author: Grant, J.

text:
    KNIGHT v. BROWN.
    1. Duress — What Constitutes.
    Duress exists when one, by the unlawful act of another, is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will.
    '3. Chattel Mortgages — Execution—Duress.
    Where plaintiff admitted, that no threats were made to induce her to sign a chattel mortgage which was given on an exchange of horses between herself and defendant, but, after holding out for several hours, and refusing to sign the mortgage, she finally did so on the insistence of defendant and his . brother, that a valid trade had been made, and that, if she refused to sign, she would become liable for a larger amount than that for which the mortgage was given, the mortgage was not void for duress.
    Error to Grand Traverse; Mayne, J.
    Submitted April 14, 1904.
    (Docket No. 61.)
    Decided July 27, 1904.
    Replevin by Agnes Knight against Willard Brown. There was judgment for plaintiff, and defendant brings ■error.
    Reversed.
    This is an action of replevin for a horse. The declaration is in the usual form; plea, the general issue. Plaintiff is a widow, living upon and carrying on her farm. She gave evidence tending to show that defendant suggested to her to trade her horse for a span of ponies owned by his brother, Harlan; that at defendant’s request she went with him to Harlan’s house to see them; that they talked over the terms of the trade; that there was a mortgage on the ponies for $75; that this was to be discharged, plaintiff to execute a new one for $35, and defendant was to exchange a horse he owned with Harlan for plaintiff’s horse, which Harlan was to have, and defendant was to give a mortgage of $50 for his part of the boot money; that she was to take the ponies, try them, and, if they t suited her, the parties were to meet and consummate the trade; that one of the ponies, while she was trying them, kicked off the dashboard; that she immediately notified the defendant and his brother that she would not trade; that they told her that she had made the trade, and that the ponies were hers; that she tried to induce, them to give up her horse, but they would not; that they insisted on her signing the mortgage and giving her note, and that the papers be executed immediately. Three other persons were present, one of whom drew the mortgage which plaintiff signed. Her own version of the conversation, which she claims to constitute duress, is as follows:
    “Well, I held out there till after dark before I would consent to signing any mortgage at all, and that it was because they said they would throw the whole thing — the whole mortgage — onto my shoulders. They said I could either pay the $35 or pay the whole thing, just as I liked. Harlan Brown told me I could pay $75 or $35. They all went outside — Willard and Harlan — and they came in again, and I said I wouldn’t sign the mortgage at all, not under these circumstances; and they finally went out. They came in, and they said: ‘ Well, you sign the mortgage. You sign for the $35.’ In the first place, Willard says to Mr. Barnum, ‘ Tomorrow I am going to go and hire that $50 that I am to pay, and I will pay that to you, and then she can sign for the $35, or you can keep the horses, just as you are a mind to.’ ‘Well,’ I says, ‘if it is a have to be, it will have to be, but I am not going to sign for that any way. I will stand out for it yet.’ Then they went outside and talked together. I don’t know what transpired between them, but when they came in they said: ‘ You have your choice to sign for the $35 or else the whole thing. Sign for the $35, or we will throw the whole -thing onto your shoulders, and you can pay the whole thing.’ ‘ Well,’ I said, ‘if it is a have to be, it will have to be a have to be, but I don’t sign it with a good will.’”
    She further testified that she held out from 3 or 4 o’clock in the afternoon until 8 o’clock. She testified as follows:
    ‘ ‘ Q. What did Mr. Barnum do to you to make you sign those papers ?

      “ A. Nothing.
    “ Q. Well, what did you sign them for, then ?
    “ A. Because Mr. Barnum said he didn’t know as there was any way out; that I had traded. But he said I could get the horse by replevining it. He told me that just before I signed the papers.”
    Mr. Barfium was one of those present. She kept the ponies several days; then returned them to Harlan Brown. Whether she returned them before or after suit was brought we cannot determine from the record. It is claimed by the defendant that they were not returned until after the suit was brought. This, however, is immaterial, in the view we take of the case. The case was submitted to the jury on the theory of duress. The jury found that no trade was consummated, and that no title had passed to the defendant, and rendered a verdict in her favor.

      Parm C. Gilbert, for appellant.

      Pratt & Davis, for appellee.
   Grant, J.

(after stating the facts). We think plaintiff did not bring herself within the principle of duress as enunciated by the authorities. In Hockley v. Headley, 45 Mich. 569 (8 N. W. 511), Justice Cooley said:

“ Duress exists when one, by the unlawful act of another, is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will.”

According to her own statement, she held out for four hours, refusing to sign the papers. .Three parties were present who had no interest in the transaction. There were no threats. She was simply told that the defendant and his brother insisted that a valid trade had been made, and what the consequences were. She denied it. We do not find in her own version of the transaction any evidence that she was deprived of the exercise, of her free will.

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v. KLAMMER.
    Criminal Law — Larceny from Building — Information—Words —Construction.
    An information charging larceny “from the residence ” of M.,* sufficiently charges the offense denounced by 3 Comp. Laws, § 11551, prohibiting larceny by stealing “ in any building” on fire.
    Exceptions before judgment from St. Glair; Tappan, J.
    Submitted April 31, 1904.
    (Docket No. 191.)
    Decided July 27, 1904.
    Otto Klammer was convicted of larceny from a burning building.
    Affirmed.

      John M.- Kane (C. A. Hovey, of counsel), for appellant.

      Burt D. Cady, Prosecuting Attorney, for the people.
   Grant, J.

Respondent was convicted under section 11551, 3 Comp. Laws, which provides that, “every person who shall commit the offense of larceny by stealing in any building that is on fire, shall be punished,” etc. The information charged the respondent with the larceny of one open-faced ladies’ watch and one ladies’ chain, of the value of twelve dollars, of ¿he goods, chattels, and property of, and in the possession of, one Sarah McMillan, from; the residence of the said Sarah McMillan, No. 2,721. Wright street, Port Huron, * * * the same being-then and there on fire.”

The court instructed the jury that they must be satisfied, beyond a reasonable doubt that the defendant stole the-watch, and that it was stolen from some part of the burning building. Respondent made a motion in arrest of judgment, claiming that the word “residence” is not synonymous with “ building,” and the word “ from ” is not synonymous with “ in.” These are the only questions raised upon the record. It is contended in the brief of the people that no objection was made upon the trial to the sufficiency of the information, and the objections now made were first made upon the motion in arrest of judgment.. The record is silent upon this point. Without determining, however, whether the objections come to late, we think that they are not sound. Whether the term “residence ” may sometimes be used without reference to the dwelling wherein a party lives, it would be doing violence to the ordinary use of language and to ordinary intelligence to hold that in this information it does not mean a building. Vacant lots are not the residences of persons. The information fixes the residence of the owner of the property at a given numbered lot in a city. This implies, that the party lived in a dwelling house upon that lot. Persons do not reside on or in vacant lots. The respondent so understood it, and the case was tried upon that theory.

The second point is equally without merit. The word “from,” used in the information, implies that the property was taken from within the building. That the word is. often used interchangeably with “in,” and is so commonly used, appears from People v. Wilson, 55 Mich. 506, 516 (21 N. W. 905, 909), where Chief Justice Cooley, in discussing the case, says: “It may be questionable whether the larceny in this case was not larceny from á store, and therefore compound larceny, under 2 How. Stat. § 9137 ” — that being a similar statute to the one under which the respondent in this case was convicted. The learned Chief Justice used the word “from” as synonymous with “in.” It was held in O’ Connor v. City of Fond du Lac, 109 Wis. 253 (85 N. W. 327, 53 L. R. A. 831), that the word ‘ ‘ from ” has no certain literal or legal meaning that can be accepted as a guide under all circumstances» In Re Lewis, 124 Mich. 199 (82 N. W. 816), the commitment recited that the defendant was convicted of larceny from a store, and the precise point was raised to invalidate the commitment as is raised here. This court held that the conviction was valid. I have examined the judgment entry and information in that case. The judgment entry recites that the respondent was convicted “of the crime of larceny from a store.” The docket entry in the circuit court reads, “Information for larceny from a store.” The information charges that the respondent did: “steal, take, and carry away the property from the said store.” . It is true that in another part of the information the property is described as “then and there situate and being found in the store,” but the offense is described as “larceny from the store.” See, also, Bailey v. State, 99 Ala. 143 (13 South. 566).

I do not think that People v. Rathbun, 105 Mich. 699 (63 N. W. 973), bears any analogy to this case. “ Unto a jail,” or “unto a building” is not a common form of expression, and in no popular sense has it ever been used to mean to convey within a building. Probably no case can be cited where that word has ever been construed to be synonymous with or to mean “into.” But the word “from” has a popular meaning, indicating an entrance into the building from which the property is taken. When one says that A. stole his horse or his harness from his stable, or his ox from his barn, or his grain from his granary, it is the common understanding of mankind that he means that the thief entered his stable, or his barn, or his granary, and took the property from within. Can the language of Chief Justice Cooley, in the case above cited, be explained upon any other theory ? If one left his wagon, or his harness, or his grain outside his buildings, and in his yard, he would not say that the thief stole the property from his building, but that he stole it from his yard. The word “to” is held to mean ‘ ‘ into ” — as where a corporation was authorized to construct a road “to the city of Hudson ” it was held that the word “ to ” meant “into.” President, etc., of Farmers' Turnpike Road v. Coventry, 10 Johns. 389.

The conviction is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE v. DE BLAAY.
    1. Statutes — Amendment—Titles—Local Acts.
    A general statute of local application cannot be extended in its operation to tbe whole State by an act having a title merely indicating a purpose to amend the local statute.
    2. Same — Repealing Clause — Invalidity.
    Where an act attempting to extend a law of local application to the whole State is ineffectual because of a defect in its title, the provisions therein repealing the existing general statute on the same subject are likewise ineffectual, and the general statute stands unrepealed.
    3. Hawkers and Peddlers — Statutes—Invalidity—Repeal.
    Act No. 137 of the Public Acts of 1895, attempting to extend to the whole State Act No. 204 of the Public Acts of 1889, regulating hawkers and peddlers in the Upper Peninsula, is invalid for failure of its title to express its purpose, and the attempted repeal therein of the general statute on the same subject (1 How. Stat. §§ 1256-1266,2 Comp. Laws, chap. 136), is ineffectual.

      4. Statutes — Amendment—Constitutional Law.
    Though as a general rule an unconstitutional law cannot be made valid by amendment, such a law may be re-enacted after the unconstitutional features have been eliminated, and the fact that the Constitution requires that laws amended be re-enacted and published at length presents no obstacle to that course.
    o. Hawkers and Peddlers — Class Legislation.
    Chapter 136, 2 Comp. Laws, prohibiting peddling without license, but making an exception in section 22 in favor of wholesale merchants selling by sample, and manufacturers, farmers, mechanics, and nurserymen selling their own product, is not class legislation.
    Exceptions before judgment from Kent; Perkins, J.
    Submitted April 21, 1904.
    (Docket No. 188.)
    Decided July 27, 1904.
    John De Blaay was convicted of hawking and peddling without a license.
    Affirmed.

      Smedley & Corwin, for appellant.

      William B. Brown, Prosecuting Attorney, and Carl F. Mapes, Assistant Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of the offense of hawking and peddling without a license, the charge being based upon chapter 136, 2 Comp. Laws.

Two major contentions are made by respondent’s counsel in this court: First, that the statute under which the prosecution was had has been repealed; and, second, that, if not repealed, it is unconstitutional. Obviously, if the first contention is sustained, the second is unimportant. We therefore direct our first attention to this point.

Act No. 204, Pub. Acts 1889, was an act which, under a title restricting its operation to the Upper Peninsula, made provision for licenses to peddlers in that territory. By Act No. 137, Pub. Acts 1895, under a title which indicated a purpose to amend Act 204, Pub. Acts 1889, referring thereto by its title, and also to repeal sections 1257-1266, 1 How. Stat., the sections under which this prosecution is had, the legislature undertook to make the Upper Peninsula law applicable to the whole State, and to repeal the general provisions then in force for the whole State. The statute of 1895 was clearly unconstitutional in so far as it attempted to extend legislation to the entire State of a statute limited to the Upper Peninsula, with no notice of such purpose expressed in its title. Indeed, counsel for respondent do not contend that this provision of the statute is valid, but insist that, even though this be held invalid, the section repealing the general law is nevertheless valid. It is worthy of consideration as to whether the title to the act of 1895 is not double, within the meaning of the constitutional provision that no law shall embrace more than one object, which shall be expressed in its title; but as this view is not contended for, and as a like result may be reached on settled principles, we do not determine the question. Whether the legislative intent was to repeal the general law in any event, and independently of enacting another to take its place, is the question here presented. We think it clear that there was no purpose to wholly abrogate all law relating to licensing peddlers in the Lower Peninsula. On the contrary, the very purpose of the act of 1895 was to cover this subject. The repeal was incidental to the affirmative enactment. When the enactment of the first section proved futile, the second section fell with it. The case cannot be distinguished from John Spry Lumber Co. v. Trust Co., 77 Mich. 199 (43 N. W. 778, 6 L. R. A. 204, 18 Am. St. Rep. 396), to which, attention was directed at the argument.

Having determined that chapter 136, 2 Comp. Laws,, has not been repealed, it remains to consider whether it is, as claimed, unconstitutional. Its constitutionality is assailed on two grounds: First, that the statute, as it now reads, was never duly enacted under a proper title; and, second, that the statute is class legislation. The precise point under the first head is this: The general law relating to hawkers and peddlers (chapter 21, Rev. Stat. 1846) contained in section 22 a clause discriminating in favor of residents of the State similar to the clause «contained in section 8 of Act No. 248, Pub. Acts 1897, which was held in Rogers v. Kent Circuit Judge, 115 Mich. 441 (73 N. W. 381), to be unconstitutional. The present chapter 136, 2 Comp. Laws, has been evolved by amendments to the Revised Statutes of 1846, and it is said that an unconstitutional statute cannot be made valid by amendment. It is not to be denied that there are cases cited by defendant’s counsel which sustain his contention. We think, however, that the legislature has in this matter kept well within the provisions of our own Constitution. Section 25, art. 4, provides:

“Nolaw shall be revised, altered, or amended by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length.”

It is not denied that in the amendment to the original act the provisions of this section of the Constitution were observed. This section was intended as a guide to the legislature, and we can discover in it no obstacle to an elimination from the original act of such provisions as rendered the act unconstitutional. The new act becomes then the act of the legislature following the prescribed course for its enactment. This view is sustained by State v. City of Cincinnati, 52 Ohio St. 419 (40 N. E. 508, 27 L. R. A. 737); Ferry v. Campbell, 110 Iowa, 290 (81 N. W. 604, 50 L. R. A. 92); Sweet v. City of Syracuse, 129 N. Y. 337 (27 N. E. 1081, 29 N. E. 289); Allison v. Corker, 67 N. J. Law, 596 (52 Atl. 362, 60 L. R. A. 564).

The only question left for consideration is whether section 22 of the act as it now stands constitutes this legislation class legislation. This section reads as follows:

“Nothing contained in this chapter shall be construed to prevent any manufacturer, farmer, mechanic, or nurseryman from selling his work or production by sample or .otherwise without license, nor shall any wholesale merchant be prevented by anything herein contained from selling to dealers by sample without license, but no merchant shall be allowed to peddle or to employ others to peddle goods not his own manufacture without license in this chapter provided.” 2 Comp. Laws, § 5330.

We do not think this can be called class legislation in such sense as to deny to such citizen an equal protection under the law. Under this-provision all persons in the same class are treated alike under like circumstances and conditions. Similar provisions have been sustained by this court. People v. Sawyer, 106 Mich. 428 (64 N. W. 333). See, also, Rosenbloom v. State, 64 Neb. 342 (80 N. W. 1053, 57 L. R. A. 922); State v. Stevenson, 109 N. C. 730 (14 S. E. 385, 26 Am. St. Rep. 595).

The conviction is affirmed.

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


author: Moore, C. J.

text:
    PEOPLE v. HORLING.
    Fish — Inland Lakes — Private Ownership — Rights of Owner— Fishing Regulations — Statutes—Application.
    Where a lake is so situated that fish from a river migrate to- and from it at different periods of the year, the fact that it is-wholly located on defendant’s land, which he has posted, and that he himself has stocked the lake with fish acquired from private sources, does not deprive the public of its right to-take fish therefrom, nor entitle him to take fish therefrom by means other than a hook and line, in violation of 2 Comp-Laws, § 5849.

    Exceptions before judgment from Ottawa; Padgham, J.
    Submitted April 21, 1904.
    (Docket No. 190.)
    Decided July 27, 1904.

      John W. Horling, Bert Horling, and John Horling were convicted of illegal fishing.
    Affirmed.

      Smedley <& Corwin, for appellants.

      Charles A. Blair, Attorney General, and Henry E. Chase, Deputy Attorney General ( W. I. Lillie, of counsel ), for the people.

       As to right to fish, see note, to State v. Shaw, (Ohio) 60 L. R. A. 481

   Moore, C. J.

The respondents were convicted of violating the provisions of section 5849, % Comp. Laws, which reads':

“That it shall not be lawful for any person to take, catch, or bill, or attempt to take, catch, or kill, any fish in any of the inland lakes in this State with any kind of spear, or grap hook or by the use of jacks or artificial light of any kind, or by the use of set lines or night lines, or any kind of net, or any kind of fire-arms or explosive or other device, except the hook and line.”

The accompanying plat will help to understand the situation (p. 408).

The testimony on the part of the people was in part as follows: That at the time of the fishing alleged in the complaint, witnesses for the people testified that they went up the drain marked on the plat, with a boat, into said lake or bayou, and found the nets respondents were fishing with that night; that said respondents, or some of them, put a wire netting in said drain, reaching from the bottom thereof to above the top thereof, and that the respondents, or some of them, admitted that they put this screen in said drain to keep fish from going up and down said drain and into or out of said lake or bayou; that the length of time water runs in and out of said lake through said drain depends upon the length of time the water is high enough to get in and out, but in every year there is always more or less time that fish can go in and out of said lake; that most of the fish planted in said lake or bayou, except carp and bass, have been taken from holes or pools in the lowland surrounding said lake or bayou after the high water receded and left the lowlands cornparatively dry; that in the spring freshets, when Grand river rises and overflows its banks, then said bayou is ■connected with Grand river, so that fishes can come and go to and from Grand river; that this connection exists as long as the high water exists; that some four years ago a ■public drain was laid by the drain commissioner; this drain ■does not follow any old outlet, but takes a westerly course, and strikes Grand river farther down, where the cut in the river bank is located, so that after the river lowers, and there is no connection between the river and the bayou through this cut in the bank, the water still continues to ■run out of the bayou or lake, through this ditch, into the liver; that after the ditch was dug it lowered the lake some two feet, and drained considerable land surrounding the lake; that fishes can come and go through this ditch for part of the year, as it does not become dry as soon as the old inlet or cut in the river bank. That some of the witnesses for the people testified that there were both spring 'and fall freshets, and that from three to five months ■of the year, during the spring and fall freshets and natural high water, fish could go in and out of said lake and bayou; that some of the witnesses claimed that there were freshets in July and August, in which water was high enough so that fish could go in and out of said lake or bayou.

On the part of the defendants, they offered evidence tending to show that since 1851 the defendant John W. Horling has been the owner and in possession of the land upon which this bayou or lake is situate; that he owns all the land around said lake or bayou, and that the same is not a meandered lake; that over 15 years ago he put up notices, painted wooden signs, and nailed them on the trees in the vicinity of the lake, telling the public that it was private property, and that no fishing was allowed in ;said lake or bayou, and that said signs have ever since been kept up to notify the public; that the bank of the river very seldom overflows, but once a year the river would get high enough so that the water would flow into the old inlet, which would last sometimes 15 days; the water would subside in the river, then the river would be entirely shut off, and the bayou or lake would have no connection with any public waters until the next spring freshet came; that there is no water in the ditch to exceed 20 to 25 days in any one year; the rest of the time the bayou or lake is entirely disconnected from any other waters; that there is no inlet to said lake; that the inlet from the river has no defined channel, except where it breaks through the high bank near the river; that this is dry so much of the time that it is overgrown with tame grass, and becomes good pasture land; that during the last 30 years the owner of the land has piped and tiled cold spring water from the adjoining land down to this lake, and during all these years has planted little fishes in said lake, obtained from surrounding pools of water, such as carp, bass, sunfish, and pickerel; that on account of the planting of these fish (not obtained from any public fish hatchery) this bayou or lake has become well stocked with fish, so that the fishing is much better than in Grand river, and people resorted there to fish to such an extent that it became necessary, and the owner of the land put up signs forbidding trespassing, and notifying the public that it was a private lake, and that fishing was not allowed; that on the day alleged in the complaint and warrant the respondents were fishing with a net, which they claimed they had a right to do, as it was private property; they set these nets near the place where the cold-water pipes- and tile made the water fresh, and where the fishes were in the habit of frequenting to get cool water.

Among other things, the judge charged the jury:

If you should find in this case from all the evidence-in the case, that this lake is so connected with Grand river, or with any other body of water that is public, so-that fish can go from public waters into this water or into-these waters, if they can go there at any time of the year-during freshets, or if the fact is that Grand river fish can. get into this lake and out again, no matter whether they come out the same day, or the next week, or the next season, if they can go into this lake, and have a free passage in and out again into the public waters, under those circumstances your verdict should be ‘ Guilty ’ in this case, because, as I instruct you, that would make this one of the inland lakes coming within the description under this statute; that it is not necessary that any particular length of time should exist during the year in which this body of water is connected with Grand river, or any other public body; it is not necessary that any particular time should exist. If you find that the fish can migrate from a public body of water (which it is admitted Grand river would be) into this lake, and can go back again (in other words, if they have free access in and out), the length of time during the year cuts no particular figure, but, of course, unless that should be the fact, they would not be guilty. If fish cannot get into this lake at all from any outside waters, and it has no connection at any time of year with any other body of water, the contention of these respondents would be correct.”

It is insisted this charge is error; that respondents, owned the land around and under the lake, the water of the lake, and the fish therein; and that the statute does not apply to such a case.

This statute has been before the court a number of times, though the exact question presented here has not been passed upon. There is a great diversity in the laws of the various States and the various countries in relation to what constitutes navigable waters and to the-rights of riparian owners. As early as Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336 (18 Am. Rep. 184), it was contended there can be no such thing as-a navigable stream in which the public have rights, which is only open to the public use periodically; but it was held, as was held as early as Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209), that this was not so, but that such a stream is a public highway by nature, but one which is such only periodically, and while the natural condition permits a public use, during which time the public right and the private right of the riparian proprietors must each be exercised with due consideration for the others. In Lincoln v. Davis, 53 Mich. 375 (19 N. W. 103, 51 Am. Rep. 116), there is an interesting discussion of the status of fishes and the right to take them, in which it is declared they are ferae naturae, and can be taken by any one who has the right to be on the premises, unless forbidden by the statute. Notice is taken of the fact that the State has taken the subject under its control. In People v. Collison, 85 Mich. 105 (48 N. W. 292), the respondent was convicted under a similar statute to this one. His defense was that “he was fishing upon his land, over his own soil, and in his own water,” and that the statute, so far as it undertook to interfere with his right to do so, was invalid, ■and unconstitutional, because it deprived him of his property without compensation. In disposing of the case Justice McGrath, speaking for the court, said:

“It does not appear here that the land of James Colli:son extends into the lake, but, in our view of the case, that is entirely immaterial, as the rule would be the same whether he did or did not own the land over which the fish were caught. It is sufficient that he did not own Gun Lake, and, even though he did, that it connected with other lakes and streams through which fish migrate. The right of James Collison to fish in Gun Lake is not an exclusive right, and the design of the statute is to protect others in Gun Lake, as well as in the other waters connecting therewith, in the enjoyment of the same privilege. The right to fish even in these waters is so far public that -the State may by statute protect it. The protection of fish in Gun Lake is necessary for their preservation in the waters of Pan Lake, Gun river, the Kalamazoo river, Lake Michigan, and the other Great Lakes. Defendant, James Collison, never acquired any property in the fish which frequent Gun Lake. By reason of their migratory habits, their ownership is in the whole people of the State, and no individual has any property right in them until they have been subjected to his control. To fish is a privilege accorded by the State, and the question of individual enjoyment is one of public privilege, and not of private right. ‘Unless the catching of fish,’ as is said by one writer, ‘ is conducted with reason, either the fish may be .altogether exterminated, or the enjoyment of the right by ■one may interfere with the equal enjoyment of the right by others.’ Hence, for the protection of fish, a valuable article of food and merchandise, the control of which is in the State, and to preserve equality in the right to fish, the State has an undoubted right to regulate the manner in which they shall be caught, and to protect their migrations. There was no error in the refusal of the court to direct a verdict for defendants.”

In People v. Conrad, 125 Mich. 1 (83 N. W. 1012), the complaint was made under the same section of the statute involved here. In that case there was neither inlet nor outlet connecting the lake with other waters, and, while it was held that the respondents were improperly convicted, the court said:

“If it [the lake] were connected with other lakes and streams, so that fish might pass in and out of it, others than the owners would then have an interest in the protection of the fish in the lake.”

The case of People v. Bridges, 142 Ill. 30 (31 N. E. 115, 16 L. R. A. 684), is an instructive case, though the Illinois statute, as stated by counsel for respondent, is much broader than the title of the act involved here» • The opinion, among other things, states:

“It is said that Miller’s rights in said body of water are so paramount and exclusive that, if he chose to fill it up, and thereby destroy it as a lake or pond, no rights of any private party or of the public would be infringed. And this is put forward as the test of the legislative intention to include said lake among the waters enumerated by said act. It seems to us to be a sufficient answer to this contention that the statute itself neither expressly nor by implication has established any such test. There may be and doubtless are various, and perhaps many, lakes, ponds, sloughs, and bayous in the State which are so far private property that the owner may drain them, or fill them up without infringing any public or private right, but which, so long as they are permitted to remain in their natural condition, are places where fish common to the waters of the State are propagated and raised. And, while this is so, the statute makes no distinction between bodies of water thus situated and those in respect to which public rights or private easements exist. Its language applies to all alike. * * * Indeed, the power to protect and preserve the fish in the waters of the State would be practically nugatory, if, as is contended, it was confined to streams and watercourses, and was excluded in case of all bodies of water which were so far subject to private ownership that the owners would have a right to drain them or fill them up, and thus destroy them as bodies of water. * * * While said body of water has no continuous connection with the river, situated but a few yards away, such connection is established during all periods of high water, and continues for a sufficient length of time to allow fish to pass into it, or the fish in the lake to escape therefrom. During such periods of high water, which occur once or twice, if not oftener, every year, and continue sometimes for several weeks, said lake, so far as the passage of fish to and from it is concerned, becomes, for all practical purposes, a part of the river. During these periods, as we may presume, migratory fish passing up the river in search of proper places for depositing spawn are liable for such purpose to pass into this, as into other, bayous where the waters are quiet, but with this difference: That while, in case of ordinary bayous, which maintain their connection with the stream, the fish, after accomplishing their purpose, are at liberty to leave, and go elsewhere, here, by the receding of the water, their exit is for the time being cut off, and they, as well as their progeny, are compelled to remain. As soon, however, as another flood occurs — a thing which may happen at any season of the year — the fish thus impounded are at liberty to escape, and, if they do so, any qualified property the owner of the lake may have in them is at once divested. We are unable to see how the mere fact that said lake, instead of having a continual connection with the river, has such connection only during periods of high water, can have any essential bearing upon the rights which the owner of the soil has in the fish that happen for the time being to be in the lake. * * * It is impossible, therefore, to distinguish the present case from those arising in relation to other waters in the State to which the statute is applicable. The public interest is involved in both in the same way, if not to the same extent, and the public interest in both is such as to justify legislative interposition.”

The court may take notice of the fact that fish are an important food product, and that the State as a whole is interested in having the supply increase, instead of decrease. So important is this thought tó be, that large -sums of money, raised by taxation, are expended by the State, under the direction of a commission, in the propagation and distribution of fish. Along similar lines laws are enacted for the protection of the fish, making certain methods of taking them unlawful. The facts disclosed by this record show that during the various overflows of Grand river a very large proportion of the fish found in this lake came to it from Grand river. Pish would naturally go there from Grand river in the spring for spawning purposes, and later, when the spawn was hatched and became fish of some size, during periods of high water they would find their way into Grand river. We do not think it can be said the public has no interest in this lake and in the fish therein.

The conviction is affirmed.

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


text:
    OESTERREICH v. CITY OF DETROIT.

    1. Municipal Corporations — Defective Sidewalks — Injuries— Contributory Negligence.
    It is not negligence per se for one knowing of defects in a sidewalk to attempt to pass over it.
    3. Same — Evidence—Sufficiency.
    In an action for injuries to a pedestrian by a defect in a city sidewalk, evidence reviewed, and held insufficient to show plaintiff’s contributory negligence as a matter of law.
    3. Same — Contributory Negligence.
    Where a pedestrian was injured by the tipping up of a plank which was a part of a defective sidewalk, the fact that she might have seen and avoided holes in the walk was insufficient to render her chargeable with negligence in failing to discover that the plank on which she stepped'would tip up and. cause her injury.
    4. Same — Notice of Claim — Sufficiency.
    Notice to municipal officers of a claim for personal injuries is. sufficient if it describes the time, place, cause, and nature of the injury in general terms.
    5. Same — Statute—Construction.
    The statute requiring that notice of a claim for personal injuries be served on a municipal corporation before suit, being in derogation of a common right, is strictly construed.
    Error to Wayne; Donovan, J.
    Submitted May 17, 1904.
    (Docket No. 117.)
    Decided July 27, 1904.
    Case by Anna M. Oesterreich against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Palmer & Palmer, for appellant.

      P. J. M. Hally (T. E. Tarsney, of counsel), for appellee.
    The notice referred to in the opinion is as follows:
    “ Hon. Timothy E. Tarsney,
    “Corporation Counsel,
    “Detroit, Mich.

      “Dear Sir: In accordance with the statute, you are hereby notified that the undersigned suffered an injury by reason of a defective sidewalk situate within the limits of the city of Detroit.
    ‘ ‘ The accident was suffered by me on Thursday, April 17, 1902, between 8 and 10 o’clock in the evening, on the north, side of Biddle street, between Twenty-Seventh street and Vinewood avenue, at a point about 100 feet westerly of Twenty-Seventh street.
    “The cause of the injury was a defect in the sidewalk laid along said Biddle street at said place.
    “ The injury suffered was a severe wrench, sprain, and. bruise of the hip and back, together with other internal injuries. Mrs. Anna Oesterreich.
    “ Dated Detroit, June 14, 1902.”

       Rehearing denied October 27, 1904.

   Montgomery, J.

This action is brought to recover damages sustained by the plaintiff while walking over a defective sidewalk in Biddle street, in the city of Detroit. The circuit judge directed a verdict for the defendant on the ground that the plaintiff was shown by her own testimony to be guilty of contributory negligence.

The first question for consideration is, therefore, whether the plaintiff’s own testimony conclusively shows that she took a risk which no ordinarily prudent person would have taken under the circumstances, or neglected that care for her own safety which the law requires. Her testimony shows that the walk in question was in bad condition, in that there were numerous holes in it, and was known to be in this condition by the plaintiff; that on the evening in question, about 8:30, she returned from shopping in the city, alighted from a car, and started to travel over the walk in question, having her child, 1% years old, in her arms, and carrying a half dozen eggs. The plaintiff might have avoided the sidewalk where the injury occurred by going across lots through a path, but she testified that she did not consider it safe to do so at that time in the evening. Surely she cannot be charged with negligence for acting upon such motives as would without doubt influence most women similarly situated. It is not negligence per se for one knowing of defects in a sidewalk to attempt to pass over it. Vergin v. City of Saginaw, 125 Mich. 499 (84 N. W. 1075), and cases cited. Was the plaintiff’s injury due to inattention to known dangers ? She testified as follows:

“ I kept an eye on the sidewalk as carefully as I could with the child in front of me. I couldn’t see just where I was stepping. I could have seen a hole if I had been looking at it. It was big enough to see.
Examination by the Court: Q. Was it light enough that night, so that, if you had been looking along the footpath pretty closely, you could have seen the holes, or was it dark enough to obscure the holes ?
“A. Well, it wasn’t so pitch dark, but not so dreadfully light along there.
Q. What would be your judgment about that, so that, after you had cast your eye down on the plank right along where you were walking, whether you could have seen the hole; was it sufficiently light ?
“A. Well, I kind of think I could if I had not been carrying anything.
Q. You paid very considerable attention to distinguish holes at night ?
A. Yes.
Q. Considerable attention ?
“A. Yes.
Q. Was there anything to attract your attention— like the blowing of a train whistle, or anything of that kind — was there any crossing there that called your attention ?
“A. No, sir.”

And on being recalled testified as follows:

“I knew that the sidewalk was defective between Twenty-Seventh street and our house, but I never examined the particular boards. I fell at the board which you have letter ‘A’ on Exhibit B. I did not step into a hole. I was walking along, and the board tipped down, and then I fell into the hole. I did not know that the board would tip down. I never examined it for special defects. I knew that the hole in the sidewalk was bad. I knew that there were holes all through there. I do not think that I said this morning that I stepped into the hole. I did not step into the hole. I fell into it. If I said otherwise this morning, I was mistaken.”

We do not think it can be said that this testimony shows want of due care as matter of law. If it he said that she might have seen the holes and avoided them, it does not follow that she was in fault in failing to discover that the plank upon which she stepped would tip up and cause her injury. The city attorney contends that the judgment should be sustained in any event, for the reason that the notice served on the corporation counsel was not sufficient in form. The claim is that it failed to state with sufficient certainty the cause of the injury. The charter provision relied upon was considered in Tattan v. City of Detroit, 128 Mich. 650 (87 N. W. 894), where a notice very similar to the one given in this case was held to have sufficiently described the time, place, and cause of the injury. It was there said that the statute, being in derogation of common right, should receive a reasonably strict construction. We hold the notice in the present case adequate.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    COLE v. DOOLEY.
    1. Navigable Waters — Logging.
    A stream and lake, which were used for floating logs as long as any were tributary, and since then for navigation by skiffs and steamers, are navigable.
    3. Drains — Navigable Lake.
    A public drain, the avowed purpose of which is to reclaim land by lowering the level of a navigable lake, is not authorized, under section 4339 of the Compiled Laws, which prohibits impairing the navigability of waters by such drains.
    Appeal from Barry; Winsor, J., presiding.
    Submitted June 10, 1904.
    (Docket No. 9.)
    Decided July 27, 1904.
    Bill by Ervin P. Cole and others against Patrick Dooley, drain commissioner of Barry county, to restrain the construction of a proposed drain. From a decree for complainants, defendant appeals.
    Affirmed.

      Oolgrove & Potter, for complainants.

      Thomas Sullivan and Fred W. Walker, for defendant.
   Hooker, J.

Thornapple Lake is a body of water between two and three miles long, and half a mile in width, in the county of Barry. The testimony in the case shows that there is deep water in the lake, but that the edges are low and wet, and that shallow water extends some distance into the lake, and that the bottom is soft, to a depth of many feet. The shore around the lake is in many places springy, and it appears to be the consensus of opinion that springs exist in the lake, which help to feed it. Several streams empty into this lake, the largest of which is Thornapple river, about 60 feet wide where it flows into the lake. There is much low land along this river, especially near the lake. The outlet of the lake is also called “ Thornapple River,” and it is larger than the inlet of the same name.

Interested parties filed a petition with the county drain commissioner to establish a drain beginning at the outlet of the lake and extending down the stream, the avowed object of which was to lower the level of the lake four feet. Near the south bank of this lake there is a high bluff, owned by the complainants, which approaches within 50 feet or thereabouts of the water’s edge. The complainants’ father owned this property, consisting of a farm, and he built a dock and filled in along the shore behind it; thereby giving access to the lake, where he kept boats to let, and a steamer, which he used to transport pleasure seekers who were attracted to the place. For three decades or more he and his children, who now own the place, conducted a successful resort, and spent considerable money in improvements. Among other things constructed by them to this end were a dance hall, and a larger dwelling, a boathouse, and a depot or waiting room for passengers. This was immediately in front of, and within 70 feet or thereabouts of, the house, and also immediately opposite the dock. There is about 4 feet of water at the dock at the ordinary stage of water.

The drain proposed will lay bare about 66 acres of the bottom of the lake, and it will make shallows of other lake bottoms now covered by 4 feet and more of water. It will correspondingly lessen the area, that can be traversed by complainants’ boats — especially their steamboat. The complainants own a mile and a half of the shore of the lake, with the riparian rights incident thereto, and they oppose the proposed drain, and have filed the bill in this cause to restrain its construction. The testimony shows that the interested landowners, who expect to have lands reclaimed by this drain, have contributed to a fund to conduct the defense; and it is significant that several, if not most, of the large contributors, own lands near the inlets, and are not owners of land through which the proposed drain is to be constructed. It seems to be a plain case of tapping and drawing down the surface of a lake, and a barefaced proceeding to improve farms, at complainants’ expense, under the pretense of improving the public health — a prostitution of the drain law to private purposes.

The complainants were not made parties to the drain proceeding. They were not assessed for benefits, and we do not see how they could be, and, on the other hand, no damages suffered by them were considered.

Section 4339, 2 Comp. Laws, provides:

‘ ‘ Drains may be laid or extended into or along or from any lake or other body of water surrounded wholly or in part by a swamp, marsh, or other lowlands for the general purpose of drainage contemplated by this act but not so as to impair the navigation of any navigable water.”

The evidence in this case is clear that Thornapple river and Thornapple Lake have been used for floating logs whenever there were logs to float, and occasion to float them. As long as there was timber in the vicinity, it was floated upon the lake; and in early days timber was brought down the tributaries not only to a boom and mill upon the lake, but also down the outlet to a mill situate at Quimby, a mile or two below the lake, and it has been navigated since by thousands in steamboats and skiffs owned by complainants. The stream and lake were therefore navigable waters, under our decisions. See Moore v. Sanborne, 2 Mich. 520 (59 Am. Dec. 209); Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435); Sterling v. Jackson, 69 Mich. 530 (37 N. W. 845, 13 Am. St. Rep. 405). As shown by the last-mentioned case, the Ordinance of 1787, art. 4, which provided:

“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said Territory as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, imposts» or duty therefor ”

—Saved to the public the right to navigate the streams of the State by bateaux, and even canoes. Who can doubt that the Grand river and its tributaries were navigable, under this rule, as well as Thornapple Lake, through which the river runs ? It may be that hurrying the water from the surface of the land by artificial drains, which empty it into the Great Lakes with a celerity which nature abhors, is essential to public health. Under this statute, it is possible that private lakes and ponds may be obliterated in the interest of public health, upon compensating the owners for the loss, which, however, has not been done nor proposed in this instance; but the legislature has set bounds to the practice, by limiting such draining and prohibiting the impairing of the navigability of water. Thornapple Lake being navigable, and this drain being admittedly intended to lower the ordinary level of the lake four feet, it is forbidden by the statute.

As this point disposes of the case, we do not pass upon other questions raised.

The decree is affirmed.

The other Justices concurred.


text:
    CRAM v. WARD.
    1. Deeds — Property Conveyed — Appurtenances.
    The exclusive and unrestricted use of land carries with it title to the land itself.
    2. Same — Reservations—Rights oe Grantor.
    The purchasers of lots fronting on a beach, their deeds granting them the right in common to make such use of the beach as is usual at summer resorts, on all the lots on the plat being granted, take the fee of the beach, and leave the grantor without right to enter thereon and remove sand, irrespective of whether such entry interferes with the grantees’ use of it as a summer resort.
    Appeal from St. Clair; Law, J.
    Submitted June 10, 1904.
    (Docket No. 12.)
    Decided July 27, 1904.
    Bill by Roys J. Cram against Charles A. Ward and others to restrain the removal of sand from a beach in which complainant and other of defendants’grantees have an undivided interest. From a decree for complainants granting insufficient relief, complainant appeals.
    Reversed and decree entered for complainants.
    Defendant Ward, being the owner of certain lands in the township of Ft. Gratiot, lying between a public highway known as the “Lake Road” and the shores of Lake Huron, platted the same, and duly recorded the plat. It shows 59 lots, each with a frontage of 50 feet, fronting on the beach, and running back 300 feet to the road. This land was platted for the sole purpose of a summer resort. All the lots have been sold, and nearly all built upoD— some quite expensive residences. The purpose of the grantor, Ward, in platting this land and in selling the lots, was to provide and keep intact the beach in front of the lots for the common benefit of all the lot owners and summer residents. If the lots had been sold as extending to the shore, they evidently would not have been as valuable as they now are, because it would be in the power of any owner to fence in his portion of the beach, and destroy it as a place of resort. Each of the deeds made by Mr. Ward to his grantees, and by his grantees to others, contains this provision:
    “ Together with the right to use in common with other grantees, and persons who shall become grantees of the party of the first part, her heirs and assigns, of all land lying between the platted portion of said Gratiot Beach and the waters of Lake Huron, which use and enjoyment by said second party, other grantees, and persons, shall be limited to such use as is usual for residents and visitors at a family summer resort, to make of a beach in connection with such resort.”
    Following this is also a provision against selling or keeping for sale upon said premises intoxicating liquors, and making such deed void if the grantee violates the provision.
    Complainant owns a valuable summer residence. The defendants, claiming to own the land between the lots and the shore, are selling and permitting to be drawn away, in large quantities, the sand which makes the beach. This sand, which at the time was not supposed to possess any commercial value, has proved to be very valuable for the manufacture of concrete. Teams were employed in drawing the sand away, and as a summer resort the place was practically destroyed. This bill was filed to restrain the defendants from removing the sand.
    The defendants deny that the complainant has any right or interest in the land between his lot and the shore, ior any right to interfere with them or their agents in removing the sand. They admit that complainant has an easement in the land, but say that the removal of the sand does not in any way interfere with such easement. The case was heard upon pleadings and proofs taken in open court, and a decree was entered declaring that the said complainant and the other lot owners, by virtue of their deeds, obtained an “easement or right to use and enjoy for such use as is usual for residents and visitors at a family summer resort to make of a beach in connection with such resort, and for no other purpose or use, all the land lying between the east line of said lots and the waters of Lake Huron; * * * that the removal of sand and gravel, as the proof shows it to have been taken away, produces no permanent impairment or injury to said easement.” The decree then enjoins the removal of sand and gravel from said beach between the 15th day of June and the 15th day of September of each year, for the reason that the removal at that time is a discomfort, inconvenience, and annoyance to the lot owners and to visitors.

      Stevens, Graham & Stevens (William T. Mitchell, of counsel), for complainant.

      Frank T. Wolcott and Thomas Wellman, for defendants.
   Grant, J.

(after stating the facts). The theory of the complainant is that he and the other grantees of Mr. Ward acquired the exclusive use and control, for them and their grantees forever, of the land known and designated on the plat as the “ beach.”

The theory of the defendants is that the complainant and other grantees of Ward acquired only an easement to use the land during the summer season as a resort, and that Ward reserved in himself the fee of the land, and the right to use it as he saw fit, subject to such easement.

The situation at the time becomes material in construing the language of the deed. The land was of little value unless it could be utilized as a summer resort. Should the narrow lots run to the lake shore, the beach would be of comparatively little value to the owners, for each could make such use of his own narrow lot as he saw fit. He could fence it, or place at the shore or elsewhere on his lot any building he might choose to erect. It would therefore be impracticable to preserve the land as a beach or park if the lots extended to the water. Therefore Mr.. Ward adopted the plan of laying out the lots fronting on a part of the land next, to the water, to be known as the “ beach,” and conveying to each lot owner the right to-use the beach in common with all the others. Under this arrangement the lots, most of which have been sold and built upon, have become very valuable. If the beach is destroyed, the lots and buildings thereon are of but little value.

The evidence is conflicting as to the damage done to the beach by the removal of the sand. Witnesses for the complainant testify that the effect is to expose the rocks, and to substitute gravel for the hard sand, and to do great injury to the beach. The evidence on the part of the defendants controverts this position. We find it unnecessary to determine to what extent the removal of the sand injures the property of the lot owners.

What did Mr. Ward convey to his grantees? There is nothing in the deed restricting the use in time or manner. The limitation is confined “to such use as is usual for residents and visitors at a family summer resort to make of a beach in connection with such resort. ” The limitation was not for the benefit of Mr. Ward, as grantor, but for the-benefit of his grantees and himself, so long as he owned any of the land. The purpose of the limitation was to keep the beach* forever in suitable condition to be used by all the grantees, their families, and visitors, for a common purpose, to wit, as their pleasure ground. If the language created only an easement, what did Ward reserve? In express terms, nothing; by implication, nothing which could in any manner interfere with the enjoyment by his grantees. He could not build docks, warehouses, or buildings. He could not cultivate or improve the land in any way he might see fit. He, so long as he owned any of the> land, and his grantees, could unite in improving or building upon it, or in performing any act to which they all might agree. Did he reserve the right to dig up or remove the gravel or soil ? Counsel for the defendants now admit that he could not, if by doing so, he interfered with the use and enjoyment of plaintiff and his other grantees. How many lots would he have sold if he had reserved the right to remove the sand ? Even if he had added thereto the words “so as not to interfere with his grantees in the use of the interest conveyed to them,” no one would probably purchase land, with lawsuits sure to grow out of such a reservation. We think it clear that Mr. Ward’s grantees acquired the exclusive right to use this land called the “beach.” When he sold it all, he no longer had land adjoining the beach, by which he could get any interest in the beach. His grantees were not limited to a use for that period of time which a court or jury might determine-was the usual season for a summer resort. They had the right of possession at any and all times, winter and summer, for the purposes of improvement, use, and enjoyment. They could build a breakwater, if necessary to prevent the encroachment of the waters. They could layout drives, erect fountains, plant trees, make grass plats— in fact, could use and improve every foot of the land for the purpose designated in their deeds. This necessarily excluded any interest or right of possession in Mr. Ward. The exclusive and unrestricted use of land carries with it-title to the land itself. Reilly v. Booth, L. R. 44 Ch. Div. 36; Metropolitan R. Co. v. Fowler, L. R. 28 Q. B. Div. 165; Caldwell v. Fulton, 31 Pa. St. 475 (72 Am., Dec. 760). In Reilly v. Booth certain parcels of land were conveyed, together with the exclusive use of a gateway into Oxford street, giving the dimensions, etc., of the gateway. It was held that the title to the gateway passed to the grantee. In Metropolitan R. Co. v. Fowler the railroad company acquired the right to, and did,' construct an underground railway. It was held that the railroad company did not acquire an easement, but ahereditament. In Caldwell v. Fulton it is said:

“There are two modes in which the subject-matter of the deed may be described, both equally potential. The one is by a description of the thing itself, as of land by metes and bounds, or by a known name. The other is by a designation of its usufruct, or of the dominion over it. Thus a grant of the rents, issues, and profits of a tract of land is uniformly held to be a grant of the land itself; * * * the reason is that the grant of a thing can be no more than the grant of the full and unlimited use of it.”

"When the right becomes exclusive, or where the whole «exclusive use of a thing is obtained, the right becomes an interest, or the whole dominion passes, and there is no longer an easement, but the property is the thing itself. Exclusive use cannot be devised, and the land not.

If A., owning a 40-acre lot of land, with streets on its four sides, plats it, except a piece in the center, and the lots extend from the streets to such center piece, and he sells the lots, describing them as fronting upon such piece, and conveys to each lot owner an undivided interest in such center piece, to be used in common with all the others, as a park or for other purpose, he has clearly parted with all interest he had in the entire 40 acres. Each grantee owns his lot and an undivided interest in the center piece. All the lot owners must unite in improving or disposing of said center piece. All may unite and divide it up, or all may unite in selling their lots to a single individual or corporation, and such grantee would take title to the entire 40 acres.

Counsel for the defendants insist that the terms of the conveyance clearly indicate the intention of the grantor to retain the fee of the land. We think otherwise. Mr. Ward knew that he was granting the unrestricted and perpetual use of this land as a resort or a park. Had he desired to reserve the right to remove the soil, or any part thereof, naturally he would have incorporated such a right in his deed. The language used is just such as is natural where one conveys to several the exclusive use of his land for the common enjoyment of all. Neither complainant nor any other grantee would have purchased his lot without purchasing the interest in the beach. Without the rights in the beach, as specified in the deeds, the lots are comparatively worthless. Complainant did not purchase his interest subject to the right of Mr. Ward to remove any part of the soil, sand, or gravel upon this beach, upon the theory that such removal would not injure the beach. He did not purchase it subject to" the right of a court to determine that such removal was a benefit or injury to the beach. The lot owners own the exclusive use of this beach, and they alone have the right to say what will be a benefit and what a damage thereto. It is theirs to do what they please with-it when acting in unison, but no one can use it for any other purpose except that specified in the deed, without the consent of all the others.

Decree reversed, and decree entered in this court for the complainant, with costs of both courts.

Moore, C. J., Carpenter and Montgomery, JJ., concurred. Hooker, J., concurred in the result.


text:
    LANDOWSKI v. CHAPOTON.
    1. Master and Servant — Fellow-Servants.
    A scaffold builder in the employ of a building contractor is the fellow-servant of a brick carrier employed by the same contractor.
    2. Same — Injuries to Servant — Scaffolding—Negligence.
    Where a building contractor furnished competent scaffold builders and sufficient good material for the construction of the scaffold, he was not liable for injuries to a servant, caused by the breaking of a center board, weakened by a knot, negligently used in constructing such scaffold.
    Error to Wayne; Donovan, J.
    Submitted June 14, 1904.
    (Docket No. 14.)
    Decided July 27, 1904.
    Case by Joseph Landowski against Alexander Chapoton for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      8. E. Engle, for appellant.

      Keena & Lightner, for appellee.
   Grant, J.

The defendant was a large contractor and builder. Among his various contracts was one for the erection of a church and parish house in connection therewith. Plaintiff was a brick carrier. While carrying brick upon a scaffold, it broke. He fell and was injured. The scaffold was first built by the carpenters. One for the use of masons is required to be stronger. In the necessary division of the work defendant had a scaffold builder, who had built scaffolds for 20 years, and never before had one broken. When the work was ready for the masons, the scaffold builder strengthened the scaffold as they deemed sufficient. The cause of the accident was a knot in the center plank. It was established by the testimony of both plaintiff and defendant that Mr. Chapoton employed competent men and furnished sufficient good material. If there was any negligence, it was that of a fellow-sérvant. The court properly directed a verdict for the defendant. The case is ruled by the following decisions : Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240); Hoar v. Merritt, 62 Mich. 386 (29 N. W. 15); Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505).

Judgment affirmed.

The other Justices concurred.


text:
    KAPP v. BOARD OF AUDITORS OF WASHTENAW COUNTY.
    Physicians — Contagious Diseases — Treatment — Board of Health — Contracts—Liability of County — Vested Rights— Statutes — Application.
    Where a physician entered into a contract with a township board of health to care for indigent persons affected by contagious diseases at a specified price per visit and mileage, at a time when the county was liable to pay for such services on their allowance by the local board of health, the physician had a vested right to payment for such services, though Act No. 7 of the Public Acts of 1903, authorizing boards of supervisors to pass on the reasonableness of claims for such services, took effect before such claim was allowed by the local board.
    Certiorari to Washtenaw; Kinne, J.
    Submitted June 14, 1904.
    (Calendar No. 20,496.)
    Decided July 27, 1904.
    Mandamus by Christian F. Kapp to compel the board of auditors of Washtenaw county to allow a bill for services in cases of contagious diseases. From an order denying the writ, relator brings certiorari.
    Reversed.

      A. J. Waters (A. F. & F. M. Freeman, of counsel), for relator.

      John L. Duffy, for respondent.
   Hooker, J.

On January 9, 1903, the board of supervisors of Washtenaw county passed a resolution providing for contracts with physicians relative to care of indigent persons affected by contagious diseases. The supervisor •of the township of' Freedom in said county was present when the resolution was passed, and had knowledge thereof. On February 10, 1903, he, as one of the board of health of his township, made a written contract with relator respecting such cases in his township at the price of $10 per visit and 25 cents per mile going, only. Services were rendered under this contract, and a bill for $1,371 was rendered. This sum includes $34 for clothing and other property furnished and destroyed. It was allowed at the sum of $569.50. Relator claims that $801.50, covered by the first contract, was wrongfully disallowed.

At its 1903 session the legislature passed Act No. 7 of the Public Acts of that year, and gave it effect March 13, 1903, being after the services under the contract of February 10th were performed. This act provided for a change in the law giving the boards of supervisors authority to pass upon the reasonableness of claims for services in caring for indigent persons, by direction of the board of health, whereas before the allowance by the local board was usually final and conclusive upon the board of supervisors. The board of auditors refused to allow and pay the bill.

It is the claim of the respondent that Act No. 7, referred to, affected the remedy only, and has a retrospective effect; that the contract was not impaired, (1) because relator has his remedy against the township, (2) because the contract was with the township, and not with the county, .which did not assent to it. No question appears to be raised over the authority of the township board of health to agree in advance upon the price to be paid for such services. It is unimportant whether they might properly do so or not, for the service was rendered at the 'request of that board, and the bill was audited and allowed by it. We understand that there is no question of fraud or collusion in the case.

Had this allowance been made before the act took effect,, we think it clear that the respondent must have paid the bill, and that relator’s right could not, in such case, have been affected by the legislature. Does the fact that the-allowance was deferred until after such act took effect justify the board of auditors in its action ? The relator rendered services under a law which made the county liable to pay for them upon allowance by the local board. The amount was agreed upon in advance. He had a vested right to such payment, when lawfully allowed by the local board, and it could not be taken away or impaired by legislation, as it would be if the supervisors were authorized to question its reasonableness. The services were rendered upon different terms. Elliott v. Board of Sup’rs of Kalkaska Co., 58 Mich. 452 (25 N. W. 461, 55 Am. Rep. 706); Pease v. Common Council of Saginaw, 126 Mich. 440 (85 N. W, 1082); Zimmerman v. Board of Sup’rs of Cheboygan Co., 133 Mich. 494 (95 N. W. 535); Township of Cedar Creek v. Board of Sup’rs of Wexford Co., 135 Mich. 124 (97 N W. 409).

The order of the circuit judge is reversed, and the writ will issue as prayed.

The other Justices concurred.


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    HUGHES v. HALLY.
    1. Arrest — Jail-Limits Bond — Assignment — Deputy Sheriff.
    3 Oomp. Laws, § 10520, providing that, if a bond for the liberty of jail limits shall be forfeited, the person at whose suit the prisoner shall have been confined shall be entitled to an assignment thereof, which shall be made by the sheriff taking it, or by his successor, or, in case of vacancy, by an undersheriff, by an indorsement thereon, is not mandatory to the extent of prohibiting a sheriff from assigning by his deputy.
    2. Same — Attorneys—Jail-Limits Bond — Violation—Attendance on Supreme Court.
    1 Comp. Laws, § 1117, providing that all officers of courts of record shall be liable to arrest, and may be held to bail, in the same manner as other persons, except during the actual sitting of any court of which they are officers, does not permit counsel, who has been arrested, and has given bail for liberty of jail limits, not during, but before, the actual sitting of a court, to violate the condition of his bond by going beyond the limits of the county, when thereafter professional engagements call for his presence in the Supreme Court.

      3. Same — Forfeiture of Bond — Damages.
    One who is arrested on a capias ad satisfaciendum, gives bond for liberty of jail limits, is then surrendered by bis sureties, and afterwards gives another such bond, is thereafter confined, not on a surrender in exoneration of bail, but by virtue of a capias ad satisfaciendum, within 3 Comp. Laws, § 10521, providing the various measures of damages in such cases for forfeiture of such a bond.
    Error to Wayne; Hosmer, J.
    Submitted June 16, 1904.
    (Docket No. 31.)
    Decided July 27, 1904.
    Debt by Michael P. Hughes against Patrick J. M. Hally and Samuel Kennedy for the amount of a bond. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      T. E. Tarsney and A. É. Hall, for appellants.

      Bichará Price, for appellee.
   Hooker, J.

In June, 1897, plaintiff recovered a $500 judgment in Wayne circuit court against a newspaper called the Catholic Witness and Patrick °J. M. Hally. Costs were taxed at $80.95. On September" 20, 1897, an execution was returned unsatisfied. On December 30th plaintiff caused a capias ad satisfaciendum to be issued against Hally, and he was arrested by the sheriff on December 31st. On the same day Hally gave a bond for the liberty of jail limits to Chipman, sheriff, with Sheeran and Thompson sureties. The bond was for $1,162. This bond was afterwards given by Chipman to G-. Duffield Stewart, his successor in office, and while he was sheriff the sureties surrendered Hally in exoneration of bail. On December 28, 1900, the sheriff took another bond for jail limits, Kennedy being surety, for $1,162. Afterwards Hally, as assistant corporation counsel, attended the Supreme Court at Lansing upon official business, and while there Hughes procured an assignment of the bond, and began suit against the defendants upon the same. A verdict was directed in favor of the plaintiff, and defendants have appealed.

The questions involved in the case were:

1. Was the assignment of the bond a valid assignment, “being made by “Henry A. Dickson, sheriff, by L. W. Hines, deputy sheriff.”

2. Was the leaving of Wayne county, under the circumstances, a breach of the bond ?

3. Should the damages have been limited to nominal damages ?

3 Comp. Laws, § 10520, provides that the plaintiff shall “be entitled to an assignment, and specifies that a sheriff: or his successor in office, or, in case of a vacancy, his under-, sheriff, shall make it by indorsement thereon. We think that this is not a mandatory provision to the extent of pro-i hibiting a sheriff from assigning by his deputy. The plain-: tiff had a right to demand it, and the sheriff no right to refuse it. See Wilcox v. Ismon, 34 Mich. 268.

The second point rests upon section 1117 of the Compiled Laws, which provides:

“ All officers of the several courts of record shall be lia-' ble to arrest, and may be held to bail, in the same manner as other persons, except during the actual sitting of any court of which they are officers,” etc.

This statute exempts counsel from arrest on process and being held to bail, during the actual sitting, etc. Hally was not so arrested. He was arrested before, and had given bail. He now contends, in substance, that this statute permits him to violate the condition of his bond, and, in effect, that jail limits are to be extended, in the case of a lawyer, beyond the confines of the county, when professional engagements call for his presence at the Supreme Court. No authority in point is cited, and we think the claim should not be sustained.

3 Comp. Laws, § 10521, provides for a suit upon the bond, and that damages shall be as follows:

“ If the prisoner escaping was confined by virtue of an execution, or by virtue of an attachment for nonpayment of costs, the measure of the plaintiff’s damages shall be-the amount directed to be levied by such execution or attachment with interest thereon to the time of such recovery. If such prisoner was confined by virtue of a capias ad respondendum, or upon a surrender in exoneration of his bail, made before or after judgment rendered against him, the plaintiff shall recover only the actual damages, sustained by him.”

It is now contended that defendant was confined upon; a surrender in exoneration of bail, and actual damages, only, and not the amount of the judgment, are recoverable. We think not. He was confined by virtue of a ca. sa., and this was extended to jail limits by his bond. The damages are fixed by paragraph 1 of the section quoted.

The judgment is affirmed.

The other Justices concurred.


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    PEOPLE v. KUNEY.
    (1. Criminal Law — Industrial Home for Girls — Aiding Subject to Leave the State — Justice of the Peace — Disqualification — Waiver.
    In a prosecution for aiding and assisting a girl to leave the State, knowing her to be a subject of the industrial home for girls, without the consent of the board of control of the home, where defendant entered a plea of not guilty at his examination before a justice of the peace, the plea was a waiver of an alleged disqualification of the justice, on the ground that the justice held a clerical position in connection with the home, and was in fact an employé of the superintendent, the complaining witness in the case.
    2. Same — Evidence—Sufficiency.
    In a prosecution for aiding and assisting a girl to leave the State, knowing her to be a subject of the industrial home for girls, without the consent of the board of control of the home, the introduction of the commitment, indorsed with the approval of the circuit judge, to prove that the girl was legally subject to the control of the home, was sufficient to put in evidence the indorsement of the approval of the circuit .judge thereon without special offer of the approval; and hence a contention that there was no proof of the fact- was ■untenable.
    Exceptions blefore judgment from Lenawee; Chester, J.
    Submitted June 17, 1904.
    (Docket No. 191.)
    Decided July 27, 1904.
    Le Roy Kuney was convicted of aiding and assisting a» girl to leave the State, knowing her to be a subject of the industrial home for girls, without the consent of the board of control of said home.
    Affirmed.

      John E. Bird and J L. O’Mealey, for appellant.

      'Theodore M. Joslin, Prosecuting Attorney, for the ■people.
   Hooker, J.

In 1901 the defendant’s wife obtained from ■the industrial home for girls at Adrian one Lila Jackson, .an inmate of said home, to serve as domestic, under the "usual contract made by that institution. The girl lived .and worked in defendant’s family for a year and three -days, until July 13, 1902, when she left, and went to Toledo. She was soon after returned to the home. Lucy ¡Sickles, superintendent of the home, made complaint against defendant before one Charles Humphrey, a justice of the peace, by whom defendant was bound over to the circuit court, and he was afterwards informed against .and convicted of the offense charged in the complaint and warrant, viz., of aiding and assisting a girl to leave the ¡State knowing her to be a subject of said home, without the consent of the board of control of said home, contrary to the statute. He was convicted later, and has appealed.

The questions in the case are: (1) Was Humphrey, the •justice, disqualified ? (2) Was the absence of proof that .Lila Jackson was in the legal custody of the home, fatal ?

The first of these questions is predicated upon the fact that Humphrey held a clerical position in connection with the home, and expected to continue to hold it. It is claimed that he was an employé of Mrs. Sickles, the complainant. If there is any force in this claim, it was waived, by the defendant’s plea of not guilty. See People v. Jones, 24 Mich. 215.

To prove that Lila Jackson was legally subject to the control of the industrial home, the commitment was offered in evidence. The record, as amended, shows that the commitment is indorsed with the approval of the circuit judge. It is contended that the commitment only was offered in evidence, and that this did not justify the consi iteration of the appended indorsement. We think this overcritical. The commitment without the indorsement would not have been recognized or acted upon. It could not have been either legally or prudently. The indorsement is a part of the commitment, and was properly in evidence.

The conviction is affirmed, and, as we assume that the case is here before sentence, the court is directed to impose sentence, if he has not already done so.

The other Justices concurred.


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    LYON v. CLARK.
    1. Equity — Jurisdiction—Fraud—Dismissal on Bill.
    A bill to set aside a conveyance of real estate, and avoid a transfer of personal property, though not sustained as to the land, and there is an adequate remedy at law as to the personalty, should not be dismissed on the merits, where the bill alleges that the property was obtained by fraud, through a conspiracy, and that an accounting is necessary.
    2. Same — Bill—Multifariousness—Waiver.
    An answer on the merits waives the defect of multifariousness in the bill.

      Appeal from Clinton; Stone, J.
    Submitted June 17, 1904.
    (Docket No. 32.)
    Decided July 27, 1904.
    Bill by Willard C. Lyon, trustee in bankruptcy of the estate of Fred E. Hazle and Frank B. Clark, against Nathaniel J. Clark to set aside certain conveyances as fraudulent. From a decree for complainant, defendant appeals.
    Affirmed.

      Almond Q-. Shepard (Lyon & Moinet, of counsel), for complainant.

      Fred B. Everett (Norton & Booling, of counsel), for ■ defendant.
   Hooker, J.

Hazle and Frank Clark engaged in the shoe and furnishing trade at Ovid with a capital of $3,000, each having borrowed $1,500 on his personal paper. Clark was also owner of a store building, which he purchased from his father, Nathaniel Clark, the defendant in this case, on credit, of whom he also borrowed his share of the capital stock. Hazle and Clark became insolvent, and the store was sold back to the defendant for $3,000. He also purchased the stock of goods and fixtures and outstanding accounts, giving therefor a check for $5,000 upon the account of his brother-in-law, one Lamb, for whom he did business, and for whom he claims to have made the purchase.

Bankruptcy proceedings followed, in which Hazle and Frank Clark were declared bankrupts; Lyon, the complainant, being appointed trustee in bankruptcy. Finding insufficient property belonging to the bankrupts to pay their debts, he attacked the conveyances to this defendant by filing a bill to set aside the conveyance of the store, and bringing assumpsit to recover the value of the stock of goods, which had been sold or intermingled with other similar goods, so as to have become indistinguishable. Both cases came to this court. The assumpsit case is reported in 129 Mich. 381 (88 N. W. 1046), and it was held that trover, and not assumpsit, was a proper form of action to reach the stock, upon the claim that title vested in the trustee under the bankruptcy act, if there was fraud in the transfer, and the plaintiff was for that reason defeated. The case involving the store is reported in 132 Mich. 521 (94 N. W. 4), and the validity of that transfer was sustained upon the merits, and we see no reason for saying that it was not a final adjudication of that question between the parties.

The original bill in the present cause was filed after the decision of the assumpsit case by this court, but. a year or so before the disposition of the chancery cause. A demurrer clause in the answer to this bill, as subsequently amended, was interposed and overruled, and the case was afterwards heard upon the merits, upon full pleadings. The court sustained the validity of the conveyance of land, but found for the complainant as to the stock of goods, and the defendant has appealed.

Counsel for the defendant in their brief limit the questions raised to three, viz. :

“ (1) Has a court of equity, under the facts and circumstances of this case, jurisdiction to hear, try, and determine the matters involved therein ?
“ (2) Has the defendant waived his right to question the jurisdiction of the court?
“ (3) Is the defendant guilty of having violated the provisions of the national bankruptcy law ? ”

Counsel for the defendant admit that, if the bill was in good faith filed to reach real estate as well as personal property, equity had jurisdiction; but that real estate was included merely for the purpose of giving jurisdiction, and in the face of a former conclusive decision regarding it, and that under such circumstances the bill should be dismissed upon the hearing of the merits, if, as is insisted, the question as to the personal property could as well have been settled in an action at law — i. e., trover. That question was tried upon the demurrer. We do not find it necessary to dismiss the bill for the reason that the bill alleges that the property was obtained by fraud, through a conspiracy, and that an accounting is necessary. See Edwards v. Investment Co., 132 Mich. 1 (92 N. W. 491). It is said that the bill is multifarious, but, if so, there is no impediment to a disposition of the case, in view of the fact that defendant answered. Wales v. Newbould, 9 Mich. 81; Payne v. Avery, 21 Mich. 537. This rule is also a sufficient reason for our conclusion upon the last preceding question.

The second question is practically disposed of by what has been said.

The third question relates to the merits. We concur an the opinion of the learned circuit judge upon this branch of the case. The subject has been before .us twice, and, while we did not have occasion to decide the merits on the former hearing, that record appears to have created a similar impression upon our minds, and is reassuring as to the correctness of our conclusion upon this record.

We see no occasion to disturb the decree of the circuit court, and it is affirmed, with costs.

The other Justices concurred.


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    NAFTZKER v. LANTZ.
    1. Action on Notes — Execution—Delivery—Denial—Affidavit — Character of Defendant.
    Under Circuit Court Rule No. 8 and 1 Comp. Laws, § 826, failure to deny on oath the execution of the written instrument sued on, at the time of entering the plea, admits, not only its execution, but its delivery and the partnership of defendants; it purporting to be signed by a partnership.
    :3. Same — Appeal from Justice — Pleading—Amendment.
    On appeal from justice’s court, an amendment denying the execution of the instrument sued on is properly denied, where the question was not raised below, except by an unsworn notice filed with the plea, and defendants allowed judgment-there to go practically by default.
    Error to Monroe; Lockwood, J.
    Submitted June 27, 1904.
    (Docket No. 203.)
    Decided July 27, 1904.
    Assumpsit by Jacob Naftzker against Henry Lantz,. Gordon Lantz, and Myron Lantz, copartners as Lantz & Co., on a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendants: bring error.
    Affirmed.

      Willis Baldwin, for appellant.

      W. L. McAran, for appellee.
   Hooker, J.

The plaintiff sued the three defendants,, father and sons, as copartners, in j'ustice’s court, upon a promissory note signed “Lantz & Co.” They appeared by counsel, and plaintiff declared upon the note, filing the-same with the j'ustice at the time of pleading, in conformity to the practice permitted by 1 Comp. Laws, § 836,, which provides:

“ When any written instrument purporting to be executed by one of the parties is declared upon or set off, it-may be used in evidence on the trial of the cause against such party, without proving its execution, unless its execution be denied by oath, at .the time of declaring, or pleading, or giving notice of set off, if such instrument shall be> produced and filed with the j'ustice.”

The defendants pleaded the general issue, accompanied by an unsworn notice that they would “give evidence» tending to show that said defendants never were partners, and that there is no j'oint liability among them, upon, the claim described in plaintiff’s declaration, and that defendants Myron and Gordon Lantz did not undertake to» pay, assume, or become responsible for any part of the» claim described.”

The j'ustice rendered a j'udgment for $86.76, including ' costs. It is stated, and not denied, that, though the defendants were present, they offered no evidence in support of the plea (and the record implies this), but afterwards appealed. On March 10, 1904, the cause was noticed for trial, and a week later defendants filed a motion for leave to amend their plea and notice, accompanying the same by an affidavit, made by Myron and Gordon Lantz, denying the execution of the note declared upon. This motion was denied upon the ground that it should have been filed at the time of joining issue. The motion was renewed at the time of the trial, two days after its first denial, and was again denied, the court stating:

“ There has been a motion made in this case for an order allowing defendant to amend his plea by filing an affidavit denying the execution of this note by the two defendants Gordon and Myron Lantz. That motion has been denied, and is again renewed. I again deny the motion. I am of the opinion that under the justice of the peace acts the affidavit should have been filed at the time of filing the plea. I am also of the opinion that, if the court has power after the appeal to allow this amendment, notwithstanding the statute governing the justice’s court, that I should not allow it for the reason that it will materially change the issue in the justice’s court; in other words, would form a new issue in this court. For these two reasons I think the motion should be denied.”

Upon the trial defendants’ counsel offered to show that the so-called firm of Henry Lantz & Co. consisted solely of Henry Lantz; that previous to the time, the note was given he had been in copartnership with two other men, but this was dissolved at the death of one of them, and Henry Lantz continued to use the firm name, though sole proprietor of the mill at the time the note was given; that the two other defendants worked in the mill for wages, and had no interest in the business; and that the note was the sole obligation of Henry Lantz. Testimony in support of this offer was rejected, and a verdict for plaintiff was directed by the court, and a motion for new trial was subsequently denied. Defendants have appealed.

The questions raised are: (1) Did the court err in refusing to allow the proposed amendment? (2) Was the testimony offered admissible under the pleadings? (3) Was it error to direct a verdict for the plaintiff ?

A rule of the circuit court reads as follows:

“ Upon the plea of the general issue in an action upon any written instrument, under seal or without seal, the plaintiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant unless the defendant, or some one in his behalf, shall file and serve a copy of an affidavit denying the same.” Cir. Ct. Rule No. 8.

This rule has been applied in many cases holding its meaning to be that a failure to file the affidavit provided for therein is an admission of the execution by the defendant who omits to file the affidavit. Hoard v. Little, 7 Mich. 468; Thatcher v. West River Nat. Bank, 19 Mich. 196; Polhemus v. Ann Arbor Savings Bank, 27 Mich. 44; Peoria, etc., Ins. Co. v. Perkins, 16 Mich. 380; Lobdell v. Manufacturers’ Bank, 33 Mich. 408; Jacobson v. Miller, 41 Mich. 90 (1 N. W. 1013); Inglish v. Ayer, 92 Mich. 371 (52 N. W. 639); People v. Johr, 22 Mich. 461; Union Central Life-Ins. Co. v. Howell, 101 Mich. 334 (59 N. W. 599). The statute hereinbefore cited is given a similar construction in Pegg v. Bidleman, 5 Mich. 26. The claim that the delivery is not included in the admission is without force. The statute and rule would be of little value if it were so, and they have been otherwise ■construed.

The question of copartnership is unimportant. By failing to file affidavits seasonably, the defendants admitted that they executed and delivered the note, and that whoever signed it bound them by the signature. This necessarily admits the copartnership, in view of the signature to the note. Neither the justice nor the circuit judge would have been justified in denying plaintiff a judgment «pon the issue as it stood.

The remaining question relates to the proposed amendment. As the case stood before the justice, issue was not taken upon the execution and delivery of the note. They were admitted by the pleading, notwithstanding the notice accompanying the plea of the general issue. An affidavit was indispensable if defendants sought to dispute the validity of the note. Defendants made no defense, but allowed judgment to go by default practically, and then appealed, and sought to spring a new defense inconsistent with their, pleading. We think it within the discretion of the circuit' judge to deny the motion.

The judgment is affirmed.

The other Justices concurred.