text:
    WENZEL v. JOHNSTON.
    1. Contracts—Statute or Frauds—Original Promise.
    In an action to recover for labor performed upon a building belonging to L., evidence that defendant told plaintiff that he would have some work for him, and that L. would see him about it; that plaintiff met L., and gave him an estimate of the cost of the work, but afterwards, suspecting L.’s responsibility, told defendant that he had found that L. was without credit, whereupon defendant said that it was all right, that he (defendant) was putting money into the matter and helping L. along, that all the money would go through his (defendant’s ) hands, and that he would pay plaintiff,—is sufficient to justify a jury in finding a direct promise by defendant to pay for the work.
    2. Trial—Instructions.
    A statement in the charge that it is the contention of plaintiff that he went to defendant, and made a designated statement, is not available error, where the court, on objection being made, withdraws the statement, and says that the contention of plaintiff is that that was the effect of what was said between the parties.
    3. Same—Remarks or Counsel.
    No presumption of injury arises from the use of improper language by counsel in his argument to tb.e jury, where the court immediately declares such remarks improper, in the presence of the jury.
    Error to Wayne; Hosmer, J.
    Submitted February 3, 1897.
    Decided March 29, 1897.

      Assumpsit by Paul Wenzel against Cyrus Johnston for work and labor performed. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Charles C. Stewart, for appellant.

      James D. May, for appellee.
   Montgomery, J.

This is an action for a plumber’s bill. The plaintiff recovered, and the defendant brings error. The principal question is whether there was any evidence tending to show a contract made direct to the defendant, or whether, on the other hand, the evidence is open to no other construction than that the promise of defendant was collateral, and hence within the statute of frauds. The learned circuit judge submitted this question to the jury. Defendant contends that this was error. Plaintiff’s testimony was to this effect:

“Cyrus Johnston had some deal with a man by the name of Peoples, and he had some work to finish up for him, which I did for Mr. Johnston, and he told me that he would have some more work for me to do by and by. It was not direct for him, but for a man named Lake, I had the dealings with; and he told me Mr. Lake would call upon me and see me in regard to the work. Well, I received a postal card from Lake to meet him either at his house or Johnston’s office; and Mr. Lake and I went to the place, and I figured the work over, and gave him a price on it, and we came out to the Twenty-Fifth street houses, and I saw some excavating done on those. * * * I thought some one had started the work, and did not get his pay, and did not trust the man; so I was suspicious myself about it, and I went to Mr. Johnston, and told him that I looked up Mr. Lake’s' record, and I found that his credit was no good, and so Mr. Johnston told me, he says, ‘That is all right.’ He says, ‘I am putting $520 into this matter, and I am helping Lake along, and all the debts and money go through my hands, and I will pay you the money.’”

On cross-examination he repeated this statement, and added that he told Mr. Johnston that he would go ahead with the work if he (Johnston) said so; that nothing was said about charging it to Johnston, but that he (Johnston) told plaintiff that he would pay his bill. In answer to the question, “Didn’t he tell you then that there would be moneys going through his hands, if that went through, and he would try to get the money for you ? ” the plaintiff replied:

“No, sir; he did not say anything about that. He spoke about some deals they were making, but he said he let Mr. Lake have $520. * * *
“Q. What, then, did you understand?
“A. I understood that Mr. Johnston'was to fix up matters for Mr. Lake with his money. That is the way I understood Mr. Johnston.
“Q. That is, that Mr. Johnston was going to loan Lake $520?
‘A. He said that he let him have $520. I did not know whether Mr. Johnston was to pay me out of the $520 or out of some other money.”

The defendant’s testimony was opposed to this of the plaintiff, and it appeared that, upon the ledger of the plaintiff, the account was first charged to Lake; but the testimony of the plaintiff and his bookkeeper tended to show that the original charge on the day book was to Johnston, with Lake’s name added for the purpose of identification.

We are unable to say that, upon this testimony, there was no evidence of a direct promise. Defendant contends that the record shows a contract with Lake prior to the undertaking of Johnston, and fails to show that that contract was abrogated. The evidence was for the jury to construe. By the plaintiff’s testimony, no contract appears to have been completed with Lake, and the jury would be justified in construing the promise as a direct promise by Johnston.

Complaint is made of the charge of the court, but, as no novel questions are involved, we think it sufficient to say that the charge, in our judgment, fairly covered the case, and presented the issues to the jury.

It is claimed that the circuit judge misstated the evidence to the jury. The court, in opening his charge, in stating the plaintiff’s claim, said that—

“The contention of the plaintiff is that, after he had examined the work, he immediately proceeded to find out what the pecuniary responsibility of Lake was, and, having satisfied himself that Lake was not pecuniarily responsible, he immediately went to Johnston, and said, ‘ Mr. Johnston, I am not going to give credit to Mr. Lake,’ and thereupon—”

Here he was interrupted by defendant’s counsel with the statement that the witness had made no such statement on the stand. Then the court added:

“I take that back. The contention of the plaintiff is that that was the effect of what was said between them, The contention of the plaintiff in this case, and the contention of his attorney, is that the conversation had between them, between himself and Johnston, was of that purport, although not in that language.”

We think there was no error in this.

Complaint is also made of submitting to the jury the question as to whether the plaintiff looked to Johnston as original promisor, but, as already stated, we think that the evidence was sufficient to justify the submission of this question to the jury.

There is also complaint of the language of counsel on the argument of the case to the jury, but we think, in view of the fact that the court immediately declared the remarks of counsel improper in the presence of the jury, that no presumption of injury to the defendant can arise.

While the case is evidently a close case upon its facts, and the testimony on the part of defendant, as it appears in the record, would seem to have been quite persuasive, yet we have not been able to agree with defendant’s counsel that there was no case for the jury; and, as we discover no damaging error in the case, the judgment will be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    CITY OF GRAND RAPIDS v. WILLIAMS.
    1. Disorderly Conduct—Sufficiency of Complaint.
    A complaint alleging that the respondent was guilty of indecent, insulting, and immoral conduct, by peeking into the windows of an occupied house, which was not his residence, sufficiently charges a violation of an ordinance against “indecent, insulting, or immoral conduct.”
    3. Same—Intent.
    An improper or unlawful purpose is not an essential element of the offense charged.
    3. Same—Allesation of Place.
    The place of the offense is sufficiently designated as “a house on the corner ” of two specified streets within the city.
    4. Same—Evidence.
    Testimony of persons who saw respondent at the time of the alleged offense, that, about 45 minutes later, they attempted to detain him, and that he broke away and escaped, is competent for the purpose of identification.
    5. Same.
    Evidence that, at a late hour, the respondent left the public sidewalk, proceeded to a lighted residence some six feet distant, and looked into a window, the shade to which was raised from six to twelve inches, is sufficient to establish the offense.
    Exceptions before judgment from superior court of Grand Rapids; Burlingame, J.
    Submitted January 15, 1897.
    Decided March 29, 1897.
    George Williams was convicted of violating an ordinance relative to disorderly persons.
    Affirmed.

      Birney Hoyt, for appellant.

      Henry J. Felker and Harvey Joslin, for appellee.
   Moore, J.

The respondent was convicted of a violation of section 1 of an ordinance of the city of Grand Rapids, entitled “An ordinance relative to disorderly-persons,” which reads: “ All persons who * * * shall be engaged in any illegal or improper diversion, or shall use any indecent, insulting, or immoral language, or shall be guilty of any indecent, insulting, or immoral conduct, or behavior, in any public street or elsewhere in said city, * * * shall be deemed to be disorderly persons, and, upon conviction thereof, shall be punished,” etc.

The complaint, omitting the parts purely formal, reads as follows:

“ On the 8th day of September, 1895, at the city of Grand Rapids aforesaid, and within the corporate limits of said city, one George Williams was then and there guilty of indecent, insulting, and immoral conduct and behavior, by peeking in the windows of a house on the corner of Wenham avenue and Lagrave street, said house being then and there occupied by persons living therein, and not being the residence of said Williams, and was then and there found in a state of intoxication, to . the evil example of all others in like case offénding, contrary to the provisions of section 1 of an ordinance of said city, entitled ‘An ordinance relative to disorderly persons.’”'

Objection was made to the admission of any testimony, because the complaint does not state an offense—First, because looking into a house where persons reside is not immoral, insulting, or indecent; second, because no improper or unlawful purpose is alleged; third, because the complaint does not set forth any circumstances from which it would appear that the alleged act was immoral, insulting, or indecent; fourth, because it does not allege that any person was in the house; and, fifth, because the complaint does not describe the place of the alleged offense.

The testimony disclosed that in the night, between half past 10 and 12 o’clock, respondent was seen to leave the sidewalk, and go to the bay window of a residence, about six feet from the walk; and, when within about six inches of the window, he leaned over, with his arm on the window sill, and, putting his right hand above his eyes, looked into the window, and remained in that position about two minutes. The room was lighted. The window shade was six to twelve inches above the window sill. The room was occupied by several persons, some of whom were women, and all were dressed decorously. The respondent did not live at the residence where this occurred, and, so far as the record discloses, he had no business to call him there. Two witnesses, who saw the respondent while at the window, were allowed, over the objection of the respondent, to testify that half or three quarters of an hour later they attempted to take hold of the accused and detain him, when he jerked away from them, and jumped over a high board fence, and escaped.

After the testimony was closed, the respondent asked the judge to direct a verdict in his favor. This request was refused, and, after calling the attention of the jury to the provisions of the ordinance and the contents of the complaint, the court charged them:

‘ ‘ It is no offense for a person walking along on the sidewalk, and without trespassing upon the premises of another, to look through an uncurtained window or a window partially covered with a curtain. But if a person steps off the sidewalk, not at the usual approaches or walks to a house, and for no legitimate purpose, and without the consent and against the will of the owner, in such case he may be a trespasser and wrongdoer; and if, after so trespassing, he proceeds to a window with a curtain raised from five to twelve inches, and leans upon the window sill, and with no legitimate purpose in so doing, such peeking in at such window so shaded by curtains at 11 or 12 o’clock at night may, in law, be said to be peeking into the window, although he is not looking through a small crack; and in this case I will leave it to you to say whether the respondent was peeking into such window or not.”

Other features of the case were discussed, and the jury returned a verdict of guilty.

The second objection to the complaint is decided against the position of the respondent by the case of City of Grand Rapids v. Bateman, 93 Mich. 135.

The objection that the complaint does not sufficiently designate the place of the alleged offense is not well taken. Quin v. State, 65 Miss. 479.

The question involved is, did the complaint state an offense punishable by the ordinance? We cannot conceive of any conduct much more indecent and insulting than for a stranger to be peeking into the windows of an occupied, lighted residence, and especially at the hours of night when people usually retire. The judge was not in error in holding that the complaint stated an offense.

The testimony admitted as to what occurred between the respondent and the parties who were watching him was entirely competent for the purpose of identifying him.

The verdict of the jury was justified by the evidence.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. FREY.
    1. Criminal Law—Threats—Sufficiency of Information.
    An information alleging, in the language of the statute (2 How. Stat. § 9093), that respondent maliciously threatened to ‘ ‘ accuse ” a designated person of a specified crime, with intent to extort money, sufficiently shows a threat to prefer charges against such person in some court.
    2. Same—Proof of Good Character.
    A witness who has testified to the good character of the respondent may be asked on cross-examination if he has not heard that respondent had attempted suicide.
    3. Appeal—New Trial—Assignments of Error.
    Whether assignments of error based upon the denial of a motion for a new trial are available to test questions raised at the trial,—qucere.

    Exceptions before judgment from Calhoun; Smith, J.
    Submitted February 4, 1897.
    Decided March 29, 1897.
    Orin J. Frey was convicted of threatening to accuse another of crime, with intent to extort money.
    Affirmed.

      Hulbert & Mechem, for appellant.

      A. W. Lockton, Prosecuting Attorney (O. Scott Clark, of counsel), for the people.
   Hooker, J.

The respondent was convicted of the offense of maliciously threatening to accuse another of crime, with intent to extort money.

It is first urged by counsel for the appellant that the information and the proof “fell short of charging or proving a threat to prefer charges in some court, or set in motion the criminal machinery of the State.” The language used in the information was, “did verbally, unlawfully, and maliciously threaten to accuse,” etc., “of a crime, to wit, the crime of sodomy and bestiality,” etc. This follows the language of the statute, and, under many decisions, that is all that was necessary. There-are many authorities that hold that the term “accuse” means, in the law, “to charge with an offense judicially, or by a public process.” This is Webster’s definition, and that given in the text of the American & English Encyclopedia of Law (2d Ed., Vol. 1, p. 481). If Ibis is the correct legal definition of the term, it must be given that meaning in the statute. See 1 How. Stat. § 2. Indeed, counsel for the defendant must so contend in order to sustain their point “that proof of a threat to accuse judicially is necessary to establish the offense.” If they are correct in this, it must be for the reason that the word has this legal meaning, and it would seem to us that the word might be given the same meaning in the information as in the statute. So, although defendant’s counsel may be right about this, the judge was justified in allowing the case to go to the jury, as there was testimony tending to show a threat to prosecute the complainant for the crime.

Complaint is made that the court permitted the jury to find a verdict upon a mere threat to accuse publicly, but we think not. That does not appear to have been a mooted question. There are no requests to charge shown upon the subject, and, in fact, the court told the jury that it was for them “to say whether he was threatened with the criminal action, or not, of sodomy or bestiality.” The court’s attention was not called to any omission by an exception.

We think the instructions upon the doctrine of “reasonable doubt” sufficiently plain, and the definition of the threatened crime sufficiently accurate for the purposes of' the case, and we are not disposed to interfere with the reasonable exercise of judicial discretion in discussing the duties and dangers of the jury room. We must take the charge as certified to be accurate, and we are not disposed to extend the effect of good character, as a defense, by denying to the prosecution a liberal cross-examination. What effect, upon jurors’ opinion of character, evidence that the person whose character was under consideration had attempted suicide, would have, would doubtless depend upon circumstances; but we think it was proper to show upon cross-examination that the witnesses had heard it, as bearing upon the value of their testimony.

A new trial was asked upon several grounds, the same being set up as allegations of error in the motion. This was denied, when specific exceptions and assignments of error upon the various grounds were taken to the denial of a new trial. Strictly speaking, these raise no questions upon the proceedings at/the trial, except by indirection. A large discretion is confided to the circuit judge in motions for new trial, and the extent to which assignments of this character are available to test questions raised at the trial may be a matter of doubt. But, as these assignments have been treated as sufficient, we are not disposed to question them, further than to call attention to a doubtful practice.

We are of the opinion that the trial was free from error, and the conviction is therefore affirmed.

The other Justices concurred.


text:
    JANSEN v. McQUEEN.
    1. Evidence—Court Files—Attachment.
    The flies in an attachment suit are admissible in evidence in trover against the attaching officer, although no affidavit is attached to the original writ, where such affidavit is shown to have been attached at the time of the levy.
    2. Fraudulent Conveyances—Evidence.
    Evidence as to the source from which a wife obtained the money paid for real estate conveyed to her is admissible upon an issue whether a subsequent transfer, of personalty from the husband to the wife was fraudulent as to his creditors.

      S. Evidence—Conspiracy to Defraud.
    Where some testimony has been introduced tending to show a conspiracy to defraud, evidence of statements made by one of the conspirators, in furtherance of the common purpose, is admissible against the others.
    Error to Kent; Grove, J.
    Submitted February 10, 1897.
    Decided March 29, 1897.
    Trover by Aaltje Jansen against John McQueen. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Dodge & Eastman, for appellant.

      Wolcott & Ward, for appellee.
   Moore, J.

This case has been here before, and is reported in 105 Mich. 199. Many of the questions presented in the present record were in the case when it was here before. Those questions must be treated as res judicata.

Briefly stated, this is an action of trover, in which plaintiff seeks to recover for the value of four horses and other property which had been levied upon by the defendant, who was the sheriff of Kent county, in whose hands was a writ of attachment running against the husband of plaintiff at "the suit of Nelson, Morris & Co. Plaintiff objected to the receipt of the files in the case, because no sufficient affidavit was attached to the original writ of attachment. The testimony of the sheriff and the files show this objection is without force. While the affidavit was not- attached to the writ at the time of the trial, the evidence disclosed that it was attached to it at the time of the levy.

The trial judge allowed counsel to cross-examine plaintiff as to the sources from which she got the money which paid for the real estate that was conveyed to her in 1885, and to contradict her testimony in relation thereto. This is said to be error. The -court charged the jury in relation to that testimony as follows:

“The ownership of the real estate concerning which testimony has been offered is not involved in this suit, in the least. It must be taken as a settled fact in this case, for the purposes of this suit, that Mrs. Jansen owned all the real estate, and had owned the same since November 16, 1885, and was entitled to the rents and profits therefrom during all of the time since that date. If you should find that Mrs. Jansen’s income from rents of her real estate during 1890 and 1891, and to May 14, 1892, amounted to about $60 per month, you have a right to consider this, in determining her ability to purchase the horses, the single harness, and make the loans to her husband as she claims. There is no question, gentlemen, but that, under the evidence in this case, she had ability to make the loans; rents were hers; but the contention raised on the part of the defendant is that she did not make the loans; that the money which she passed to her husband was not intended, at the several times it was passed, as loans. And it is claimed on the part of the defense that, during the four years prior to the commencement of the meat business by Jansen, he was earning large wages,—$21 a week,—and prior to that, for quite a period, $18 a week, and prior to that $15, and that he was industrious, and that he brought home his money to his wife, excepting his personal expenses, and that she had his money as well as her own. And it is claimed on the part of the defendant that, when she-let him have these several sums of money, it was not understood between them, or intended, that it was a loan of her own money to him. The defense claim that this idea of a loan is an afterthought; that, as between Mr. and Mrs. Jansen, she owned the real estate at that time conveyed, and was in 1885, as against him, entitled to the rents and profits, and they belonged to her. So that there is no question about that. But the question for you to determine is whether or not the parties treated the moneys that Mr. Jansen had from time to time received from the plaintiff as loans, as she claims, whether or not they were intended as loans, or whether or not it was not in consideration of the fact that she had and handled his money as well as her own. * * *
“Where the question of fraud is involved, as in this case, it is the duty of the court to extend to counsel upon both sides a very wide latitude of inquiry, because it often depends upon circumstances, or a combination of circumstances, whether or not a fraud had been perpetrated; and, in cases where the question of fraud is involved, quite an extreme latitude of inquiry has to be given to counsel upon both sides,—on both sides of the question of fraud,-—-and for that reason in this case a very wide range has been taken in the introduction óf testimony. The title to the property, the real estate, is not involved in this suit,—the title merely to the horses, the harnesses, and the bundle of straps; but the whole relations of the parties to each other through their whole married life, nearly, and their handling of property between themselves, has been admitted in evidence in this case, not for the purpose of determining the title to the realty, which I told you before was unquestionably in Mrs. Jansen since 1885, but as bearing upon the question of whether or not the fraud has been perpetrated with reference to this suit, and all of these facts and circumstances are to be considered only in so far as they tend to a solution of the question here involved, namely, whether or not the property was the property of Mrs. Jansen, and whether or not it was fraudulently conveyed.”

For the purpose stated by the learned judge, we think the testimony was competent.

The plaintiff claimed to own the horses by purchase of them from third parties; her husband not to have the title until he had paid her for them. It was the claim of the defendant that that was not true. He claimed that the horses belonged to the husband; that, for the purpose of defrauding his creditors, she entered into an arrangement with' her husband and her son to defraud them, and for the purpose of carrying out that arrangement, on Saturday, the 14th day of May, 1892, he made a bill of Sale to her of the property in question; that ,on the same day she helped him to buy a suit of clothes, and they together, from the proceeds of meat bought of Nelson, Morris & Co., paid a note she had signed, long before it became due; that Monday her husband took an early train and left the State; that her son then took the team, with her knowledge, and instead of getting the usual quantity of meat, $30 or $40 worth, got upwards of $130 worth, and converted it into money, and paid to her $100 of it. He gave evidence tending to show the truth of this contention. The trial judge allowed the defendant to show what the son said when he got the meat. This is said to be error, because the plaintiff was not present. We think it part of the res gestee, and tended to establish the theory for which the defendant was contending.

We do not think it necessary to discuss the other assignments of error.

Judgment affirmed.

The other Justices concurred.


text:
    SLOMAN v. MERCANTILE CREDIT GUARANTEE CO.
    1. Insurance—Credit Guaranty—Construction of Policy.
    A credit guaranty policy insured against loss sustained by the insolvency of debtors owing the insured for merchandise sold and delivered between April 1, 1898, and March 31, 1894, and provided that the policy should “expire” on the latter date. It further provided that the insured should notify the insurer of the insolvency of any debtor within 10 days after receiving information of the same; that final proofs of loss must be presented within 90 days after the expiration of the policy; and that no loss should be payable unless included in such proofs, except that, should the policy be renewed on or before its expiration, losses occurring after such expiration, on sales made during the existence of the policy, should be provable in the same manner as though occurring under the new policy. Held, that losses occurring after the expiration of the policy on sales made during its existence were recoverable, though the policy was not renewed, if final proof of loss was made as required.
    2. Same—Proofs of Loss—Instructions.
    The refusal to instruct the jury, in an action upon such policy, that the proofs of loss could not be taken as evidence of the matters therein contained, is not ground for reversal, where there was other uncontradicted evidence of the loss.
    3. Same—What Recoverable.
    A claim consisting entirely of attorney’s fees, expenses, interest, and protest fees is not within the terms of the policy.
    4. Trial—Instructions—Harmless Error.
    A judgment will not be reversed becahse a portion of the charge was open to misinterpretation, where it is apparent that no one was misled thereby.
    ON MOTION TO MODIFY,
    Appeal—New Trial.
    A case will not be remanded for a new trial where the appellee remits the only claims upon which error is assigned and sustained, on the ground that the verdict is still excessive,—especially where it is uncertain from the record that the verdict is excessive.

      Error to Wayne; Frazer, J.
    Submitted February 10, 1897.
    Decided March 29, 1897.
    Motion to modify denied April 27, 1897.

      Assumpsit by Samuel A. Sloman and another against the Mercantile Credit Guarantee Company of New York on a policy of insurance. From a judgment for plaintiffs, defendant brings error.
    Affirmed on condition.

      Wisner & Harvey, for appellant.

      Sloman & Groesbeck, for appellees.
   Hooker, J.

This action was brought upon an insurance or guaranty policy, which provided that—

“In consideration of the sum of $72, hereby insures S. A. Sloman & Co., of Detroit, in the State of Michigan, to an amount not exceeding $2,000; against loss sustained by reason of the insolvency of debtors owing the insured for merchandise usually dealt in, sold and delivered in the regular course of business between the 1st day of April, 1893, and the 31st day of March, 1894, both inclusive, in excess of f per cent, on the total gross sales and deliveries made during said period, subject to the terms and conditions printed below or attached hereto. This policy shall expire on the 31st day of March, 1894.”

The insured sent 9 notices of loss to the insurer before March 31, 1894, and 22 after that date, but within 90 days after such date. Those last mentioned were admitted in evidence, subject to an objection “that these losses were not covered by the policy, and were not sent in during the life of the policy.”

Under a request to charge, it is claimed that the court should have excluded from consideration by the jury all claims of loss not shown to have accrued before April 1, 1894. The question discussed is whether the policy covers losses where the insolvency or act of the debtor which makes the debt a loss, within the meaning of-the policy, occurred after March 31, 1894, that being the date of the expiration of the policy; and counsel for the plaintiffs argue that it cannot be reasonably said that the parties'intended that the sales on the last day, viz., March 3.1st, should not be protected by the policy, as would be practically the case if the defendant’s claim is the correct one, They (the plaintiffs) urge that the loss may occur afterwards, and that if the insured serves his notice within 10 days after learning of the loss, and makes his final proofs of loss within 90 days after the date upon which the policy expires, he may recover for a loss that occurs after such expiration. From that portion of the policy quoted, it is said that the losses to be covered are those that arise upon sales made between the first day of April, 1893, and March 31, 1894. There seems to be no dispute about this. In addition.to that portion hereinbefore quoted, the policy provides that' “the insured shall notify this company by registered mail * * * of the insolvency of any debtor, within 10 days after he receives information of the same;” also, ‘‘final, verified proof of loss * * * must be presented * * * within 90 days after the expiration of the policy;” and, again, “no loss shall be payable unless included in said proof of loss submitted within said stated period. Should, however, this company renew the policy, or issue a new one, on or before the expiration hereof, a loss occurring after such expiration, on a sale and delivery of merchandise made during the existence of this policy, shall be provable in the same manner as if it occurred under the renewal or new policy.”

It is obvious that this policy contemplates a credit business, for there would be nothing to insure if it does not. The time and terms of credit are not fixed, nor can we indulge in any assumptions upon the subject beyond the inference that the usages of trade in this respect were expected to be followed. Of necessity, there would be sales made during a time immediately preceding March 31, 1894, upon which the plaintiffs would receive no indemnity under this policy if defendant’s .construction is to be adopted, unless insolvency should immediately follow the purchase. The sales made during the period are clearly covered by the policy, and it is improbable that it was intended that the insured should be deprived of indemnity upon such sales; and, unless the policy clearly indicates such intent, the writing should not be so construed. The clauses which are said to give the policy such effect are the statement that “this policy shall expire on the 31st day of March, 1894,” and the clause relating to renewals, already quoted. Under the several provisions quoted, the right to recover a loss depends upon the presentation of final, verified proof of loss within 90 days after the expiration of the policy. To this there is an exception, viz., in case a new policy or renewal is issued on or before the expiration of the old policy, in which case the intent is plain that the insured should be permitted to recover for a loss occurring after the expiration of the original policy, at any time when losses occurring under the renewal might be recovered. This appears from the last clause mentioned, and is dependent upon it; and it is not necessary to infer from that provision that losses occurring after the 31st of March are not recoverable at all unless by reason of the renewal. It is just as consistent to say (so far as this provision is concerned) that the loss occurring thereafter is limited to cases where proof is filed ivithin 90 days as to say that they are excluded altogether unless the policy is renewed. This leaves the contention with no other support than the statement regarding the expiration of the policy, which is met by the improbability of the parties intending to take all substantial benefit away from the insured upon a considerable portion of the sales actually covered by the policy, and an extension of 90 days, or (perhaps more properly speaking) a limitation to 90 days, of the time within which proofs should be made regarding losses upon sales made during the life of the policy. We are of the opinion that the fairer view to take is that the provision in relation to the expiration of the policy refers to the time when sales, to be covered thereby, shall cease, and that it does not determine the time when losses must occur upon such sales, but that these shall be recoverable, regardless of that date, subject to the limitation as to final proof. This conclusion is justified by the rule that an ambiguity in an instrument is to be resolved against the draftsman, which is supported by authorities cited by counsel. See Tebbets v. Guarantee Co., 19 C. C. A. 281, 73 Fed. 95; Wallace v. Insurance Co., 41 Fed. 742; Wadsworth v. Tradesmen's Co., 132 N. Y. 540; Mercantile Credit Guarantee Co. v. Wood, 15 C. C. A. 563, 68 Fed. 529; Wisconsin Marine, etc., Bank v. Wilkin, 95 Wis. 111; Shakman v. U. S. Credit System Co., 92 Wis. 366. We think the court did not err in admitting proof of the losses which occurred after March 31, 1894.

The final proofs of loss were received in evidence against objection, and the court failed to instruct the jury (as requested) that such proofs could not be taken as proof of any fact therein contained. We are satisfied that such document was not proper evidence of the fact of loss, but, if there was not other evidence of loss upon each of the items submitted to the jury, counsel do not show or state the fact. No testimony was offered by defendant’s counsel, and the prima facie case of plaintiff, not being contradicted, was sufficient evidence, and defendant was not injured by the failure to give this request. Counsel say that this document was assumed to be prima facie evidence of the claim, but we find testimony which supports it. Mr. Sloman testified, without objection, that the paper “correctly represents the insolvents’ accounts and losses sustained,” etc. Upon cross-examination he was examined at length upon the respective items.

The next important question raised relates to the alleged refusal to instruct the jury that “there must be borne by the plaintiffs losses amounting to $525 before the defendant’s liability begins.” The court did instruct the jury upon this subject. He said:

“It appears' that, in estimating the losses under the terms- of this contract, the amount of yearly sales which the plaintiffs were authorized to make, as far as this contract bears upon the losses in this case, was $70,000. It also appears that there is to be deducted from these losses three-quarters of one per cent., according to the terms of this policy.”

If it appeared that this meant three-fourths of 1 per cent, upon the losses, instead of upon $70,000, it would be erroneous; but there is everything to indicate that the plaintiffs’ counsel made no such claim, and that all concerned understood the amount to be $525. Apparently, the court supposed that he was giving the substance of the request, as indeed he was if the amount was not in dispute. His attention was not called to the matter by exception or otherwise, and we should not reverse the case upon a technical construction of language if it misled no one.

Error is assigned on the refusal to direct the jury “ that the loss claimed on A. S. McDonald’s account was not a loss under the terms of the policy.” Mr. Sloman said that it appeared that all that remained of this item consisted of attorney’s fees, protest fees, and expenses, and sundry small claims, which McDonald would not recognize or pay, and which they did not care to litigate. Counsel say that this testimony shows that the entire claim was for attorney’s fees, expenses, interest, and protest fees, and in no sense a claim for goods sold and delivered, and was not covered by the policy, and, furthermore, that it appears that in the computation it must have been allowed in full. It seems to be conceded by counsel for the plaintiffs that this was a claim for attorney and other fees, etc., and not a balance upon sales; and we think the evidence shows it. It does not appear that it was not included in the verdict, nor is its allowance in any way disputed by counsel. It is true that the court repeatedly said that attorney’s fees could not be recovered, and it is not surprising that this subject should have been overlooked as to other items. We think, however, that the request should have been given, and this claim withdrawn from the jury.

We are of the opinion that the sale of the Burroughs & McKinstry stock by the sheriff brought this claim within the terms of the policy. The claim' against Webb was clearly so, under the execution returned unsatisfied, and the same is true of the Zabits claim, upon the report of the collection agency to which it was sent.

As there is reason to believe that the McDonald claim was included in the verdict, we feel constrained to reverse the judgment, and direct a new trial, unless the amount of said claim shall be remitted. The defendant should recover costs of this court. It is so ordered.

The other Justices concurred.

ON MOTION TO MODIFY.

Hooker, J. In this cause the defendant’s counsel move a modification of the judgment, counsel for the plaintiffs having elected to remit the sum of $140.32, as permitted by the opinion filed. The motion is based upon the claim that, after deducting the sum of $140.32, the judgment is still greater, by $107.18 than it should be.

The original brief of the defendant contains a computation purporting to show that plaintiffs sustained losses upon accounts against “rated debtors” of $375.36, and unrated debtors $500, making $875.36, from which the “initial loss” to be borne by plaintiffs, of $525, should be deducted, leaving, with interest added, $380.13 as the total, including the McDonald claim of $140.32, which being deducted, would leave $239.81 as the limit of defendant’s liability. It is admitted that the question was not raised by an exception, but it is urged that, inasmuch as error was found upon another point, the court should have ordered a new trial, inasmuch as the judgment was clearly excessive after deducting the McDonald account of $140.32. If we accept the theory of defendant’s counsel upon the law, we must then inquire whether the evidence in the case supports their claim that the verdict wms excessive.

In defendant’s original brief, counsel submit a table which they assert to be correct. Whether it is or not depends on the version of each account being verified by the undisputed testimony. We are not only not referred to the pages of the record sustaining the defendant’s contention as to all of these items, but the brief does not advise us that all of the testimony is included in the bill of exceptions. The brief filed on this motion is open to the same criticism. It gives a list of debtors that it says were rated, and states that the others were unrated, quoting appellant’s statement of the case in the former brief as evidence of the fact, and stating that this was not disputed by counsel for the plaintiffs. As the case was presented, counsel for the plaintiffs had no occasion to dispute the accuracy of the statement, as its only importance was in connection with an assignment which was not based upon an exception. In the brief filed in opposition to this motion, it is disputed, and the claim made that a number of rated debtors are classed as unrated in defendant’s table.

It is a general rule that error will not be presumed, but must be made to appear. The only error clearly shown involved $140.32, and we required plaintiffs to remit the amount or submit to a new trial. We are now asked to grant a new trial upon the statement of counsel that the verdict is excessive. If this record clearly showed that items were included in the verdict unjustly, it may be doubted if we should send the case back for a new trial, if error was not assigned upon them, inasmuch as counsel see fit to remit the only claims upon which error was assigned. Still less would we be justified in doing so where the record makes it uncertain that the verdict was excessive. It is the practice of this court to refrain from -ordering new trials where the record is such as to enable it to eliminate the errors, and render a judgment for the items regarding which no error is shown. One of the most pernicious features of our jurisprudence is the opportunity afforded to defeated litigants to compel their opponents to follow cases up and down through various courts, until costs become the principal controversy, and the original causes of action merely incidents, and citizens hesitate to commence a petty justice’s court case, lest it should ultimately involve them in financial ruin. Justice is practically denied to a large class of people. While it seems to be the policy of the law to allow this sort of thing, it has always been the practice of the courts to put an end to litigation as soon as the circumstances of the case will permit, with safety to the interests involved. The presumption is, as it should be, that justice was done in the circuit court; and, the contrary not being shownj we see no occasion to compel the plaintiffs to submit to another trial, upon a suspicion that the verdict was excessive.

The motion is therefore denied.

The other Justices concurred.


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    SEELEY v. SHARRER.
    Mortgages—Judicial Sale—Purchase by Mortgagor.
    A mortgage given by an execution debtor pending a bill by him to set aside an execution sale of the land mortgaged, upon which bill a decree is entered giving the purchaser at such sale a lien for improvements and disbursements, to be paid by the debtor, the land to be sold in case of default, is valid as against the debtor and a grantee from him with notice, where the land is sold under such decree, and purchased by a third person for the benefit of such debtor.
    Appeal from Tuscola; Beach, J.
    Submitted February 10, 1897.
    Decided March 29, 1897.
    Bill by John F. Seeley against John Sharrer to quiet title. From a decree for complainant, defendant appeals.
    Reversed.

      T. W. Atwood, for complainant.

      John E. Kinnane, for defendant.
   Hooker, J.

On November 3, 1874, one Hasty purchased the land in question. November 9, 1877, he gave a mortgage for $275 upon said land to John and William Fletcher. December 1, 1879, a sheriff’s deed of said land was executed to William C. Buchanan, upon a levy made April 29, 1878. December 22, 1879, Buchanan sold to Calder, subject to the Fletcher mortgage. December 10, 1884, Calder sold to Brian, who entered upon and possessed the premises. The Fletcher mortgage was paid by Calder and Brian, and it was discharged. July 9, 1885, Hasty filed a bill to set aside the execution sale, also filing lis pendens. March 13, 1888, Hasty made a mortgage of $350 upon the premises to Parker and Conley, Jr., and it was recorded July 17, 1888. December 4, 1888, Hasty’s bill was dismissed. January 24, 1889, a stipulation was made setting aside this decree, and that a new decree should be made, giving a lien to Brian for his improvements, claims, and disbursements, including the Fletcher mortgage, amounting to $950,' which was to be paid by Hasty; and, in case of his default, the land was to be sold, the same as upon foreclosure of a mortgage. February 12, 1889, a decree was made in accordance with the stipulation. August 5, 1889, a sale under this decree took place, and the premises were bid in by one Corcoran for $1,003. On the same day the land was deeded to Hasty, who paid for the same by money borrowed of Willis J. Beecher, to whom he at that time executed a mortgage for $1,100 on the land. May 4, 1893, Seeley, the complainant, bought the land of Hasty, taking a warranty deed subject to the $1,100 mortgage. June 29, 1893, Sharrer, the defendant, took the $350 Parker and Conley mortgage by assignment, and on March 22, 1894, commenced to foreclose the same. This suit was then commenced by Seeley, to set aside this mortgage and the foreclosure proceedings, and to quiet his title to the land under his purchase from Hasty. The circuit court granted a decree as prayed, and defendant has appealed.

The claims of the complainant, as stated in his brief, are:

1. That the $350 mortgage was without consideration.

2. That on August 5, 1889, when the land was sold at commissioner’s sale, it was agreed by the Conleys that said mortgage should be discharged.

There is evidence that Hasty’s suit to set aside the execution sale was brought under an arrangement with William Conley, Sr.; that the mortgage was given at Conley’s instigation, and by his direction, to his son and Parker; and that the only consideration was their services in the matter. It is claimed that, when it became apparent that the land must be sold under the decree, the Conleys and Corcoran undertook to save something for Hasty, and that .Corcoran succeeded in raising $1,100 through Seeley, the complainant, upon the promise of the Conleys that the $350 mortgage should be discharged. Such is Corcoran’s testimony. It is, however, contradicted, by both the Conleys, and by Parker, and by a letter written by Conley, Jr., from East Saginaw, on August 9th, which states that he wrote Seeley that he and Parker would discharge the mortgage when it was satisfied. We are of the opinion that the evidence strongly preponderates in favor of the defense upon the proposition that there was an. agreement to discharge this mortgage which should bind the defendant.

There appears to have been sufficient consideration for this mortgage, and, while a bona fide sale to Corcoran might have had the,effect of cutting it off, a purchase by Hasty would not have that effect. Both bill and testimony show that the purchase, while in the name of Corcoran, was for the benefit of Hasty •„ and the inference is strong that the object was to cut off the Conley and Parker mortgage. If not, why should not Hasty have bid in the property, or, better yet (because it would have saved the expenses of the sale and subsequent costs), have paid the amount of the decree ? It is obvious from the testimony that the purchase by Corcoran was for Hasty, Corcoran at the time acting as his attorney. We have no doubt that this mortgage should be held to stand as a valid mortgage as against Hasty, and, as the complainant is a grantee with notice, it is equally binding upon him.

We have no alternative but to reverse the decree of the circuit court in chancery, and dismiss the bill, with costs of both courts. Ordered accordingly.

The other Justices concurred.


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    MICHIGAN MUTUAL FIRE INSURANCE CO. v. WAYNE CIRCUIT JUDGE.
    Mandamus—When Lies.
    Except in cases where delay is calculated to produce injury, mandamus will not issue to control the action of the circuit judge if the aggrieved party has a remedy by appeal or writ of error. So held where the writ was sought to compel the circuit judge to quash a summons for alleged insufficient service.

      Mandamus by the Michigan Mutual Fire Insurance Company of Lansing to compel Joseph W. Donovan, circuit judge of Wayne county, to dismiss a suit for want of proper service.
    Submitted January 5, 1897.
    Writ denied April 6, 1897.

      Harlow P. Davock, for relator.

      George Gartner, for respondent.
   Moore, J.

The office of the relator is at Lansing, Mich. The Improved Match Company commenced suit against the relator, by summons, in the circuit court in Wayne county. No service was had of this summons, and an alias summons was taken out, and an order made, based upon an affidavit filed in the cause, directing the service to be made upon George E. Moody, and that a copy be mailed at Detroit, Mich., to .the relator, at Lansing, Mich. The relator appeared, and moved to quash the summons, because the service was not properly made, and was not made upon the defendant, nor upon an officer or agent of the company. The motion was overruled, and this is an application for a writ of mandamus to compel the circuit judge to vacate his order overruling the motion to quash, and requiring him to dismiss the case for want of proper service. The circuit judge returns, among other things, that more than a year had elapsed, when the motion to quash was made, since the fire occurred for which suit was brought; that, by the terms of the policy, the liability of the company expired within one year from the fire, unless suit was brought; that the plaintiff had been diligent in seeking to get service; and that, if the service was not adequate, a plura alias summons should issue, instead of dismissing the suit, so as to prevent the suit abating; and that, in the exercise of his discretion, he denied the motion to quash.

In view of the growing frequency of applications for mandamus asking this court to review the action of subordinate courts, resulting in overloading this court with work which does not finally dispose of the case, it becomes important to decide whether, in a situation like the one at bar, the writ should issue. We are aware that the decisions of this court have not been uniform, and for that reason it is difficult to lay down a rigid rule which shall be followed in all cases. As the writ is a discretionary one, perhaps it is not desirable that an inflexible rule should be established. We think, however, a review of the decisions will indicate, in a general way, when the writ should, and when it should not, issue. It is a general rule that the writ vjill not lie where the law has provided another remedy. It is said a writ of mandamus issues because there is no other adequate remedy, and justice and good government require a redress of the wrong. A court will ,not be required by this writ to take any action when another remedy is provided. It will not take the place of an appeal or writ of error. Merrill, Mand. §§ 201, 209. To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented. Merrill, Mand. § 198; People v. Cass Circuit Judge, 39 Mich. 410; Talbot Paving Co. v. Detroit Common Council, 91 Mich. 262. The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction when it had jurisdiction in fact, because, if the writ was not entertained under such circumstances, the. party would be without remedy. On the contrary, if the court claims jurisdiction in a case where it is not entitled to exercise it, such action of the court can be reviewed by appeal or writ of error. In such a case the writ of mandamus ought not to issue. Applying these general principles to the case now here, we do not regard it as a case where the writ should issue. If the court is wrong in asserting .jurisdiction, the aggrieved party has a remedy by writ of error.

The writ is therefore denied.

The other Justices concurred.


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    DOOLEY v. DOOLEY.
    Mortgages—Fraud—Evidence.
    A decree setting aside a mortgage on the property of a married woman for fraud alleged to have been perpetrated upon her by her husband and the mortgagee was reversed, the testimony upon which it was rendered being more consistent with the theory that the mortgagor and her husband were conspiring to, defraud the mortgagee out of his rights under the mortgage.
    Appeal from Kent; Grove, J.
    Submitted January 12, 1897.
    Decided April 6, 1897.
    Bill by Margaret Dooley against Patrick Dooley and Abner Case to restrain the foreclosure of a mortgage. From a decree for complainant, defendant Case appeals.
    Reversed.

      Taggart, Knappen & Denison, for complainant.

      Smith & Colgrove, for appellant.
   Hooker, J.

The complainant filed a bill to restrain a foreclosure by advertisement on the ground that her signature to the mortgage was obtained by fraud practiced upon her by the mortgagee, his agent, one Russell, and her husband. From a decree in her favor, defendant Case appeals.

The case depends upon what is thought of the testimony. Eliminating the testimony of the husband, which is shown to be unworthy of credit, as he admits concocting the scheme which he says was carried out by himself and the defendant Case, we think the statement of the defendant Case seems more probable than complainant’s testimony, and we are satisfied that the alleged fraud is a fabrication, and that, instead of being the victim of a fraud, she and her husband are attempting to perpetrate a fraud upon the defendant Case.

The decree is reversed, and a decree of foreclosure will be entered here, adjudging the sum of $2,631.40, with interest at 8 per cent, upon $2,593.30, and. at 6 per cent, upon the remainder, from the 17th day of November, 1895, to be due upon said mortgage, and authorizing a sale of said premises upon proper notice, in default of payment of said sum, with interest at 8 per cent, and the costs of both courts, within 30 days after entry of the decree, and that the cause be remanded for further proceedings.

The other Justices concurred.


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    McKELVEY v. McKELVEY.
    Dower—Stipulation in Divorce Suit — When Effectual as Release.
    A stipulation in divorce proceedings that the payment of a specified sum of money and the conveyance of certain lands to the wife shall he in full for all expenses and alimony against the husband is effectual as a release of dower rights, although there is no express mention of dower therein, if such is the intention and understanding of the parties.
    Appeal from Barry; Buck, J., presiding.
    Submitted January 12, 1897.
    Decided April 6, 1897.
    Bill by Johnson McKelvey, an incompetent, by George O. Dean, his guardian, against Kate McKelvey, to restrain the prosecution of an action in ejectment. From a decree for complainant, defendant appeals.
    Affirmed.

      Philip T. Colgrove, for complainant.

      Walter S. Powers, for defendant.
   Hooker, J.

The defendant, a young woman, married Johnson McKelvey some years ago. At that time he was possessed of considerable property, and was quite old, and at his request she deeded to him her dower interest in 40 acres of land. Subsequently she filed a bill for divorce and alimony, and prayed that he might be required to deed to her the premises mentioned. Arrangements were made whereby she agreed to accept a deed of said parcel and $35 in cash in lieu of all interest in his estate. It took the form of a stipulation, and, although dower was not specifically mentioned, it provided that such payment and conveyance-should be in full for all expenses and alimony against him. The defendant’s testimony shows that she understood that it was in full settlement of all claims upon him. That also appears from the testimony of other witnesses. She afterwardsbrought ejectment to recover dower in the lands of Mc-Kelvey, and this bill is filed to restrain /such suit. The circuit judge granted the prayer of the bill, and an examination of the testimony satisfies us of the propriety of his decree. The case is within the rule of Owen v. Yale, 75 Mich. 256, and Adams v. Storey, 135 Ill. 448 (25 Am. St. Rep. 392).

The decree is affirmed, with costs of both courts.

The other Justices concurred.


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    LARIVERRE v. RAINS.
    1. Estates in Land—Vested Remainders—How Created.
    A remainder limited to the grantor’s grandchildren, B. and C., after a life estate to A., their father, is not made contingent by a provision in the grant that, if A. should leave other children at his death, they should take the estate with B. and C., share and share alike, since a remainder limited to a class vests in such as are in esse, subject to open and let in those afterwards born.
    2. Same—Estates for Life—Conditions—Termination.
    A grant by a married woman of the use and occupancy of one-half of a parcel of land to her husband for his life, “in case he lives with her as long as she shall live, and sees ñt to occupy the same as a home,” and of one-half to her son for life, “providing he sees ñt to use and occupy the same so long as a home,” with the further provision that the life interests shall be nontransferable, and that, subject to such interests, the grant shall be considered an absolute conveyance to the remainder-men named therein, is terminated, so as to entitle the latter to possession upon the grantor’s death, by the tenants’ ceasing to occupy the land for residence purposes and attempting to convey away their interests.
    3. Same—Recording Laws—Curative Act.
    Under the curative act (2 How. Stat. § 5727), making the record of certain defective instruments, executed in good faith “and for a valuable consideration,” notice of all the rights secured thereby, a recorded but unacknowledged instrument, conveying land to the grantor’s grandchildren, subject to life estates in her husband and son, and reciting a valuable consideration, is notice to subsequent purchasers from the grantor, though the consideration was paid by the son alone.
    4. Mortgages—Statutory Foreclosure—Power of Sale.
    Where the words, “Incase of nonpayment,” were omitted before the words, “of the principal sum, or of the interest thereof,” in the provision of a mortgage by which a power of sale was sought to be conferred, foreclosure by advertisement was unauthorized.

      .5. Same—Rights of Purchaser.
    A purchaser upon foreclosure, whose title fails because the mortgage did not contain a sufficient power of sale, succeeds to all the rights of the mortgagee.
    Appeal from Chippewa; Steere, J.
    Submitted January 14, 1897.
    Decided April 6, 1897.
    Bill by Peter Lariverre and another, infants, by their next friend, Joseph Lariverre, against Hoel D. Rains and another, to set aside certain conveyances as a cloud on complainants’ title. From a decree dismissing the bill, complainants appeal.
    Reversed.

      John W. Shine, for complainants.

      George A. Cady, for defendants.
   Moore, J.

This case involves the construction of a paper reading as follows:

“Memorandum of an agreement made.and entered into this 8th day of March, A. D. 1883, by and between Mrs. Julia Lariverre White, of Sault Ste. Marie, Chippewa county, in the State of Michigan, of the first part, and Edward White, her present husband, and Joseph Lariverre, her son, and her grandchildren, Joseph and Peter Lariverre, children of her said son, Joseph Lariverre, and his heirs, of the second part, witnesseth that the said party of the first part, for a valuable consideration, and for love and affection for the said parties of the second part, and because she hath heretofore transferred to her other heir at law, Mrs. John Roberts, her proportion of the real estate of which she was possessed, hereby expressly agrees to and with the said parties of the second part to give them the real estate now owned by her and as follows:
“First. The use and occupancy as long as he shall live, in case he lives with her as long as she shall live, and sees fit to occupy the same as a residence and home, the west half of that part of private land claim No. 117, in said village of Sault Ste. Marie, now owned by her.
‘ ‘ Second. And the use and occupancy of the east half of said claim during his life, providing he sees fit to use and occupy the same so long as a home and residence, she hereby gives to the- said Joseph Lariverre, her son.
“Third. And hereby agrees, and by these presents conveys absolutely, subject to the above conditions, all of said private land claim one hundred and seventeen, now owned by her, to her said grandchildren, Joseph and Peter Lariverre, children of the said Joseph, her son, or to his»heirs; it being expressly understood that, if her said son Joseph shall have more children at the time of his death, they shall share and share alike the said property. It is further understood that in case of her death, and the death of her said husband, before the death of her said son Joseph, then he, her said son Joseph, shall have the use and occupancy during his life of both of said parts of said claim on the terms and conditions above specified, to wit, to be used and occupied by him as a home and residence. It being expressly understood and agreed that the right to use and occupy, as above stated, is intended to be a life interest, and not transferable so far as the said Edward White and Joseph Lariverre, Sr., are concerned. It is also agreed that it is not necessary for the heirs of the said Joseph Lariverre to sign this, agreement; that this instrument is to be considered and is understood to be an absolute conveyance to them, on the conditions and restrictions above herein stated, of the said private land claim one hundred and seventeen.
“In witness whereof the parties have hereunto set their hands and seals this 8th day of March, A. D. 1883.”

This paper was signed by Julia Lariverre White, Edward White, and Joseph Lariverre. It was witnessed -by three witnesses. There was no certificate of acknowledgment attached to it, but it was recorded, in the record of deeds and also in the record of contracts, in the office of the register of deeds, the day it was drawn. At the time the paper was drawn all of the persons whose names appear in it resided upon the land.

In January, 1889, Julia L. White deeded her' son, Joseph Lariverre, the east 48 feet of said land. January 24, 1889, Joseph Lariverre deeded the 48 feet to Maria B. Doyle. January 28, 1889, Julia L. White and Edward White deeded the. west 50 feet of the land to Maria B. Doyle. The complainants, Joseph Lariverre, Julia L. White, and her husband were then all living on the land. When the above conveyances were made, Mrs. Doyle took and retained possession of the land until September, 1890, when she conveyed it to the defendants.

November 22, 1878, Julia Lariverre White made a mortgage for $50 to Mr. Trempe on land which is claimed to be the land involved in this litigation. The description reads: “All of private land claim (not heretofore deeded) number one hundred and seventeen, in the village of Sault Ste. Marie,” etc. This mortgage was recorded in a book having a printed form, and, to make the record conform to the original mortgage, a pen was drawn through several lines of the printed matter. Some words usually employed in the power of sale contained in a mortgage were left out. That portion of the mortgage reads as follows:

“Provided, always, and these presents are upon this express condition, that if the said party of the first part shall and do well and truly pay, or cause to be paid, to the said party of the second part, the sum of fifty dollars and interest, on or before the 22d day of November, A. D. 1878, of the said sum of fifty dollars, or of the interest thereof, or any part of said principal or interest, at the time, in the manner, and at the place above limited and specified for the payment thereof, then, and in such case, it shall and may be lawful for the said party of the second part, his heirs, executors, administrators, or assigns, and the said party of the first part does hereby empower and authorize the said party of the second part, his heirs, executors, administrators, or assigns, to grant, bargain, sell, release, and convey the said premises, with the appurtenances, at public auction or vendue, and on such sale to make and execute to the purchaser or purchasers, his heirs and assigns, forever, good, ample, and sufficient deed or deeds of conveyance in law, pursuant to the statute in such case made and provided, rendering the surplus moneys (if any there should be) to the said party of the first part, her heirs, executors, or administrators, after deducting the costs and charges of such vendue and sale aforesaid. And it is further expressly agreed that as often as any proceeding is taken to foreclose this mortgage, either by virtue of the power of sale herein contained or in chancery,” etc.

It will be observed that the words, “In case of the nonpayment” (of said sum of $50), are not contained in the' mortgage. This mortgage was not discharged of record when Mrs. Doyle made her purchase from Mrs. White and Joseph Lariverre. The negotiations on the part of Mrs. Doyle were conducted by her husband. He obtained an assignment of the mortgage, and commenced proceedings under the statute for its foreclosure. There was unpaid on the mortgage $22.50. April 26, 1889, the land was sold by the sheriff to Maria B. Doyle for $65.75, and a sheriff’s certificate issued to her. Mr. Doyle knew all about all the papers herein mentioned when he was negotiating for the land. The record does not disclose that defendants had knowledge of the paper of March 8, 1883, unless the recording of the paper is to be deemed notice to them. Mrs. White died before this suit was brought. The complainants commenced this proceeding to remove the cloud upon their title created by the conveyances made subsequent to March 8, 1883, and to be allowed to redeem from the mortgage which was attempted to be foreclosed. The circuit judge dismissed the bill, and complainants appeal.

The first question to be decided is, What was the estate conveyed to the complainants by Mrs. White? It was the idea of the circuit judge that the estate was that of a contingent remainder. The complainants were living when the instrument was made. They were known to Mrs. White, and named by her in the instrument, and are still living. Their interest in the land was limited by an event which, though uncertain as to when it might occur, was an event that, because all men must die, would certainly happen in the future, so that there could be no doubt about that event ultimately happening. Were it not for the fact that the instrument of conveyance provided that “if Joseph Lariverre, Sr., had more children at the time of his death, they should all share alike” with the complainants, no doubt could have arisen but what the estate created in the complainants was a vested one. 2 How. Stat. §§ 5526, 5527. The grant was not to the children who should survive their father, but it was made directly to those named, and, if the father should have other children, they, too, would share in the grant. .The birth of other children would not change the character of the estate, but simply the extent of it. The rule is: A remainder limited to a class vests in such as are in esse, subject to open up and let in those afterwards born. 20 Am. & Eng. Enc. Law, 854; 2 Washb. Real Prop. 599. This rule should be applied here.

The next question is, Have the life estates terminated ? Mrs. White died before this proceeding was begun. There was a limitation put upon the life estate of Edward White. The language used was: “The use and occupancy as long as he shall live, in case he lives with her [Mrs. White] as long as she shall live, and sees fit to occupy the same as a residence and home.” The language as to Joseph Lariverre is: “And to her son, Joseph Lariverre, the use and occupancy of the * * * land during his life, providing he sees fit to use and occupy the same so long as a home and residence. ” The instrument provided that the estate granted to Edward White and Joseph Lariverre was not transferable. Both of these men had ceased to occupy the land, and all of the life tenants had attempted to convey their estate to Mrs. Doyle, before this suit was brought. Edward White and Joseph Lariverre were forbidden to do this by the terms of the instrument. The death of Mrs. White terminated the life estate she had conveyed to Mrs. Doyle. We think the life estates had terminated at the time this proceeding was commenced. Ryder v. Flanders, 30 Mich. 336.

The next question is, Does the curative act (2 How. Stat. § 5727) apply to the instrument made by Mrs. White, so that its recording is to be deemed as giving notice to subsequent purchasers? The circuit judge was of the opinion that the statute did not apply, because no valuable consideration passed to Mrs. White for the making of the conveyance. The instrument on its face purports to have been made “for a valuable consideration and for love and. affection.” Joseph Lariverre testified that he was to furnish his mother with money, wood, and other things, as a consideration for the conveyance, and that he did furnish her these things to the amount of upwards of $200 in value. We think a valuable consideration was shown, and that the paper comes within the terms of the statute. Healey v. Worth, 35 Mich. 166.

Did the mortgage foreclosure result in giving a title to Mrs. Doyle that she could convey to defendants? A good many objections are made to the foreclosure proceedings, but we think it necessary to discuss but one of them. It has been repeatedly held that a foreclosure under the statute is an act of the party, and not a judicial proceeding, and that it is only possible when the mortgage is so framed as to authorize it. The mortgage contract containing the power of sale is the authority for the proceeding. If the power of sale is not conferred, the deed would not be valid. Doyle v. Howard, 16 Mich. 261; Hebert v. Bulte, 42 Mich. 489. The most essential part of the power of sale was omitted. We do not think Mrs. Doyle obtained title by virtue of the foreclosure sale, but she undoubtedly did succeed to the rights of the mortgagee. Gilbert v. Cooley, Walk. Ch. 494; Johnstone v. Scott, 11 Mich. 246; Hoffman v. Harrington, 33 Mich. 392; Lee v. Clary, 38 Mich. 223. Complainants should be required to pay this mortgage, and they should have the right to do so.

Decree is reversed, and one entered here in favor of complainants, with costs of both courts.

The other Justices concurred.


text:
    CLARK v. MAYOR, ETC., OF WEST BAY CITY.
    Mandamus—Public Contract.
    Although the charter and ordinances of a city require the official printing to be done in a newspaper published in such city, a local publisher whose bid has been rejected cannot compel the city, by mandamus, to award him the contract, after it has been let to outside parties and partly performed.

      Certiorari to Bay; Maxwell, J.
    Submitted February 2, 1897.
    Decided April 6, 1897.

      Mandamus by Walter C. Clark to compel the mayor, recorder, and common council of West Bay City to award the contract for the city printing to relator. From an order granting the writ, respondents bring certiorari.

    Reversed.

      S. G. Houghton, for relator.
    G. H. Francis, for respondents.
   Moore, J.

This is a certiorari proceeding to review the action of the circuit court in granting to the relator a writ of mandamus against the respondents. It is the claim of the relator that the charter and ordinances of West Bay City require the official printing of that city to be done in a newspaper printed in that city, if it will do it at a reasonable price. He also contends that he put in a bid to do the printing at a reasonable price, but that the council refused to make the contract with him, and made it with some one else. He petitioned for a mandamus to compel the respondents to enter into a contract with him, and his petition was granted.

It is the claim of the respondents that the charter and ordinances do not require the official printing to be done in a newspaper published in West Bay City; that the relator never made a proposal to do the printing that complied with the advertisement asking for proposals; that his proposal was not reasonable in price; that his newspaper was not generally circulated in West Bay City; that relator was not pecuniarily responsible; that his plant was mortgaged; that judgments were in existence against him, then unsatisfied; and that there was no certainty that he could perform his contract, if made. They also claim that on September 28, 1896, they made a contract, at a lower price than was bid by the relator, for a year, with the Bay City Times Company, to do the printing, which company at once commenced work upon the contract, and that this proceeding was not commenced until six weeks or more of said contract had been performed.

In disposing of this case, we do not think it necessary to express any opinion upon the question whether the relator had a legal right to a contract with the respondents or not. The contract has been let to another party, and is partly performed. Under such circumstances, the court should not interfere by granting the writ of mandamus. The case is clearly within People v. Campbell, 72 N. Y. 496, and Talbot Paving Co. v. Common Council of Detroit, 91 Mich. 262. If the right of the relator is clear and unquestioned, he has a right of action against the city.

Judgment of the court below is reversed, and order vacated, with costs of both courts.

The other Justices concurred.


text:
    FARWELL v. BIGELOW.
    1. Mortgages—Foreclosure—Amount op Decree.
    The amount paid by á mortgagee for taxes, his reasonable attorney fees, and compensation for his services, are properly included in a decree of foreclosure, where the mortgage expressly provides for such charges.
    3. Same—Marshaling op Securities.
    A mortgagee cannot be required by judgment creditors of the mortgagor, who have levied upon all of the property covered by the mortgage, to resort first to a subsequent security taken by him for the same indebtedness on land situated in a foreign country, where it is not made to appear that he could do so without prejudice to his own rights.
    Appeal from Wayne; Kinne, J., presiding.
    Submitted February 3, 1897.
    Decided April 6, 1897.
    Bill by Jesse H. Farwell against Albert E. Bigelow, Charles A. Bigelow, and others, to foreclose a mortgage. From a decree for complainant, defendants Bigelow appeal.
    Affirmed.

      Chamberlain & Guise, for complainant.

      James H. Pound, for appellants.
   Moore, J.

Prior to September, 1891, James A. Cook was engaged in the business of paving in Detroit. The defendant Calvin A. Cook was desirous that his contracts for paving should be successfully consummated. Mr. Farwell was possessed of a wide and varied experience in paving contracts. The two Cooks on June 39, 1891, made a writ:ten agreement with Mr. Farwell by which he undertook to aid them in getting money, by indorsing their paper, for an amount not exceeding 134,000, to enable them to carry on their contracts; and he also agreed to give James A. Cook the benefit of his advice and experience, for which Farwell was to be paid $3,000. On the same day, to secure Mr. Farwell, certain paving contracts were assigned to him. A similar contract was made September 29, 1891. On the last-named day, to further secure Mr. Far-well, a mortgage was given to him by Calvin A. Cook upon real estate in Detroit, and in Montmorency and Otsego counties. This mortgage was recorded the same day in Wayne county, and in the following month in the counties of Montmorency and Otsego. The mortgage recites that Mr. Farwell has indorsed certain paper, and refers to the agreements already mentioned, and that other indorsements are to be made and similar agreements are to be entered into. The condition of the mortgage is as follows:

“Provided, always, and these presents are upon the express conditions, that if the party of the first part shall and does well and truly indemnify and save harmless the said party of the second part of and from all damage, loss, or liability arising from or connected with his indorsement of said notes for five thousand ($5,000) dollars and four thousand ($4,000) dollars, respectively, hereinabove referred to, or of any note or notes given in renewal of, or in the place or stead of, the same; and if said Calvin A. Cook and James A. Cook shall well and faithfully keep and perform all the covenants and agreements to be kept and performed by them under the terms of said contract or agreement entered into between the said Jesse H. Farwell and the said James A. Cook and Calvin A. Cook bearing date the 29th day of June, A. D. 1891; and if the said Calvin A. Cook shall faithfully keep and perform all the covenants and agreements to be kept and performed by him under the terms of said certain contract or agreement entered into between the said Jesse H. Farwell and the said Calvin A. Cook bearing date the 29th day of September, A. D. 1891, and shall indemnify and save harmless the said Jesse H. Farwell from all loss or damage under or by virtue of said contracts, or either of them; and if the said Calvin A. Cook shall well and faithfully keep and perform all the covenants and agreements to be kept and performed by him under the terms of any similar contracts that may be hereafter entered into between the said Jesse H. Farwell and the said Calvin A. Cook, and shall indemnify and save harmless the said Jesse H. Farwell from all loss, damage, or liability under or by virtue of such similar contracts that may be hereafter entered into as aforesaid, or any of them, and shall also pay and discharge, as the same shall become due, all existing indebtedness to the said Farwell, or indebtedness that may hereafter arise to the said Farwell, through or by reason of loans, advances, or materials furnished by the said Farwell to the said Cook, or in any other manner, and shall indemnify and save harmless the said Farwell for and on account of all indorsements made or hereafter to be made by the said Farwell for or on account of, or for the benefit of, the said Calvin A. Cook,” etc.

Mr. Cook entered upon the business of paving, and Mr. Farwell helped him to procure money, and aided him with his advice. During the summer of 1891 the defendants Bigelow furnished Mr. Cook with lumber which entered into the construction of the paving. They received pay in part for the lumber furnished, but in April, 1893, Mr. Cook was in debt to them more than $3,000, for which they had sued him. On April 19, 1893, a judgment was rendered in their favor, and execution was issued. On December 12, 1893, a levy was made by them on the lands mortgaged to Farwell in Wayne county, and a little later a levy was made on the other lands covered by the mortgage. On December 31, 1892, Mr. Cook, to further secure Mr. Farwell, gave him a mortgage on lands in Ontario. April 4, 1893, Mr. Far-well and Mr. Cook had a settlement of their accounts, and agreed that the amount which was due Mr. Farwell under the terms of the mortgage was upwards of $23,000. As Mr. Cook did not pay, this proceeding was commenced to foreclose the mortgage given to Mr. Farwell. Before the decree was rendered in this cause, Mr. Farwell began proceedings to foreclose the Canadian mortgage, but this action did not result in a sale of the lands. The Bigelows were made defendants in the foreclosure proceeding begun in Wayne county, as they claimed an interest in the lands covered by the mortgage, by virtue of their levy. The bill of complaint contained the usual averments in a foreclosure bill, and asked for the usual decree in a foreclosure proceeding. The Bigelows answered the bill, proofs were taken in open court, and a decree was entered according to the prayer of the bill. From that decree,the Bigelows appeal.

In the answer filed by the Bigelows, they deny that Cook was indebted to complainant, and aver that Cook and complainant were, in law, copartners in the business, though Farwell, to shield himself from liability to the creditors,—the defendants among the number,—secreted that fact. It avers that complainant secretly caused the paving contracts to be assigned to him, and allowed the two Cooks to get supplies for paving on the credit of the paving contracts, which was a fraud upon them. They aver that Farwell has kept back sums that are usurious, that should have been used to pay for the supplies, and that the Cooks are not indebted to him as stated in the mortgage. They aver that their levies upon the land are' superior in right to any right of the complainant, and ask for a decree upon that basis, and for such affirmative relief as the evidence in the case may show them to be entitled to. Though they did not ask for it in the answer, they now ask for a marshaling of the assets, and that the complainant shall be required to foreclose his Canadian mortgage and exhaust his other securities before he is allowed to enforce the lien given him by the mortgage he is foreclosing in this proceeding.

The record contains upwards of 160 pages, but there are not many questions involved therein. We are satisfied from the record that Mr'. Cook was indebted to Mr. Far-well for the amount found to be due by the circuit judge, and that, by virtue of the mortgage he now seeks to foreclose, he has a lien upon the lands described therein. There was included in the amount found to be due Mr. Farwell a considerable amount for taxes paid by him. It is said they should not be included. The mortgage provided they should be paid and should be a lien. We think they are properly included. See Jehle v. Brooks, ante, 131, and cases there cited.

An amount, too, was included for attorney fees paid by Mr. Farwell, and a large amount for his services. It is said that to include these was error. The contract between Mr. Farwell and Mr. Cook provided for just these charges. The mortgage was given to secure these, as well as other amounts, and we do not think it error to include them.

It is said that the proceedings in relation to the Canadian mortgage were such as to put the title of the property in Mr. Farwell; that the value of the property was sufficient to extinguish the indebtedness from Mr. Cook to him. We do not think this position tenable. The fair inference to be drawn from the testimony is that the proceeding to foreclose the Canadian mortgage resulted in what is known in Ontario as an “ abortive sale,” the effect of which is to confer upon the mortgagee, under the power of sale contained in the mortgage, the right to sell the land at private sale. The record shows that but little of the land has been sold, and that what has been sold has been accounted for by Mr. Farwell to Mr. Cook. The balance is held by Mr. Farwell, as mortgagee.

The important question is, should Mr. Farwell pursue his other securities before resorting to his security upon property in Detroit and in this State, even though the security is in a foreign jurisdiction? It is the claim of the solicitor for appellants that this question should be answered in the affirmative, and he cites 1 Pom. Eq. Jur. § 396; 3 Id. § 1414; Trowbridge v. Harleston, Walk. Ch. 185; Mason v. Payne, Id. 459; Cooper v. Bigly, 13 Mich. 463; Southworth v. Parker, 41 Mich. 198; Sibley v. Baker, 23 Mich. 312; Gantz v. Toles, 40 Mich. 725. None of these authorities sustain the contention of appellants, unless it may be Trowbridge v. Harleston, and the statement and opinion in that case are so very brief that it is difficult to say just what was decided by it. The other cases hold, in substance, “that if one creditor, by virtue of a lien or interest, can resort to two funds, and another to one of them only,'—as, for example, where' a mortgagee holds a prior mortgage on two parcels of land, and a subsequent mortgage on but one of the parcels is given to another,—the former must seek satisfaction out of that fund which the'latter cannot touch.” The rule is, however, at once qualified by the statement: “ These rules must be taken with the modifications and exceptions that in their application the paramount incumbrancer shall not be delayed or inconvenienced in the collection of his debt, for it would be unreasonable that he should suffer because some one else has taken imperfect security.” 3 Pom. Eq. Jur. § 1414. And the rule must be so applied as to protect, not destroy, equities. Southworth v. Parker, supra. It was said by Cooley, J., in speaking of the design and object of the rules for the marshaling of securities at the instance of subsequent incumbrancers:

“Those rules never assume to take from a prior incumbrancer any substantial right. Their purpose is to require the prior incumbrancer to enforce his just rights in such order of priority as, without loss to himself, will protect, as far as may be practicable, the subsequently acquired interests of others.” Sibley v. Baker, 23 Mich. 315.

Justice Marston said:

“It is not sufficient that it appears a double security has been given, and that there is a junior incumbrance on a part of the property. It should be further made to appear that no injury will result from an enforcement of the rule; that the prior creditor’s rights will not thereby be impaired.” Detroit Savings Bank v. Truesdail, 38 Mich. 440.

See, also, Webber v. Webber, 109 Mich. 147.

In the case at bar, the mortgage sought to be foreclosed covers the same property, and no more, as is covered by the execution levy, so that it is doubtful if the doctrine of marshaling securities applies at all; but, if it be conceded that it does, the defendants have not made such a case as to entitle them to the relief they pray. The Canadian mortgage was given a long time subsequent to the mortgage on the Michigan lands. The lands covered by it are in a foreign jurisdiction. It is not made to appear that the money could be realized from them as quickly as from the Michigan lands. The mortgage is not in evidence, and we do not know its terms. It is not made to appear that Mr. Farwell would not be prejudiced, if required to resort to the Canadian security first.

Decree is affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    PEOPLE v. PARMELEE.
    1. Homicide—Corpus Delicti—Evidence.
    On a trial for murder, it appeared that the body of the deceased, a young unmarried woman, was found in the woods; that a bottle of laudanum was discovered near at hand, but there was no trace of poison in the stomach. There was evidence to show that, about the time she entered the woods, respondent was seen to enter from the opposite side; that a cry was heard shortly afterwards; that marks were discovered upon the face and throat of the deceased, and the ground was indented and limbs broken under her head; that hair was found upon the ground, which matched the respondent’s; and that the vial containing the poison had been seen in respondent’s house. Two physicians, who made a post mortem examination, testified that ruptured blood vessels were found in the throat, that the wind pipe was crushed, the lungs collapsed, the membranes of the brain congested, and that the nose was pressed to one side; that the symptoms were those of strangulation, and that the injuries could not have been inflicted by the deceased herself. Held, that there was ample proof of the corpus delicti.

      2. Same—Motive for Crime.
    In a prosecution for the murder of an unmarried woman, the fact that the deceased was a witness for respondent in divorce proceedings may be shown as bearing upon the relations which existed between them, and as tending to support the claim that respondent was the author of the pregnancy of the deceased, and that this furnished the motive for the crime.
    3. Trial—Remarks of Counsel.
    A conviction will not be reversed because of the improper remarks of the prosecuting officer in his argument to the jury, where they were provoked by the intemperate language of respondent’s attorney, and the jury were instructed that all such remarks should be disregarded.
    Error to Grand Traverse; Corbett, J.
    Submitted February 4, 1897.
    Decided April 6, 1897.
    Woodruff Parmelee was convicted of murder in the first degree.
    Affirmed.
    The respondent was convicted of the murder of one Julia Curtis, an unmarried woman, aged 22 years. Her father was a farmer, and she lived at home. She was rather slender, weighing about 100 pounds. The respondent was also a farmer, living about a mile north of the Curtis home, twice married, and twice divorced. About 1 o’clock in the afternoon of April 29, 1895, Miss Curtis, with a small basket and shovel, left her father’s house, and went into the woods near by, with the supposed purpose of gathering flowers. She did not return, and her parents, becoming alarmed early in the evening, with some of the neighbors, instituted a search. On the next morning, the entire neighborhood was aroused, and instituted a systematic search through the woods, resulting in finding the dead body of the girl in some thick bushes, with her head lying towards a log, and her body nearly at right angles with it. She lay upon her hack, with her right hand by her side, her left hand upon her breast, and her handkerchief between the thumb and finger of the left hand. One foot was crossed over the other, and her clothes were orderly arranged about the body and feet. Her hat lay near her upon the ground. In the basket near by was found a small square vial, about half filled with fluid, which proved to be laudanum. There were no visible signs of a struggle. Marks were discoveréd upon her face and throat, which became more distinct on the second day. A post mortem examination was held. Clots of blood and ruptured blood vessels were found in the throat, near Adam’s apple. The tricoid cartilage or upper ring of the wind pipe was crushed in, nearly to the center. The lungs were collapsed, the lower and back part being filled with blood. The membranes covering the brain were highly congested and bloody. The nose was pressed to one side. The post mortem examination further disclosed that she had been pregnant for about two months. Her underclothing was not disturbed.
    The theory of the prosecution was that the respondent was the author of her shame; that, by agreement, the two met in the woods upon the day in question; and that he committed the murder. One of the theories, and perhaps the principal one, urged on behalf of the respondent, was that she committed suicide. The prosecution contended, and gave evidence to support the contention, that the respondent, about the same hour that the girl entered the woods from one side, entered it from the other; that he strangled the girl with his right hand, the thumb pressing in the throat; that, with the other hand over the mouth and nose, he stopped her cries; and that his right knee upon the abdomen caused the discoloration there found. The prosecution gave evidence tending to show that a vial of the same size and shape was seen in the respondent’s house shortly before the disappearance of the girl; that it contained laudanum, was about half full; that no such vial of laudanum was ever seen in the house of Mr. Curtis or in the possession of the deceased; that the vial had no label, neither had the one seen in the respondent’s house.
    A man by the name of Merrill had been at work for two or three weeks in the vicinity, and had boarded at the house of Mr. Curtis. This man left a few days after the disappearance of the girl.
    This is a sufficient statement of the facts to show the issues presented for the determination of the jury. Further facts, so far as necessary, will be referred to in determining the questions raised.

      Watson & Chapman and Turner & Gates, for appellant.

      Fred A. Maynard, Attorney General, and W. H. Foster, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). 1. The first and principal point discussed by the respondent’s counsel is that there was no proof of the corpus delicti. Two physicians, in behalf of the prosecution, made the post mortem examination, and testified that, in their opinion, the girl died suddenly, from strangulation, caused by pressure upon the throat, and that this injury could not have been inflicted by herself. These physicians testified that they had never had a case of strangulation before. They also testified that some of the symptoms resulting from strangulation would be the same as those resulting from death from poison by laudanum. The contents of the stomach were sent to an expert chemist at the University of Michigan for analysis, and he testified that no poison was found in the contents. He also testified that the poison might be found in the urine, brain, liver, and kidneys. No examination was made of these to determine whether they contained any poison. There might be some force in the contention in behalf of the respondent if there were no other evidence except the absence of poison in the stomach. But, in addition to the marks of violence upon the body, there is also evidence that a cry was heard in the woods while she was there; that there was an indentation in the ground under her head; that limbs were broken which were on the ground underneath the head, and that it required hard pressure to break them; that some hairs were found upon the twig of a bush near the head of the body, which were claimed to be those of the girl, and also a hair upon the ground, which was claimed to be that of the respondent. These were introduced in evidence. There was also evidence to show that she and the respondent were together on the day before and in the forenoon of the day of the alleged murder. In view of the testimony of the physicians as to the cause of death, the marks of force upon the body, and other circumstances, we think there was ample proof of the corpus delicti, and this point was properly left to the jury.

2. The theory that Mr. Merrill was the perpetrator of the crime is without any foundation. He was at work in a field adjoining the woods, and another man, who was a witness, was working near by. He had known the girl but two or three weeks, and there is no evidence of any intimacy between them. Nor is there any evidence to indicate that he was in the woods on the afternoon in question. There is nothing upon the record to indicate that any duty rested upon the prosecution to attempt to find Merrill, or produce him as a witness. He left on the Saturday following the murder, and went to Saginaw. Neither party seemed to consider it of any importance to find him.

3. Error is assigned upon the alleged introduction of testimony given by the respondent before the coroner at the inquest. The respondent was subpoenaed as a witness, and testified at the inquest. His counsel do not, in their brief, cite either the testimony, or the place in the record where the testimony was introduced. The deposition of the respondent given upon that occasion was offered by the prosecution, and, after hearing argument, the court excluded it. The record in this case is very long, covering over 700 pages of typewritten matter. Counsel should point out the page in the record where such questions are raised. When the deposition was offered, the court stated that the witness had testified without objection to what respondent testified to upon the coroner’s inquest, and it did not see why it was necessary to urge the introduction of the deposition. The deposition, however, was excluded, all the oral testimony on this point stricken from the case, and the jury instructed to disregard it entirely. The question, therefore, of its admissibility, is not before us for adjudication. Furthermore, there is nothing in the brief of counsel to show what, if anything, there was in this testimony that was damaging to the respondent.

4. The respondent was a witness in his own behalf, and, on cross-examination, testified, under objection and exception, that he had been twice divorced, and that Miss Curtis was a witness for him in the last divorce suit. He also testified that his second wife obtained a decree from him on the ground of cruelty. The claim on the part of the prosecution was that respondent was the author of the girl’s shame. It was entirely competent to show the relations that existed between them; and the fact, together with others, that she was a witness for him in his divorce suit, was competent to show their relations. He was a witness in his own behalf, and subject to the same rules of cross-examination as any other witness. A thorough examination into his past life was competent, and we do not think that the examination exceeded legitimate bounds. If, however, the testimony in regard to his having been divorced were improper, it is not such an error as would justify the reversal of the case.

5. Complaint is made that the prosecuting attorney, during the progress of the trial, in his argument to the jury, used improper language, calculated to prejudice the respondent in the minds of the jury. The entire argument of the prosecuting attorney is in the record, while the argument on behalf of the respondent is not. It is, however, manifest, that the argument now complained of was in reply to the argument on behalf of the respondent. It appears that one of the attorneys for the respondent charged the prosecuting officer with being “a persecutor instead of a prosecutor,” and that he called the people of Traverse City, where the case was being tried, “a mob thirsting for the blood of Woodruff Parmelee.” In view of the character of the argument on behalf of the respondent, we find nothing in the argument of the prosecuting attorney to justify a reversal of the case. Upon this point, the judge, at the conclusion of the trial, with emphasis, instructed the jury that they must not consider these intemperate remarks made by counsel upon either side. The desire on the part of the circuit judge to deal fairly in his rulings with the respondent, and to properly protect his rights, is very marked, and he was especially fortunate in so doing!

We think the respondent had a fair and impartial trial, and the conviction is affirmed.

The other Justices concurred.