author:
      Montgomery, J. Hooker, C. J.
      Grant, J.

text:
    QUIRK v. RAPID RAILWAY.
    1. Street Railways — Personal Injuries — Contributory Negligence.
    Plaintiff claimed that, while he was walking along a highway, defendant’s regular train, an electric car, passed him, and that he soon afterwards went upon that portion of the highway occupied by the defendant’s railway track, and followed it for 200 feet without looking back, when he was struck by a gravel train approaching from behind. The motorman saw him when 200 feet distant. The testimony was conflicting as to whether the gong was sounded and the train brought . under control. Held, that the questions of negligence and contributory negligence should have been submitted to the jury. Grant, J., dissenting.
    2. Same — Traveler on Railway Tracks — Precedent Negligence.
    A traveler walking upon the part of the highway occupied by a'street-railway track is not to be treated as a trespasser, and if, after seeing him, the motorman, having sufficient time, fails to take proper precautions to prevent an injury, a precedent negligence of the traveler constitutes no defense. Per Montgomery and Moore, JJ.
    3. Same — Duty oe Motorman.
    Where a person is walking upon a street-railway track in the ■ highway a sufficient length of time, in full view of the motorman of a car approaching from behind, the latter is bound to bring his car under control, or give the footman notice in time to prevent an injury. Per Montgomery and Moore, JJ.
    Error to Wayne; Erazer, J.
    Submitted January 30, 1902.
    (Docket No. 1.)
    Decided June 3, 1902.
    Case by John Quirk, by next friend, against the Rapid Railway, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Seth E. Engle, for appellant.

      Brennan, Donnelly & Van De Mark and Henry L. Lyster, for appellee.
   Montgomery, J.

The plaintiff, who, at the time of the injuries received, was between 14 and 15 years of age, was run into by one of defendant’s gravel trains, which consisted of three short cars filled with crushed stone, which were being pushed ahead of the motor. According to the plaintiff’s testimony, he passed out of his own yard about 6 o’clock in the evening, drawing his young brother in an improvised cart, by means of a rope which was thrown over plaintiff’s shoulders and brought under his arms. He testifies that he proceeded in the direction of Mt. Clemens, and when 195 feet, or thereabouts, east of the point at which he entered the highway, he saw the defendant’s regular train going towards Mt. Clemens; that he followed along a farther distance of about 190 feet, reaching a place where there was a plank walk extending across the track, and entered upon the space occupied by the track of defendant, and pursued his way to the east. He testifies that, after the car passed him, he did not again look in the direction of Detroit for approaching cars, but thought that no other car would be following closely upon the regular passenger car. After entering upon the portion of the highway traversed by defendant’s tracks, he followed the track, according to his testimony,- 204 feet, when he was struck by the defendant’s train.

The motorneer was called as a witness for the defendant, and testified that he saw the two boys when they were in the middle of the road, and that when he was within a couple of hundred feet of them they turned on the track with their cart; that he at once sounded the gong, and tried to attract their attention, and stop his train, as soon as they were on the track; that when within 20 feet of them they happened to hear the gong, looked up, and tried to jump off the track; that they were both clear of the rails, but the cart caught on the outside rail as they tried to get off, and the train struck the cart and cut plaintiff’s arm off. In another portion of his testimony the witness states that the boys got on the track in front of Mr. Reuhle’s place, which, as would appear from the map introduced, is a point nearer Detroit than that given by the plaintiff himself, so that, if the plaintiff entered upon the track at Reuhle’s, he must have traveled on the track a greater distance than 204 feet.

There was testimony tending to show that the gong-was not sounded, and also tending to show that the car ran a considerable distance after the plaintiff was struck, indicating that it had a considerable speed, and had not been brought under control. The defendant’s testimony disputed both these claims-. The circuit judge expressed the opinion that there was sufficient evidence to justify submitting the case to the jury upon the question of defendant’s negligence, but he withdrew the case from the jury upon the ground that the plaintiff was conclusively shown to be guilty of contributory negligence.

If the defendant’s testimony as to the facts were to be credited and accepted as true, the plaintiff was undoubtedlyguilty of negligence contributing to the injury. But if, on the other hand, the plaintiff, after entering upon the track, was pursuing his way on this public highway, in full view of the motorneer, for a distance of 204 feet, we are not prepared to hold, as a matter of law, that he was guilty of contributory negligence. This is not a steam railroad. The plaintiff was in no sense a trespasser. This railroad company occupies a portion of the public highway. Travelers have the right to continue to travel upon this highway, and are not to be treated as trespassers; and if, after discovering that the plaintiff was upon the track, the motorneer failed to take proper precautions to prevent injury to him, a precedent negligence of the plaintiff, if there was any, constitutes no defense. Richter v. Harper, 95 Mich. 225 (54 N. W. 768). His presence there would furnish an opportunity for injury, but would not be, in any legal sense, a contributing( cause to it. It is immaterial whether he had been pursuing his course on this highway, and within the lines of the railway tracks, for 204 feet or for half a mile, as it affects the negligence of defendant in running him down, provided he was upon the track a sufficient length of time, in full view of the motorneer, so that, by a proper control of his train, he could have prevented the injury, or have given plaintiff notice in time to avoid the injury.

The defendant relies, in support of the ruling of the court below, upon the cases of Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Doherty v. Railway Co., 118 Mich. 209 (76 N, W. 377, 80 N. W. 36); and Borschall v. Railway, 115 Mich. 473 (73 N. W. 551). In none of these cases were the facts • analogous to the case under consideration. These were cases in which it appeared that the 'attempt to cross the track was sudden, and unexpected to the motorneer. The element of a traveler lawfully pursuing his way ahead of the car, and in the same direction as the car, was not present.

The question in this case was recently considered by this court, and ruled adversely to the contention of the defendant’s counsel, in Tunison v. Weadock, ante, 141 (89 N. W. 703), in which case attention was directed to the fact that Fritz v. Railway Co. had been previously distinguished by this court, in an opinion by Mr. Justice Long, in Rouse v. Railway, 128 Mich. 149 (87 N. W. 68). See, also, as further supporting the views here expressed: Little v. Railway Co., 78 Mich. 205 (44 N. W. 137); Rascher v. Railway Co., 90 Mich. 413 (51 N. W. 463, 30 Am. St. Rep. 447); Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996); Bush v. Railway Co., 113 Mich. 513 (71 N. W. 851); Blakeslee v. Railway Co., 112 Mich. 63 (70 N. W. 408); McClellan v. Railway Co., 105 Mich. 101 (62 N. W. 1025).

The judgment will be reversed, and a new trial ordered.

Moore, J., concurred with Montgomery, J.

Hooker, C. J.

I think that the questions of negligence and contributory negligence should have been submitted to the jury, and therefore concur in the reversal of the judgment.

Grant, J.

(dissenting). I think the court properly-directed a verdict for the defendant. The acts of negligence counted on are high rate of speed, that the train was running backwards, that no lookout was kept at the rear end of the train, that there was a failure to sound the gong, and a failure to have good and sufficient brakes. I find no evidence to sustain any of these allegations. The train was not running backwards, but the motor was pushing two fiat cars and a dump car ahead of it in the usual manner. The flat cars were about 13 feet long, and the dump car about 6 or 7 feet long.- All three cars that were ahead of the motor were not as long as the ordinary passenger car. The cars were loaded with stone, and the motorman stood in the usual place, and had complete view of the track ahead.

Plaintiff had tied himself to a cart, in which he was drawing his brother along the track. He does not state that he was listening for a train or for the sound of the gong. Evidently he and his brother were not. They were playing like boys, heedless of any danger, and not expecting a train. But his little brother in the cart did hear a sound or saw a train,. and gave the alarm. His little brother had time to get out of the cart and get off the track in safety. Plaintiff got off the track, but the wheels of his cart caught somehow in the track. He could not free himself from his harness, and was struck. The only other witness as to the ringing of the gong was Mrs. De Eau, who was a passenger on the passenger car immediately preceding the stone train. The stone train passed her, after which she turned off the highway into a lane, and had gotten to a board fence at the corner of a church, when she heard some one crying. She testified that she heard no gong sounded. She does not testify that she was listening or paying any attention whatever. The motorneer testified that he saw the boys come upon the track, and that he vigorously sounded the gong. We have, then, a case of positive testimony by the witness whose duty it was to sound it, and who detailed all the circumstances, that it was sounded. We have in opposition to this two witnesses who simply testify that they did not hear it. Such testimony is worthless, even if there were no testimony that the gong was sounded. It is of a purely negative character, within the decision of McCullough v. Railway Co., 101 Mich. 234 (59 N. W. 618). I discussed this question in Shufelt v. Railroad Co., 96 Mich. 327 (55 N. W. 1013), and cited authorities, and to them I now refer. This case comes squarely within Stewart v. Railroad Co., 119 Mich. 91 (77 N. W. 643), where the conductor, engineer, and fireman testified positively that the whistle was blown and the bell rung, and three witnesses for the plaintiff, who were within hearing distance, testified that they did not hear them.

I find no evidence that this train was running at an unlawful rate of speed.

Shall common carriers, doing business in the ordinary manner provided by law, be liable in damages, where boys sui juris harness themselves to carts, use the railroad track as a playground, and are prevented from getting out of danger by their carts’ getting caught so that they cannot get beyond the reach of danger in time ? I am unwilling to hold such a doctrine. -I concur in what the learned circuit judge said in instructing the jury. After saying that plaintiff was an exceedingly intelligent and bright boy, nearly 15 years of age, the court said:

‘ ‘ This boy testified that without looking there he entered upon this track, determining for himself that because the passenger cars on that road run at half-hour intervals, jumping to the conclusion that no other car would come along there; and the testimony in this case shows that construction trains were running there at irregular intervals, He did not look to see, to go along this track; and when his brother behind him says, ‘ Here is a car coming,’ they have even then time to get off the track. But entering upon this track in this way, for their own amusement, this boy harnessed to this little wagon for the purpose of dragging his brother along this dangerous pathway, after he had gotten off the track, or at the time the little wagon became entangled in some way on the rail, the car struck him, and he was pulled in there. What I am to decide is whether entering the track in this way, harnessing himself to this vehicle, dragging his little brother there, he has been guilty of contributory negligence. I have no doubt of it whatever, and when I have no doubt it is contributory negligence it is my duty so to say.”

No witness testified as to the speed of the train. Plaintiff testified:

‘ ‘ Q- How far did the car run after you were knocked, down ?
“A. About 30 feet past me. * * *
Q. Did you see the train after it stopped?
“JL Tes, sir. * * * The motor end towards me was about 35 feet past me towards Mt. Clemens.”

The motorman testified that the train did not run over 10 feet after it struck the cart.

This is all the testimony which can be relied upon to show a negligent rate of speed. No negligence can be inferred. It is a fair deduction from the testimony that, the train was not running at the speed of passenger trains. A heavily-loaded train would go farther, after the application of the brakes, than one lightly loaded. Even if the motor stopped 30 or 35 feet beyond where plaintiff was injured, this would not be evidence that the train was running at an unlawful rate of speed. It should be supplemented either by testimony of men of experience, who can judge of the speed of trains, or by testimony showing the distance within which cars loaded as these were can stop, when running at a lawful rate of speed.

The record contains no evidence of gross negligence.

Long, J., did not sit.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    PONTIAC, OXFORD & NORTHERN RAILROAD CO. v. REED
    1. Contracts — Construction—Side Track.
    A railroad made a contract with a mill owner to construct a side track to the mill for the convenience of the mill owner, and built the same in such a manner as to cut off the frontage of lots belonging to the owner of the mill. The consideration was §1, and a guaranty of §125 a year in freight receipts for two years. The railroad reserved title to the track, and the right to remove it after three years. The mill owner agreed to furnish free the right of way. Some years after he sold the premises. Held, that the grantee had the right to require the removal of the track at any time.
    3. Same.
    A permission in such contract that the railroad may use the side track for any purpose that will not interfere with or discommode the mill owner continues so long as the side track is allowed to remain on the premises.
    Appeal from Oakland; Smith, J.
    Submitted February 30, 1903.
    (Docket No. 118.)
    Decided June 3, 1903.
    Bill by the Pontiac, Oxford & Northern Railroad Company against William Reed to restrain interference with a side track on defendant’s land. Defendant filed an answer in the nature of a cross-bill, asking affirmative relief. From the decree rendered, both parties appeal.
    Modified in defendant’s favor.

      Russel & Campbell, for complainant. .

      George O. Kinsman (Thomas L. Patterson, of counsel), for defendant.
   Hooker, C. J.

The complainant, a railroad corporation, built a side track upon the premises now owned by the defendant, under a contract made with his grantors, who were then in possession, operating a mill and elevator thereon. The contract is as follows:

“Memorandum of agreement made this 1st day of August, 188?, between the Pontiac, Oxford & Port Austin Railroad Company, of Michigan, hereinafter designated the ‘ Railroad Company,’ and the Craig Wheat-Cleaner Company, of Oxford, Michigan, its assigns or successors, hereinafter designated the ‘Cleaner Company,’ witnesseth, that whereas the cleaner company wishes to secure a side or spur track to their elevator and mill at Oxford for the purpose of shipping grain and mill products by rail to and from Detroit and elsewhere, the railroad company, for one dollar and other considerations hereinafter named, agrees to construct a siding or spur track, in length not less than three hundred feet, from its main track at Oxford, adjacent to said elevator, to facilitate the handling and moving of grain and mill products for the cleaner company, and to bear all of the expenses of the same, except as hereinafter provided.
“The cleaner company agrees to furnish free the right of way for said spur or side track over their grounds at place to be agreed upon between the respective parties; the right of ownership of the rails, ties, etc., to remain with the railroad, company, with the further right to remove the same at its option any time after three years from date hereof, should it at any time thereafter desire so to do, by giving the cleaner company thirty days’ notice of its intention.
In consideration of said facilities furnished or to be furnished, the cleaner company hereby covenants and agrees that it will use said spur or side track for the purpose of loading and unloading cars with grain or mill products to be shipped over the road of the railroad company, and further agrees that -the shipment of freight in car-load lots shall within two years, computed at the rate of two cents per hundred pounds, aggregate two hundred and fifty dollars; and on failure on the part of the cleaner company to make shipments of such freight aggregating the amount stated, of one hundred and twenty-five dollars for each of the two years co'mmencing with and after the date hereof, they shall pay to the said railroad company in cash, on or before the expiration of the two years, the difference between the amount of freight shipped, computed at two cents per hundred pounds, and the said two hundred and fifty dollars, which is represented in a guaranty note of like amount, of even date herewith.
“It is further mutually agreed and understood between the parties hereunto that the guaranty of the cleaner company is made with the understanding that the freight rates to be made by the railroad company to Detroit and other points beyond where the cleaner company may wish to ship their grain or mill products shall not exceed, at the time the shipments are offered and made, the freight rates made to the same points from Oxford for the cleaner company by the Michigan Central Railroad Company. It is further agreed that, should the railroad company at any time or for any reason be unwilling or unable to make the samé rate from Oxford to any point reached by it and its connecting or affiliating roads on any grain or mill-product traffic offered to it by the cleaner company as is made by the Michigan Central Railroad Company, the cleaner company shall be credited upon its obligation at the rate of. one cent per hundred pounds upon all such traffic offered to the railroad company and refused by it for the reasons above stated.
“ The railroad company reserves the right to use said spur or side track for other purposes than that of the cleaner company whenever it desires to do so, provided that its use thereof shall not in any manner interfere with or discommode the cleaner company.
‘ ‘ Should the cleaner company make shipment of grain and mill products in car lots from Oxford over the road of the railroad company within two years from the date hereof in amounts, computed at the rate of two cents per hundred pounds, that shall aggregate, together with the credits hereinbefore mentioned, two hundred and fifty dollars, the guaranty note shall become null and void, and be returned to the cleaner company, duly canceled.
“In witness whereof, we have hereunto affixed our respective names the day and date first above given, at Oxford, Michigan.
“The Pontiac, Oxford &
Port Austin R. R. Co.,
“By James Houston, Gen. Supt.
“The Craig Wheat-Cleaner Co.,
“By A. M. Varney.”

■ The business conducted by the Craig Wheat-Cleaner Company did not prove profitable, and after some years resulted iri failure and discontinuance of business. Subsequently the defendant purchased the property from the Craig Wheat-Cleaner Company, and for a year or more past has operated the same. During the time that the premises were vacant, the railroad company used the track according to its own convenience, but after defendant acquired the premises he objected to the storage of the cars upon the same, and finally obstructed the track. Thereupon the complainant filed its bill to restrain his interference with the use of the track. The defendant answered, claiming affirmative relief. The railroad company contends that it has acquired the permanent right to use this side track according to its own convenience, while the defendant claims that he may revoke its right to use it at all at any time, if such a right has not been already revoked by a conveyance of the premises to him. He contends that the contract amounts to a license. The decree made by the learned circuit judge restrains the complainant from such use of the track as will interfere with the convenience of the defendant, but denies the claim of the defendant, and has the effect of adjudicating' the question of title. Both parties have appealed.

This contract should be construed in the light of the surrounding circumstances. The premises in question consisted of several lots fronting upon a street. The side track crosses those lots but a few feet from the street line, practically cutting off their frontage, and making it impossible to construct any building upon the street line so long as the track remains. The contract shows upon its face that it was made for the convenience of the cleaner company. It was accompanied by a guaranty made by the defendant’s grantors, securing to the complainant a rev-' enue from said premises of not less than $125 a year for two years. It reserved to the complainant the title to the rails and ties of which the track was constructed, and the right to remove the track at any time after the expiration of three years. It contains nothing in the nature of a grant of title to the land upon which the track was built, the only provision in that respect being that the cleaner company should furnish free the right of way for said side track. Nothing in the contract expressly provides that the railroad company shall have the right to maintain the side track beyond the time when it should be desired by the cleaner company. -We may safely take judicial notice that manufacturing concerns all over the country enjoy the facilities of side tracks by agreement with railroad companies, and we think it would be a surprise to the business public to learn that, by arranging for such facilities, they yield to the railroad companies who furnish them a right to maintain and use such tracks for their own purposes in perpetuity, after they have ceased to be required for the convenience of those for whose use they were built. If the complainant’s contention is correct, it could maintain its track on these premises, though the cleaning mill should be destroyed by fire, or the owner decide to use his premises for other purposes, which would have no use for a railroad, and which would require the erection of buildings to the street line.

It is unnecessary to discuss at length the question of license. If it be admitted that this is a license, and that a consideration was paid for it, and that money was expended by the complainant to accomplish the object of the contract, the fact remains that a reasonable construction of the contract negatives the conclusion that either party supposed that the complainant was obtaining, or that defendant’s grantors were granting, a right of way in perpetuity. The more consistent view is that both parties understood that the railroad company built a side track for the convenience of the occupant, to be maintained as long as he should desire, and no longer, subject, however, to the right of the company to remove after the expiration of three years.

We do not discover that the prayer of the defendant’s cross-bill asks a decree for the removal of the track, and we think that while it rémains there the railroad company is entitled to use it in accordance with the decree of the circuit judge. The decree is therefore affirmed, subject to the right of the railroad company to remove said track upon the notice prescribed in the contract, and the right of the defendant to require its removal at any time.

The defendant will recover costs of this court.

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


text:
    GAUKLER v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Negligence — Question for Jury.
    The conductor and .trainmen testified that plaintiff was put off the train at a junction. Of plaintiff’s witnesses, one testified that he was put off at the first stop, which would ordinarily be the junction; another thought he was put off at the first stop, but, as he saw no light, thought it could not be the junction; two others said that a passenger was put off at a street corner some blocks this side of the junction, and that he came and talked with them, and that within a few days they heard of plaintiff’s being hurt at that street corner. Held, that the place where plaintiff was put off the train was a question of fact for the jury.
    2. Same — Leaving Passenger in Place of Danger.
    Where a passenger, after being put off a train, goes to a place 25 feet from the tracks, in a public and well-frequented street in a city, the question of the fitness of the place where the train stopped is immaterial.
    3. Same — Drunken Passenger.
    A railroad company is not guilty of negligence in ejecting a passenger from its train, and leaving him 25 feet from its track, in a public street, in the presence of two police officers, although he was somewhat intoxicated, and afterwards went upon the track and was injured.

    Error to Oakland; Smith, J.
    Submitted February 21, 1902.
    (Docket No. 52.)
    Decided June 3, 1902.
    Case by Philip Gaukler, an insane person, by Henry Gaukler, his guardian, against the Detroit, Grand Haven & Milwaukee Railway Company, to recover damages for his negligent ejection from defendant’s train. From a judgment for plaintiff, defendant brings error.
    Reversed.

      E. W. Meddaugh (Geer & Williams, of counsel), for appellant.

      Lillis & Beardslee, for appellee.

       For exposure of drunken passenger to danger by ejection from car, see note to Roseman v. Railroad Co., (N. C.) 19 L. R. A. 337.

   Hooker, C. J.

The plaintiff entered defendant’s train at Detroit. The first stop regularly made upon this road is at a junction with the Lake Shore road some distance from the starting point, but within the city. Some blocks before reaching the junction, the road crosses Farnsworth street. Demand was made upon plaintiff for his fare, which he refused to pay, and when the train made its first stop (according to the testimony of the witnesses upon the train) he was told by the conductor that he must get off. He had not yet sat down in the car, according to some of the testimony, and he walked to the door, down the steps, and alighted without assistance. He was left upon the grouúd, the conductor staying with him until the train passed, when he mounted the rear platform. The conductor and trainmen say that this occurred at the Lake Shore junction, and the only testimony said to show the contrary from witnesses on the train is that of two of plaintiff’s witnesses, — DeConick, who said he did not know where it was, but that it was at the first stop; and Adcock, who testified that he thought he was put off at the first stop; that he knew the train stopped at Lake Shore junction, but did not think plaintiff was put off there, because he saw no lights where he was put off. Two other witnesses testified to seeing a passenger train stop about 50 feet north of Farnsworth street, where a man was put off. The witnesses stood on Farnsworth street, and one or both of them stated that the rear end of the train passed them about the time the man got to them as they stood near the flagman’s house on Farnsworth street. He came up to them as they stood by the shanty, 25 or more feet east of the track, and one said that he asked the way downtown, and" both stated that he was told to come with them, and they would put him on a car going downtown. This he did not seem inclined to do, and he was left standing by the shanty. They agree that it was about 9 p. m. One of them, said that he read the next morning of an accident at Farnsworth street corner to a man named Gaukler. The other heard of it two or three days after seeing the man. One was a constable and the other a deputy sheriff. Both said the man was drunk, and agreed that they did not see anything to indicate that he could not take care of himself. We think this testimony was sufficient to make the place where plaintiff was put off a disputed question, and therefore we must assume that the plaintiff’s claim that he was put off at Farnsworth street was accepted by the jury.

The next person who saw this man was the engineer of another train. He was walking between two tracks on the railroad right of way, and was struck by the engine as it passed by him, and injured. This was 100 or 200 feet from where he alighted from the train, and south of Farnsworth street. The negligence complained of is— First, leaving him in a place of danger; second, abandoning him to look out for himself at a time when he was incapable of doing so by reason of his intoxication.

The testimony of these two officers is all that shows that the man was put off near Farnsworth street, instead of at the Lake Shore junction, and they agree that he left the track, and went with them to the flagman’s shanty, 25 or 30 feet east of the tracks. We may treat the case, then, as though he had been left at that point, and taken 25 or 30 feet from the tracks, in a public and well-frequented street in the city, and left in the presence of two citizens, and the question of the fitness of the place where the train stopped is eliminated. In this respect the case is like that of Hamilton v. Railroad Co., 183 Pa. St. 638 (38 Atl. 1085), where one walked back'to a station after being carried by, and was there injured. The court said it was as though he had gotten off at the station.

Plaintiff’s counsel insist that it must be left to the jury to say how drunk the man was, and whether, under the circumstances, it was negligence to put him off. We should add to that, “And leave him 25 feet east from the tracks on a public highway, in the presence of two officers, who were conservators of the peace.” The evidence in this case is practically undisputed.- Evexy witness who testified said that the man could walk and could talk. He knew that fare was required of him, and he insisted that the conductor should carry him for the same fare that the electric line charged; and, when he was informed that he could not do so, he refused to pay more, and at once acquiesced in the conductor’s demand that he leave the train. He alighted unaided. He then left the track to go to Detroit, found some citizens and inquii’ed the way, but declined to go with them. All knew that he had been drinking, — perhaps considered him drunk, — but the testimony of no one indicates that he was unable to care for himself. All, from the saloon keeper — who testified that he was in the'habit of keeping track of his patrons’ trains, that they might not miss them, so that they might freely drink all that they were disposed to buy, and who obligingly assisted them to their respective trains — to the last man to talk to him, agree that he was able to care for himself, though drunk. There is nothing’on this record to make it incumbent on this conductor to do more than to see that this man, in his apparent condition, left the railway premises, and was talking with citizens 25 feet away from a point of danger. If there was any negligence at any stage of the proceeding, — -which we do not intend to intimate, — it ceased as a factor in this case when the plaintiff left the premises and reached a place of safety.

It is unnecessary to cite and discuss the numerous cases which counsel have cited in their briefs. Each rests upon its own facts, as this one must do; and the rule that, wherever a claim of negligence is made, the case must be given to a jury, though the undispted facts conclusively show an absence of negligence, does not obtain in this State, as numerous decisions show. A verdict for defendant should have been directed.

The judgment is reversed, and a new trial ordered.

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


text:
    PEOPLE v. NIELSEN.
    Embezzlement — Deposit in Private Bank.
    The evidence is examined in this class, and it is held that the uncontradicted testimony shows that the complaining witness deposited the money in question in a private bank, to remain there until it should be needed, and that therefore the respondent, one of the bankers, was not guilty of embezzlement as an agent, although the money was lost by the failure of the bank.
    Exceptions before judgment from Oceana; Palmer, J., presiding.
    Submitted February 21, 1902.
    (Docket No. 127.)
    Decided June 3, 1902.
    Frederik Nielsen was convicted of embezzlement.
    Reversed.

      Hartwick & Skeels (B. A. Montgomery, of .counsel), for appellant.

      Horace M. Oren, Attorney General, and Wallace Foote, Prosecuting Attorney, for the people.
   Hooker, C. J.

The defendant was convicted of the offense of embezzlement. He and a copartner named Ambler owned and conducted a bank at Pentwater. Peterson, a cousin of the defendant, had some negotiations with him in relation to the former’s taking Ambler’s interest in the bank by purchase, and Nielsen, the defendant, made a proposition, the substance of which was that Peterson should borrow a sum of money in Europe, that it should be delivered to Nielsen or the bank, and that the same should draw interest, and Peterson should be employed in the bank, until an arrangement for partnership could be made between Nielsen and himself. Peterson procured the money from friends in Europe, and delivered it to Nielsen at the bank, and he in turn delivered the draft to an employe, with directions to him to enter it for collection, and it was sent to the bank’s correspondent at Chicago, and the credit exhausted by being drawn against. Subsequently the Pentwater bank failed, and Peterson never recovered his money.

The defendant’s counsel insist that the uncontradicted testimony shows that the understanding was that the money should be deposited in the bank by Peterson until it should be needed, while the prosecution claims that the money was left by Peterson with Nielsen, to be kept for him until the arrangement could be made with Ambler for his interest, when it was to be used to pay him. It is only upon the latter theory that the verdict can be sustained. We have examined the testimony bearing upon the subject, and are of the opinion that it leaves no room for doubt that the arrangement was as claimed by defendant’s counsel. The testimony of Peterson, taken as a whole, is consistent with no other theory.

The conviction is reversed, and a new trial ordered.

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


author: Montgomery, J.

text:
    GROSS v. CREYTS.
    Quantum Meruit — Express Contract — Acceptance oe Work.
    Where a person accepts and makes use of work performed under an express contract, he will be liable on the quantum mei'uit count, though the work did not conform to the contract.
    Error to Ingham; Wiest, J.
    Submitted April 8, 1902.
    (Docket No. 13.)
    Decided June 3, 1902.

      Assumpsit by John G. Gross against John Oreyts for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      L. B. & H. M. Gardner, for appellant.

      Jason E. Nichols, for appellee.
   Montgomery, J.

The plaintiff recovered the value of work and materials furnished in plumbing the house of defendant. Defendant brings error.

The work was performed under a written contract. Defendant contended that the worki had not been performed in accordance with the terms of the contract, and denies any obligation to pay for the same, on any terms. The jury found, in answer to special questions, that plaintiff did not complete the plumbing according to contract; but as the plaintiff’s claim was for $156, and a jury awarded a verdict for $150.46, the deficiencies were manifestly not relatively very great.

The circuit judge charged the jury that, if the contract had not been complied with, the plaintiff might still recover under the quantum meruit count. Defendant’s counsel complain of this instruction, and contend that the defendant was not bound to accept the plaintiff’s work unless it conformed to the contract; citing Martus v. Houck, 39 Mich. 431 (33 Am. Rep. 409), Sheldon v. Leahy, 111 Mich. 29 (69 N. W. 76), and other cases. These cases are clearly distinguishable. If it be true that defendant was not bound to accept plaintiff’s work, the answer is that he did accept it. A portion of the contract was for bathtub, washbowl, etc. Instead of refusing to accept them, defendant, in his repairs and improvements, made use of them. The rule in Allen v. McKibbin, 5 Mich. 449, applies.

Judgment affirmed.

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


text:
    KNIGHT v. BARR.
    Water Power — Obstruction of Stream.
    The owner of both banks of a stream in which a dam had been constructed from the left bank diagonally to the center of the stream, thence nearly parallelwith the stream for 40 feet, - thence directly down the stream to the corner of a mill, con- • veyed the left bank and to the center of stream, reserving the water power. Held, that t*he testimony showed that driving 31 piles, for the foundation of a building intended to be erected by the grantee in his part of the stream, would not appreciably interfere with the water power.
    Appeal from Calhoun; Smith, J.
    Submitted April 10, 1902.
    (Docket No. 64.)
    Decided June 3, 1902.
    Bill by Andrew Knight and Solomon Fess against Kate Barr and Madison Barr to enjoin interference with certain water rights. From a decree for complainants, defendants appeal.
    Reversed.

      F. M. Wadleigh, for complainants.

      F. W. Clapp, for defendants.
   Hooker, C. J.

Battle Creek river, at the point covered by the controversy before us, is upwards of 100 feet wide. It is crossed by a bridge on Main street, in the city of Battle Creek. This bridge is about 300 feet above the junction of Battle Creek with Kalamazoo river, and the rights in dispute' pertain to the Battle Creek river immediately below the bridge. A cobblestone dam, a couple of feet high, joins the left bank of the river (looking down the stream) at a point 5 or 6 feet below the bridge. It extends out into the stream, at nearly right angles, for a distance, when it strikes down stream on a tangent, at about 45 deg., to a point approximately in the center of the stream. From that point it turns still farther down stream, nearly parallel with the stream, for 40 or 50 feet, when it turns directly down stream to a point near the corner of complainants’ mill. The effect of this construction is to turn the water to the right side of the river, and the last section of the dam conducts the water, as a flume would do, to an undershot wheel, which moves the complainants’ machinery. The mill stands over the stream, is supported on piles, and fronts upon the bridge. It covers but little less than half of the width of the stream. The accompanying plat will show the situation.

The defendants own the bed of the river between the center line and the easterly bank, having acquired title from Staples, who in turn took it from Walter Clark, the common grantor, from whom both parties to the suit derive title. In each of the deeds going to make defendants’ title the following provision is found, viz.: ‘£ Reserving all use of the water power, said party of the second part .not to obstruct the same in any manner.” The bill in the cause is filed to enjoin the defendants from driving piles in the bed of the river, upon their premises, upon which to set a building. The proof shows that they intended to drive round piles a foot in diameter. Four were to have been driven parallel with and just below the bridge, above the dam, the nearest 4 feet therefrom, said four piles extending from the center of the stream to the east bank, 12|- feet distant from each other. It was also proposed to drive below the first row, at intervals of 12-J- feet each way, similar piles, to the number of 32, all but one of which would have been below the dam. It was the complainants’ contention that these piles would obstruct the flow of water, within the meaning of the reservation, especially those below the dam, which it was contended would tend to prevent the water from clearing away from the wheel, thereby injuring the power through backwater. A number of witnesses testified that these piles would obstruct the flow of water appreciably; others, that they would not. The learned circuit judge, who saw the premises, was of the opinion that the complainants might be harmed if these piles were driven, and granted the relief prayed.

After an examination of the testimony, we are of the opinion that they would have no appreciable effect. The defendants paid a valuable consideration for this land. They are entitled to make any use of it that does not obstruct the water to complain"ants’ injury, and they should not be compelled to forego such use for complainants’ accommodation, unless there is a well-grounded apprehension of injury. We think that is lacking.

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

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


author: •Hooker, C. J.

text:
    TROMBLE v. HOFFMAN.
    1. Foreclosure oe Tax Lien —Notice by Publication —Jurisdiction.
    Notice by publication was sufficient to give the court jurisdiction in a proceeding to foreclose a tax lien under the law of 1889, where the land was unoccupied and assessed as unknown, although the owner was in fact a resident of the State. In re Wiley, 89 Mich. 58.
    2. Same — Order op Publication — Time.
    An order made in term, fixing a time for hearing during the same term, in a proceeding to foreclose a tax lien under the law of 1893, does not confer jurisdiction. Ledyard v. Audi_ tor General, 121 Mich. 56; Roberts v. Loxley, Id. 63.
    3. Same — Appearance—Waiver.
    An appearance by a defendant waives irregularities in the proceedings to bring him into court.
    4. Same — Appbaranoe by Solicitor.
    Where two parcels of land, owned by different persons, are assessed under one description as unknown, an appearance, in the proceeding to foreclose the lien, by a solicitor for the owners of one parcel, does not give the corfrt jurisdiction over the owners of the other parcel, although the solicitor contests the tax upon the whole of the land assessed.
    5. Judicial Notice — Terms op Court.
    The court will take judicial notice of the times of holding its terms of court.
    6. Void Decree — Collateral Attack.
    A decree for a tax sale, made at the same term as the order for hearing, is void on its face, and may be attacked in a collateral proceeding.
    7. Irregularity in Decree — Finding op Court.
    The finding of an irregularity in a decree, by the court which made it, should not be reversed upon a question of fact, where the testimony is very conflicting.
    8. Voidable Tax Decree — Collateral Attack.
    A tax decree in which the amount decreed is computed and written in by some one after the decree is signed and out of the control of the court is not void on its face, but voidable, and cannot be attacked in a collateral proceeding, nor will it be set aside in a direct one, unless justice demands it.
    9. Same — Petition to Vacate — Laches.
    A tax decree voidable by reason of a technical irregularity will not be set aside upon a petition filed more than a year after the petitioner learned of the sale, where it appears that the decree was not excessive, and the petitioner had sufficient notice of the same to have saved the land before the rights of third persons intervened.
    Appeal from Bay; Shepard, J.
    Submitted April 9, 1902.
    (Docket No. 29.)
    Decided June 3, 1902.
    Petition by Fremont J. Tromble against Charles E. Hoffman and Perry F. Powers, auditor general, to vacate certain decrees for the sale of land delinquent for taxes. From a decree for petitioner, respondent Hoffman appeals.
    Be ver sed.

      C. L. Collins, for petitioner.

      G. W. Davis, for appellant. -
   •Hooker, C. J.

The petition in this case is filed by one claiming title to the E. \ of the N. E. ¿ of a section of land in Bay county, to vacate two decrees for taxes, for the years 1890 and 1891, respectively, under which the lands were bid in for the State in 1893, and subsequently sold and conveyed to the defendant Hoffman by the auditor general. A decree was made in substantial accord with the prayer of the petition, and defendant Hoffman has appealed.

The land in question was unoccupied until Hoffman bought it, when he went into possession. It appears that, at the time of the assessment, the north 40 acres belonged to a copartnership composed of Archibald G. Lindsay and Patrick M. Gamble, and that they were residents of this State, though not of Bay county. The south 40 acres belonged to parties residing in New York, named Heath and • Bossitier. Both 40-acre parcels were assessed together as the E. -I o£ the N. E. £, as “unknown,” both years; and, the taxes being unpaid, proceedings to enforce collection were commenced by the auditor general in the usual way. A subpoena was issued upon the filing of the petition for the tax of 1890 to Heath and Rossitier, which was served upon one Eitzhugh, their agent. Notice was also published as prescribed by law. This was under Act No. 195 of the Public Acts of 1889. Upon the filing of the petition for the tax of 1891, an order of hearing was made on October 3, 1893, for the 10th of November following, and this was duly published. This was under Act No. 206 of the Public Acts of 1893. In each case counsel appeared for Heath and Rossitier, and made a successful contest against portions of the taxes levied on the E. of the N. E. ¿, and a special decree was rendered in each case setting aside, as invalid, a portion of the tax, and determining the amount of the valid tax, and these were entered in the margin. Afterwards the general decrees were made upon the petitions, and these referred to and by reference included the special decrees. The lands were sold in 1893 upon both decrees, and came to the possession of Hoffman through the purchase from the State by deed dated November 20, 1895.

The petitioner, Tromble, claims to have acquired title to both parcels. As to the north 40, he received a deed from Lindsay, as survivor of Lindsay & Gamble, dated May 24, 1897, recorded July 14, 1897. This deed states that “the lands above described are part of the estate of the late firm of Lindsay & Gamble, and said Lindsay is required to make this sale to obtain funds from which to meet the obligations of said copartnership. ” It is claimed, on behalf of the petitioner, that Heath and Rossitier had a title to the south 40, but defendant insists that an undivided one-eighth interest was lacking. In January, 1900, they deeded to petitioner whatever title they had.

The petitioner had early notice of Hoffman’s'claim, for he saw him at work upon the premises, and ordered him to desist, and sent him a letter warning him not to trespass upon any of the lands of Heath and Rossitier, in January, 1896, signed by himself as their agent. In June, 1898, petitioner brought ejectment against Hoffman in the circuit court for the county of Bay, in which he joined with himself, as parties plaintiff, both Heath and Rossitier, and alleged in the declaration that the plaintiffs had owned the land in question in fee' simple for upwards of five years prior to June 18, 1898. Before the disposition of this case, and on January 17, 1900, he filed a bill against Hoffman, and sought an injunction to restrain him from cutting or selling timber from the premises. An answer in the nature of a cross-bill was filed, setting up defendant’s title, and this resulted in an amendment of the bill, in which a number of defects were alleged against defendant’s title. This was after an order pro confesso for want of an answer to the cross-bill had been set aside.

While the motion to set aside the order pro confesso was pending, petitioner filed two petitions for leave to file bills of review in the tax proceedings referred to, in which he alleged upon oath that he became the owner of the original title to the north 40 on May 24, 1897, and of the south 40 on June 15, 1900. Upon the hearing of these petitions, they were dismissed. Soon afterwards the petition in this proceeding was filed, and notice that the same would be brought o'n for hearing on January 14,1901, was served, with a copy of the petition, upon defendant Hoffman, and presumably upon the auditor general. Hoffman answered, and, before the matter was heard, petitioner filed an application with the auditor general asking that the defendant’s tax title be canceled. This was afterwards denied. Proofs were takep. in the chancery case, and at the hearing of said cause it was determined to submit the proceedings upon the petition at the same time; the proofs in the chancery case being used in connection therewith by stipulation.

Did the court get jurisdiction to adjudicate and foreclose the tax lien on the north 40 for the tax of 1890? The entire 80 was assessed as “unknown.” When the petition was filed, a subpoena was issued, directed to Archibald G. Lindsay and Patrick M. Gamble, describing other lands, but not this parcel. It was served on one Henry Gamble. . The usual notice was published. Now comes an alleged owner, who attacks this tax title on the ground that, Lindsay & Gamble, his grantors, being residents of the State, a subpoena describing these lands should have issued, and been served upon them. The effect of this claim would be to compel the prosecuting attorney to determine at his peril whether the owner of each tract of land is a resident of this State or not, and, if he is, obtain service of process upon him. Failing to do so as to a parcel would be fatal to the jurisdiction. This land was assessed as unknown, and we must assume that it was unoccupied, as the proofs show it to have been. We must also presume that the owner was not known by the supervisor, and that the assessment was regular.

It is urged that, under the law of 1889, a failure to serve a subpoena upon the delinquent taxpayer or the actual owner was fatal to the jurisdiction of the court as to the land owned by such persons, and that notice by publication would not cure the defect. We are cited to the following cases in support of this: Taylor v. Deveaux, 100 Mich. 581 (59 N. W. 250); Fowler v. Campbell, 100 Mich. 398 (59 N. W. 185); Coyle v. O’Connor, 121 Mich. 596 (80 N. W. 571). An examination of those cases will show that in no one of them was the land assessed as unknown or nonresident, but inferably, at least, it was assessed to residents. In re Wiley, 89 Mich. 58 (50 N. W. 742), is a Case which has some bearing upon this question. The land in that case was assessed to the apparently resident owner, and subpoena was issued against and served upon him; but before its issue he had sold the land, and the petitioner had become the owner. He attacked the jurisdiction upon the ground that subpoena should have issued against and been served upon him. The court held otherwise, saying that the “delinquent taxpayer who is a resident of this State ” meant persons against whom the tax was assessed, whose names appeared upon the assessment roll. The following quotation is pertinent in this connection:

“The tax law of 1889, under which this proceeding is had, nowhere provides any compensation for the examination of the records in the office of the register of deeds to determine in whom the title of record of the lands returned delinquent for taxes stands, and against whom subpoenas upon the filing of the petition shall issue. It does not provide any compensation to any person for making such searches. It simply provides that the register shall issue a subpoena directed to each delinquent taxpayer who is a resident of this State. The legislatüre evidently intended that the subpoena should issue and be served upon the person against whom the tax was assessed, and whose name appeared upon the tax roll for that year. It evidently was not the intention of the'legislature to make the jurisdiction of the court depend upon the service of the subpoena in that class of cases where the lands were not occupied and were assessed as nonresident, as there would be no means by which the register of the court could determine the real owner of the premises by any search which he might make in the office of the register of deeds, as it frequently happens that deeds are not recorded for months, and sometimes for years, after their execution and delivery. The use of the words ‘ delinquent taxpayer who is a resident of this State ’ undoubtedly was intended to apply to persons against whom the tax was assessed, whose names appear upon the assessment roll. This section (54) gives the court jurisdiction to enter a decree against such persons, and makes the publication of the notice equivalent to personal service.”

Upon the face of the record, the land was assessed to unknown parties, if not nonresidents. In such a case jurisdiction was obtained by publication, under the interpretation of the statute quoted, and the three cases cited have no application. See, also, Nowlen v. Hall, 128 Mich. 274 (87 N. W. 222), for a similar case. This is 'conclusive of the jurisdictional question in the proceedings to enforce the tax of 1890 upon the north 40.

What has been said of the tax of 1890 is true of that of 1891, in part. The record shows that Heath and Rossitier were represented by attorney, and made objections to the taxes upon the E. £ of the N. E. i, hut nothing indicates that Lindsay or Gamble appeared. We understand that the validity of the proceedings for the foreclosure of the tax of 1891 is not attacked upon the same ground. These proceedings were commenced under the tax law of 1893, which does not contain the requirement of personal service of a subpoena, but provides for publication of an order as notice of the pendency of the proceeding. This was done.. The defect complained of in this proceeding is that the decree was entered at the same term at which the order was made. Section 62 of the tax law of 1893 prescribes the f.orm of the order, which requires all persons interested to file their objections on or before the first day of the term at which the notice fixes the hearing of the petition. We have held in two cases that an order made in term, fixing a time for hearing during the same term, does not confer jurisdiction. Ledyard v. Auditor General, 121 Mich. 56 (79 N. W. 918); Roberts v. Loxley, 121 Mich. 63 (79 N. W. 978).

This would be conclusive as to this title, were it not for other questions raised by the defendant; e. g., he claims that the appearance of counsel who contested the tax upon this 80-acre parcel, which included the 40 under discussion, conferred jurisdiction upon the court, and renders immaterial questions relating to process. It is undeniable that, if it can be said that Lindsay & Gamble appeared and contested these taxes, defendant is correct, and jurisdiction was acquired, whether process was regular or not.

It is claimed on behalf of the defendant that it must be assumed that the appearance of Mr. McHugh was for Lindsay & Gamble. Manifestly, if it was not, there was no waiver of jurisdiction, unless we are to say that any volunteer may waive process for another, which cannot be true. Had Mr. McHugh professed to appear for Lindsay & Gamble, who should then be called upon to decide whether the party, on discovery of that fact, might not move in the same proceeding to vacate the decree; but a reference to the objections filed shows whom this attorney appeared for, and the names of Lindsay & Gamble are not among them-. The names of Heath and Rossitier are; and appended to the objections is a list of lands in which he appears for Heath and Rossitier, and this 80-acre lot is included. So, on the face of the record, Lindsay & Gamble did not appear, and therefore cannot be said to have waived the defects in process through the appearance of counsel.

Counsel for the defendant seeks to break the force of this objection by the claim that, inasmuch as Lindsay & Gamble did not ask the board of review to have this assessment corrected, neither they nor their grantees can now complain of it. We may safely treat this as so, for the purpose of the case, and say that the tax may not be held invalid by reason of the error- in assessment. It is not the erroneous assessment, but the failure to bring in the owner, who was entitled to service of process, though he might not complain of the manner in which his land was listed. The appearance for Heath and Rossitier was ineffective to waive this jurisdictional question for Lindsay or Gamble.

' From the foregoing it will be seen that the decree under which the defendant claims title on the sale for the tax of 1891 was void as to the north 40 for want of jurisdiction, and that the same appears on the face of the record, as the court will take judicial notice of the times of holding its terms. Ledyard v. Auditor General, 121 Mich. 56 (79 N. W. 918); Roberts v. Loxley, 121 Mich. 63 (79 N. W. 978). It is therefore subject to attack in collateral proceedings. The same cannot be said of the south 40. In each case Heath and Rossitier saw fit to appear and contest the tax, which gave the court jurisdiction, although the process may have been defective or not served, and notwithstanding the hearing at the same term that the order was made.

Counsel for the petitioner attacks the decree upon another ground, viz., that the amount decreed was in each case written in after the decree was signed, by some officer of the county treasurer’s office, and based iipon computations made after the decree was signed. The testimony is conflicting on this point, but the testimony of the judge and his clerk indicates that the contested taxes were determined and announced and entered on the margin by the judge, or at his direction, and that, before the final decree was signed, all amounts had been entered by some one. Other witnesses thought that the entries were made in the treasurer’s office, and after final decree was made and signed. The learned circuit judge who heard the testimony found that the amounts were entered after the decree was made, and we think that the finding of an irregularity in a decree by the tribunal which made it should not be reversed upon a question of fact in a case where the testimony is so conflicting as in this.

The statute forbids the setting aside a sale after the lapse of one year from confirmation. In Benedict v. Auditor General, 104 Mich. 269 (62 N. W. 364), we held that, where the proceedings were absolutely void for want of jurisdiction, section 70 of the tax law did not preclude a review of the question on petition to vacate the decree. In the case of Berkey v. Burchard, 119 Mich. 101 (77 N. W. 635, 79 N. W. 908), it was held that, under section 70 of the tax law of 1893, “leave to file a bill of review should not be granted in a tax proceeding after confirmation of the sale, unless a total want of jurisdiction to make the decree is shown, or one of the two causes mentioned in the statute exists. ” In the case of Spaulding v. O’Connor, decided at the same term, and reported in 119 Mich. 45 (77 N. W. 323), it was clearly indicated that “a sale will not be set aside after confirmation, either on petition or bill of review, except for one of the reasons specified, or (under Benedict v. Auditor General) for defects going to the jurisdiction.” See, also, Wilkin v. Keith, 121 Mich. 74 (79 N. W. 887).

It is said that the decision in the case of Morgan v. Tweddle, 119 Mich. 350 (78 N. W. 121), followed by First Baptist Church v. Roberts, 120 Mich. 704 (79 N. W. 910), excepts from the effect of section 70 cases where an attempt is made to show that the decree was irregularly-made. We find it unnecessary to pass upon this question.

It is undoubtedly within the power of a court of chancery to review its own action, in a direct proceeding, after the lapse of more than a year, in all ordinary cases; and this case is no exception, unless the tax law has made it so. In putting this provision into the law.(Act No. 206, Pub. Acts 1893, § 70), the legislature has attempted to curtail the power of review in this class of cases. As we pointed out in Spaulding v. O’Connor, a technical construction would not have permitted us to set aside sales by this method even where there was an absence of jurisdiction, and would require us to treat it as an absolute bar as to irregularities, except in the two cases mentioned in the statute, leaving parties to seek other relief.

But if these cases are overruled by the later cases cited, it does not follow that the decree should be vacated. The decree is not void upon its face, and, while it may be attacked in a direct proceeding, it must have all of the verity of a decree until it is attacked. See Wilkin v. Keith, 121 Mich. 73, 74 (79 N. W. 887). An analogous question was discussed in Peninsular Sav. Bank v. Ward, 118 Mich. 93 (76 N. W. 161, 79 N. W. 911). Being voidable merely, the court cannot question its validity in a collateral proceeding; nor is it bound to set it aside in a direct one, unless justice demands it. In the case of Cook v. Hall, 123 Mich. 378 (82 N. W. 59), it was sought to set aside decrees for defects in their nature jurisdictional, some of which must have appeared from records of the court, if not in the case, and therefore subject to collateral attack. But relief was denied upon the ground of laches, two years having elapsed after the petitioner learned of the sale. Mr. Justice Grant alluded to petitioner’s disregard of the known fact that his lands were assessed and taxed, and that, if payment of the taxes was not made, they would be, and were, under the law, sold. , He allowed others to acquire interests in the same in reliance upon this sale, and no equity was shown justifying the vacating of the sale. This case was followed by Cook v. Auditor General, 124 Mich. 430 (83 N. W. 96), where the court exercised its discretion by refusing to compel a cancellation of the deed by the auditor general.

In Spaulding v. O’Connor, supra, the rule was recognized in the following language:

“ The practice of -setting aside sales upon foreclosure is not a statutory one, but is done in the exercise of a power essentially equitable, inherent in the court of chancery. Its exercise is not limited to cases where there is irregularity, but, where the sale is not void, special circumstances appealing to equitable considerations must exist * * * Not only must there be equitable considerations to move the court, but there must also be an absence of laches.”

In the present case the persons who owned these lands knew that they would be taxed, and sold if the taxes were not paid. The owners of the south 40 appeared and contested the tax, by counsel, and presumably knew of the decree. Yet they took no steps to save the land or vacate the decree. The owners of the north 40 paid no attention to it, and, if the deed correctly states the consideration, sold it to the petitioner for $1. What was the petitioner’s relation to these lands ? He claims to have had some kind of an arrangement with the owners in regard to these lands before the State bought them. It was his duty to pay the taxes, in certain contingencies. He knew that they were taxed, knew that they were returned in time to redeem them, knew that they were purchased by the State, and corresponded with the auditor general about them. Subsequently he knew that Hoffman claimed them, and wrote to him and saw him in relation to them. He then bought the original title himself, and laid claim to them, and finally took legal proceedings, but not in the first instance to set aside this decree. He began ejectment, claiming the tax title to be void. He filed a bill upon the same theory. Later, he filed a bill of review to set aside the decree, and after this was dismissed he applied to the auditor general for cancellation. All of these proceedings sought to avoid the payment of the small tax which was levied upon these lands. Finally, as a last resort, he has filed this petition. He relies upon a technical point, rather than a meritorious one. It is not claimed that this decree is larger than was announced, or that it was for more than a just tax, or for a tax that the landowners ought not to have paid; but one in privity with those parties now appears and asks a court of equity to set aside its own just decree, upon an irregularity that has not affected or changed the decision made, notwithstanding the fact that rights have been acquired and expense incurred in reliance upon it. If it be granted that the power is not taken away by the statute, the fact remains that, as equity may always refuse in such cases to grant relief where laches are shown, so it may refuse relief, and validate the decree, notwithstanding the irregularity, where equity and justice demand it. It is not to be inferred that a void decree would be made valid, but this relief may be refused.

The decree is reversed, and petition dismissed, with costs.

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


text:
    KUNZE v. TAWAS STATE SAVINGS BANK.
    1. Banks — Deposits—Transfer of Credit by Cashier.
    Petitioners deposited a draft in a bank, and at the same time left their pass-book to be balanced, which was returned to them after the failure of the bank. It then appeared that the cashier had stricken out the credit item made at the time-the draft was deposited, and transferred it to a lumber company to which petitioners had previously given their note. Held, that a previous understanding that the money received on the draft should be applied on the note did not authorize the cashier to make the transfer of such credit item at a time when the note had passed beyond the control of the lumber company.
    3. Bank Depositors — Creditors—Correcting Order of Court.
    Where, on the hearing of a petition by bank depositors asking that the receiver of the bank treat them as general creditors, the evidence showed them to be depositors, but an order was entered declaring them to be creditors, it is within the power of the court, upon a subsequent petition, to correct the order, and declare them to be depositors.
    Appeal from Iosco; Connine, J.
    Submitted April 10, 1902.
    (Docket No. 42.)
    Decided June 3, 1902.
    Petition by Emil E. Kunze and John Applin, copartners as Kunze & Applin, against the Tawas State Savings Bank, for the correction of an order declaring them to be general creditors of said bank. From an order denying the petition, petitioners appeal.
    Reversed.

      George L. Cornville, for petitioners.

      William H. Simpson, for defendant.
   Montgomery, J.

The Tawas State Savings Bank became insolvent July 23, 1898. At this date petitioners, according to the books of the bank, were depositors in the sum of $1.09. In October, 1899, they filed their petition, asking for an order directing the receiver to treat them as general creditors of the bank in the additional sum of §1,550. This petition was granted, and such an order made by Judge Simpson, who was then circuit judge. Both petition and order recite that petitioners were depositors, but the prayer of the petition is that they be made general creditors, and that is the language of the order. In June, 1901, petitioners filed a new petition, reciting that, upon the hearing of the former petition, the proofs showed that they were depositors, and that the designation of petitioners in the order as ‘ ‘ general creditors,’’instead of “depositors,” was a mistake, and asking to have the order amended by the substitution of the words “general depositors” for “general creditors.” The petition was denied by Judge Connine, Judge Simpson’s successor as circuit judge.

The proofs show .that petitioners had a contract with the French Land & Lumber Company, by which petitioners purchased of said lumber company certain ties, and sold the same to the Pontiac, Oxford & Northern Railway Company, and that petitioners gave the French Land & Lumber Company their notes for the ties received. $2,850 of these notes were outstanding at the time of the failure of the bank. They had passed from the lumber company through the hands of the bank, and had been rediscounted in Detroit. These facts were unknown to petitioners. None of the notes were due.

In June, 1898, petitioners deposited in the bank a draft for §1,425 from the Pontiac, Oxford & Northern Railway Company, which they had received in payment for ties. They left their pass-book at the bank to be balanced, and did not receive it back until after the bank failed. When they received their pass-book, they discovered for the first time that Mr. French, who was also cashier of the bank, had stricken out the credit in the pass-book, and inserted the memorandum, “Credited to French Land & Lumber Company,” and had also, without their knowledge, made a memorandum check against their account for $125, and credited the same to the French Land & Lumber Company. This was done to apply on petitioners’ indebtedness to the French Land & Lumber Company, represented by a note for $1,550 at that time held by the First National Bank of Detroit, under the indorsements of the French Land & Lumber Company and the bank, and due July 27th, four days subsequent to the failure of the bank. Mr. French testifies that there was an understanding with petitioners that the money received from the railway company by petitioners at this time should be applied on this note, that the credit of this draft to their account was a mistake, and that he merely corrected it. We think, however, that his testimony fails to make it clear that they agreed to pay this money to the French Land & Lumber Company at a time when the note was beyond the control of said company, making it impossible for the payment to be indorsed thereon, thus relieving petitioners from liability to the holders of the note to the extent of the payment. He nowhere testifies that this was the understanding, or that the agreement to which he testifies was made by petitioners knowing that the French Land & Lumber Company had disposed of the note.

Judge Simpson found, and we think correctly, that the shifting of the deposit of $1,425, and the drawing of the memorandum check for $125, were unwarranted. At that time he could have permitted an amendment to the prayer of the petition, and entered the order now sought, and such a course would have been in accordance with his finding on the facts.

The opinion of the present circuit judge is in part as follows:

“In looking at the original petition, there seems to be considerable doubt whether Mr. Kunze ever attempted to have himself classed as a depositor; and the order that Judge Simpson made in the case does not declare him to be a depositor, and does not make that draft or business' item a deposit in the bank. * * * I am unable to find from a preponderance of the evidence that the item involved in this, petition was a deposit, or should be so considered by the court, and for that reason the petition will be denied.”

"We think the finding that the items were not deposits is in conflict with the undisputed testimony; that it was within the power of the circuit judge to correct the mistake in Judge Simpson’s order; and that, as the order appealed from was entered upon the contrary theory, it should be reversed.

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


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    McDONALD v. HOLLYWOOD’S ESTATE.
    1. Insolvent Estate — Allowance to Widow.
    An. allowance out of an insolvent estate to a widow, to continue for a longer time than one year from the granting of administration, is forbidden by 3 Comp. Laws, § 9322, subd. 2.
    2. Same — Probate Court — Power to Modify Order.
    Where an order in an insolvent estate gives to the widow a certain sum per month during the settlement of the estate, and two years later the allowance is ordered discontinued, and less than the amount due for one year has been paid, the probate court may subsequently modify the original order by limiting it to one year from the granting of administration.
    Error to Wayne; Rohnert, J.
    Submitted April 11, 1902.
    (Docket No. 97.)
    Decided June 3, 1902.
    Petition by Theodosia P. Hollywood, widow of James N. Hollywood, for ail order directing the administrator of his estate to pay an allowance for her support. The petition was disallowed in part by the probate court, and petitioner appealed to the circuit. From a judgment affirming the order of the probate court, James H. McDonald, executor of her last will and testament, brings error.
    Affirmed.

      James H. McDonald, for appellant.

      W. M. Lillibridge and George H. Prentis, for appellees (creditors).
   Hooker, C. J.

Dr. Hollywood died on April 9, 1893, and in December of that year an order was made by the Wayne county probate court making his widow an allowance from the estate of $250 per month, to commence from April 9, 1893, and to continue during the settlement of the estate. On October 28, 1895, the probate court made an order that the allowance made for the support of the widow as aforesaid be discontinued and ordered to cease from the date of the latter order. It is claimed on behalf of the executor of the widow that those two orders, taken together, have the force of a judgment, and fix the amount for which she has a valid and incontestable claim against the estate. She has received the sum of $2,703.86, and claims that she is entitled to the payment of the remainder, with interest, and that her claim is one that takes precedence over those of creditors of the estate.

On April 8, 1901, the present administrator being in possession of some funds realized from the sale of real property belonging to the estate, the widow petitioned the court, asking that, because the personal property and rents had been used by a former administrator for other purposes, her full allowance should be paid from the money referred to. A petition was also made on behalf of one who claimed to be a creditor of the estate that this fund be distributed among the creditors of the estate. The two petitions were heard together, and the court made orders directing the payment to the widow of an amount sufficient to complete payment of her allowance at the prescribed rate for the period of one year from the date of the death of the intestate, and the remainder of the money to the creditors. The widow’s allowance after one year was denied upon the ground that the estate had become insolvent, and was insufficient to pay all of this allowance and all of the creditors. The circuit court affirmed the action of the probate court, and the cause is before us on appeal by the widow.

The allowance to a widow beyond the period of a year is within the discretion of the probate judge, except where the estate is insolvent. In the case of Pulling v. Wayne Probate Judge, 88 Mich. 389 (50 N. W. 319), it was held that the proper practice is to make the allowance for a year, after which further allowance is discretionary, and that one applying for it might properly be required to make some showing of her needs and circumstances. See, also, Bacon v. Kent Probate Judge, 100 Mich. 187, 188 (58 N. W. 835). It is contended, however, that a showing is not indispensable, and that the order of October 28, 1895, was, in effect, a further allowance, and that it is not subject to change. On the other hand, it is claimed that there has been nothing paid upon. the allowance beyond the amount falling du'e within the year, and that it was within the power of the probate judge to rescind the order at any time when circumstances showed it to be proper. It is also claimed that the order of the probate judge denying payment was not appealable; but we do not discover that the last-mentioned point was made in the circuit, and we do not pass upon the question.

In Freeman v. Washtenaw Probate Judge, 79 Mich. 390 (44 N. W. 856), it was said that “these orders are in the discretion of the probate judge, and he may modify or rescind them at any time.” See, also, In re Power’s Estate, 92 Mich. 106 (52 N. W. 298); Marskey v. Lawrence, 121 Mich. 580 (80 N. W. 571). The latter case was similar to the present case in some respects, while it differs in others. The intestate died in December, 1897. A valid order made August 31, 1898, in an admittedly solvent estate, gave the widow $12 a week during the progress of the settlement of the estate, or until the further order of the court. On April 22, 1899, the probate court assigned the residue of the estate, and an appeal was taken from this order. The question in the case was whether the widow was entitled to her allowance after the order of distribution of the estate was made by the probate judge, and it was held that she was, under the order as made; and, in answer.to a suggestion of counsel that an allowance might, by a collusive appeal, be indefinitely extended, it was said that the allowance is subject to modification or rescission at any time.

The only question left in the case, as we view it, is whether a rescission can be retroactive in its effect, and deprive a widow of accrued installments which have not been paid. It may be said that the case last cited impliedly holds that an order cannot have retroactive effect. This inference, however, must be based upon the assumption that the order of distribution was tantamount to a modification or rescission of the order of allowance. We think otherwise, however. The case turned upon the meaning of the term “during the progress of the settlement,” etc., and there was no indication of an intention to curtail the allowance, but, rather, to give such an amount as the order of allowance entitled her to, under the law. In this case the claim is made that the estate was insolvent. If that was so, an allowance for more than a year was forbidden by law. See 3 Comp. Laws, § 9322, subd. 2. Had the probate judge known that it was insolvent, he would not have made the order for more than a year; but it was not then known, and could not have been; and there would be a manifest propriety in modifying or rescinding* an order under such circumstances. The order relied upon, if enforced, would give to the widow the sum of $10,500 and upwards, with interest. This would be manifestly unjust to creditors of an insolvent estate, if not to children in a case of an ordinary estate, though solvent, and would call for a modification by the court upon the subject being brought to its attention; and we think it subject to such modification or rescission at any time before payment.

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

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


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    ANDERSON v. VAN BUREN CIRCUIT JUDGE.
    Criminal Law — Information—Statement of Offense — Local Option Law.
    An information against a druggist for making sale of intoxicating liquors contrary to Act No. 183, Pub. Acts 1899, which charges “that the sale was not made under and in compliance with the general laws of the State of Michigan,” is insufficient, as it does not apprise the respondent of the nature of the violation.

      Mandamus by David Anderson, prosecuting attorney of Van Burén county, to compel John li. Carr', circuit judge of said county, to vacate an order quashing an information.
    Submitted April 22, 1902.
    (Calendar No. 19,215.)
    Writ denied June 3, 1902,

      David Anderson, in pro. per.

      Thomas J. Cavanaugh and Hammond & Hammond, for respondent.
   Hooker, C. J.

An information was filed against one Goodrode charging him with a violation of what is known as the “Local Option Law,” as amended by Act No. 183 of the Public Acts of 1899. The following is a copy,of the substance of the information:

“He, the said Jesse E. Goodrode, being then and there a druggist, whose business consisted in part in the sale of drugs and medicines, did then and there sell, furnish, and deliver a certain quantity of malt, brewed, fermented, and intoxicating liquors, to wit, one bottle of beer, to one George Lannin, the aforesaid malt, brewed, fermented, and intoxicating liquor, to wit, said one bottle of beer, so sold, furnished, and delivered by the said Jesse E. Goodrode to the said George Lannin at the township of South Haven, and in the county aforesaid, not being then and there sold, furnished, and delivered under and in compliance with the requirements and restrictions imposed upon druggists and registered pharmacists by the general laws of the State of Michigan, but said malt, brewed, fermented, and intoxicating liquor, to wit, said one bottle of beer, then and there so sold, furnished, and delivered by the said Jesse E. Goodrode to the said George Lannin, being then and there so sold, furnished, and delivered contrary to the provisions of a certain resolution adopted by the board of supervisors of the county of Van Burén, State of Michigan, on the 4th day of March, A. D. 1890, in pursuance of the provisions of Act No. 207 of the Public Acts of the State of Michigan for the year 1889, the aforesaid selling, furnishing, and delivering of said malt, brewed, fermented, and intoxicating liquor having been then and there done as aforesaid by the said Jesse E. Goodrode in violation of and contrary to the provisions of said Act No. 207 of the Public Acts of the State of Michigan for the Year 1889 and the acts amendatory thereto, and contrary to the form,” etc.

Upon arraignment a motion was made on the defendant’s behalf that the information be quashed on the ground that it charged no offense within the language of section 5381 of the Compiled Laws of 1897, and this motion was granted. A refusal by the circuit judge to vacate this order was followed by this application to compel such action, and a trial of the case.

The only question involved is whether it was sufficient to charge, in the language of the act of 1899, “that the sale was not made under and in compliance with the general laws of the State of Michigan.” It is claimed that the defendant had a legal right to be informed of the nature of the violation, that he might know how to prepare for his defense. It is truly said that under 2 Comp. Laws, § 5381, many sales by druggists are prohibited, — such as sales' to minors, to intoxicated adults, to one having the habit of getting intoxicated, to Indians, to persons of Indian descent, against the prohibition of a written notice, to be used as a beverage, to be drank upon the premises, sold mixed with any beverage drawn from a soda fduntain. . Again, it is an offense to sell without recording, and, under section 25, to sell without sending a list of sales weekly to the prosecuting attorney. It is manifest that the information in question fails to give any inkling of the nature of the violation, and the defendant must come prepared to negative any claim that may be made under the general statement that his sale was not in compliance with law.

The writ will be denied.

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


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    ANDERSON v. VAN BUREN CIRCUIT JUDGE.
    1. Criminal Law — Plage for Sale of Liquors — Local Option.
    In a prosecution for a violation of the local option law (Act No. 183, Pub. Acts 1899) by keeping a place where intoxicating liquors are sold, an information stating the offense in the language of the statute is sufficient, as it apprises the respondent that he is charged with the continuing act of keeping a place for the unlawful sale of liquor.
    2. Same — Exemptions.
    The proviso to section 1 of Act No. 183, Pub. Acts 1899, does not exempt druggists from the provisions of the act, but only such druggists as sell under and in compliance with the restrictions imposed by the general law and said act; and an information against a druggist is sufficient if it negatives the terms-of the exemption.

      8. Same — Single Offense.
    An information charging the respondent with keeping a place where various kinds of liquors were sold, stored for sale, given away, and furnished, in violation of law, states but one offense

      Mandamus by David Anderson, prosecuting attorney of Van Burén county, to compel John R. Carr, circuit judge of said county, to vacate an order quashing an information.
    Submitted April 22, 1902.
    (Calendar No. 19,216.)
    Writ granted June 3, 1902.

      David Anderson, in pro. per.

      Thomas J. Cavanaugh and Hammond & Hammond, for respondent.
   Hooker, C. J.

The defendant was charged with a violation of the liquor law. The following is a copy of the substance of the information:

“At the township of South Haven, and in the county aforesaid, and on divers days and times between that day and the 17th day of October, A. D. 1901, in a certain building there situate, did then and there keep a certain place, to wit, a drug-store, where vinous, malt, brewed, fermented, spirituous, and intoxicating liquors, and mixed liquors and beverages a part of which were intoxicating, were sold, stored for sale, given away, and furnished, he, the said Jesse E. Goodrode, not being then and there engaged in so keeping such place as a druggist or registered pharmacist, and not so keeping such place, or so selling, storing for sale, giving away, and furnishing such liquors, under and in compliance with the restrictions and requirements imposed upon druggists and registered pharmacists by the general laws of the State of Michigan; the aforesaid keeping of said place where the above-described liquors were sold, kept for sale, given away, and furnished being contrary to the provisions of a certain resolution adopted by the board of supervisors of the county of Van Burén, State of Michigan, on the 4th day of March, A. D. 1890, in pursuance of the provisions of Act No. 207 of the Public Acts of the State of Michigan for the Year 1889, and the acts amendatory thereto; the aforesaid keeping of said place where the above-described liquors were sold, kept for sale, given away, and furnished having then and there been done as aforesaid by the said Jesse E. Goodrode in violation of and contrary to the provisions of said Act No. 207 of the Public Acts of the State of Michigan for the Year A. D. 1889 and the amendments thereto, and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

Upon arraignment his counsel moved to quash the information upon several grounds, viz.:

“ 1. For the reason that said information does not charge against the respondent any crime or offense known to the laws of the State of Michigan or the statutes thereof.
“2. For the reason that said information alleges that the said respondent is a druggist, and then charges him with having, on the 3d day of May, 1901, at the township -of South Haven, county aforesaid, and on divers days and times between that day and the 17th day of October, 1901, in a certain building there situate,, kept a certain place, to wit, a drug-store, where vinous, malt, brewed, fermented, spirituous, and intoxicating liquors, and mixed liquors and beverages part of which were intoxicating, were sold, stored for sale, given away, and furnished in violation of the law. That there are therefore charged in this information several distinct and independent offenses, and it is therefore bad for duplicity.
“3. For the reason that the information charges the respondent with being a druggist, and at the same time having kept a place where intoxicating liquors were sold, stored for sale, furnished, and given away. That it is therefore inconsistent, and does not specifically inform the respondent as to what charge or offense he will be put on trial for.
“4. For the reason that under the information now on . file, and the law applicable to cases of this kind, the respondent is not informed as to what offense he will be put upon' trial for.”

Section 1 of Act No. 183 of the Public Acts of 1899 reads as follows:

“That it shall be unlawful for any person directly or indirectly, himself or by his clerk, agent, or employé, to manufacture, sell, keep for sale, give away, or furnish any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors, or any mixed liquor or beverages any part of which is intoxicating, or keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away, or furnished, in any county of this State on and after the first dáy of May next following after the adoption by the board of supervisors of such county of a resolution prohibiting the same, as provided in section thirteen of this act, so long as such resolution remains unrepealed: Provided, however, that the provisions of this section shall not apply to druggists or registered pharmacists in selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State and section twenty-five of this act, as amended.”

It will be noticed that there are but two classes of persons who are exempted from the operation of this section, and they are druggists and registered pharmacists. It seems to be the theory of defendant’s counsel that the local option act has no bearing upon these two classes, and that they may sell liquor. at will, answering only under the general liquor act, of which section 5381 of the Compiled Laws is a part. This is a misapprehension, for there is a limitation upon the exemptions as to these classes. They are exempted only when acting in compliance with the restrictions of the general act, and of section 25 of the act of 1899. The language of the proviso is that the provisions of the act shall not apply to such persons ‘ ‘ in selling any such liquors under and in compliance with,” etc. In all other cases they are liable. By turning to section 16 of the act of 1899, we find the penalty which is imposed upon “any person who shall violate this act.” The information states that the defendant kept a place, etc., but not as a druggist or registered pharmacist under and in compliance with law, etc. The section quoted, viz., section 1 of Act No. 183, makes the keeping of a place, etc., an offense. The information has charged the defendant with doing so, and expressly stated that he was not within the proviso. In the case of Maynard v. Eaton Circuit Judge, 108 Mich. 202 (65 N. W. 760), cited in support of respondent’s action, it was said:

“We held in Bishopp v. Hillsdale Circuit Judge, 94 Mich. 461 (53 N. W. 1093), that a druggist might properly be informed against under this section for selling liquor, if the information negatived the terms of the exception. It was there said that this section does not exempt druggists from the provisions of the act, but only exempts such as sell under and in accordance with the restrictions imposed upon them by the laws of the State.” .

In the late case of People v. Utley, 129 Mich. 628 (89 N. W. 349), this question was again discussed.

It is competent to charge this offense in the manner adopted. It is in the language of the statute, and apprises the defendant that he is charged with the continuing act of beeping a place for the unlawful' sales of liquor. All kinds of unlawful sales are admissible in support of the charge, and it is hot necessary to set forth specific "sales. In this respect it is different from an information charging one with making a sale in violation of law. In such case it has been usual and necessary to state to whom the sale was made, and, if all sales were not unlawful, to show that it was unlawful by stating wherein it was so. In this case the defendant might lawfully keep a place to sell as a druggist or pharmacist under and in compliance with law. The information says that he has not done this, and any other keeping is illegal.

We think there is but one offense charged, viz., the keeping of a place, although the information does charge -that it was a place where various binds of liquor were sold, stored for sale, given away, and furnished in violation of law. It may not be necessary to prove all these, and it is also true that it constitutes a single offense within the period charged, for which but one penalty can be imposed should the defendant be convicted.

We are of the opinion that the writ should be granted, ' and it will be so ordered.

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