text:
    HILTS v. FOOTE.
    Street Kailways — Collision with Vehiole — Negligence of Driver.

      T., the driver of a milk wagon, invited H., the deceased, to ride with him. T. drove his wagon at a speed of between five and six miles an hour from one street across another, along which defendant had an electric street railway with a single track. He did not check the speed of his horse on approaching the track, or look for an approaching car, until he was so near that he thought the safest way was to attempt to cross before the car would reach him. Instead of stopping, he whipped up his horse, and, as his wagon was on the track, it was struck by the car, and H. was killed. T. had ample time and opportunity to look for the car, stop, and thus avoid the collision. Held, that he was guilty of contributory negligence, and therefore plaintiff could not recover.
    Error to Jackson; Peck, J.
    Submitted October 9, 1900.
    Decided November 13, 1900.
    Case by Sarah L. Hilts, administratrix of the. estate of Frederick Hilts, deceased, against William A. Foote, receiver of the Jackson Street-Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    East Main and Perrine streets in the city of Jackson cross each other at right angles; the former running east and west, the latter north and south. Upon East Main street the Jackson Street-Railway Company has a single track, along which its cars are propelled by electricity. On the day of the accident a car was approaching from the east. One Eugene Thompson was the driver of a milk wagon, and was then engaged in delivering milk to various places in the city. The wagon was covered, and had openings on the sides 20-¡- inches wide and 53 inches high. The seat was just back of these openings, so that the knees of the driver came about opposite them. Thompson met the deceased, Frederick Hilts, a young man 27 years of age, and invited him to ride with him. They were riding north on Perrine street, and when the wagon was upon the track it was struck by a car, and Hilts was killed.
    Main street is 99 feet wide, 63 feet between the curbing, and the distance from the curb to the center of the car track is 31-?2- feet. One standing or riding in the center of Perrine street, 18 feet south of the south line of the sidewalk, can see a car coming from the east on East Main street one block, — about 320 feet. Oh approaching 6 feet nearer, the car can be seen three blocks east, and when at the curb the car can be seen 104 rods east.
    Thompson testified that his horse was on a good, fair trot; that he first noticed the car when he was just'across the sidewalk; that when he got about to the sidewalk he looked west, saw no car, then turned to look east; that by that time he had got across the walk, saw a car coming, and was afraid it was going to strike him; whipped up his horse, and tried to get across. On cross-examination he testified that he should judge he was driving at the rate of five miles an hour, perhaps more; that he and the deceased were chatting along about various things; that the first time he thought to look for the cars was as he was nearing the cross-walk; that he did not slack his horse at all when he came to the street, but just kept right on, — was anxious to get through, and his mind was intent upon that; that he had got as far as the curbing, anyway, when he looked east. He further- testified as follows:

      “Q. You have seen the street car running enough so you could tell this was running very rapidly ?

      “A. Yes, sir.

      “Q. And about where was it then, — how close to you?

      “A. I don’t know exactly just where it was, — how far it was away.

      “Q. Was it pretty close ?

      “A. Not so very.

      “Q. But it was so close that when you first saw it you were afraid it would run onto you ? You said you were afraid the car would run onto you when you saw it ?
    “A. When I first saw the car, I thought it was so close, if I didn’t hustle and get across, it would run onto me.

      “Q. You thought, if you didn’t hurry up, the car would run onto you ?

      “A. Yes, sir.
    “Q. So you hurried up ?

      “A. Yes, sir; I didn’t want to get run onto.
    “Q. You reached over, and took the whip out of the socket, and struck the horse ?

      “A. Yes, sir.

      “Q. This whip was on the right-hand side, in front of Hilts ?

      “A. Yes, sir.

      (iQ. So that you had to reach some distance to get .over to it ?

      “A. Yes.

      “Q. Did you strike the horse more than once ?
    ' ‘A. I think not.

      “Q. You thought, when you struck the horse, you would be able to get across ?

      “A. I thought so.
    “Q. Did the horse make any considerable spring ?

      “A. Why, it run along fast.

      “Q. It looked to you as if, if you hurried up a little, you would be able to get across without any trouble ?

      “A. Yes, sir.

      “Q. So you didn’t try to stop ?

      “A. I didn’t have time to stop.

      “Q. I say you did not try to stop ?

      “A. No, sir; I didn’t.

      “Q. And you did not try to turn either way ?

      “A. No, sir. * * *

      “Q. Of course, you might have stopped the horse, couldn’t you?

      “A. Sir?

      “Q. You could have stopped the horse at that time ?
    “A. It could have been stopped; yes. I don’t think I could have stopped it before I got on the track.

      “Q. You don’t think you could have stopped it before you got onto the track ?

      “A. I don’t believe I could.

      “Q. You could before the wagon got on the track ?

      UA. I might possibly.

      “Q. You could have sacrificed the horse if you had wanted to ?

      “A. If I saw fit, if I had time to consider, and known what was going to happen, I could.

      “Q. You did not stop to consider about anything except to get across ?

      “A. I say I didn’t have time to stop before on the south side of the track; so all the thing' I could do was to get across, — or the best thing I could do.

      “Q. You considered that, did you?

      “A. In a minute. It came to me at once. I looked around, and did not see anything to do but to get across to be safe.

      “Q. You didn’t think of anything els.e but getting across ?

      “A. I tried to think whether I might stop or not.

      “Q. You tried to think whether you could stop or not ?

      “A. I kind of thought a minute, and all the thing I could do was to get across, and tried to.

      “Q. You didn’t think you could pull your horse as quick as you could reach over and get a whip and strike him?

      “A. No, sir; I didn’t.

      “Q. That didn’t occur to you, did it?

      “A. Why, I tried to think whether I could stop or not, and I didn’t think I could, the distance I wás, and the way the car was coming.

      “Q. You could have seen that car, if you had looked, before you got on the sidewalk, couldn’t you ?

      ((A. I don’t know; I don’t think I could; no.
    ‘ ‘ Q. Have you ever looked to see ?

      “A. I have; yes.

      UQ. You could have seen that car by the time your wagon, at least where you sat, got on the south cross-walk ?

      “A. I might have seen the car by the time I got on the sidewalk.
    “Q. You can see to State street ?

      “A. From the sidewalk ?

      “Q. Before you got on the cross-walk, can’t you?
    “JL I don’t think a person can.

      “Q. What? '

      “A. I don’t think he can.

      “Q. Have you ever looked to see?

      “A. I noticed, but I don’t remember just now whether I could or not.

      “Q. Don’t you know that when you get on the crossing of this street you can see far above State street ?

      “A. I might, possibly, from the walk.

      “Q. Yes, from the walk you can see up pretty well towards East avenue, can’t you ?

      “A. I think I could.

      “Q. So that, had you looked when you were on the crossing, you could have seen this car, although it was as far east as East avenue ?

      “A. I could not say as I could have as far as East avenue, but I might possibly.

      “Q. Nearly as far as that? Isn’t that your recollection of it ?■ '

      “A. I might possibly have seen it close to that, if not to East avenue.

      “Q. State street is two blocks away, isn’t it?

      “A. One or two.

      ■“Q. What? Is it two or three blocks?

      “A. It is either two or three.

      “Q. Three blocks, isn’t it ?

      “A. Three blocks, I think it is.

      “Q. So that, if you had been thinking about a car when you came on there, and looking for it to the east, of course you would have had ample time to stop your horse ?

      “A. Yes, if I had looked east first.”
    The court directed a verdict for the defendant.

      Richard Price (Charles A. Blair, of counsel), for appellant.

      Wilson & Cobb, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). We think the instruction was correct. The learned circuit judge fully stated to the jury his reasons for his direction. After stating the rule as he deduced it from the authorities, he said:

“ Now, applying this rule to the evidence we have before us, it seems to result here, from any view of the testimony which can fairly be taken, that it was negligence, and I think contributory negligence, for the driver of the milk wagon, Thompson, to attempt to make the crossing in front of the street car at the time and in the manner he did. And this, I think, must be held to appear conclu'sively from the evidence in the case. Indeed, no other conclusion can be drawn from the evidence without doing violence to the law of the land as given to us by the Supreme Court of this State, and doing violence equally to our common sense and judgment as applied to the facts, which are beyond dispute. It must,, therefore, be held that in this case the driver of the milk wagon, Thompson, was guilty of contributory negligence in attempting to make the crossingjn front of the approaching street car, under the circumstances and in the manner and at the time he did, as shown by the evidence.”

It is manifest from this record that Thompson drove upon East Main street without slacking his speed, without looking for the car until he was so near the track that he thought it impossible to stop his horse before the car would strike him. He was responsible for the situation. Even where there are no street cars, a party driving from one street into and across another is bound to be on the lookout for teams traveling along the street, and to keep his horse under control. Thompson had ample time to look both west and east in time to see the approaching car and stop so as to avoid the accident. It was his duty to do this.

There is nothing in the record to justify the conclusion that the motorman deliberately and recklessly ran Thompson down after seeing that he was in danger. There is no evidence upon which to charge such inhuman conduct upon the motorman.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PICHLER v. DE HATE.
    Appeal — Assignments op Error — Review.

       1. Where the court finds no error upon the record, and the points raised would be of no benefit to the profession in the trial of future cases, held, they will not be discussed.
    2. An assignment that the court erred in refusing 14 requests to charge is too general, and will not be considered.
    Error to Macomb; Eldredge, J.
    Submitted October 10, 1900.
    Decided November 13, 1900.

      Assumpsit by Eliza Pichler against Antoine De Hate for breach of promise to marry. Erom a judgment for defendant, plaintiff brings error.
    Affirmed.

      Galloway & Graham, for appellant.

      Silas B. Spier, for appellee.

       Head-notes by Grant, J.

   Grant, J.

Plaintiff sued defendant for breach of promise of marriage. At the time (in 1894) she was a spinster, 47 years old, and he a widower, 64 years old. It is agreed that the contract of marriage was made and that it was broken. Defendant, with his plea, gave notice that his promise to marry her was procured by false and fraudulent representations. There was a sharp conflict on the issues of fact, and the jury decided them in favor of the defendant. One of the issues was, Who broke the engagement ?

Thirty-four assignments of error are relied on, of which 28 relate to the rulings of the court in admitting or rejecting testimony. We find no error in the rulings. A statement of the points raised, and a discussion of them, would be of no benefit to the profession in the trial of future cases. We therefore refrain from discussing them.

The instructions of the learned presiding judge completely covered the law applicable to the case, and are so familiar to the profession that we deem it unnecessary to discuss them.

The sole mention in plaintiff’s brief of assignment 29 is:

“Our 29th assignment charges the court’s error in refusing our several requests to charge. We submit that under the testimony in this suit, and under the law as it applies to cases of this nature, and as cited in this brief, and to the text on the subject of ‘Breach of Promise of Marriage’'in said 4 Am. & Eng. Enc. Law, our 6th to the 13th, inclusive, of our requests should have been given. Indeed, we think if the case had been considered strictly within the lines defined by the pleadings and the relevant testimony, our 14th really ought to have been given.”

The assignment of error in the record reads:

“The court further-erred in refusing to charge the jury as by the said plaintiff by her counsel requested in their 14 requests to charge, and erred in each several instance, and as appears by the exception to such refusal.”

Such assignments, without argument, and without pointing out in what the errors consist, will not be considered.

Judgment affirmed.

The other Justices concurred.


text:
    THOMPSON v. CITIZENS’ STREET-RAILWAY CO.
    Appeal — Assignments of Error — Review.

      1. An assignment of error that “the court erred in charging the jury upon its own motion as a whole, its entire tenor and effect being prejudicial to the rights of the plaintiff,” is too general, and will not be considered, where neither the brief nor the assignment points out specific objections.
    3. Where plaintiff preferred 16 requests, and defendant 78, an assignment that “the circuit judge erred in so granting and refusing requests, and in so charging the jury, as to bring in a verdict of not guilty,” is too general, and will not be considered.
    Error to Kalamazoo; Smith (Clement), J., presiding.
    Submitted October 11, 1900.
    Decided November 13, 1900.
    Case by William Thompson, administrator of the estate of Samuel T. Thompson, deceased, against the Citizens’ Street-Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    The defendant operates in the city of Kalamazoo an electric street railway, with a double track through Main street, with the center-pole construction. The poles are erected midway between the two tracks, with arms extending from the top over each track, on which are stretched the wires. This construction was authorized by the city authorities. At the time of the accident, June 28, 1895, open cars were in use, with seats extending from side to side. Each car. was supplied with a foot-board on each side. The distance from the outer edge of the foot-board to the poles was about 15 inches. The distance between the side of the car and poles was 23-?>- inches. A band concert was being held at Lake View, outside the city. The cars were crowded, and passengers were standing upon the foot-boards of the cars. The deceased, then 17 years old, ran across one track, and, in his attempt to board the car, fell and was killed. The negligence charged is:
    1. That the trolley poles were not placed at a safe distance from the inside rails of the parallel tracks.
    2. That no guards or screens were placed along the inside of the cars to exclude entrance to the car from that side.
    3. That the car was propelled at an unlawful rate of speed.
    4. That defendant permitted its cars to be so crowded as to endanger the safety of passengers riding thereon.
    The deceased and a companion named Strong were standing upon the sidewalk when the two cars (one a trailer) approached. The deceased proposed to Strong to take the car for Lake. View. Strong told him to wait for .the next car. He told him this because the car was so crowded. Deceased, however, ran and tried to board the car when it was in motion, and without signaling that he desired to board it. It is claimed that he was struck by the pole and knocked under the car. Plaintiff’s testimony tended to show that the deceased safely reached the car, and stood upon the foot-board, with his hands upon the side of the car, when he was struck. Defendant’s testimony tended to show that he was trying to catch on to the running-board on the side of the car, when he was struck by the pole and fell, and that an employé of defendant, standing upon the rear trailer, called out to him, “Don’t try to catch this car.” The case was submitted to the jury, who found a verdict for the defendant.

      N. H. Stewart, for appellant.
    Osborn, Mills & Master, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). Counsel assigns as error that “the court erred in charging the jury upon its own motion as a whole, its entire tenor and effect being prejudicial to the rights of the plaintiff.” The brief fails to point out in what respect the charge is, for this reason, erroneous. A careful reading of the charge convinces us that the claim of the learned counsel is without force. Every question of negligence on the part of the defendant and of contributory negligence on the part of the deceased was submitted to the jury, with a full and correct statement of the law.

Counsel further urges that “the circuit judge erred in so granting and refusing requests, and in so charging the jury, as to bring in a verdict of not guilty.” None of the numerous requests given or refused were pointed out, and the counsel wholly fails to state in what respect it was error to give or refuse any of them. Counsel for plaintiff preferred 16 requests, and counsel for defendant 78. This court will not hunt through a record to determine whether there was error in giving or refusing requests, unless they are specifically pointed out by counsel in their briefs.

Several assignments of error relate to the admission and rejection of testimony. We find no error in any of them. It is not important to discuss them.

The motion for a new trial was properly denied.

Judgment affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    SAX v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Railroad Companies — Contract op Employment — Action por Breach — Pleading and Proop — Immaterial Variance.
    Plaintiff alleged in his declaration that, after sustaining an injury on defendant’s road, he entered into a contract with the defendant, whereby he released the company from all liability for damages, and defendant agreed to re-employ him, so long as his services should be satisfactory, as a passenger brakeman, at which he had been employed theretofore. The evidence showed that plaintiff had been employed before the injury as a brakeman on a freight train, and was employed thereafter as brakeman on a passenger train. Held, that the variance as to plaintiff’s former occupation was immaterial.
    2. Same — General Superintendent — Implied Authority — Ratification op Contract.
    The general superintendent of a railroad will be presumed, in the absence of proof to the contrary, to have authority to ratify an agreement by a train-master to give employment, so long as the employé’s services should be satisfactory, in settlement of a claim for personal injuries.
    3. Statute op Frauds — Oral Contract — Performance Within Year.
    An agreement to employ one so long as his services are satisfactory may be performed within one year, and need not, therefore, be in writing.
    4. Railroad Companies — Contract op Employment — Consider ation — Mutual Promises.
    Where plaintiff, who was out of employment, agreed to release defendant from all liability for damages for injuries received by him in defendant’s employ, in consideration of defendant’s promise to re-employ him so long as his services should be satisfactory, the promises were mutual and binding.
    5. Same —Employment During Satisfaction — Wrongful Discharge.
    Where the defendant company agreed to employ plaintiff as a brakeman so long as his services should be satisfactory, a discharge of plaintiff because a brakeman was no longer needed on the train on which he worked constituted a breach of the contract.
    6. Same — Damages—Mortality Tables.
    Where a contract for the employment of plaintiff so long as his services should be satisfactory was wrongfully violated by defendant, and plaintiff brought action for the breach, the mortality tables were improperly admitted to aid the jury in assessing the damages.
    Error to Shiawassee; Smith, J.
    Submitted October 12, 1900.
    Decided November 13, 1900.
    Case by William J. Sax against the Detroit, Grand Haven & Milwaukee Railway Company for the breach of contract of employment. From a judgment for plaintiff, defendant brings error.
    Reversed.

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

      Watson & Chapman, for appellee.
   Hooker, J.

The plaintiff’s hand was injured while acting in the capacity of brakeman upon a freight train upon the-defendant’s railroad, and he was idle for about four months. He then resumed work as a passenger brakeman upon another branch of defendant’s road, and worked about four months, when he was dismissed, according to plaintiff’s claim, and laid off because the service of a brakeman was dispensed with upon his trains, according to the defendant’s contention. He brought this action to recover damages for the breach of a contract which he says was made between the defendant and himself after his injury, whereby, in consideration of a release of a claim for damages upon account of his injury, the defendant promised to give him a permanent position in its employ, which was to last during his lifetime, as long as his services and conduct were satisfactory to the company. The defendant has brought error upon a judgment of $1,950 in plaintiff’s favor.

The first point raises the question of a variance between the declaration and proof. Plaintiff’s declaration stated that:

“And afterwards, on, to wit, the 15th day of January, A. D. 1896, said plaintiff and said defendant entered into a contract as follows: Said plaintiff agreed to release all claims .against said defendant for damages on account of the above-named injuries in consideration that said defendant would give him re-employment so long as his services and conduct were satisfactory, said plaintiff having been theretofore employed by said defendant as a brakeman on a passenger train, and by the terms of said contract said defendant agreed to re-employ him as such.”

The proof shows that his previous service was as brakeman on a freight train, while the declaration alleged that he had been employed upon a passenger train. The question was raised at the close of the testimony by a motion to strike out the evidence because the declaration alleged an agreement to employ the deceased as a passenger brakeman, while the proof tended to show a promise to employ him as a brakeman on freight trains, or to give him a permanent position. It was also raised upon a request to direct a verdict for the defendant. The declaration explicitly alleges that the defendant promised to employ the plaintiff as a passenger brakeman. Plaintiff testified that the agreement was to give him a permanent position during his lifetime, as long as he should perform his duties to the satisfaction of the company, and that there was talk about the kind of employment, and Mr. Cooper, the train-master, offered him the place of a gate-tender, and that he refused that, and asked for a passenger run on the T., S. & M. branch. Cooper said he (the plaintiff) would have to see Mr. Atwater. He afterwards went to see Mr. At-water, the general superintendent, at his office, and had a conversation with his clerk, who went into the next room, and told Mr. Atwater that Mr. Sax was there; and that Mr. Atwater said, “You tell Mr. Sax that we have made provision for him over on the T., S. & M.,” and that he heard this conversation between the clerk and Atwater. Atwater then said that he should report for duty to Mr, Wykes, who was defendant’s agent at Owosso, and he did so about two months later. Wykes gave him a release to sign, and he went to work as a passenger brakeman. From this testimony it might be found that the minds of the parties met upon an employment as passenger brakeman, which is what the declaration alleges. The only variance between the declaration and the proof relates to a recital of his former occupation, which is an unsubstantial matter, and therefore immaterial. Lull v. Davis, 1 Mich. 77; Lothrop v. Southworth, 5 Mich. 436; Arnold v. Nye, 23 Mich. 286; Barton v. Gray, 48 Mich. 164 (12 N. W. 30); Bennett v. Beam, 42 Mich. 346 (4 N. W. 8, 36 Am. Rep. 442); Tillman v. Fuller, 13 Mich. 113; Patterson v. Railroad Co., 56 Mich. 172 (22 N. W. 260).

It is claimed that the talks with Cooper, and Main (the clerk), and Atwater were not admissible, because their authority to make such contract was not proved. If the matter rested upon the talk with the train-master, we should sustain defendant’s contention, under the decision in Maxson v. Railroad Co., 117 Mich. 218 (75 N. W. 459); but, taken in connection with the conversation of the general superintendent, and the presentation of the release, which had been demanded in the talk with Cooper, and the subsequent employment, and the failure of defendant to introduce evidence to the contrary, we think this conversation pertinent as tending to show knowledge and ratification of Cooper’s offer, and completion of the contract, by the general superintendent, whose authority in matters pertaining to the business of operating the road will, in the absence of proof to the contrary, be presumed to cover such a contract. 1 Elliott, Railroads, § 297.

Counsel say that the court erred in refusing to direct a verdict for the defendant: (1) Because the contract was not in writing; (2) because there was no consideration for the promise; (3) because the defendant had a right to terminate it at will. The contract in question might have been performed within a year, and therefore the first point is not well taken. Smalley v. Mitchell, 110 Mich. 650 (68 N. W. 978). The execution of the release and a promise to re-employ were mutual promises, and the contract was, therefore, binding. The difference between this case and Potter v. Railway Co., 122 Mich. 179 (81 N. W. 80), is easily apparent. The case does not fall within the rule of Koehler v. Buhl, 94 Mich. 496 (54 N. W. 157), because there is no claim in this case that plaintiff was discharged for the reason that the company was dissatisfied with him.

The court permitted the introduction of the mortality tables, as evidence bearing on the expectancy of life, in connection with the question of damages. It is urged that they ought not to be applied to a contract which the defendant might terminate at will. In answer to an inquiry made by a juror, the court told the jury that they should allow him damages, subject to his probable earnings, up to the expectancy of life, and that they should not take into account a possible re-employment by the defendant. Under the contract alleged and proved, the defendant had the right to terminate the employment whenever the plaintiff did not perform his duties to the entire satisfaction of the defendant. Under the rule as settled in this State, the reasons for, or justice of, the defendant’s satisfaction cannot be inquired into. See Wood Reaping, etc., Machine Co. v. Smith, 50 Mich. 570 (15 N. W. 906, 45 Am. Rep. 57); Bucksport, etc., R. Co. v. Inhabitants of Brewer, 67 Me. 295; Singerly v. Thayer, 108 Pa. St. 291 (2 Atl. 230, 56 Am. Rep. 207); Seeley v. Welles, 120 Pa. St. 75 (13 Atl. 736); Campbell Printing-Press Co. v. Thorp, 36 Fed. 414 (1 L. R. A. 645); Pierce v. Cooley, 56 Mich. 552 (23 N. W. 310); McCormick Harvesting-Machine Co. v. Cochran, 64 Mich. 641 (31 N. W. 561); Plano Manfg. Co. v. Ellis, 68 Mich. 105 (35 N. W. 841); Platt v. Broderick, 70 Mich. 580 (38 N. W. 579); Koehler v. Buhl, 94 Mich. 500 (54 N. W. 157). It was admitted that the defendant company discontinued the service of the plaintiff when the service of a brakeman on the trains upon which he was at work was dispensed with, for that reason, through Mr. Cooper, the train-master. It affirmatively appears, therefore, that he was not laid off by reason of dissatisfaction with his service, and a failure to employ him thereafter constituted a breach of the contract.

It has been held in some c&ses that mortality tables were not admissible in negligence cases where the injury did not result in death or permanent disability. See Mott v. Railway Co., 120 Mich. 127, 136 (79 N. W. 3); Nelson v. Railroad Co., 38 Iowa, 568. In Texas it is held that the disability must be not only permanent, but total, to admit of such proof. In Texas-Mexican R. Co. v. Douglass, 69 Tex. 699 (7 S. W. 77), it was said that such evidence is admissible only when the earning capacity is entirely destroyed, and that, when the disability is only partial, such evidence would tend to confuse the jury. See, also, St. Louis, etc., R. Co. v. Nelson, 20 Tex. Civ. App. 541 (49 S. W. 710); McDonald v. Railroad Co., 26 Iowa, 139 (96 Am. Dec. 114).

Upon the theory that plaintiff had contracted for employment for life, and that the defendant wrongfully refused further employment after the expiration of four months, the jury might take into consideration the probable period of his ability to perform service; and the probable duration of his life would, in such case, be an element in that problem. Freeman v. Fogg, 82 Me. 408 (19 Atl. 907); Parker v. Russell, 133 Mass. 74; Tippin v. Ward, 5 Or. 450; Schell v. Plumb,[55 N. Y. 592; Burritt v. Belfy, 47 Conn. 323 (36 Am. Rep. 79). The tables of mortality are admissible wherever the expectancy of life properly comes in controversy. They are not conclusive, however. Nelson v. Railway Co., 104 Mich. 582 (62 N. W. 993); Damm v. Damm, 109 Mich. 619 (67 N. W. 984, 63 Am. St. Rep. 601). In this case there were elements to be considered other than the duration of his life. The jury were instructed that they should find how much he was earning under his employment by defendant, and that whatever the evidence showed to be the value of other employment that he had been able to get should be deducted from such former earnings, and that would give them a starting point. From a colloquy with a juror they must have understood that the computation should be made upon his expectancy of life, subject to the deduction of what they should find he might earn up to the time of his death, and subject to a reduction to the present value. The jury were expressly told that they could not consider any liability of his re-employment. The theory of the defendant appears to have been that he was not discharged ; but, whether this was so or not, or if the failure to employ for four months constituted a breach of the contract justifying a refusal to re-enter the defendant’s employ (a question not discussed, and therefore not passed upon), it was proper for the jury to consider an offer of reemployment from the .railroad, if there was a probability of any, as bearing upon the probable amount of his future ability to earn. His probable infirmity was also important in this connection.

Again, the contract was not to employ for life. It was limited by the provision as to his giving satisfaction, and that also was an element that should have been considered by the jury. But the contract was, in effect, merely a contract to employ so long as his service should prove satisfactory. Under the cases cited, the mortality tables should have been excluded.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, O. J.

text:
    KORF v. KORF.
    Mortgages — Foreclosure—Witnesses—False Testimony.
    Where, in a suit to foreclose a mortgage, the court finds that the complainant and her husband have testified falsely in regard to a note against a third person, turned over to the husband in part payment of the mortgage debt, their general denials as to the husband’s authority to act for the wife in accepting the note should be given little weight.
    Appeal from Alcona; Simpson, J.
    Submitted October 12, 1900.
    Decided November 13, 1900.
    Bill by Sarah Korf against Della Korf and John Korf to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Modified.

      Charles R. Henry, for complainant.

      Fails & Kelley, for defendants.
   Montgomery, O. J.

This is a bill of foreclosure. The defendants, in October, 1895, purchased of complainant’s husband, Fred Korf, the premises covered by the mortgage in suit for the agreed price of $1,400, of which $1,000 was paid in cash, and the balance evidenced by a note of $400, payable to Fred Korf. Some time later this note was taken up, and a new note made payable to complainant for a like amount. On the 13th of February, 1897, the note in suit was given, which is also payable to complainant, and is for the principal sum of $475. It was given for this amount to secure an additional indebtedness of $75, as to which there is no dispute, and at this date a mortgage was given upon the land. The defense set up is that at a later date the defendant John Korf turned over to Fred Korf, for complainant, a note of $450, made by F. A. Stewart and G. A. Stewart, of Lidgerwood, N. D., in payment of the note and mortgage in suit, and that the complainant has actually received the money on the Stewart note. The complainant and her husband testify that Fred Korf purchased the Stewart note, and paid for the same $400 in cash. The circuit judge did not find this claim to be true, saying at the close of the testimony:

“It does not seem to me, from the evidence in this case, that I should find that Fred Korf paid John Korf anything for this Western note, so called, — the Stewart note. It does not seem to me to be reasonable; and yet, on the other hand, it does. not seem reasonable that he would take this note, and agree that it should be in full payment of the note and mortgage which it secured. So there are those two things which do not seem reasonable, and I am in doubt as to these points, and I will say that I am unable to determine, from the testimony in this case, whether Fred Korf paid anything for this note and bought it. I am unable to say, from the testimony in this case, whether Fred Korf agreed to take this note, and exchange the mortgage for it; that is, take it in payment of the mort gage. The evidence is conflicting and contradictory, and I am unable to determine these facts. But I do not deem it necessary, and consequently I do not find upon that point, other than to say that I am unable to decide just how that was from the testimony. I think there is a lack of proof of sufficient agency or of any agency that would bind the complainant by the acts of her husband.”

A careful reading of the testimony has convinced us that the claim of complainant and her husband that Fred Korf bought and paid cash for the Stewart note is untrue. The circumstances of the case, as well as the positive testimony of the defendants, contradict it. Fred Korf and John Korf are brothers. There is no suggestion in the record that John Korf had any use for the $400 cash at this time, unless it should be applied on the note in suit; and it is to us inconceivable that Fred Korf should, in the absence of any apparent necessity, and without any suggestion of any need on the part of his brother, advance $400 on the note of a stranger, while his wife already held the defendant’s obligation for $475. We are also convinced that the complainant’s husband was authorized to act for her. It is true the direct proof of his authority is meager, but not wholly wanting, and, as we feel justified in applying to the testimony of complainant and her husband the maxim, “Falsus in uno, falsus in omnibus,” we are not disposed to attach any considerable weight to the general denial of authority. The consideration for this mortgage was originally furnished by the husband. He negotiated for the mortgage with the knowledge of complainant. Mrs. Della Korf testified that on one occasion complainant said to her that her husband attended to all her business. We are satisfied that he did assume control of the business with the knowledge of complainant. The Stewart note should be applied in payment of the complainant’s mortgage pro tanto.

A decree will be entered in favor of complainant for $16. Defendants will recover costs of both courts.

The other Justices concurred.


author: Montgomery, C. J.

text:
    WILKINSON v. KNEELAND.
    1. Equity — Appeal—Statutory Limitation — Rehearing.
    Where a petition for a rehearing in equity is denied after the statutory time in which an appeal might be taken from the decree has elapsed, an appeal thereafter taken must be considered as from the order denying rehearing, though it purports to be from the final decree as well.
    3. Same — Laches.
    Where defendant in a bill for specific performance was personally served with subpoena nine months before the suit was heard, and was given written notice before the term by complainant’s solicitor, his excuse for not entering appearance, that the matter “entirely slipped his mind,” will not move the court to reopen, on his petition for rehearing, a clearly equitable decree.

      3. Tenants by Entirety — Release.
    Defendant deeded land to complainant and wife, in which he owned only a half interest, and complainant alleged that he accepted the deed without knowledge of the fraud, and that his wife had deeded her interest to him. Held, that the contention that complainant was not entitled to maintain a bill for specific performance, because he and his wife were tenants by the entirety, was'without merit, since that fact ,, would not prevent her from releasing her interest to the husband.
    4. Land Contract — Fraud —Defective Title — Remedy—Specific Performance.
    Where the purchaser under a land contract was induced by fraud of the vendor to accept a deed purporting to convey a larger interest than the grantor owned, he was not obliged to sue at law on the covenants of warranty, but was entitled to maintain a bill for the specific performance of his contract.
    Appeal from Gratiot; Dodds, J., presiding.
    Submitted October 12, 1900.
    Decided November 13, 1900.
    Bill by Francis A. Wilkinson against Frank G. Knee-land for tbe specific performance of a land contract. There was a decree pro confesso for complainant, and defendant’s application for a rehearing was denied. Defendant appeals.
    Affirmed.

      John T. Mathews, for complainant.

      Newell Leonard, for defendant.
   Montgomery, C. J.

On the 31st of December, 1898, the complainant filed a bill of complaint in the circuit court for the county of Gratiot, in chancery. Subpoena was personally served on the defendant on the 12th day of January, 1899. On the 1st day of November, 1899, a final decree was entered. On the 6th day of January, 1900, a petition for a rehearing was filed, which was on the 19th day of January, 1900, denied. An appeal was taken -on the 2d of March, 1900, which purports to be an appeal not only from the order denying the rehearing, but also from the final decree. Obviously the attempt to appeal from the decree was futile, as more than the statutory-time had elapsed before any attempt was made to take an appeal. 1 Comp. Laws 189?, § 550. The appeal must be considered as having been taken from the order denying a rehearing. The reason assigned in the petition for a rehearing for not entering an appearance in the original case is that the defendant supposed that he would be able to adjust the matter of complaint without litigation. The petitioner admits that he intended to get a quitclaim deed from Mrs. Walker of her interest hereinafter referred to, but it does not appear that he did. He also admits that he received a letter from complainant’s solicitor stating that he desired to have the case disposed of at the November term, 1899, but states that the matter “entirely slipped his mind.” It is apparent from a statement of these dates and these facts that the defendant was guilty of laches, and the decree should in no event be opened upon any technical ground, or unless a grave injustice had been done to defendant.

The bill is a bill for specific performance. It is alleged that two contracts, conveying 20 acres each, were made, the one to complainant, and the other to his wife, Miriam Wilkinson, each of which provided that, on payment of $245 to defendant, he would convey the land contracted by a good and sufficient conveyance conveying good title; that afterwards defendant conveyed one 20 to complainant and his wife, as husband and wife, and the other to complainant; that complainant’s wife subsequently conveyed the first-mentioned 20 to complainant. The bill further states that, at the time of the conveyances from the defendant, he did not own the land, but that an undivided one-half belonged to defendant’s wife, who joined in the deeds, and the other one-half to Maria B. Walker, and, at the time of the acceptance of the deeds, the complainant had no knowledge of the defect in defendant’s title. The bill also alleges that defendant has acquired certain tax titles on said land for taxes assessed thereon during years when defendant was obligated to pay the taxes; that defendant has promised to procure the Walker title, but has failed to do so. The bill also alleges that complainant has made improvements to the value of $100. The decree required the defendant to make good the title of complainant within 20 days, and, on his failure to do so, provided that complainant should recover the value of the land, and have a' lien on defendant’s interest. It it apparent from a recital of the facts that no injustice has been done to defendant. It appears that he has not fulfilled his contract, and the decree provides that he shall do so, or make the complainant whole.

Defendant’s counsel contends that the bill shows that complainant has not the title to the contract covering the 20 acres in which his wife is named as a party, for the reason that,.by the deed to complainant and his wife, they became tenants by the entirety, and neither could convey; citing Naylor v. Minock, 96 Mich. 182 (55 N. W. 664, 35 Am. St. Rep. 595), and cases there cited. The case is not authority that either the wife or husband may not release to the other his or her interest in land so held.

It is further contended that, the defendant having made deeds to complainant and his wife, the complainant’s remedy is by action at law on the covenants. The bill alleges, in effect, that complainant was induced to accept these deeds by fraud of defendant. In view of this averment, which stands admitted by the pro confesso, there was no bar on the face of the bill to a specific performance of the original contract. We quote the language of the learned circuit judge:

“The defendant’s counsel states that he is now negotiating for the outstanding title, and admits that it is but just that it be obtained for complainant’s benefit. That deeds were accepted without knowledge of the facts should not militate against complainant’s rights, which are practically admitted upon the argument. While the decree seems to be broader than the prayer for specific relief would warrant, it provides for nothing more than is, in my opinion, within the prayer for general relief.”

We approve this conclusion, and the order appealed from is affirmed, with costs.

The other Justices concurred.


text:
    BANNER CIGAR MANUFACTURING CO. v. TREUSCH.
    Garnishment — Fraudulent Conveyances — Inquiry as to Financial Condition — Deceptive Conduct.

       1. Held, for the same reasons that are given in Gumberg v. Treuseh, 103 Mich. 543, that the question of bona ftdes of the indebtedness between the defendants and one Lustig was properly left to the jury.
    2. Where the representative of a commercial agency applied to defendants for a statement of the financial condition of Lustig, and the defendants produced his account upon their own books, and exhibited that to him as a statement of his financial condition, held, that defendants were bound to state to such agent the indebtedness of Lustig, which did not appear upon the books, if known to them.
    Error to Kent; Adsit, J.
    Submitted October 12, 1900.
    Decided November 13, 1900.
    Garnishment proceedings by the Banner Cigar Manufacturing Company against Morris H. Treuseh and Emanuel Treuseh, as garnishees of Jacob Lustig. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    The transactions involved in this case are the same as those in Qumberg v. Treuseh, 103 Mich. 543 (61 N. W. .872), 110 Mich. 451 (68 N. W. 236), and Treuseh v. Ottenburg, 4 C: C. A. 629 (54 Fed. 867). The record in this case is identical with that in 103 Mich., except in the names of the plaintiffs. The plaintiff in this case stands in the same position as did Mr. Gumberg, and seeks recovery upon the same state of facts. For a full and complete statement we refer to that case.

      William F. McKnight and Knappen & Kleinhans, ifor appellants.

      Rood & Hindman, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The court left to the jury the determination of the question whether the indebtedness from. Lustig to the Treusches was bona fide. This is assigned as error. We are unable to agree with the learned counsel that the bona fides of this indebtedness is conclusively shown. This question was submitted to the jury in the Gumberg Case, and we held that it was properly submitted. We now so hold for the reasons there given.

Upon the representations made by the defendants to the representative of Bradstreet’s Agency in regard to Lustig’s debts, the court instructed the jury as follows:

“If you find those claims of the plaintiff established to your satisfaction, as a matter of law it was Treusch’s duty to have informed Mr. Idema of Lustig’s indebtedness to himself, and any other indebtedness he knew Lustig to be owing; and his failure to do so cannot be excused because Mr. Idema did not ask him about it. Treusch would then be in a position where it would be his duty to speak.”

The objection made to this is that there was no evidence to show that Mr. Idema asked Treusch about Lustig’s indebtedness, but only asked him to state what Lustig had in his business. Mr. Idema testified that he asked Mr. Treusch for a statement of Mr. Lustig’s financial condition, and—

“ He turned me over the books, and I copied this statement from the books. * * * Treusch told me that Lustig had in the neighborhood of $8,000 to $10,000 capital in his business. On this statement I gave Lustig a rating of from $5,000 to $10,000. * * * Three months before Lustig failed, I had a talk with M. H. Treusch. Treusch said he had no reason to change his former opinion.”

There was evidence to show that Mr. Treusch knew all about Mr. Lustig’s financial condition, and knew the purpose for which Mr. Idema interviewed him, and that his representations were to be made the basis for the commercial rating of Mr. Lustig. Mr. Lustig at that time was worth practically nothing, and the jury would be justified in believing that Mr. Treusch knew it. The court' properly held that Mr. Treusch was in a position where it was his duty to speak. Mr. Treusch must have known that, without a statement of his indebtedness, Mr. Lustig could have no sound basis for a commercial rating. The bare reference to his books, which showed a capital of about |8,000 aside from debts, was as deceptive as would have been a positive statement.

It is urged that undue prominence was given to the plaintiff’s claims and theories in the charge of the court. We think otherwise. The charge- fully stated the claims and theories of each party.

Two assignments of error are based upon the admission of testimony. We find no error in the rulings of the court.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    TODD v. McLAUGHLIN.
    1. Vendor and Purchaser — Marketable Title — Evidence.
    Where, in a suit to foreclose a land contract, defendant professes a willingness to carry out the contract providing she receives a marketable title to the land, but avers that because of certain attachments, a mortgage, and an assignment by him for creditors, the vendor is unable to give such title, a decree for complainant cannot be sustained on the ground that the assignee has been discharged, that the attaching creditors have released their claims, and that the mortgagee is willing to surrender his mortgage, none of them being parties to the bill, unless such facts are established in the case by legal evidence.

      %. Same — Recovery oe Payments — Interest.
    Where a purchaser under a land contract goes immediately into possession of the premises, and occupies the same for a period of years, she cannot, on the vendor’s failure to convey a marketable title, recover all payments made by her, with interest, without allowance for such occupancy.
    Appeal from Wayne; Waite, J.
    Submitted October 12, 1900.
    Decided November 13, 1900.
    Bill by Fred J. Todd, trustee, against Kate McLaughlin and Emma Curtis, to foreclose a land contract. From a decree for complainant, defendants appeal.
    Reversed.

      James Swan, for complainant.

      E. T. Wood, for defendants.
   Moore, J.

The bill in this case is filed to foreclose a land contract. From a decree in favor of complainant, the defendants have appealed.

The defendants are sisters. One of them, — Kate McLaughlin,— on the 1st day of November, 1893, purchased on land contract from Edward E. Harvey and Fred J. Todd, as trustees, certain real estate in Detroit. The consideration was $2,700, of which $500 was paid down, and it was agreed $25 per month or more should be paid monthly thereafter; all to be paid within five years from date. The contract is in the usual form. It provides the party of the second part, or her assigns, on payment of the sums specified, shall be entitled to a good and sufficient conveyance in fee simple of said described lands, free and clear from all liens and incumbrances. Miss McLaughlin put her sister, defendant Emma Curtis, in possession of the premises, and all subsequent payments were made by her. On November 15, 1893, the céstuis que trustent of complainant placed on the same property a mortgage for $1,300, which is now owned by the City Savings Bank of Detroit, and is still of force. On the execution and delivery of the contract, defendant McLaughlin paid $500. Subsequent payments of principal, including indorsement of June 7, 1895, amount to $475, which covers a period of 19 months, from and including the month of December, 1893, down to and including the month of June, 1895. In addition, defendants had paid interest in full to January 1, 1895, — $136.96. Mr. Harvey became financially embarrassed. Numerous attachments were placed on the property July 23, 1895. On May 25, 1895, the complainant caused to be conveyed by .himself and the parties who are by the record shown to have been the owners of the premises described in the land contract, by warranty deed, the lot in question to Harrison H. Eaton, Charles A. Poole, and Edward E. Harvey, excepting therefrom the mortgage referred to and taxes, but making no reference to. the contract interest held by defendant Miss McLaughlin. On August 21, 1895, Eaton, Poole, and Harvey, by Harrison H. Eaton, attorney in fact, conveyed the premises by warranty deed to Fred J. Todd. There is no designation in this instrument that the grantee takes as trustee.

The defendant McLaughlin made payments according to the terms of the contract until she learned of the giving of the mortgage, and of the failure of Mr. Harvey, and the attachments. She then endeavored to have the title cleared. On October 23, 1895, she notified complainant she would arrange to pay an amount on the contract sufficient to bring it down to the $1,300 mortgage, and assume the mortgage, provided she be given a deed free and clear of all other liens and incumbrances, and furnished with an abstract showing such to be the fact. On June 24, 1896, further negotiations were had between complainant and defendants, at which counsel for defendants was present. It is claimed by the defendants they were anxious, in view of the many complications, to have the land contract recorded, and a record made showing who the real parties were who complainant claimed were interested; that on complainant’s renewed promise to clear up the title and furnish an abstract, and on his placing an acknowledgment on the contract setting forth the names of the parties for whom he claimed to act as trustee, defendants paid on the same day $300. They had paid in addition, for taxes on the property, $55.96. They also claim that on January 14, 1897, after the $300 was paid, defendants, by letter, made an effort to get from complainant an abstract; that in the meantime they had learned of a delinquent paving tax, to which the attention of complainant was called. On the 4th day of May, 1898, complainant, Todd, and Fred D. Stevens, his partner, made a common-law assignment for the benefit of creditors. The real estate was not mentioned in the schedule attached to the assignment. Their creditors under this received 23 per cent, of their claims, and have not been settled with for the balance, though the assignee has made his report and been discharged. October 29, 1898, complainant procured the release of five attachments levied on the contracted property in July and August, 1895, and one levy made May 4, 1898, on judgment against Stevens and Todd, who on that day^made the common-law assignment. Without furnishing an abstract, the complainant caused to be written .to defendant Mrs. Curtis, November 2,1898, a letter, in which he said:

“I have now got the title perfected, and am prepared to furnish a warranty deed to the property upon the payment of the amount due. This deed will come to your sister through the City Savings Bank, and be warranted by it.”

On February 11, 1899, the bill of complaint was filed. No deed had been tendered before the bill was filed. Complainant afterwards amended his bill, and defendants answered. It is claimed this answer was filed on the mistaken idea that the several persons had been made parties who in fact were not made parties. The defendants filed an amended answer and cross-bill, and attempted to bring in the parties disclosed to be the equitable owners of the premises covered by the land contract, and the City Savings Bank, which holds the mortgage on the premises; but the court held it was not necessary to make the bank and the persons named in the cross-bill parties. The court made a decree in favor of complainant for the full amount due on the contract, with interest, and decreed that the complainant “ tender to the said defendant Kate McLaughlin, or her solicitor, a good and sufficient deed to the property hereinafter described,'and that the said defendant Kate McLaughlin pay or cause to be paid to said complainant, or to his solicitor, the amount so as aforesaid found to be due, together with interest from the 28th day of April, 1900, and costs, on or before the 25th day of May, A. D. 1900,” and in default thereof that the premises might be sold.

The complainant insists this decree should stand, because the common-law assignee has been discharged, and is making no claim; that the attaching creditors have released their claims; and because the bank, though having the $1,300 mortgage, is willing to surrender it. It is quite possible the contention of complainant is true, but it is not sustained by any legal evidence in the case. • The assignee and the holder of the mortgage are not parties to the record, and would not be bound by the decree. Under the terms of the contract, the defendant was entitled to a marketable title, free and unincumbered. Barnard v. Brown, 112 Mich. 452 (70 N. W. 1038). She was willing to receive such a title, and pay for the land according to the terms of the contract. The record does not disclose complainant could give such a title, and until he is prepared to do so he is not entitled to have the contract price paid over to him.

It is the claim of defendants that they should be allowed to recover the amount of payments made by them, and the interest thereon; citing Ford v. Wright, 114 Mich. 122 (72 N. W. 197). That case is not applicable to this case. In that case the vendor remained in possession of the land. In this case the vendee was given immediate possession. While the evidence is not at all satisfactory, it is not a violent presumption from the evidence to assume there is a dwelling house upon the land, which has been occupied for more than seven years by one of the defendants, with the consent of the other; and it would not be equitable to allow a valuable occupancy for a long period of time and a recovery of all of the purchase price, with interest. If all the parties in interest were before the court, it is probable a decree could be entered that would do justice to all. As it is, the bill of complaint will be dismissed, with costs of both courts, but without prejudice.

The other Justices concurred.'


text:
    CONVERSE v. WALLACE.
    Appeal — Verdict—Questions op Fact.
    The jury having found the issues of fact for the plaintiff, judgment in his favor was affirmed on appeal.
    Error to Hillsdale; Chester, J.
    Submitted October 12, 1900.
    Decided November 13, 1900.

      Assumpsit by Nelson Converse against John Wallace for board furnished at defendant’s request. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. A. Shepard and B. E. Sheldon, for appellant.

      Frankhauser & Cornell, for appellee.
   Moore, J.

The plaintiff is the husband of a stepdaughter of Catherine Wallace. The father of the defendant was in his lifetime the husband of Catherine Wallace, and the defendant is her stepson. At the death of the older Wallace he left a farm, the use of which he gave to Catherine Wallace during her lifetime. In August, 1894, Mrs. Wallace gave to the defendant a power of attorney, authorizing him to collect the rent of the farm, and this power of attorney continued until the last of March, 1897. In August, 1896, Mrs. Catherine Wallace was making her home at the house of Mrs. Quilhot, her adopted daughter. The plaintiff and his wife, after making a visit at Quilhot’s, took Mrs. Wallace home with them for a visit; they expecting her to remain over the following Sunday. On account of sickness in the family of the plaintiff, Mrs. Wallace was not taken home for a few days, and Mrs. Quilhot wrote the wife of plaintiff that her husband was sick, and that she could not have Mrs. Wallace back again, and refused to receive her. It is the claim of plaintiff that soon after that he saw the defendant and told him he could not afford to keep Mrs. Wallace, and that defendant agreed that if he would keep her he would pay the plaintiff for doing so. It is also the claim that afterwards Mr. Davis was appointed to act for Mrs. Wallace, and to take charge of the farm and property thereon, and turned over to the defendant a quantity of personal property; the defendant agreeing to pay the plaintiff and to pay other debts. Both of these claims of the plaintiff are disputed by the defendant. The plaintiff brought suit in justice’s court to recover for 9-|- weeks’ board, at $2 a week, furnished Mrs. Wallace. He recovered a judgment. The case was appealed to the circuit court, where, after a jury trial, he again recovered a judgment, and the case is brought here by writ of error.

The case is very thoroughly briefed and is very zealously argued by counsel. The principal questions involved were questions of fact, about which there was a dispute. There is no new question of law involved. The case was carefully tried and fairly submitted to the jury by the trial judge. We do not think it would profit any one to discuss the questions raised by the briefs. We do not discover any error in the proceedings.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    BRODRICK v. GENESEE CIRCUIT JUDGE.
    Contempt — Avoiding Service of Subpcena.
    Concealing oneself to avoid service of a subpoena issued from the circuit court in chancery is not such an “unlawful interference with the process or proceedings” as will render one liable under Act No. 330, Pub. Acts 1899, § 1, to punishment as for contempt of court.

      Mandamus by Adaline E. Brodrick to compel Charles H. Wisner, circuit judge of Genesee county, to set aside an order dismissing certain contempt proceedings.
    Submitted October 30, 1900.
    Writ denied November 13, 1900.

      McFarlan,\ Williams & Wilson, for relator.
   Long, J.

It appears that in February, 1900, the petitioner filed a bill for divorce, on the ground of extreme cruelty, in the Genesee circuit court in chancery. The defendant appeared, and filed an answer in the nature of a cross-bill, charging the complainant, the petitioner, with criminal intimacy with one George W. Goff. The cause was set for hearing on.the 26th of February, and a subpoena was issued, and, as petitioner alleges, was duly served on said Goff. The petitioner alleges that the said Goff was a material and necessary witness for her, but that he failed and neglected to appear in obedience to said subpoena, and absented himself from the jurisdiction, and remained in hiding, until two days after the proceedings had been determined against the petitioner. Proceedings were then commenced against said Goff for contempt of court. On that hearing the circuit judge found that the subpoena had never been served on said Goff. The court further found as follows:

“As a matter of fact, I am satisfied that Mr. Goff knew that there was a subpoena issued for him by this court, and that he intentionally absented himself so that the same could not be served; but, while I find that to be a fact, as a matter of law I think it is not covered by the statute, and therefore I find that Mr. Goff is not in contempt, and he may be discharged from this proceeding.”

A mandamus is now asked by petitioner to compel the circuit judge to set aside this order, and to proceed to the punishment of said Goff for contempt of court.

The act under which the proceeding was brought is Act No. 230, Pub. Acts 1899, which reads:

“ Section 1. Every court of record shall have power to punish by fine and imprisonment, or either, any neglect or violation of duty, or any misconduct, by which the rights or remedies of a party in a cause or matter depending in such court, or triable therein, may be defeated, impaired, impeded, or prejudiced, in the following cases: * * *
“4. All persons for assuming to be officers, attorneys, solicitors, or counselors of any court, and acting as such, without authority; for rescuing any property or persons which shall be in the custody of an officer by virtue of process issued from such court; for unlawfully detaining any witness or party to a suit while going to, remaining at, or returning from the court where such suit shall be noticed for trial; and for any other unlawful interference with the process or proceedings in any action. * * *
“ 8. All other cases where attachments and proceeding as for contempts have been usually adopted and practiced in courts of record to enforce the civil remedies of any party, or to protect the rights of any such parly.”

It is the claim of counsel for petitioner that Goff was guilty of contempt of court in hiding away from the reach of the process of subpoena, knowing that the same had been issued for him, and that by subdivision 8, above quoted, the court could proceed as for contempt. It is' also claimed that the court should have found, as matter of law, that Goff had been guilty of unlawful interference with the process and proceedings in the action; that Goff’s offense in absenting himself and hiding from the reach of subpoena, knowing that such subpoena had been issued for him, and that he was wanted as a witness in the cause, comes within subdivision 4 of the act, as it was an unlawful interference with the proceedings in the action.

In the case of Montgomery v. Muskegon Circuit Judge, 100 Mich. 436 (59 N. W. 148), it was held that under the statute (2 How. Stat. § 7257) one may be guilty of detaining a witness whether the witness has been subpoenaed or not. That case is cited as sustaining the claim made under the present statute, and counsel argue from it that a party against whom process of subpoena has been issued, who avoids service and fails to attend as a witness, knowing it to have been issued, would be liable for contempt equally with one who detains some other party from attending as a witness. That case, however, was’ decided upon the construction of the statute then under consideration, which provided in express terms that it should be unlawful to detain any witness or party while going to, remaining at, or returning from the court, etc. Counsel cite two cases which they claim in their brief sustain their contention: State v. Keyes, 8 Vt. 57 (30 Am. Dec. 450); State v. Horner, 1 Marv. ( Del.) 504 (26 Atl. 73). Both of those cases, however, are like the case of Montgomery v. Muskegon Circuit Judge, supra. The proceedings were had against a party who endeavored to induce a witness to absent himself from the jurisdiction of the court. Undoubtedly, such party would be guilty of the offense, under the provisions of subdivision 4 of this, act. This statute under consideration is penal in its nature, and must be strictly construed. Counsel seek to incorporate into it a provision which would make one liable as for contempt who absented himself that he might not he served with process. We cannot enlarge the statute so as to include the case made here. As it stands, it will not bear the construction contended for.

The circuit judge was not in error in discharging the respondent. The writ must be denied.

The other Justices concurred.


text:
    HAYES v. IONIA CIRCUIT JUDGE.
    1. Bill of Exceptions — Time fob Settling — Extension by Ex Pabte Order.
    Under Circuit Court Rule No. 47, prohibiting the extension of the time for settling a bill of exceptions for more than 60 days, unless for cause shown after notice or by stipulation of the parties, the granting of additional time to settle a bill> by an ex parte order made after the expiration of the 60 days’ is error, and the order is void.
    2. New Trial — Application—Power of Court.
    Circuit Court Rule No. 21, which provides that a motion for a new trial shall be made within five days after the rendition of the verdict, or within such further time as shall be allowed by the court, does not preclude the court from granting an extension of time by an ex parte order.

      Mandamus by Mary A. Hayes to compel Frank D. M. Davis, circuit judge of Ionia county, to strike a motion for a new trial from the files, and to vacate an order extending the time in which to settle a bill of exceptions hr move for a new trial.
    Submitted October 30, 1900.
    Writ denied November 13, 1900.

      Lemuel & William K. Glute (Morse & Locke, of counsel), for relator.

      George E. & M. A. Nichols, for respondent.
   Moore, J.

December 31, 1898, a verdict was rendered in favor of the relator in the case of Webber et al. against Nathan B. Hayes, principal defendant, and Mary A'. Hayes, garnishee defendant. By orders of court or stipulation of counsel, the time in which to' settle a bill of exceptions or move for a new trial was extended from time to time. The last of these stipulations was filed February 26, 1900, and gave the plaintiffs until the 1st day of April in which to sue out a writ of error, settle a bill of exceptions, or move for a new trial. On March 31, 1900, counsel for plaintiffs attempted to get a stipulation for further time. Counsel for defendant refused to grant it. On the same day counsel for plaintiffs obtained an ex parte order extending the time 30 days in which to settle a bill of exceptions or move for a new trial. April 21, 1900, counsel for plaintiffs made a motion for a new trial, to be heard the 7th of May, and notice was served of this motion upon counsel for defendant. April 24, 1900, counsel for defendant made a motion to strike from the files the motion for a new trial, and to set aside the order of March 31, 1900. The court refused this motion. The relator prays for the writ of mandamus to compel the circuit judge to strike the motion for a new trial from the files, and to vacate the order of March 31, 1900.

On the part of the relator it is insisted that the order of March 31, 1900, is invalid — First, because it extended the time to settle a bill of exceptions or move for a new trial until after the time had expired in which a bill of exceptions could be settled; and, second, because it was made ex parte. Cir. Ct. Rule No. 47 provides when a bill of exceptions must be settled. This rule has been construed in the recent cases of Hill v. Hill, 114 Mich. 599 (72 N. W. 597), Lake Shore, etc., R. Co. v. Branch Circuit Judge, 116 Mich. 399 (74 N. W. 529), and Roach v. Wayne Circuit Judge, 117 Mich. 242 (75 N. W. 465). Under the rule and these decisions, that part of the order extending the time in which to settle a bill of exceptions is void.

The provisions of law in relation to new trials in civil causes are to be found in 1 Comp. Laws 1897, § 205, and Cir. Ct. Rule No. 21. It will be observed that there is no such limitation of time as there is in the rule relating to the settlement of bills of exceptions. The provisions do not interfere with the common-law discretion of the court. They only fix a time beyond which no one could move for a new trial as a matter of right. In People v. Wayne Circuit Judge, 20 Mich. 220, it was said:

“It is not clear that motions for new trial based on newly-discovered evidence would come within the rule fixing a time, for the facts may not be ascertained until afterwards. It is not desirable to compel parties to resort to courts of equity to obtain new trials, where it can be avoided; and in such cases the courts of law should act on equitable principles, and do, if they can, what justice requires.”

See, also, Van Renselaer v. Whiting, 12 Mich. 449; Campau v. Coates, 17 Mich. 237.

In Manufacturers' Mut. Fire Ins. Co. v. Gratiot Circuit Judge, 79 Mich. 241 (44 N. W. 604), an ex parte order extending the time in which to move for a new trial was entered. This court declined to interfere with the action of the court. In the case of Reynolds v. Sweet, 104 Mich. 252 (62 N. W. 356), a judgment was entered in the circuit court March 21, 1894. The case was brought to this court, and decided February 26, 1895. The judgment of the court below was affirmed, and a remittitur was sent to the clerk of the circuit court. The judgment was paid in March. December 30th following, a year and nine months after the original judgment was entered, a motion was made for a new trial, and the new trial was granted. Upon an application for a mandamus, this court declined to interfere. Reynolds v. Newaygo Circuit Judge, 109 Mich. 403 (67 N. W. 529). In Fort Wayne, etc., R. Co. v. Wayne Circuit Judge, 110 Mich. 173 (68 N. W. 115), the circuit judge upon his own motion granted a new trial, and it was held he had the right to do so. The counsel for the relator cite the case of Frazer v. Judge of Recorder’s Court, 112 Mich. 469 (70 N. W. 1042). That case was a criminal case. The statute authorizing a new trial in criminal cases limited the time in which the application must be made. The case is not applicable here.

It is urged that, if the circuit judge may grant a new trial after the time for settling a bill of exceptions has expired,- unreasonable delays will be caused, abuses will arise, and parties will obtain by indirection what they cannot obtain directly. We are not at liberty to ássume that circuit judges will not do their full duty, or will grant a new trial except where it ought to be granted in furtherance of justice. Should such a case arise, a proper disposition can be made of it.

The application for the writ is denied.

The other Justices concurred.


author: Long, J. Moore, J.

text:
    FIRST NATIONAL BANK OF DETROIT v. BOWEN.
    Action on Note — Execution—Evidence—Question for Jury.
    In an action on a note, defendant testified that the only note signed by him was sent to him in a letter, and was dated April 2d, payable in three months. His testimony was corroborated by the letter, and by the testimony of his wife. Plaintiff, a purchaser for value before maturity of the note in suit, which was dated June 29th, payable four months after date, presented proof that the signature to such note was defendant’s, and that there were no erasures thereon. Defendant, without specifically denying the signature, claimed that the note, if given by him, had been changed since its execution. Held, that the court properly left the issues to the jury, refusing to direct a verdict for plaintiff. Long and Grant, JJ., dissenting.
    Error to Cheboygan; Shepherd, J.
    Submitted June 18, 1900.
    Decided December 4, 1900.

      Assumpsit by the First National Bank of Detroit against David Bowen on a promissory note. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Frost & Sprague, for appellant.

      H. W. Harpster, for appellee.
   Long, J.

(dissenting). This suit was brought on a promissory note of $500, dated June 29, 1895, due in four months, payable to C. E. Kelsey, and purporting to be signed by the defendant, David Bowen. The defendant pleaded the general issue, and attached thereto an affi davit denying the execution of the note. On the trial he did not in terms deny his signature to the note, but claimed that a $500 note was given by him dated about April 1st, and that he signed it as accommodation maker for Mr. Kelsey. He testified that, if it was the same note as the one in suit, the date had been changed. The court below left that question to the determination of the jury, who returned a verdict in favor of the defendant.

In this the court was in error. The testimony showed that the plaintiff bank purchased the note in suit before due from Mr. Kelsey in the usual course of business; that the note at that time was all filled out, and there were no erasures in it; that it still owned the note, and that it had not been paid. It proved by two witnesses that the signature was the signature of the defendant. The defendant testified that it looked like his signature, but that the note he signed was dated April 1st or 2d. He also stated- that he did not know whether it was dated in ink or lead pencil. The plaintiff asked the court to direct a verdict in its favor, which request was refused. The request should have been given. Defendant’s testimony utterly failed to establish the fact of any alteration in the note since its execution. There was no proof that it had been altered in any respect. It was a complete instrument, and where filled in it was in the same handwriting, and the only discrepancy between it and the one the defendant acknowledged signing was the date. If the note he signed was. not dated, he was negligent in signing it in that condition, and he could not defend against it in the hands of an innocent holder on the ground that some one else put in the wrong date.

The judgment should be reversed, and a new trial granted.

Grant, J., concurred with Long, j.

Moore, J.

I cannot agree with the conclusion reached by Mr. Justice Long. The note sued upon is dated June 29, 1895. It is for $500, payable to C. E. Kelsey or order, payable four months after date. Attached to the plea of the general issue is an affidavit denying the execution of the note. Mr. Bowen testified that the only note for $500 he signed for Mr. Kelsey was one sent to him in a letter from Detroit, by Mr. Kelsey, dated March 23, 1895, which note was 'dated April 2d, .payable in three months. His testimony is corroborated, by the letter of Mr. Kelsey and by the testimony of Mrs. Bowen. It is evident that, if the note Mr. Bowen signed was dated April 2d, it was not the note in controversy, unless it has been changed in a material part. I think this raised a question of fact for the jury. Burroughs v. Ploof, 73 Mich. 607 (41 N. W. 704); Parrish v. Bradley, 73 Mich. 610 (41 N. W. 818); Aldine Press v. Estes, 75 Mich. 100 (42 N. W. 677); Stevens v. Pendleton, 85 Mich. 137 (48 N. W. 478); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); McDonald v. Ortman, 88 Mich. 645 (50 N. W. 644); Des Jardins v. Boom Co., 95 Mich. 140 (54 N. W. 718); and the many cases cited in 3 Jac. & C. Dig. p. 638.

Judgment is affirmed.

Montgomery, C. J., and Hooker, J., concurred with Moore, J.


author: Hooker, J. Moore, J.

text:
    MONROE v. ST. CLAIR CIRCUIT JUDGE.
    Privilege from Arrest — Attendance on Court.
    The rule of privilege from arrest, applicable to suitors and witnesses while in attendance upon the court and while going to and returning therefrom, cannot be extended to protect the vendor of a vessel, who is without the jurisdiction of his residence for the purpose of adjusting with the purchaser a libel filed by a third person against the boat. Moore and Long, JJ., dissenting.

      Mandamus by John Monroe, Jr., to compel O’Brien J. Atkinson, circuit judge of St. Clair county, to release relator from arrest.
    Submitted June 12, 1900.
    Writ denied December 4, 1900.

      Avery Bros., for relator.

      Phillips & Jenks, for respondent.
   Hooker, J.

Monroe, living in the county of Charlevoix, owned a vessel. He sold and delivered her into the possession of Slyfield, who paid $100 in cash, and left a draft and other papers with Pratt & Davis, a law firm at Traverse City, to be delivered to Monroe upon his executing a proper bill of sale and a bond to protect Slyfield against liens. Sperry commenced a suit against the boat, for supplies, in the federal district court for the Eastern district of Michigan, and the boat was seized at Port Huron by the United States marshal. Slyfield conferred with Phillips, an attorney at Port Huron, to ascertain whether he could safely pay the claim, and was advised that he could not, and that Monroe had better authorize Slyfield to pay it, or come down to Port Huron and arrange it. Slyfield telegraphed Monroe to come, and he did so, whereupon he was arrested at the suit of one Bonnah, for whom Phillips was counsel. The circuit court refused to discharge him, which was asked upon the ground that he was privileged from arrest.

The privilege of a witness or suitor is to be found in the common law or our statute (3 Comp. Laws 1897, § 10157). The statute does not cover this case, for the relator did not attend as a witness. But the privilege of a party from arrest existed at common law, and has not been abrogated. This privilege applied to him while in attendance upon the court, and was a rule of public policy, based, not upon the welfare of the party, so much as upon the protection of the administration of justice; and it extended no further than to the period of his actual attendance upon some judicial proceeding or inquisition, and the reasonable time used in going to and returning from such tribunal. I am able to find no sanction for the doctrine that it protects a- party while going away from his residence to consult counsel, whether at the place where the court is usually held or elsewhere; and no case is cited which recognizes it while he is in such locality for the purpose of settling his case. The reason for this privilege, and its nature and extent, are shown by numerous cases cited in a note to the case of Mullen v. Sanborn, 25 L. R. A. 721 (79 Md. 364, 29 Atl. 522, 47 Am. St. Rep. 421). We do not quote from them, for the summary can as well be read; but, in our opinion, neither the cases themselves, nor the principle underlying them, sanctions such an application of the doctrine as is sought here. Nor do the cases from Michigan justify it. It is said that “the right of a defendant to be sued at his domicile is not a technical, but a substantial, right.” If this be true, the same can be said of the plaintiff; i. e., that his right to sue a defendant away from his domicile, which he may do under the statute, is not a technical, but a substantial, one. If the one is not to be deprived of a right by disregarding his privilege, the other is not, by extending it to cases not within the rule or its reason.

In the case of People v. Judge of Superior Court of Detroit, 40 Mich. 730, relator was arrested and taken from his domicile to the place where he was sued. He was clearly protected under the common-law rule. In Mitchell v. Huron Circuit Judge, 53 Mich. 541 (19 N. W. 176), a person attended court solely for the purpose of testifying as a witness. He was clearly within the statutory as well as the common-law rule. Letherby v. Shaver, 73 Mich. 500 (41 N. W. 677), was on all fours with Mitchell v. Huron Circuit Judge. In Hoffman v. Bay Circuit Judge, 113 Mich. 109 (71 N. W. 480, 38 L. R. A. 663, 67 Am. St. Rep. 458), the rule was applied to counsel when returning from a session of this court, where he had argued a case. He was protected both by statute and common law. The only case that seems to afford any support to relator’s contention is Jacobson v. Wayne Circuit Judge, 76 Mich. 234 (42 N. W. 1110). The relator was let to bail in the village of Yassar. The next morning he went to Detroit to consult counsel in relation to his arrest. While in his office he was served with process in favor of a non. resident of the State. The court did not hold that he was privileged because he went to consult counsel, and clearly indicated that the holding would have been the same had he not desired to consult counsel. They say that “it appears that to go by Detroit [to his home in Greenville] was as convenient and usual as any other route,” but that ‘ this does not impress us as very significant, inasmuch as it was a common line of travel ” (i. e., between those places), and that “he had a right to see his regular counsel on his way home,” and that “it cánnot be treated as going out of his way to do so.”

In the case before us there was no pretense that relator went to Port Huron to attend court,' nor, for that matter, to see his regular counsel, or any counsel. There is nothing to indicate that court was in session. He went there voluntarily, at Slyfield’s request, to see if he could not make arrangements to carry out his contract of sale, and was no more privileged than as though he had gone there to sell his vessel in the first instance, and had been arrested. His claim to immunity from arrest has not the sanction of authority, and is not, in our opinion, within the reason of the rule invoked.

The order of the learned circuit judge should be affirmed, and the writ is denied.

Montgomery, C. J., and Grant, J., concurred with Hooker, J.

Moore, J.

(dissenting). This is an application for a writ of mandamus to compel the respondent to release the relator from an arrest made at the instance of one Bonnah, who commenced suit by capias ad respondendum against the relator. Counsel for relator ask for his discharge for two reasons: First, because he was decoyed and enticed into St. Clair county for the purpose of serving process upon him; second, because he was privileged from arrest when the process was served upon him. The circuit judge was of the opinion that the first of the above: named reasons did not exist, and that, under the circumstances of the case, the relator was not privileged from arrest.

There is not very much dispute about the facts. Mr. Monroe is a resident of Charlevoix county. He was the owner of the schooner Annie P. Grover. He had agreed to sell a half interest in her to one Slyfield. Mr. Slyfield paid $100 on the purchase price, and she had been delivered into his possession. Mr. Slyfield also left with Pratt & Davis, attorneys at Traverse City, a draft and other papers, to be delivered to Monroe upon his executing a proper bill of sale and giving a bond to protect Slyfield from any liens against the boat. One Sperry, of Port Huron, commenced a suit against the boat, for supplies, in the Eastern district of Michigan, and the boat was seized by the United States marshal at Port Huron. Mr. Slyfield conferred with Mr. Phillips, an attorney, as to whether he could safely pay the claim against the boat, and he was advised that he could not, as the bill was a disputed one, and that Monroe had either better authorize Slyfield to pay the claim, or make arrangements at Traverse City to have it paid, or come to Port Huron and arrange it. Mr. Slyfield telegraphed to Monroe that the boat had been seized, and to come at once. December 1st Monroe telegraphed to Slyfield to wire Pratt & Davis to send all papers, and that he would leave the same night. On the same day Slyfield telegraphed Pratt & Davis to send papers, and on the same day Mr. Phillips sent a like telegram. Mr. Monroe arrived in Port Huron the next day, and was promptly arrested at the suit of Mr. Bonnah, for whom Mr. Phillips was one of the attorneys. It is the claim of the relator that Mr. Phillips was consulted in his interest as well as in the interest of. Mr. Slyfield, and that his purpose in giving the advice he did was to get the relator within the jurisdiction of the court. It is the claim of Mr. Phillips that he was acting only for Slyfield, and that the purpose of Monroe in coming to Port Huron was to complete a bargain with Slyfield, and that he did not need to come to Port Hpron to look after the libel suit.

Without stopping to refine words, we think it clear that there was no reason for Mr. Monroe’s coming to Port Huron except because of the conditions naturally growing out of the commencement of the libel suit. This proceeding tied up the vessel, and, if continued, would result in its sale. He had already sold a half interest in the schooner, and agreed to make a bill of sale thereof. The person with whom he made his agreement deemed his presence in Port Huron necessary, and so telegraphed him. It was the relator’s claim that Mr. Sperry had no valid claim against the schooner. It is difficult to see how he could properly look after this judicial proceeding, and protect his own interests, without coming to Port Huron, and we think he had a right to do so without being subjected to arrest. In Jacobson v. Wayne Circuit Judge, 76 Mich. 234 (42 N. W. 1110), the relator was arrested in Tuscola county. His residence was in Montcalm county. After being let to bail he went to Detroit to consult his attorney in relation to the case which had been commenced against him. While in Detroit he was served with a summons for the same torts involved in the criminal case. The court dismissed the case commenced in Detroit, and in doing so used the following language:

“The right of a person to be sued at his own domicile is not a technical one, but one of importance, and should not be taken away except in strict compliance with law. And nonresidents, as a rule, must sue their respondents at home. It is open to some question how far defendants can be sued in such an action of tort as the one now involved, in any county where they do not reside, merely because some one else may be sued with them, so long as the plaintiff does not reside in the State. See 2 How. Stat. §§ 7316, 7547. We are not required to pass on this, and only refer to it to save any point that may be in it. It is oppressive to resort to such proceedings without some good reason, and the service cannot be upheld if unfair and in fraud of any legal privilege. Relator had a right to consult counsel in his defense in the criminal case5 and it was not unreasonable to go where his regular coun. sel lived, on his way home, for that purpose. It cannot be treated as going out of his way to do so, and it cannot be held that he should cut short his consultation, so long as within reasonable bounds. Counsel cannot always be at the instant command of clients. In the present case relator was served in the office of his counsel on the day when he first procured access to him. The fact that the civil suit was for the same purpose as the criminal one, and begun by the complainant in that proceeding, negatives any idea that bringing it was a mere coincidence, or that the sheriff served the process accidentally; and, at any rate, the service was made while relator was on his way home, without any deviation as to his journey, and with no delay that was not fully justified. The case seems to us -a very clear one, both of breach of privilege and of abuse of process, and we think the motion should have been granted.”

See, also, the following authorities: People v. Judge of Superior Court of Detroit, 40 Mich. 729; Mitchell v. Huron Circuit Judge, 53 Mich. 541 (19 N. W. 176); Letherby v. Shaver, 73 Mich. 500 (41 N. W. 677); Hoffman v. Bay Circuit Judge, 113 Mich. 109 (71 N. W. 480, 38 L. R. A. 663, 67 Am. St. Rep. 458).

In Parker v. Marco, 136 N. Y. 589 (32 N. E. 989, 20 L. R. A. 46, 82 Am. St. Rep. 770), the following language is used:

“The privilege of a suitor or witness to be exempt from service of process while without the jurisdiction of his residence for the purpose of attending court in an action to which he is a party, or in which he is to be sworn as a witness, is a very ancient one. Y. B. 13 Hen. IV., Vin. Abr., ‘Privilege.’ It has always been held to extend to every proceeding of a judicial nature, taken in or emanating from a duly-constituted tribunal, which directly relates to the trial of the issues involved. It is not simply a personal privilege, but it is also the privilege of the court, and is deemed necessary for the maintenance of its authority and dignity, and in order to promote the due and efficient administration of justice. Person v. Grier, 66 N. Y. 124 (23 Am. Rep. 35); Matthews v. Tufts, 87 N. Y. 568. * * * The tendency has been not to restrict, but to enlarge, the right of privilege, so as to afford full protection to parties and witnesses from all forms of civil process during their attendance at court, and for a reasonable time in going and returning. Larned v. Griffin, 12 Fed. 592. Hearings before arbitrators, legislative committees, registers and commissioners in bankruptcy, and examiners and commissioners to take depositions, have all been declared to be embraced within the scope of its application. Bac. Abr. ‘ 'Privilege;' Sanford v. Chase, 3 Cow. 381; Matthews v. Tufts, supra; Hollender v. Hall, (Sup.) 13 N. Y. Supp. 758, 11 N. Y. Supp. 531; Thorp v. Adams, (Sup.) 11 N. Y. Supp. 479; Bridges v. Sheldon, 7 Fed. 17; Plimpton v. Winslow, 9 Fed. 365; and Larned v. Griffin, supra. It has even been extended to a suitor returning from an appointment with his solictor for the purpose of inspecting a paper in his adversary’s possession, in preparation for an examination before a master (Sidgier v. Birch, 9 Ves. 69); and while attending at the registrar’s office with his solicitor to settle the terms of a decree (Newton v. Askew, 6 Hare, 319); and while attending from another State to hear an argument in his own case in the court of appeals (Pell’s Case [Ch. MSS. Dec.], cited in Vincent v. Watson, 1 Rich. Law, 197). No good reason can be perceived why the privilege should not be extended to a party appearing upon the examination of his adversary’s witnesses, where the testimony is taken pursuant to the authority of law, and can be read upon the trial with the same force and effect as if it had been taken in open court. It is a proceeding in the cause which materially affects his rights, and the necessity for his attendance is quite as urgent as it would be if the examination was had at the trial. But we do not think that the question of the necessity of his presence is material. It is the right of the party, as well as his privilege, to be present whenever evidence is to be taken in the action which may be used for the purpose of affecting its final determination. It is essentially a part of the trial, and should be so regarded, so far as it may be necessary for the protection of the suitor.”

In the notes to Mullen v. Sanborn, 25 L. R. A. 721 (79 Md. 364, 29 Atl. 522, 47 Am. St. Rep. 421), there is a full collation of cases bearing upon the question.

We think that relator was privileged from arrest at the time the arrest was made.

The writ should issue as prayed.

Long, J., concurred with Moore., J.