author: Moore, J. Grant, C. J.

text:
    BRATFISCH v. TOWNSHIP OF MASON.
    1. Highways — Bridges—Defects — Absence of Railings —Instructions.
    The fact that, in an action against a township for injuries claimed to have resulted from the defective condition of a bridge, which was built over a creek at a height of 3£ feet, was from 12 to 14 feet in width, and constituted but 8 or 10 feet of a country highway, the court recognized, in one portion of his charge, the failure to provide railings for the bridge as a ground of negligence, is not reversible error, where it was followed immediately by instructions which limited the ground upon which plaintiff might recover to the existence of a certain hole in the bridge.
    2. Same — Instructions not Based-on Evidence.
    An instruction, in an action against a township for injuries resulting from a defect in a bridge, of which it was claimed the township had constructive notice, that plaintiff could not recover, if the defect had existed only two days, without showing that the township had notice and a reasonable time -thereafter to make repairs, is not erroneous as permitting the jury to find actual notice, of which there was no evidence, where the context made it apparent that the court was simply stating a rule of law.
    Error to Arenac; Sharpe, J.'
    Submitted January 5, 1899.
    Decided June 5, 1899.
    Case by Minnie Bratfisch against the township of Mason for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      M. D. Snow (Snow & Snow, of counsel), for appellant. •

      John F. O'Keefe, for appellee.
   Moore, J.

The plaintiff recovered a judgment against defendant for personal injuries received by her, occasioned by being precipitated from a highway bridge into the creek below. The assignments of error all relate to the charge of the court, or to his refusal to give certain requests proffered on the part of the defendant.

The record shows that the creek on which the bridge was constructed ran through what had been a cedar swamp. The bridge was planked with two thicknesses of plank. The lower plank were 14 feet long, and the upper, 12 feet long. The bridge constituted 8 or 10 feet of the highway. North of the bridge was a hill, the foot of which was about 10 rods away. South of the bridge was another hill. The bridge itself was about 3J feet above the water. The roadway from the base of one hill to the other was originally constructed by placing logs across the roadway, and filling upon top of them with dirt. The roadway was elevated some feet above the swamp, and was 11 or 12 feet wide. There was no railing upon the bridge itself nor upon its approaches.

It is the claim of plaintiff that upon August 7, 1897, she and her sister approached this bridge from the north, driving with a tight rein a gentle horse, hitched to a buggy or light wagon, the horse traveling upon a moderate trot; that, as the horse came upon the bridge, it took fright at a hole near the north side of the bridge, which was 6 to 10 inches wide and about 2 feet long, and suddenly shied; precipitating the vehicle and its occupants into the stream below, severely injuring the plaintiff. It is claimed that this hole in the bridge had been there since June, and was not far from the residence of the highway commissioner, who passed over the bridge frequently. It is claimed that because of the hole in the bridge, and the failure to erect a railing upon the bridge and embankment, the highway was not reasonably safe and fit for travel. It was the claim of defendant that the accident did not occur as the result of a defective bridge, but occurred because the horse got beyond the control of the driver when coming down the hill, and the wheels got out of the track, and ran off the roadway just as the conveyance got to the bridge. It is also claimed that, if there was a defect in the bridge, it had not existed long enough to create any liability. It is also claimed the horse was not safe to drive; that the hole was not the proximate cause of the accident, but that the horse probably got frightened at a bear or at children in the woods, or at a stump, and shied for that reason. Another defense interposed is that, as plaintiff passed over the bridge in the morning, and knew of its condition, she did not approach the bridge with that caution she ought. These various claims were submitted to the jury by the judge, and were passed upon by the jury. The only witnesses to the occurrence were the plaintiff and her sister.

The defendant asked the court to take the case from the jury “for the reason that plaintiff’s own negligence contributed to her injury, in that she drove the horse down the hill upon the bridge on a trot, in a reckless manner, and before she reached the bottom of the hill the horse was beyond her control, and consequently the injury resulted.” It is said in the brief that, as the horse proceeded down the hill, it increased its speed, and by the time it reached the bottom it was going at so rapid a pace that it became unmanageable and was beyond the control of the driver. This request and the argument of counsel are not based upon the record. It is true, some isolated portion of the testimony of the plaintiff, taken by itself, might be given such a construction; but the record discloses the plaintiff was a German, who understood and spoke English very imperfectly. She desired to give her testimony through an interpreter. It was thought best not to use an interpreter. It is perfectly clear from her testimony that, when she spoke of the horse as beyond her control, it related to the time when it saw the hole and suddenly shied, and did not relate to what occurred before the horse reached the bridge; while the testimony of the sister was very clear that the horse approached the bridge slowly, and that it was not until it shied that it got beyond the control of the plaintiff. In view of the testimony, it was very proper for the judge to refer the question of the negligence of the plaintiff to the jury, which he did in the following language:

.“It was the duty of the plaintiff, as a matter of law, to provide herself with a reasonably safe conveyance when going upon the public highway, and that she should have a reasonably gentle and safe horse, and the duty was upon her to exercise reasonable care and prudence in driving along this highway and over this bridge; and, if she failed or neglected to observe any of these precautions, she is, in law, guilty of what is known as ‘contributory negligence,’ and she cannot recover in this case. ‘ Contributory negligence ’ means that by her own carelessness or negligence she has contributed to her own injury. And, if she has done that, under the law she is not entitled to recover at all, as you cannot apportion the negligence.
“Now, the mere fact that the plaintiff might have seen this hole in the board when she drove over it in the forenoon of that day would not, of itself, constitute her guilty of contributory negligence in endeavoring to pass over that bridge again that evening. You have a right to consider the fact, to say whether, under the evidence, a reasonably careful and prudent person would have endeavored to cross that bridge, as she did, in the evening, knowing of the existence of the hole (if you find there was one, and she knew of its existence). And if you find that a reasonably careful and prudent person would not, having the knowledge she had, have offered to pass over that bridge, as she did on her return, then that would, amount to contributory negligence on her part. Having a knowledge (if you find she had) of the fact that there was a hole in the bridge, then it became incumbent upon her to exercise more care and caution in crossing the bridge the second time than she would have otherwise been called upon to do. In other words, if she knew there was some danger in crossing the bridge,- — if she realized that, — with the hole in it, then she would be expected to exercise care and caution proportionate to the risk she ran.”

We do not think the defendant can complain of this charge. Bouga v. Township of Weare, 109 Mich. 520; Whoram v. Township of Argentine, 112 Mich. 20; Schwingschlegl v. City of Monroe, 113 Mich. 683, and cases cited there.

It is also claimed that the court erred in submitting to the jury the question whether the township was guilty of negligence in failing to provide railings to the bridge. It is said there was no dispute about the size of the bridge and the width of the stream, and the court ought to have said, as a matter of law, that the township was under no obligations to provide railings. That portion of the charge reads as follows:

“Now, the defendant in this case denies that the bridge was in the defective condition claimed by the plaintiff. It is admitted that there were no railings on the sides of this bridge. And I leave it to you, as a matter of fact, to say whether or not — when you consider the manner in which this bridge was constructed, its height above the water course, the condition of the road, and the entire surroundings —it was the duty of the defendant township •to have constructed a railing along the sides of the bridge. That only becomes important for you to consider if you determine that the absence of the railing was in any manner the cause of the injuries which she sustained, and that these injuries were not caused by her own contributory negligence. ”

If what has just been quoted was all the judge said, it is possible it would have presented the case to the jury improperly; but he continued his charge by saying:

“ The defendant claims that the accident was not caused by reason of her horse shying at a hole in- the bridge, but that in some way she lost control of the horse on its way down the hill; and they claim that the horse or carriage had been — partly, at least — out of the regularly-traveled highway for some distance before it reached the bridge, and that the front wheel of the carriage struck the corner of the bridge, and tipped it and her over into the creek. Now, if you find that that is true, — if you find that the accident in this case was not caused in any way by the condition of the bridge, that the horse didn’t become frightened at a hole in the bridge, — then the plaintiff in this case cannot recover. * * * Now, I will call your attention more particularly to some of the questions of fact which you must determine in this case. First, perhaps, would be, as suggested by counsel, Was the bridge reasonably safe and fit for public travel ? If you find that it was, you should not discuss any other subject or question in this matter, because that would then put an end to plaintiff’s case. If that bridge was reasonably safe and fit for public’travel at the time she attempted to pass over it on her way going south that day, then the plaintiff cannot recover in this case.”

The same statement was made to the jury in other portions of the charge. It is quite apparent that the juiy must have understood that, before a verdict could be returned in favor of plaintiff, they must find the accident resulted from the defective bridge. The defendant denied that the bridge was defective. This raised a question for the jury, and not for the court. Harris v. Township of Clinton, 64 Mich. 447 (8 Am. St. Rep. 842); Shaw v. Township of Saline, 113 Mich. 342; Perkins v. Township of Delaware, Id. 377. If the jury believed the testimony offered on the part of the plaintiff, there was an abundance of testimony upon which to base the finding.

The court failed to give some of the defendant’s requests to charge. This is said to be error.. Some of the requests failed to contain all the essentials which made them proper requests to be given, and for that reason were properly refused. Others of them were fully and completely covered by the general charge. The questions involved are not new, but have recently been passed upon by this court, so that a discussion of them would be unprofitable.

Judgment is affirmed.

Montgomery, J., concurred with Moore, J.

Grant, C. J.

I concur in sustaining the judgment in this cause. An examination of the record has convinced me that the case was fairly presented to the jury, and that there is no occasion for us to reverse the case for certain expressions used by the court in his instructions, which, standing alone, might be reversible error. While the court in one part of his charge recognized the failure to erect railings as a ground of negligence, he immediately followed the instruction by saying, “If you find that the horse did not become frightened at a hole in the bridge, the plaintiff cannot recover.”

Counsel for defendant have argued very strenuously that the court permitted the jury to base their verdict upon a finding that the highway commissioner had actual knowledge of this defect, while in fact there was no evidence of any súch knowledge. This claim is based upon the following instruction:

“Now, I say to you, as a matter of law, that if the hole was made there on Thursday, only two days before the accident occurred, that the plaintiff in this case could not recover without showing that the township, through its officials, had notice of the fact that there was a hole there in the bridge, and that, after receiving such notice, they had a reasonable time (the officers) to repair the defect, and did not do it.”

The court was simply stating a rule of law, and it is evident from the connection that the jury must have so understood it; for the court immediately followed this instruction with one in regard to constructive notice, upon' which alone the jury could have based their verdict.

I do not wish to be considered as assenting to a bolding that it was negligence on the part of the township in this case not to erect railings across this bridge, which was composed of plank 14 feet long. If such liability exists in this case, it follows that there are many culverts and similar bridges in every township in this State for which a township would be liable should a traveler, under similar circumstances, drive off the end. This bridge was constructed in the usual way in which bridges of this character and culverts are constructed, and always have been. It is not, and never -has been, customary to provide railings. The roadbed was in good condition and of sufficient width. I am not prepared to hold that the statute covers such cases.

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


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    MAY v. GENESEE COUNTY SAVINGS BANK.
    1. Banks and Banking — Assignment op Stock — Evidence.
    An assignment of a certificate of bank stock, absolute in form, may be shown to be for security merely.
    3. Same — Liability op Stockholders — Erroneous Record — Pledgees.
    One with whom bank stock had been deposited as collateral notified the cashier of the bank to transfer the stock to him as pledgee. Instead of complying, the cashier issued ajiew certificate, absolute in form, and entered the transaction as an absolute transfer of 'the stock. Held, that, since it is the bank’s record of its stockholders, and not the form of its certificates, that constitutes notice to creditors, and the pledgee was in no way responsible for the erroneous entry, he could not be held liable to depositors upon an assessment as stockholder, under 3 How. Stat. § 3308e5, exempting from such liability those holding stock as collateral.

      3. Agency — Collection of Debts — Authority.
    Persons dealing with an agent for collection are chargeable with knowledge that, in the absence of special authority, he can accept nothing but money in payment of debts.
    Appeal from Ingham; Person, J.
    Submitted April 18, 1899.
    Decided June 5, 1899.
    Bill by John A. May, receiver of the Ingham County Savings Bank, against the Genesee County Savings Bank, to enforce defendant’s statutory liability as a stockholder in complainant bank. From a decree for complainant, defendant appeals.
    Reversed.
    On July 20, 1895, Mr. Arthur O. Bement borrowed $4,000 of the defendant bank, giving his promissory note, payable on demand. The note recited that certificate No. 188, for 50 shares of the capital stock of the Ingham County Savings Bank, was deposited with the defendant as collateral security for said loan. Bement’s certificate of stock was dated October 23, 1893. Upon the back of the certificate was an assignment by Bement to the defendant bank as pledgee of said 50 shares. Bement did not pay the note. On January 16, 1896, the bank sent its attorney and its vice-president, Mr. Atwood, to Lan sing, with instructions to collect other claims against E. Bement & Sons and another person. Mr. Atwood took with him the note of A. O. Bement, and while in Lansing learned that Bement & Sons were at that time indebted to the Ingham County Savings Bank in the sum of $26,-000, the most of which had been in existence for three years. Mr. Atwood, considering that it would be safer for his bank to have this 50 shares of stock transferred to it as pledgee, so informed May, the cashier of the Ingham County Savings Bank. This was agreed to. The old certificate, No. 188, was surrendered, and a new certificate, No. 258, for 50 shares, issued to the defendant bank. This certificate was absolute in form, and contained no statement that it was issued to the defendant bank as pledgee. The transfer was entered upon the books of the Ingham County Bank, and stood there in the name of the defendant bank until the Ingham County Savings Bank closed its doors, and failed; but of this entry the defendant had no notice or knowledge. The bank was at that time a bankrupt concern, and probably always had been, as it had been reorganized out of the remains of another insolvent bank, from which it received and carried as assets a large amount of worthless credits. When Mr. May handed the new certificate to Mr. Atwood, Mr. Atwood asked to have it issued to the bank as pledgee, to which May replied that it was just as well to let it stand as it was, and this was done. The certificate and the note, which Mr. Atwood had with him, were then pinned together, and returned to the defendant bank, and have since been in its possession. Mr. Bement had paid nothing upon the note. Without detailing the testimony, we find as a fact that this certificate of stock was issued to the defendant with the distinct understanding on the part of the defendant bank and the Ingham County Bank that it was to be held as collateral security to Bement’s note, and that no arrangement was made with Bement for the sale of the stock. The defendant never authorized Mr. Atwood to purchase this stock in discharge of Bement’s indebtedness, or for any other consideration, but always treated the transaction as designed for security only, and held the certificate for that purpose. The court made an order authorizing the receiver to assess the stockholders in order to pay the depositors., Under this order the assessment of the defendant is $3,250.' The court below held that-the defendant was liable as a stockholder.

      8. L. Kilbourne, for complainant.

      George B. Gold (George H. Durand, of counsel), for defendant.
   Grant, C. J.

(after stating the facts). The statute under which this liability is sought to be enforced against defendant reads as follows:

“The stockholders of every bank shall be individually liable, equally and ratably, and not one for another, for the benefit of the depositors in said bank, to the amount of their stock at the par value thereof, in addition to the said stock; but persons holding stock as executors, administrators, guardians, or trustees, and persons holding stock as collateral security, shall not be personally liable as stockholders, but the assets and funds in their hands constituting the trust shall be liable to the same extent as the testator, intestate, ward, or person interested in such trust funds would be, if living or competent to act, and the person pledging such stock shall be deemed the stockholder and liable under this section. Such liability may be enforced in a suit at law or in equity by any such bank in process of liquidation, or by any receiver or other officer succeeding to the legal rights of said bank.” Act No. 205, Pub. Acts 1887, § 46; 3 How. Stat. § 3208e5.

Decisions under the national banking act do not control the question under our statute, for the former exempts from personal liability only persons holding stock as executors, administrators, or trustees, and does not in terms exempt holders for security. Counsel cites 1 Cook, Stock, Stockh. & Corp. Law, § 247; Aultman’s Appeal, 98 Pa. St. 505; Crease v. Babcock, 10 Metc. (Mass.) 525; Holyoke Bank v. Burnham, 11 Cush. 183; Grew v. Breed, 10 Mete. (Mass.) 569; Price & Brown’s Case, 3 De Gex & S. 146; Richardson v. Abendroth, 43 Barb. 162. Some of the above cases involve statutes whose language is entirely different from our own. See Crease v. Babcock. Others hold that one who holds stock as collateral security is still liable where he has had the stock transferred in his own name, as absolute owner, on the books of the corporation; while, under the text of Mr. Cook, the liability is imposed upon a pledgee “who has had the stock transferred into his own name on the corporate books.” These authorities do not apply to this case. Even under the national banking act a creditor receiving a transfer of shares in a national bank as security for his debt is not subject to the personal liability imposed by the statute,' where the certificate is surrendered, and a new one issued in the name of the creditor as pledgee, and afterwards held in good faith as such pledgee, and as collateral security. Pauly v. Trust Co., 165 U. S. 606. The court in that case cite Anderson v. Warehouse Co., 111 U. S. 479, and say:

“This court in that case recognized it to be well settled that one who allows himself to appear on the books of a national bank as an ‘owner’ of its stock is liable to creditors as a shareholder, whether he be in fact the absolute owner or only a pledgee.”

If the defendant had authorized the absolute transfer, or knew that it had been made upon the books of the bank to it as absolute owner, and had thus held itself out to the public as such, a question would be presented which we need not discuss. The defendant did not know it, and did not hold itself out as owner. If, therefore, it can be held liable under our statute, it must be because it received a certificate absolute in form. The certificate is no notice to creditors of the bank. It is the record of stockholders kept in the bank, upon which depositors and other creditors rely. A transfer absolute upon its face may always be shown to be an assignment as collateral security. Thus a deed may be shown to be in fact a mortgage. Upon the same principle, an assignment of a certificate of bank stock, absolute in form, may be shown to be for security merely. It would be a harsh rule that an officer of a bank may, by making a false entry, or by failing to make' the correct one, impose the statutory liability, when it is known to him that the stock is held as security merely, or in some other fiduciary capacity. We do not think our statute can be thus construed. Mr. May, the cashier, knew that this stock was held in pledge to secure a loan to Mr. Bement. It was his duty, for the protection of his own bank, if for no one else, to so enter the transfer upon its books. His failure to do so cannot affect the rights of the defendant. Mr. Atwood had no authority from the defendant bank to purchase this stock and discharge the debt. An agent to collect debts, in the absence of special authority, is authorized to receive money alone. It appears conceded that one bank cannot purchase the stock of another except as it may do so to protect its own loans. The officers of the Ingham County Bank w'ere chargeable with knowledge that Mr. Atwood, as defendant’s agent, had no such authority, and they dealt with him at their peril. If Mr. Atwood had reported to May that he had such authority, his statement would not be received as evidence of it. Mr. Atwood reported to his principal that he had received this stock as security. The defendant bank ratified no other arrangement; it knew of no other. The mere fact that the certificate was absolute in form was not notice that Mr. Atwood had purchased it for the bank, and had discharged the debt. The entire transaction was the ordinary one of securing a loan from a failing debtor, and was so understood by all the parties to it.

' Decree reversed, and decree entered for the defendant, with the costs of both courts.

The other Justices concurred.


author: Long, J.

text:
    CALKINS v. BUMP.
    1. Benefit Societies — Dissolution.
    For a fraternal benefit society, organized under 1 How. Stat. §§ 3949-3955, to call in outstanding certificates, cancel the same, discharge existing indebtedness, and proceed to issue certificates not authorized by the organic act, will not work a dissolution of the original corporation, since corporations can be dissolved by their own act only by proceedings under 2 How. Stat. chap. 282.
    2. Same — Corporate Existence — Estoppel to Dent.
    Where an assignment of mortgages, executed to a benefit association duly incorporated, is made under the corporate name and seal, the assignee is estopped to claim that, at the time of the assignment, the corporation had been abandoned, and succeeded by a voluntary association.

      3. Same — Powers—Endowment Insurance.
    A mutual benefit society, organized, under 1 How. Stat. §§ 3949-8955, is not authorized to incorporate in its certificates of membership a provision for the payment of an endowment at a fixed time.
    4. Same — Trust Fund — Distribution.
    Members of a mutual benefit association contributed to a common fund, the creation of which was unauthorized by law. The fund was invested in securities, which the association assigned to a trustee for the benefit of certain members, -whose certificates had matured. Held, that a decree setting aside the assignment, and ordering the transfer of the securities to a receiver for distribution among all the members, was proper, since the fund was a trust fund, in which every member who contributed was beneficially interested pro rata to the amount of his contribution.
    . 5. Trusts and Trustees — Accounting—Depreciated Security.
    A trustee is not chargeable with the face value of a mortgage which he discharged for less than such value, where he realized on it the full value of the mortgaged property.
    6. Same — Interest.
    A trustee who, under mistake of law, pays money to the wrong party, or holds it without investment, awaiting the determination of court as to whom it should be paid, is not' chargeable with interest thereon.

    Cross-appeals from Kent; Grove, J.
    Submitted April 18, 1899.
    Decided June 5, 1899.
    Bill by Charles W. Calkins, receiver of the Supreme Assembly of the National Dotare, against Charles M. Bump, trustee, to recover possession of certain assets of the society. From the decree rendered, both parties appeal.
    Affirmed.

      Crane, Norris & Stevens, for complainant.

      Joseph W. Smith (Lyon & Pierce, of counsel), for defendant.

       The liability of trustees for compound interest is considered in an extensive note to Re Ricker, (Mont.) 29 L. R. A. 622.

   Long, J.

The complainant is the receiver of the’ Supreme Assembly of the National Dotare, being appointed by the circuit court, in chancery, of Kent county. The supreme assembly of this order was organized as a corporation some time in the year 1889, under the provisions of Act No. 104, Laws of 1869, as amended by various acts, now standing as sections 3949-3955, 1 How. Stat. It is a secret or fraternal society, lodge, or council, under the supervision of a grand or supreme body, securing members through the lodge system exclusively. By the general laws of the association, it was authorized to establish and maintain, by means of assessments on its members, a benefit fund, from which a sum not exceeding $1,300 should be paid to any member of the order who had contributed to said benefit fund for si-x consecutive years, upon the surrender of the benefit certificate, etc. A guaranty reserve fund was provided for, and this fund was to be invested in bonds and mortgages.

It is contended by complainant that the corporation was not authorized to engage in the business of what is commonly known as “endowment insurance,” or the payment of a specified sum of money after the arrival of a certain stated time, and was not authorized to issue policies or certificates, and was not authorized to make contracts with its members or others, whereby it engaged to pay to its members or others any specified sum at the arrival of a certain and fixed period, as such policies, certificates, and contracts were beyond the power of the corporation to make, but that, after the organization was formed, it issued to a large number of persons what were tei’med “benefit certificates,” whereby, among other things, it undertook to engage to pay a specified sum at the expiration of six years from the date of the respective certificates, or, should the member, after 90 days of continuous membership, die before the expiration of six years, then the organization agreed to pay to the member’s wife or other dependent relative a sum not exceeding the amount stated in the certificate, in lieu of the payment of the specified sum at the expiration of the six years; said certificates being conditioned upon the payment by the holder of certain assessments, dues, and demands.

It is shown that the supreme assembly is the owner of several thousand dollars’ worth of notes, mortgages, and other securities payable to it, and that on or about January 11, 1897, certain persons, claiming to be the officers of the supreme assembly, executed and delivered to the defendant assignments, without any consideration whatever, of a large number of such. notes and mortgages; that he now claims to hold "them as trustee for various persons who are the holders of benefit certificates, and who claim the right to be paid out of the proceeds of these notes and mortgages the full amount of their certificates, as though they were valid obligations. It is contended that, at’ the time these assignments of mortgages and notes were made to the defendant, the corporation was hopelessly insolvent. It is shown that there are upwards of 1,000 members of the organization, who have paid into the treasury large sums of money on account of assessments upon benefit certificates held by them, and it is contended that they are entitled to share in the distribution of the fund pro rata with all other creditors. The complainant claims that he is now entitled to the possession of these notes and mortgages for the purpose of such distribution.

The complainant’s claims are largely admitted by the defendant. He admits that he has these notes and mortgages, but denies that the action of the officers of the organization in assigning and transferring them to him was unlawful, and claims that the officers were fully authorized to use'the reserve fund of said order, of which these notes and mortgages were a part, to pay claims that had fully matured, or to use said reserve fund in such manner as to secure the stability of the order; that they were warranted in doing so in the present case, as these claims were due; and that the existence of the organization was threatened, as suits were to be brought unless settlements were made with the cestuis que trustent. Defendant denies that the order was insolvent at the time these assignments were made. In reference to the Louise Mead note and mortgage, which is claimed by the complainant, the defendant claims that it was settled by him for the sum of $2,500, and the greater part of the proceeds distributed pro rata among the cestuis que trustent of the defendant before the injunction was served; also that a quitclaim deed was taken from Eliza Mitchell for her equity, by the direction of the coui’t, at an outlay of $60; that the defendant has not been able to sell the property for $400, and that a tax claim has been acquired against the property represented, for which the defendant must pay $365; and that the remainder of the notes and mortgages are not worth their face value.

In a supplemental answer by the defendant, it is claimed that the supreme assembly mentioned in the bill is not the same organization from which he obtained the securities; that in the early part of 1890 the officers of the supreme assembly, of which the complainant was appointed receiver, called in all the benefit certificates issued by it, canceled the same, discharged all the indebtedness, and thereupon a voluntary association was organized for the protection and benefit of its members, under the title of “Supreme Assembly of the National Dotare;” that the securities claimed by complainant were obtained from this new organization.

The court below, on March 1, 1898, entered a decree finding that the complainant was entitled to recover from the defendant the notes and mortgages, and setting aside the assignments thereof; that the corporation was insolvent, and the notes and mortgages were a part of the trust fund held by the corporation for the benefit of all its members and certificate holders. The defendant appeals from this part of the decree. The court also, in the same decree, directed that an accounting should be had, and referred the matter to a circuit court commissioner for that purpose. The court fixed the basis of such accounting as follows:

‘ ‘ The defendant to be charged with the face value of all of said notes and mortgages, and with all interest and other sums, not principal, collected by him upon any and all of said notes and mortgages; defendant to be credited with the face value of all such mortgages as he shall turn over to the complainant pursuant to this decree, and with the proceeds of the Eliza Mitchell mortgage; and defendant to be further credited with all sums paid by him pursuant to the orders of this court, and with all sums paid by him for taxes, insurance premiums on the mortgaged premises, or other sums paid to protect the securities from paramount liens; and, if the defendant shall claim other credits on said account, said commissioner shall report the same, with the testimony and his opinion thereon,” etc.
The commissioner reported that, as to the Mitchell mortgage, the defendant should be charged with $400 received, and credited by the following amounts:
Paid for equity of redemption........................... $60 00
“ “ insuranc,e______________________________________ 8 75
“ “ taxes..........................•_............... 47 35
“ “ tax history..................................... 50
“ “ services on transfer-------------------------10 00
$126 60
—Leaving a balance with which defendant is charged of $273.40.
As to the Louise Mead mortgage, the commissioner found:
That the defendant should be charged with the amount realized of......-................................... $2,500 00
And that he should be credited thereon as follows:
For recording assignments of mortgages______ $7 15
For attorney’s retainer to advise defendant--- 50 00
For attorney’s time, etc., at Alpena__________ 32 00
For attorney’s fees in Bump v. Bloecker______ 53 80
For attorney’s fees in Eddy v. Bump__________ 24 00
For attorney’s fees in Thielman v. Bump_____ 22 00
For typewriting............................. 3 00
For stamps and stationery____.............. 1 85
For publishing foreclosure notice_____________ 24 50
■ For sheriff and register fee in Bump v. Thielman....................................... 2 45
- 220 75
Leaving balance charged against defendant on that mortgage of...................................$2,279 25
And making a total charge against defendant on these two mortgages of.................................$2,552 65

The court confirmed this report, so far as it charged the defendant with this. $2,552.65, but held the report erroneous in not charging him with the sum of $8,900 on the following account:

For face of Burley mortgage............................. $1,600
“ “ “ Gillen “ 500
“ “ “ Godhardt 300
“ “ “ Bloecker “ 3,000
“ “ “ Mather “ 1,500
“ “ “ Maczkowski “ 300
" “ " Eddy “ 1,300
“ “ “ TifEt “ 500

Said mortgages were ordered to be assigned by defendant to the complainant within 10 days by the decree theretofore entered in the case, and in which defendant had wholly made default. The court thereupon decreed that defendant owed the complainant, on account of the before-mentioned matters, the sum of $11,452.65, but that he should be allowed the following deductions:

To Robert L. King, circuit court commissioner, for taking testimony on part of defendant in accounting........... $11 50
To Harry A. Silsbee for taking testimony.................. 4 85
To Joseph W. Smith for attorney’s services in accounting.. 104 80 To Smith and defendant in attending upon the accounting 12 50 To Walker & Fitzgerald for legal services and expenses as
counsel for defendant---------------------------------- 211 35
To defendant for his services as trustee................... 100 00
For items upon the bill of Joseph W. Smith filed before the commissioner, attached to the deposition of Bump...... 227 18
Total amount of these items__________________________$672 18

All other exceptions to the commissioner’s report were overruled, and it was decreed that the defendant was owing the complainant the sum of $10,780.47, which was decreed to be paid as follows : $8,900 by assigning the mortgages before mentioned, with the exception of the Mead and Mitchell mortgages, and the balance of $1,880.47 to he paid in cash; and, if default was made in the payment, that complainant have execution therefor, with interest thereon from the date of the report of the commissioner, to wit, August 2, 1898, at 6 percent. From this accounting both parties appeal.

We will first deal with the main questions in the case; that is, those relating to the original decree. We think the court was not in error in holding that the two organ-' izations were identical. The Supreme Assembly of the National Dotare was duly incorporated. There has never been a dissolution of the original corporation. It could not be dissolved by its own act, except by proceedings taken under chapter 282, 2 How. Stat. Town v. Bank of River Raisin, 2 Doug. 530. No such proceedings were taken.

But counsel for defendant contend that he is not seeking to show a dissolution, but an abandonment, and that he never had any dealings with the old corporation, and never received any securities from it. This position cannot be sustained. The mortgages were all executed to the “Supreme Assembly of the National Dotare, a corporation organized under the laws of the State of Michigan, mortgagee,” and the assignments to the defendant wbre all executed under its corporate seal, by virtue of a resolution of, the governing board of the. corporation. The defendant cannot now be heard to say that the old corporation had been abandoned, and that he was dealing with a voluntary association which succeeded to it. Having dealt with the Supreme Assembly of the National Dotare as a corporation, and claiming title through it as a corporation, he cannot be heard to deny its corporate existence. Swartwout v. Railroad Co., 24 Mich. 389; Merchants’, etc., Bank v. Stone, 38 Mich. 779; Estey Manfg. Co. v. Runnels, 55 Mich. 130.

We are also of the opinion that the court was not in error in holding that the endowment provisions of the certificates of membership issued by the corporation were void. This act was before this court in Walker v. Commissioner of Insurance, 103 Mich. 344, and there received the construction for which complainant now contends. In that case, the fraternal society was called the “American Monitor,” and its constitution provided for endowments payable at the end of 100 months. It was held that this provision was in excess of the power granted by the act, and that it could not do any business except such as was permitted by the act. The-same construction has been placed upon a similar statute in Illinois. Chicago, etc., Indemnity Ass’n v. Hunt, 127 Ill. 257 (2 L. R. A. 549); Rockhold v. Benevolent Society, 129 Ill. 440.

It appears, however, that these parties have put money into a common fund. The purposes for which it was paid in are found to be illegal, and equity requires that there should be an adjustment among all the parties on a fair accounting. The court below held that the parties holding these matured certificates had no legal right to be paid in preference to other certificate holders and members. Some members have paid in more than others. The receiver was appointed to make the proper and equitable distribution. In order to do this, he must first have possession of the securities which are now in the hands of the defendant, when a proper distribution can be made'. The fund became a trust fund, in which every member who contributed thereto became beneficially interested ■pro rata the amount of his contribution. Burton v. Schildbach, 45 Mich. 504; Stamm v. Benefit Ass’n, 65 Mich. 317, and cases there cited; In re Youths’ Temple of Honor, 73 Minn. 319. The original decree will therefore be affirmed.

As to the accounting: The complainant contends that the defendant should have been charged with the actual value of the Louise Mead mortgage. It appears that the defendant discharged that mortgage for $2,500, and it is claimed that the proofs show that it was worth much more than that. Some of the witnesses testified that it was worth $5,000. It appears that the mortgage was worth no more than could have been realized out of the property. From a careful reading of the testimony on this subject, we are satisfied that the amount fixed by the court was all that the mortgage was worth, taking into consideration the situation and surroundings of the property.

It is next claimed by complainant that the defendant should have been charged with interest on the amount realized by him from the sale of mortgages. The only principle upon which trustees are chargeable with interest on trust funds is that they have received interest, have used the money themselves, or that they have been negligent either in not paying over the money or in not loaning or investing it so as to render it productive. The defendant trustee in the present case received no interest on the fund. After receiving this fund from the sale of mortgages, he paid a portion of it over to his cestuis que trustent. While we have found that these payments were unauthorized and illegal, as the entire membership was entitled to share in them, yet there is nothing to show but that defendant acted in good faith and under a mistake of law. He also kept the money without making any use of it until the court should determine to whom it should be paid. He was acting as trustee for the members whose certificates had matured, and his duty towards them was to protect their interest in the fund until the final determination of the rights of the parties. The court below did charge him with interest after the date of the report of the commissioner in the accounting. The rule seems to be that where the trustee, by mistake of law, pays the wrong person, and is compelled to pay again to the proper person, the court will not impose interest. Saltmarsh v. Barrett, 31 Beav. 349.

We are also of the opinion that, under the circumstances here shown, the court was not in error in allowing the trustee the sums he did for his services, costs, and expenses..

There are no other questions in the case, in our opinion, calling for discussion. We think the court below arrived at the correct conclusion on the whole matter of the accounting. The decree will be affirmed, with costs to the complainant.

The other Justices concurred.


text:
    WILDER v. SANCHE.
    1. Trial — Instructions—Modification of Requests.
    A judgment for plaintiff will not be reversed because the court added to one of defendant’s requests to charge some words of explanation which were not in themselves clear, if from the whole charge it is apparent that the jury must have correctly understood the issues.
    2. Same — Witnesses.
    There is no error in instructing the jury that they should find for plaintiff'or defendant, according to their belief in the witnesses, “taking them in sides,” if the issues are squarely raised, and the contention of each party finds support only in the testimony of his own witnesses. Henderson v. Eaihoay Co., 116 Mich. 368, distinguished.
    Error to Wayne; Donovan, J.
    Submitted April 18, 1899.
    Decided June 5, 1899.

      Assumpsit by Marshall P. Wilder against Hercules Sanche upon a promissory note. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Flowers & Moloney, for appellant.

      Ed. E. Kane, for appellee.
   Long, J.

This action was brought upon a promissory note of $1,000 given by the defendant to the plaintiff, and due one year after date, with interest at 6 per cent., payable semi-annually. Defendant pleaded the general issue, and gave notice thereunder that be would show that the consideration for the note had failed, and that it was without consideration, for the reason that on or about October 25, 1892, he made a contract with the plaintiff and his father by which they agreed to assign to him 220 shares of the capital stock of the Dr. Hercules Sanche Company, to be held by him until he should acquire ail of the shares of the other shareholders, and, in the event of his being unable to effect this purchase, said shares were to be returned to said plaintiff and his father, and, if defendant should acquire all the shares of the other shareholders, the said plaintiff and bis father were to have the option of having said stock returned to them, or demanding payment of $1,000, and interest at 6 per cent, per annum from the date of said agreement; that at the time said agreement was made, and as a part of it, defendant gave to plaintiff and his father the note in suit, and it was not intended as an absolute promise to pay; that the defendant did not procure the stock of the other stockholders in said company, and had elected and offered to return said shares to plaintiff and his father, and had demanded the return of said note, and plaintiff and his father had refused to accept the stock and return the note. With this plea, the defendant filed his affidavit that he did not make and deliver the writing in the declaration mentioned in the manner and form as the plaintiff alleges.

It appears that the company referred to in the notice was organized under the laws of New Jersey in December, 1891, for the purpose of controlling certain patents and mechanical appliances invented by defendant. Plaintiff and his father received 220 shares of the capital stock. Defendant contends that some time in September, 1892, the directoi’s, during his absence, wrongfully voted themselves large sums of money; that, this fact coming to his attention, he arranged with certain directors to join with him to undo this action, and in some way rid themselves of the directors who had participated in that act; that action was thereafter taken by which the said resolution of the board was rescinded; that several consultations were had with parties friendly to the defendant and his interests, and that it was finally agreed that all those parties, including plaintiff and his father, should assign their stock to defendant, for the purpose of centralizing all the stock held by the friendly stockholders; that, at the time the note was given, another agreement was made, which was signed by plaintiff, or by his father for him, under which it was agreed to return to defendant the note in suit at any time before the note was paid, if the defendant should be unsuccessful in securing all the stock of the stockholders; that he did not obtain all the stock, and offered to return plaintiff’s to him, and demanded his note, which was refused; that this agreement was lost, and could not be produced on the trial.

On the other hand, the plaintiff contended that he made an absolute sale of this stock to defendant, and took his note therefor; that no such agreement as claimed by defendant was ever made, but that the only agreement made was put in writing and signed by defendant; that plaintiff held it, and produced it on the trial, and it is as follows:

“New York, November 1, 1892.
“I hereby agree to return to Mr. Marshall P. Wilder and Dr. Louis De Y. Wilder, his father, the stock which they have sold to me in the Dr. Hercules Sanche Company at exactly the same price which I gave them, and at any time before my note given therefor is fully paid up, but not thereafter.
“Hercules Sanche.”
The court below, at the close of his charge, stated to the jury:
“ Now, gentlemen, * * * this case all results down to two questions, and they are just as simple as A, B, C, * * * • Was the note given for stock, out and out, without any condition ? If it was, the verdict is for the plaintiff, $1,302.50. Second. Was the note given with conditions that it might be given back, and the stock taken back, on the happening of conditions ? If so, the verdict should be for the defendant, no cause of action.”

The plaintiff had a verdict for $1,302.50. Defendant brings error.

The assignments of error all relate to the charge of the court, and the requests to charge.

In his second request, the defendant asked the court to charge:

“ If you find from the evidence in this case that at the time the note sued upon was given, and at the time Exhibit 2 [the agreement signed by defendant, and above set out] was signed, another paper was signed by plaintiff, by and under which the plaintiff, orchis father for him, agreed to accept from the defendant the return of the stock for which the note was given at any time before the note was paid, and you further find that the defendant offered to return the stock to the plaintiff for the note, then your verdict should be for the defendant.”

It is contended that, while the court recognized in his charge the right of defendant to have this request given, yet its entire sense and meaning were destroyed by the remarks of the court in giving it.. The request was given almost word for word as drawn, but the court added:

“Now, gentlemen, that request is so long it had better be explained. What does it mean, in two lines ? It means if there was a lost paper that made this a conditional note, and they took back and he got his note, you would find for the defendant, because it made a condition of it. That is what that long request means. But they put it in a good many lines, — legally, but too long.”

While the explanation of thé request by the court was not very, clear, yet we cannot believe the jury were misled by it, when we consider the other parts of the charge,— especially the concluding portion of it, which we have quoted.

The defendant, by his fifth request, asked the court to charge:

“The affidavit made by Hercules Sanche denying the execution of the note in suit in manner and form as declared upon was a proper affidavit to be filed in this case, under the defendant’s theory of the case; for, if the papers claimed to have been signed by the defendant were signed, then the note set up in the declaration in this cause was not in manner and form the agreement made by and between the parties, and the defendant could not compel the plaintiff to prove the execution of the different papers unless such an affidavit had been filed.”

This request was given in full, but counsel contend that the effect of it was destroyed by the remarks of the court following it; that the purpose of the request was to explain to the jury the reason for filing the affidavit, as counsel for plaintiff on the trial sought to impress upon the jury that the defendant had committed perjury in making it. There is nothing in the remarks of the court which could in any manner take away the effect of the request as given. The court said that:

“They had a right to make this affidavit, if they believed in the lost paper and the other conditions. In order to bring in the defense, they had to make some affidavit substantially as stated.”

But, aside from this, when the matter of the affidavit was spoken of on the trial, the court said to counsel:

“The lawyers make up their papers in the case, and then they ask their clients to sign them, and, if they are any way obedient, they will sign them; and, if there is any blunder about it, it is the lawyer who is to blame, and not the parties.”

The defendant had nothing to complain of in these remarks.

The court, in one part of his charge, stated to the jury:

“If you believe the plaintiff’s side of the case and the plaintiff’s witnesses, taking them in sides now, then the plaintiff has made out a case. If you believe the defend-' ant’s side of the case, taking it in sides by the witnesses, then the defendant has make out a case.”

It is claimed by counsel that this was error, and the case should be reversed for that part of the charge. In support of this proposition, counsel cite Henderson v. Railway Co., 116 Mich. 368. While the language used by the court in that case was similar to the above, and was held to be damaging to the defendant, the reason it was so held was that, in any view of the case, many of the facts testified to by the plaintiff’s witnesses might be true, and yet no liability exist. That cannot be said in the present case. Here the issue was squarely made. The defendant testified to a certain contract being made, and signed by plaintiff; that it was lost, but, if produced, would show that the plaintiff agreed to surrender the note when the stock was tendered back. The plaintiff testified that no such agreement was ever made, and in the final portion of the charge the court very plainly stated this issue. We think it cannot be said, under these circumstances, that the defendant’s case was damaged by this charge.

There are some other portions of the charge of which complaint is made, but a reading of the whole charge, in view of the matters in controversy, convinces us that no error was committed.

The judgment will be affirmed.

The other Justices concurred.


text:
    JACOBSON v. ISMOND.
    Appeal — Equity—Reformation of Instruments — Fraud.
    A decree reforming a mortgage so as to cover land claimed by-complainant to have been omitted through defendant’s fraud, being sustained by the evidence, was affirmed.
    Appeal from Calhoun; Smith, J.
    Submitted. April 18, 1899.
    Decided June 5, 1899.
    Bill by Esther Jacobson against Oscar C. Ismond to reform a mortgage. From a decree 'for complainant, defendant appeals.
    Affirmed.

      Frank W. Clapp, for complainant.

      Fred M. Wadleigh, for defendant.
   Long, J.

This bill was filed to correct and reform a mortgage, given by defendant to complainant, so that it will embrace and cover lot 83 of Frisbie’s Third addition to the city of Battle Creek, and render it a security for the payment of $1,000. The mortgage in question was dated February 7, 1896, due one year from date, with interest at 7 per cent., payable annually. There was no personal liability on the mortgage so executed, and the court below decreed that the principal and interest be paid within 30 days, or that defendant execute and deliver to the complainant a deed of the premises within that time. Defendant appeals.

It is claimed by complainant that she was engaged in the mercantile business at Reed City in February, 1896; that she wished to go out of business, and advertised the fact; that one Mr. Warren answered the advertisement, saying that he had Battle Creek real estate belonging to Oscar C. Ismond, and would exchange it for the merchandise; that, after some correspondence, the parties met at Battle Creek; that complainant and her son were shown two pieces of property, one known as the ‘ ‘Jefferson-Street House and Lot,” and the other as the “River-Street Property ; ” that it was finally agreed that complainant would take these two pieces of property and some vacant lots for $8,500, and that the difference between the value of these properties and the value of the merchandise, when inventoried, should be secured by defendant by chattel mortgage on the stock; that, after the negotiations had continued for some time, it was suggested that such a mortgage on the merchandise would not be desirable, as it would amount to about $2,000; that the complainant and her son were then shown various other properties in Battle Creek claimed to be owned by the defendant, among which was a lot with a new house on it, mostly completed; that further negotiations were deferred until after the parties met at Reed City, and the mortgage taken, when the agent of defendant presented two mortgages, for 81,000 each. One covered what was called the “Gull Lake Property,” and the other property in Battle Creek. These mortgages were tendered to secure the difference between the value of the property and the value of the goods as inventoried, which amounted to $3,000. The complainant claims that neither she nor her son knew anything about the description of the Battle Creek property, as it was described by metes and bounds in the mortgage; that they stated to the agent of 'defendant that they knew nothing of the description, and did not know whether it covered lot 83 of Frisbie’s Third addition, which had been shown them at Battle Creek, when the agent said: “The house and lot is in, and everything is all right.” This testimony is corroborated by Mr. Charles A. Withey and the son of complainant. The exchange was then made, in each of the mortgages personal liability was waived, and a clause inserted that, in the event that defendant elected not to pay the money, he was to deed the property to complainant at the maturity of the mortgages, so that she might be saved the expense of foreclosure. Thereafter • the defendant sent forward a deed to the properties described in the mortgages. It is claimed that complainant soon after sent her son to Battle Creek to take possession of the properties, and then for the first time ascertained that the house and lot in question were not included in the mortgage to the Battle Creek property, nor in the deed sent to her, but the mortgage and deed covered other and worthless property. The claim on the part of the defendant is that no such property as claimed was shown complainant, nor was it contemplated to be conveyed by this mortgage and deed.

The question involved is one of fact. We have read carefully the whole testimony in the case, and are satisfied that the claim of complainant is fully sustained by the evidence and the circumstances ^surrounding the case.

The decree entered by the court below must be affirmed, with costs.

The other Justices concurred.


text:
    ISMOND v. SCOUGALE.
    1. Trover — Pleading—Notice of Defense — Fraudulent Conveyances.
    In trover by one claiming, as purchaser, goods seized by defendant under attachment, notice with the plea that the goods attached belonged to the person claimed to have sold them is sufficient to apprise plaintiff that the bonafides of the sale is questioned, and to admit evidence that it was fraudulent.
    3. Same — Consideration—Evidence.
    In an action of trover it appeared that one A. purchased a stock of goods, worth from 51,500 to 51,700, upon credit to an amount exceeding 51,300. After a claimed exchange of the goods for real estate owned by plaintiff, defendant attached them as the property of A., maintaining that the alleged exchange was a sham to defraud creditors. Plaintiff claimed that a loan to A. of 575, represented by a note given some time previous to the exchange, figured as a part of the consideration. He admitted that the note remained among his papers, that a portion of the land was worth less than 5300, and that the residue was mortgaged for 5350. Held, that evidence that the mortgaged land was worth less than the amount of the incumbrance was admissible, in connection with the other evidence, as bearing on the existence of a fraudulent intent.
    Error to Shiawassee; Smith, J.
    Submitted April 18, 1899.
    Decided June 5, 1899.
    Trover by Oscar O. Ismond against Monroe L. Scougale, sheriff of Shiawassee county. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Charles M. Hamper (Van Banst Pond and Charles A. Withey, of counsel), for appellant.

      Watson & C hapman, for appellee.
   Long, J.

This is an action on the case, brought against the defendant, who is sheriff of Shiawassee county, to recover the value of certain goods taken on a writ of attachment in favor of the Rodgers Shoe Company against Willis L. Ash and Alice Boyd, partners under the firm name of Ash & Boyd. It appears that Ash & Boyd were carrying on a retail shoe business at Durand, in that county, in Maj'-, 1898. Their stock was worth from $1,500 to $1,700. They were largely indebted to the Rodgers Shoe Company, of Toledo, Ohio. The credit man of the company (one Robert W. Barton) visited Ash & Boyd on May 12, 1898, to get security for the amount of the indebtedness to his firm; this indebtedness growing out of sales of shoes to the firm. Instead of giving security, they gave their note for $1,047.58, and made a statement in writing to him of the assets and liabilities, showing-their assets at $2,200, and liabilities as follows:

To Rodgers Shoe Company___________________________ $1,047 58
N. W. G-okey & Son.............................. 189 00
“ Childs & Lee.................................... 100 25
$1,336 83

They also on the same day wrote the Rodgers Shoe Company, at Toledo, that there would be no incumbrance placed on the stock while they were indebted to the company; that the prospects were good for a nice spring trade; and saying they would pay $50 per week on the note. The note was payable on demand. On the next day after the giving of this note, Ash & Boyd claimed to have sold out to the plaintiff, who went into possession of the store and goods. On June 11th following, the attachment was levied in behalf of the Rodgers Shoe Company. On going into possession of the goods on May 14th, plaintiff kept Ash with him in the store, and immediately issued the following advertisement of sale of the stock :

“Klondike in Durand. Closing-Out Sale of Boots and Shoes. Now is your chance. The Ash & Boyd stock of boots and shoes will be sold for what they will bring,” etc.

The claim of the defense is that the pretended sale to the plaintiff by Ash & Boyd was a mere sham and subterfuge to cheat and defraud the Rodgers Shoe Company out of its claim. The plaintiff testified that he received the goods from Ash & Boyd in exchange for 80 acres of land in Benzie county, a lot in Battle Creek, and a note or obligation he held against Mr. Ash of about $75. On his cross-examination he was asked in reference to this Battle Creek lot, and stated that it was not worth $200; that the land in Benzie county was mortgaged for $236, with accumulated interest of $20. Being asked about the Ash obligation, he said he loaned money some time before to Ash to about $75, and took his note; that the note was probably with his papers in Battle Creek. Mr. Nathan Dedgen was called as a witness for the defendant, and testified that he knew the land in question in Benzie county; that a fair valuation of it would be from 50 to 75 cents per acre; that it was 80 acres, and was not. worth the mortgage on it; and that plaintiff got it without ever seeing it. Defendant also produced as a witness one William Habbler, and asked him if he knew the value of the Benzie county land. This was objected to, and the court asked :

“How is it important at all as to how good a bargain Ismond [the plaintiff] got out of these parties for the store, unless there was a combination to perpetrate a fraud upon the creditors of your shoe company ? * * *
‘‘ Counsel: Suppose this land was worth only 50 cents an acre, and that was all he paid for these boots and shoes; * * * I would like to ask if that is not evidence of fraud.
The Court: If Ash & Boyd were bringing suit against Ismond, it might be evidence of fraud, but it is not evidence of fraud for the purpose of defrauding the shoe company, because, if he bought it for nothing of these parties, it did not concern the shoe company. They had no lien upon the property.
Counsel: We cannot put in all the evidence at once.
The Court: There ought to be some evidence tending to show some purpose in defrauding the parties who were operating under the attachment. The objection is good, as being incompetent and immaterial.”

Other and like testimony was excluded by the court. In fact, all through the trial the court refused to receive evidence which was offered tending to show that the transaction between the plaintiff and Ash & Boyd was a sham, and yet the court stated that there was nothing offered tending to show that any fraud was attempted to be perpetrated. The only question submitted to the jury was as to the value of the stock taken from the plaintiff.

The court was in error in this. The notice under the plea of the general issue was that the stock attached was the property of Ash & Boyd. This was sufficient notice of the defendant’s. claim. It was stated repeatedly by counsel for defendant that they claimed that the transaction between the plaintiff and Ash & Boyd was a fraud upon the creditors of Ash & Boyd. The Rodgers Shoe Company was an attaching creditor,.and had the right to contest the bona fides of this claimed sale to the plaintiff. There was some testimony received in the case which had a tendency to show this, and other testimony was offered which the court improperly ruled out. Great latitude should have been allowed in admitting testimony which had a tendency to show the true state of facts in reference to the transaction. It was of great importance to show just how the plaintiff became possessed of this stock of goods. If this land in Benzie county was worth no more than the mortgage upon it, the jury had the right to consider that as some evidence of fraud. The fact that the note, which was a part of the consideration for the sale, was still in plaintiff’s possession at Battle Creek, had some tendency to show fraud. At least, these were questions for the consideration of the jury.

The jury returned a verdict in favor of plaintiff. The judgment must be reversed, and a new trial granted.

The other Justices concurred.


author: Hooker, J.

text:
    ATTORNEY GENERAL v. BOARDS OF SUPERVISORS OF KALKASKA AND ANTRIM COUNTIES.
    Mandamus — Boards of Supervisors — Rebuilding Bridge.

      Mandamus will not issue, on relation of the attorney general, to compel adjoining counties to rebuild, upon its former site, a bridge over a navigable stream between them, where the legislature, by special act, has authorized arebuilding'upon a different site, concerning which the boards of supervisors of the respective counties are unable to agree.

      Mandamus by Horace M. Oren, attorney general, to compel the boards of supervisors of Kalkaska and Antrim counties to rebuild a bridge.
    Submitted April 18, 1899.
    Writ denied June 5, 1899.

      William D. Totten (O. M. Phelps, of counsel), for relator.

      J. L. Boyd, Prosecuting Attorney, for respondent Kalkaska county board.

      Andrew B. Dougherty (Fitch R. Williams, of counsel), for respondent Antrim county board.
   Hooker, J.

We are asked to issue a writ of mandamus to compel two adjoining counties to rebuild a bridge across a navigable stream which is the boundary line between them. This is upon the grounds — First, that it is a common-law duty; and, second, that the counties are under contract obligations with the State to do so. Whatever we may think of these two grounds as furnishing a sufficient reason for such relief as is here asked, in ordinary cases, we are of the opinion that the legislature has authorized the building of a bridge, to take the place of the former one, upon a different site, thereby authorizing the counties to allow the highway in question to remain without a bridge at the former site. See Act No. 458, Local Acts 1897. Since this act was passed, the boards of supervisors have been unable to agree. The Antrim county board has at all times been willing to aid in building a bridge, but upon a different site. The Kalkaska board, by its answer, admits its duty, and expresses its willingness, to join in the construction of a bridge, but only upon the old site. The relator, moving at the instance of some of the inhabitants of the vicinity, seeks to compel the erection of the bridge upon the former site. There is no more reason for our compelling Antrim county to join in building a bridge at the old place than there would be to require Kalkaska to consent to the new. It is not for us to fix a site for this bridge. The power is expressly conferred upon the two boards, and not upon us. We have no doubt that, when the necessity for a bridge becomes sufficiently urgent, the inhabitants of the vicinity will find a way to induce the boards of supervisors to take action in the premises.

The writ is denied.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE, for use of HIGLEY, v. LAIDLAW.
    Statutory Bonds — Wrong Obligee — Action—By Whom Brought.
    Where one having a contract from a city to do paving gives a bond, as required by 2 How. Stat. § 84116, to protect parties furnishing labor and material for the improvement, which, however, instead of running to the people, as provided by said section, runs to the city, action thereon must be in the name of the city; section 8411c, providing that an action maybe , brought by those entitled in the name of the people, applying only to an action on such bond as is mentioned in the preceding section.

      Error to Wayne; Frazer, J.
    Submitted April 19, 1899.
    Decided June 5, 1899.

      Assumpsit by the people of the State of Michigan, for the use and benefit of Joseph J. Higley and others, against Thomas J. Laidlaw and others, upon a statutory bond. From a judgment for plaintiffs, defendants bring error.
    Reversed.

      William Stacey, for appellants.

      Warner, Codd & Warner, for appellees.

       Plaintifis applied for a rehearing, asking leave to amend all pleadings and proceedings by substituting as plaintiff the city of Battle Greek, for use, etc., and that, upon such amendment and substitution, the judgment appealed from be affirmed. The application was denied-July 11, 1899.

   Montgomery, J.

This suit was brought for the use of Higley and others on a bond given to the city of Battle Creek, Mich., by the defendants herein. Laidlaw Bros, had a contract from the city of Battle Creek to do certain paving, and the bond sued on was given by them to the said city of Battle Creek ostensibly under section 84116, % How. Stat., which requires a bond in such cases to protect parties furnishing labor and material for public works, but, instead of running to the people of the State of Michigan, it runs to the city of Battle Creek. The other defendants are the sureties on the said bond.* On the trial of the case, the defendants objected to the introduction of the bond in evidence, on the ground that it was given to the city of Battle Creek, and was therefore not admissible in evidence in a suit brought in the name of the people of the State of Michigan.

We held in Board of Education of Detroit v. Grant, 107 Mich. 151, that a bond with the conditions named in % How. Stat. § 84116, was valid, although the obligee named was in that case the board of education, and not the people of the State of Michigan. In that case, however, the action was brought in the name of the obligee. This practice accords with the requirements of the common law. 3 Enc. Pl. & Prac. 639; Town of La Grange v. Chapman, 11 Mich. 499; County of Bay v. Brock, 44 Mich. 45; Stephenson v. Manufacturing Co., 28 C. C. A. 292, 84 Fed. 114. It is suggested that this case is taken out of the rule declared in Town of La Grange v. Chapman, for the reason that the statute (section 8411c) provides that an action may be brought by those entitled, in the name of the people of this State. The action is authorized on such bond as is mentioned in the preceding section. This is not such a bond, and, although enforceable under the rule in Board of Education of Detroit v. Grant, we think it must be enforced by an action in the name of the obligee.

„ Judgment reversed, and a new trial ordered.

The other Justices concurred.


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    MARKILLIE v. ALLEN.
    Equity — Subrogation—Revival oe Lien — Homestead.
    A wife who had fraudulently obtained from her husband, who was incompetent, a conveyance of certain lands, deeded them to a third person, with an understanding that they should be reconveyed at the husband’s death. Subsequently, upon a bill filed by the husband’s heirs, both conveyances were set aside. The premises, when restored, were incumbered by a mortgage, the proceeds of which had gone to discharge a mortgage for a like amount upon the grantee’s homestead. Held, that the lien upon the homestead should be revived, and the heirs subrogated to the rights of the original mortgagee.
    Appeal from Van Burén; Buck, J.
    Submitted April 20, 1899.
    Decided June 5, 1899.

      Bill by George W. Markillie and others against Charles Allen, Eliza Allen, and Wealthy Markillie, to revive a mortgage. From a decree for complainants, defendants appeal.
    Affirmed.

      T. J. Cavanaugh and Alfred J. Mills, for complainants.

      Lincoln H. Titus ( William J. Barnard, of counsel), for defendants.
   Montgomery, J.

The complainants are heirs at law of William Markillie, deceased. In a prior proceeding brought by these complainants against the defendants Wealthy Markillie and Charles Allen it was determined that the defendant Wealthy Markillie had obtained the conveyance of certain land from her husband, William, by undue influence, and that not only the conveyance to her, but a subsequent conveyance by her to the defendant Charles Allen, should be set aside. Markillie v. Markillie, 115 Mich. 658. While the title to this property stood in Charles Allen, he gave a mortgage of $650, in which his wife joined, covering the land conveyed to him by Mrs. Markillie. The present bill is filed setting up these facts, and further averring that the money received on this mortgage was used by Charles Allen to discharge a lien which existed on certain land conveyed by him to Mrs. Markillie, amounting at the time to $604.43, and praying that complainants be subrogated to the rights of the lienholder as they existed prior to the payment, and that a lien be declared in their favor to the amount stated, with interest. The circuit judge granted the relief, and defendants appeal.

It is strenuously insisted that the circuit judge was in error in finding for the complainants on the facts. On the part of the complainants the testimony tends to show that the money was received on the mortgage made by Charles Allen and wife to cover the 80 acres conveyed to him by Mrs. Markillie on the same day that the other mortgage was paid. It appears that Charles Allen was present when it was paid. On the part of the defendants it is testified that the $650 borrowed on this mortgage was paid by Charles Allen to Mrs. Markillie, and two witnesses are called, who testify that they were called to witness the payment. Mrs. Markillie was not called. Defendant Charles also testified that his brother, Eugene Allen, paid and discharged the mortgage on the homestead, and called his brother to corroborate him. It is clear that the circuit judge, who saw these witnesses, discredited them; and a careful reading of the testimony, together with the reasons assigned by the circuit judge for his conclusion, satisfies us that the conclusion was justified by the circumstances in the case. It appears that on the trial of the former case Mrs. Markillie testified that the exchange of the property was without boot money. Charles Allen sat in court, and heard this testimony, and did not deny it. His attempt to explain his conduct is not, to our minds, satisfactory. The history of the dealings between the Allens, which left Eugene under the duty of discharging the Charles Allen mortgage, is, to say the least, vague and unsatisfactory. We are satisfied from the testimony that the mortgage was paid on the same day that the loan was made by Charles Allen, and, on the whole record, we are not disposed to disturb the finding of the circuit judge as to the facts.

It is contended that the decree is unauthorized, for the reason that it creates a lien on the homestead without the consent of the wife. This is not' a proceeding to create a lien. It is an application to a court of equity to undo a fraud, — to trace a fund equitably belonging to complainants, and, when it is found that it was used to discharge a lien, complainants ask to revive that lien, and that they be subrogated to the rights of the original mortgagee. The power to do this is clear. 2 Pom. Eq. Jur. §§ 1044, 1051, 1053; Pennell v. Deffell, 4 De Gex, M. & G. 372; Michigan Air-Line R. Co. v. Mellen, 44 Mich. 321.

The decree is affirmed.

The other Justices concurred.


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    SMALLEY v. BODINUS.
    Notary Public — Administering Oath to Copartner — Mechanics’ Liens.
    A notary has no authority to administer an oath where affiant is his copartner, and the matter is one in which the firm is interested. So held where the statement of a mechanic’s lien in favor of a firm was sworn to before one of the partners.
    Appeal from Wayne; Grove, J., presiding.
    Submitted April 20, 1899.
    Decided June 5, 1899.
    Bill by Edwin E. Smalley, as successor and assignee of himself and De Witt C: Spaulding, copartners, against William C. Bodinus and others, to enforce a mechanic’s lien. From a decree for complainant, defendants appeal.
    Reversed.

      Sheridan j. Colby (Harrison Geer and J. H. Cole, of counsel), for complainant.

      Walker & Spalding, for defendants.
   Hooker, J.

Edwin E. Smalley and De Witt C. Spaulding were copartners, and, as such, had a claim for lumber furnished by them to one Gardner, who put it into a house belonging to the defendant, upon which it is sought by this proceeding to enforce a lien. The statement of the lien which was'filed appears to have been signed and sworn to by Smalley before Spaulding, his copartner, and the defendant claims that this rendered the statement invalid, upon the principle that the interest of Spaulding disqualified him from acting in the premises, and the statement is the same as if it had not been verified. It is urged that the statute confers authority on any notary to administer oaths, and we are cited to some cases where this court has held that an oath may be administered by a,solicitor of the affiant. But that presents a somewhat different question, as in that case the attorney cannot be said to be an interested party, while here the copartner clearly is so. But in that case the legislature expressed its disapproval of the practice by forbidding it soon after the decisions were filed. We have held that an acknowledgment of a deed taken by the grantee is void. Groesbeck v. Seeley, 13 Mich. 329; Laprad v. Sherwood, 79 Mich. 524. Counsel cite cases from other States supporting this proposition. It may be possible to draw a distinction between an acknowledgment and an affidavit;,but it seems to us that the same reason forbids official action by one who is to be benefited in both cases. Perhaps no great hardship would result should this affidavit be held valid, inasmuch as it has in no way misled any one, and furthermore states the truth; but the rule, once established, would be applicable to other affidavits, where the dangers of the practice would be more apparent.

The decree of the circuit court is reversed, and the bill dismissed, with costs of'both courts.

The other Justices concurred.


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      In re GALLAGHER’S ESTATE.
    1. Executors — Compensation—Erroneous Instruction — Harmless Error.
    It cannot be presumed that the finding of a jury as to the number of days an executor devoted to the business of the estate would be influenced by the amount of compensation allowed by the statute,, and hence an instruction that such allowance is §1.50,' instead of §1, per day, though erroneous, will not be deemed to have been prejudicial.
    2. Same — Extraordinary Services — Extra Compensation.
    The discretion exercised by the circuit judge in determining whether services rendered by an executor were attended by such unusual difficulties as to entitle him to extra compensation under 3 Comp. Laws 1897, § 9438, will not ordinarily be reviewed.
    3. New Trial — Order of Refusal — Failure to Except.
    Where no exceptions are taken to an order denying a motion for a new trial, the matter is not open for review.
    Error to Wayne; Frazer, J.
    Submitted April 20, 1899.
    Decided June 5, 1899.
    In the matter of the estate of Patrick Gallagher, deceased, Maria J. Quinn, guardian, appealed to the circuit court from an order of the probate court charging a certain balance against Jeremiah Connor, the executor. On the trial in the circuit court, the jury found a much larger balance due, and Daniel Sullivan, the executor’s surety, made a motion for a new trial. After a denial of the motion, Sullivan died, and Thomas F. Sullivan and another, his executors, bring error.
    Affirmed.

      Keena & Lightner, for appellants.

      Rowland M. Connor (John D. Conely, of counsel), for appellee.
   Hooker, J.

Jeremiah Connor was appointed executor of the last will and testament of Patrick Gallagher, who died in 1886. His final account was heard in the probate court on May 28, 1895, and a balance was found against him amounting to $577.38. On appeal, the jury found the sum of $3,943.76 due from him to the estate. This trial occurred in October, 1897. At the time he was appointed executor, one Daniel Sullivan signed his bond as surety. He took no part in the proceeding in either court, but obtained leave to move for a new trial, which motion was denied. After his.death, which occurred in March, 1898, his executors removed the case to this court by writ of error.

The items over which there is contention are (1) a claim for services for which a per diem allowance is sought; (2) a sum for extraordinary services, which the circuit judge denied; (3) an amount claimed for attorneys’ fees; (4) the denial of a motion for a new trial.

The executor, Connor, testified that he spent from 150 to 200 days in the business of the estate from the time of his appointment to the time of filing his final account. He commenced and prosecuted a number of lawsuits, including a proceeding for the construction of the will. The court instructed the jury that the executor was entitled to $1.50 per day for the time spent in the service' of the estate. The jury thereupon rendered a finding upon the issues, from which we quote the following:

“ The following items of charges made by said executor against said estate, viz.: Wood judgment, $140; city taxes, 1887, $200, — were not paid by said executor as stated in said account; but the following sums were paid, viz.: Wood judgment, $112.50; city taxes, 1887, $153.
“ The following items of charges made by said executor against’said estate, viz.: Baker & Clark, attorneys’ fees, February 9th, $100; Baker & Clark, attorneys’ fees, December 14, 1892, $105; Baker & Clark, attorneys’ fees, December 14, 1892, $125, — are excessive and unreasonable in amount. Two hundred dollars is a reasonable charge for the services mentioned in said items.
“ The following charges made by said executor against said estate, viz.: A. P. Lyons, attorney’s fees, $120; J. L. Cummins, fees, $25, — are disallowed.
“The following charge made by the executor against said estate, viz.: Sheriff of Oakland county, $23, — was paid as stated by said executor.
“Said executor spent 100 days in services for said estate.
‘ ‘ Said executor collected and accounted for personal property to the amount of $1,912.”

The order of the court, based upon this verdict, allowed Connor 100 days, at $1 per day. This was in accord with the statute (3 Comp. Laws 1897, § 11220).

It is contended that the executor was prejudiced by the mistake in the instructions; but this can be only on the theory that the jury would have allowed him for more days had they known that the statutory per diem was but a dollar. We cannot assume that the jury would so far violate their duty as to disregard the evidence as to the number of days spent. They return, that the time used was 100 days, and we must presume that this was correct, and the judge was justified in allowing for that time at the statutory rate. Had it been a case where the jury were called upon to render a general verdict, and they had answered a special question in a similar manner, it would have been the duty of the judge to correct the verdict.

The same statute (3 Comp. Laws 1897, § 11220) authorizes the allowance of a further sum for extraordinary services where the settlement of the estate is unusually difficult. Section 9438 contains a similar provision for extra compensation in addition to a commission. The appellants make claim under the latter section. They say that the matter is within the discretion of the circuit judge, but insist that he erred in not making such allowance, and ask that the order be reversed, and the cause be remanded, to give him such opportunity. The court expressly found that there were no unusual difficulties or responsibilities in the execution of the - trust. It is not usual for this court to review the discretion of the trial court in such, matters. See Mower’s Appeal, 48 Mich. 441; In re Power’s Estate, 92 Mich. 106; In re Brewster’s Estate, 113 Mich. 561; In re King’s Estate, Id. 606. We think this finding should not be disturbed.

It is urged that, under the testimony, the court should have directed the jury to find • a verdict for the amount claimed to have been paid to Baker & Clark for attorneys' fees, amounting to $330. The jury found that $200 was a reasonable sum, and in this the circuit judge concurred. We are of the opinion that the cross-examination of the executor afforded a sufficient reason for considering the question of the reasonableness of these disbursements.

In disposing of the motion for new trial the court said:

“The court having heretofore granted leave to make a motion for a new trial on the part of the parties now moving, for the purpose of allowing them an opportunity to review my decision before us now, in Quinn against Gallagher’s Estate, the motion for a new trial is denied, for the reason that I think the charge of the court to the jury was correct in every particular. I see no error committed on the trial, and the moving party on this motion is allowed 30 days in which to settle a bill of exceptions to take this matter to the Supreme Court for review.”

As no exceptions are taken to this order, it cannot be reviewed. Stevenson v. Railway Co., 118 Mich. 651.

The order of the circuit court is affirmed.

The other Justices concurred.


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    DONALDSON v. CRANE.
    1. Trespass — Possession—Admissions of Landlord — Effect on Tenant.
    The possession by a tenant of the portion of the demised premises near a disputed boundary line is not affected by a statement of his landlord to the owner of the adjoining parcel that he “would never use” such portion; and such statement will not support an action of trespass by the adjoining owner against the tenant, who continues in possession of the portion.
    3. Same — Directing Verdict.
    Where, in an action of trespass qw. ol., the testimony conclusively shows that plaintiff had no actual possession, and that defendant did have such possession, and still has it, the latter is entitled to have verdict directed in his favor.
    Error to Lenawee; Chester, J.
    Submitted May 4, 1899.
    Decided June 5, 1899.
    Trespass quare clausum fregit by Edward H. Donaldson against Arthur Crane. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Watts, Bean & Smith, for appellant.

      Salsbury & O’Mealey, for appellee.
   Hooker, J.

David E. Blowers died in 1876 seised of a parcel of land, separate portions of which becáme the property of his two nephews, Edward and Norman, about the year 1878. Norman owned the south portion and Edward the north. Subsequently Edward conveyed his tract to Ferguson, who in turn deeded to Donaldson, the plaintiff. The other tract became the property of Mrs. Wendle. Crane, the defendant, was her tenant at the time this action was begun, residing upon the premises. She lived in Jackson county. The action is trespass quare clausum. Plaintiff claims that the defendant, Crane, entered and destroyed certain corn which the plaintiff had planted upon the premises under the following circumstances: When the plaintiff entered under his deed, he found Mrs. Wendle occupying the adjoining premises up to a certain fence, which the defendant claims to have been established by the Blowers brothers as the line. The plaintiff testified that, after he took possession of the tract purchased from Ferguson, he leased the field south of this fence in the spring of 1895 from George Blowers, and that he asked George “what was the matter with his drawing the fence away, and plowing right through there, and dividing the ground as near as he could where the fence stood?” He was told that he (George) thought Mrs. Wendle would have no objection. Thereupon he drew the fence away, and planted the two adjoining parcels (his own, and that which he says he leased from George). He says that he divided the crop up to'the line where the fence had stood.

A- little while after his crop came off, the plaintiff caused the line to be surveyed, and claims that it was found to be some rods farther south than that occupied by the fence which he had removed. He testified that after the survey he had some talk with Mrs. Wendle, and that she compared deeds with him, and said in response to his question, “What are you willing to do about it?” that she would never use that piece of land.” She admitted that they talked, but denied that she made such statement, and said that she claimed that the fence was upon the line which had been established by agreement. It does not appear that Crane had anything to do with this talk, or that he was present, though at that time he was in possession of the farm. The plaintiff said that he did not know as he ever surrendered the parcel to her after cropping it, but it is obvious from his own testimony that he did nothing more with the parcel until he began plowing in 1896. At that time Crane had possession as tenant. He went there to plow on May 1st, and was forbidden to do so. Thereupon he did no more until he went to Adrian, and consulted counsel.’ On his return he found that Crane had finished plowing the piece, and had sowed oats. He then went over it, and planted it to corn, and then Crane dug up the corn. He then brought this action before a justice of the peace, alleging title to the premises. The case was certified to the circuit, and the plaintiff recovered a verdict for five dollars damages. It is manifest that the case was brought with a view of settling the title, or, rather, fixing the linó between the parcels, and much of the testimony offered was addressed to the question whether a line had been established by agreement.

The defendant claimed that in 1878 or 1879 the two brothers made measurements, and agreed upon a line which should be the boundary ;■ that they turned a back furrow to mark it through the cleared land, and blazed trees through the woods; and that a fence was built upon the line of the dead furrow, and, though the fence had at times been shifted for convenience, the dead furrow had always been recognized by the occupants as the line, until the plaintiff questioned it. The plaintiff did not contradict the fact of the agreement, but he offered testimony which he claims tended to show that it was not an agreement settling the boundary,- and the statement of Mrs. Wendle “that she would not use it any more,” which he says was an abandonment of any such claim, and tends to prove plaintiff’s possession. This action is not brought against Mrs. Wendle, and the defendant is not bound by her promises, if she made any. His possession could not be affected by such statement.

The important question is whether Crane abandoned the disputed portion and the plaintiff took possession. The evidence conclusively shows that, previous to the removal of the fence, Mrs. Wendle had quiet and undisturbed possession. The plaintiff occupied it under her afterwards as a cropper, and, after taking off his crop, he did nothing more with the disputed territory, except to run a survey over it, until he undertook to get possession by plowing it on May 1st, and planting corn on Crane’s oat field. In our opinion, the ■ testimony conclusively shows that he had no actual possession, and that Crane had such possession, and, for aught that appears, has it yet. . This is fatal to the plaintiff’s case, and the court should have directed a verdict -for the defendant. Newcomb v. Love, 112 Mich. 115.

This case appears to be an illustration of the folly of trying to obtain possession of land through an- action for trespass. The law prescribes ejectment as the method, and, lest injustice should be done, provides a second trial as a matter of right. We do not feel called upon to discuss the other questions in the case, or to direct a new-trial, as upon plaintiff’s own testimony he should not recover.

The judgment is reversed, and no new trial ordered.

The other Justices concurred.