author: McGrath, C. J.

text:
    The German American Insurance Company v. Joseph H. Steere, Circuit Judge of Chippewa County.

      Foreign insurance companies — Service of writ of garnishment.

    1. Section 7 of Act No. 155, Laws of 1873 (How. Stat. § 4368), entitled “Ah act relative to the service of process upon insurance companies not incorporated under the laws of this State,” which provides that “the word ‘process’ in this act shall include any writ, declaration, summons, order, or subpoena whereby any action, suit, or proceeding at law or in chancery shall be commenced against any such insurance company,” etc., clearly includes a summons in garnishment.
    2. Respecting corporations in general, the language used in Bridge & Iron Works v. Circuit Judge, 73 Mich. 155, that “our statutes nowhere provide for any service of a writ of garnishment upon a foreign corporation,” was correct, but it should not be held applicable to a particular class of foreign corporations, respecting which ample provisions for service had been made.

      Mandamus.

    Argued February 12, 1895.
    Denied June 4, 1895.
    Relator applied for manda/mis to compel respondent to quash the service of a writ of garnishment. The facts-are stated in the opinion.

      E. M. Oren and FrcmJc W. Eine, for relator.

      E. 8. B. Sutton, for respondent..
   McGrath, C. J.

I am of the opinion that the service upon the Insurance Commissioner in the present case was good. How. Stat.- § 4368, provides that the word ■“process,” used in that act,—

“Shall include any writ, declaration, summons, order, •or subpoena whereby any action, suit, or proceeding at law or in chancery shall be commenced against any such insurance company, whether such suit or proceeding is •connected with the insurance business of such company in this State or not, and whether such suit or proceeding Is founded upon any claim or demand connected with such business of insurance or upon matters growing out of such business, or whether it is founded or based upon any other claim or demand, whatever may be the nature of such claim or demand.”

This statute embraces any writ, order, or summons in any suit or proceeding, and clearly includes a summons in garnishment.

In Milwaukee Bridge & Iron Works v. Circuit Judge, 73 Mich. 155, the proceeding was not against an insurance •company, and the Court evidently overlooked the statute relating to service upon insurance companies. Respecting corporations in general, the language there used .was correct, but it should not be held applicable to. a particular class of foreign corporations, respecting which ample provisions for service had been made. In view of the fact that in many cases this class of foreign corporations have no agents in the State upon whom service may be had, under 3 How. Stat. § 8086, it cannot be said, in the absence of express provision therefor, that the Legislature intended to repeal or limit the application of How. Stat. § á362 et seq.

The writ is denied.

The other Justices concurred.


source: Caselaw Access Project

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

license: Public Domain

text:
    The People v. William Palmer.
    [See 96 Mich. 580.]

      Moidence — Refreshing recollection of witness — Criminal law — Homicide — Instructions—Sentence.
    1. It is not error for the counsel for the people in a criminal case, for the sole purpose of refreshing the recollection of one of the people’s witnesses, occasion for which is shown, on his redirect examination, to call his attention to his testimony given on a former trial of the ease; citing Beaubien v. Cicotte, 12 Mich. 459; McCreery v. Green, 38 Id. 186, and authorities there cited; Battishill v. Humphreys, 64 Id. 518; distinguishing from Bashford v. People, 24 Mich. 247, which recognized the above rule, but was based upon the fact that no occasion was shown for refreshing the memory of the witness.
    2. A witness for the respondent in a murder case testified that the deceased had tried to hire him to kill the respondent. After admitting on cross-examination that he married his wife from a house of prostitution, the witness was asked if she was a prostitute, and the question, as also another of a similar character, was excluded. And it is held that the story of the witness was such as to render a very rigid cross-examination of his life and character competent; that, there being nothing to show that the excluded questions were not asked ' in good faith, they were not of such a character as to justify the holding that they prejudiced the jury.
    3. Argumentative requests to charge, covering a question which has been fully argued to the jury, are of doubtful propriety; citing People v. Crawford, 48 Mich. 498.
    4. In a prosecution for murder, the court, after defining .the different degrees of murder, and also manslaughter, and after stating to the jury that, where a crime was divided into degrees, they might acquit of the principal charge and convict of the lesser offense, and that in such a case they should first consider the matter of the higher crime, <?nd then go through the different degrees, withdrew from their consideration the subject of murder in the first degree, the respondent having been acquitted of that offense on á former trial. And it is held that the charge was not misleading and prejudicial in that the court first defined murder in the first degree, and instructed the jury that they should commence with the higher crime.
    5. The testimony on the part of the people in a homicide case tended to show that on the day of the shooting the respondent and decedent had some words of dispute in a saloon; that the respondent leit the saloon, decedent remaining' there, and, after arming himself with a shot gun, returned to the saloon; that the decedent had in the meantime armed himself with a revolver. The respondent claimed that he had no murderous intent at any time. The court instructed the jury that if, after the respondent entered the saloon, he became aware that the decedent was there, and he then formed the intent to take his life, taking into account whatever may have been in his mind as to their past relations, their quarrels, or anything that he may have heard about the decedent’s having a pistol, and if he became aware that the decedent was in the back part of the saloon, surrounded by his friends, if he then, even though but a moment before he fired the fatal shot, formed in his mind the purpose of taking decedent’s life, and pursuant to that purpose he shot and killed him, that would constitute murder. Objection was made that there was no evidence to support such a theory, and that neither the prosecution nor the defense conducted the trial with reference to it. And it is held that the Court cannot tell what the ‘argument was to the jury; that, if there was any testimony upon which to base the charge, it must be sustained; that there was evidence that, when respondent entered the saloon, he appeared in his usual manner, and that, when he raised the gun, his countenance changed; that whether this was because he saw decedent, or saw the pistol pointed at him, and whether it was necessary for him then to shoot in self-defense, were all questions for the jury, and made competent the charge complained of, which was given in connection with instructions covering respondent’s theories.
    6. After the first difficulty in the saloon, and about an hour before the tragedy, the decedent went odt of the saloon, and had a conversation with one Bruce and one Poquette, relating to the trouble in the saloon. The respondent stood 150 to 200 feet from decedent. Bruce testified that decedent said he would not be beaten and bruised by that bully; that he was to big for him; that he was not able to fight him, and, furthermore, did not. have to; that he had something to aid him, showing a box of cartridges; that he then- said to Poquette, in Bruce’s presence, “What did you people up in that saloon mean by letting that man abuse me? He is too big for me. I don’t want to fight him, and don’t intend to. I have got something to protect myself with,” — taking a revolver out of his pocket; that Poquette replied, “I haven’t anything to do with your troubles. Didn’t I take him to Bay Oity yesterday to keep him away from you?” And it is held that the statements of the decedent were competent; that it was not only the right but the duty of the prosecution to place this conversation before the jury in so far as it showed the state of mind and disposition towards the respondent; that the admission of the statement of Poquette to the deceased is more doubtful; that the general rule is, however, that the entire conversation is admissible; that it all related to the trouble existing at the time between respondent and decedent; that it is not the rule to include the portion of a conversation which is favorable to a party, and exclude that which may be against him; that the entire conversation was admissible, and the jury might well be trusted with its consideration.
    7. Ten days after the conviction; the respondent was sentenced, without being asked, as far as the record shows, what he had to say why judgment should not be pronounced against him, all in the presence of respondent’s counsel, who made no objection to the proceeding. Arid it is held that the propounding of said question was never regarded as essential except in capital cases; that, whatever good purpose this practice may have served in England when parties charged with crime ■ were not allowed counsel, it is now a mere idle ceremony; but that, even If the sentence were erroneous for this reason, it was not an error upon the trial, but simply one in imposing sentence, for which the respondent would bp remanded to be sentenced afresh.
    Error to Saginaw. (McKnigiit, J.)
    Submitted on briefs March 1, 1895.
    Decided June 4, 1895.
    Respondent was convicted of murder in the second-degree, and sentenced to imprisonment in the State prison at Jackson for 25 years.
    Judgment affirmed.
    The facts are stated in the opinion.

      John E. Nolan (George W. Weadooh, of counsel j, for respondent.

      Fred A. Maynard, Attorney General, and E. A. Snow, Prosecuting Attorney (F. E. Emericlc, of counsel), for the people.
   Grant, J.

For a statement of the issue in this case, we refer to 96 Mich. 580, where a brief statement of the case will be found. On the second trial the respondent was again convicted of murder in the second degree.

A witness by the name of Adette 'was also a witness for the people on the former trial. Upon the redirect examination of the witness, counsel for the people, for the sole purpose of refreshing the witness’ recollection, called his attention to his testimony upon the former trial. This was permitted under, objection and exception, and is now alleged as error. This practice is too thoroughly established to now be doubted. Beaubien v. Cicotte, 12 Mich. 459; McCreery v. Green, 38 Id. 186, and authorities.there cited; Battishill v. Humphreys, 64 Id. 518. Respondent’s counsel rely on Bashford v. People, 24 Mich. 247. That opinion, we think, recognizes the rule, but was based upon the fact that no occasion was shown, for refreshing the witness’ memory. In this case there was.

Error is next alleged upon the misconduct of the; prosecuting attorney in interrogating the respondent’s witnesses upon the cross-examination. All the questions which were incompetent were promptly overruled by the circuit judge. One of the questions was as follows, asked' of the respondent himself:

“Then I understand you, if you were walking along with a gun, and you incidentally saw a revolver discharged in your direction, that you would take your gun, and cock it, and fire right into the crowd?”

One Ruby, a witness for the respondent, testified that the deceased, Albert Palmer, had tried to hire the witness to kill William, the respondent. The story was such as to render a very rigid cross-examination of the witness’ life and character competent. He admitted that he married his wife from a house of prostitution, and the question was then asked,. “Was .she a prostitute?” One other question of a similar character was asked, and both excluded. There was nothing to show that the questions were not asked in good faith, and we do not think they were of such a character as to justify the holding that they prejudiced the jury.

It is alleged as error that the court refused to give the following specific request on behalf of the respondent:

“In determining which of the brothers was the aggressor, you may also take into consideration the testimony tending to show that, on the date of the tragedy, Albert was under the influence of liquor, and that, when under the influence of liquor, he was ugly and nervous and of quick temper, and that the defendant, up to the instant of the shooting, was in his usual frame of mind, pleasant and good-natured.”

The charge is so full and complete, covering every possible ground of defense, that we do not think it was error to refuse this request. Besides, this request was rather in the nature of an argument based upon a portion of the testimony in the case. Undoubtedly, this question was fully argued by counsel to the jury. Such argumentative requests are of doubtful propriety. Peo ple v. Crawford, 48 Mich. 498. But, aside from this, the court specifically called the jury’s attention to the acts, conduct, and threats of the deceased, the facts and circumstances surrounding the killing, and their relations prior thereto, and instructed the jury that they were all for their consideration.

In the opening part of his charge, the judge defined the different degrees of murder and also manslaughter. He said that, where a crime is divided into degrees, the jury may acquit of the principal charge, and find the prisoner guilty of the lesser offense; and that, when one is so charged, the jury should first consider the matter of the higher crime, and then go through the different degrees. After some further explanations, he withdrew from their consideration the subject of murder in the first degree, since he had been acquitted of that charge on a former trial. It is insisted that the charge is misleading and prejudicial because he first defined murder in the first degree, and instructed them that they should commence with the higher crime. A juror who could be thus misled or prejudiced would not possess intelligence sufficient to justify his sitting as a juror in any case.

It is next argued that the court erred in giving, the following instruction:

“Now, if, after he entered the saloon, he became aware that his brother Albert was there, and he then formed the intent to take hs brother Albert’s life, taking into account whatever may have been in his mind as to their past relations, their quarrels, or anything that he may have heard about Albert having a pistol, and if he became aware that Albert was in the back part of the saloon, surrounded by his friends, if he then, even though hilt a moment before he fired the fatal shot, formed in his mind the purpose of talcing his brother’s life, and pursuant to that purpose he shot and Icilled him, that would constir' tute the crime of murder.”

The precise point urged is that there was no evidence to support such a theory, and that neither the proseculion nor tbe defense conducted the trial with reference to it. We cannot tell what the argument was to the jury. If there is any testimony upon which to base the charge of the court, the charge must be sustained. The respondent claimed that he had no murderous intent at any time. There was evidence that, when he entered the saloon, he appeared in his usual manner, and there was evidence that, when he raised the gun, his countenance changed. Whether this was because he saw his brother, or saw the pistol pointed at him, and whether it was necessary for him then to shoot in self-defense, were all questions for the jury, and made competent the charge complained of, which was given in connection with instructions covering the respondent’s theories. The entire instructions covering this point were as follows:

“Now, if, after carefully considering all the evidence in the case introduced upon both sides, and after carefully considering all the facts and circumstances surrounding the tragedy, and the relations of the accused and the deceased prior to the tragedy, and taking into account previously uttered threats, if any there were by either, and taking into consideration any quarrels that may have been between the brothers, if any, and also taking into account whether the parties became reconciled and were friends before this fatal day, and whether they were friends, then, I say, taking into consideration all of those facts and circumstances, it would be a subject for the jury to inquire into as to tlm intent with which this act was done, — whether it was an act committed in malice, whether it was an act committed in passion, or whether it was an act committed under the impulse of fear; and if, after a careful examination of all those facts that X have called your attention to, if each juror, looking inito his conscience, could say that he has an abiding conviction, to a moral certainty, of the defendant’s guilt, it would be his duty to convict, because that would be proving the ease by evidence beyond a reasonable doubt, as defined by the law.
“As has been said, the killing may have constituted manslaughter, or it may be entirely excpsable, according to the circumstances, and according to the state of mind with which the act was committed; and the principal inquiry in ihis case must be limited finally to the question of the intent with which this act was done. At the danger of repeating, I say that the principal inquiry in this case must be limited finally to the question.' as to the intent with which William Palmer fired that gun on the day of the shooting. If, at any time before the shot from the revolver was fired, William Palmer had formed the intent and purpose in his own mind, with malice aforethought, to take the life of Albert Palmer, then the mere fact that, while he was engaged in issuing this challenge, his brother, knowing of the danger, was able to first pull a revolver, and to discharge it, would not affect the guilt of the defendant. That implies the forming in his mind, before the firing of the fatal shot, of the intent to take hi® brother’s life; and that would be so because the firing in that case upon his part is immediately connected with the previous malicious and willful intent to take his life; and if Albert, seeing his danger, or knowing that William Palmer was coming in his direction, armed with the fatal weapon, and with the challenge upon his lips, was able first to draw his pistol and fire, that act would not affect the guilt of William Palmer.
“If the jury should find beyond a reasonable doubt that, before he fired the fatal shot, William Palmer had formed a settled,-premeditated, preconceived, or deliberately formed purpose to take his brother’s life, and that in pursuance of that purpose he procured the gun and the cartridges, and loaded the gun, and carried it to the place where the shooting occurred, with the previously formed purpose, with malice aforethought, to there make use of that gun for the purpose of taking his brother’s life, that would constitute' the crime of murder, and you would be justified and it would be your duty to find the respondent guilty of murder in the second degree. Or if you should find the fact tó be beyond a reasonable doubt that in the first intention William Palmer procured this gun for an entirely innocent purpose, and that he loaded it with .an innocent purpose, and intended to go hunting an eagle, as testified to by him, but that any time after procuring the gun, or at any time after entering the saloon, he formed a settled, deliberate purpose and intention, with malice aforethought, to take his brother’s life, by shooting him with that gun, that would constitute the crime of murder; for if, at the time the. shooting occurred, there was present in the mind of William ' Palmer this malicious purpose and intent to take Albert Palmer’s life, then, no matter how quickly it was formed, or how immediately before the shooting it was formed, if it existed in the mind of William Palmer when he fired that shot,-and if it was the actuating, moving cause that impelled him .to fire that shot, and if you believe from the evidence, beyond a reasonable doubt, giving the respondent at all times the benefit of this presumption ' of innocence which I have defined, but, notwithstanding that,' you found him so guilty, it would be your duty to find him guilty of murder in the second degree. In other words, the state of facts I. have defined would constitute the crime of murder, and you would be justified in bringing a verdict of murder in the second degree.
“In the next place, if, after a consideration of all of this evidence, you do- not find from the testimony in this case beyond a reasonable doubt the existence of all the ingredients constituting ' the crime of murder in the second degree, as I have defined it to you, you -should then direct your attention to, the investigation of the evidence in the case to see if a crime of lesser degree had been committed by this respondent, and you should endeavor to ascertain and determine if the crime of manslaughter was committed, for the crime of manslaughter, as before stated and defined to you, is an unlawful and felonious killing of another without malice expressed and implied. When one man suddenly kills another in the heat of passion, but without malice, and without a previously settled and deliberately formed purpose to do so, if no such purpose or -wicked intent existed at the time in his mind, and in the heat of blood, and inflamed with passion, he suddenly strikes the fatal blow or fires the fatal shot which causes the death of another, if the jury should find the existence of such a state of facts beyond a reasonable doubt, they would be justified in finding the accused guilty of the crime of manslaughter. Manslaughter-is perfectly distinguishable from murder, in this: That though the act that causes-death be unlawful or willful, though attended with fatal results, yet malice, either expressed or implied, which is the very essence of murder, is to be presumed to be wanting in manslaughter. ■
“If the jury should reject this evidence, but should find beyond a reasonable doubt, in accordance with the theory of the respondent and his witness, that he procured this gun with the innocent. purpose of hunting near Green Point, or hunting for an eagle that he had ascertained was there, that he did. not know at the time where his brother was, and that there existed at the time in his mind no intent to do his brother fiarm, but- that, pursuant to his purpose to hunt for this eagle, he went to the saloon of Jerry Noel after the rubber boots and the cartridges and some liquor, ■ and that he was intending, as soon as he had performed his errand there, to proceed upon his hunt, let us see what, situation that. would present. That assumed that, at the time he entered that-saloon, there was no criminal intention in his mind. Now; if;: after he entered the saloon, he became aware that liis brother; Albert was there, and he then formed, the. intent to take hlsn brother Albert’s life, taking into account whatever may .have been. in his mind as to their past relations, their quarrels, or anything that he may have heard about Albert having a pistol, and if he became aware that Albert was in the back part of the saloon, surrounded by his friends, if he then, even though but a moment before he fired the fatal shot, formed in his mind the purpose of. taking his brother’s life, and pursuant to that purpose he shot and killed him, that would constitute the crime of murder. If, however, he did not form any such purpose, but if, seeing the other parties in the saloon, he raised the gun in his hand in the spirit of banter only, and said, ‘Where is the man that wants to shoot me? Come up, come up,’ and approached the party, and if, while ^e was doing that in friendliness and in play, he saw his brother, and saw the revolver in his hand, and if that aroused his blood or any rancor that might have existed in his heart or angered him, and in that anger and passion, if he raised his gun and shot his brother, — if you should find the existence of those facts beyond a reasonable doubt, — that would constitute the crime of manslaughter. But if, putting both of those aside, there was no intention in the heart of William Palmer when he entered there to kill his brother, if he was going upon this hunt, and had no thought of malice or ill will towards his brother, and no intent to do him harm, but entered the saloon for the purpose that he said he did, and passed to the opening in. the screen door, and-when he was in front of the door; and but a short distance from the door, if he suddenly saw a hand extended with a revolver pointing towards him, and if at the time he was impelled by fear, and apprehended at the time, as appeared to him, that he was in danger of losing his own life or in danger of great bodily harm, and if he raised his gun under those circumstances, and discharged it, and his brother’s death was caused thereby, that would be excusable homicide; and the matter is to be viewea from the standpoint of William Palmer at that time when he saw that deadly weapon confronting him.
“The jury are to pass on the weight of all the evidence tending to establish any one of these different theories. But, before you can convict the respondent, you must find him guilty beyond a reasonable doubt.”

After the first difficulty in the saloon between the two brothers, and about an hour before the tragedy, Albert went out of- the saloon, and had a conversation with one Bruce and one Poquette. The conversation related to the trouble in the saloon. The respondent stood on the .sidewalk, 150 or 20,0 feet from him. Bruce, testified that Albert said : “I won’t be beat and bruised up by that bully. He is too big for me. I am not able to .fight him, and, furthermore, I don’t have to. I got something to aid me;” showing a box of cartridges. Albert then said to Poquette, in Bruce’s presence: “What did you people up in that saloon mean by letting that man. abuse me? He is too big for me. I don’t want to fight him, and don’t intend to. I have got something to pro-; tect myself with;” taking a revolver out of his pocket.Poquette replied: “I haven’t anything to do with your troubles, Al. Didn’t I take him to Bay City yesterday to keep him away from you?” Complaint is made only of the admission of the statement of Poquette, who was not produced as a witness, although upon the trial the objection was to the entire conversation. Certainly, the statements of the deceased were competent, and were favorable to the respondent, in that they showed a hostile feeling on the part of the deceased and an express threat. It was not only the right but the duty of the prosecution to place this conversation before the jury in so far as it showed the state of mind and disposition towards the respondent. The objection to its admission was raised when the testimony was offered. The judge, in admitting it, stated that he received it as a part of the res gestae, and confined it to such conversation' as involved the relations of the brothers on the day of the homicide. This ruling is sustained by the following authorities: People v. Potter, 5 Mich. 5; Brown v. People, 17 Id. 433; Patten v. People, 18 Id. 327; 1 Greenl. Ev. § 108. Greenleaf says:

“Upon an inquiry as to the state of mind, sentiments, or disposition of a person at-any particular period, his declarations and conversations. are admissible.”

, The admission- of the statement of Poquette to the deceased is more doubtful. The general rule is, however, that the entire conversation-is admissible. It all related to the trouble existing between the two brothers. They had just had a quarrel in a saloon at which Poquette was present. It is not the rule to include that portion of a conversation which is favorable to a party, and exclude that which may be against him. The entire conversation is admissible, and a jury may well be trusted with its consideration. We think no error was committed in admitting it.

Ten days after the conviction, the respondent was brought into court, and sentenced. The record does not show that the respondent was asked what he had to say why judgment should not be pronounced upon him, and for this reason it is urged that the judgment must be reversed, and a new trial ordered. The respondent’s counsel was present, and made no objection to the proceeding. There had been ample time to move for a new trial or an arrest of judgment. This was never regarded as essential except in capital cases. 4 Bl. Comm. 375; Jeffries v. Com., 12 Allen, 145; West v. State, 22 N. J. Law, 212; McCue v. Com., 78 Penn. St. 185. Whatever good purpose this practice may have served in England when parties charged with crime were not allowed counsel, it is now a mere idle ceremony. But, even if the sentence were erroneous for this reason, it was not an error upon the trial, but simply an error in imposing sentence, for which the prisoner would be remanded to be sentenced afresh. McCue v. Com., supra; State v. Hoyt, 47 Conn. 542.

The judgment is affirmed.

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

Montgomery, J.

I concur in the main in what is said in the opinion of Mr. Justice Grant, but I am not able to agree with the proposition that the statement of Poquette, referred to in the sixth subdivision, was admissible as a part of the res gestae. In other respects I think the rights of the respondent were fully protected, and that the charge is not open to the criticism contained in the opinion of the Chief Justice.

McGrath, C. J.

I am unable to concur with my brethren in the affirmance of the judgment in the present case. It clearly appears that, on the same day and within a few hours of the shooting, deceased had been drinking freely; that he was angry and quarrelsome; that he had procured a revolver and cartridges, had exhibited them to several persons, and threatened to shoot the respondent if he ever ran in his path. The testimony on behalf of respondent tended to show that he had procured the gun for an innocent purpose; that he was sober; had made no threats; that he came into the saloon in his usual spirits, and had exhibited no anger or vicious determination up to the very moment of the shooting; that, before the fatal shot was fired, deceased had drawn his revolver, and had fired one shot at the respondent. Under such circumstances, the instruction referred to in paragraph numbered 5 of the opinion of Mr. Justice Grant was, in my opinion, erroneous. If respondent fired because deceased had first fired upon him, or because deceased had drawn his revolver and had directed it at respondent, the defense would be absolute, although respondent shot to kill. A purpose formed under such conditions does not make the killing felonious. The evidence of the change in respondent’s countenance was that of one Adette, who says:

“The hard expression that I spoke of this morning, on William’s face, did not come until just before he shot. I don’t know whether it was after the revolver was discharged. Albert shot first. He shot at William. It struck William; shot his finger. I testified upon the former trial that the hard expression on William’s face was just at the moment he shot Albert. Albert shot, and he (William) shot right after. I testified upon the former trial that when he pulled the trigger was when his face showed hard.”

The witness did not tell a different story upon the last trial respecting the change of countenance. Surely, a change of countenance under such circumstances, however cogent evidence of a purpose then formed, would not make the killing murder in the second degree.

The court further instructed the jury as follows:

“Or, if you should find the fact to be beyond a reasonable doubt that in the first intention William Palmer procured this gun for an entirely innocent purpose, and that he loaned it with it an innocent purpose, and intended to go hunting an eagle, as testified to by him, but that any time after procuring the gun, or at any time after entering the saloon, he formed a settled, deliberate purpose and intention, with malice aforethought, to take his brother’s life, by shooting him with that gun, that would constitute the crime of murder; for if, at the time the shooting occurred, there was present in the mind of William Palmer this malicious purpose and intent to take Albert Palmer’s life, then, no matter how quickly it was formed, or how immediately before the shooting it was formed, if it existed in the mind of William Palmer when he fired that shot, and if it was the actuating, moving cause that impelled him to fire that shot, and if you believe from the evidence beyond a reasonable doubt, giving the respondent at all times the benefit of this presumption of innocence which I have defined, but, notwithstanding that, you found him so guilty, it would be your duty to find him guilty of murder in the second degree. In other words, the state of facts I have defined would constitute the crime of murder, and you would be justified in bringing a verdict of murder in the second degree.”

As abstract propositions, these instructions were undoubtedly correct, but it was error to apply them to the circumstances of the "present case. The language “even though but a moment before he fired the fatal shot,” or “if at the time the shooting occurred, * * * no matter how quickly it was formed, or how immediately before the shooting it was formed, if it existed in the mind of William Palmer when he fired that shot,” was especially directed to the moment that the shot was fired, — to a time when, according to the testimony of a number of witnesses, respondent was looking into tlie muzzle of a revolver in the hands of the decedent, from which the first shot had been fired. The language applies to that very moment. It has no office unless applicable thereto. It is not a mere lapsus lingua, but is repeated, and is pointed in its character. It is conceded here that deceased had procured and exhibited a revolver and cartridges, avowing a purpose to shoot respondent; that he persisted in this avowal, although remonstrated with; that these threats had been communicated to respondent; that, when Albert Palmer fell, the revolver, with an empty, smoking chamber, dropped from his hand, and there was abundant testimony tending to show that he fired the first shot. Under these circumstances, the jury should have been instructed that, if respondent formed such purpose at any time before he was confronted with the revolver, he was guilty of murder in the second degree; otherwise he was not. The circumstances required that limitation, but the language used and emphasized referred to a time subsequent.

It is true that, in another part of the charge, the jury were instructed that—

“If, putting both of those aside, there was no- intention in the heart of William Palmer when he entered there to kill his brother, if he was going upon this hunt, and had no thought of malice or ill will towards his brother, and no intent to do him harm, but entered the saloon for the purpose that he said he did, and passed to the opening in the screen door, and when he was in front of the door, and but a short distance from the door, if he suddenly saw a hand extended with a revolver pointing towards him, and if at the time he was impelled by fear, and apprehended at the time, as appeared to him, that he was in danger of losing his own life, or in danger of great bodily harm, and if he raised his gun under those circumstances, and discharged it, and his brother’s death was caused thereby, that would be excusable homicide.’

But this is not a question as to the application of different portions of a charge to different aspects of the case, or a failure to cover a particular view of the case made by the proofs. There was no aspect of the case to which the instruction first referred to was properly applicable. The last instruction alluded to refers to the intention with which respondent entered the saloon, and then to a state of mind produced by the circumstances, — if impelled by fear and apprehension, — but does not refer to an intent to take life then formed; while the former charge covers tliat very moment of time, and expressly instructs the jury that an intent to kill formed at that moment constitutes the crime of murder in the second degree.

I think, also, that the questions put to the witness Ruby should not have been allowed. The witness did noi admit that he married his wife from a house of prostitution, but refused to answer the question, and was compelled to by the court. The prosecuting attorney not only persisted in asking the questions, but commented upon the fact to the jury. I cannot subscribe to a rule which permits counsel, upon the ground that it goes to the credibility of the witness, to open up the question as to the character of his wife as to chastity before her marriage with the witness. Aside from all other considerations, a proper respect for the rights of the wife and the marital relation ought to exclude that class of tesimony.

The request referred to in paragraph 3 of the majority opinion should have been given. In the instruction given, no allusion is made to the subject-matter of, the request.

In my view, the respondent should be granted a hew trial.


author: Montgomery, J.

text:
    Fred M. Seibly, Administrator, etc., v. Rollin H. Person, Circuit Judge of Ingham County.

      Divorce — Alimony — Death of defendant — Revivor — Pleading — Laches.

    1. Under How. Stat. §§ 6245, 6247, the court may decree suitable alimony, and may award a sum in gross, which becomes presently payable, or may sequester the real and personal estate of the defendant, and appoint a receiver thereof, and cause the personal estate and the rents and profits of the real estate to be applied to the payment of the alimony.
    2. It is proper practice for the court in such a case to determine in the first instance the right of the complainant to a decree, and to reserve the question of alimony for subsequent adjudication; citing Rea v. Rea, 53 Mich. 40.
    ' 3. The death of the husband pending such adjudication will not oust the court of jurisdiction to award permanent alimony.
    4. Mandamus will not lie to vacate an order, made upon the petition of the complainant that she be allowed alimony out of her husband’s estate, — he having died testate after the making of the decree granting her an absolute divorce, and reserving the consideration of the question of alimony for further order and decree, — requiring the representatives of his estate to answer said petition.
    5. In her petition the complainant excused her delay in filing the same, a period of 5 years, 8 months, and 24 days, by stating-that she had been in straitened circumstances and unable to proceed with the completion of the decree for want of necessary means; that the defendant had purposely concealed his whereabouts, and the situation and location of his property, so that she was unable to proceed therewith; and that she had only been able to ascertain the situation and value of his property very recently. And it is held that the question of her laches should be determined in the reasonable discretion of the circuit judge.
    O. The underwriting in the subpoena stated that a personal decree for divorce was sought against the defendant, and that the bill was filed to reach interests in 'property. And it is held that the underwriting was sufficient to indicate that property interests were involved, and that this might include an allowance of alimony out of the property of the defendant.
    7. The bill failed to allege the faculties of the defendant-. And it is held that this does not preclude the remedy; that, as the decree provided that the question should be reserved for determination in that proceeding, and the defendant not having appealed from the decree, the omission is not fatal, and a subsequent proceeding upon the foot of the decree is admissible.
    8. The heirs at law and legatees are necessary parties to such a proceeding.

      Mandamus.

    Argued April 2, 1895.
    Granted June 4, 1895.
    Relator applied for mandamus to compel respondent to vacate an order reviving a divorce suit for the purpose of awarding permanent alimony. The facts are stated in the opinion.

      John I. Carpenter and Cahill & Ostrander, for relator.

      Smith, Lee & Day, fof respondent.
   Montgomery, J.

Elñna A. Adams, in May, 1887, filed a bill of complaint against Edward J. Adams, her husband, in the circuit court for the county of Ingham, praying a divorce from the bonds of matrimony. A subpoena was issued in the usual form, containing an underwriting, signed by the solicitor, which read:

“A personal decree is sought against the defendant for divorce, and the bill is filed to reach interests in property, and not to obtain any further relief against the ■remainder of the defendants.”

The case proceeded, and on the 29th of January, 1889, a decree of divorce absolute was granted, which contained the following clause:

“It is further ordered that the consideration of the question of alimony be, and the same is hereby, reserved for further order and decree herein.”

No further steps were taken by either party to the case until the death of Edward J. Adams, which occurred on the 15th day of September, 1894. Edward J. Adams died testate, and Fred M. Seibly was appointed administrator of his estate with the will annexed. An order was made on the 23d of October, 1894, by the respondent, on the petition of Elfina A. Adams, asking that she be allowed alimony out of the estate of her deceased, husband, requiring the relator to answer the petition. The relator subsequently moved for a vacation of this order, which motion was denied, and he now asks a writ of mandamus, requiring respondent to vacate the order refusing relator’s motion, and requiring the vacation of the first order made by the circuit judge.

It is undoubtedly a general rule that the death of either party to' a divorce suit pendente lite abates the suit, and it is also the general rule that a proceeding to enforce •alimony, at the common- law, abates on the death of either party. The reason of the rule is, in the first instance, that the purpose for which the proceeding is pending — namely, the' dissolution' of marriage — is accomplished, and, in the second instance, that, common-law alimony consisting, as it does, of provision for the support of the wife, on a divorce, a mensa et thoro, by means of an allowance to be paid by the husband, the proceeding relates to conditions which exist only during the life of the two. But under our statute (How. Stat. §§ .6245, 6247) the court may decree suitable alimony, and it may award a sum in gross, which becomes presently payable, or the court may sequester the real and personal estate, and appoint a receiver thereof, and cause the personal estate and the rents and profits of the real estate to be applied to the payment of the alimony. It is proper practice for the court to determine in the first instance the right to decree, and to reserve the question of alimony for subsequent adjudication. See Rea v. Rea, 53 Mich. 40. That was attempted to be done in this case, and, if it results that the death of the husband ousts the court of jurisdiction to award permanent alimony, it follows that, in every casé where a decree is entered in the form here employed-there must be a period of greater or less duration during which the wife is at the-risk of-losing thé interest in her husband’s estate Which she would have under the statute of distributions but for the divorce, and without opportunity afforded her by the court to have awarded her a proper allowance of alimony. This result would be manifestly unjust. That the right to award alimony may be reserved by the court in its decree, see Stew. Mar. & Div. § 876. See, also, Miller v. Clark, 23 Ind. 370.

It is also contended that Mrs. Adams was guilty of laches in prosecuting her claim. But the delay was excused by the petition, and we think that question should be determined in the reasonable discretion of the circuit judge.

It is further urged that neither the bill nor the subpoena indicated an intention to claim alimony. But we think the underwriting in the subpoena was sufficient to indicate that property interests were involved, and that this might include an allowance of alimony out of the property of defendant.

The failure to allege the faculties of defendant in the bill does not preclude the remedy; and, the decree providing, as it does, that the question should be reserved for determination in that proceeding, and the defendant not having appealed from the decree, we think the omission is not fatal, and that a subsequent proceeding upon the foot of the decree is admissible. 1 Amer. & Eng. Enc. Law, 478; Stew. Mar. & Div. § 367.

In one respect, however, we think that the order was erroneous. -Neither the heirs at law nor legatees named in the will were made parties to the proceeding, which we think was necessary. See Shafer v. Shafer, 30 Mich. 163.

The order should be vacated, but without prejudice -te»; the right of complainant to proceed to file a petition bringing in the proper parties; and, under the circumstances of the case, this order will be without costs.

McGrath, O. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.


author: Long, J.

text:
    William R. Simons v. The Township of Casco.

      Defective highways — Proximate cause.

    In a personal injury case it appeared that a highway in the defendant township crossed a ravine by a culvert some 6 feet high; that the highway was built up across the ravine for quite a distance, and at the top was some 30 feet wide, until, arriving within 40 feet of the culvert, it narrowed to 13 or 14 feet on top; that the culvert was 0 feet high, made of planks 16 feet- long, and extended about a foot beyond the embankment, and was of the width of about five feet; that at the south-westerly corner of the culvert, and extending across to the middle of the traveled track, there was a hole, or washout, some 2 feet wide, and from 4 to 7 feet long, and from 1 to 2 feet deep; that there was no railing or barrier along the embankment; that, just as the plaintiff got nearly to the culvert, his horse shied at the hole, and jumped over the embankment on the other side, carrying plaintiff and the buggy with him. One count of the declaration alleged all of the defects as producing the injury complained of. And it is held that the court very properly submitted the question to the jury whether the proximate cause of the injury was-one or all of the defects combined.
    Error to St. Clair. (Vance, J.)
    Argued April 5, 1895.
    Decided June 4, 1895.
    Case. Defendant brings error.
    Affirmed.
    The facts-are stated in the opinion.

      Chadwick d Mclhocdn and H. W. Stevens, for appellant.

      Eovey d Muir, for plaintiff.
   Long, J.

The plaintiff was driving along a public highway in the defendant township, when his horse took fright, as it is claimed, at a hole in the traveled part of the way, and jumped suddenly over the embankment. Plaintiff was seriously injured, and this action is brought to recover damages in consequence thereof.

It appears that at the place of the accident the highway crosses over a ravine by a culvert some 6 feet high. The highway is built up across this ravine for quite a distance, and at the top is some 30 feet wide, until, arriving withing 40 feet of the culvert, it narrows to 13 or 14 feet on top. The culvert is 6 feet high, made of planks 16 feet long, and extending about a foot beyond the embankment, and of the width of about 5 feet. At the south-westerly corner of the culvert, and extending across to the middle of the traveled track, there was a hole, or washout, some 2 feet wide, and from 4 to 7 feet long. The depth is variously estimated by the witnesses at from 1 to 2 feet. It had been filled occasionally, and again washed out. Some of the witnesses stated that there was room enough by the side of this washout to drive over the culvert. There was no railing or barriers along the embankment. The condition of the highway was apparently well known to the officers of ‘the township. The plaintiff is a farmer, about 30 years of age. He had often driven over this highway. It was just getting dark as he drove there. He claims to have driven on a walk as he approached the place. The horse was 17 years old, and kind and steady. He knew it was a bad place, and claims to have driven carefully; but when he got nearly to the culvert his horse shied at the hole, and jumped over the embankment on the other side. The horse and buggy went over, carrying him with it. Some hair was found on the ends of the plank. He was severely injured, and testifies that the last thing he remembered was that the horse shied at the hole. His cries brought some of the neighbors to him, who found him in the ravine.

At the close-of the testimony, counsel for defendant submitted five special questions to the jury, as follows:

“1. Was the hole in the road such an object that a township officer might reasonably anticipate that it would cause horses to shy off over the end of the culvert?
“2. Was the causeway in question such a dangerous place upon the highway that a township officer, using reasonable prudence, should have placed railing on the side in order to have made the road reasonably safe and fit for public travel?
“3. Do the jury find the short embankment or fill on each side of this culvert was of a reasonably safe width on the surface for ordinary travel in that vicinity by ordinarily gentle and roadworthy horses and ordinarily careful driving?
“4. Do the jury find that the plaintiff drove or allowed the horse to go out of the traveled way on account of the darkness of the night, or through inability to see the roadway or objects in the roadway?
“5. Do the jury find that the plaintiff was negligent or failed to exercise due or ordinary care in driving at this place, in view of his admitted knowledge and familiarity with the place ?”

To the first and second questions the jury answered, “Yes,” and to the others, “No.” The jury returned a verdict in/favor of the plaintiff.

' It is contended that there was no evidence that the horse shied at the hole; that from the plaintiff’s own testimony it appears that he had no conception just how the accident happened. We think it appears clearly from the plaintiff’s testimony that the horse shied at the hole, or at least there was evidence from which the jury would be justified in so finding.

The declaration contains three counts. The first count alleges the dangerous washout as the proximate cause of the injury. The second count attributes the injury to the failure to maintain railings or barriers. The third count attributes the injury to the narrowness of the way, the proximity of the traveled track to the edge of the causeway, the existence of the dangerous washout, and the want of railings, combined, as-the proximate cause. Counsel for defendant contend that the proximate cause of the injury was that the plaintiff’s horse took fright at the hole, and the court erred in not so charging. The court, in its charge, directed the attention of the jury to the claims made by counsel for plaintiff that the roadway was defective in not being built of proper width at the top of the embankment, the want of railings or barriers, and the defect occasioned by the hole or washout, and instructed them that it was the duty of the defendant to maintain a highway which was reasonably safe and fit for travel, and if they found, under the testimony, that the highway was in a condition reasonably safe and fit for travel, the plaintiff could not recover; and, further, that the township was not liable for any defect in the' highway unless the defect itself was the proximate cause of the injury complained of. The complaint made of this charge is that the court permitted the jury to take into consideration the want of barriers and the width of the roadway, as well as the washout, as the proximate cause of the injury. The charge was in accordance with, the settled rule of law in this and other states. These defects were apparently concurring causes. The hole caused the horse to shy, and by reason of the narrowness of the roadway and-want of barriers'the horse'went over into the ravine. In Houfe v. Town of Fulton, 29 Wis. 296, it was held that—

“Where, besides the defect in the highway, there is another proximate cause contributing directly to producé the injury, which cause is not attributable to the plaintiff’s negligence, nor that of any third person, the town is still liable, in case the jury shall find that the damage would not have been sustained but for the defect in the way.”

It appeared in that case that the plaintiff was riding over a bridge without guards, when his horse suddenly stopped, staggered, and fell sidewise, and went over the side of the bridge into the river, carrying the plaintiff with him. The same rule is stated in Hunt v. Town of Pownal, 9 Vt. 411; Palmer v. Inhabitants of Andover, 2 Cush. 600. See, also, Gage v. Railroad Co., ante, 335. In the present case, however, the defendant is responsible for all the defects which caused the injury. Selleck v. Railway Co., 93 Mich. 375. The declaration in the third count alleges all the defects combined as producing the injury complained of, and the court very properly submitted the question to the jury whether the proximate. cause of the injury was one or all of the defects combined.

Counsel contend that the case comes within the rule laid down in Beall v. Township of Athens, 81 Mich. 541. In that case, however, the log at which the horse took fright was outside the traveled part of the way.

We find no error in the record.

Judgment must be affirmed.

The other Justices concurred.


text:
    Sherman D. Hooper v. Edward C. Van Husan.

      Land contract — Assignment by vendee — Action to recover payments.

      1. The vendee in a land contract is vested with the equitable ' title, but the legal title remains in the vendor, and is held as security for the payment of the purchase price of the land, upon the payment of which the vendee is entitled to a conveyance of the legal title.
    2. If, when a land contract contains provisions for its avoidance on default by the vendee, the vendee’s equitable title is subject to conversion on such default into a right to recover the moneys already paid, less .damages caused by his default. this right is created by the contract, and passes under an assignment by the vendee of the contract as collateral security for the payment of drafts drawn by him and discounted by the assignee, to whom the benefit of the payments inures, and, if any one has a right of recovery for the moneys so paid, it is not the vendee.
    Error to Wayne. (Donovan, J.)
    Argued April 5, 1895.
    Decided June 4, 1895.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      E. S. Clarkson, for appellant.

      Brooke & Spalding, for defendant.
   Long, J.

On June 9, 1888, the plaintiff and defendant entered into six, land contracts, identical in their terms, each for the sale of a lot by defendant to plaintiff. The price of each lot was $650, — $100 at the date of execution, and the balance on or before July 1, 1893, in equal annual payments of $100, payable on' January 1 in each year, together with 7 per cent, interest, payable semi-annually on the 1st of January and July. The vendee was also to pay all taxes and assessments assessed after the execution of the contract, and was to have possession of the premises while not in default. In case of default, the vendor was given the right to declare the contract void, and retain whatever might have been paid thereon, and aqy improvements made on the premises, and to take immediate possession of the land, and remove the vendee therefrom. The stipulations of the contract were to bind the assigns of the respective parties. The plaintiff paid on each contract $100 at the date of execution, and interest upon all of them up to July 1, 1888. Immediately afterwards the defendant, who held the legal title in trust for himself, .Mr. Hannan, and Mr. Avery, conveyed two lots each to Hannan and Avery, and also assigned the corresponding contracts to them, and paid to them each one-third of the moneys theretofore received. The plaintiff was informed of this division, and thereafter made no payments to the defendant, except on the account of the two contracts which he retained. The plaintiff subsequently paid; at irregular intervals, various sums upon the principal and interest of these two contracts, until January 13, 1891, when, being largely in default, both upon principal and interest, a supplemental .agreement was made between him and the defendant, whereby, in consideration of the payment of the back interest and $50 to apply upon the defaulted principal, and the plaintiff’s agreement to pay up on or before January 1, 1892, the remainder of the back principal and the payment falling due upon that date, the defendant agreed not to commence any proceedings to1 declare the contracts forfeited; or to foreclose them, or collect the amount due thereon before January 1, 1892.

' On October 4, 1888, the plaintiff executed and delivered to the Detroit Savings Bank an instrument whereby he assigned and' transferred to the bank all his right, title, and interest' in all six of these land contracts, the contracts to be held by the bank as collateral for certain drafts discounted by it for the plaintiff. This assignment, of which the defendant learned shortly after it was made, the bank still holds, and the indebtedness for which it was given is still unsatisfied. The bank first, leárned of the pendency of this suit two days before the trial, when it was informed of it by the defendant.

The plaintiff paid nothing further to defendant after making the above supplemental agreement, and on January 7, 1892, the defendant caused to be served both upon him and the Detroit Savings Bank notices of forfeiture in pursuance of the power contained in the land contracts, declaring the contracts void and ended, and all rights of the vendee, and of any one claiming through him, thereunder, forfeited' and terminated. Upon the' same day the defendant served upon the plaintiff and' upon the bank notices that thé' Idts' covered by the con-' tracts would be sold by him at public auction, at noon on the 20th day of January, 1892, at the west front door of the city hall in Detroit. The same notice was published in the Detroit Tribune upon the 8th and 15th days of January, 1892. The notices received by the plaintiff were given by him to his attorney, who attended the sale on his behalf. At the time of the sale the Detroit Savings Bank served upon the defendant a notice that, by virtue of the assignment above referred to, it claimed an interest in the lands covered by the contracts, and the right to an accounting for the amounts paid thereon; The lots covered by the contracts held by defendant were duly exposed for sale at auction at the date and place specified in the notice, and were bid off by the defendant at the amount then due and unpaid upon the contracts, he being the highest bidder therefor. The plaintiff had no dealings with the defendant from the time of receiving the notices of forfeiture and sale on January 7, 1892, until April 29, 1893, when he went to defendant’s office, and offered to make payment of the amount that would then have been due upon the contracts, but the defendant declined to receive it, saymg that he had sold the lots in November, 1892. The plaintiff shows no excuse for his failure to comply with the terms of his contracts, but claims to be entitled to recover from the defendant the entire amount paid by him on the two land contracts which the defendant retained, aggregating, with interest, 1901.56.

Under this state of facts it is contended that, whatever the plaintiff’s rights might have been had he not assigned the contracts to the bank, he is not now the owner of them, and is not in a position to maintain an action for the recovery of the money paid. Shortly after the contracts were executed, plaintiff made the following assignment to the bank:

“Detroit, Mich., October 4, 1888:
• “For value received, I hereby sell, assign, and transfer unto the Detroit Savings Bank of Detroit, Mich., all my right, title, and interest to and in six (6) certain land contracts, all dated the 9th day of June, 1888, executed by and between Edward C. Van Husan, of Detroit, and myself, and providing for the sale to me by said Van Husan of lots 38, 89, 40, 41, 42, and 43 of Avery and Van Husan’s subdivision of lots Í6 and 17 of Mandelbaum’s subdivision of the easterly part of fractional section 36, town 1 south, of range 11 east, and the easterly part of section 1, town 2 south, of range 11 east, said lands being situate in the city of Detroit, aforesaid. The said contracts are to be held by said bank as collateral security for the payments, according to their terms, of certain drafts drawn by me, ás agent, on the Enterprise Coal & Exchange Co., of New York, and discounted by said bank for my account.
“S. D. Hooper. [Seal.]”
“November 29, 1889.
“I hereby agree, that the above-mentioned contracts shall stand as collateral to the note for $1,145 and interest, dated New York, November 15, 1889, payable three months after date, at the U. S. Nat. Bank, in N. Y., made by E. W. Bissel, and indorsed by E. N. Frisbie and myself, the said note being taken by the Detroit Savings Bank in discharge of the drafts referred to in the above assignment. Should the bank find it necessary in the. future to take a renewal or renewals, in whole or in part, of said note, this assignment shall remain in full force as security for the payment of such renewal note or notes.
“S. D. Hooper. [Seal.]”

Counsel for plaintiff admits that the bank got. whatever interest Hooper had in the contracts, but contends that when the defendant declared them void and at an end they were void ab imtio, and that it then resulted in Hooper having no further interest in the contracts, or further rights thereunder; that, therefore, the transaction was as though it had never been, so far as the lots were concerned, and that defendant had so much of plaintiff’s money the same as though he had borrowed it, or had receipted for it to another person on behalf of Hooper.

Under this assignment of the contracts, the bank got all the rights that Hooper had under them or by virtue of them. Had Hooper kept up his payments, the bank would have been entitled to the deeds which would have been made if the contracts had been fully performed, and, consequently, to the benefit of the moneys paid. Under plaintiff’s contention, his own default would operate as a benefit to himself, and take from the bank and give to him the benefit of these payments. Counsel entirely misconceives the nature of the vendee’s interest in the contracts: The vendee gets the equitable title, but the legal title still remains in the vendor, and is held as security for the payment of the purchase price. Upon the payment in full of the purchase price, the vendee has the right to have a conveyance of the legal title. Every payment-increases the value of the vendee’s interest. If it is true that, when the contract contains provisions for its avoidance on default by the vendee, the vendee’s equitable title is subject to conversion on such default into a right to recover the moneys already paid, less damages caused by his default, yet this right is created by the contract, and that right, as well as the equitable interest in the land, passed by the assignment in this case. Declaring the contracts forfeited did not make them vo'id from the beginning. It is true that the contracts were terminated by the declaration of forfeiture, but whatever rights the parties might have grew out of the contract relations, and passed under the assignment. If what is contended for here by counsel for plaintiff could be upheld, then the party, after such assignment, could default in all future payments, and, against the rights of his assignee, recover back the moneys already paid. The benefit of the payments inures to the assignee, and, if any one has a right of recovery for the moneys so paid, it is not the plaintiff. He cannot be permitted to take advantage of his own default. It is unnecessary to discuss the other questions.

Judgment is affirmed.

The other Justices conpurred.


text:
    Miles F. Trowbridge and Ellen Trowbridge v. Robert D. Ross (original bill), and Robert D. Ross v. Miles F. Trowbridge, Ellen Trowbridge, and The Clinton County Savings Bank (cross-bill).

      Mortgage — Payment to alleged agent.

    The only question in this case is whether the facts shown upon the hearing establish the agency of a mortgage company to receive for the mortgagee the money for the payment of the mortgage, which had been forwarded, when taken, to the agent of the mortgagee, who retained it in his possession, no express agency being shown. And it is held that the case is so similar in principle, and upon the facts to Joy v. Vance, 104 Mich. 97, that it is quite unnecessary to set 0out the facts in the opinion; that the agent for the mortgagee had a right to suppose that the mortgagor would not pay the note or mortgage without receiving them; and that by keeping them in his own hands he interposed the only practical obstacle to the perpetration of a fraud by the mortgage company, which, as appears from the proofs, converted the money paid it to its own use.
    Appeal from Clinton. (Daboll, J.)
    Argued April 18, 1895.
    Decided June 4, 1895.
    Bill to declare a mortgage paid and to discharge the same. Defendant filed a cross-bill praying for the foreclosure of said mortgage. Defendant Ross appeals.
    Decrees reversed, and one entered here as prayed in the cross-bill.
    The facts are stated in the opinion.

      Fedewa & Walbridge, for complainants in original bill.

      William J. Gray, for defendant Ross.

      Perrins & Baldwin, for defendant bank.
   Long, J.

The original bill was filed in this cause, praying that a certain mortgage given by complainants to Christina Ross, guardian of Robert D. Ross, be declared to be fully paid, and discharged of record, upon the ground that the moneys due thereon had been paid to the Michigan Mortgage Company, Limited, which, .it is •claimed, was authorized to receive such payment for and on behalf of the defendant. To this bill the defendant answered, and filed a cross-bill, in which it is claimed that the Michigan Mortgage Company was not authorized to receive such payment, and that such mortgage still remains in force, and prays for a decree of foreclosure. The cases were heard together upon pleadings and proofs taken in open court, and a decree entered in the original suit declaring such mortgage fully paid, and discharging the same of record; and on the same day a decree was entered in the cross suit, dismissing said bill, with costs to the defendants.

The mortgage was given October 14, 1883, for the sum of $1,200, with interest at per cent., per annum, payable semi- annually, and due in five years. It was not paid at maturity, but complainant Trowbridge continued to pay interest thereon up to February 15, 1890, when there-was due and unpaid the Sum of $1,200 for principal and $32.50 for interest. On that day complainant Trow-bridge arranged with the Clinton County Savings Bank, one of the defendants in the cross-bill, to borrow from it $1,200, to pay up the mortgage. He paid into the bank the $32.50 for interest, and gave his note for the $1,200, secured by a mortgage on the same premises, with the understanding that the bank should pay off the Ross mortgage. The bank paid the amount to the Michigan Mortgage Company, Limited, upon its agreement to send for and get a discharge of the Ross mortgage. This money was paid on February 15, 1890. The mortgage •company used the money in its own business, and no discharge was ever procured. The mortgage company kept the interest on the mortgage paid up, and not until 1894, when the mortgage company failed, did defendant Ross learn that the money had been deposited with it to pay the mortgage.

The only question in the case is whether the facts shown upon the hearing establish the agency of the mortgage company to receive for Ross the money for the payment of the mortgage. It appears that the mortgage, after its execution, was forwarded to Gen. L. S. Trow-bridge, at Detroit, together with the note, and the abstract of title to the premises mortgaged. As the interest came due each six months, the coupons attached to-the note were forwarded to S. S. Walker, or Walker & White, and, after its organization, to the mortgage company, for collection. The interest was collected and forwarded to Gen. Trowbridge, who made the loan for the guardian. The first mortgage taken for Ross was dated October 14,1880, due in 1883. When it became due, the mortgage in question was taken as a renewal of the first. This remittance for interest continued up to 1894, when the mortgage company failed. During all this time the mortgage was held' by Gen. Trowbridge in Detroit.

The note and mortgage were payable at the office of S. S. Walker at St. Johns. The place of payment was designated for the convenience of the parties, and the fact that the payments were to be made there would not establish the fact of the agency of Walker, Walker & White, or the mortgage company of Ross. Ward v. Smith, 7 Wall. 447; Cheney v. Libby, 134 U. S. 68; St. Paul National Bank v. Cannon, 46 Minn. 95; Wood & Co. v. Trust Co., 41 Ill. 269; Caldwell v. Evans, 5 Bush, 380; Gas Co. v. Pinkerton, 95 Penn. St. 62. There is no evidence of any express agency, and we find none implied by the generál course of dealing between Gen. Trowbridge and Walker, Walker & White, and the mortgage company. The case is so similar in principle and upon the facts to Joy v. Vance, 104 Mich. 97, that it is quite unnecessary to set out the facts here. Gen. Trowbridge had a right to suppose that the mortgagor would not pay the note or mortgage without receiving them; and, as was said in Joy v. Vance, supra, “by keeping them in Ms own hands he interposed the only practical obstacle to the perpetration of a fraud by the mortgage company.” The officer of the bank, when depositing the money with the mortgage company, knew that no discharge of the mortgage had been made, and that it was necessary to send to Detroit or to some other point to get it, yet he left the money with the mortgage company, and it appears that the money was credited to the bank, and not to Gen. Trowbridge or to Ross. The mortgage company became the agent of the bank depositing the money, and not of Ross, under such circumstances. See cases cited above.

Counsel for the complainants here seek to distinguish the present case from Joy v. Vance by some showing that for some years Gen. Trowbridge had had dealings with Walker and Walker & White; that they had collected the principal and interest upon a number of mortgages owned by clients of Gen. Trowbridge, and at times when Gen. Trowbridge retained the securities. We think no such facts are shown as to establish a general agency. Joy v. Vance, supra.

The court below was in error in dismissing the cross-bill and discharging the mortgage. Those decrees must be reversed, and a decree of foreclosure entered here in favor of the complainant in the cross-bill. The complainants’ bill in the principal cause must be dismissed. The controversy between the Clinton County Savings Bank and complainants in the original bill need not be disposed of here, as the Ross mortgage is the prior lien upon the'premisés. The pleadings and proofs are not directed to the controversy between the complainants and the bank. Defendant Ross will recover costs of this Court and the court below in the principal cause against the complainants, and in the cross-bill against all the defendants.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


author: Grant, J.

text:
    Richard McGee v. John McGee et al.

      Deed — Delivery.
    The question involved in this case is whether or not certain deeds, executed by a father shortly before his death to certain of his children, were delivered during his lifetime so as to make them operative. And it is held that the non-delivery of the papers is established by a fair preponderance of evidence. Only questions of fact are involved, and an examination of" the opinion is essential' to a clear' understanding of the case.
    Appeal from Kent. (Adsit, J.)
    Argued April 19, 1895.
    Decided June 4, 1895.
    Bill to compel the delivery of certain deeds and to quiet title. A portion-of the defendants filed an answer in the nature of a cross-bill, asking that said deeds to complainant and also certain deeds executed to their codefendants be declared void. All of the defendants appeal.
    Decree reversed, and prayer of cross-bill granted.
    The facts are stated in the opinion.

      Maher & Salsbv/ry, for complainant.

      John M. Mathewson and M. E. Walker, for defendants.
   Grant, J.

Bernard McGee died March 15, 1893, aged 70 years. He left surviving him his widow, Elizabeth, and six children, whose names, in the order of their birth, are as follows: James, Mary Bergin, John, Bose Ann Bergin, Bichard, and George. He had been ill for some time, and early on.the morning of February 18, previous to his death, he sent for Mr. Hicks, an attorney, to come and draw papers designed to accomplish the distribution of Ms property among his children. He evidently desired' to avoid proceedings in the probate court for the settlement of his estate, and so stated at that time. He owned several farms, including the homestead where he lived y a lot, upon which was a store, in the village of Lowell; about $9,000 of mortgages; and about $9,000 of other per-sonal property. Mr. Hicks arrived at his house early in the morning, and spent the day in talking over with him the disposition he desired to make, and in drawing some deeds, assignments of mortgages, and a discharge of one mortgage of $2,000 upon land owned by his daughter Mary Bergin. A deed was drawn up, and signed by himself and his wife, conveying the homestead, 401. acres, and another deed, conveying another farm, near by, of 120 acres, to Bichard; also another deed, conveying another farm to George, upon which he took back a mortgage of $3,000; and still another, of the lot in Lowell, to Bose Ann Bergin. He also drew assignments of the mortgages to his wife. At the same time Bichard gave a bond and executed a mortgage back upon the homestead to secure the support of his wife, who was an invalid, so crippled with rheumatism as to be unable to take care of herself. He made no disposition of his personal property, and said he would postpone that until another time. He steadily grew worse, and, although his attention was called to the fact that he had not disposed of this property, he failed.to do it. His children were present at that time, and George and Bose took their deeds away with them. The deeds to Bichard and the assignments of the mortgages were placed together in an envelope, and left upon the table. Mr. McGee told Bichard to take the papers, and put them in his (the father’s) bureau drawer, in an adjoining room, where he kept his papers. Nothing was said about the delivery of these papers. They were left with and remained under the control of Mr. Bernard McGee until the night of the 28th of February.- On the. previous day Father Crumley, the Catholic priest, had a conversation with Mr. McGee about the disposition of his property, telling him that there was dissatisfaction about the division of his real estate. On the night of the 28th Richard took the papers from his father’s bureau to his own room upstairs, and locked them up in his own bureau. Shortly before his death, it is claimed by the defense— and their evidence strongly supports the claim — that Mr. McGee asked John, who was sitting up with him, to bring these papers from Ms bureau in the adjoining room; that he searched for them, but could not find them. After-wards John took the deeds from Richard’s bureau. On the day of Mr. McGee’s death Richard looked for them, and found they were gone. John, a day or two thereafter, informed Richard that he had taken them, claiming they were not delivered, and he had no right to them. Richard thereupon filed this bill, praying for the surrender of the deeds by John to him, for a correction of a mistake in the description of the land, and that the defendants be decreed to have no interest therein. The defendants George, Mary Berg'in, and Rose Ann Bergiu answered, alleging—

“That Mr. McGee was very weak and sick unto death, and sent for Mr. Hicks, intending to make a final division of his property among Ms children in such manner that: it would be unnecessary for him to make a will, or to have his estate administered; that he made and delivered some papers to these defendants, but that, owing to his weak, disabled, and exhausted condition, he gave out, and was unable to and did not complete the business; that the same never was completed, and that he died without having delivered the deeds or the assignments of mortgages, and without having made any disposition of his personal property.”

The defendants John and James filed a similar answer, and further alleging that Mr. McGee “was physically and mentally incompetent to make a valid and legal distribution of his property.”

The first and principal question to be decided pertains to the delivery of these papers. The purpose of Mr. McGee in avoiding an administration upon his estate was not accomplished, and this he must have known if his mind was sufficiently clear to comprehend this purpose. We think it clear that he intended to complete it, but whether his failure to do so was the result of his physical and mental condition, or of the hope that he might recover, we need not discuss. The deeds and assignments were not delivered on the 18th, and we think it apparent from the evidence of what occurred on that day that he did not intend to then deliver them. Nothing was said about delivering them, and they were retained in his possession. In this there is a substantial agreement in the evidence. Richard’s wife testified that.on the 28th of February — evidently after the' conversation between Father Crumley and Mr. McGee — she heard Mr. McGee say to Richard—

“I say, take care of your papers, and take care of your mother’s papers; and if you don’t take my advice you will be sorry for it.”

Richard himself testifies that on the 18th, after the deed of the Devine place, 120 acres, which was the last paper made and signed that day,—

“Father spoke up after, and said he did not know, he did not intend, or he did not think, that he would deed the Devine place to me. Father told Mr. Hicks to leave some blank deeds; that he might call a justice, and change the Devine place.”

He testified to the same statement of his father to him as testified by his wife, and that he then took the deeds.

It is clear, therefore, that there was no delivery until the 28th; nor was there then unless the papers were taken Avith the knowledge and assent of Mr. McGee, and with the intent to deliver them. Again he testified’that some time after Father Crumley was there—

“Father spoke up, and said he didn’t know as he would give me the Devine place. He said James had ought to get more. He said there would be enough left to give him what he wanted without touching any of the land.”

This conversation took place after he had taken the deeds up stairs.

“Q. Did he say anything about when he fully decided to give you the Devine place?
“A. No. Some one came down stairs, and stopped the conversation.”

Mr. McGee was a man of strong will, and of more than common energy and activity. He had spent his life in amassing a competent fortune, to which the labors of his children had contributed, and there is reliable evidence that he desired and intended to retain control of it during his life. But, aside from this, 10 witnesses testify that Bichard stated, shortly after the discovery that the papers had been taken, that the deeds had not been delivered to him. These witnesses are Thomas McLaughlin, Miss Wylie, Sylvester P. Hicks, James McGee, Mary Bergin, Christopher Bergin, John S. Bergin, John McGee, Benjamin E .Burt, and Bose Ann Bergin. Four of these witnesses had no interest in the result of the litigation. Bi chard and James went to see the witness Burt, an attorney at law, on the 18th of March, — three days after Mr. McGee’s death, — to ask counsel. Bichard stated to him that his father had made a deed, which he had put away, and John had broken in and taken. He then asked Eiohard if the deed had ever been delivered by his father to him after it was executed, and Bi chard replied, “No.” He said, after it was signed; his father told him to put it away with his father’s papers, and that he did so. There is testimony on the part of the complainant contradictory to these witnesses. But, we are of the opinion that the non-delivery of the papers is established by a clear preponderance of evidence.

It is unnecessary to discuss the mental condition of Mr. McGee, and the alleged incompetency to execute the papers.' 'We may note the testimony of Father Crumley ás bearing upon both the question of delivery and the question of his mental condition. This conversation occurred nine days after the papers had been signed. He then told Father Crumley that he had not made a deed of the Devine place to Richard, and did not believe it until the papers were brought from his bureau, and the deed shown him. Had he disposed of his property as he contemplated, and if his mind was in condition to understand it thoroughly, it is indeed singular that in so short a time he should have forgotten this conveyance.

It follows that the disposal of his property contemplated by him was never completed, and that the relief asked by the defendants in their cross-bill must be granted, and all of the deeds purporting to have been signed and executed on the 18th day of February, including those to the defendants Rose Ann Bergin and George McGee, and the discharge of the mortgage on Mary’s land, must be set aside.

. Decree of the court below will be reversed, and decree entered in this Court in accordance with the above opinion. We think it equitable that the costs of both courts should be paid out of the estate.

Long, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


text:
    Jacob W. Walker, Administrator, etc., v. Elizabeth McGee.

      Delivery of conveyance,

    This case is ruled by McGee v. McGee, ante, 602.
    Appeal from Kent. (Adsit, J.)
    Argued May 3, 1895.
    Decided June 4, 1895.

      Bill to set aside assignments of mortgages. Complainant appeals.
    Decree reversed, and one entered in this Court as prayed.
    The facts are stated in McGee v. McGee, ante, 602.

      Turner & Carroll (Joseph Kirwin and M. H. Walker, of counsel), for complainant.

      Maher cG Salisbury, for defendant.
   Grant, J.

The purpose of this suit is to set aside the assignments of the mortgages referred to in McGee v. McGee, ante, 602. The decision depends upon the same facts and the same evidence as in that case, the testimony in that case by stipulation being used in this.

The decree must be reversed, and decree entered in this Court for the complainant according to the prayer of the bill. The costs of both courts will be paid out of the estate.

Long, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


author: Hooker, J.

text:
    James White v. The Board of Supervisors of Manistee County.

      Constitutional law — Police offlcei — Service of process — Constables— Fees.

    1. There is nothing in section 1, art. 11, of the Constitution, which provides for the election annually, in each organized township, of certain officers, to indicate that it was intended to embrace organized or incorporated cities and villages within the term “organized townships.”
    2. A police force is an organization having a controlling mind, by which its members may be made to act in concert, while the constable acts upon his own responsibility and his own ■conception of his legal duties; and the former, and not the latter, is adapted to city government.
    3. A provision of a city charter which makes it the duty of policemen to serve and execute all process directed or delivered to' them for service, and for that purpose gives to them all powers of constables, and which further provides that they' may serve and execute, within the limits of the city, any other process which by law a constable may serve, is within' the power of the Legislature to enact.
    4. Mandamus will lie to compel the payment, by the board of‘ supervisors of the county in which such city is located, of the' bill of a policeman for services rendered in the arrest of persons charged with offenses against the laws of the State, under warrants issued by justices of the peace.
    5. The fact that the policeman has received his full pay from the city for such services, without reporting on oath to the coun-_ cil the amount of all moneys and fees received by him for, .services as policeman, as required by the city charter, is no ■defense to a valid claim against the county for such services, the compensation for which is prescribed by law.

      Certiorari to Manistee. (McMahon, J.)
    Argued April 16, 1895.
    Decided June 4, 1895.
    Relator applied for mandamtis to compel respondent to audit his claim for services rendered as policeman. Respondent brings certiorari from order granting the writ.
    Affirmed.
    The facts are stated in the opinion.

      Dovel & Smith, for relator.

      F. E. Withey, for respondent.
   Hooker, J.

The charter of the city of Manistee authorizes the common council to provide by ordinance for a police force, of such number of policemen as may be necessary, to be appointed by the mayor, with the consent •of the common council. Local Acts 1882, p. 58. Section ' 4, chap. 12, of the charter fixes the powers and duties of policemen as follows:

“It shall be the duty of the police aud night watchmen and officers of the force, under the direction of the mayor and chief of police, and in conformity with the ordinances of the city, to suppress all riots, disturbances, and breaches of the peace, and to pursue and arrest any person fleeing from justice in any part of the State; to apprehend any and all persons in the act of committing any offense against the laws of the State or the ordinances of the city, and to take the offender forthwith before the proper court or magistrate, to be dealt with for the offense; to make complaint to the proper officers and magistrates of any person known or believed by them to be guilty of the violation of the ordinances of the city or the penal laws of the State, and at all times diligently and faithfully to enforce all such laws, ordinances, and regulations for the preservation of good order and the public welfare as the council may ordain, and to serve all process directed or delivered to them for service [services]; and for such purposes the chief of police and every policeman and night watchman shall have .all powers of constable [constables], and may arrest upon view and without process any person in the act of violating any ordinance of the city or of committing any crime against the laws of the State. And the chief of police and any policeman may serve and execute all process in suits and proceedings for violations of [the] ordinances of the city, and also, within [with] the limits of the city, any other process which by law a constable may serve.”

Section 5 provides:

“When employed in the service of process policemen shall receive the same fees therefor as are allowed to constables for like services; when otherwise engaged in the performance of police duty they shall receive such compensation therefor from the city as the council may prescribe. Every policeman shall report on oath to the council at its first meeting in every month the amount of all moneys and fees received by him for services as policeman since his last preceding report, and the names of the persons from whom received, and the amount received from each.”

Section 31, chap. 7, of the charter provides;

“All fines recovered for the violations of the penal laws of the State, when collected and paid into the city treasury, shall he disposed of as provided by law. The expenses of prosecutions before justices of the peace of the city for violations of said criminal' laws, and in punishing the offenders, shall be paid by the county in which the city is located.”

By an ordinance of the city, enacted April 16, 1890, the pay of all the policemen of the city was fixed at $2 per day or night, less any fees received by them.

The relator was a regular policeman of said city, and at the expiration of his term filed a claim with the board of supervisors for services in the arrest of persons charged with offenses against the laws of the State, under warrants issued by justices of the peace, some, if not all, of which were upon complaint made by the relator. The board refused to allow the claim. From this record we conclude that no dispute exists over the facts, but that it is conceded that the services were rendered as alleged, and the sums charged are the statutory fees to which a constable would be entitled had he performed such services. Upon behalf of the respondent the broad claim is made that constables are constitutional officers; that the duties and powers of constables are well settled by immemorial usage, in the light of which the Constitution ■was adopted; and that such officers can neither be abolished by the Legislature nor can they be divested of their powers, either directly or by conferring them upon others; and, further, that said officers are elective, and the public cannot be deprived of the right to have their duties performed by officers who are the choice of the locality, and that this right cannot be taken away by conferring the powers of the constable upon an appointed officer.

The constable is a township officer, and the only mention of such officer in the Constitution is in article 11, § 1, which enumerates and requires the election of township officers, including constables, not exceeding- four. This same section expressly provides that the duties of these officers shall be prescribed by law. Upon this must rest the contention that cities must have constables; that the duties of the constables are fixed by immemorial usage, and can be performed by no other person or officer; and that they must be elected, and not appointed.

The Constitution (article 15, § 13) provides for the incorporation and organization of cities and villages by the Legislature. By section 1, art. 11, every organized township is required to have certain officers, but there is nothing to indicate that it was intended to embrace organized and incorporated cities and villages within the term “organized townships.” These municipalities existed before the adoption of the Constitution; their peculiar institutions, uses, and necessities were understood. They were the creations of the Legislature, which had been wont to grant powers and privileges to them, and at the same time require the performance of certain duties at their hands as State agencies. It is singular that article 11, § 1, did not provide that all organized townships, cities, and villages should elect, etc., if it was the design that cities and villages should be governed by the same methods and officers as townships. Again, though the Constitution provides that cities shall be. represented upon the board of supervisors, it nowhere provides that supervisors shall be elected by cities, and in many instances mayors are performing that duty. Attorney General v. Preston, 56 Mich. 177. Some cities have no clerk, the duties being performed by a recorder. Numerous other officers and boards are provided, and, in short, the whole scheme of local management is different from that of townships. All of these things are consistent with the prevalent idea that municipal corporations are governed by such methods and officers as the Legislature may provide (except where certain'constitutional officers have jurisdiction), and that they may be' radically different from those of quasi corporations, such as townships. The officers of cities and villages, whatever they may be, except judicial officers, may be appointed -where the Legislature so directs (Const, art. 15, § 14), unless prohibited by section 1, art. 11; so that, if cities can be said to be within that section requiring the election of constables, such officers must be an exception to the general provisions of section 14, art. 15. Here is another significant omission by the framers of the Constitution, if cities were supposed to be within article 11, § 1. But, if the point be conceded, it does not follow necessarily that constables must be elected, unless we can say that the two provisions, considered together, should be so construed.

But this is not a case where the power or authority of a constable is involved; it is the power of the Legislature to confer upon other officers some of the authority which is within the range of a constable’s duty. We are asked to say that the power to serve justices’ warrants, issued upon criminal charges, cannot be exercised by appointed police officers, and the reason given is that it would be trenching upon the constitutional powers of constables. This involves the contention that the city must employ constables instead of police, or, if not, its officers must limit their operations to the confines of the city, giving up the chase of offenders at city lines, or calling upon a qualified constable to serve the judicial writ when the act is made an offense by general law. This is said to be necessary because the constable has the right to serve, and the public to be served by a constitutional officer elected by the people, whose duties and powers by virtue of immemorial usage are inviolate, against even the Constitution, which expressly provides that they may be fixed by law. The case of Allor v. Board of Auditors, 43 Mich. 76, is cited as a case sustaining this contention; but, while that case vindicates the right of a Detroit constable to fees for serving criminal process, it nowhere says that his right to- perform the duties of his office is exclusive. On the contrary, that case recognizes the fact that cities may need a more efficient method of preserving the peace and protecting society than constables could afford. A police force is. an organization; it has a controlling mind, by which its members may be made to act in concert; while the constable acts upon his own responsibility and his own conception of his legal duties. It needs no argument to show that the former, and not the latter, is adapted to city government. In the case cited, Mr. Justice Campbell says that the police act does not deprive constables in the city of their power to serve process, but he nowhere intimates that members of the police force may not do the same. On the contrary, he recognizes the power of the Legislature to provide additional officers, who may be conservators of the peace, which is as important a function of the constable as the power to serve a warrant. He says:

“There can be no complete city corporation without means of enforcing such regulations as are necessary for the peace and good order of the community, and this can only be done by the aid of officers. A great majority of the regulations needed to prevent confusion in cities Me entirely outside of criminal law, and- authorize interference of an official character where no arrest would be lawful; and in many of. these cases it is not uncommon for quarrels to arise which go far enough to create breaches of the peace, when it would be very dangerous if the municipal officer must at that point stop short in the performance of his civil duty, and call to his aid a different -officer. Until the police act of Detroit was passed, there was not a single place in the State where these functions were not united, and the police act itself attempts to unite them, not by giving city officers functions under State law, but by.giving State officers functions under municipal regulations, and depriving municipal officers of municipal powers. We can hardly believe that when the police - system was adopted, in 1865, the Legislature had any idea that they were doing more than adding desirable auxiliaries to municipal authority. It is not to be supposed they meant to revolutionize our institutions by superseding local by central authority. The police force is nothing more nor less, so far as it is lawfully constituted, than an additional force of constables and toatchmen appointed by the State for certain limited purposes; and unless some power exists in the Legislature, not only to- add to the force of local peace officers, but to supersede them entirely for all common-law purposes, the provisions complained of in this statute cannot be maintained, if they are to be construed as respondents construe them.”

We are referred to the cases of Abels v. Board of Supervisors, 42 Mich. 526, and Ames v. Booming Co., 11 Id. 139. The former case attempted to give voluntary associations for the prevention of horse thieving the power to apprehend felons, and to confer upon their members the rights, privileges, and protection of constables while so engaged. It was held that the law was invalid. These cases call for no extended discussion. It cannot be said that a police officer, appointed in pursuance of law, is on the same footing as private persons who, for gain, associate to perform, public duty by attempting to enforce the criminal laws of the State.

It is contended that the claim should not be enforced against the county, because it is due to the city of Manistee, if to anybody, and that the relator has received his full pay from the city, without reporting the amount ■due him for these fees. On the other hand, it is contended that the fees are given to the officer by law, and that the city has- no right to them, though it has overpaid relator, according to the terms of the contract. This is a question that does not concern the respondent, and is therefore no defense to a valid claim against the county for services rendered, compensation for which is prescribed by law.

The order of the circuit court will be affirmed, with costs.

The other Justices concurred.