the best. In the writing were these words: “From the doctor’s statement and my own feelings, I believe I am liable to die from the wounds; and it is in full view of my probable death that I make these statements under oath.” Mr. Van Horn was allowed to testify as to what was stated to him orally by Mrs. Cotton, and the written statement was read in evidence. This is alleged to be error. His testimony as to oral statements was stricken out.

In People v. Simpson, 48 Mich. 477, it was decided:

“It is incumbent upon the prosecution, before offering what is claimed to have been dying declarations, to show that they were made under a sense of impending death. It is not necessary to show that the injured party so stated at or about the time, or that any person in his or her presence and hearing said that death must speedily ensue. The fact may be proved, like any other fact in the case, and in the light of the existing and surrounding circumstances. * * * In this case there certainly was evidence from which the court below, under the ruling made, must have been satisfied that the deceased was under the impression that death was impending; and the case would require to be a very strong one to justify this court, who did not see the witnesses, in arriving at a different conclusion.”

The principle under discussion here has been before this court in so many cases, the last one being the case of People v. Beverly, ante, 509, that we do not deem it necessary to review the cases. The court did not err in admitting this testimony.

Complaint-is made of the refusal of the trial court to give respondent’s requests bearing upon the questions of insanity and a diseased mind. The record discloses no evidence upon which to predicate these requests; but, conceding that the record does not show all the testimony, the learned trial judge carefully and correctly stated the law bearing upon both of these questions. It is not necessary that he adopt the language of counsel, if he does, in fact, state the law correctly as applicable to the facts and the different theories of counsel. The trial court carefully guarded all the legal rights of the respondent. He was legally and properly convicted of an atrocious crime.

The case is affirmed.

The other Justices concurred..


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    PEOPLE v. THACKER.
    1. Jurors — Challenge for Cause.
    It is good ground for challenge of a juror:
    (1) That he has served as a juror upon the regular panel in the same court within a year previous to such challenge. 2 How. Stat. § 7584.
    (2) That, though chosen from the regular panel, his name does not appear upon the assessment roll of his township or ward. 2 How. Stat. §§ 7554, 7555.
    2. Criminal Law — Qualifications of Jurors — Previous Knowledge of Case.
    One is not disqualified from serving as a juror in a criminal case simply because he has heard and read about the case, and has formed an impression based upon what he has heard and read, if the impression is not of that fixed character which repels the presumption of innocence.
    3. Same — Challenge for Cause.
    Upon a prosecution for murder by poisoning, it appeared from the examination of a juror that he had talked with a member of the coroner’s jury, who had told him the facts as he understood them; that he had talked with many other persons, and had been told that poison had been found in the stomach of the deceased, and had believed what they told him to be true, and that it would require evidence to remove the opinion formed from such statement's. Held, that the juror should have been excused for cause.
    4. Same — Excusing Jurors — Discretion of Court.
    It is not error for the circuit judge to excuse a juror, before he is sworn, because his business would suffer if he were compelled to serve, though done in the absence of counsel for respondent.
    5. Same — Assistant Prosecutor — Qualifications—Residence.
    Under 1 How. Stat. § 560, authorizing the prosecuting attorney, under the direction of the court, to procure assistance in the trial of felonies, he may secure an assistant who is not a resient of his county.
    6. Same — Expert Testimony — Physicians—Poisons.
    A practicing physician who has given the subject of poisons careful and discriminating study by reading and listening to lectures of instructors who have made a specialty of the subject, so that his study has resulted in the formation of a definite opinion, may express his opinion as to whether a given case is one of poisoning or not, although he has never had actual experience in poisoning cases.
    7. Same — Evidence—Similar Crimes — Intent. y^On the trial of a respondent for the. murder of his wife by poisoning, the prosecution was permitted to introduce testimony tending to show that, at the same time he .was claimed to have been poisoning his wife, he was also administering poison to her sister, who was an inmate of his household. Held, that, if there was evidence in the case that the respondent had administered poison to his wife, said testimony was competent as bearing upon his motive or intent in doing so, but that it was error to instruct the jury that they might consider' said testimony for the purpose of establishing whether the respondent in fact administered poison to his wife as charged. .
    Error to Benzie; Aldricb, J.
    Submitted January 30, 1896.
    Decided March 24, 1896.
    William H. Thacker was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.
    Reversed.

      Wilson & Bailey and Dodge & Coveil, for appellant.
    • Fred A. Maynard, Attorney General, and D. G. F. Warner, Prosecuting Attorney (F. 3. Pratt, of counsel), for the people.
   Moore, J.

The respondent was informed against in the county of Benzie for the murder of his wife, Anna Thacker. He was convicted, and sentenced to the state prison for life.

More than 100 errors are assigned. The first group it will he necessary to consider relates to the challenging for cause of jurors. The respondent exhausted his peremptory challenges, and was not satisfied with the jury then obtained.

The juror Krause was challenged on the ground that he had served on the regular panel within a year. 2 How. Stat. § 7584, reads:

“It shall be a good cause of challenge to any. juror in any court of record in this State, in addition to the other causes of challenge allowed by law, that such person has served as a juror upon the regular panel or as talesman in such court at any time within one year previous to such challenge.”

The challenge should have been sustained.

Mr. McNeal was challenged because his name did not appear upon any assessment roll in said county, and because he was not a taxpayer in said county. The statute applicable to this challenge is found in 2 How. Stat. §§ 7554, 7555. It clearly contemplates that jurors must be selected from persons whose names appear on the assessment roll of the township or ward, and this was so held in Schlacker v. Mining Co., 89 Mich. 253. See, also, Wise v. Lumber Co., 86 Mich. 40. The challenge should have been sustained.

The next assignments of error to be considered relate to the ruling of the court in overruling the challenges for cause to jurors, upon the ground that they had read and talked about the case, and had formed an impression as to the guilt or innocence of the accused that would require testimony to remove.

It has been repeatedly held in this State, and may be regarded as the well-settled law, that one is not disqualified from serving as a juror simply because he has heard and read about the case, and has formed an impression based upon what he has heard and read, if the impression is not of that fixed character which repels the presumption of innocence. 2 How. Stat. § 9564; Holt v. People, 13 Mich. 228; People v. Shufelt, 61 Mich. 237; People v. Gage, 62 Mich. 271. In Holt v. People, 13 Mich. 228, it was said:

“To require that jurors shall come to the investigation of criminal charges with minds entirely unimpressed by what they may have heard in regard to them, or entirely without information concerning them, would be, in many cases, to exclude every man from the panel who was fit to sit as a juror.”

This opinion was approved in Stephens v. People, 38 Mich. 739.

In People v. Barker, 60 Mich. 287, it was held that—

“The opinion entertained by a juror which disqualifies him is an opinion of that fixed character which repels the presumption of innocence in a criminal case, and in whose mind the accused stands condemned already.”

In the case at bar, the juror Collier stated that he had heard what purported to be the facts in the case; that, from what he had heard, he had formed a conditional opinion as to the guilt or innocence of the respondent; that he still retained that opinion; that it would take evidence to remove it.

“Q. Could you listen to the law and evidence as it would be given in this case in open court, and on that, solely, decide jmur verdict?
“A. Yes, sir.
“Q. Have you talked with Mr. Waterbury about this case?
“A. I have heard him talk; yes, sir.
‘ ‘ Q. Did he tell you the circumstances of the case as he understood them?
“A. Yes, sir.
“Q. Did what he said lead you to form an opinion as to the guilt or innocence of the defendant?
“A. If true, if what he stated is true, I formed an opinion.
“Mr. Wilson: Mr. Waterbury is on the information as a witness in this case, and I challenge the juror for cause.
“The Court: Have you any opinion as to whether what he stated is true or not?
“A. I suppose he stated according to his idea. I have heard this thing talked from the time it transpired until the present time, by different ones.
“The Court: From all you have heard, have you formed any opinion?
“A. No positive opinion; no, sir.
“The Court: You verily believe you could hear the evidence in this case, and sit as a fair and impartial juror until after hearing the evidence and charge of the court, and render a fair and impartial verdict, without reference to any opinion you have in the case?
“A. That is the opinion I have.”

The court declined to excuse the juror, and Mr. Wilson then questioned him further:

“Q. Have you heard any of the statements made by Waterbury to you disputed?
“A. I don’t know as I have.
“Q. If you believed them then, you believe them now?
“A. Oh, yes, sir.
“Q. You say you have talked with a great many persons about this case?
“A. Yes, sir.
“Q. Did you ever hear any one state that poison had been found in her stomach?
“A. Yes, sir.
“Q. You believed that, did you?
“A. Yes, sir.
“Q. You have never heard it disputed?
“A. No, sir.
“Q. You knew that Mr. Waterbury was one of the jury at the coroner’s inquest?
“A. Yes, sir.
“Q. You talked with him after the inquest had been held, did you? .
“A. Yes, sir.
“Q. Did any of this lead you to form an opinion at that time as to the guilt or innocence of the defendant?
“A. I say as before, no positive opinion.
“Q. Would you require evidence in the trial of this case to disprove the statements you have heard made about it?
“A. Certainly; yes, sir.
“Q. Then you would enter upon the trial of this case at least with some opinion in the matter, wouldn’t you?
“A. Why, I suppose so.
“Q. It would take evidence to remove that opinion?
“A. Yes, sir.”

Mr. Wilson renewed his challenge. The juror said:

‘ ‘ My verdict would have to be innocent until there was some proof of his guilt.
“By the Court: Have you any opinion as to the truthfulness of the various reports and statements you have heard, on the one side or the other of this case ?
“A. I believe them to be true, according to their understanding, of course.
Q. Have you any opinion as to whether they were really true or not ?
“A. I am unable to say.”

The court overruled the challenge, and the defendant excepted.

In the case of People v. Barker, supra, it was held, in addition to what has already been cited, that—

‘ ‘ The sources of information are important in determining the effect likely to have been produced upon the mind of the juror, and the influence likely to be exerted upon his judgment; but the human mind is so constituted that impressions made upon it which lead towards certain conclusions, whether reached or not, will always require other impressions to be made to eradicate the former ones; * * * in other words, will require some evidence to remove them. We all are conscious that notions entertained by us are not all of the same stable character, and range all the way from conviction, which is the ultimate effect of ratiocination, to the passing comment or idle words that leave no permanent impression. The question, therefore, must be always one of degree; and the trier is called upon to determine whether the opinion entertained by the juror is of that fixed or permanent character which disqualifies him from coming to the case in a fair, candid, and impartial frame of mind, which is unaffected with prejudice or favor to either party.”

In that case it was held that the juror was disqualified. A like holding was had in the case of Stephens v. People, 38 Mich. 739.

In the case at bar the juror had talked with a member of the coroner’s jury, who told him the ■ facts as he understood them. He had talked with many other persons, and had been told that poison had been found in the stomach of Mrs. Thacker, and had believed it to be true. This fact, if it was a fact, that poison was found in the stomach of Mrs. Thacker, was. one of the most important things in the case for the people to establish. A juror who believed that fact to exist cannot be said to be in a condition to act fairly, candidly, and impartially. The juror Collier should have been excused for cause. Stephens v. People, 38 Mich. 739; Churchill v. Alpena Circuit Judge, 56 Mich. 540; People v. Shufelt, 61 Mich. 237; People v. Evans, 72 Mich. 367.

Mr. Smith, a juror, was excused by the court, in the absence of counsel for respondent, because his business would suffer if he was compelled to serve as a juror. This is alleged to be error. The juror may be excused at any time before he is sworn, for any reason personal to himself, which seems sufficient to’the judge. People v. Carrier, 46 Mich. 442. It was not error to excuse this juror.

Mr. Pratt, who assisted the prosecuting attorney, was not a resident of Benzie county. It is claimed that he was disqualified from acting in the capacity of prosecuting officer by reason of his nonresidence. So far as we can find, the question is a new one in this State. 1 How. Stat. § 560, provides that the prosecuting attorney may, under the direction of the court, procure assistance in the trial of felonies. It has been repeatedly held that this may be done. Meister v. People, 31 Mich. 99; Sneed v. People, 38 Mich. 251; Ulrich v. People, 39 Mich. 245; People v. Bemis, 51 Mich. 422; Webber v. Barry, 66 Mich. 137; People v. Fuhrmann, 103 Mich. 593. In all of these cases great stress is laid upon the fact that the attorney so employed must be impartial and disinterested. To hold that the person so employed must be a resident of the county would have the practical effect, in newer counties, where there are but few attorneys, of depriving the prosecuting officer of any assistance, while there is no limit to the number of able counsel with which the respondent may surround himself if he or his friends are able to employ them. In the absence of any decision to that effect, we are not inclined to hold Mr. Pratt disqualified because of his nonresidence.

Dr. Dean was a witness for the people. He "was graduated from the Michigan College of Medicine and Surgery in March, 1894, since which time he has been in the practice of his profession. He studied medicine for four years before graduation, and spent one year in the practice of medicine in the hospital in Detroit, under the instruction of the hospital physician. He was called to attend Mrs. Thacker during her last illness. In his testimony he described in detail her condition, appearance, and actions, and his treatment of her. He was asked whether he saw any evidence that led him to suspect that Mrs. Thacker had been poisoned. This was objected to, on the ground that Dr. Dean had not shown himself competent to testify; that it did not appear that he had ever treated a person who had been poisoned, or had ever seen one treated by other physicians. The objection was overruled, and he was allowed to testify. This brings us to the question as to whether a practicing physician, who has read the books and had the benefit of instructors until his mind is so well trained that he is able to take his degree as an M. D., and who is authorized by the law to practice medicine, and to prescribe remedies for persons who have been poisoned, either by accident or design, may express his opinion as to whether a given case is one of poisoning or not, or whether, in addition to the above qualifications, he must have had actual experience in poisoning cases before he can testify. The authorities are conflicting. In Soquet v. State, 72 Wis. 659, it was held that on a trial for murder, by poisoning, a medical witness is not qualified to give an opinion that the symptoms of 'the last sickness of the deceased indicated poisoning by arsenic, where he has never seen a case or had any experience whatever in cases of arsenical poisoning, and all that he knows on the subject is derived from medical or scientific books and medical instruction. In that case, neither of the witnesses called was a graduate of a medical college. The case of Boyle v. State, 57 Wis. 472, is cited by counsel to the same effect; but all that case holds is that medical books cannot be read in evidence, nor can expert witnesses testify to statements made therein, and it is also inadmissible to permit the reading of such books to the jury. In Rog. Exp. Test. p. 45, it is said:

“A witness otherwise qualified may express an opinion on a matter pertaining to his special calling or profession, although his knowledge of that particular matter has been derived from study, rather than from actual experience. It is the doctrine of the courts that study of a matter, without practical experience in regard to it, may qualify a witness as an expert.”

On page 99 of the same authority, it is stated:

“The principle is well established that physicians and surgeons of practice and experience are experts in medicine and surgery, and that their opinions are admissible in evidence upon questions that are strictly and legitimately embraced in their profession and practice.”

Many cases are cited.

In Siebert v. People, 143 Ill. 571, it was held that practicing physicians, who are graduates of a medical college, are competent to testify as experts on the subject of arsenical poisoning, although it is not shown that they have had any experience in poisoning cases. See State v. Terrell, 12 Rich. Law, 321; Mitchell v. State, 58 Ala. 417; State v. Wood, 53 N. H. 484. On the subject of opinions based on study, an opinion pronounced by the late Justice Campbell is of interest:

“No one has any title to respect as an expert, or has any right to give an opinion upon the stand, unless as his own opinion; and, if he has not given the subject involved such careful and discriminating study as has resulted in the formation of a definite opinion, he has no business to give it. Such an opinion can only he safely formed or expressed by persons who have made the scientific questions involved matters of definite and intelligent study, and who have by such application made up their own minds. In doing so, it is their business to resort to such aids of reading and study as they have reason to believe contain the information they need. This will naturally include the literature of the subject. But if they have only taken trouble enough to find, or suppose they find, that certain authors say certain things, without further satisfying themselves how reliable such statements are, their own opinions must be of very moderate value, and, whether correct or incorrect, cannot be fortified before a jury by statements of what those authors hold on the subject. The jury are only concerned to know what the witness thinks, and what capacity and judgment he shows to make his opinion worthy of respect. * * * Upon medical questions, while persons may testify whose knowledge is chiefly theoretical, there can be no question of the superior value of practical knowledge combined with theoretical, especially on such matters as involve the interpretation of symptoms and actions of the sick.” People v. Millard, 53 Mich. 63.

Does it- not follow, logically, that if the witness has given the subject of poisons such careful and discriminating study, by reading the literature of the subject, and listening to the lectures of instructors who have made a specialty of the subject, that his study has resulted in the formation of a definite opinion, that he may express it, and that, when expressed, it may be considered by the jury? We think so, and the jury should give the opinion so expressed just such weight as, in view of all the testimony, they think it is entitled to. No error was committed in the admission of the testimony of the medical witness.

A serious question is raised in relation to the testimony of Miss Spencer, and the charge of the judge in relation to it. Miss Spencer was a sister of Mrs. Thacker, and was an inmate of the Thacker household during the last illness of Mrs. Thacker. It was the claim of the prosecution that the respondent, at the same time he was poisoning his wife, was also poisoning Miss Spencer, and testimony was introduced which it is claimed tended to show this to be true. In discussing the testimony upon this branch of the case, the'learned trial judge made use of the following language:

“Testimony has been allowed in this case tending to show that poison was found in the food of one Charlotte Spencer, who was an inmate of Mr. Thacker’s house, and a sister of his wife; that the powder was found at different times; and that it was put there by design. This testimony, if you find it to be true, can only be considered so far as it may tend to confirm, corroborate, explain, modify, or otherwise throw light upon, the question of whether the deceased came to her death by poison, and by whom said poison was administered. In other words, even if you should believe from the evidence that poison was found in the food of Miss Spencer, and that the same was placed there by the respondent for the purpose and with the intent to take her life, still you would not be justified in finding the respondent guilty of the offense charged, but you may consider this evidence in determining the facts as to the death of Mrs. Anna Thacker, and as to whether she came to her death by poison, and, if so, by whom the same was prepared or administered. ”

He further charged the jury that, in considering the question as to whether Mrs. Thacker died a natural death or was poisoned, — ■

“You may consider the testimony in relation to the powder found in the food and water prepared for Miss Spencer, and whether the same was poisonous, if you find such powder was found in her food and drink; and if, after a full and careful consideration of the evidence in the case, and all of it, you should find, beyond a reasonable doubt, that Anna Thacker came to her death, or that her death was hastened, by poison, then you can proceed to consider the further question as to the respondent’s responsibility in relation thereto. ”

This was only another way of saying to the jury that, if they found the respondent poisoned Miss Spencer, it was probable he poisoned his wife; or, in other words, that evidence of an offense committed by the respondent of which he is not charged in the information may be considered to establish his guilt of the offense which is charged against him in the information.

,Tn support of the admission of the testimony relative to the attempt to poison Miss Spencer, and the charge of the judge in relation thereto, we are cited to the recent case of People v. Seaman, 107 Mich. 348, where it was held that where a respondent was charged with manslaughter by abortion, and there was evidence that the premature birth resulted from accidental causes, and the evidence of guilt was circumstantial, it was not error to admit evidence that respondent procured other abortions within about a year previous to the one charged. Mr. Justice McGrath wrote a very exhaustive opinion in that case, in which he- collated all the authorities bearing upon that subject. It will not be necessary to cite them in detail here, as they are easily accessible by a reference to that case. In deciding the case, the learned judge said:

‘ ‘ The general rule is that evidence shall be confined to the issue, and that, on a trial for felony, the prosecution will not be permitted to give evidence tending to prove the defendant guilty of another distinct and independent felony. There are, however, exceptions to this rule. The other offense may be part of the res gestae, or the proof thereof may be admissible to show motive.”

Then comes a citation of the cases, and the court adds:

“Some of these authorities would seem to be border cases, but they illustrate the tendency of the courts to allow the introduction of this class of testimony to repel the inference that the cause was an accidental one, in cases where such an inference might otherwise obtain. Upon principle and authority, it is clear that where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to 'rpbut the presumption that might otherwise obtain, ”-fciting many cases.

None of these cases go so far as to hold that, to establish the commission of the substantive act charged in the information, you can give testimony of the commission of other offenses. If there was evidence in the case at bar that Mr. Thacker had administered poison to his wife, it would have been competent, as bearing upon his motive or intent in administering the poison, to show that, at about the same time, he was giving poison to the sister of his wife, who was also an inmate of his household. Had the trial judge limited the use of this testimony to that purpose, there would have been no error; but when he went further, and informed the jury that they might consider this testimony for the purpose of establishing whether the respondent in fact administered poison to his wife, he went further than any of the cases go, and announced a doctrine that it would be exceedingly dangerous to follow^,,/

It is not necessary to consider the other assignments of error. They are not well taken, or are not likely to be repeated.

The judgment of the court below is reversed], and a new trial ordered. / /

The other Justices concurred.