text:
    DEARY v. HECLA CO.
    1. Master and Servant — Contributory Negligence — Defective Appliances.
    An employ é, injured because a bolt in a lever which he was operating had worked out for want of a cotter pin, was not guilty of contributory negligenceper se for failing to discover the defect on the day after it arose.
    2. Same — Assumed Risk.
    A servant does not assume a risk of which he has no knowledge and the existence of which he has no grounds to suspect.

      3. Same — Safe Machinery — Duty to Maintain.
    The duty of furnishing safe machinery is not performed by providing the same in a safe condition in the first instance; the master is required to maintain appliances in a reasonably safe condition for the intended user.
    4. Same — Fellow-Servant Rule.
    The breach of the duty to maintain appliances in a reasonably fit condition is not the neglect of a fellow-servant; it being the nondelegable duty of the master.
    Error to Bay; Collins, J.
    Submitted April 20, 1910.
    (Docket No. 121.)
    Decided June 6, 1910.
    Case by Samuel Deary against the Hecla Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Keena, Lightner & Oxtoby, for appellant.
    De Vere Hall, for appellee.
   Moore, J.

Plaintiff was injured while at work in the factory of defendant. At the time of the accident he was a man about 38 years old.

Upon the trial, and in the argument before this court, excellent photographs and a model of the machine causing the injury were used. This machine is called a “No. 2 ball machine.” It is very heavy. It may be described in a general way as follows: The machine is used to grind clinkers into cement, and the plaintiff was known as a “ miller.” The machine is operated by electricity, securing its power from the power house. By throwing on a switch the power is transmitted to the shaft. Near the ball mill, at the other end of the shaft, there is a clutch device, by means of which the mill was connected with, and disconnected from, the power shafting. For this purpose there is a metal strip or lever about 3£ feet long, 2 inches wide, and ■£• inch thick between the clutch device and the ball mill, extending horizontally from the shaft. The operator starts the mill by throwing this lever to his left, and he stops it by throwing it to his right. These movements of the lever shove forward or back a collar around the shaft, which causes the clutch device to engage with, or disengage from, the main shaft. The horizontal bar extends on the other side of the shaft a short distance, and is attached to a strip of metal which extends at right angles to the concrete foundation upon which the shaft rests near the ball mill. These two strips of metal are connected by a bolt, furnishing a fulcrum for the operation of the clutch device. Shortly before the accident happened, the foreman, after talking to plaintiff, decided that ball mill No. 2 should be stopped, and by his direction plaintiff, as was his duty, went to the lever by which the No. 2 ball mill was stopped, .and pulled the lever. This was about a quarter after 3 o’clock in the morning. His account of what happened is as follows:

“When I got there, I walked up to the machine and I seen she was in running order, that is, the material was going through all right, and I went over and grabbed hold of the lever and went to jerk her out; of course, you have to pull very hard on these clutches, and I gave it a good jerk to pull it out, and there was no bolt on the other end at the time to hold it. By pulling the long end of the lever away from the pulley, it pulled the other or short end into the spokes “of the clutch, either into the spokes of the clutch or the shoe that was fastened in the clutch. The pulley wheel was in motion, and the shoe was also in motion. When the shoe or spokes struck the short end of the lever, the long end of the lever was thrown sidewise suddenly, and it went up and hit me on the right side of my face, under my chin, and inside of the jawbone.”

It was no part of the duty of the plaintiff to make repairs to the machinery. The foreman had the machine repaired in the afternoon before the injury. The testimony of the machinist who made the repairs was to the effect that, late in the afternoon before the plaintiff was injured, witness took apart this clutch apparatus on ball machine No. 2 for the purpose of placing a plank under the shaft on the cement pier; that to do this work he removed a number of bolts, including the one in question, whereby the two strips of metal were connected, and that, after he had placed the plank under the shaft, he then replaced the bolts; that at the time he began this work this bolt was head downward with a cotter key above, as it had been since the plant was reconstructed in the spring; that he put the bolt back without a cotter key, and left it in that condition; that ordinarily he had only to go to the supply room adjoining, where he would find a supply of bolts and cotter keys which he might have used for this purpose.

A part of the testimony of this witness is as follows:

I took off the shaft and cut some of the concrete off and put a board there. This was in order to raise the shaft up to keep it solid, I don’t know who did the work with me. I did this towards night of the afternoon before plaintiff was hurt. When I went there, the machine was running, and I shut it down. * * * As far as I know, I did the repair all right. It was my duty to look over the whole of the machine, and I did it. It seemed to be all right, but the bolt didn’t seem to be right. That is the bolt at the angle of the lever, being the one in question in this case. That bolt, when I left it at night, didn’t have no cotter pin in it. It had two nuts on it, a jam nut. * * * In order to put the plank under that bearing, we had to take the cap off the bearing to the left of the cogwheel and then we had to take off the other bearing which is to the right of the cogwheel, and then we had to take the bolts off that fastened the iron strap onto the bearing, being the metal strap that regulates this clutch. We also had to take this bolt off at the angle of the lever and the strap (being the bolt in question in this suit), the one that must have dropped out. We took that bolt off. When we took that bolt off, it was a half-inch bolt, it was a good bolt. It was put in from below. * * * I took the bolt and laid it to one side, and, when I came to put it back together, I put the bolt back in the same place. There was no hole in the bolt for a cotter key, but there was in the first one there. I put the bolt up and the two burrs on. I ■ brought the two burrs together, and I did it in a workmanlike manner with the burrs tight down onto the metal.
“Q. When did'you ever hear of such a thing during your experience there on that large machine ?
“A. That two burrs got loose ?
“Q. In that place ?
“A. Every one of these bearings, the bolts, with the jam nuts on there, they work right off.
“Q. I asked you if this bolt, ever dropped out of that place ?
“A. No, sir. The bolts with the jam nuts on there work right off. This bolt never dropped out of that place, and I never heard of it dropping out of a similar place on the other ball machine, but I know of them dropping out of a lot of other places. I saw that bolt previous to the accident every day. I didn’t tell Mr. Redman about this bolt that I left in this place. That bolt was not taken out as I took it out on this occasion at any previous time that I know of. I never had any experience as a miller. I didn’t think when I left the job that it was dangerous for anybody. It is usual to lock a bolt with a double nut. That is called a jam nut.
Q. It seems to be your fault that this thing happened ?
“A. I don’t know. It looks pretty bad, but I don’t know how it is my fault.
“Q. What should you have done ?
“A. There ought to have been a cotter pin put in there.
"Q. Why didn’t you put one in ?
“A. We didn’t have none there.
“Q. You didn’t have any cotter pins ?
“A. I didn’t have no bolt with a hole in.
“Q. But the next morning when you got there you got a bolt with a hole in it ?
“A. I had to take some bolts and drill them.
“Q. The only reason that you did that the next day was that you wanted to put on these nuts, and you didn’t do it because you didn’t want to. Was there any other reason ?
“A. I guess the night before we didn’t have time.
“Q. Did you think when you left the job that it was dangerous for anybody ?
“A. I.didn’t think it was.
“Q. You thought it was all right ?
“A. I thought maybe it would last. I had been accustomed to doing that in the sugar factory where I was employed. It is not a proper job in all places. It was not a proper thing to leave that nut in that case. I don’t know whether anybody else did that except me. I must be the cause of this thing. I don’t know who else is to blame. * * * There was no hole in the bolt that I left in that place the night before plaintiff was injured, and I know there was no cotter pin through it. * * * ”

Redirect examination by Mr. Hall:

“ In putting these bolts in, Mr. Redman once told us to put them in with the heads on the bottom and the nuts up. I don’t know why that was done. He knew that we did them in that way. It is the jar that makes the bolts work out. * * * In the matter of inspecting the machines to determine the condition of bolts and nuts, if plaintiff or the oiler happened to see anything loose, if there was anything of that kind, they ought to tell the man such and such a thing was loose. They were not required to go and look and find out and then report it. They had men there to look after it, and we called those men repair men. The only difference between repair men and millwrights is that a millwright will do more wood work than a repair man. I was a millwright. I put cotter keys in the next morning under Mr. Redman’s instructions.”

The circuit judge submitted the case to the jury, refusing to direct a verdict in favor of defendant, and also declining to give several requests desired by defendant. The jury returned a verdict in favor of plaintiff. The case is in this court upon writ of error. Counsel discuss the errors relied upon under the following heads:

(1) Plaintiff’s injuries were not due to any act of defendant; but, on the contrary, to the act of a fellow-servant.

(2) Plaintiff assumed the risks connected with his employment.

(3) Plaintiff was guilty of contributory negligence.

(4) No negligent act of defendant was the proximate cause of plaintiff’s injuries.

(5) The court erred in its charge as to defendant’s duty in maintaining a safe place.

Each of these groups is argued at great length. We do not think it necessary to discuss groups 2 and 3 further than to say that we do not think it can be said, as a matter of law, that plaintiff was guilty of contributory negligence in failing to discover the absence of the cotter pin so soon after the repair was made, nor that he assumed a risk of which he had no knowledge and the existence of which he had no reason to suspect.

Groups 1, 4 and 5 may be considered together. The court charged the jury:

“ I charge you, as a matter of law, that it was the duty of defendant to construct and maintain the said friction clutch in a reasonably safe and fit condition for use, and if you find that in such construction and maintenance defendant should have inserted a key through such' bolt and over such nuts, and that it was negligent in its failure to do so, and that while in the exercise of due care and without notice of such failure on the part of plaintiff he was injured in the manner claimed, then he is entitled to recover from defendant such damages as he has sustained through such negligent failure. * * * The duty of defendant to construct and maintain such clutch with reference to said bolt in a reasonably safe and fit condition for use called upon it to so construct the same in the first instance, and it is also called upon to maintain the same in a reasonably fit and safe condition for use after it was first so constructed. This last duty is what is known as a continuing one, and was not discharged as to plaintiff and others working thereabout as he was by a reasonably safe construction in the first instance. The defendant must continue to maintain the same in a reasonably safe and fit condition to answer the purposes for which it was designed at all reasonable times thereafter while it was in use.”

Counsel insists this charge was wrong under the following authorities: Atchison, etc., R. Co. v. Myers, 63 Fed. 793, 11 C. C. A. 439, and Louisville, etc., R. Co. v. Johnson, 81 Fed. 679, 27 C. C. A. 367. The courts are not in harmony upon this question. It is not a new one, however, in this State. It was considered and passed upon in McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041, 102 Am. St. Rep. 426). In the opinion in that case there is a very considerable collection of authorities, and it is not necessary to restate here what was said in that opinion. The charge of the court was in accordanee with what is there stated. The opinion also disposes of the fellow-servant question and of the proposition that no negligent act of defendant was the proximate cause of the accident adversely to the contention of defendant. See, also, Geller v. Manufacturing Co., 136 Mich. 330 (99 N. W. 281).

The case was tried with great care. The questions of fact were submitted to the jury under careful instructions as to the law of the case.

Judgment is affirmed.

Ostrander, Hooker, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    ROWE v. BREGENZER.
    1. Evidence — Relevancy—Negligent Setting op Fires.
    In an action for negligent setting of fires, testimony as to defendant’s actions a few days previous to the loss sustained, in setting fires on the land on which plaintiff’s wood was situated, is competent and material to show, with other evidence, who set the fire.
    2. Same — Admissions.
    A conversation is admissible in which defendant evaded the question whether or not he set the fire, neither directly admitting nor denying the act.
    3. Trial — Charge to Jury.
    A sentence in the charge of the court, which is incorrect when read alone, but proper when read in connection with the remainder of the charge, is not a reversible error.
    4. Same — New Trial — Saving Questions por Review.
    On error, an assignment upon the denial of a new trial will not be considered unless exceptions are taken to the reasons given by the court or to the opinion as a whole.

      Error to Osceola; Rose, J.
    Submitted April 7, 191Ó.
    (Docket No. 26.)
    Decided June 6, 1910.
    Case by Arthur Rowe against Joseph Bregenzer for damages caused by the negligent setting of fires. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Cogger & Broomfield, for appellant.

      B. N. Savidge, for appellee.
   Blair, J.

Defendant prosecutes his writ of error to review the judgment of the circuit court entered upon the verdict of the jury in favor of plaintiff. The case was begun injustice’s court, where the following declaration was filed:

“ For that, whereas, the plaintiff on, to wit, the 5th day of August, 190.8, was the owner of a large quantity of wood, to wit, 40 cords, of the value of $60, lawfully piled on the premises of defendant, and the said defendant on or about the said day negligently, carelessly, wilfully, and maliciously did set or cause to be set a fire or fires on said premises, and that by and through the negligence, carelessness, and default of said defendant and his servants in setting such fires at an improper and unseasonable time, and in not caring for such fires, and in not controlling and preventing the spreading of the same and not extinguishing the same in due season, said fires spread to the plaintiff’s wood and utterly burned, consumed, and destroyed said 40 cords of wood, the property of said plaintiff, to the damage of plaintiff $60, and therefore he brings suit.”

Ten of the 12 assignments of error are based upon alleged errors of the court in ruling upon the admissibility of testimony. It was undisputed that plaintiff’s wood was destroyed by fire on defendant’s premises, and the principal question of fact in the ease was whether defendant was responsible for the setting of the fire. No eyewitness testified to the fact of defendant’s starting the fire or causing it to be started. Plaintiff sought to connect defendant with the fire by his own declarations and admissions and by circumstantial evidence. The wood was piled in a slashing full of dead tops, brush, and débris, and the season was a very dry one. There was testimony to the effect that prior to the burning in question defendant had given notice to one of the owners of the wood that he wanted it taken away because he was going to burn the slashing. The testimony showed that the wood was burned either on Tuesday or Wednesday, August 4 or 5, 1908.

A witness was permitted to testify that the Saturday before the fire he had the following conversation with defendant :

“All he said, I made the remark, ‘ You were gone quite awhile/ because I had been running the binder in his place. He was cutting quite a number of rows ahead of me, and I thought maybe he had deserted me, and he said, ‘ I was just walking around through the slashing to see if the wood was out of there.’ He said, ‘ What a good time it would be to burn now.’ That is all the conversation there was. There wasn’t any fire in the slashing next to this wood then. I first discovered the fire a few minutes after that, while we were standing there talking. I stopped the binder so I could look away from the team, and said, ‘ There is a fire over on the side of the slashing next to Mattock’s.’ That is a portion of the same slashing Bregenzer had been through to see if the wood was out. I was home Sunday, and I don’t know anything about the fire on Sunday. I couldn’t say whether there was any fire there on Monday. If there was, it had burned down and gone out.”

Error is assigned upon the admission of this testimony because it is claimed it conclusively appeared that the fire spoken of was not connected with the destruction of the wood. If the jury believed this testimony, it tended to show that defendant, knowing that the wood was still there and the probability of its burning, started a fire in the slashing. Whether the fire was actually or only apparently extinguished, the testimony was competent and material, in connection with the other circumstances, as bearing upon the question whether the defendant set the fire a day or two later.

Error, is also assigned upon the admission of the following conversation between a witness and defendant on Sunday before the destruction of the wood:

“Q. Now, what did you say to him?
“it. I asked him if he had been setting fire.
Q. Did he hear you ?
“A. Yes, sir.
"Q. What did he do or say?
“it. He said— He didn’t say ‘yes’ or ‘no.’
“Q. Did he make any reply ?
“it. He smiled a little, and said it was taking a flat sweep over the valley, or would be taking a fiat sweep over the valley, something like that. I wouldn’t say them are the words he said, because I couldn’t.
“Q. He neither admitted or denied setting fire ?
“A. No, sir.”

The witness had previously testified that there was no time between Saturday when he first discovered the fire and the day the wood burned when there was no fire in the slashing. The .answer tended to show an evasion of the question, and, although not very cogent proof, was admissible for what it was worth.

The eleventh assignment challenges the accuracy of a single sentence of the charge. Standing alone the statement of the plaintiff’s claim in this sentence was not technically accurate. Read in connection with other portions of the charge, plaintiff’s claim was fully and fairly stated and with technical accuracy.

The twelfth assignment alleges error in denying the defendant’s motion for a new trial. No exceptions were taken to the reasons assigned by the circuit judge nor to the opinion as a whole and we therefore cannot consider this assignment.

The judgment is affirmed.

Moore, McAlvay, Brooke, and Stone, JJ., concurred.


author: Hooker, J.

text:
    GOODSPEED v. SMITH.
    1. Attachment — Declaration—Filing—Time.
    Act No. 30, Pub. Acts 1907, was not intended to make the filing of a declaration in attachment within fifteen days after the issue of the writ mandatory. Oir. Ct. Rule 2.
    2. Same — Practice—Construction of Rules.
    Failure to comply strictly with rules of court is an irregularity.
    3. Process — Jurisdiction—Publication.
    Jurisdiction in attachment is acquired by proper publication and proof thereof, following the preliminary statutory steps.
    4. Attachment — Default.
    On a record which shows a judgment without a lawful default after filing the declaration, the judgment is void.
    5. Same.
    While the premature entry of default will not support the judgment, entering it later than the earliest practicable moment does not render the proceedings void or deprive the court of jurisdiction.
    6. Same.
    After jurisdiction is acquired by proper personal or substituted service, irregularities may be waived or corrected.
    Error to Berrien; Coolidge, J.
    Submitted May 7, 1910.
    (Docket No. 161.)
    Decided June 6, 1910.
    Attachment proceedings by Charles A. Goodspeed against James W. Smith. An order dismissing the writ for want of jurisdiction is reviewed by plaintiff on writ of error.
    Reversed.

      George W. Bridgman, for appellant.

      Charles E. White, for appellee.
   Hooker, J.

The plaintiff seized defendant’s goods upon a circuit court attachment, issued May 31, 1909, returnable June 30, 1909. The writ was returned July 2, 1909, showing levy on property. No personal service was made, as defendant could not be found in the county. Publication began July 8th, and continued to and including August 19, 1909. August 26, 1909, affidavit of publication was filed. September 2,1909, declaration was filed. November 6, 1909, affidavit of nonappearance was filed and default entered. Defendant thereupon appeared for the purpose of moving to dismiss the case for want of jurisdiction on the ground that the court was without jurisdiction to proceed further because the declaration was not filed within the statutory period, i. e., within 15 days after the issue of the writ. The motion was granted, and plaintiff has appealed. Counsel for defendant rely upon the rule frequently stated—

“That all proceedings in attachment where no personal service is had are a nullity and void, and can be attacked collaterally, unless the provisions of the statute are strictly adhered to.”

He cites Peninsular Sav. Bank v. Ward, 118 Mich. 93 (76 N. W. 161, 79 N. W. 911); Woolkins v. Haid, 49 Mich. 299 (13 N. W. 598); Steere v. Vanderberg, 67 Mich. 530 (35 N. W. 110); Schoenfeld v. Bourne, 159 Mich. 139 (123 N. W. 537); and authorities from other States. On the other hand, plaintiff’s counsel urges that the delay was an irregularity only and should be disregarded. The statute as amended requires a declaration to be filed in accordance with Circuit Court Rule No. 2. Act No. 30, Pub. Acts 1907. Section 10583, 3 Comp. Laws, would have covered substantially the same ground as to filing the declaration, but for its possible conflict with section 10574.

We are of the opinion that the statute was not designed to make the filing of a declaration within 15 days after the writ mandatory. As amended in 1907, it left that matter of practice to the rules of court, equally subject to change by the court, and, we think, inferentially, subject to the rule of construction theretofore applied to rules, i. e., that noncompliance is an irregularity. Unless we must say that the seasonable filing of a declaration is essential to the acquirement of jurisdiction over the person of the defendant, there is no reason for not treating the failure as an irregularity. Jurisdiction is acquired by proper publication and proof thereof following the statutory preliminary steps. The pleadings, default, and judgment follow, and there is no doubt that, if the record shows a judgment without a lawful default after filing a declaration, the judgment is void on the face of the record.

We have never held that the filing of a declaration before or after the statutory time was in itself a fatal step. In both Woolkins v. Haid supra, and Steere v. Vanderberg, supra, the declarations were prematurely filed. But that was not all; defaults were prematurely entered. We have often held that a default prematurely entered would not support a judgment, but we have never held that entering it later than the earliest practical moment would render the proceedings void, or the court without further jurisdiction. After jurisdiction is once acquired by proper personal or substituted service, there seems no good reason why irregularities may not be waived or corrected. In Woolkins v. Haid, the judgment was held void, but the court did not say that the proceedings were at an end. It could not order a new trial, for the record was not ready for trial. While in Steere v. Vanderberg the question of the validity of the judgment came up collaterally. In Savidge v. Ottawa Circuit Judge, 105 Mich. 259 (63 N. W. 395), a case of substituted service, the judgment was held void for want of proof of publication, and we held that we would not reverse the exercise of the discretion by the circuit judge in denying leave to file the affidavit nunc pro tunc. The decision in Kurtz v. Gartner, 141 Mich. 264 (104 N. W. 596), is consistent with this view.

But in this case the declaration was not prematurely filed, and the default was not prematurely entered. There was no irregularity in this regard. If irregular, it was for deferring the filing too long. As this is the only question raised, the order is reversed, and the cause remanded for further proceedings.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


author: Ostrander, J. Ostrander, J.

text:
    COMMISSIONER OF BANKING v. CHELSEA SAVINGS BANK.
    1. Principal and Surety — Contract—Construction—Bond.
    In determining the obligation of a surety, the rules of interpretation and of construction employed are not different from those employed in the interpretation and construction of other written agreements.
    2. Same — Instruments Referred to.
    In case a bond refers to a written contract between the principal and obligee, the instruments may be considered together.
    3. Same — Surety Bond — Public Officers.
    Bonds given to secure the State for deposits of public funds made by the treasurer in a bank are not qualified or restricted in the extent of their obligation by the statutory duty of such treasurer to take good and ample security for all deposits made. 1 Comp. Laws, § 1189.
    á. Same — Banks and Banking.
    The security so taken, covering by its express condition all deposits made in pursuance of the contract between the treasurer and the bank, includes all deposits for which the bank fails to account, and is not limited to any specific deposit of the amount of the penalty named.
    5. Same — Rights of Surety — Subrogation.
    Upon such failure to account for a sum exceeding the penalty and not fully secured by other bonds, the surety is not entitled to a share of dividends paid to reduce the whole debt.

      6. Same — Preference of Sovereignty as Creditor.
    The common-law right of the sovereignty to a preference in the payment of its demands is not enforceable in favor of the surety after the commencement of proceedings to liquidate the assets of the bank, under statutes which do not provide for such priority, and especially after the assets of the bank have been placed beyond its control under 2 Comp. Laws, §§ 6144 et seq.

    ON REHEARING.
    Same — Subrogation of Surety.
    The fact that the bank was closed by act of the commissioner of banking gives the surety no additional right to the enforcement of a priority which has not been asserted by the sovereignty'by statute or otherwise.
    Appeal from Washtenaw; Kinne, J.
    Submitted February 38, 1910.
    (Docket No. 133.)
    Decided March 19, 1910.
    Motion for rehearing submitted April 15, 1910. Granted May ?, 1910. Reargued June 30, 1910. Former opinion affirmed July 14, 1910.
    Bill by Henry M. Zimmerman, commissioner of banking, against the Chelsea Savings Bank and W. W. Wedemeyer, receiver, to liquidate the assets of defendant bank. On petition the American Surety Company of New York was permitted to intervene and present its claim. From a decree dismissing the petition, petitioner appeals.
    Affirmed.

      Miller, Smith, Paddock & Perry (Rollin II. Person,. of counsel), for intervening petitioner.

      Martin J. Cavanaugh (John E. Bird, Attorney General, and George 8. Raw, Assistant Attorney General, of counsel), for defendant.
    In proceedings to liquidate the assets of the Chelsea, Savings Bank, the American Surety Company of New York, upon its petition, was permitted to intervene, and the receiver was ordered to answer said petition. The petitioner prayed for an order requiring the receiver to pay to it the sum of $50,148.40 and interest, or for an order allowing petitioner, as creditor of the bank, to file its claim for that amount and to receive from the receiver ratable dividends thereon. The receiver filed his answer, there was a replication, and in due season the matter came on for hearing upon pleadings and proofs taken in open court. ■ The decree denied the intervening petitioner relief, and dismissed the petition. There is little if any dispute about the essential facts. A rather complete statement of them is necessary to an understanding of the questions presented.
    The Chelsea Savings Bank is, or was, a Michigan banking corporation. Its president and principal stockholder during the period here involved was Frank P. Glazier. During the same period Mr. Glazier held the office of State treasurer. The intervener is a bonding company authorized to transact business in the State. It is a duty of the State treasurer, before he shall have made any bank a depository of surplus funds belonging to the State, to require of the bank—
    “ Good and ample security, to be approved by the said State treasurer, the auditor general and the secretary of State, for the safe-keeping and reimbursement of such surplus funds, whenever called for.” 1 Comp. Laws, § ' 1189.
    Under date January 26, 1905, an agreement was made by and between Frank P. Glazier, as State treasurer, and the Chelsea Savings Bank, by the terms of which the said Glazier agreed to make the said bank a depository of a part of the surplus funds of the State “ as authorized by law.” The bank agreed to receive and safely keep such funds and to reimburse and pay the same to the State treasurer or his successor, or to whoever should be lawfully entitled to receive the same, whenever called for, and to pay interest on such funds at a rate to be from time to time designated by the State treasurer not exceeding 3 per cent, per annum. The bank applied to intervener for a bond of suretyship in the sum of $50,000 in favor of Frank P. Glazier, State treasurer. With the application were certain statements of alleged facts, and among them the following:
    “(6) Estimated average monthly guaranteed deposits for year $200,000. Rate interest lf% thereon.”
    Yarions questions contained in this application were unanswered, and it was followed by an application similar in form and effect dated in March, 1905, for a bond to take effect on or about March, 1905, and to end on or about January, 1907, in which appears statements relating for the most part to resources and liabilities of the bank which had been omitted from the earlier application. It contains, also, the following:
    “ III. That we will at all times indemnify and save the surety harmless from and against every claim, demand, liability, cost, charge, expense, suit, order, judgment and adjudication whatsoever and will place the surety in funds to meet every claim, demand, liability, cost, charge, expense, suit, order, judgment or adjudication against it by reason of such suretyship and before it shall be required to pay the same.”
    There is a further stipulation to the effect that the acceptance by the surety of payment for its suretyship shall not abridge, defer, or limit its right to be subrogated to any right or remedy which the surety otherwise might have or acquire, but that it shall have every right and remedy which an individual surety acting without compensation would have. The premium to be paid was agreed to be $125 per annum. The bank as principal and the intervener as surety executed and delivered to the State treasurer a bond, dated February 25, 1905, but actually delivered about March 9, 1905. This bond and the agreement of the bank and the State treasurer hereinbefore referred to were together received by the State, and on April 10,1905, were approved by the auditor general, the deputy State treasurer and the deputy secretary of State, and filed. It is here set out:
    “ Know all men by these presents, that the Chelsea Savings Bank of Chelsea, Michigan, as principal, and the American Surety Company of New York, a corporation of the State of New York, having its principal office in the city of New York, and having complied with the laws of, and being authorized to do business in, the State of Michigan, as surety, are held and firmly bound unto Frank P. Glazier, as treasurer of the State of Michigan, in the full sum of fifty thousand dollars ($50,000.00), to the payment of which well and truly to be made, we bind ourselves, our successors and assigns, jointly and severally, firmly by these presents.
    “ Sealed with our seals and dated this 25th day of February, A. D. 1905.
    “The condition of the above obligation is such that, whereas, the above named bank, principal herein, has been designated by the said Frank P. Glazier, as treasurer of the State of Michigan, as one of the depositories of the surplus funds belonging to the State of Michigan; and whereas, the said Frank P. Glazier, as such treasurer, has entered into a certain contract with said bank, principal herein, with reference to the said surplus funds so to be deposited with it, a copy of which is hereto attached, and made a part hereof; now, therefore, if the above bounden bank as principal shall, in accordance with the said contract, safely keep and reimburse and pay over upon demand all moneys belonging to the said State of Michigan, and deposited with it by the said State Treasurer, in accordance with the said contract, to the said State Treasurer, his successor or successors in office, or to any other person lawfully entitled to receive the same, and shall in all things perform the conditions of said contract, then this obligation to be void, otherwise to remain in full force and effect.
    “It is mutually understood and agreed between the parties hereto that if the said surety shall so elect, its liability for future actions or omissions of said principal may be terminated by giving thirty (30) days’ notice in writing to the said Frank P. Glazier, as treasurer as aforesaid, or his successor or successors in office, and a like notice to the secretary of State and auditor general of said State; and the liability of said surety for the future actions or omissions of said principal shall cease at the expiration of said thirty (30) days, the said surety remaining liable for all or any acts of commission or omission covered by this bond or said contract, up to and including the date of expiration of said thirty (30) days’ notice.

      “The said surety shall, upon the termination of this bond, and its release from all liability hereunder, upon request, refund the premium paid, less a pro rata part thereof for the time this bond shall have been in force.
    “It is mutually understood and agreed that said surety shall be liable hereunder for only such proportion of the total loss sustained by the said Frank P. Glazier, as treasurer of the State of Michigan, or his successor or successors in office, as the penalty of this bond shall bear to the total penalties of all bonds furnished by said Chelsea Savings Bank as principal in favor of said State treasurer, and in no event shall the surety hereon be liable hereunder for any sum in excess of the penalty of this bond.
    “ In witness whereof, the said Chelsea Savings Bank as principal has hereunto affixed its corporate seal, and caused this instrument to be signed by its president and cashier, and the said American Surety Company of New York, as surety, has executed this instrument in accordance with the proper resolutions respecting the execution of instruments of this character, and affixed its corporate seal.”
    It remained in force up to and including February 13, 1908. During the period from December 28, 1905, to January 6, 1906, no State funds were on deposit with the bank. At the end of January there was deposited more than $300,000. During the year 1906, and after January 19th, the deposit was never less than $236,000, and in October it reached $585,000. In 190?, except for a period early in January, the deposit was never less than $500,000. On or about December 18,1907, the Chelsea Savings Bank suspended, at which time it was the depository of surplus State funds to the amount of $685,587.79. Demand was regularly made by the State for repayment of said moneys and none were paid. The bank was insolvent, and was closed by the State banking commissioner pursuant to the statutes of the State, and a receiver was duly appointed, qualified, and entered upon performance of his duties. The receiver testified that the least value placed upon the assets of the bank was more than $685,000; that he had distributed in dividends or had on hand to distribute about $538,382.22, and hoped to collect for distribution $100,000 additional. He had paid upon savings deposits 60 per cent, and on commercial deposits 40 per cent. The Chelsea Savings Bank furnished to the State as security for State deposits and there were outstanding when the bank was closed, bonds as follows:
    The Title Guaranty & Trust Company............- .§35,000
    Federal Union Surety Company.------------------- 57,500
    The Bankers’ Surety Company.....................17,500
    The Metropolitan Surety Company................. 25,000
    United States Fidelity & Guaranty Company------ 25,000
    American Surety Company of New York........... 50,000
    • — aggregating in all the sum of $200,000.
    Intervener, upon the demand of the State, paid the face of its bond, with interest. Its contentions are:

      “First. We contend that where a creditor having a means of satisfying the debt relinquishes or loses it by his wilful acts or negligence, the surety will be discharged, being released by any act of the creditor which deprives the surety of the right of subrogation. We apply this principle on the theory that the State is entitled to priority in the payment of its debts, and that the State could have received full payment had she taken advantage of her prerogative. That this would have operated to the benefit of the surety either by absolving it from payment, or, if it had paid, by placing in its control a right of subrogation which would have resulted in full repayment.

      “Second. We contend that the obligation of the American Surety Company did not extend beyond the loss sustained by the State on this particular bond, and that the deposit covered by this bond was a separate and distinct debt, which the surety has paid in full, entitling it, therefore, to be repaid out of the assets of the bank on well-recognized principles of subrogation.

      “ Third. We contend that, where there is a bond in a fixed amount to secure a floating balance which may exceed that amount, the surety is entitled to have the dividends from the insolvent estate prorated to the whole debt, and that surety is entitled either to the dividends on the secured part he has paid in full or to have the prorated part of the dividend applied in diminution of the amount he has to pay.
    “ Fourth. That the agreement of indemnity given by the hank to the surety company took effect as of its date immediately upon payment on the bond, and that such agreement entitled the surety to stand as a creditor of the bank and receive its share of any dividends paid.”
    As to the interpretation of the bond and the extent of the surety’s obligation, it is further contended:

      “ (1) As a provision limiting the surety’s liability, and as one of the terms of the bond, when read in connection with the statute, it was distinctly agreed that the State treasurer should never deposit in the bank a dollar of State surplus funds in excess of the aggregate penalties of the bonds furnished.
    “ (2) It having been so agreed that for every dollar of deposit there must be an equivalent penalty in spme bond, this further provision was inserted:
    “ ‘It is mutually agreed and understood that the said surety shall be liable hereunder for only such proportion of the total loss sustained by the said Frank P. Glazier, as treasurer of the State of Michigan, or his successor or successors in office, as the penalty of this bond shall bear to the total penalties of all bonds furnished by said Chelsea Savings Bank as principal, in favor of said State Treasurer.’
    “(3) The rights and the liability of the surety must be determined as if the treasurer had complied with these provisions of the bond, and had not deposited more than two hundred thousand dollars, the aggregate penalties of all the bonds given. So far as this surety is concerned it is as if no more than two hundred thousand dollars had been deposited. Or, which is the same thing, as if the treasurer had taken bonds with penalties in the aggregate equaling the deposits. Because such was the liability which it assumed, and not some other different liability. In other words, the liability assumed by the surety on this bond, cannot be increased nor can its rights be diminished, by the treasurer’s violation of the terms of the bond.
    “(4) When the bond agrees that the loss shall be proportioned, it necessarily also agrees that the dividends shall be apportioned. Because the loss cannot be proportional, without apportioning all payments whether by dividend or otherwise.
    “(5) Wherefore, by the express terms of the bond itself, this surety is entitled to its proportional share of the dividends; that is, to dividends upon fifty thousand dollars, the amount of the indebtedness which it has paid. It may be urged that the entire scheme for depositing State money in this bank was illegal and against public policy. If this were so, which I do not here wish to take the responsibility of either admitting or denying, even then, the State can no more be permitted to refuse apportionment of the dividends than it could be permitted to refuse change on accepting a hundred dollar bill in payment of a fifty dollar liability. It ratified the bond, after the event, with full knowledge of the facts, at least so far as to demand and receive payment upon it, and it cannot ratify it in part, without ratifying it as a whole. The doctrine of public policy cannot be made use of to increase the surety’s liability. That would be a still greater breach of public policy. The liability of the surety was fifty thousand dollars, less its proportion of the dividends. Nothing more.”
    In behalf of the receiver it is asserted, first, that a surety is not entitled to subrogation upon payment of a part of the debt; second, that the debt, in this case, is the whole amount due from the bank to the State; third, that the bond given by the intervener affords protection to the State for any ultimate balance arising out of the dealings between the State and the bank as a depository of State moneys; fourth, that the State is not entitled to a priority.
   Ostrander, J.

(after stating the facts). In determining the obligation of a surety, the rules of interpretation and of construction employed are not different from those employed in the interpretation and construction of other written agreements. In the case presented there is a bond which refers to a contract between the principal and the obligee in the bond. These instruments may be considered together. It appears that the treasurer of the State, the obligee in the bond, agreed with the Chelsea Savings Bank, the principal in the bond, to make it a depository of a part of the surplus funds of the State and that the bank agreed to accept and safely keep, account for and pay over on demand “ to the amount of the funds so deposited,” and to pay interest upon “ all such surplus funds of said State of Michigan as may be offered or deposited by said State treasurer.”

The condition of the bond is that if the said bank shall, in accordance with said contract, safely keep and reimburse and pay over upon demand all moneys belonging to the said State of Michigan, deposited with it by said State treasurer in accordance with said contract, etc., “then this obligation to be void, otherwise, to remain in full force and effect.”

The language employed is not ambiguous; the ordinary meaning thereof is not doubtful. In terms the liability of the surety is that of the principal, limited only by the penalty of the bond and by provision for paying no more than such proportion of the total loss sustained by the treasurer of the State as the penalty of this bond bears to the total of the penalties of all bonds furnished by said bank as principal in favor of said State treasurer. It is said that the express obligation of the surety denoted by the terms of the contract and bond is modified and restricted by the statute; that there was, in effect, an agreement that for all moneys of the State deposited in the bank security would be taken; that this is recognized and is indeed contracted for in the term “as authorized bylaw,” employed in the agreement of the State treasurer and the bank. It is not to be supposed that the State, in accepting security, however ample, released the right to rely, also, upon the property of the bank. Assuming the legislature to have intended that the good and ample security required should be distinct and separate from and in addition to the credit and security afforded by the assets of the bank and the liability of its stockholders, it is a provision exclusively for the protection of the interests of the State. If otherwise construed, if it is held that the statute qualifies the contract of every surety and amounts to an agreement between the State and those furnishing security pursuant to the statute, that there will be no breach of the official duty to require “good and ample security,” the whole purpose of the law is liable to be defeated by a careless or wilful failure to obey the law. The term above referred to, employed in the agreement to deposit, must be given a meaning in harmony with this construction of the statute, and must be held to mean that the designation of the bank as a depository of State funds is an official, authorized designation. The provision in the bond which limits liability of the surety to such a proportion of the total loss sustained as the penalty of the bond' bears to the aggregate penalties of all bonds is effectual, according to its terms and its reasonable intent, without reference to the statute. The accounts of the State with banks of deposit are, of necessity, fluctuating. In a particular case, the amount on deposit might be much less than the aggregate of the security furnished. ' It follows that a violation of the statute cannot be complained of by the surety, and the statute in no respect modifies the express obligation of the surety to respond, as the principal should respond, to the amount of the penalty. City of Detroit v. Weber, 26 Mich. 284.

The debt due to the State from the bank is the sum of all deposits. The bank, the principal in the bond, has not paid the debt and upon its failure so to do the surety became at once liable to pay the amount which it had agreed to pay. The surety has paid. It paid the entire penalty of the bond because the debt due to the State from the bank exceeded in amount the aggregate of the penalties of all bonds. The debt of the State has not been paid. The State is proceeding, as a creditor of the bank, to secure and it has accepted, as they have been divided by the receiver, such proportion of the assets of the bank as its debt bears to the total of debts of the bank allowed by the court. It appears that this proportion of the assets will not pay the State or any other creditor in full. The contention of the surety that there has been no loss to the State as to that part of the deposit which it secured, that so much of the deposit as it secured was a separate and distinct deposit and debt, that therefore it has paid the debt in full and is entitled, to that extent at least, to be subrogated to the claim of the State against the bank and to recover dividends, requires little consideration further than it has already, inferentially, received. We reject the theory that a particular bond furnished by a depository of State funds, conditioned like the bond in question here, should be treated as securing a particular deposit of funds. And this as well when the State has the “ good and ample security ” which the intervener says it should have taken as when it has not. The deposits in the Chelsea Savings Bank were made, generally, from time to time, and were from time to time withdrawn. That this would be the course of affairs was to be expected, and that it was so understood is evident. All security was given and accepted for all of the deposit, whatever the amount of the deposit might be. If intervener secured and intended to secure any particular deposit of $50,000, it had no occasion to provide that it should pay no greater part of any loss than the proportion of the penalty of its bond to the total penalties of all bonds. Its undertaking is that its principal shall repay all moneys deposited, and it must be construed as a security for the whole debt. It is conceded, and the authorities cited by counsel for the intervener sustain the concession and the general rule, that in such a case the guarantor is not entitled to a share of the dividends which are declared and paid in reduction of the whole debt. 1 Brandt on Suretyship & Guaranty (3d Ed.), § 277; Ellis v. Emmanuel, L. R. 1 Excheq. Div. 157; Dumont v. Fry, 14 Fed. 293.

If the State is of right entitled to a preference and to have debts due to it paid to the exclusion of other creditors, the assets of the bank would have paid the demand substantially in full. Neither in the Constitution nor in the statutes of the State is the right of the State to a preference and priority over other creditors distinctly asserted. If the right exists it is as a prerogative of sovereignty. Successive Constitutions of the State have declared, generally, that the common law shall remain in force, and it is not doubted that by the common law of England it was a prerogative right of the sovereign, with some exceptions and limitations, to have debts due to him paid ahead of debts due to his subjects. Whether the States of the Union, independent of statute declarations, have such right, is a question which has received judicial consideration in some of the States. A collection of cases will be found in a note to Freeholders of Middlesex County v. State Bank at New Brunswick, 30 N. J. Eq. 311. See, also, United States Fidelity & Guaranty Co. v. Rainey, 120 Tenn. 357 (113 S. W. 397); State v. Foster, 5 Wyo. 199 (38 Pac. 926, 29 L. R. A. 226, 63 Am. St. Rep. 47); Seay v. Bank of Rome, 66 Ga. 609; Giles v. Grover, 9 Bing. 128 (House of Lords Cases).

The decisions of State courts are not uniform.

The question is not presented for decision in this case unless, assuming the right to exist, the intervening surety may insist upon the exercise of the right by the State. The statute, 2 Comp. Laws, § 6144 et seq., points out the procedure when a State bank has become insolvent. The general banking law, of which the sections referred to are a part, was enacted long after the statute authorizing the deposit of State funds in banks, and it has been since its passage many times amended. The funds of a bank, the possession of which is taken under this act by an officer of the State, are required to be paid, as collected, to the State treasurer. There is no provision for retaining out of such funds moneys due to the State, excluding other creditors of such a bank. On the contrary, ratable dividends are to be made (section 6146) from time to time on all such claims as may have been proved. Without treating the action of the banking commissioner in closing the Chelsea bank as the precise legal equivalent of a fair and bona fide assignment by the bank of its assets for a valuable consideration, it is nevertheless true that the proceedings taken passed all the property of the bank beyond its power or control. This, being the result of enforcement of the State law, should have an effect equal to an assignment for benefit of all creditors. Such an assignment could not be avoided by the crown nor could it lay claim to goods seized by tbe sheriff on fieri facias and sold. King v. Lee, 6 Price, 369; Giles v. Grover, 1 Cl. & Fin. 72; King v. Watson, 3 Price, 6; 2 Tidd’s Practice, pp. 1098, 1099; Chitty’s Prerogative of the Crown, 281, 284, 285; State v. Bank of Maryland, 6 Gill & J. (Md.) 205 (26 Am. Dec. 561).

The principle proceeded upon seems to be that the right of priority of the sovereign attaches, as does the right of any lienor, only upon seizure under or enforcement of the proper writ. We do not hesitate to say that, assuming the right of priority contended for to exist in this State, the courts, in the absence of any assertion of the right by the State, and after the debtor has been divested of all control of its property in proceedings authorized by and following the statutes of the State, should not, sua sponte, assert the right in favor of a guarantor of the debtor.

The decree is affirmed.

Montgomery, C. J., Hooker, Blair, and Stone, JJ., concurred.

ON REHEARING.

Ostrander, J.

We said in the foregoing opinion, concerning the question of the prerogative right of the State as creditor to be preferred to other creditors of the debtor:

“The question is not presented for decision in this case, unless, assuming the right to exist, the intervening surety may insist upon the exercise of the right by the State.”

We proceeded then to apply the rule that at the common law the right of the sovereign to priority over other creditors of a debtor was one which must be asserted before the assets of the debtor, had passed beyond his control. On the application for rehearing it was urged that the opinion did not meet the contention that the intervening petitioner is, as to the State, a surety of the debtor, and that the State itself, by its officers, instituted the action which divested the debtor of its property. The opinion does not answer precisely this contention, for which reason and because one of the justices who took part in the decision had left the bench before the motion for rehearing was presented, it was ordered that' the cause be reheard.

In the former opinion some reference is made to authority. Further references are: The note to 1 Kent’s Commentaries, star page 248; State v. Williams, 101 Md. 529 (61 Atl. 297, 109 Am. St. Rep. 579, 4 Am. & Eng. Ann. Cas. 970, 973, and note, 1 L. R. A. [N. S.] 254, and note); In re Receivership of Columbian Insurance Co., 3 Abb. Dec. (N. Y.) 239; Central Trust Co. v. Railroad Co., 110 N. Y. 250 (18 N. E. 92, 1 L. R. A. 260); In re Grinsburg, 59 N. Y. Supp. 656. The cases arose upon the assertion in some form of the alleged right of the State. The opinions relied upon by appellant are judicial assertions that in the particular jurisdiction this prerogative right of sovereignty, as recognized by the common law, has been asserted by the very act of adopting the common law into the jurisprudence of the State, and therefore may be enforced by the courts. This is the form of the contention made by appellant, and it is this alleged right of the State which it is claimed should have been exercised in the particular case, and that the surety stands, before the law, in the position it would have occupied had the State exercised the right. A royal prerogative is an arbitrary power vested in the executive, a power or will which is discretionary and uncontrolled (2 Bouvier [Rawle’s Rev.], p. 730) and in some, if not all, of the decisions which have been examined the term “ prerogative ” is evidently employed in the sense that it is an arbitrary power of the State, as distinguished from a sovereign power, which becomes effective in exercise through legislation. It is clear that no one may complain because the sovereign has not exercised a discretionary and arbitrary right. The .argument made for appellant is thus completely answered.

We do not doubt that the State may provide by legislation for a preference of payment of demands due to the State. The legislatures of some of the States and the congress of the United States have, to some extent, given a preference to demands due to the government. The right to do this is inherent in the State. It is exercised in this State, in a limited way, in the collection of the revenues. It has at all times been, as it now is, within the power of the legislature to make such provisions for State priority as seemed to be expedient. It has made none for cases like the one at bar. The form of our government, the undoubted power of the legislature in this behalf, furnish reasons for saying that in adopting the applicable rules of the common law as a part of the law of the State, the people did not adopt and thereby assert an arbitrary, prerogative right to priority of payment of its debts, which was recognized by the common law. In any event, the State has never asserted, and does not now assert, such a right.

We conclude that appellant has been denied no right, and the decree of the court below is affirmed.

Hooker, Moore, McAlvay, Brooke, and Stone, JJ., concurred. Blair, J., concurred in the result.


author: Ostrander, J.

text:
      In re MOULD.
    1. Habeas Corpus — Res Judicata — Infants—Custody.
    In proceedings to determine the right of a parent or guardian to the care and custody of a child, the determination of the right by a court of competent jurisdiction is conclusive on another court exercising the same jurisdiction upon the same facts.
    2. Same — Appeal and Error.
    On appeal from such finding, the court would not disturb a finding of fact based upon competent testimony.
    3. Same.
    Courts are bound to consider the interest of the child in awarding custody to either claimant.

    4. Same — Statutes.
    That the petitioner is described as guardian of the child is immaterial except to show petitioner’s interest in habeas corpus to determine the legality of detention by a probation officer of an alleged delinquent resident of another county. Act No. 6, Pub. Acts Extra Session 1907.
    5. Same.
    Any person may make the application (3 Comp. Laws, § 9860); and the issue is between, the child and the person detaining her, between the child and the law and procedure invoked as authority for her detention.
    6. Same — Statutes.
    A petition for habeas corpus in favor of an infant of twelve years, alleging that she is not a person mentioned by 8 Comp. Laws, § 9859, and is unlawfully imprisoned on a charge of having committed a felony in a county where she does not reside, under a commitment by the probate court to the probation officer, is not concluded by a refusal of another court exercising like jurisdiction to discharge the accused.
    7. Criminal Law — Infants.
    A child of twelve years cannot be prosecuted for a felony in any court.

      8. Same.
    The commission of a felony renders the infant a delinquent child.
    9. Same — Jurisdiction over Juvenile Offenders.
    The inquiry as to whether such infant is a delinquent child under Act No. 6, Pub. Acts Extra Sessions 1907, should take place in the county of her residence.
    Habeas corpus proceedings by Florence J. Chappell against Ada Freeman, a probation officer, to obtain the release from custody of Lois Mould, an infant.
    Submitted May 26,1910.
    (Calendar No. 24,070.)
    Writ granted June 8, 1910.

      Louis W. Mg Clear, for petitioner Chappell.

      William Van Dyke and Allan H. Frazer, for respondent Freeman.
    Exercising original jurisdiction, this court issued the writ of habeas corpus to bring before the court Lois Mould, a female child 12 years of age, who, it was represented, was unlawfully restrained of her liberty by the probation officer of Wayne county. This officer produced the child, as she was commanded to do, and returned that she had her in custody by virtue of an order of the probate court of Wayne county, and also by virtue of an order, finding, and decree of the circuit court for Wayne county. The order of the probate court, juvenile division, made May 11, 1910, is as follows:
    ‘ ‘A petition having been heretofore filed in this court wherein it is alleged that Lois Mould, alias Mole, is a juvenile delinquent person within the meaning of the statutes of the State of Michigan, and on the 14th day of April all parties interested being then represented in open court or having notice, and it then appearing to the court necessary and for the best interests and welfare of said child and the public, the court placed said child in the care and custody of Ada Freeman, a duly appointed probation officer, and ordered said child detained for a period of 80 days, and on the 23d day of April a new complaint having been filed in such matter and after due notice to all persons interested come on for hearing before this court, on the 4th day of May instant, at 8:30 a. m., and Louis W. McClear, an attorney, appearing for the alleged guardian of said child, and requesting an adjournment to this date, and upon hearing this day, said Louis W. McClear again appearing and asking that said matter be further continued, it is ordered that said matter be and the same is hereby continued to the 18th day of May inst.,at 9 o’clock in the forenoon, and, it still appearing to the court that the interests of said child and public interests require that said child be detained in the custody of some suitable and proper person, it is further ordered that said Lois Mould, alias Mole, lie, and she is hereby, committed to the care and custody of Ada Freeman, a duly appointed probation officer of this court, with full power and authority over the person of said Lois Mould, alias Mole, until the further order of this court, but not to exceed a period of 30 days from the date hereof, unless otherwise ordered.”
    The complaint of April 23d referred to in the order sets out upon information and belief that Lois Mould is a resident of Livingston county, Mich., in which county her guardian also resides; that she is a delinquent child, and has violated the laws of the State, in that she committed the crime of perjury in the recorder’s court of Detroit in giving her testimony in a cause depending in that court, she being sworn as a witness upon the trial of said cause. The details are set out at length. There is no order or decree of the circuit court for the county of Wayne set out in said return. There is an opinion and finding of Judge Donovan, one of the judges of that court, in habeas corpus proceedings in the matter of Lois Mould, which is here set out:
    “ I find on listening to argument of counsel for petitioner and respondents, and upon reading record of testimony taken in recorder’s court and before the police department prior to trial, showing facts and circumstances surrounding crime committed against child in this case, Lois Mould, and showing to my satisfaction that crime was committed, and that child did make frank and free statements to police department and to others, and after reading record in application to Supreme Court of this State that child be released on bond, I am satisfied that crime was committed against child, and that child did make a frank statement showing guilt of her father, and that within 11 days after committing of offense Florence J. Chappell had herself appointed guardian in Livingston county, this State, with connivance of father of child, who was on trial in recorder’s court for offense against child and influencing child to deny truth and perjure herself on trial of father, and that such child did perjure herself on the trial of her father and was properly committed by Hon. William F. Connolly, one of the judges of the recorder’s court for the city of Detroit, for committing perjury during the trial of the People of the State of Michigan v. Charles Mould, father of said child, and then properly transferred to juvenile division of probate court, Wayne county. I further find that, while said child was found so under arrest she was properly taken before probate court in accordance with statute, and there properly complained against. The record in case discloses that child was under subpoena and bond to answer, appear, and testify in recorder’s court, and came to recorder’s in response to subpoena and bond, and, while being there adjudged by such court competent to testify, perjured herself. I find that juvenile division of probate court has jurisdiction over children of any county who commit felonies within this county, and of child in this case. In consideration of facts disclosed to me by arguments of counsel and records before me, I find that best interests and welfare of child demand that she be not given to petitioner in this case, and that she be turned over by this court on this writ to Ada Freeman of this city, county, and State, and further, that she be left within jurisdiction of juvenile court of this county, to be disposed of, and that, if such jurisdiction fail, I remand child to custody of said Ada Freeman, she being a competent and trustworthy custodian for child and willing to accept responsibility thereof. In any event, I find, and, in so finding, hereby dismiss writ applied for, that petitioner for writ is only guardian of property of Lois Mould, and not guardian of her person; therefore, in accordance with decision found in the fourteenth Michigan [Taff v. Hosmer, 14 Mich. 249] and consistently followed in this State, and with holding of our Supreme Court, In re Heather Children, 50 Mich. [261 (15 N. W. 487)], I find that petitioner has no such right or interest such as entitled her to apply to this court for a writ of habeas corpus, and for that reason writ is dismissed.”
    It is asserted by the said probation officer in her return that this finding and determination is not reviewable except upon certiorari, and in an original proceeding in this court is res adjudieata the right of said officer to the custody of the child. It is further stated in said return, in substance and effect, that the father of Lois Mould, a man upwards of 40 years of age, was arrested in Detroit, charged with having committed a rape upon her in that city; that she informed certain police officers that her father did commit this crime; that she was for a time detained as a witness, but was later enlarged, and went, with her aunt (who sued out the writ in this proceeding), to Fowlerville, in Livingston county, and remained with her until she appeared in the recorder’s court in Detroit to give her testimony upon the trial of her father. Inferentially, at least, it is charged that the said aunt secured possession of her person for the purpose of influencing her with respect to the testimony she should give upon the trial of her father, and did influence her.
    The father was convicted of an assault and committed to the Detroit house of correction, to serve a short sentence. The mother of the child is said to be living, at what place is not stated, but she does not live, and for some time has not lived, with her husband. It is set up in the petition for the writ, and is not disputed, that from February 2lst until February 26th the girl was detained by the police. On the last mentioned day an order was made by the recorder transferring her to the probate court, juvenile division. On the same day, the probate' court, juvenile division, ordered the county agent to investigate the case and make a proper report, and meantime committed the girl to the probation officer, who now has her in custody, to be kept at the House of the Good Shepherd at the expense of the county. A complaint was made in said probate court March 30th, charging the girl to be a delinquent child, and on April 8th the judge of that court held that the said complaint conferred no jurisdiction upon the court, and that the recorder had no authority to transfer the matter to the probate court. The matter was therefore dismissed, with the further holding and determination that as the father of the child had apparently made his home with her aunt and would probably, when his sentence expired, return there, he would detain the child as one not having proper parental care, for five days, and place her in charge of said probation officer, to be detained in “the place of detention provided by the county of Wayne.” On April 9th the child was charged in the police court with having committed perjury. A warrant was issued, and she was arrested, arraigned on April 12th, and, in default of bail, committed to the county jail. On April 14th she was discharged. The same person who had made the complaints referred to made two petitions on April 8th and filed them in probate court, in one of them charging that the child was a delinquent and in the other that she was a neglected and dependent child. On April 14th she was by order of that court committed to the said probation officer. From time to time the matter was adjourned. During all of the time the child has been in custody.
    The county agent made a report, in which, among other things, he stated that the—
    “Child did live with aunt at Fowlerville. The aunt keeps a little notion store and the uncle drives a wagon for a coal dealer. They are both hard-working people and well spoken of.”
    As to the child’s testimony in court he stated :
    “ She says the first story she told the police she did not understand. She said she did not know the meaning of the word ‘intercourse.’ When her aunt explained it to her the meaning of the word, she said, ‘ No; that was not so,’ and that is the reason she changed her statement. I understand th$t doctors have examined this child and some say she is all right and some say she is not, but the majority are with the girl.”

       As to State guardianship of children, see note to Whalen v. Olmstead (Conn.), 15 L. R. A. 593.

   Ostrander, J.

(after stating the facts). If this was a proceeding brought to determine the right of a parent or guardian to the care and custody of a child, it would be urged with propriety that the determination of the right by a court of competent jurisdiction ought not to be reviewed or set aside by another court exercising the same jurisdiction upon the same facts. In re Sneden, 105 Mich. 61 (62 N. W. 1009, 55 Am. St. Rep. 435). In the case supposed an appellate court would not disturb a finding of fact based upon competent testimony (Carpenter v. Carpenter, 149 Mich. 138 [112 N. W. 748]; Smith v. Kiel, 150 Mich. 417 [114 N. W. 229]), and any court would be bound to consider the interest of the child in awarding custody to either claimant. It is true the person suing out the writ describes herself as guardian of the child. This is of no significance except as showing her interest. Any person may make the application. 3 Comp. Laws, § 9860. The issue here does not arise between persons claiming the right to custody of a child. The issue is between the child and the person who detains her, between the child and the law and procedure invoked as authority’for her detention.

It is alleged in the petition that the child is imprisoned by an officer, and that she is not one of the persons mentioned in 3 Comp. Laws, § 9859. In such a case it is no bar to habeas corpus proceedings in this court that some other court exercising a like jurisdiction has refused to discharge the imprisoned person. And no finding or order of such other court in such a proceeding can be relied upon in this court as authority for the detention. The single question which is presented for determination, therefore, is whether the probate court for Wayne county had authority to commit this child. We assume, for the purposes of decision, that she is charged before that court with having committed a felony in the county of Wayne, and that, if she were more than 14 years of age, she might be tried for the offense charged in that county. She is not 14 years of age. Therefore she cannot be prosecuted for the felony in any court. Whether she has committed a felony may be inquired about. If she has, her status is thereby fixed. She is a delinquent child.

A careful reading of the statute (Act No. 6, Pub. Acts 1907) passedat the extra session of the legislature leads us to the conclusion that the probate court for Wayne county is, in this case, without jurisdiction to make the inquiry and to thereafter dispose of this child as the result thereof may seem to warrant. The statute is in many respects one of uncertain meaning. It is, however, a general law in force in every county of the State. It appears to be contemplated that the probate court of each county shall have jurisdiction over the delinquent, dependent, and neglected children, or those charged as such, resident in the county. It is not always easy to determine the precise meaning which the legislature intends shall be given to the words “residence” and “resident” in a particular statute. With respect to the statute under consideration, we think it is reasonably clear that jurisdiction of the court does not depend upon the place where the alleged offense is committed, the commission of which is the basis for charging the child as delinquent. So long as the child may not be prosecuted for the crime, there is no good reason for saying that status, although depending upon the fact of a crime committed, must be determined in the county where the offense was committed. There is much reason for saying that a child resident in any county may be charged in that county as a delinquent, dependent, or neglected child upon facts none of which occurred in that county. Section 5 of the act provides that the sworn petition to be filed in the probate court shall set forth that the child is a “resident in said county,” with the facts which show that the child is a delinquent, dependent, or neglected child within the meaning of section 1 of the act. At the same time, it must be admitted that in other portions of the law language is employed which appears to support the idea that the probate court of the county in which the child shall be found or shall be apprehended has jurisdiction. Notably is this true of the provisions found in section 6, which provides for the transfer of cases pending in police and justice’s courts, together with all papers connected therewith “to the said court,” upon which said transfer “the said court may proceed to hear and dispose of the case in the same manner as if said child had been brought before the court upon petition, as hereinbefore provided.” The legislature has provided no method or procedure for transferring a case from the police magistrate of one county to the probate court of another county, and none for transporting in custody a child committing depredations in one county to the county of his residence.

We do not hold or intimate that a child may not become resident in a county, within the meaning of this law, independent of the place of residence of his parents or guardian. We hold upon the facts of this case that Lois Mould was not, and is not, a resident in the county of Wayne within any meaning which may be given to the words of the statute. She is described in the complaint as a resident of Livingston county. She went into Wayne county in obedience to the process of a court of record. She was resident in Livingston county, living there with her relatives, one of whom was and is, by order of the probate court of that county, guardian of her estate if not of her person. If her conduct in court in Wayne county was such that she may be charged with being a delinquent child, the necessary inquiry can as well be made in Livingston county, her status as well determined in that county. While the law is in a sense remedial in character, it is nevertheless a penal law. The essential thing to the child, and to the public, is the inquiry upon the result of which her status depends. It better accords with established notions of justice, and with the general purpose of this general law, to hold that the inquiry should be had in the county of her home rather than in a county in which she was never in any sense a resident. So much significance we feel bound to give to the language which requires the petition to show that the child complained about is “ resident in said county.” We have no doubt that, as enforcement of the law proceeds, necessary amendments to its provisions will be made by the legislature.

Upon the hearing, the child was given in custody to Miss Ada Freeman, the probation officer of Wayne county. An order will be entered requiring her to deliver the child to the petitioner upon request. The child was in the custody of petitioner and lived with her when she was summoned to appear as a witness in Wayne county. If there is apprehension that the child should not remain with her, the courts of Livingston county are open; and, if she is regarded as a delinquent child, a proper petition in the probate court for that county will institute the statute inquiry. We award no costs.

McAlvay, Brooke, Blair, and Stone, JJ.,concurred.


text:
      In re KNOTT.
    1. Habeas Corpus — Process — Commitment for Contempt — Amendment of Record.
    The amendment of a commitment for contempt of court in habeas corpus proceedings, by correcting a date to correspond with the true facts, is not ground to quash the commitment, though corrected by the attorney for the petitioner, and subsequently approved by the court.
    2. Same — Return of Respondent — Requirements.
    The commitment of a respondent in habeas corpus for failure to make a more complete and explicit return to the petition as ordered by the court, is not an exercise of inherent jurisdiction to compel obedience to orders, but is the method which the statute specifies in case of failure to return the facts relating to any transfer of custody. 3 Comp. Laws, §§ 9869-9873. ■

      3. Same — Jurisdiction—Validity oe Writ.
    A petition for the writ of habeas corpus by the mother of an infant less than five years old, showing that the father who lives in the county where the petition is filed has surreptitiously removed the infant from her custody and control and unlawfully restrains the child of his liberty, in said county or elsewhere, with other averments showing jurisdiction, sufficiently alleges the petitioner’s right of custody in order to give the court jurisdiction.
    4. Same — Infants—Guardian and Ward — Parental Custody and Control.
    Although the provisions of 3 Comp. Laws, § 8701, confer upon the father, as the natural guardian of the infant, the right to be appointed guardian in preference to any other person, and in case of his decease give to the mother the right, they do not conflict with the authority of a court of competent jurisdiction to award the custody to any suitable person, as required by the best interests of the infant.
    5. Same.
    But until the right to such custody has been judicially determined, and as between parents of a minor who are living together, there is no rule, statute or other authority which permits either, as of right, to dispose of a child to the exclusion of the other.
    6. Same.
    After separation of the parents, the right of custody is prima fade in the rnothei.
    7. Same — Jurisdictional Averments.
    Both parents of the infant being in the jurisdiction of the court and the home of the child being in Wayne county where the writ is issued, a petition which so alleges and shows that the child is detained in the county or elsewhere, by the father, contains a sufficient allegation that the control of the imprisonment and of the child’s person is within the jurisdiction to enable the court to issue the writ.
    8. Same — Petition—Sufficiency.
    The wife need not allege that the respondent is an unfit person to have the custody of the child, or that he is not properly caring for it, or that the petitioner is a suitable custodian of the infant, when the petition shows the detention by the one parent as against the other.
    9. Same — Return.
    A return that the child is outside the jurisdiction of the court is not conclusive and is traversable.

      10. Same — Return—Pleading.
    The return of the respondent to the writ is incomplete, inexplicit, and insufficient, under 3 Comp. Laws, § 9869, where the respondent admits removing the infant from his mother’s care, but denies having the child in custody or under his power from the time of the application for the writ, claiming that the child was in Canada when he last heard of it.
    Certiorari to Wayne; Rohnert, J.
    Submitted May 26, 1910.
    (Calendar No. 24,009.)
    Decided June 9, 1910.
    Habeas corpus proceedings by Elizabeth Knott against Frank M. Knott to obtain the custody of Kenneth W. Knott, an infant. An order committing respondent for contempt of court in refusing to make a more complete and explicit return to said writ is reviewed by respondent on writ of certiorari. Affirmed.

      Louis C. Wurzer, for petitioner.

      Schmalzriedt, Spaulding & Herald, for respondent.
    On the 19th of April, 1910, upon the petition of Frank M. Knott that day filed, a writ of certiorari was allowed by one of the justices of this court to review certain proceedings had in the circuit court for the county of Wayne, in the course of which and for refusal to obey an order of one of the judges of that court the petitioner was committed, and is now imprisoned. A return to the writ was filed May 10, 1910, and, upon the suggestion that the cause might be treated as a motion and speedily disposed of, briefs were filed by counsel on the part of plaintiff in certiorari on May 28th, on behalf of the respondent on June 1st. The proceeding was begun by filing on the 9th of March, 1910, a petition for a writ of habeas corpus. It is set out in the petition that the petitioner, Elizabeth Knott, is the wife of Frank M. Knott, the plaintiff in certiorari; that as a result of their marriage there was born one son, Kenneth W. Knott, now 4{~ years old; that the parties resided together at 123 Owen avenue in the city of Detroit; that on or about February 23, 1910, while petitioner was absent from home, the said Frank M. Knott entered the same and surreptitiously removed the child, and has ever since that time illegally and unlawfully restrained the child of his liberty and detained him from the custody of petitioner, and since the 23d of February, 1910, has not resided with petitioner as her husband at the said home. The fourth paragraph of the petition is as follows:
    “ That the said Kenneth W. Knott is now imprisoned, concealed and detained from the custody of your petitioner by the said Frank M. Knott, in the city of Detroit, or elsewhere, and that the said Kenneth W. Knott is not committed or detained by virtue of any process, judgment, decree, or execution specified in the eighth section of chapter 273 of Compiled Laws of Michigan of 1897, and that the said confinement, restraint, and detention is without legal cause or pretense.”
    The writ was issued on March 9, 1910, and on that day was served upon Frank M. Knott. He did not produce the child, but filed a return, in which he admits the marriage to petitioner; that the child, Kenneth W. Knott, is the child of petitioner and himself; and that he is about 4£ years old. He admits that himself and wife and their child resided at 123 Owen avenue, Detroit, as stated in the petition, and that on or about the 23d of February, 1910, he took the child from the home. His purpose and the reason for said action are alleged to be:
    “ To have the said child cared for; that the said petitioner had left the said child at said last-mentioned place, and was neglecting the said child, and spending nearly all her time in consultations with one George A. Fritch and his counsel, and other witnesses; that she became infatuated with the idea that it was her duty at all hazards to her reputation and home to endeavor to clear the said Fritch upon the charge of manslaughter then laid against him, and of which he has since that time been convicted; that said petitioner attempted, to get this respondent to join with her in a fraudulent endeavor by proving a false alibi for the said Fritch to assist in clearing him, and that she became very bitter towards this respondent because he refused so to do, and seemed determined to break up their said home; that this respondent, believing that the said petitioner would recover from her infatuation as above mentioned, and would return to her home, and fearing that she would take said child from said home and deprive this respondent of any right of access to him, and believing that she in her present state of mind was unfit and unsuitable to have the care and custody of said child, placed the said child with friends who would care for it until the said petitioner and this respondent should arrange their difficulties.”
    He further returned:
    “ That neither at the time of the issuing of said writ nor at any time since was the said Kenneth Knott, mentioned in the said writ of habeas corpus, in his custody or in any manner under his power or restraint, and that he did not have him in his custody or under his power or restraint at the time of the application for said writ, and that he has not had said child at any time since; and further states that he has not at any time since the issuing of the said writ, or since the issuing of any writ in relation to said matter by the said court prior to the issuing of the first above mentioned writ, transferred the custody or restraint of the said Kenneth Knott to any person. Respondent further says that he does not know at the present time the whereabouts of the said child; that, when he last knew of the whereabouts of the said child, he was in the Dominion of Canada.”
    The circuit judge before whom the writ was made returnable, upon reading the return, and on March 15th, determined that the return which was made was partial, evasive, incomplete, and insufficient, not in compliance with the statute, and he ordered the said Knott to make a more complete and explicit return. Hs refusing in open court to make any further return, and offering no excuse for such refusal, an attachment was issued against his body. Having been arrested by virtue of the attachment and brought before the court, and still refusing to obey the writ of habeas corpus, ££ and openly and wilfully refusing to make a sufficient return as required by the order of this court,” he was ordered to be committed to close custody in the county jail without being allowed the liberties thereof, there to remain until he should make a complete and sufficient return. Upon the 19th of March, 1910, while the said Knott was in custody, his counsel brought on for hearing a motion to quash the writ of habeas corpus, the writ of attachment, and the commitment. The court denied the motion.
    It is contended:
    (1) That the petition was insufficient to justify the issuance of a writ of habeas corpus.
    (2) That the return was sufficient to show that the court had no jurisdiction in the matter and therefore no further return should have been required.
    (3) That, even if the prior proceedings were regular, the commitment is void because it was altered by the attorney for the petitioner after it had been signed by the clerk of the court and delivered to the sheriff for service.
   Ostrander, J.

{after stating the facts). The order for the commitment was made March 15th, as appears by the record of the court. The commitment was issued that day. The clerk, by inadvertence, dated it March 14th, and recited therein that the order therefor was made on March 14th. This correction of the commitment was asserted as a reason for quashing the same. With respect to this the court said:

“As far as the change in the writ is concerned, the court approves of the change in conformity with the facts.”

This after counsel for both parties, in response to the inquiry of the court, admitted that the changes made conformed to the fact. The respondent was in any event in custody and the change in the commitment affected him in no way. It would have been mere matter of form to hand it to the clerk for correction.

The statute requires the person upon whom any such writ shall have been duly served, if such person shall have had the party in his power or custody or under his restraint at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, to particularly state in the return to whom, at what time, for what cause, and by what authority such transfer took place, and, further, that if the person upon whom the writ has been served shall refuse or neglect to make a full and explicit return to the writ within the time required by law, and no sufficient excuse shall be shown for such a refusal or neglect, it shall be the duty of the court before whom such writ shall have been made returnable, .upon due proof of the service thereof, forthwith to issue an attachment against such person and commit him to the jail of the county until he shall make return to the writ. See 3 Comp. Laws, §§ 9869-9873. It will be perceived that in committing the respondent the court was not exercising the inherent jurisdiction and power of courts to compel obedience to the orders of court, but was following the method which the statute affirmatively requires shall be followed to enforce obedience to the command of the writ. If, therefore, the court had jurisdiction to issue the writ, and if the return thereto, the child not being produced, was evasive and not full and explicit, the action of the court has affirmative legislative approval.

It is said that the petition fails to show that the petitioner is entitled to the custody of the child as against the respondent, and, on the other hand, shows that the respondent is legally entitled to said custody. This contention is based, in part, upon the provisions of 3 Comp. Laws, § 8701. This section is a part of chapter 234, the title of which is “Guardians and Wards,” and relates to the powers of judges of probate to appoint guardians for minors. There can be no doubt that the father is the natural guardian of his child, nor that the statute just referred to contemplates that, as against all other relatives and all other persons, the father, and, in case of his decease, then the mother, they being, respectively, competent to transact their own business and otherwise suitable, are entitled to be appointed guardians of the persons of minor children. It is also provided (3 Comp. Laws, § 8689) that in case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of 12 years. There is nothing in either provision which interferes with the right of a court of competent jurisdiction, upon investigation and upon consideration of the best interests of a minor child, to commit said' child to the custody of either the father, the mother, or of some other suitable person. But until the right to such custody has been judicially determined, and as between parents of a minor who are living together as husband and wife, there is no rule, statute or other, which permits either, as of right, to dispose of a minor child to the exclusion of the other. It is averred in the petition for the writ of habeas corpus that since the 23d day of February, 1910, these parties have not resided together as husband and wife at their home. The answer of respondent indicates a serious estrangement. If the petition is treated as asserting a separation of the parents, then it asserts also a prima facie right of the mother to the custody of this child.

It is said that the statute (section 9858) limits the right to the writ to cases where persons are restrained or imprisoned within the State, and limits the jurisdiction of the circuit court for Wayne county (section 9860) tocases of restraint within the county, and there is no allegation in the petition that the child is within the State or within the jurisdiction of the court. We do not feel called upon to enter at this time into a nice discussion of the effect of the apparent legislative limitations upon the use of the writ of habeas corpus. See In re Jackson, 15 Mich. 417; Rivers v. Mitchell, 57 Iowa, 193 (10 N. W. 626); 21 Cyc. p. 309. The parents of the child are both of them within the jurisdiction of the court, and their home and that of the child is in Wayne county. It is alleged in the petition that the child is detained, imprisoned, or concealed by the father in the city of Detroit or elsewhere. This is equivalent to the allegation that the restraining force, the control of the detention, and of the person of the child is within the jurisdiction, and it does not appear that the place of detention can be more specifically stated. What we are now required to decide is whether the allegation is sufficient for purposes of jurisdiction to issue the writ. We hold that it is sufficient.

It is said that the petition does not allege that the respondent is unfit to have the custody of the child or that he is not caring for him in a proper and reasonable manner, or that the petitioner is a fit person to have his care and custody or that she is in condition to care for him properly, and that there is no statement in the petition from which it may be inferred that the child would be benefited by the transfer from the custody of respondent to that of the petitioner; that, unless such a showing is made on the hearing, the court would be obliged to dismiss the writ because it could not properly make an order giving the child into the custody of the mother.^

The argument assumes that the child is in the custody of the father, and it must rest upon some notion of a legal right of one parent as against the other, in the absence of judicial determination, to dispose of the child — an argument already answered. It may be added that it is the husband who is here asserting such right of disposal and admits having placed the child beyond the care and control of his mother; that without a return which shows what he has done with his child, and without his production of the child, the court is in no position to make intelligently any order in the premises.

It is said that, in any event, the return is sufficient because it appears therefrom that the child is outside of the State of Michigan. It does not appear by the return that the child is outside of the State of Michigan or outside of the county of Wayne, or that it was outside of the jurisdiction when the return to the writ was made. It would not be beyond the power of the court to inquire into the fact if respondent had returned absolutely that at the time the writ issued and at the time the return was made the child was outside of the State. Such an allegation is traversable. In this case the allegations found in the return are not traversed, for the very good reason that the return itself was adjudged by the court to be an insufficient return. Clearly the law would need amendment if the jurisdiction of a court in habeas corpus proceedings depended upon the allegations in the return to the writ.

We find no error in the proceedings. We find the return incomplete, not explicit, and not such an one as the statute requires to be made. The petitioner in habeas corpus will recover of the respondent (the plaintiff here) costs of this court to be taxed as in a cause heard upon motion.

Hooker, Moore, McAlvay, and Blair, Jj., concurred.