text:
    Henry E. Patrick and George E. Patrick v. Donna M. Riggs, Garnishee Defendant.

      Fraudulent conveyances — Mortgage in excess of debt.

    1. The taking of a mortgage for an amount in excess of the debt or the'assumed liability is a badge of fraud, and is a fraud in law if the purpose is to protect the debtor’s interest in the property mortgaged from other creditors.
    2. A careful examination of the evidence, which is returned in the record, is held to lead to the conclusion that the court below was warranted in finding that the mortgages given to the garnishee defendant were given for amounts largely in excess of the amount actually advanced, and with intent to hinder, delay, and defraud the creditors of the mortgagor, and that they were purposely kept from the 'files with intent to defraud, and that they are fraudulent and void as against the plaintiffs.
    Error to Houghton. (Haire, J., presiding.)
    Argued April 30, 1895.
    Decided June 4, 1895.
    Garnishment proceedings. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      W. F. Biggs (0. W. Nichols, of counsel), for appellant.

      Hubbell & Gray (Charles B. Brown & Bon, of counsel), for plaintiffs.
   Long, J.

July 1, 1893, Patrick & Co. brought suit against Ekman, the principal defendant, to recover for goods sold by them to him, and for goods sold by Greenfelder & Sons and by Burnham, Stoepel & Co. to him, both of which claims had been assigned to. them, and recovered judgment November 9, 1893, for $2,157.40, including costs of suit. July 1, 1893, a writ of garnishment was issued against Donna M. Riggs, who was then in possession of the goods. On July 17, 1893, she filed her disclosure, denying any indebtedness to Ekman, and claiming the right to the possession of the goods by virtue of two chattel mortgages given by Ekman, — one dated May 22, 1893, to secure payment of Ekman’s note of that date for $2,900, due on or before May 25, 1893, and the other dated June 26, 1893, to secure the payment of the same note, and a note dated June 26, 1893, for $204, due June 30, 1893. The first mortgage covered all the goods, accounts, and bills receivable of the mortgagor. It appears that July 26, 1893, Reid, Murdoch & Co., having instituted proceedings against Ekman, applied for a receiver. A receiver was appointed, and an injunction was issued restraining Mrs. Riggs from disposing of the goods. In the present case a statutory issue was framed, and the whole case hinges upon the question whether Mrs. Riggs, the garnishee defendant, holds the mortgages in good faith, and for a valuable consideration. The case was heard before the court without a jury, and findings of fact and law made.

Some time prior to January 1, 1893, defendant Ekman and William F. Riggs, the husband of the garnishee defendant, and her agent and attorney in this suit,'agreed to become partners. They entered into such agreement, and so continued from February 1 to February 19, 1893. The court below, after reciting the rendition of the judgment in favor of the plaintiffs and against Ekman, and the bringing of the garnishment proceedings, finds, substantially, that on January 2, 1893, William F. Riggs prepared, and mailed to different commercial agencies, including Bradstreet, and to different wholesale houses with whom they proposed to trade, certain letters, as follows:

“On the 1st of February, 1893, the firm of Ekman & Co., composed of John Ekman and William F. Riggs, will be in trade in Red Jacket, Michigan, in the grocery business, boots and shoes. We have bought out Mr. O. Olson, already in the boot and shoe trade, and have rented his store for a term of years. Best location in the city. We start in trade with a cash capital of $3,000, and other, capital of $1,500, and have no back debts. Besides the store, we will have income from legal work,” etc.

The court finds that the manifest purpose of this circular was to give the impression to the public that Ekman & Big-gs had a capital of $4,500, and no debts. The store was opened for business February 17, and on the 18th Biggs withdrew from the firm, and on that day Ekman’s ledger shows that the firm was indebted for merchandise $1,634.56, not including any indebtedness to William F. Biggs or his wife. On February 22, 1893, Ekman wrote the plaintiffs that he had bought out Biggs. On the 25th of the same month he also reported to plaintiffs his financial standing, as follows:

Value of stock....................... $3,600

Good notes and accounts...................... 350

Other personal property...................... 250

Total............................1..............$4,200

Liabilities for merchandise......................... $900

To W. F. Riggs............. 1,200

$2,100

Net assets...................................... $2,100

On March 24, Ekman wrote Burnham, Stoepel & Co.:

I have goods in stock........^..................... $4,500

Team and store fixtures...........................500

Good bills and accounts............................ 1,000

Cash in bank to-day...................... 150

I owe on stock less than........................... 1,200

On April 22, Ekman wrote Greenfelder & Sons:

“I carry a stock of from $5,500' to $6,000, and my fixtures and resources about $1,000. I owe $1,200, borrowed right here at home.”

On April 25, William F. Biggs sent, at request of the Wilber Mercantile Company, a report of Ekman, as follows:

“The average value of Ekman’s stock is from $5,000 to $5,500. Owing on stock, about $900; amount of borrowed money, $1,200. No mortgage, suits, or judgments against him.”

On April 29, Ekman made a written statement to Reid, Murdoch & Co., as to his liabilities, as follows:

Hart Bros.........:............;................... $ 530

Patrick & Co.......................... 360

Roberts Bros......... 90

Laehman & Kreuger.............................._ 137

W. F. Riggs........... 1,200

Net assets...................................... $4,143

This was on a blank furnished him, in which he was asked:

“Do you owe any confidential and other debts, not included in above?
“A. No.
“Does the above statement show all your resources and liabilities, of every kind and nature?
“A. Yes.”

On June 9 William F. Riggs made a report to the Breckenridge Mercantile Agency, at Milwaukee, on a prepared blank, in which he says of Ekman’s business: “Average value of stock, $6,000; owing on' same, 2 to 3 thousand dollars.” In the blank there was this question: “Any chattel mortgages or judgments?” This was not answered.

The first mortgage held by Mrs. Riggs is dated May 22, 1893, but it was not filed until June 26,1893. Mrs. Riggs testified that she gave the mortgage to her husband shortly after it was executed, and did not know but that it was filed, while Mr. Riggs testified that he gave the mortgage to her, and that he had no conversation about filing it, and he guessed it had passed out of her mind; he knew it had out of his. On July 2, 1893, Ekman wrote Reid, Murdoch & Co. that he was forced to give the mortgage of May 22, of $2,900, as well as the later mortgage, but that he never received that amount of money.

Upon the whole record, the court below found that the two mortgages were fraudulent and void as against the plaintiffs; that they were given for amounts largely in excess of the amount actually advanced, and with intent to hinder, delay, and defraud the creditors of Ekman; and that the mortgages were purposely kept from the files, with the intent to defraud. Upon those findings, judgment was entered in favor of plaintiffs. Exceptions were taken to the findings. Amended findings were also asked and refused, to which exception is taken.

The contention is that the proofs do not support many of the findings of fact. The evidence is returned in the record. We have carefully examined it, and conclude that the court below was warranted in the findings made, and in refusing to find as requested. It appears that from the outset the formation of the partnership was but one of the means employed to give a fictitious credit. Neither party had much capital, and, if it is true that they had no back debts, they soon managed to create a debt to William F. Riggs, who, within a few days after the business started, retired from the concern. It is impossible to believe, from the testimony set out in the record, that matters could run along during those months, in the way they were ’carried on, without the knowledge of Mrs. Riggs. It is apparent that the moneys, if any were furnished, were the moneys of William F. Riggs, and the mortgages were taken in the name of his wife as a cover to carry out the scheme to entrap the creditors of Ekman. In an affidavit made by Ekman, in the Reid, Murdoch & Co. case, to dissolve the injunction, he states that the money to start with was obtained from William F. Riggs, and that he gave his note to Mrs. Riggs for it. It is a singular fact that, during several months immediately following the opening of the store, Ekman and Riggs both reported that the only indebtedness was this $1,200 to Riggs, and that the goods on hand amounted to from $5,000 to $6,000. It is also a singular circumstance that as late as June 9, 1893, when Breckenridge & Sons’ Mercantile Agency asked a report from ,Mr. Riggs, he, in making the report, failed to mention the mortgage of $2,900 held by his wife. No satisfactory explanation is made by Mr. Riggs or his wife about their deals, just how the mortgages came to be made, where the moneys came from which they represent, or why it was that they were not filed. The whole conduct of the business was such that those who were giving credit would be misled, and it is difficult to believe that this was not done'intentionally, and with a deliberate design to defraud these creditors. While it is possible that Mrs. Riggs was not consulted about the means of carrying out the fraud, it is evident that her name was used to aid it, by giving the mortgages directly to her, instead of their being given to her husband.

It is apparent that the mortgages were greatly in excess of the actual amount advanced, and this fact, combined with others, shows clearly that the garnishee defendant cannot claim under them. Parties who take, such security must act in good faith, and so as not unnecessarily to hinder, delay, or deceive other creditors. The taking of a mortgage for an amount in excess of the debt or of the assumed liability is a badge of fraud, and it is a fraud in law if the purpose is to protect the debtor’s interest from other creditors. King v. Hubbell, 42 Mich. 597. In Showman v. Lee, 86 Mich. 556, 560, it was said:

“To say that a party who assumes a liability may take a mortgage in excess of the amount necessary for his security, for the purpose of hiding the debtor’s interest from other creditors, and, when the fraud is exposed, may have the benefit of the mortgage to protect himself, would open the door to gross abuses.”

We have not deemed it necessary to state in' full the claims and exceptions made by counsel to the findings, for the reason that we are satisfied from the whole record-that the evidence supports the findings made, and warranted- the entry of judgment in favor of plaintiffs.

Judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    The People v. Charles E. Whitney and Ellis Aldrich.

      Liquor traffic — Local option — Unusual punishment — Information— Complaint — Jurisdiction of justice — Evidence-Credibility of witness.

      1. Upon the Legislature alone is conferred the power to fix the minimum and maximum of the punishment for all crimes; citing People v. Smith, 94 Mich. 644.
    2. The local option law, so called (3 How. Stat. § 228365), which imposes as a penalty for its violation, for a first offense, a fine of not less than $50 nor more than $200 and the costs of prosecution, or imprisonment in the county jail not less than 20 days nor more than 6 months, in the discretion of the court, and, for a second and every subsequent offense, a fine of not less than $100 nor more than $500, and imprisonment in the State House of Correction and Reformatory at Ionia for a term of not less than 6 months nor more than 2 years, in the discretion of the court, is not in conflict with section 31, art. 6, of the Constitution, which provides that excessive fines shall not be imposed, nor cruel or unusual punishment inflicted.

    3. In a prosecution for a violation of the local option law, the complaint and warrant charged the offense to have been committed on, to wit, the 30th day of July, 1894, while in the information it was alleged to have been committed on, to wit, the 27th day of July, 1894. There was some evidence on the examination showing the offense to have been committed on the last-named date. And it is held that the prosecution was not bound by the date charged in the complaint and warrant, but had the right to inform against the respondents for the offense committed on the date shown by the examination; citing People v. Annis, 13 Mich. 511.
    4. A prosecuting attorney who makes a complaint for a violation of the local option law in his county before a justice of the peace who is his brother-in-law is not a party to the suit, within the meaning of How. Stat. § § 6822, 7245, which prohibit any judge or justice of the peace from hearing any case where he is related to either party in certain degrees by marriage or blood; citing Parsons v. People, 21 Mich. 509.
    5. An information under the local option law which charges that the respondents, on, to wit, a day certain, at a specified village and county, did then and there unlawfully keep a-saloon and place where vinous, malt, brewed, fermented, spirituous, and intoxicating liquors, and mixed liquors and beverages, a part of which was intoxicating, were sold, stored for sale, and furnished as a beverage, they not selling, storing for sale, or furnishing such liquors as a druggist or registered pharmacist under and in compliance with the restrictions and requirements imposed upon druggists and registered pharmacists by the general laws of the State of Michigan, and such liquors not being wine sold for sacramental purposes, nor pure alcohol sold or furnished by a druggist or registered pharmacist for medicinal, art, scientific, or mechanical purposes, but being sold, stored for sale, and furnished contrary to the provisions of a certain resolution adojited by the board of supervisors of said county (naming it) on, to wit, a* day named, pursuant to Act No. 207, Laws of 1889, and that -the aforesaid keeping a saloon and room where such liquors were sold, stored for sale, and furnished by respondents was in violation of the act cited (describing it), which was then in full force and effect in said county, contrary to the statute, etc., is not open to the objections:
    a — That it does not charge that vinous, malt, brewed, fermented, spirituous, or ‘intoxicating liquors, or mixed liquors and beverages, a part of which was intoxicating, were either sold, stored for sale, or furnished as a beverage at the time the respondents are charged with keeping a saloon.
    6 — That it is not charged that the respondents, or either of them, sold, stored for sale, or furnished any of the liquors mentioned in the act above cited.

      o — That it is not charged that either of the respondents -was not selling, storing for sale, or furnishing such liquors as a druggist or registered pharmacist, under and in compliance with the restrictions and requirements imposed upon druggists and registered pharmacists by the general- laws of the State.
    d!^-That the information should designate the building.in-which the room therein mentioned is situated, and should describe the room.
    6. The existence of the local option law within a county is sufficiently proved by the introduction in evidence of a certified copy of the preamble and resolution of the board of supervisors, ordering prohibition in the county; citing Friesner v. Common Council, 91 Mich. 504; People v. Adams, 95 Id. 541.
    ,7. An affidavit that said resolution was published “for four successive weeks; that the first of such publications was on the 8d day of March, 1894, and the last on the 31st day of March, 1894,” — shows that the publication was for four successive weeks, and complies with the requirements of the statute.
    8. The objection that said resolution prohibits the sale of wine for sacramental purposes, and prohibits druggists or registered pharmacists from selling for purposes allowed by section 15 of the local option act, which provides “that nothing in this act shall be so construed as to prohibit the sale of wine for sacramental purposes, nor shall anything herein contained prohibit druggists or registered pharmacists from selling or furnishing pure alcohol for medicinal, art, scientific, and mechanical purposes, does not affect the rights of a respondent charged with keeping a saloon in violation of the provisions of said act, as the resolution ’may be proper with those provisions eliminated.
    9. It cannot be said that, because witnesses for the people were paid to ascertain if parties in the county were violating the local option law in force in said county, they were hired to procure the crime to be committed; but such fact may be considered by the jury in determining how far the .witnesses are entitled to credit. .
    Exceptions before judgment from Allegan. (Padgham, J.)
    Argued May 7, 1895.
    Decided June 4, 1895.
    Respondents were convicted of violating, the local option law.
    Conviction affirmed.
    The facts are stated in the opinion.

      Ed. J. Anderson (E. E. Pope and E. Eart, of counsel), for respondents.

      Fred A. Maynard, Attorney General, and Fidus E. Fish, Prosecuting Attorney, for’ the people.

       For cases arising under the local option law, see Moran v. Darby, 97 Mich. 186, and note; Giddings v. Wells, 99 Id. 221; People v. Ingraham, 100 Id. 530; People v. Wade, 101 Id. 89; People v. Rice, 103 Id. 350.

   Long, J.

Respondents were convicted upon an information charging that they—

“Heretofore, to wit, on the 27th day of July, in the year one thousand eight hundred and ninety-four, at the village of Plainwell, in Allegan county, did then and there unlawfully keep a saloon and place where vinous, malt, brewed, fermented, spirituous, and intoxicating liquors, and mixed liquors and beverages, a part of which was intoxicating, were sold, stored for sale, and furnished as a beverage; they, the said Charles E. Whitney and Ellis Aldrich, not selling, storing for sale, or furnishing such liquors as a druggist or registered pharmacist under and in compliance with the restrictions and requirements imposed upon druggists and registered pharmacists by the general'laws of the State of Michigan, and such liquors not being wine sold for sacramental purposes, nor pure alcohol sold or furnished by a druggist or registered pharmacist for medicinal, art, scientific, or mechanical purposes; but such liquors were sold, stored for sale, and furnished contrary to the provisions of a certain resolution adopted by the board of supervisors of the county of Allegan, State of Michigan, on, to wit, the 2Gth day of February, A. D. 1894, in pursuance of Act No. 207 of the Public Acts of the State of Michigan for the’year 1889. The aforesaid keeping a saloon and room where such liquors were sold, stored for sale, and furnished bv the said Charles E. Whitney and Ellis Aldrich was then and there done in violation of the provisions of said Act No. 207 of the Public Acts of the State of Michigan for the year 1889, which was then in full force and effect in said Allegan county, contrary,” etc.

Complaint was made against one Fred Rowe, as well as the two respondents. They all had an examination before the justice. The complaint and warrant charged the offense to have been committed on, to wit, the 30th day of July, 1894. On the examination the respondents were held for trial. The information was filed against the respondents, and the oifense alleged to have been committed on, to wit, the 27th day of July, 1894. The information was filed at the October term, 1894. Counsel for respondents moved to quash the proceedings, on the grounds:

1. That the information does not charge any crime under the laws of this State.
2. That it is not charged in the information that any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors, or mixed liquors and beverages, a part of which was intoxicating, were either sold, stored for sale, or furnished as a beverage at the time the respondents, are charged with keeping a saloon.
8. Nor is it charged that they, or either of them sold,, stored for sale, or furnished any of the liquors mentioned in Act No. 207 of the Public Acts of 1889.
4. It is not charged that either of the respondents was not selling, storing for sale, or furnishing such liquors, asa druggist or registered pharmacist, under and in compliance with the restrictions and requirements imposed upon druggists and registered pharmacists by the general laws of the State.
5. That the respondents have never been examined before a justice of the pea ce, as required by law, of the oifense charged in the said information.
6. That the oifense charged in the said information is one that is laid' and occurred on a day different from that-charged in the complaint in this case, and is a different offense from that charged in said complaint, and upon which examination was had in justice’s court.
7. That said infonnation should designate the building in which the room therein mentioned is situated.
8. It should also describe said room.

The case against Eowe was nolle prossecl. The motion to quash the proceedings was overruled.

The first contention is that Act No. 207, Laws of 1889, under which the complaint is made, is unconstitutional, as—

“It provides for excessive fines to be imposed, and causes cruel and unusual punishment to be inflicted, in. violation of article 6, § 31, of the Constitution of the State.”

Upon the Legislature alone is conferred the power to fix the minimum and maximum of the punishment for all crimes. People v. Smith, 94 Mich. 644. It is true that cases might arise when the punishment imposed by an act would be so cruel and unusual that the courts would interfere and protect the rights of the party, but in the .present case the penalties fixed by the act are such as the Legislature had the power to impose.

It is contended that, the date charged in the information being a different date than that charged in the complaint and warrant, a separate and distinct offense was charged than that which the parties were examined upon, and the information is therefore bad for that reason. There was some testimony on the examination showing that the offense committed by the two respondents was upon the date charged in the information. The prosecutor was not bound by the date charged in the complaint and warrant. He had the right to inform against the parties for the offense committed on the date shown by the examination. People v. Annis, 13 Mich. 511.

The averments in the information are sufficient under the statute, and we are unable to agree with counsel that it is defective upon the grounds stated in the objections.

The complaint was made by Fidus E. Fish, prosecuting attorney of the county, before B. A. Nevins, a justice of the peace, who is a brother-in-law1 of Mr. Fish. It is contended that this rendered the proceedings before the justice void, under How. Stat. § § 6822, 7245, prohibiting any justice of the peace from hearing any case where he is related to either party in certain degrees by marriage or blood. The complainant is not a party to the suit, within the meaning of those provisions of the statute. Parsons v. People, 21 Mich. 509.

On the trial the prosecution offered in evidence a certified copy of the preamble and resolution of the board of supervisors, ordering prohibition in the county. This was objected to by the respondents on the following grounds:

“1. There is no evidence that the resolution was ever published as required by the statute.
“2. The resolution prohibits the sale of wine for sacramental purposes, and does not state that anything therein ■contained shall not prohibit druggists and registered pharmacists from selling or furnishing pure alcohol for medical, art, scientific, and mechanical purposes, in accordance with section 2283M of the statutes.
“These are objections I will state on record to the proceedings that lead up to the adoption of this resolution and the publication of it:
“3. The call for the special session of the supervisors does not state when the petitions praying for an election were presented to the county clerk in order to show that the call was issued within five days thereafter, and to show that the date set in the call for the meeting of the board is not less than 10 nor more than 20 days from the presentation and filing of such petitions, in accordance with section 5 of Act No. 207 of the Laws of 1889.
“4. The notice of the call for a special session of the board of supervisors under section 5 of the act was not served upon the supervisor from the township of Saugatuck at least 10 days before the time fixed for such meeting, and he was not present at any time during such board meeting, as we will show by the records.
“5. Said notice was not served upon the supervisor from the township of Saugatuck by causing a copy thereof to be delivered to him personally, or by leaving the same at his place of residence, as required by section 5 of the act, and the return of such service is defective in that particular.
“6. The county clerk did not cause to be served upon and delivered to the clerks of the townships and voting precincts of this county, without delay, a certified copy of the order ordering and calling the election, as required by section 6 of the act.
“7. Nor were such orders delivered personally to such clerks, as required by said section 6, as shown by the returns on the files here in the clerk’s office.
“8. The affidavit of publishing the order calling the election in the Allegan Journal is by Charles W. Kellogg, foreman, and it states that it was published for three suecessive weeks, and that the first publication was on January o, 1894, and the last on January 26,1894. We claim that such a state of facts could not exist, and that there could not be three successive weeks, and have the first publication on the 5th and the last on the 26th; that that skipped one week, and broke the continuity of the publication.
“9. Such affidavit was not filed with the clerk of this court until February 26, 1894, being seven days after the election was held.
“10. The affidavit of publishing such order, showing the publication to be in the Allegan Gazette, was by E. C. Reid, printer, and states that it was published for seven successive weeks; that the first publication was on January 6, and the last on February 17,1894. We claim that it could not be published seven successive weeks, and have the first and last publications come upon these dates.
“11. That affidavit was not sworn to or filed with the clerk of this court until after the election, to wit, filed on the 26th day of February, 1894, at least seven days after the election was held.
“12. That affidavit was not sworn to and filed until after this resolution was adopted by the board of supervisors.
“13. The ballots printed by the county clerk, and furnished by him to the clerks of each township and voting precinct in the county, did not conform to section 8 of the act, nor to the resolution of the board calling the election, in that they were not in two separate forms and ballots, but the ‘Yes’ and ‘No’ ballots were published on one sheet of paper.
“14. Such ballots in that form could not be and were not judiciously distributed at the polls, within the meaning of section 8.
“15. The township clerks and the clerks of the voting precincts in the townships of Wayland, Otsego, Martin, Leighton, and Ganges did not transmit and file with the county clerk within five days after the election any poll list or statement of the number of votes cast at their respective elections, as required by section 10 of said act.
“16. The affidavit of the publication of this resolution offered in evidence here is made by E. O. Reid, of said county, and shows that it was printed in the Allegau Gazette, a weekly newspaper printed and circulated in said county of Allegan, and that the resolution was published in said newspaper, for four successive weeks; that the first of such publications was' on the 3d day of March, 1.894, and the last on the 31st. We claim that the affidavit is inconsistent with itself, and that it would be impossible to publish that notice for four successive weeks, and have the first publication and the last publication come upon those dates. We claim that the affidavit shows that a week was skipped, and the continuity of the publication was broken.
“17. That affidavit does not show that that resolution was published in that newspaper once in each week for those four successive weeks.”

The resolution by the board of supervisors is as follows:

“ Whereas, an election was duly called by the board of supervisors of the county of Allegan, and held in and for said county, on Monday, the 19th day of February, A. D. 1894, under the provisions of Act No. 207 of the Public Acts of 1889, approved June 29,1889, to ascertain the will of the qualified electors of said county whether or not the manufacture of liquors and the liquor traffic should be prohibited within the limits of said county; and—
“Whereas, sufficient i*eturns and statements of votes cast in the several townships and precincts in said county have been made to said, board, as required by the act aforesaid; and—
“Whereas, said statements of votes have been canvassed by the said board, and the result thereof ascertained; and—
“Whereas, said result was in the affirmative of the proposition to prohibit within said county the manufacture of liquors and the liquor traffic, the majority of the votes of the qualified electors of said county voting thereon voting (Yes) in the affirmative thereof, said majority being 1666; and the said board of supervisors, at a meeting held on the 26th day of February, A. D. 1894, having determined and declared said result as aforesaid, and having entered said canvass of the votes, determination, and declaration of the result, together with a tabular statement of all the votes cast, in full upon the journal of their proceedings for tha/t day:
“Now, therefore, be it resolved by the board of supervisors of Allegan county, that by virtue of the authority conferred upon them under the provisions of said Act No. 207 of the Public Acts of 1889, entitled ‘An act to prohibit the manufacture, sale, keeping for sale, giving away, or furnishing of vinous, malt, brewed, fermented, intoxicating, or spirituous liquors, or any mixed liquor or beverage any part of which is intoxicating, and to prohibit the keeping of any saloon or other place for the manufacture, sale, storing for sale, giving away, or furnishing such liquors or beverages, and to suspend the general laws of the State relative to the taxation and regulation of the manufacture and sale of such liquors in the several counties of this State under certain circumstances, to authorize the qualified electors of the several counties in this ■State to express their will in regard to such prohibition by an election, and to authorize and empower the board of supervisors of the several counties, after such election, if they shall determine the result to be in favor of such prohibition, to prohibit the manufacture, sale, keeping for sale, giving away, or furnishing of any such liquors, or the keeping of a saloon or any place for the manufacture, sale, storing for sale, giving away, or furnishing of the same within their respective counties, and to provide for penalties and rights of action in case of its violation,’ approved June 29, 1889, it is hereby ordered that on and after the first day of May, one thousand eight hundred and ninety-four, the manufacture, sale, keeping for sale, giving away, or furnishing of any vinous, malt, brewed, fermented, intoxicating, or spirituous liquors, or any mixed liquor or beverage, any part of which is intoxicating, and the keeping of a saloon or any other place where such liquors are manufactured, sold, stored for sale, given away, or furnished, shall be and is prohibited within the limits of said Allegan county; that this resolution of prohibition shall take full effect within the said county of Allegan on the first day of May, one thousand eight hundred and ninety-four, aforesaid, that being the first day of May after its adoption; that on and after that said day it shall be unlawful within said county of Allegan for any person, directly or indirectly, himself or by his clerk, agent, or employé, to manufacture, sell, keep for sale, give away, or furnish any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, or to keep a saloon or any other place where any such liquors are manufactured, -sold, stored for sale, given away, or furnished within the limits of said county of Allegan, so long as this resolution of prohibition remains unrepealed; and that on and after the said first day of May, one thousand eight hundred and ninety-four, the provisions of the general laws of this State for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving away, or delivering spirituous and intoxicating liquors, and malt, brewed, or fermented and vinous liquors, shall be and are suspended and superseded, so far as relates to the territory and municipalities within the limits of said county of Allegan, so long as this resolution of prohibition remains unrepealed: Provided? however, that all sales of liquors in said county by druggists or registered pharmacists shall be under the restrictions and requirements imposed upon them by the general laws of the State.’

Section 17 of the local option law provides that,—

“Upon the trial for any violation of the provisions of section 1 of this act, it shall be competent to introduce the record, or a certified transcript thereof, oí the preamble and resolution, * * * and such record' and transcript shall be the evidence that the provisions of this act are in full force within such county.”

In Fricsner v. Common Council, 91 Mich. 504, 508, it was said:

“The plain purpose of this provision was to place the result, when once reached by the people, beyond controversy or collateral attack. As it would be competent to call an election of the voters of the county, or indeed to have named in the statute a day for an election to be had, it is likewise competent to empower the board to determine when the prerequisite facts exist which shall authorize them to call an election of the people. This having been done, and the people having acted, their action is final.”

And in People v. Adams, 95 Mich. 541, in speaking of proof on the trial, it was said:

“It is unnecessary to prove the promulgation of the adoption of the preamble and resolution. Section 17 of the act makes a certified transcript of the record of the preamble and resolution evidence that the provisions of the act are in full force.”

These cases answer fully the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth objections of respondent’s counsel.

But section 14 of the act, which requires the filing of a copy with the Secretary of State, specifically provides that:

“The record of such resolution of prohibition and of the publication of notice, and all duly certified copies thereof, shall be the evidence 'of the facts therein stated so far as relates to the territory and municipalities within the limits of said county; and the regularity of any proceedings prior to the adoption of such resolution by the board of supervisors shall not be open to question on the examination or trial of any person for a violation of any of the provisions of section 1 of this act.”

We think the proof of the existence of the local option law within that county was sufficient.

The position taken that there was no evidence that the resolution was ever published as required by the statute has no force. The affidavit shows that the publication was for four successive weeks, and it complies with the requirements of the statute.

The point that the resolution prohibits the sale of wine for sacramental purposes, and prohibits druggists or pharmacists from selling for purposes allowed by section 15 of the local option act, need not be considered here. It will be time to dispose of those questions when properly presented. Such questions do not affect the rights of the respondents, as the resolution may be proper with’ those provisions eliminated. The objections to the resolution were properly overruled by the court below.

Some question is raised as to the constitutionality of the act. Every provision of the act wTas under consideration in Feek v. Township Board, 82 Mich. 393, and it was there held that there was no constitutional objection to it. We have discovered no reason in the argument of the counsel for respondents for now holding otherwise.

We find nothing in the conduct of the court which warrants the criticism which counsel make. The court, from the manner of the examinatipn pursued, may have lost patience at the continued repetition of questions and objections, and have gone to some length in compelling counsel to desist; but that was a matter which the court below had a right to control in the orderly conduct of the business of the court.

Criticism is also made upon the witnesses for the people by whom the offense was sought to be proven. It is contended that they .were hired to procure the crime to be committed. We think the evidence does not bear out this contention. They were paid to ferret out the crime, to ascertain if parties ip that county were violating the local option law. As was said in People v. Mills, 94 Mich. 635:

“It is the duty of police officers, not only to aid by all proper means in the arrest and conviction of criminals, but to detect and discover crime.”

The court charged the jury, in reference to these witnesses, that they might consider the fact that they were hired to go there, for the purpose of determining how far they were entitled to credit.

From a careful review of the case on the questions raised, we find that no error was committed which calls for reversal.

The conviction must be affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., took no part in the decision.


author: Montgomery, J.

text:
    David F. Foley v. Thomas B. Platt and Charles H. Crosby.

      Sheriffs — Information as to offenses — Contract—Public policy— Evidence.

    1. It is against public policy for a sheriff to receive compensation from private parties for services rendered in the apprehension of a felon in his own county; citing How. Stat. § 9035; Wilcoxson v. Andrews, 66 Mich. 553.
    2. In a suit by a sheriff for services rendered in furnishing information and advice leading to the apprehension of persons guilty of a larceny of money belonging to the defendants in another state, one of whom was arrested in the plaintiff’s own county with a portion of the money in his possession, the failure to instruct the jury, on the request of the defendants, that it was the duty of th'e plaintiff, as sheriff, to furnish all of the information in his power touching any offense in his own county, or any crime or stolen property therein, and, for any information as to such matters furnished to the defendant’s representative, the plaintiff could not recover, even if the defendants had promised to pay him for the same, is reversible error, the court not having in his general charge covered the subject.
    3. The plaintiff having stated generally that he was acquainted with the value of the services he claimed to have rendered, it was competent for him to express his opinion as to their value.
    4. In the absence of some customary standard of charges or proof of such standard, it was not competent for the plaintiff to base his judgment as to the value of his services upon the fact that specific rewards may have been from time to time offered in cases corresponding to a greater or less extent with the case under consideration, and, if that was the only basis, some different standard should be adopted, as, for instance, a reasonable per Mem.

    Error to Gogebic. (Haire, J.)
    Argued May 7, 1895.
    Decided June 4, 1895.

      Assumpsit. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      WinJcler, Flanders, Smith, Bottum & Vilas and James A. ParJcinson, for appellants.

      M. H. CroeJcer (G. P. BlaeJc, of counsel), for plaintiff.
   Montgomery, J.

The plaintiff sues to recover of the defendants for services rendered in furnishing information and advice leading to the apprehension of persons guilty of a larceny of money belonging to defendants.

It appears from the record that about the 20th of September, 3889, defendants placed as a special deposit with the Exchange Bank of Hurley, Wis., a package containing money consigned to various of defendants' customers, amounting in the aggregate to about $40,000. The bank was entered on the evening of the same day, and the irault and safe were opened, and nearly all of this money was stolen. One John Byrne was the general "detective of the defendants, and, shortly after the robbery, he visited Hurley, and sent for the plaintiff to meet him at that place, to consult with him with inference to means of apprehending the criminals and recovering the money. 'The plaintiff testified that he went to Hurley, and that Mr. Byrne, on behalf of the defendants, employed him in this service, and agreed to compensate him therefor; that he sought information upon the subject, which he furnished from time to time to defendants, and advised the defendants’ agents as to the proper course to pursue; and that the information finally led to the apprehension of the thieves. One of them, Baker, was arrested in Ironwood, which is in plaintiff’s own county; and a portion of the money, amounting to about $1,400, was recovered of him. He was taken to Wisconsin for trial, and, on the trial, both he and Perrin, the cashier of the bank, who had been arrested in Wisconsin, were convicted. It does not appear whether any of the money other than the $3,400 found with Baker in Ironwood was recovered. The plaintiff was at this time sheriff of Gogebic county. On the trial plaintiff recovered a verdict of §1,500, and defendants bring error. The assignments of error are numerous, but may be disposed of by dealing with three questions; the first relating to the sufficiency of the bill of particulars, the second to the admissibility of the testimony offered to prove the value of the services, and the third to the charge of the court to the jury.

We think the bill of particulars was sufficient, and fairly apprised the defendants of the case which they were expected to meet. It sets out the employment, that the plaintiff’s advice and opinion were asked, and states various occasions of meetings between plaintiff and Byrne, defendants’ representative, and states that advice and information were given them. It also states that, under the employment, he was not to be paid by the day or week or month, but was to be paid the value of his services, advice, and information. The particulars of the employment were sufficiently stated, and the services were detailed with reasonable particularity. W'e do not think the objections urged under this head should have prevailed.

It is insisted that the services for which plaintiff was permitted to recover related to or at least included efforts to apprehend Baker, who, by taken the stolen money into .Michigan, was guilty of an offense against the laws of this State, and that it is against public policy to ’admit of a recovery for such services by the sheriff, whose duty it is to apprehend offenders against the law. It is clear that Baker is guilty of an offense against the laws of Michigan. See How. Stat. § 9177; People v. Williams, 24 Mich. 156; Com. v. White, 123 Mass. 430. We also think it against public policy for the sheriff to receive compensation from private parties for services rendered in the apprehension of a felon in his own county. How. Stat. § 9035; Wilcoxson v. Andrews, 66 Mich. 553. It is evident that the circuit judge recognized this rule of law, but it is insisted that he failed to make it clear to the jury in his charge, and was in error in omitting to give an instruction asked by the defendants. In that regard the court charged the jury that it was the duty of Mr. Foley at that time, when acting as sheriff of Gogebic county, to perform any services in reference to any crime committed in Gogebic county free of charge. He did not in his charge define to the jury what would constitute an offense in Gogebic county, and failed to give the defendants’ third request, which reads as follows:

“It was the duty of the plaintiff, a sheriff of Gogebic county, to furnish all the information in his power touching any offense in Gogebic county, or any crimes or stolen property therein, and, for any information as to such matters furnished to Col. Byrne, the plaintiff cannot recover, even if defendants had promised to pay him for such advice and information.”

As applied to the facts of this case, this instruction embodied the law, and should have been given; and, the subject not having been covered by the general charge, the failure to give this instruction is reversible error.

Complaint is also made of the plaintiff’s having been permitted to testify to the value of his services. He was asked, as a preliminary question, “Do you know what the value of such services as you have testified to is?” This was objected to as incompetent and immaterial, no proper foundation having been laid. The objection was overruled, and he then answered that he did. He was then asked, “What is that value?” and replied, “Well, from the information that I gave, leading to the arrest of Baker, and the money that had been found on him ($1,200 or $1,500), which led to the arrest of other parties, my services ought to have been worth $2,000.” He was then asked, in effect, if he meant to limit this to the instructions or advice that had been testified to, and stated that he did.

It is undoubtedly a general rule that a party who renders services is a competent witness to testify as to their value. This results from the fact that, it being in the line of business of the witness, there is a fair inference that he is acquainted with the value of services of that character; and we think, under the general statement of this witness that he was acquainted with the value of such services, that it was competent for him to' express his opinion. It is true that the cross-examination in this case developed the fact that the plaintiff’s acquaintance with the value of such services was based upon a meager experience, which, doubtless, very materially affected the weight of the testimony which he gave upon direct examination.

In view of a new trial, it is proper to say that, in the absence of some customary standard of charges or proof of such standard, it would not be competent for a witness to base his judgment as to the value of his sendees upon the fact that specific rewards may have been from time to time offered in cases corresponding to a greater or less extent with the case under consideration. If that were the only basis, some different standard should be adopted; as, for instance, a reasonable per diem. In other words, the officer is not justified in fixing peremptorily his own charges, in a case of this kind, after the event; nor is it a case for addition and division. From the record as it is presented to us, it would appear that the jury did not discriminate very closely in fixing the value of the plaintiff’s services at the sum which was included in the verdict, and, if the question were properly before us, we should hesitate about permitting a verdict for this amount to stand in such case.

For the error pointed out, the judgment will be reversed, and a new trial ordered.

The other Justices concurred.


text:
    Henry Kimmerle v. The Dowagiac Manufacturing Company et al.

      Receiver — Corporation acting as — Compensation.
    1. Soon after the apx>ointment of a receiver, a settlement of the subject-matter of the suit was effected by the parties in interest, and it was stipulated between the complainant and three of the defendants that the complainant should pay one-half of the taxable fees, costs, and expenses of (the receiver, and that the other half should be paid by the defendants. On appeal from an order of allowance made to the receiver, the three defendants contended that the appointment of the receiver was irregular, and that, therefore, no compensation should be allowed. And it is held that the stipulation recognized the acts of the receiver, and assumed that compensation should be made to it, which is inconsistent with said claim.
    2. The contention of the defendants that the receiver is not entitled to charge in its account for attorney’s fees, for the reason that the expense was incurred in attempting to maintain the appointment, which appointment was irregular, is for the same reason untenable.
    8. It cannot be contemplated that, by the appointment of a corporation as receiver, the duties may be devolved upon a responsible individual as the agent of the corporation, and his compensation be added to the proper charge for the services.

      4. If, for its convenience, a corporation, which has been appointed receiver, sees fit to employ an agent to perform such functions as would generally be performed by the receiver himself, it must bear the expense.
    Appeal from Cass. (Coolidge, J.)
    Submitted on briefs May 9, 1895.
    Decided June 4, 1895.
    Petition of tbe Michigan Trust Company for compensation as receiver of defendant company. The receiver and certain of defendants appeal.
    Affirmed.
    The facts are •stated in the opinion.

      George S. Clapp (Thomas F. McGarry and George E. Nichols, of counsel), for the receiver.

      Epafford Tryon and Marshall L. Howell, for defendants.
   Montgomery, J.

This is an appeal from an order of allowance made to the Michigan Trust Company as receiver. After the cause had been pending about a month and a half, a settlement was effected by the parties in interest, the complainant assigning the stock which he held in the company to defendants Lyle, and it was stipulated and agreed as follows:

.“The said Henry Kimmerle shall pay one-half of all taxable costs, including sheriff’s fees and clerk’s fees, and also one-half of the taxable fees, costs, and expenses of the receiver, the Michigan Trust Company, appointed by the circuit judge, Thomas O’Hara, and the said C. Eugene Lyle, Nelson F. Choate, and Frank W. Lyle agree to and with the said Henry Kimmerle to pay the other half of said above-named costs, expenses, and charges.”

The defendants Lyle and Choate contend that the ' appointment of a receiver was irregular, and that, therefore, no compensation should be allowed. We think it is evident that one of the purposes of the settlement was to withdraw this question from further litigation, and this was the effect of the stipulation. Furthermore, the stipulation recognized the acts of the receiver, and assumed that compensation should be made to it. This is wholly inconsistent with the claim now made. The receiver would certainly be equitably entitled to demand compensation as against the complainant, who moved in its appointment, and the defendants, by their stipulation, have undertaken to share the expense.

It is further contended that the receiver it not entitled to charge its account for attorney’s fees, for the reason that the expense was incurred in attempting to maintain its appointment, which appointment was irregular. But, on similar grounds, we think this was likewise a proper charge. See High, Bee. § 805, and Cowdrey v. Railroad Co., 1 Woods, 331.

The Receiver has also appealed from the allowance as insufficient, claiming.that a greater sum should have been awarded. The award for services performed through itself and its agent, H. M. Hinsdill, was $700, covering a period of about one.and one-half months. We are.not disposed to disturb this award. While the property involved was considerable, and the bond required large, and the responsibility correspondingly great, yet we think the amount fixed by the circuit judge adequate. The; theory of the receiver seems to be that an allowance should be made for the services of Mr. Hinsdill as expenses, and that the company should be allowed full compensation in addition thereto. It cannot be contemplated, however, that, by the appointment of a corporation as receiver, the duties may be devolved upon a responsible individual as the agent of the corporation, and the compensation. of the agent be added to the proper charge for the services. If, for its convenience, the corporation sees fit to employ an agent to perform such functions as would generally be performed by the receiver himself, it must itself bear the expense.

On the whole, we think the. allowance was neither unreasonable nor inadequate, and the order of the court below will be affirmed. No costs will be allowed on either appeal.

The other Justices concurred.


author: McGrath, C. J.

text:
    Frank Cohnen v. Chauncey M. Sweenie, Receiver, Garnishee Defendant, and Judson H. Black, Principal Defendant.

      Garnishment — Receivers.
    1. Á receiver is not a public officer, under How. Stat. § 8096, Which provides that no person shall be adjudged a garnishee “ by reason of any money in his hands as a public officer, for which he is accountable, merely as such officer, to the principal defendant.”
    2. Leave was granted a judgment creditor to garnish a receiver appointed at the instance of a second chattel mortgagee. The receiver answered that, at the time of the service of the writ 'of garnishment, he was in possession of the mortgaged property; that since such service he had, from the sale of certain of the property and the collection of certain debts due the principal defendant, satisfied both mortgages, as also the expenses of the receivership, and that a surplus remained in his hands. And it is held that How. Stat. § 8065, which provides that “if it shall appear that the garnishee had in his possession any personal property of the principal defendant, and that the same is subject to any pledge, lien, or mortgage, and at the time of the disclosure has not been sold by the garnishee, the same shall be delivered by the garnishee to the commissioner or receiver, if the commissioner or judge so order, to be by him disposed of under the direction of the court, if a greater amount than the incumbrance can be obtained thei'etfor, and, after paying the amount of such incumbrance, the balance is to be applied to the liquidation of the plaintiff’s claim,” contemplates that surplus in the hands of a lienor may be reached by process of garnishment; that if, in the discretion of the court, justice requires leave to garnish a receiver holding at the instance of the mortgagee, there is no substantial reason why it may not be granted; and a judgment in favor of the plaintiff is affirmed.
    Error to Wayne. (Hosmer, J.)
    Argued May 9, 1895.
    Decided June 4, 1895.

      Garnishment proceedings. Garnishee defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Dickinson, Thurber & Stevenson, for appellant.

      Edward A. Barnes, for the creditors of the principal defendant.

      Bowen, Douglas & WMtmg, for plaintiff.
   McGrath, C. J.

The garnishee defendant was, at the instance of a second chattel mortgagee, appointed by the court as receiver, and under the order of the court took possession of the mortgaged stock, with directions to convert the same into money, and protect the interests of the mortgagees. Plaintiff, having recovered a judgment against the principal defendant, filed a petition in the court appointing the receiver, setting forth, among other things, that the properly in the hands of the receiver was largely in excess of the debts secured by the mortgages referred to, and asked leave to garnish the receiver, which was granted. The receiver disclosed—

“That at the time of the service of the writ of garnishment herein upon him he was in the possession of certain property and assets of J. H. Black & Co., that came into his hands as receiver in the proceedings instituted by Judge Bros, to foreclose a chattel mortgage upon such assets; that since the service of such writ upon him he has converted certain of the property received by him as such receiver into money by sale thereof under the order of the circuit court for the county of Wayne, in chancery, in. the proceedings in which he was appointed receiver, and has made collection of other sums of money due said J. H. Black & Go. on accounts and bills receivable, received in the same manner; that in pursuance of the orders of said court in chancery he has paid and discharged all the claims secured by the two mortgages executed by said J. H. Black upon the property and assets as aforesaid, which were executed prior to the service of said writ of garnishment upon him, as well as certain expenses incurred in conection with the said receivership, paid by the authority of said court in chancery; that after the payment of such claims and expenses there was a balance remaining in his hands, which at this date amounts to $5,163.37.”

An issue was framed, a trial had, and plaintiff had judgment.

It is insisted by counsel for defendant:

“1. The garnishment statute does not apply to property in the hands of a receiver, and a court of.chancery cannot give a greater scope to the statute than has the Legislature.
“2. The receiver, being a public officer, is by' express provision excluded from the scope of garnishment statutes.
"3. Aside from their character as equitable, and not legal, rights, the rights and interests of Black in this property at the time of garnishment were not specific or liquidated, and therefore not gamishable.
“4. Since the property in the hands of the receiver is under the control of the court for the purpose of securing an equitable distribution and preventing unseemly scrambles, and the only effect of garnishment here would be the securing of an undeserved preference by one credit- or over others, equity will not permit that such a garnishment of its receiver should be allowed, or that the court of chancery should surrender its control, and' become a litigant in a court of law for the fund.”

A receiver is not a public officer, under How. Stat. § S096. In Voorhees v. Sessions, 34 Mich. 99, the fund was' in the hands of the clerk of the court, as register in chancery. Tremper v. Brooks, 40 Mich. 333, was a case where a receiver had been garnished, and the Court say that the cases are substantially uniform in holding that a receiver cannot be garnished without leave of the court. The case of Voorhees v. Sessions is referred to, but the Court do not intimate that the receiver is a public officer under the statute, but say that the equitable doctrine against interfering with receivers is quite as broad as the statute, and rests on the same policy. The equitable rule is that a receiver cannot be sued without leave of court first obtained. In the present case, there had been no assignment of the property for the benefit of creditors. The receiver was appointed at the instance of a mortgagee. No proceedings had been taken on behalf of creditors to secure a distribution of the surplus. The court granted leave upon a showing that the property in possession of the receiver was largely in excess of the claims secured by the mortgages. The appointment of the receiver had divested unsecured creditors of the right to proceed against such surplus. The statute (How. Stat. § 8065) expressly provides that—

“If it shall appear that the garnishee had in his possession any personal property of the principal defendant, and that the same is subject to any pledge, lien, or mortgage, and at the time of the disclosure has not been sold by the garnishee, the same shall be delivered by the garnishee to the commissioner or receiver, if the commissioner or judge so order, to be by him disposed of. under the direction of the court, if a greater amount than the incumbrance can be obtained therefor, and, after paying the amount of such incumbrance, the balance is to be applied to the liquidation of the plaintiff’s claim.”

The statute elsewhere (How. Stat. § 8059) provides that such garnishee shall be liable on any contingent right or claim against him in favor of the principal defendant. Prior to the appointment of the receiver, the surplus in the hands of the mortgagee was, under the statute, subject to garnishment proceedings, although the amount was unliquidated, and the liability of the holder thereof, in a sense, contingent; and it cannot be said that, because the property has, at the instance of the mortgagee, ¡reached the hands of a -receiver, it is not still subject, with the consent of the court, to garnishment proceedings. The custody of the receiver is, it is true, the custody of the court, but the court may allow replevin to be brought by a third party to- test the title to any of the property held by the receiver, and it may with equal propriety permit proceedings in garnishment to be instituted to reach any surplus remaining after the satisfaction of the lien. The statute contemplates that surplus in the hands of a lienor may be reached by process in garnisbment, and if, in tbe discretion of the court, justice requires leave to garnish a receiver holding at the instance of the mortgagee, there is no substantial reason why it may not be granted. . . .

The judgment is affirmed.

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


text:
    Mary E. Ward and George B. Ward v. Henry T. Munson, Administrator, etc.

      Mortgage foreelosure — Presumption of payment — Estoppel.
    1. In a suit to remove the cloud upon complainants’ title to one of several mortgaged lots, caused by the record of the mortgage, the administrator -of the estate of the mortgagee, in his answer, claimed the benefit of a cross-bill, and prayed for a decree of foreelosure of the mortgage. On the hearing the mortgage, which contained • a stipulation, for the release of the lots as sold by the mortgagor, was put in evidence. Several of the lots had been sold, and the indorsements upon tlie mortgage related to said lots, and the balance of the mortgage debt was claimed by the defendant to be a lien upon complainants’ lot. Tlie mortgage bond was not produced, and the counsel for the defendant stated to the court that it was lost. And it is held that the law would presume, in the absence of proof to the contrary by the production of the bond, or other evidence repelling such presumption if the bond could not be produced, that the debt was paid when due; citing Bailey v. Gould, Walk. Ch. 478; Bassett v. Hathaway, 9 Mich. 28; George v. Ludlow, 66 Id. 176.
    2. The non-production of the bond was not sufficiently explained by the testimony of one of the counsel for the defendant administrator that the witness advised said administrator, as also the executor in his lifetime, and his son after his death, to make a search for. the bond, it not appearing that such search was ever made.
    3. The deed to the person through whom complainants derived their title was a full warranty deed, except as against the mortgage sought to be foreclosed, which was excepted from the operation of the covenants of warranty. The grantee and his family occupied the premises under said deed up to the time of his death, a period of 16 years, after which, and up to the time of the commencement of suit, complainants remained in actual and open possession. No proof was offered to show that the grantee, or any of his family, were ever called upon, during all of that time, to pay said mortgage. And it is held that, while the exception in the deed was evidence that the mortgage was not paid at the time the deed was executed, and that the grantee took the property subject to it, yet, taken in connection with the facts above stated, the presumption of payment of the mortgage arising from the non-production of the bond was not rebutted.
    4. Negotiations were had during the lifetime of the grantee for a compromise of the claim under the mortgage, and at one time the parties agreed upon the amount to be paid when the proper papers were executed, but did not agree upon what the nature of the papers should be, the grantee or his wife, one of the complainants, insisting that an administrator de toms non should be appointed, and a conveyance-made by him. Such administrator was appointed, and a contention then arose over the question of costs of those proceedings, the grantee and his wife refusing to pay the same, and the negotiations came to an end. And it is held that they ■had a right to buy their peace, and that complainants’ rights-are not affected by such incomplete negotiations.
    Appeal from Kent. (Grove, J.)
    Submitted on briefs May 9, 1895.
    Decided June 4, 1895.
    Bill to remove a cloud from complainant’s land. Defendant appeals.
    Decree affirmed.
    The facts are-stated in the opinion.

      Albert Grane, for complainants.

      Sweet, Perlcins & Judlcins, for defendant.
   Long, J.

Complainants filed this hill to remove a cloud from the title to lot 5, block 6, of Lewis Porter’s addition to the city of Grand Rapids. The claimed cloud upon the title is a mortgage executed by Leander A. Forward to Lewis Porter on June 29, 1870, and recorded July 1, 1870. It appears that Forward, at the time of the execution of this mortgage, was the owner of the lot in question. The title to the lot came to the complainants through several mesne conveyances.

It is claimed:

1. That this mortgage has been paid.

2. That it is barred by the statute of limitations.

January 11, 1881, Lewis Porter died. His executors filed an inventory of his estate, but this mortgage was not included. The mortgage, it is claimed, was subsequently discovered among his papers, and application was made to the probate court of Kent county for the appointment of an administrator cZe bonis non. This order was made on May 8, 1893, appointing the defendant. Claim was then made for the payment of the mortgage, and attempts were made to obtain a settlement. Upon the filing of the bill the defendant answered, and claimed the benefit of a cross-bill, asking a decree of foreclosure of the mortgage. The case was heard in open court, and a decree entered, finding that the mortgage had been paid, and directing its discharge of record, with costs to complainants.

We think but two questions need be discussed.

It appears that Forward deeded this lot to Linsley on October 2,1873, and on August 24, 1877, Alfred Ward, the husband of complainant Mary E. Ward, purchased and went into possession.' From that time forward he lived there, until his death, in June, 1893. His wife and children still occupy the premises. Mrs. Ward testifies that they paid $2,000 for the lot, and at the time of the purchase she heard nothing about the mortgage, and she says she does not think any deduction was made from the purchase money by reason of it. The mortgagee, Lewis Porter, resided in the state of New- York, and, so far as the record shows, no claim was made under the mortgage by him, and no claim was made under it until about the year 1891. The mortgage was to become due in five years from its date, according to a certain bond of even date, executed by Forward to Porter. The defendant sets up in his answer that the mortgage was a subsisting lien, but that it had been mislaid, and “that this defandant did not know of its existence until on or about the 2d day of April, 1891, when he accidentally discovered the same among certain papers belonging to the estate of said Lewis Porter.” There is no allegation in the answer or cross-bill that the bond to which the mortgage is collateral was ever in the possession of the defendant, or that it had been lost or destroyed by accident. On the hearing the original mortgage was put in evidence. It did not show any of the principal or interest paid, so far as the complainants’ lot is concerned. The mortgage was originally given for $1,750, and covered several' lots; and by a stipulation in the mortgage it was to be released as the lots were sold. Several lots were sold, and the indorsements upon the mortgage relate to those sold. It was claimed that the remainder of the mortgage of' $350 and interest from date was a lien upon the complainants’ lot. When the mortgage was put in evidence, the court asked about the bond, and counsel for defendant stated, “The bond is lost.” It was not produced upon the trial.

It appeared that Mr. Porter, the mortgagee, was dead. His administrator de bonis non lived out of the State. Mr. Blair, one of. the executors under the will, who resided in his lifetime at Grand Kapids, was dead. The • only proof of the loss of the bond was that of Mr. Sweet, one of the defendant’s counsel, who testified:

“I might say in regard to the bond that I caused a search to be made by Mr. Munson, and also Mr. Blair, and since his death by Charles Blair, for the bond, and have not been able to find it among any of Mr.. Porter’s papers, or anywhere; and this mortgage was only found after the estate had.been closed.”

This was not a sufficient explanation of the reason! for the non-production of the bond. The defendant was asserting the mortgage as a valid lien upon the premises. The law would not raise a presumption of non-payment, but of payment when due, unless the contrary was shown by the production of the bond, or other evidence repelling the presumption of law when the bond could not bé produced. Bailey v. Gould, Walk. Ch. 478. In Bassett v. Hathaway, 9 Mich. 28, the bill was filed to restrain the foreclosure of a mortgage. The notes were not produced, and it was said:

“It was held in Bailey v. Gould, Walk. Ch. 478, that, unless the note accompanying *a mortgage is produced or accounted for, it must be presumed paid as against the party setting up the mortgage. This is in accordance with Well-settled principles. In the case now before ns, the notes are not produced, and we aré entirely without evidence either of their existence or ownership at the present time.”

In George v. Ludlow, 66 Mich. 176, the cases of Bailey v. Gould and Bassett v. Hathaway were referred to, and approved. It was further said:

“For aught that appears in this case, Mr. Pearl might have receipted payment of the notes and mortgage before he died, and, if they were produced, might be found to furnish the evidence establishing the fact. * * * A decree will not be made on the foreclosure of a mortgage without producing the securities, unless their absence is accounted for by clear and conclusive proof.”

In Bergen v. Urbahn, 83 N. Y. 49, the action was to foreclose a mortgage. Upon the hearing the plaintiff did not produce the bond, nor account for its non-production. It was said: The case “is subject to the rule which makes the non-production of the bond referred to in the mortgage evidence of the non-existence or discharge of the mortgage debt, and when unexplained, is conclusive against the plaintiff’s right to recover.” See, also, Buckmaster v. Kelley, 15 Fla. 180; Butler v. Washington, 28 S. C. 607; and Field v. Anderson, 55 Ark. 546, where the same doctrine is laid down.

Mr. Sweet’s testimony only goes to the extent of .showing that he advised Mr. Munson and the Blairs to make search. Whether they did or did not does not appear. Mr. Munson lives in the state of New York. He was one of the executors under the will of the mortgagee. Mr. Forward, the mortgagor, is not produced, and the case utterly fails to show that the bond was lost, or whether it had been paid and delivered up to Forward, who executed it. Aside from these considerations, there is a strong presumption of payment arising out of the facts that Lewis Porter, in his lifetime, never, so far as shown by this record, called upon Mr. Ward for payment, and the lapse of time after the mortgage became due to the date when it was found among Mr. Porter’s papers, as well as the fact that the mortgage was not mentioned in the inventory of the property of the estate of Mr. Porter.

Counsel for defendant contended that, inasmuch as the deed from Allen J. Porter to Mr. Ward contained the exception that the premises were “free from all incumbrances whatever, except a certain mortgage executed by L. A. Forward to Lewis Porter, and that he will, and his heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever, except as against the above-mentioned mortgage,” therefore no presumption of payment arises. It would be evidence that the mortgage was not paid.at that time, and .that Ward took the property subject to it; but that deed is dated in August, 1877, and Alfred Ward and his family have been in actual and open possession of the premises ever since, and yet no proof is offered to show that Ward, or any of his family, were ever called upon to pay it during those years. These facts would not rebut the presumption of payment of the mortgage which arises from the non-production of the bond.

Contention is made that the mortgage was recognized as a subsisting lien by Mr. Ward and by Mrs. Ward after it was found. It appears that an eifort was made to compromise the matter, and at one time there seems to have been an agreement upon the amount to be "paid when the proper papers were executed; but the parties did not agree upon what the nature of the papers should be. Complainant or Mr. Ward insisted that an administrator de bonis non should be appointed, and a conveyance made by him. Such administrator was appointed, and a contention then arose over the question of qosts of those proceedings. The Wards refused to pay those expenses, and negotiations came to an end. There is nothing in the record showing that in those negotiations the Wards recognized the mortgage as a subsisting lien. They had a right to buy their peace.

It becomes unnecessary to discuss the question of the statute of limitations.

We think the court below properly held the mortgage paid, and that decree will be affirmed, with costs.

The other Justices concurred.


author: McGrath, C.. J:

text:
    Albert L. Brown and William J. Riley v. The Pontiac Mining Company et al. Same v. The Mesnard Mining Company et al. Same v. Jay A. Hubbell, Circuit Judge of Houghton County (two cases).

      Corporations — Bill to wind up affairs — Equity jurisdiction — Affidavit to bill — Amendment—Mandamus.
    1. The objection that Act No. 262, Daws of 1889, which provides for the winding up of mining and manufacturing corporations whose charters have expired by proceedings in the equity court, is unconstitutional in that it does not make all stockholders necessary parties to said proceedings, and contains no sufficient provision for notice to them, is not tenable, the proceedings being in behalf of all stockholders, and the statute contemplating that in their course the general powers of the court may be exercised when required to supplement 'the statutory procedure.
    2. Said proceedings are not purely statutory in the sense that a suit in attachment or summary proceedings to recover the possession of land are. . -
    3. The averment in a bill filed under said .act, that complainants are stockholders-of the'defendant corporation, does not conclude the court or the defendants, but is open to inquiry in the course of ■ the proceedings, and the alleged fact must be proven at the hearing.
    4. On demurrer to a bill filed under said statute, the circuit judge held'.'that, inasmuch as the affidavit verifying the bill was made two months before the bill was filed, it- did not affirmatively . appear that complainants, were stockholders when the bill was filed, that the defect was jurisdictional, and dismissed the bill. And it is held that the court had jurisdiction-of the subject-matter independently of the statute; that the bill contained the necessary averments; that to support the decree proof at the hearing of complainants’ interest was requisite; that the defect was not jurisdictional, and an amendment should have been allowed.
    5. Mandamus will lie to vacate the order dismissing the bill, and to compel the circuit judge to proceed with the case; citing People v. Swift, 59 Mich. 529; Brown v. Circuit Judge, 75 Id. 274.

      Mandamus.

    Argued April 4, 1895.
    Granted July 2, 1895.
    Relators applied for mandamus to compel' respondent to vacate an order sustaining a demurrer to a'bill in chancery. The facts are stated in the opinion.

      Ghadbourne é Bees, for relators.

      A. B, . Gray (Thomas H. Talbot, of counsel), for respondent. ; .' .' . ■ '
   McGrath, C.. J:

Bills were filed in the first two; cases September 27, 1893, under chapter 124a, '3 How. ‘Stat, p. 3397, to wind up the affairs and distribute the assets of the defendant corporations. The bills were verified by-affidavits dated July 22, 1893. Defendants Watson and Ashley entered their appearance in February, 1894, and afterwards demurred in each case, setting forth:

“1. That the said bill is not verified as required by law.
“2. That the proceedings taken in said cause and the relief prayed for in said bill áre mot warranted or authorized by law. .
“3. That the complainants have not, in and by their said bill, made or stated such a case as entitle® them, in a court of equity, to the relief therein prayed for.
“4. That it appears by the said bill that there are divers other persons who are necessary parties to the said bill, but who are not made parties thereto.”

The circuit judge held that, inasmuch as the affidavits were made long before the filing of the bills, it did not affirmatively appear that complainants were stockholders when the bills were filed; that the defect was jurisdictional; and dismissed tire bills. Complainants have appealed in both cases, and having some doubt as to whether an appeal lies, under Cady v. Manufacturing Co., 48 Mich. 133, have also obtained in each case an order to show cause why a mandamus should not issue compelling the circuit judge to vacate the order dismissing the bill and proceed with the cause.

The chapter under which the proceedings are brought has been since amended, expressly providing for an appeal, hence it is unnecessary to discuss the" question as to the proper mode of bringing the cases here. If it be urged that an appeal did not lie, then the rule laid down in People v. Swift, 59 Mich. 529, viz., that where an inferior court has refused to entertain jurisdiction on a matter preliminary to a hearing on the merits mandamus is an appropriate remedy, is applicable. This is not an application to review an order made .in the course of a proceeding, but rather for an order compelling the court to act. See Brown v. Circuit Judge, 75 Mich. 274.

The statute (3 How. Stat. § 4161d9) provides that to such bill shall also be annexed an affidavit of the complainant that the facts stated in the bill are true. It is not claimed that the averments in the bill are not ample. We are cited in support of the judgment to the holdings in the attachment cases, and to Bryan v. Smith, 10 Mich. 229; Ayres v. Gartner, 90 Id. 380; and N. Y. Baptist Union v. Atwell, 95 Id. 239. Attachment proceedings and summary proceedings to recover possession of lands are special and purely statutory. In Bryan v. Smith the complaint did not contain the essential averment that at the time of the commencement of the proceedings complainant was entitled to the possession of the premises. In Ayres v. Gartner it is true that it was said that the statutory requirement was mandatory, but express reference was made to the fact that a motion to dismiss had been made, an opportunity had been given to apply for leave to amend, and no request therefor had been had. In Harrison v. Harrison, 94 Mich. 559, however, it was held that the affidavit might be amended, and the case was remanded for that purpose. See, also, Holcomb v. Holcomb, 100 Mich. 421.

How. Stat. § 6824, provides that in all cases non-resident plaintiffs in justices’- courts shall give security for costs before process shall issue. Section 7296 provides that all original writs in which plaintiff is a non-resident shall, before service, be indorsed by a resident, who shall be liable for costs. As early as the case of Parks v. Goodwin, 1 Doug. 56, it was held that a writ of summons returnable before a justice would not be set asida, because of the omission of plaintiff, a non-resident, to give security for costs, provided that such security be given before a motion to set aside the writ is granted.

The court in the present case is not one of special or limited jurisdiction. The bill of complaint averred that complainants were stockholders. That averment did not conclude the court or defendants, but was open to inquiry in the course of the proceeding, and was a fact to be proven at the hearing. Nor do we think that the proceeding is a purely statutory one, in the sense that a suit in attachment or a summary proceeding to recover the possession of land is. The question of the power of a court of equity to dissolve a corporation is not involved. The bill is filed to distribute the. assets of a corporation chartered to exist during a limited period of time, which has expired. In such case the corporation is dissolved, with all the consequences of a dissolution by any other mode. Field, Corp. § 481; 2 Mor. Priv. Corp. § 1005; Ang. & A. Corp. § 778; People v. Walker, 17 N. Y. 502; Bank v. Wrenn, 3 Smedes & M. 791; Railroad Co. v. Rainey, 7 Cold. 432; Wilson v. Tesson, 12 Ind. 285; Bank v. Trimble, 6 B. Mon. 601; Asheville Division No. 15, Sons of Temperance, v. Aston, 92 N. C. 578. The franchise having expired, the lawful existence of the corporation ceased, and could not be continued. 2 Mor. Priv. Corp. § 1005. Upon the dissolution of the corporation the corporate property must first be applied to the payment of the debts of the corporation, and the remainder is to be distributed among the stockholders, and a stockholder may file a bill to effect such distribution. 1 Cook, Stock, Stockh. & Corp. Law, § 641. The court in.the present case had jurisdiction of the subject matter independently of the statute. The bill contained the necessary averments, and to support the decree proof at the hearing of complainants’ interest was requisite. In such case the defect is not jurisdictional, and an amendment should have been allowed. 1 Enc. PI. & Prac. 472, 511.

It is, however, urged that the statute under which these proceedings are instituted is unconstitutional in that it does not make all stockholders necessary parties to the bill, and contains no sufficient provision for notice to them. The proceeding is, however, one in behalf of all stockholders. The statute requires all other persons interested to he made defendants. Upon filing the bill an order is to be made reciting the filing of the bill, by and against whom filed, and its purpose. Notice of the contents of such order is to be published once in each week, and subpoenas are to be issued to all persons who are made defendants. The statute then expressly provides that proceedings subsequent to the filing of the bill, the publication of notice, and the issue of subpoenas shall be according to the usual course of procedure in Chancery cases. An order for the appearance of unknown defendants is provided for, and subsequent proceedings respecting them are to be in conformity with the statute-relating to non-resident defendants. Upon application for the appointment of a trustee an order to show cause is to be made, and published once in each week for three successive weeks. A hearing is provided for, and, upon Ms appointment, the trustee is required to give such security as the court may direct. The trustee is required to give notice of his appointment, and tMs notice is required to be published once in each week for three successive weeks. The trustee is empowered to take possession of the corporate property and to dispose of the same, but sales of real estate must be made in the manner prescribed by law for the sale of real estate in chancery foreclosures, and personal property is to be sold in such manner as the court shall direct. The power of distribution is not lodged with the trustee, but with the court, and the statute clearly contemplates that in the course of the proceedings the general powers of the court may be exercised when required to supplement the statutory procedure. The. statute is not open to the objections raised.

. The writs must therefore issue as prayed, and the records will be remanded accordingly, with costs to complainants.

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

       The decrees were made December 6, 1894, and Act No. 39, Laws of 1895, which provides for an appeal, took effect March 26, 1895.


text:
    Mary A. McDonald v. The Minneapolis, St. Paul & Sault Ste. Marie Railway Company.

      Bequests to charge — Estoppel—Weight of evidence — Bailroad companies — Action for hilling stock.

    1. By requesting the submission of a disputed question of fact to the jury, the party preferring the request estops himself from objecting that there was no evidence to establish said • fact.
    2. A request, in a suit against a railroad company for killing stock, for an instruction that the plaintiff ha® failed to show, by a preponderance of evidence, that the stock were killed by negligence of the defendant, or that plaintiff is entitled to recover therefor, and that plaintiff has failed to make out a case, wherefore the verdict should be for the defendant, is not sufficient to apprise the circuit judge that the defendant stood upon the claim that there was no evidence tending to sustain plaintiff’s case, and it is clearly without the province of the court to withdraw the case from the jury upon the claim that the preponderance of evidence was with the defendant.
    3. It was for the jury to say whether the positive testimony of a witness, that the bars used to close the opening through which the cattle were claimed to have gotten upon defendant’s track were up on the day the cattle were killed, should be accepted, in view of the fact that his testimony upon the question of the bars being up at other times during the summer was directly disputed by the testimony of other witnesses.
    Error to Schoolcraft. (Steere, J.)
    Argued April 5, 1895.
    Decided July 2, 1895.
    Case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      O. W. Dunton and E. C. Chapin, for appellant.

      Y. I. Hixson, for plaintiff.
   Montgomery, J.

Plaintiff recovered a verdict and judgment for the value of three young cattle killed on the track of defendant company on the 7th of September, 1893. The track was fenced except at .a point known as “St. Jacques’ Spur,” where cars were being loaded. At another place the fence was down, and at another place bars were kept. The court instructed the jury that if the cattle entered the spur the plaintiff could mot recover, and also that if the cattle came on the track at the opening called the “bars” the defendant would not be liable if its employés had examined the bars the day before at 4 o’clock in the afternoon and found them up in good order, and they were let down by some other person. The jury found, in answer to a special question, that- the cattle came into defendant’s right of way at the bars. It is now insisted by defendant that there was no evidence to show that the bars were down on the occasion when the cattle were said to .have gone upon the track.

It does mot appear that the record contains all the testimony in the case. Furthermore, it appears that - the defendant requested the court to charge the jury:

“If the cattle in question came on the track at or through the bars, the defendant would not be liable if they examined them the' day before at 4 o’clock and found them in good order, and they were let down by some other person; and in that case your verdict should be for the defendant.”

By this request the defendant sought to have this question submitted to the jury.

But it is said that defendant sought to' have the case taken from the jury wholly. The only manner in which this was done was by the first request of counsel, which reads as follows:

“In this cause the plaintiff has failed to show, by a preponderance of evidence, that the stock in question, was killed by the negligence of the defendant, or that she is entitled to recover therefor, and they have failed to make out a case, wherefore your verdict should be for the defendant.”

This request, certainly, was not sufficient to apprise the circuit judge that the defendant stood upon the claim that there was no evidence tending to sustain plaintiff’s case, and it is clearly without the province of the court to withdraw the ease from the jury upon the claim that the preponderance of evidence was with the defendant.

But, aside from this, I think the merits of the question are equally clear. It is true defendant called as a witness Mathew Brearley, its section foreman, who testified.as follows:

“It was my business to see that the fence was up along this place. I know where the bar-way was west of St. Jacques’ spur. I passed there between 4 and 5 o’clock on the evening of the 7th of September. I was walking at the time back from Manistique. The bars were up, and in good condition, — full up to the height of the fence. * * * Had been working for the defendant from May 2 until after the cattle were killed. I had passed the opening nearly every day during that time, and never saw the bars open but once, and that time.I closed them.”

On cross-examination he testified that he had been working on this section from the 2d of May and up to the time the cattle were killed, and passed there nearly every day. He was then asked:

“Are you willing to swear that these bars were ¡úót' down during that time?
“A. I never saw them down but once.
“Q. Only once?
“A. Only once that I am sure of.
“Q. Do you take particular notice of these things?
“A. I generally do.
“Q. And when you passed on the 5tb would you be willing to say they were not down?
“A. I would not be positive as to the date.
“Q. What would you do when you found them down?
' “A. Put them up.
“Q. And if you passed there on the 6th and saw them down you would be willing to swear you put them up?
“A. I don’t know; I may have passed them without putting them up.
“Q. You found the bars down on the 7th?
“A. They were not down when I was walking on the track.”

Plaintiff called as a witness Andrew McDonald, who testified that he had not seen the opening since the 8d of the month of September, but that he had passed the opening where the cattle were found a great many times during the summer, and never saw any bars up there until after the cattle were killed. Andrew Green, testified, in answer to questions, as follows:

“Q. What was the nature of the opening west of St. Jacques’ spur?
“A. There was an opening along there, and there had been a pair of bars put up there.
“Q. What can you say as to the bars being closed when you passed up and down there?
“A.' They were always open until after these cattle came on; that is, every time I noticed them.”

Lafayette England testified:

“I passed up and down there frequently during August and September, probably 50 times during the summer.
“Q. Did you ever see any bars up there in passing along there?
. “A. I never saw any bars up there; I have always found them down.
“Q. That is true of both places, east and west of the ■ spur?
“A. Yes, sir.”

And, further:

“You came down on the 6th and went back on the 7th?
“A. Yes, sir.
“Q. About what time were you through there on the 7th?
“A. About 1 o’clock.
“Q. And there were no bars up there then?
“A. No, sir.
“Q. The bars were in the same condition on the 6th . of September as they were on the 7th?
“A. Yes, sir”

I think it very clear that this testimony raised a question of fact for the jury. It is true the defendant’s witness testified that the bars were up at 4 o’clock on the 7th, but there is no testimony that there wa.s anybody whose duty it was to put them up after 1 o’clock on the 7th, when the witness England testifies that they were down. This testimony clearly tended to impeach the recollection or veracity of the witness Brearley. According to his testimony, the bars could not have been down, except on very rare occasions, whereas the other witnesses testified that the bars were left down constantly; and, on cross-examination, when asked if, if he passed there on the 6th and saw the bars down, he would be willing to swear that he put them up, he replied that he might have passed them without putting them up. In my judgment it was for the jury to say whether his positive testimony that they were up on the 7th should be accepted in view of the fact that his testimony upon this question of their being up at other times during the summer was so directly disputed by the testimony of other witnesses.

It is also contended that it is equally consistent from all the testimony that the cattle may have entered the spur, and that the def endant is not liable until it is clearly established at which point they entered. But upon this point the defendant’s witness Brearley testified that, he tracked the cattle from the bars to where they were killed, that he examined the tracks along by the spur to see whether there were any cattle tracks there, and that he saw no fresh tracks, no tracks that he could see plainly, that he knew from the tracks that the cattle came in from the bars, and was pretty sure of it, and that that is what he thought at the time.

It is also assigned as error that the circuit judge submitted to the jury the question of whether the cattle came upon the right of way at the place on the other side of the spur, or at the bars in question. This could not have damaged the defendant, as the jury found that the cattle came on at the bars, and, as we have pointed out, there is testimony to support this finding.

I think no error was committed in submitting this case to the jury, that the charge of the court fairly covered the law of the case, and that the judgment should be affirmed.

The other Justices concurred.