author: Montgomery,- J.

text:
    Theresa Berles v. Allen C. Adsit, Circuit Judge of Kent County.

      Husband and wife — Competency as witnesses — Garnishment.
    Under 3 How. Stat. § 7546, which provides that “a husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent,” except in certain cases, a wife, when garnished in a suit against her husband, cannot, without his consent, he examined as to transfers of property made to her by her husband.

      Mandamus.

    Argued October 23, 1894.
    Granted November 20, 1894.
    Belator applied for mandamus to compel respondent to set aside her default, entered in a garnishee suit because ■of her refusal to submit to an examination. The facts are stated in the opinion.

      Fletcher & Wanty, for relator.

      McQarry, McKnight & Judkins, for respondent;
   Montgomery,- J.

An action was commenced in the circuit court for the county of Kent by the Peninsular Stove Company, as plaintiff, against Joseph Berles. Garnishee proceedings were also instituted against TheresaBerles, the relator, who is the wife of Joseph Berles. Judgment was rendered against the principal defendant. The affidavit for a writ of garnishment set forth that the-garnishee defendant had property, money, goods, chattels,, and effects in her hands and under her control, belonging to the principal defendant, Joseph Berles, which she held by a conveyance or title that was void as to creditors of Joseph Berles; the proceedings being based upon 3 How. Stat. § 8091. Relator answered, denying liability. She-was thereupon cited to appear and submit to an examination before respondent. She appeared, and, it appearing that she was the wife of the principal defendant, the-attorney for her husband objected to her being examined in regard to the transfer of the property in question, on the ground that he, the husband, was a party to the action, and that her testimony would be against him, and therefore incompetent. The objection was overruled, and,, the relator declining to answer the questions, plaintiff entered her default for refusing to submit to an examination. The relator moved to set aside the default on the ground that she could not be compelled to submit to such examination. This motion was overruled, and the present application is made for an order requiring the circuit judge to set aside the default.

The question involved is whether, in a garnishee proceeding, the wife of the principal defendant may be examined as to transfers of property made to her by the husband.

3 How. Stat. § 7546, provides that “a husband shall' not be examined as a witness for or against his wife-without her consent, nor a wife for or against her husband without his consent,” except in certain cases not necessary to be stated here. Was the wife competent to testify in this proceeding as a witness for or against her husband? The proceeding is analogous to a judgment creditor’s bill in aid of execution; In De Farges v. Ryland, 87 Va. 404, it was held in such case'that the transferee, the wife, was not competent to testify against the objection of her husband. The same holding" was made in Niland v. Kalish, 37 Neb. 47. We are cited to Thompson v. Silvers, 59 Iowa, 670, which sustains the respondent’s contention. But we find the Iowa statute differs materially from ours. We think.the objection of the husband was valid, and should have been sustained.The writ will issue.

The other' Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    James Gardner v. Frank Hickock.

      Forcible entry and detainer — Complaint—Description of premises.

    1. In proceedings for forcible entry and detainer, the description of the premises must be sufficiently definite to enable the officer executing the writ to restore complainant to possession, and exclude the defendant therefrom.

    2. The complainant, claiming to have been forcibly excluded from the possession of a portion of a stable leased of the defendant, instituted proceedings for forcible entry and detainer. The premises were described in the complaint as “the following described lands and premises, situate in the village of Allegan, in said county, to wit: The first two stalls at the left of the entrance to the first floor, and standing room on that floor for a buggy, and the north half of the upstairs, of the third entrance, counting from the north side, to the building known as the ‘Eink Building,’ situate on the east side of Water street, in the village of Allegan, situate on, lots 232 and 233.” And it is held that the description is too indefinite to enable the officer executing the writ of restitution to restore complainant to possession, and exclude .the defendant therefrom; and that the only remedy open to the complainant is an action for breach of the lease. >
    Error to Allegan. (Padgham, J.)
    Argued October 24, 1894.
    Decided November 20, 1894.
    Forcible entry and detainer. Complainant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Fidus F. Fish and Hannibal Hart, for appellant.

      G. R. Wilkes, for defendant.

       See Clark v. Gage, 19 Mich. 507.

   Grant, J.

Defendant was the owner of a small stable, containing three standing stalls and two box stalls. He used it as a boarding stable, and also kept two horses of his own. On April 12, 1893, complainant made an agreement with defendant by which he was to keep his horse and buggy in the stable, paying $1.25 per month. Complainant claims that the agreement was for one year, while defendant claims that it was from month to month. At the end of six months, defendant notified complainant that he could use the stable no longer, and excluded him from its use. Complainant then instituted this suit before a circuit court commissioner to recover possession. The jury found against him before the commissioner, whereupon he appealed to the circuit court, where a verdict was directed in favor of the defendant.

The agreement was oral, and is stated by the complainant as follows:

“The bargain was that I was to have one stall until July, and have standing room for my buggy on the floor, and then I was to have half of the barn after July.”

He did not occupy any stall exclusively, nor was any part of the place set off to him for his buggy.

The reasons given by the court for its instruction were that, under complainant’s own evidence, the two were to occupy the premises substantially together; that complainant occupied different stalls in the barn; that the barn floor was to be occupied together; that complainant had the right to place his buggy upon the floor, while defendant had the right to remove it for other use when occasion required; that the stalls were occupied by different horses; that the space above was jointly occupied for keeping hay; and that each carried a key to the saipe door.

The case is not of sufficient importance to justify an extended statement of the evidence. The premises to which the complainant asks restitution are described in his complaint as follows:

“The following described lands and premises, situate in the village of Allegan, in said county, to wit: The first two stalls at the left of the entrance to the first floor, and standing room on that floor for a buggy, and the north half of the upstairs, of the third entrance, counting from the north side, to the building known as the ‘Eink Building,’ situate on the east side of Water street, in the village of Allegan, situate on lots 232 and 233.’’

In these proceedings the description must be so definite that the officer executing the writ must be able to restore complainant to possession, and exclude the defendant therefrom. It is apparent that this could not be done in the present case. It was not contemplated that the defendant should surrender to complainant the exclusive use cf any particular portion of the stable. The'only remedy •open to the complainant is an action for breach of contract. '

The instruction was correct, and the judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    The Flint & Pere Marquette Railroad Company v. The Board of State Auditors.
    [See 89- Mich. 481.]

      Costs against State — Interest—Board of State Auditors.

    1. The State is not liable for interest on demands under the general provision of the statute relating to interest; citing U. S. v. North Carolina, 136 U. S. 211; U. S. v. Sherman, 98 Id. 567; State v. Board of Public Works, 36 Ohio St. 409; Railroad Co. v. State, 14 L. R. A. 438.
    2. In suits between individuals, the prevailing party is entitled to interest upon the costs awarded in his favor from the date of the judgment or decree; citing Hayden v. Hefferan, 99 Mich. 262.
    3. How. Stat. § 8984, which provides that “in all civil suits and proceedings by or in the name of the people of this State, instituted by any officer duly authorized for that purpose, and not brought on the relation or for the use of any citizen or upon any penal statute, the people shall be liable for costs in the same cases, and to the same extent, as if such suit or proceeding were instituted by an individual,” and How. Stat. § 7756, which provides that “ every suit or proceeding in a civil cause, instituted in the name of the people of this State by any public officer duly authorized for that purpose, shall be subject to all the provisions of law respecting similar suits or proceedings when instituted by or in the name of any citizen, except where provision is or shall be otherwise expressly made by statute, and in such suits and proceedings the people of this State shall be liable to be nonsuited, and to have judgment of non pros, or of discontinuance entered against them, in the same cases, in like manner, and with the same effect as in suits brought by citizens, except that no execution shall issue thereon,” clearly evidence an intention to subject the State to precisely the same liability for costs, and for the incidents of a judgment, as an individual is subject to, with the single exception relating to the method of collecting the demand, and require the payment of the same sum in discharge of a judgment for costs as would be required to be paid by an individual.
    4. How. Stat. § 7757, which provides that, “whenever costs shall be adjudged against the people of this State in any civil suit •or proceeding instituted by any officer duly authorized for that purpose, it shall be the duty of the Auditor General to draw on the Treasurer for the amount thereof, upon the production of an authenticated copy of the record of judgment, or of the order adjudging such costs, with a taxed bill thereof, and upon the certificate of the Attorney General that such suit or proceeding was duly instituted as the law required,” does not require the auditing by the Board of State Auditors of an account based upon a judgment for costs rendered against the State, as a condition to the drawing by the Auditor General of a warrant upon the Treasurer for the amount of said costs.

      Mandamus.

    Argued October 25, 1894.
    Denied November 20, 1894.
    Relator applied for mandamus to compel respondent to allow its claim for interest on a judgment for costs against the State. The facts are stated in the opinion.

      William L. Webber, for relator.

      A. A. Ellis, Attorney General, for respondent.
   Montgomery, J.

The State, on relation of the Attorney General, Commenced suit in chancery against the relator for -the recovery of certain lands. On appeal to the Supreme Court of the State, the railroad company prevailed, and a decree was entered that defendant recover ■costs of both courts from the State.- 89 Mich. 481. This •order was made in December, 1891. ; Before the costs were finally taxed, an appeal was taken to the Supreme Court •of the United States on behalf of the State, which was, •on March 12, 1894, dismissed, and an order entered that •defendant recover costs in that Court. 152 U. S. 363. Relator filed its bill for costs with the Board of State Auditors, and claimed to recover interest upon the amount ■of costs awarded in the State court from the date of judgment, and upon the costs of the United States Supreme Court from the date of the judgment of that Court; the total charge for interest being $173.33. The' interest charged was disallowed, and mandamus is asked to compel the allowance of this item.

Some question is made as to whether, under the statute, the Board of State Auditors has any duty to perform in connection with the allowance of a claim for costs; but, as both parties desire an expression of the Court upon the merits, we do not pause to consider this question, except to refer to How. Stat. § 7.757s* to which further reference will be made hereafter.

The important question is whether relator is entitled te interest upon the judgment. It is conceded by counsel, and may be treated as settled by this Court in Hayden v. Hefferan, 99 Mich. 262, that in suits between individuals the prevailing party is entitled to interest upon the costs from the date of the judgment or decree. But it is contended by the Attorney General that the State is not liable for interest on demands under the general provision of the statute relating to interest, and in this contention he is supported by the uniform current of authority. U. S. v. North Carolina, 136 U. S. 211; U. S. v. Sherman, 98 Id. 567: State v. Board of Public Works, 36 Ohio St. 409; Railroad Co. v. State, 14 L. R. A. 438. But it is contended by relator that the statutes in this State relating to judgments against the State render the State liable for interest on cost's the same as in case of individuals.

How. Stat. § 8984, provides that—

“In all civil suits and proceedings by or in the name of the people of this State, instituted by any officer duly authorized for that purpose, and not brought on the relation or for the use of any citizen or upon any penal statute, the people shall be liable for costs in the same cases, and to the same extent, as if such suit or proceeding were instituted by an individual.”

Section 7756 provides that—

“ Every suit or proceeding in a civil cause, instituted in the name of the people of this State by any public officer duly authorized for that purpose, shall be subject to all the provisions of law respecting similar suits or proceedings when instituted by or in the 'name of any citizen, except where provision is or shall be otherwise expressly made by statute; and in such suits and proceedings the people of this State shall be liable to be nonsuited, and to have judgment of non pros, or of discontinuance entered against them, in the same cases, in like manner, and with the same effect as in suits brought by citizens, except that no execution shall .issue thereon."

The succeeding section (7757) provides that—

“Whenever costs shall be adjudged against the people of this State in any civil suit or proceeding instituted by any officer duly authorized for that purpose, it shall be the duty of the Auditor General to draw on the Treasurer for the amount thereof, upon the production of an authenticated copy of the record of judgment, or of the order adjudging such costs, with a taxed bill thereof, and upon the certificate of the Attorney General that such suit or proceeding was duly instituted as the law required."

These provisions are very broad, and, we think, clearly evidence an intention to subject the State to precisely the same liability for costs, and for the incidents of a judgment, as an individual is subject to, with the single exception relating to the method of collecting the demand.

In U. S. v. Sherman, 98 U. S. 565, the statute provided that in suits against, public officers, where recovery should be had in any such suit, and the court should certify that there was probable cause for the act done by the collector or other .officer, or that he acted under the directions of the Secretary of the Treasury or other proper officer of the government, no execution should issue against the collector or other officer, but the amount so recovered should, upon final judgment, be provided for and paid out of the proper appropriation from the treasury. It was held in that case that interest should not be allowed. But there was no federal statute considered which so broadly imposed upon the government the same obligations as those resting upon an individual; and, further, it was 'truly said in that case:

When the certificate is given, the claim of the plaintiff in the suit is practically converted into a claim against the government. But not until then. Before that time the government is under no obligation, and the Secretary of the Treasury is not at liberty, to pay. When the obligation arises, it is an obligation to pay the amount recovered; that is, the amount for which judgment has been given, The act of Congress says not a word about interest. Judgments, it is true, are by the law of South Carolina, as well as by federal legislation, declared to bear interest. Such legislation, however, has no application to the government. And the interest is no part of the .amount recovered."

We think the reasoning in this case would be conclusive were it not for the provisions above quoted from sections 8984, 7756. But while the word “interest" is not used in either of these sections, we think they are sufficiently broad to require the payment of the same sum in discharge ■of a judgment for costs as would be required to be paid by an individual.

Section 7757, above quoted, does not require the auditing of this account by the Board of State Auditors. It is made the duty of the Auditor General to draw his warrant upon the Treasurer for the amount of the costs.

It will be unnecessary to issue a writ in the present case.

The other Justices concurred.


text:
    Jacob Hanselman v. Andrew J. Dovel.

      Husband and wife — Competency as witnesses — Divorce—Adultery —Order of proof.

    1. In a suit by a husband for debauching and carnally knowing his wife, and thereby alienating and destroying her affection for him, brought after he has secured a divorce from her, the husband is not a competent witness to testify to the charge of adultery.
    2. The plaintiff sought to introduce in evidence an alleged conversation with the defendant, in which the matter of the frequency of the defendant’s calls upon the plaintiff’s wife was gone over, and in which he talked about said calls, and why they were made, and what he was doing there. It was admitted by plaintiff’s counsel that he did not expect to show that any admission was made at the conversation of criminal intimacy between defendant and plaintiff’s wife. The court sustained the objection of defendant’s counsel to the introduction of the conversation, unless it- was connected with something else to make it relevant. And it is held that the ruling simply went to the order of proof; that the offered testimony would hot, standing alone, hav.e been sufficient to warrant a verdict for the plaintiff; and that it cannot be said that the ruling was prejudicial.
    Error to Manistee. (McMahon, J.)
    Argned October 26, 1894.
    Decided November 20, 1894.
    Case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      George L. Hilliker, for appellant.

      A. V. McAlvay and Thomas' Smurthwaite, for defendant.
   Montgomery, J.

This is an action for criminal conversation. Verdict for defendant.

1. On the trial the plaintiff called a witness, one J. M. Ramsdell, who testified that' during 1893 he called upon plaintiff and his wife at their rooms, and between January and August of that year saw defendant there as often as once a week; that he had a conversation with defendant in regard to his calls there, once; thinks it was in the spring or early summer. He was then asked the following question:

“ State who began the conversation, and what was said.
“Mr. McAlvay: ¥e object to it as immaterial and irrelevant, and ask what is sought to be shown by it.
“Mr. Hilliker: We seek to show simply this: That Mr. Dovel came to see Mr. Ramsdell because Mr. Rams-dell, as Mr. Dovel said, had talked with Mrs. Hanselman about the effect of his calls there, and Mr. Dovel came there, protesting as to Mr. RamsdelFs interference with his calls. They had a conversation there, in which the matter of the frequency of his calls was gone over, in which he talked about his calls there, and why he went there, and what he was doing there; and we seek to bring that out, and about these very calls he was making down at this house.”

The court, after an examination of the declaration, said:

“The gist of the complaint, as I understand it, is a carnal knowledge-and alienation through this, and not by other means. So I have some doubt about the relevancy of the testimony as to the frequency of the calls there, as to conversations at least, especially in advance of any evidence that frequent calls had been made. You did not expect to show, or have not offered to show, that there were any admissions made at this conversation of criminal intimacy.
“Mr. Hilliker: No, sir.
“The Court: I think I will sustain the objection to the introduction of the conversation at the present time, unless it is connected with something else to make it relevant.”

The ruling simply related to the order of proof, and, as it is clear that the offered testimony would not, of itself, have been sufficient to entitle the plaintiff to claim a verdict from the jury, we think it cannot be said that the ruling was prejudicial. There was a plain intimation that, if the plaintiff were afterwards able to offer testimony which tended to substantiate the main charge, the testimony here' offered would be admitted. This the plaintiff appears to have been unable to do, unless it shall be held that the testimony of the plaintiff himself was competent.

2. This leads us to the consideration of the most important question presented, which is whether, after a divorce between the plaintiff and his wife, the husband is a competent witness to testify to the" charge of adultery, in a suit brought against the alleged paramour of the wife.

3 How. Stat. § 7546, provides:

“A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent. * * * Nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage; but, in any action or proceeding instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify.”

In Mathews v. Yerex, 48 Mich. 361, it was held that under this statute the wife is not a competent witness for the husband, in a suit brought by him for criminal conversation. The doctrine of this case was reaffirmed' in Reynolds v. Schaffer, 91 Mich. 494.

In Carter v. Hill, 81 Mich. 275, it was held that the husband is not a competent witness for himself in such a case. It was said by Mr. Justice Cahill:

“This statute.was intended to subserve a wise public policy; and we think we ought to call attention to the flagrant violation of it in this case, even though no point be made upon it by counsel. * * * The clear purpose of the statute is to preserve with sacredness the confidences of the marriage state, and to render it impossible for either husband or wife to speculate upon the other’s dishonor, relying upon their own testimony to make or support a case.”

The question remains whether, after the termination of the marriage relation, it is competent for the husband to testify to the alleged fact of adultery occurring during marriage. We are cited to no case in which such testimony has been held competent.

In the case of People v. Marble, 38 Mich. 117, the incompetency of such testimony is implied, rather than stated. In that case the witness was permitted to testify to transactions which did not consist of communications made during marriage, and it was said:

“Since the relation had ceased when he was called, and as the prosecution ‘was not in consequence of adultery/ there was nothing to qualify his general competency, save the exception in the second of the above-named sections, providing that, without the consent of both, neither husband nor wife, during the marriage or afterwards, shall ‘be examined as to any communication made by one to the other during <the marriage.'’”

In the case of State v. Jolly, 3 Dev. & B. (N. C.) 110, the question arose whether, at the common law, the divorced husband was a competent witness to testify against the paramour of the wife, and it was held that he was not. It was said in the course of the opinion':

“It is argued by the attorney general that the criminal conduct testified to in this case was itself an outrageous violation of the marriage vow, — a matter in respect to which confidence was not yielded by the wife, nor could have been asked by the husband. * * * We are not satisfied that the exception contended for is established by the reasoning urged in its support. The rule we deem a valuable one, and we view with apprehension any exception having a tendency, more or less direct, to promote cunning, or to generate distrust where the best interests of society require that perfect frankness and confidence ought to prevail. If one exception be sanctioned because, from the character of the criminal act imputed, the dissent of the witness from its commission must be presumed, others may follow where the like presumption will be entertained, although not perhaps with equal confidence, and there will be danger of our having no rule capable of general and steady application.”

In State v. Phelps, 2 Tyler (Vt.), 374, it was held that a woman divorced a vinculo is not a competent witness upon an indictment against her former husband to prove his adultery. And in Rea v. Tucker, 51 Ill. 110, it was held that in an action for crim. con. a divorced wife is not a competent witness to testify in behalf of her former husband, and against her alleged seducer.

There are cases in which the husband, after the divorce of the wife, has been permitted to call her to prove her own infidelity. Ratcliff v. Wales, 1 Hill, 63; Dickerman v. Graves, 6 Cush. 308. But in each of these cases the holding was put upon the distinct ground that the wife was not called to testify against her husband, while in Ratcliff v. Wales it was distinctly intimated that she would not be competent to testify against him. It was said:

“For the purpose of promoting a perfect union of interests and securing mutual confidence between husband and wife, the courts have generally refused to admit the wife as a witness against the husband, even after the marriage contract was at an end, when she was called to speak of any matter which happened during the continuance of the marriage, and which might affect the husband either in his pecuniary interest or character.”

In the present case the testimony of the husband would affect the character of the wife, is offered in an action instituted by him in consequence of adultery, and we think is within the prohibition of the statute.

The judgment will be affirmed, with costs.

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


text:
    Edgar S. Dean v. Samuel R. Mumford et al.

      Will — Bill to construe — Trust—Suspension of power of alienation.

    1. Where executors appear and answer a bill filed by a legatee, asking for a construction of the terms of the will if held valid, and asserting that it is as a whole invalid in equity, and in terms submit the question of the construction of the will to the court, the court may properly maintain jurisdiction.
    2. The will, a construction of the terms of which is sought, provides:
    a — That the wife of the testator shall have the use of his homestead, together with the furniture and other personal property thereon and connected tnerewith, to be used and enjoyed by her during her natural life as a home for herself, and for such of the testator’s children as shall remain unmarried, and shall be agreeable to her; that the taxes and repairs upon the homestead shall be paid by the executors from the estate; and that they shall also pay to the" widow $1,500 per annum, in quarterly or monthly installments, as she may desire, during her natural life.
    b — That the residue of the estate shall be divided equally among the testator’s five children, naming them and giving their ages, or to the survivors of them, excepting that in case any of said children shall die, leaving a child or children, his or her interest shall go to and belong to said child or children.
    c — That certain advances made to certain of the testator’s children, and charged to them upon his books, together with any advances that may be made after the execution of the will, and charged to the child or children to whom made, shall be deducted from the portion given to such child or children.
    d — That the portions given to three of the testator’s sons, naming them (one of whom was unmarried when the will was executed), shall be held in trust by the executors, as trustees for said sons, their wives and children, and the interest, income, and profit thereof shall be used and paid as in the . judgment of the executors shall be best for the support and maintenance of said sons, their wives and children, during the lives of said sons' and their wives, and, upon the decease of said sons and their wives, the portion so held in trust by said executors shall become the property of and go to the child or children of said sons, severally, and their heirs and assigns, forever.
    And it is held:
    a — That it was the purpose of the testator to divide the (residue of his) estate into five equal parts; that he did not intend by paragraph d that the portions set apart to his three sons should be held by his executors in trust for the common use of said sons, their wives and children; that, in so far as reference is had in said paragraph to the wife of said unmarried son, it was intended to mean any wife of his living at the time of the decease of the testator; and that, as to the estate vesting upon the death of the widow, the power of alienation was not suspended for a longer period than two lives in being.
    6 — That the intent is clearly manifested to make the entire estate subject to the payment of the taxes and the making of repairs on the homestead, and the payment of the annuity to the widow; that the executors are required to devote the income of the entire estate to that purpose, if necessity therefor exists; that the power of alienation was thereby suspended during the lifetime of the widow, and therefore the trust sought to be created by paragraph d is void.
    a — That the will is not void in toto; that certain duties are imposed upon the executors which may, notwithstanding the failure of the limitation in paragraph d, be performed, and the provision charging against the shares of certain of the children of the testator the amounts advanced to them should be sustained.

      d — That, as the widow has elected to take under the statute, it is not material to determine whether, upon the failure of the limitation in paragraph d, the children of the testator would take an absolute fee under paragraph 5 of the will, as their interest would be the same whether they take as heirs at law or by the terms of the will. -
    3. The following general propositions are summarized from the opinion of Montgomery. J.:
    a — Provisions in a will which are not valid when made and when the will takes effect cannot thereafter be made valid by the election of the widow to take under the statute.
    b — No express words creating a trust are requisite, if the intent to devote the estate to á particular purpose is apparent from the terms of the will.
    c — Where a duty is imposed upon the executor which makes it necessary for him to retain the possession and control of realty, he will take an interest adequate to enable him to perform this duty; and an alienation which cuts off that right is, by implication, prohibited.
    d — Where a will provides that certain debts, legacies, and charges are to be paid, and the residue of the estate not thus expended is then to be divided, the particular debts,' legacies, and charges will be considered a charge against the estate, real and personal
    Appeal from Wayne. (Frazer, J.)
    Argued April 4, 1894.
    Decided December 7, 1894.
    Bill for the construction of a will. Complainant appeals.
    Reversed, and decree entered in this Court in accordance with the opinion.
    The facts are stated in the opinion.

      George W. Radford and Edward A. Barnes, for complainant.

      Moores & Goff and Hoyt Post, for defendants.
   Montgomery, J.

Complainant, as one of the legatees named in the will of Horace M. Dean, filed this bill against the defendants Mumford and Frank Dean, executors, and the codefendants as legatees, asking a construction of the terms of the will, if held valid, and asserting that it is as a whole invalid, in equity.

A preliminary question is raised as to the jurisdiction, it being claimed by defendants that, except at the suit of a trustee or cestui que trust who asks a direction as to the execution of a trust, a court of chancery has no jurisdiction to construe a will or declare any or all of its provisions invalid. But, however this may be, the executors have answered in this case, and in terms submitted the question of the construction of the will to the court. As it is undoubted that they might have invoked the jurisdiction of the court for that purpose by a bill, we think that, they having submitted the question, the court may properly maintain jurisdiction. Sawtelle v. Ripley, 85 Wis. 72.

The material parts of the will are as follows:

“ First. I give and bequeath to my beloved wife, Mary C. Dean, the use of the homestead now occupied by us, No. 83 State street, together with all the furniture and other personal property thereon and connected therewith, to be used and enjoyed by her during her natural life as a home for herself, and for such of my children as shall remain unmarried, and shall be agreeable to her; the taxes and repairs upon said homestead to be paid by my executors from my estate.
“Second. I also give and bequeath to my said wife the sum of 11,500 per annum, to be paid to her quarterly or monthly by my executors, as she may desire; to be received, used, and enjoyed by her during her natural life.
“ Third. All the rest, residue, and remainder of all the goods, chattels, real and personal estate, of whatsoever kind or nature, or wheresoever the same may be situated, I desire to be divided equally between my five children,— Edgar S., aged 38; Arch. H, aged 30; Herbert L., aged 28; Frank, aged 26; and Lizzie, aged 23, — or to the survivors of them, excepting in case any of them shall die leaving child or children surviving; then, in such case, the respective interests of my sons and daughter above named shall go to and belong to the child or children surviving them, respectively.
“Fourth. Whereas, I have advanced to my sons Edgar S. and Arch. H. certain sums of money, which will appear charged to them upon my books, and if I shall advance to them, or either of them, or others of my children, during my lifetime, other sums, all such sums in money or property which I shall advance to or pay for and shall charge to them, respectively, shall be deducted from the respective portions above designated to go to my said children.
“Fifth. I hereby will and direct that the portions hereinbefore designated for my.said sons Edgar S., Arch. H., and Herbert L. be held in trust by my executors, as trustees for my said sons, their wives and children, and the interest, income, and profit thereof be used and paid as in the judgment of my said .executors shall be best for the support and maintenance of my said -three sons, their wives and children, during the lives of my said sons and their wives; and, upon the decease of said sons and their wives, the portion so held in trust by my said executors shall become the property of and go to the child or children of said sons, severally, and their heirs and assigns, forever.”

It is the contention of complainant — "First, that the first and second clauses make the taxes and repairs and annuity a charge upon the estate, and create a trust in favor of the widow, which continues during her life; and, second, that, if this be not so held, then, under any construction which may be given to the fifth clause, the power of alienation is suspended for a longer period than during two lives in being, and that for this reason the trust created in the fifth clause falls.

The defendants contend — First, that inasmuch as the .widow has elected to take under the statute, and not under the will, the validity or non-validity of the will should be determined without reference to the attempted provision for her; second, that the power of alienation was not, by the terms of the will, suspended during the life of the widow; and, third, that by the proper construction of the fifth clause, in connection with the third and fourth clauses, of the will, the power of alienation is not suspended, as to any portion of the estate which vested after the death of the widow, for a longer period than two lives in being.

We think, if the power of alienation was not suspended during the life of the widow, the case presents no very serious difficulty. It appears to be conceded by counsel who seek to maintain the validity of the will and its provisions that the fifth clause restrains alienation for the period of two lives' in being. The construction of the will for which they contend is that, under the provisions of the third clause, the estate is to be divided into five equal shares; that two of the shares — those devised to Frank and Lizzie — Test át once; that, by the terms of the fourth clause, certain advancements are to be taken out of the shares of Edgar S. and Arch. H., and the remainder is, in each instance, under the fifth clause, as in the case of the one-fifth interest of Herbert L., to be held in trust by the executors for the respective legatees named, their wives and children; and that, upon the decease of Edgar S. and his wife, Eliza, the one-fifth, less the deducted advancements, becomes the property of their children; and so in the case of Arch. H. and Herbert L. We think this contention is sound, so far as it relates to the third and fifth clauses, if it be held that there was no restraint on alienation during the life of the widow. It was very plainly the purpose of the testator to divide his estate into' five equal parts, and we think it very clear that it was not the intention to provide by the fifth clause that the three parts which had been set apart by the third clause of the will to Edgar S., Arch. H., and Herbert L. should be held in trust for the common use of the sons, their wives and children. But it is suggested that, in this view,as Herbert L. was unmarried at the time the will took effect, the will should be construed to relate to any wife whom he might in the future marry, and, so construed, the estate would not vest in the children or heirs until after the expiration of two lives in being. We think the will not open to this construction, but that it was intended to mean any wife of Herbert L. living at the time of the decease of the testator. Van Brunt v. Van Brunt, 111 N. Y. 178. The will should not be given a construction, for the purpose of defeating the intention of the testator, which would bring within its purview one who should in the future become the wife of one of the legatees.

The important question, then, as it appears to be conceded, is whether' the power of alienation was suspended during the life of the widow. If the contention of defendants5 counsel,- that the election of the widow to take under the statute calls for a construction of the will as it would have read without any attempt- to make provision for her, be allowed, this, with what we have above determined, would be an end of the case. A statement is found in the case of Bailey v. Bailey, 97 N. Y. 471, sustaining the contention of defendants5 counsel. But in that case it had been determined in the opinion that the bequest to the widow was of a life estate in the property, which she had the right to sell if she chose; so that the statement affirming ' the- doctrine here' contended for was dictum. We cannot-accept this as a correct statement of the law. The will must, it seems to us, be construed as made. It will not do to say that "provisions which are incorporated in a -will, and which are- not valid when made and when the will takes effect, can thereafter be made valid by the election-of the -widow.- This would, in effect, empower the widow to execute a will by validating what was previously no will.' Counsel also cite, as sustaining this contention, 'Woodburn’s- Estate, 151 Penn. St. 586; Small v. Marburg, 77 Md. 11; and Tracy v. Murray, 44 Mich. 109. In the cases of Woodburn’s Estate and Small v. Marburg the question before the -court related to the effect of the election of the widow to take under the statute upon the distribution to- be made of sthe estate. Neither case deals with the question of whether the widow can, by declining to take under the will, make that valid which was before invalid, nor was any such question before the court. In Tracy v. Murray the widow renounced her right to take under the statute, and elected to take under the will. The Court say:

“Accepting as correct the doctrine of those cases which' hold that the widow becomes a purchaser of the legacy by releasing her dower, the contract is not a completed one until her .acceptance of the provisions of the will after her husband’s decease.. Had he purchased, from his wife .her dower,- and given her his note therefor, upon his death such obligation, if not, paid, would simply’become a claim against his estate, and take its place, when proven against the estate, with the other allowed claims. The husband during his lifetime, wishing to make arrangements to have his wife release her dower interest in the lands of which he should die seised, makes an offer therefor which is not to be submitted to her for acceptance until after' his decease.”

This case, it will be seen, presented .no question of validating invalid provisions :of the will, 'but dealt with the rights of the widow as they existed under the will as made by the. deceased; and the case, certainly contains no intimation which sustains the contention here made. .

Were these taxes .and annuity a charge upon the estate in such a sense as to create a trust, and suspend the power of alienation? It is settled .that no express words creating a trust are requisite,. if the intent. to devote .the estate to a particular purpose .is apparent from the terms of the will. . Where a duty is imposed upon’ the executor which makes it necessary for him to .retain the possession and control of realty, he will take an intérest adequate to enable him to perform, this' duty; .and an alienation which cuts off that fight is, by implication, prohibited. Perry, Trusts, §§ 121, 313, and cases cited; Cummings v. Corey, 58 Mich. 494; Vail v. Vail, 7 Barb. 226. And' where there is a provision in the will .'that certain .debts, legacies, and charges are to be paid, and the residue .of the estate not thus expended is then to be divided, the particular debts, legacies, and charges will be considered a charge against the estate, real and personal. See a discussion of this rule in 2 Jarm." Wills, p. *1,411 et seq.; Greville v. Browne, 7 H. L. Cas. 689; Gainsford v. Dunn, L. R. 17 Eq. 405; Lafferty v. Bank, 76 Mich. 35. It will be noticed in the present case that the will, after bequeathing the use of the homestead, makes the taxes and repairs upon the homestead payable from the estate of the testator. It also provides for an annuity of $1,500 per annum, to be paid by the executors during the natural life of the widow, and then bequeaths all the rest, residue, and remainder of all the goods, chattels, real and personal estate, to the five children named. We think the intention is clearly manifested to make the entire estate, real and personal, subject to these charges, and the executors may devote the income of the estate, both real and personal, to that purpose, and are required to do so if necessity therefor exists. This attempted restraint on alienation must be held void.

The question is raised as to whether the will is void in toto. We think not. Certain duties are imposed upon the executors which might, notwithstanding the failure of the limitation in the fifth clause, be performed, and the provision charging against the shares of Edgar S. and Ar.ch. H. the amount of certain advancements should be sustained.

As the widow has elected to take under the statute, it is not material to determine whether, upon the failure of the limitation in the fifth clause, the children would take an absolute fee under .the third clause, as their interest would be the same whether they take as heirs at law or by the terms of the will.

A decree will be entered in accordance with these views. The costs will be paid out of the estate.

The other Justices concurred.


text:
    The People v. John J. Whittemore.

      Criminal law — Return of examining magistrate — Malicious threats —Blackmail—Pleading—Evidence—Disqualification of prosecutor.
    1. The failure of an examining magistrate, on requiring a respondent to recognize to answer the offense charged, to certify his finding that the offense has been committed, — his finding being “ that there is probable cause to believe that said offense has been committed, and probable cause to believe the respondent guilty thereof,” — will not support an objection that the information filed on the basis of his return was not properly filed.
    2. Respondent was convicted of maliciously threatening to accuse one Paul Lucas of the crime of perjury, in violation of How. S'tat. § 9093, which provides that “if any person shall, either verbally or by any written or printed communication, maliciously threaten to accuse another of any crime or offense, * * * with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against his will, he shall be punished,” etc. The complaint, which was followed by the warrant, charged that the respondent did, on a certain day, willfully and maliciously, verbally, threaten to accuse the said Paul Lucas of willful and corrupt perjury, and did, on the day and ' at the place named, threaten to make a criminal complaint, for such offense against the said Lucas, unless he would sign and execute a deed of certain lands owned by him, and situated in the state of Minnesota, with the intent and purpose of procuring the signature of said Lucas against his will to said deed, and with intent to injure and defraud said Lucas, contrary to the form of the statute, etc. And it is held:
    a — That the complaint shows sufficiently that the’ threats were verbal.
    b — That the complaint follows the language of the statute in its averment as to the making of the threats, and while, in the precedents, the name of the party to whom the threats were made is usually set out, the omission to do so is not fatal.
    c — That the complaint sufficiently sets out the intent; that the statute makes it an offense to make such threats with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against his will; and that the intent to procure the signature of Lucas against his will to a deed of land was an intent to compel him to do an act against his will, to wit, to affix his signature to a deed.
    8. The attorney for the plaintiff in a suit pending in Minnesota came to Michigan for the purpose of taking the depositions of certain witnesses in the case. Among other witnesses, he examined one of the defendants, who held the legal title to the land in dispute, which plaintiff claimed had been transferred without consideration. After the testimony had been taken, the attorney had an interview with said defendant, during which, as claimed by said defendant, he threatened to prosecute the defendant for perjury unless he would convey the land to the plaintiff. This the defendant refused’to do, and a few days later the attorney caused the threatened prosecution to be instituted. Pending a,n examination, the prosecuting attorney and the attorney for said plaintiff started to drive to the hoffie of said defendant to procure the execution of said deed. Another attorney followed them for the purpose of preventing the execution of the deed. The deed was not executed, and the said defendant thereupon made a complaint against the foreign attorney for maliciously threatening to accuse him of the crime of perjury. After the arrest of the defendant for perjury, one of his creditors, with whom he had deposited his title deed to the land in dispute as security, informed the Michigan attorney of said arrest, and requested him to investigate the matter. Prior to the visit of the foreign attorney to the defendant to procure said deed, the Michigan attorney had seen the foreign attorney and the prosecuting attorney, and informed the foreign' attorney that if he went to the house of the defendant, as proposed, to force him to execute said deed, he would follow him and prevent his doing it. On the trial of the foreign attorney for threatening to accuse the said defendant of perjury, the prosecuting attorney being disqualified from acting, the court appointed the Michigan attorney to ¡prosecute the case. Objection being made to such appointment, the attorney so appointed testified that he was not interested for the complaining witness at the time the prosecution was commenced in any way, but that he had since been ■.retained to defend him in the perjury case. And it is held ithat said attorney was not disqualified from acting under said appointment under 3 How. Stat. § 557, whifch provides that no ■attorney shall be permitted to prosecute or aid in prosecuting .any person for an alleged criminal offense where he is engaged or interested in any civil suit or proceeding depending upon the same state of facts against such person, directly or indirectly.
    4. Respondent having denied making any demand whatever upon Lucas, testimony tending to show that the latter was in fact guilty of perjury was inadmissible as 'bearing upon respondent’s intent; nor was such testimony admissible for the purpose of impeaching Lucas, or to disprove malice upon the part of respondent.
    6. Testimony relative to the arrest of Lucas, at the instance of the respondent, for perjury, and to the attempt to secure the execution of the deed, was admissible as bearing upon the respondent’s intent.
    Exceptions before judgment from Alpena. (Kelley, J.)
    Argued June 29, 1894.
    Decided December 7, 1894.
    Eespondent was convicted of maliciously threatening to accuse, a certain person of the crime of perjury.
    Conviction affirmed, and record' remanded for further proceedings.
    The facts are stated in the opinion.

      W. E. Depew and J. D. Turnbull, for respondent.

      A. A. Ellis, Attorney General, and Joseph H. Cobb, for the people.
   Montgomery, J.

Eespondent was convicted of maliciously threatening to accuse one Paul Lucas of the crime of perjury, in violation of How. Stat. § 9093.

The facts are that the respondent is an attorney, .residing at St. Paul, Minn., and was the attorney of one Joseph Stehr, who had a suit pending in the Minnesota courts against Paul Lucas and others, involving the title to certain lands in St. Paul. Eespondent came to Alpena in December, 1893, for the purpose of taking the depositions of witnesses in the case referred to, and, as subsequent events would indicate, with the further purpose of procuring a deed from Lucas to his client. On the 13th, 14th, 15th, and 16th of December, respondent examined Paul Lucas as a witness in the case, before a circuit court commissioner. After the testimony was concluded, respondent invited Lucas to his room at the hotel, and, while there, Lucas swears, in substance, respondent threatened to prosecute him for perjury unless he would deed the land to his (respondent's) client, for a named consideration. These threats did not prove effectual, and on the 25 th day of January, 1894, respondent made a complaint against Lucas for perjury, and caused his arrest. An examination was not had at once, but Lucas, was taken to the office of the prosecuting attorney, who permitted him to go at large, with instructions to report to him (the prosecutor); and, apparently, the prosecutor interested himself in the effort to procure the deed from Lucas and his wife. On the 27th day of January the prosecuting attorney and the respondent in this case and Lucas started to drive from Alpena into the country, where Lucas resided, to procure the execution of the deed. Mr. J. H. Cobb, the attorney who now represents the people in this case, one Charles Golling, Judge Kelley, who presided at the trial, and the sheriff of Alpena county, followed, the party for the purpose of .preventing a consummation of the transaction. The deed was not procured, but Lucas returned to Alpena, a justice was called in, and the respondent was complained against for the offense here in controversy. The other facts necessary to an understanding of the case will be stated in connection with the particular questions to which they relate.

1. It is claimed that the information was not properly filed, for the reason that the respondent was never properly held for trial by an examining magistrate; the precise point being that the justice failed to return that he found that an offense had been committed, but certified that he found that there was probable cause to believe that an offense had been committed, and that there was probable cause to believe the respondent guilty thereof. It was held in Turner v. People, 33 Mich. 368, that it was not necessary for the justice to make such certificate to the circuit court, and that the fact of taking bail imports the decision of the justice, and the fact of giving it imports a recognition of it by the accused. The ruling has been followed in Cargen v. People, 39 Mich. 549, and again in People v. Ten Elshof, 92 Mich. 167. It is suggested that-the return fairly excluded the idea that the justice found as a fact that the offense had been committed. But the case is in this respect identical with that of People v. Ten Elshof, and is ruled by that case.

3. It is next contended that the complaint and warrant, set forth no offense. It is claimed that the complaint does not specify the intent mentioned in the statute, or sufficiently set forth the threats, or specify to whom the threats were made, or state whether the threats were in writing or verbal. The warrant follows the complaint. The complaint was, in substance, as follows:

“That the said John J. Whittemore did, on the 16th day of December, 1893, willfully and maliciously, verbally, threaten to accuse him, the said Paul Lucas, of willful and corrupt perjury, and did then and there, on the 16th day of December, 1893, at the city of Alpena, county and State aforesaid, threaten to make a criminal complaint for such willful and- corrupt perjury against him, the said Paul Lucas, unless he would sign and execute a certain paper writing and deed conveying to another the lands and tenements of him, the said Paul Lucas, situate and being in St. Paul, in the state of Minnesota, with the intent and purpose of procuring the signature of the said Paul- Lucas against his will to said certain paper writing and deed, conveying his lands and tenements as aforesaid, with intent to injure and defraud him, the said Paul Lucas, contrary to the form of the statute,” etc.

We think the complaint does show sufficiently that the threats were verbal.

As to the point that it is not stated to whom the threats were made, the complaint follows the language -of the statute in this regard, and while, in the precedents, the name of the party to whom the'threats are made is usually set out, we find no case, which holds that the omission is fatal to the indictment. An jndictment in this form was . held good in State v. Young, 26 Iowa, 122, although the precise point seems not to have been distinctly made.

We also think the complaint in the present case sufficiently sets out the intent. The statute makes it an offense to make such threats with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against his will. The intent to procure the signature of Paul Lucas against his will to a deed of land was an intent to compel Paul Lucas to do an act against his will, to wit, to affix his signature tp a deed.

3. The court appointed J. H. Cobb to represent the people on‘the trial, and this is complained of. Mr. Cobb had not acted as attorney for Lucas in any civil proceeding which was pending, so as to be disqualified under the provisions of the statute (section 557). It appeared that Mr. Cobb was attorney for one Robert Rea, who had loaned $50 to Lucas on lps (Lucas’) depositing with Rea his title deed to the land in question. After Mr. Lucas’ arrest, Mr. Rea said to Mr. Cobb that' Lucas had been arrested, and requested Mr. Cobb to investigate it. Mr. Cobb saw Mr- Whittemore and the prosecuting attorney, and told Mr. Whittemore that, if he went into the country to force Lucas to give the deed,' he (Cobb) would follow him, and prevent his doing it; and it appears that he did so. He testified in the .circuit court that he was not interested for Lucas at the time the prosecution was commenced in ■any way, but that he had since been retained to defend-Lucas in another criminal proceeding. We think it cannot be said that he was employed as attorney in any civil proceeding involving the same state of facts as that involved here. The determination of this case would not in any way affect the criminal prosecution pending ' against Lucas for perjury.

4. The circuit judge charged the jury, in effect, that if the threats were made with the wrongful intent charged, and were made maliciously, the offense was complete, whether Lucas was or was not guilty of the offense of perjury. The respondent complains of ' this holding, and contends that if the respondent, having an interest in the matter, believed that Lucas was guilty of perjury, he had the right to threaten to prosecute Lucas, unless he should place the title where it belonged. But we think the law is settled otherwise. 2 Whart. Or. Law, § 1664; Rose. Or. Ev. *979; Rex v. Gardner, 1 Car. & P. 479; Reg. v Cracknell, 10 Cox, Cr. Cas. 408; Com. v. Buckley, 148 Mass: 27; Com. v. Coolidge, 128 Id. 55; State v. Goodwin, 37 La. Ann. 713. The respondent in the present' case denied having made the threats imputed to him, or haying made any demand upon the prosecuting witness. His statement of the conversation was, in effect, that he offered to compromise the litigation with the complaining witness.

Respondent further contends that the testimony tending to show that Lucas was in fact guilty of perjury was. proper for two purposes:

It would tend to show that he was not a truthful witness, and that the threats were not made maliciously.”

It has been held in some cases that, when the question involved is whether the demand for money is a demand-for what respondent is in no way entitled to, evidence that the prosecuting witness has been guilty of an offense for-which the accused is entitled to demand compensation is admissible, as bearing upon the question of the intent;, that is, to determine whether the accused is seeking to recover his own, or to extort money which does not belong to him. Com. v. Jones, 121 Mass. 57; Mann v. State, 47 Ohio St. 556. The reasoning of the latter case is against the clear weight of authority, as is apparent from an examination of the cases hereinbefore cited. In the case of Com. v. Jones, the fact that a demand was made upon the complaining witness was admitted by the accused, and evidence that the complaining witness had been guilty of a wrong against him, for which he was entitled to demand compensation, was held admissible, as having a bearing upon the question of the respondent’s intent, he having denied a threat of prosecution. But in the case of Com. v. Buckley, decided by the same court, it was held that evidence that the complaining witness had in fact committed the offense was not competent for the purpose of impeaching him; and it was also said of the other contention made by the respondent here, that it was competent on the question of malice:

“The malice required by the statute is not a feeling of ill will toward the person threatened, but the willful doing of the act with the illegal intent. If the threat was willfully made with the intent to extort money, it was a malicious act, and the fact that the charge was true would be immaterial.”

We think there was no error in the ruling in this regard.

5. Respondent’s counsel asked an instruction as follows:

“If the respondent said to Paul Lucas, ‘You come not in my will and give me a deed, I send you and your sister to State prison for life,’ this would not constitute a crime.”

The circuit judge charged the jury, and we think correctly:

“It would not be», necessary that the precise words should be used, that he [the respondent] would complain of him [the complaining witness], or charge him with the •commission of perjury. If he used language which clearly imported that intention, — clearly implied and imported that he intended to charge him with false swearing and perjury, — it would be sufficient.”

And, further:

It is claimed here by the people that the direct charge was made that if this old man, to • state it in his own language, did not come under or within his will, he would .send him and his sister to the penitentiary for life. * * If you find in this case that, in connection with that statement, with that threat, he had been directing his •attention to the fact that he had sworn falsely, or sworn in conflict with other witnesses, you have a right to •determine whether it was a threat that he would send him to the penitentiary for life for such discrepancies in his testimony, or not.”

We think this charge fully justified by the record in the case.

6. Complaint is made of the admission of testimony relative to the subsequent arrest of the prosecuting witness at the instance of respondent, and to the attempt subsequently to procure the execution of the deed by Lucas. We think this testimony was admissible as bearing upon the respondent’s intent.

A careful examination of the record convinces us that them was no legal error committed on the trial.

The conviction will be affirmed, and the case remanded for further proceedings.

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


author: Hooker, J.

text:
    Abijah Weston v. The County of Luce.

      Taxes — Payment under protest — Action against county — Duress— Pleading — Bill of particulars — Demurrer.
    1. Section 58 of the tax law of 1893, which authorizes the county treasurer, after the return of lands for unpaid taxes, to receive, under like provisions as in section-53 of the act, the amounts-of the several taxes or any of them due, does not authorize the payment of taxes to- the county treasurer under protest, and the bringing of a suit against the county to recover back the moneys so paid.

    2. The payment by a land-owner to the county treasurer, under protest, of illegal taxes assessed against his land, in order insecure from that officer the certificate required by the tax law of 1893 as to the payment of taxes to entitle his deed, given to a prospective purchaser, to record, does not constitute payment under duress, so as to give to the land-owner a common-law right of action against the county for the recovery of the, moneys so paid, although he would otherwise have been prevented from making such sale.
    8. A bill of particulars is no part of the declaration, and cannot affect its sufficiency upon demurrer.
    4. A demurrer to an entire declaration, which, in addition to the special counts, contains the money counts, which are good, cannot be sustained.
    Error to Luce. (Steere, J.)
    Argued October 3, 1894.
    Decided December 7, 1894.

      Assumpsit. Plaintiff brings error.
    Reversed, and record remanded for farther proceedings.
    The facts are stated in the opinion.

      O. W. Dunton and McMahon & Oren, for appellant.

      S. N. Butcher, for defendant.

       For cases bearing upon the question of the recovery of taxes paid under the pressure of an actual or threatened levy, or under statutory protest, see Canfield Salt & Lumber Co. v. Township of Manistee, 100 Mich. 466, 473, and note.

   Hooker, J.

Defendant demurred to the declaration filed in this case, which is .based upon the claim for money paid to the county treasurer under protest. The action is brought against the county. The declaration alleges, in substance, that the taxes were levied upon the plaintiff’s land, which was' returned for non-payment; that the plaintiff thereafter found an opportunity to sell the land, but as the certificate of the county treasurer, required by section 135 of the tax law of 1893, could not be obtained without paying these taxes, he paid them to the treasurer under protest; that he was obliged to do this, or lose his opportunity to sell, as the purchaser could not have his deed recorded without such certificate. He claims that this was duress, and that he is entitled to recover the amount paid from the county, the taxes being void. The money counts are made a part of the declaration, but the bill of particulars limits the claim to the cause mentioned above.

The plaintiff supports his contention upon two grounds:

1. That the statute (section 58, Act No. 206, Laws of 1893) authorizes the recovery sought.
2. That the declaration states a good cause of action at common law.

Counsel cite us to How. Stat. p. 1277, for the first law passed in this State permitting the recovery of invalid taxes which have been paid under protest. It was passed in 1882, and, being held not to apply to taxes upon personal property (see Lyon v. Receiver of Taxes, 52 Mich. 271), was amended by section 41 of' the tax law of 1889 to cover such taxes. At the last session of the Legislature the tax law was changed. Section 53, Act No. 206, Laws of 1893,' is a substantial re-enactment of the statutes above cited. It reads as follows:

“ Any one may pay the taxes, or any one of the several taxes, or any part thereof, on any parcel of land, and the treasurer shall note across the face of the receipt, in ink, any portion of the taxes remaining unpaid. He may pay any tax, whether levied on personal or real property, under protest to the treasurer, specifying at the time in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may, within 30 days, and not afterwards, sue the township for the amount paid, and recover, if the tax is shown to be illegal for the reason specified in such protest. Any person owning an undivided share, or other part or parcel, of real property assessed in one description, may pay on the part thus owned by paying an .amount having the same relation to the whole tax as the part on which payment is made has to the whole parcel. The person making such payment shall accurately describe the part or share on which he makes payment, and the receipt given, and the record of the receiving officer, shall show such description, and by whom paid; and, in case , of the sale of the remaining part or share for non.-payment of taxes, he' may purchase tbe same in like manner as any disinterested person could. Any person having a lien on property may, after 30 days from the time the tax is payable, pay the taxes thereon, and the same may be added to his lien, and recovered, with the rate of interest borne by the lien. A tenant of real estate may pay the taxes thereon, and deduct the same from his rent, unless there be an agreement to the contrary.- Such payment may be made to the township treasurer while the tax roll is in his hands, or afterwards to the county treasurer. The receipt given shall be evidence of such payment.”

The section permits payment to the township treasurer under protest, and the commencement of suit against the township, within 30 days thereafter, to recover the money paid.

Section 58 of the same act is as follows, viz.:

“After the return of lands for unpaid taxes, the county treasurer is authorized to receive, under like provisions as in section 53 of this act, the amounts of the several taxes or any of them due.”

It is argued that, while this language does not expressly authorize payment of the tax under protest, or recovery from the county of money so paid, these rights are included, under the language used.

The language authorizes the payment and receipt of the various taxes, or any of them, due, ■ under like provisions as in section 53.” What are the provisions of section 53 under which they may be paid?. The first- sentence of that section allows the payment of any one of several taxes or any. part thereof, bn any parcel of land, and requires the treasurer to note across the face of the receipt given, in ink, any portion of the taxes remaining unpaid. It is to this sentence ' alone that this provision of section 58 applies.. It is true that section 53 contains a number of other provisions, viz., payment upon undivided interests or a portion of a description, payment by persons-holding liens upon the land, or by tenants. But it is not necessary to look to section 58 for authority for making such payments to the county treasurer. Several' of them are covered by the last two sentences of section 53-itself, and all of them by section 59. ' A literal construction of section- 58, in accordance with the plaintiff's claim, would' require the action to be commenced against the township, 'although the money was paid to the county treasurer.. To sustain plaintiff's contention, we must infer that the Legislature intended to authorize such action against the county. We think this improbable. , The Legislature authorized payment under protest within the--limited time that the roll should be in the hands of the township officers. It restricted the time within which an action could be commenced to recover the samé.' This is inconsistent with the theory that it was ■ intended that such, course could be taken, later, when it would be productive of mpre inconvenience. The second count of said declaration, alleging the- bare fact of payment of illegal taxes, under protest, to the county treasurer, does not state a cause of action.

The first count is more specific, alleging not only the’ illegality of the tax, and its payment under protest, but the further fact that it was paid to enable the plaintiff to sell his land, which otherwise he would have been prevented from doing, by reason of his inability to procure ’the treasurer’s certificate, which section 135 of Act No. 206 of the Laws of 1893 requires to entitle a deed to record. It is contended that this was such duress as to make such payment involuntary, and to authorize an action against the county, under the principles of the common law. Were this conceded, the count is faulty, in that it does not state that the defendant has received the tax, or any portion of it, to its use. Cooley, Tax’n (2d ed.), 805.

It is, however, contended that a common-law right of action exists, because the plaintiff could not sell his land without paying this tax, as the prospective purchaser could not record the deed without paying the tax, and would not purchase without payment, so . that his deed might be recorded. The payment of money to prevent the threatened seizure and sale of goods by an officer in possession of a legal warrant is a payment under duress, and may be recovered. It is upon the principle that such warrant is in the nature of an execution running against the person and property of the party, upon which he has no day in court, no opportunity to plead and offer proof, and have a judicial decision of the question of his liability.” Where there is compulsion, actual, present, potential, in inducing that payment, by force of process available for instant seizure of person or property, and’ the demand is really illegal,” payment and recovery-back are permitted. The element of coercion is essential-to the right, and payment must be made to prevent seizure or arrest. Peebles v. Pittsburgh, 101 Penn. St. 304; Dill. Mun. Corp. § 940; Taylor v. Board of Health, 31 Penn. St. 73; Commissioners v. Walker, 8 Kan. 431; Railroad Co. v. Commissioners, 98 U. S. 541; Lamborn v. Commissioners, 97 Id. 181; City of Detroit v. Martin, 34 Mich. 170; Baker v. City of Big Rapids, 65 Id. 76; Betts v. Village of Reading, 93 Id. 77; Canfield Salt & Lumber Co. v. Township of Manistee, 100 Id. 166. Whether this rule should extend to cases of payment to relieve land from a lien for taxes need not be discussed, as that question is not involved. The action is not based upon the claim that the land is in danger of sale, but that, owing to the levy of the tax upon it and the requirement of the certificate, the plaintiff cannot sell the land.

We are aware that in a case resembling this (State v. Nelson, 41 Minn. 25), upon mandamus brought by the purchaser to compel the treasurer to receive the valid portion of a tax and issue the certificate, the supreme court of Minnesota held that the proper remedy was for the owner to pay the tax, and bring an action to recover it. But we are unable to agree with that decision. We consider it an extension of the rule, which we understand to limit payment to cases of threatened divestiture of property, under circumstances which would deny a judicial hearing before such divestiture, as in case of a sale of goods, or (in those states where it is held to aj>ply to real-estate) to cases where title to land is to be put in.jeopardy by a sale for taxes. It does not include cases where payment is made from speculative motives, as' to enable the owner to make an advantageous sale. If it did, it might as well be held to apply to a case where a purchaser would be lost by reason of the existence of the tax as to one where the deed could not be recorded for want of a certificate. In fact, it would be equally applicable to any case where the outstanding tax is an impediment to- any disposition that the owner might desire to make of the property. We do not deny that it might prove an embarrassment, but it does not follow that the public should be subjected to an action, for it does not fall within the reasons upon which the right depends. Instead of being a payment under duress of property, the seizure of which is threatened, it is at most a payment under duress of prospective profits.

But this is not as meritorious a case as the Minnesota case, where the owner was not permitted to record her deed. In that case it was said:

“Nor is it necessary, in order to constitute compulsory, as distinguished from a voluntary, payment, that the unlawful demand be made by an officer who is prepared to enforce it by process. There may be that kind and degree of necessity- or coercion which justifies and virtually requires payment to be made of the illegal demands of a private person, who has it in his power to seriously prejudice the property rights of another, and to impose upon the latter the risk of suffering great loss if the demand be not complied with. * * * Obviously, the question of necessity must be considered and determined under the circumstances affecting each particular case. ' The reasons of necessity upon which the law, in this particular, must be deemed to be founded, are applicable in full force in this case, and would have justified the payment of the tax in question, and a subsequent recovery of it if illegal. The officer, of course, could not certify that the taxes were paid while this tax stood undischarged and its validity undetermined. The register of deeds was prohibited by law from recording the deed until the fact of payment should be thus certified to him. The relator .could not secure the recording of the deed by which she had acquired title to this land. If not recorded, she was liable, by force of our registry law, to be wholly divested of her title,” etc.
“The inducements which the law thus imposes upon a grantee of lands to pay a tax of inconsiderable amount, rather than to suffer his title to valuable -lands to be thus jeopardized, may well be deemed to amount to compulsion. The coercion is certainly as real, and of substantially the same nature, as in the case of a distress of goods.”

If it be conceded that “coercion" is a proper term to; use in connection with that case, it is a negative coercion,, while the case of the threatened seizure of goods is active. One is an inconvenience resulting from the application of a general rule of law to the circumstances in which the party places himself; the other, an unwarranted attempt to enforce an invalid claim by depriving him of specific property under color of process in its nature' judicial. The relator was at liberty to pay or not. If not, she was denied the privilege of recording her deed. The right to record the deed was no inalienable right. It originated in the liberality of the public. It was a privilege that she held in common with others. Unquestionably, the legislature might abolish the recording of .deeds altogether, unless it was a constitutional right, and in that case the electors could do so. If this is so, can it be said that it was not within their power to make the right conditional, or to limit it to lands upon which the taxes should be paid? And, if it be, is it done at the expense of making the public liable for damages resulting from the inability of persons who are not entitled to the benefit of the act,, because not able to comply with its conditions, or, what is? substantially equivalent thereto, through payment and suit, to recover the money? Why should it be assumed that', the object of the law was to induce people to pay invalid; taxes? Is it not quite as reasonable that the public policy,, which makes the record of deeds desirable for the preservation of evidence of title, should also have a care for the.prospective purchaser, and offer him some protection by an. assurance that the taxes were paid up to the date of the-record of the last deed? Several states have similar requirements, but we have never supposed that they gave. to. persons the right to pay the taxes, and get the benefit of' the registry, and then bring an action for the money paid,, under the pretense that it was paid under duress, thereby removing clouds and quieting titles in courts of law. We very much doubt the policy of the law which would subject townships, counties, and cities to actions under such circumstances. It is doubtless right that persons who pay money to avoid seizure of their chattels should be permitted to recover the same by action where such seizure would be a wrong, but we doubt the propriety of so extending the rule as to permit citizens to speculate upon such right. In the Minnesota case the county was subjected to an expensive suit to recover $6.25, so that the plaintiff might record her deed. But the reasons given for the decision in that case do not exist here. There the owner was deprived of the benefit resulting from recording her deed; here the plaintiff’s deed is recorded, and he has all the security that the record can afford. As already stated, his only complaint is that his purchaser is to be deprived of the right to record his deed without paying an invalid tax, which operates to lessen the price obtainable for his land. We think such a case is not within the rule.

The money couiits, however, are valid; and the fact that a bill of particulars limits the claim, to which it might restrict the proof, cannot be permitted to affect the declaration upon demurrer. The bill of particulars is no part of the pleading, and might be amended before or at the trial. Cicotte v. Wayne Co.., 44 Mich. 173, 59 Id. .512. The abstract right to bring a suit by declaration -upon the common counts against a county is settled by ■former adjudications. Endriss v. Chippewa Co., 43 Mich. 317; Cicotte v. Wayne Co., 44 Id. 173, 59 Id. 512. The demurrer is to the whole declaration, and, inasmuch as the money counts are good, it cannot be sustained. 1 Shinn, PI. & Pr. § 683; Chitty, PI. 664, and cases cited.

The judgment of the circuit court must be reversed, •and an order entered overruling the demurrer, and remanding the cause for further proceedings.

The other Justices concurred.


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    Susan H. Williams v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company.

      Railroad companies — Negligence—Operation of road 'under traffic agreement — Possession—Evidence—Failure to produce boohs upon notice — Pleading—Extent of injuries.

    1. Plaintiff sued for personal injuries received by falling through a cattle guard on a railroad which the defendant was operating at the time of the trial under a traffic agreement made with the company which owned the road. The plaintiff contended that there was sufficient evidence that the defendant was in possession of the road at the time of the accident to raise a question for the jury. On a review of the testimony, plaintiff’s contention is sustained.
    2. A witness for the defendant, who had been treasurer of the road owning the line, testified on cross-examination that $80,-000 of the earnings of the road were sent by him to bankers in New York city, at the direction of the president of his company, who was also president of -the defendant, and that certain books in the defendant’s possession, and which it had failed to produce pursuant to notice, would show what disposition was made of said money. And it is held that the natural and proper inference, if these facts were established, was that the defendant did not care to produce said books, for the reason that they would show the receipt of this money by the defendant, and counsel might properly urge it to the jury.
    3. The accident occurred January 2, 1892. The defendant admitted that it was in possession of the road April 1, 1892. And it is held that a mortgage upon the road, given by the defendant, and dated May 15, 1893, had no tendency whatever to prove that the defendant was in possession of the road'at the time of the accident, and that it was error to admit it.

      4. It was averred in the declaration that plaintiff’s body was injured by dislocation, straining, and laceration, and injuries of' muscles, nerves, and otherwise. The evidence tended to show that the knee and hip were injured, and that in consequence-the sciatic nerve became inflamed; a physician testifying that,, as a result of the injury, neuritis, described as an inflammation of a nerve, followed. This evidence was objected to, because no secondary injuries or results were counted upon. And is held that the evidence was properly admitted, under the declaration.
    Error to Cass. (O’Hara, J.) ■
    Argued October 3, 1894..
    Decided December 7, 1894.
    Negligence case. Defendant brings error.
    Eeversed.
    The facts are stated in the opinion.

      Howell & Garr and G. E. Gowgill (John T. Dye, of' counsel), for appellant.

      E. L. Hamilton and Edward Bacon, for plaintiff.
   Hooker, J.

Plaintiff recovered a judgment for personal injuries received by falling into a cattle guard, fromi which defendant appealed. The' principal contest in the-case was over the question of defendant’s operation of the-road; it being claimed that it was not in possession of the-railroad at the time of the accident, though it was after-wards. The road was owned by another company. The-plaintiff claims that there was sufficient evidence that-defendant was in possession of the road at the time of the-accident to raise a question for the jury. The evidence of' the plaintiff upon the subject consisted of:

1. A traffic agreement granting to the defendant the-right to operate the road0 and have its earnings for 100 years from July 1, 1891, -and promising, on the part off the defendant, to raise $4,000,000 upon its bonds to equip-the road.
2. A mortgage executed by the officers of both companies to secure said bonds, given in conformity to' the agreement.
3. Testimony by the plaintiff that .she bought a ticket at the station of the Big Four Company (that being a name by which defendant is known), and that she supposed it was over the Cleveland, Cincinnati, Chicago & St. Louis road; that “James Truitt was the company’s agent at that place;” and that she supposed “the station and platform were on the ground of this' corporation.” To this last statement, counsel for the defendant said, “No question about that.”
4. James Truitt’s testimony- that 'he knew when this railroad company extended, its right of way through there, and that the station, platform, and cattle guard were on the company’s ground. He was not asked whether he was the agent of the defendant.

Upon this showing by the plaintiff, it is clear, and neither side disputes, that the Cincinnati, Wabash & Michigan Company was the owner of the railroad, and that whatever rights to enter into possession of or operate it the defendant had, it acquired from that company. In the light of that admitted fact, the testimony of Truitt did not tend to show that the defendant was in possession, as his testimony was as consistent with the idea that he referred to the Cincinnati, Wabash & Michigan Company as to the defendant. It was apparently undisputed that at the time of the trial the defendant was in possession of the road. The statement of the plaintiff that she bought a ticket at the station of the Big Four road was true, in a sense, though the Big Four road was not in possession at the time. She bought it at the station, and that station was, when the question was asked, the station of the Big Four road. Her suppositions at the time of the trial that the ticket was over the Cleveland, Cincinnati, Chicago & St. Louis Line, and that the station - and platform were upon the company’s ground, threw no light on the question of possession at the time of the accident.

It is plain that the testimony of these two witnesses did not furnish much light upon the question of defendant’s possession at the time. Some of this testimony was admissible, because it tended to show that the accident occurred upon the railroad, and that the ticket was purchased of the company which was operating it, and the motion to strike it out was therefore properly denied. Moreover, under ordinary circumstances, such evidence would be sufficient to sustain a verdict, if there was no evidence to the contrary. It cannot be said that it was no evidence of possession, and therefore the court did not err in refusing the request to charge that it was not direct evidence that the defendant was in possession. If the statement was intended to be that the plaintiff bought a ticket at the defendant’s station, technically it was as direct and comprehensive as though she had said that she knew that she bought a ticket at the station of the defendant. It was not as emphatic. It is the other evidence in the case that renders this testimony weak, and it is because it begets the belief that the witness may not have discriminated between the two companies. It was therefore for the jury to determine its value. The court might, with propriety, have said to the jury that this testimony should be viewed in the light of plaintiff’s means of knowing whether the defendant was in possession, but it was not error to refuse to instruct the jury that the testimony of the plaintiff and Truitt was not competent evidence that the defendant was operating the road.

■ The contract and mortgage were legitimate evidence that the defendant was in possession, and, in the absence Of the testimony given for the defendant, would have supported the claim of possession sufficiently to sustain the verdict. Being so, we cannot say that the testimony of the defendant has overcome it.

Defendant’s counsel argue that the right of defendant to take possession does not establish- the fact that it did so, and this is true; but the fact remains that, having a grant of the road, and having issued its bonds as it promised to do, it is not a violent presumption to conclude that it had taken possession. That presumption can be overcome by proof to the contrary, but it is for the jury to say when it is overcome. Moreover, cross-examination of the witnesses called to overcome this presumption developed the fact that the earnings of this road were not retained by the treasurer of the Cincinnati, Wabash & Michigan Company, but, contrary to ordinary custom, if not in, violation of the statute, they were sent to a bank in New York by direction of the president, who, it turns out, was president of the defendant; and it also appears that the treasurer’s book of the Cincinnati, Wabash & Michigan Company was in the hands of the defendant company, and that, although the court postponed the trial nearly a month to enable defendant to produce books and papers which would throw light upon the subject, notice to produce which was given, no effort appears to have been made to produce this book, which was no further away than New York. We think there was room for the argument that while the road was ostensibly managed through the employés of the Cincinnati, Wabash & Michigan Company, and in its name, it was actually conducted by and for the benefit of defendant, — a question which could only be determined by the jury. What has been said disposes of several of the assignments of error in relation to the introduction of evidence.

Counsel for defendant complain . that the plaintiff’s attorney was permitted to read to the jury the notice to produce documents and papers, and to argue that the defendant had not complied with the order of the court by producing them. It is said that the records of the court show no such order, that it would have been void if made, and that counsel could not properly assume that defendant had books or papers which it did not produce. The record in the case shows that the court made an oral order to produce these books, and gave counsel nearly a month to do so. This order- was probably no more or less than the usual determination, when such questions arise, that the plaintiff was entitled to the production of such documents. No exception is called to our attention, in relation to this order, taken at the time it was made. As to .the assumption that documents existed, it is sufficient to say that the witness testified that he sent $80,000 of the earnings of the road to New York, at the direction of the president of his company, and the books would show what disposition was made of it, which books were in defendant's possession. Those books were covered by the notice or. order, but were not produced. What was the inference, if not that defendant did not care to pro■duce them, for the reason that they would show the receipt .of this money by defendant? It was a natural and proper one, if these facts were established, and counsel might properly urge it upon the jury.

Various exceptions were taken at the close of the argument of counsel to statements made in the course' of such argument; among others, to his charge that “defendant was trying to dodge this liability by • claiming it was not operating the road;” that “defendant was a sea serpent, which had swallowed the small fish,” i. e., the C., W. & M., in 1891; that “it did not mortgage its other lines,but only that of the O., W. & M;” that the defendant Vas liable, regardless of the actual management; that “the Cleveland Company was a monster.” It is true that this controversy practically turned upon a cold- question of fact, i. e., whether the defendant was in control of the road at the. time' of the accident; ■ and> were the question to be submitted to a bench of judges, we doubt if counsel "would have couched his points in the language which he seems to have thought proper to use to the jury. The ■court might properly have required counsel to confine himself to a discussion of the facts' in more temperate language. We cannot, however, presume that it had the •effect that counsel for defendant seems to think it had. It may have had an , opposite effect upon the jury. We must suppose that, as men of intelligence, they were ■capable of comprehending the point at issue, and that, as honest men, they determined that point upon the testimony and the instructions of the court. As a rule, the trial court must control these - matters, in which it has a large discretion.

A mortgage upon the road, executed by defendant, ■dated in 1893, was offered in evidence. Counsel for ■ defendant allege this to have been .error. It is asserted in opposition that the language read from it was not objected to, or any exception taken. A reference to the record ■ shows that the admission of this mortgage was strenuously •opposed, and exception taken. It was dated a year after the admitted time that the defendant took possession. It was clearly immaterial, and had no tendency whatever to prove possession two years before. It was error to admit it. Pierson v. Spaulding, 67 Mich. 640, 649; Dikeman v. Arnold, 78 Id. 455, 460, 83 Id. 218.

A physician gave evidence tending to show that, as a :result of the injury, nenritis followed. This is alleged to have been inadmissible, under the declaration, because no •secondary injuries or results were counted upon. Neuritis was described as inflammation of a nerve. The declaration -alleged that plaintiff’s body was injured by dislocation, .straining, and laceration, and injuries of muscles, nerves, •and otherwise. The evidence tended to show that the knee and hip were injured, and that the sciatic nerve became inflamed in consequence. We think this was properly admitted, under the declaration.

It is unnecessary to discuss in detail the various other assignments of error. Many of them are upon refusals to •give specific requests, where the ground is covered by the general charge, or where, under our view of the evidence, there was no occasion to give them. We have examined them, and find nothing in them. calling for a reversal of the case.

For the error above mentioned the judgment must be reversed, and a new trial ordered.

The other Justices concurred.

       The traffic agreement was dated April 1, 1891; the mortgage, May 9, 1891; and the accident occurred January 2, 1892.


text:
    Charlotte Rolf v. The City of Greenville.

      Municipal corporations — Defective sidewalk — Accumulation of ice and snow.

    This case is ruled by McKellar v. City of Detroit, 57 Mich. 158, where it was held that a city is not liable for injuries received by a fall on a sidewalk, occasioned by the accumulation thereon, from natural causes, of ice and snow.

    Error to Montcalm. (Davis, J.)
    Submitted on briefs October 4, 1894.
    Decided December 7, 1894.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are sufficiently stated in the opinion.

      Ellsworth & Barden, for appellant.

      3V. 0. Griswold, for defendant.

       See Canfield v. Railway Co., 78 Mich. 356; Kannenberg v. City of Alpena, 96 Id. 53.

   Grant, J.

Plaintiff’s claim for damages is based upon the allegation of negligence that a certain sidewalk along Franklin street, one of the most public streets in the city, was dangerous and unsafe for public travel by pedestrians, and was so rendered unsafe by a heavy snow which had fallen many days previous to the accident, and “had been tramped and beaten down by the school children and others walking thereon when the snow was soft, after which rain and warm days had melted it from the sides of said sidewalk, leaving -the center thereof uneven and irregular ice, much higher in the center of said sidewalk than at the sides thereof.” A demurrer was interposed and sustained.

The case is expressly ruled by McKellar v. City of Detroit, 57 Mich. 158. Discussion is unnecessary.

Judgment affirmed.

The other Justices concurred.