text:
    McLAIN v. HOWALD.
    1. Wills — Construction.
    A testamentary gift, to take effect upon the termination of a life estate in the widow, of a specified sum to “each of the children” of a named daughter, includes not only the children in being at the death of the testator, but those born subsequently during the lifetime of the widow.
    2. Same — Child en Ventre.
    A child en ventre sa mere at the termination of the life-estate is also entitled to take under the will.
    Appeal from Hillsdale; Chester, J.
    Submitted April 5, 1899.
    Decided May 23, 1899.
    Bill by Ora S. McLain and others, infants, by Julian A. Palmer, their next friend, against John Howald, administrator de bonis non, with the will annexed, of the estate of 'Samuel Helsel, deceased, and Jacob Helsel, Elias Helsel, and Edwin Spitler, residuary legatees, for a construction of said will. From a decree dismissing the bill, complainants appeal.
    Reversed.

      W. D. Fast, for complainants.

      Spencer D. Bishopp, for defendants.
   Hooker, J.

Samuel Helsel died leaving a will, as follows:

“That I, Samuel Helsel, of Amboy, Hillsdale Co., Michigan, being of sound mind and aged seventy-two years, do hereby make and declare this to be my last will and testament:
“First. In the event of my death, I give and bequeath to my wife during her natural life, or during her widowhood, all my real estate, wherever situated, to use, occupy, and have ail of the benefit to be derived therefrom; also I hereby give or devise to my wife two horses and harness and wagon, and all farming tools, two cows, all household goods, to be stipulated same as the real estate; my wife to keep the farm and buildings in good repair and pay all taxes during her occupancy, as above stipulated.
“In the event of the death of my wife, or her remarrying, I hereby direct that my property shall be disposed of as follows, to wit:
“To my son Josiah’s children, I hereby give or bequeath the sum of one hundred dollars.
“ To my daughter Rebecca, I give one hundred dollars.
“To my daughter Elizabeth, I give one hundred dollars, to be divided between her two children equally.
“To my son Samuel Helsel’s child, I give fifty dollars (child’s name Elizabeth).
“To my daughter Catherine’s two children, I give one hundred and fifty dollars each.
“To my daughter Mary Ann, I give to each of her children one hundred dollars.
“To my sons Elias and Jacob and to Edwin Spitler, I hereby give all the remainder of my estate, to be divided equally between them, share and share alike; and I hereby direct that all personal estate that I may die possessed of shall be disposed of and held until the event of the death or remarrying of my wife, and then divided as above stipulated, excepting that already mentioned and arranged for above in this will; the farm to be well taken care of, and no timber used or cut except what may be necessary for. the use thereof, in keeping in repair.”

Mary Ann Helsel had six children. Two were born before the testator’s death, and these have been paid $100 each. Three were born after the testator’s death, and before the death of the testator’s widow, the life tenant,. and one was born a few days after her death. The last four claim to be entitled to- the sum of $100 each, under the clause contained in the will, i. e., “to my daughter Mary Ann, I give to each of her children one hundred dollars;” and the bill is filed by them for a construction of the will.

It is contended that the intention that each child of Mary Ann who was then in existence, or who might be in existence before the time fixed for distribution, should receive $100, is fairly deducible from the will. A cogent argument in support of this proposition is the following, taken from the brief of counsel:

“Now, the question is, Did Mr. Helsel intend that the children who might be born after his death to Mary Ann, and before the period of distribution, should take, under his will, $100 each? We answer, ‘Yes,’ because he very clearly limited and designated the legatees in all of the preceding legacies, except the one to Josiah’s children, to whom he gave $100. In all the other bequests he absolutely limited the gift to the number designated and the child named. He went so far as to mention the name of the child of his son Samuel Helsel. And from this we conclude that he intended all of the children of Mary Ann in being at the period of distribution should take under this clause, in view of the fact that he had postponed the time of enjoyment of the legacies till the event of the remarrying or death of his widow. * * * Edward L. McLain was born in the same month the life tenant died. In law, a child is considered born, for all beneficial purposes, while in the mother’s womb. * * * Therefore he takes as well as the others, under this clause.”

While it cannot be disputed that it is the policy of the law to treat estates and rights in property as vested, when practicable (see Doe v. Considine, 6 Wall. 458), there are cases where such rights must give way in favor of other persons. “Thus, where a gift to a class is to take effect after the testator’s death, the estate given will be cut down by the birth of others who come within the description before the period or event upon which the gift is to take effect or the distribution is to be made; such will be included as within the probable intention of the testator.” In McArthur v. Scott, 113 U. S. 340, a gift to grandchildren was held to include any grandchild of the testator who might be born after the testator’s death, and before the time of distribution fixed by the will. See, also, Doe v. Considine, 6 Wall. 458, where it is held that although the estate be vested under the devise, to take effect in enjoyment at a future period, the estate vests in persons as they come in esse, subject to opening and letting in others as they are born afterwards. In the case of Hall v. Hall, 123 Mass. 124, it was said:

“ It is a testamentary gift to a class of persons, which is made by the testator to take effect at a period beyond the time of his death; and the general rule applies that those who come within the description before the period or event upon which the gift is to take effect or the distribution is to be made will be included as within the probable intention of the testator.” Fosdick v. Fosdick, 6 Allen, 41; Worcester v. Worcester, 101 Mass. 128; Hatfield v. Sohier, 114 Mass. 48.

In the case quoted from, the court were of the opinion that the grandchildren took contingent interests, which did not immediately vest; but, as we have seen from the case of Doe v. Considine, the same result would be reached if it were otherwise.

In Worcester v. Worcester, supra, it was said:

‘ ‘ When it [a testamentary gift] is postponed beyond the time of his [the testator’s] death, then those who come within the description before the period or event upon which the gift is to take effect' or the distribution is to be made will ordinarily be included as within the probable intention of the testator.”

There is a class of cases which hold that, when a construction of the will that will let in children who are born after the death of the testator has the effect to defer the distribution of the estate, it should not be indulged, and in such cases those children will not be considered within the testator’s intention. Ringrose v. Bramham, 2 Cox, Eq. Cas. 384, is such a case, and children born after the testator’s death were excluded because, inasmuch as each additional child increased the amount to be taken from the estate under the provision in question, the distribution of the testator’s personal estate would have to be postponed until the amount of such legacies could be so ascertained. That case distinguished the case of Gilmore v. Severn, 1 Brown, Ch. 582, where the amount of the fund was fixed, and was not dependent upon the number of beneficiaries. Storrs v. Benbow, 2 Mylne & K. 46, supports this doctrine; also, Butler v. Lowe, 10 Sim. 322.

But in all of these cases the birth of the claimant occurred after the period fixed for distribution, so we need not conclude from them that the death of the testator necessarily determines the rights of the children. If the right to have the property distributed at once existed, such would be the rule; but, if such right was definitely and certainly fixed by a-subsequent date or contingency, the rule might be different, because,' until that time arrived, the effect of letting after-born children in would not be to postpone the date of distribution. Hence such cases are not within the rule, because not within the reason of the rule. Accordingly, we have cases which, at first blush, might seem at variance with this principle, but which are not, because of the deferred time for distribution. In Mann v. Thompson, Kay, 645, the time was indefinite. The case of Myers v. Myers, 2 McCord, Eq. 214, contains a discussion of this distinction. In short, until -the time for distribution arrives, unborn children are in the same position, when the gross amount of the legacies depends upon the number of legatees, as they are where a gross sum is bequeathed, and the aliquot parts are to depend upon an indefinite number of legatees. The right of the unborn to a portion of such a fund is recognized in Knorr v. Millard, 57 Mich. 268. We are therefore of the opinion that the court erred in dismissing the complainants’ bill, as we think the three children who were born before their grandmother died were entitled to take under the will.

Can the same be said of the fourth, who was born after the death of the widow? She died March 4th, and the child Edward was born before April 1st of the same year. Eor all purposes of construction, a child en ventre sq mere is .considered as a child in esse, if it will be for its benefit to be so considered. This rule was established in Doe v. Clarke, 2 H. Bl. 399. In Clarke, v. Blake, 2 Ves. Jr. 673, it was held that, under a devise to all of the children of A. except B.., a posthumous child was entitled to take. See, also, Pierson v. Garnet, 2 Brown, Ch. 47; Cooper v. Forbes, Id. 63; Freemantle v. Freemantle, 1 Cox, Eq. Cas. 248. ‘ ‘ The child en ventre is supposed to be actually born at the period of distribution.” See, also, Mogg v. Mogg, 1 Mer. 654; Rawlins v. Rawlins, 2 Cox, Eq. Cas. 425. 10 Am. & Eng. Enc. Law, 624, treats such children as in esse j citing numerous authorities in support of the text. This is in accord with our own statutes .(2 How. Stat. §§ 5546, 5784, 5809, 5847). Chambers v. Shaw, 52 Mich. 21; Catholic Benefit Ass’n v. Firnane, 50 Mich. 82. It may be that these statutes do not in terms cover this case, but they are in harmony with the settled rule when they declare that “posthúmous children are considered as living at the death of their parents.” Section 5784. And it is held that such children may sue for an injury or loss sustained while en ventre sa mere. 27 Am. & Eng. Enc. Law, 420, and note. We feel justified, by these authorities, in saying that Edward McLain, being in esse, though en ventre sa mere, at the time of the death of the life tenant, was entitled to take under the will with his older brothers and sisters.

It follows that the decree must be reversed, and a decree entered in this court in accordance with the prayer of the bill; costs of both courts to be paid out of the estate.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    HOSEY v. IONIA CIRCUIT JUDGE.
    1. Appeals prom Probate Court — Filing of Record — Delay-Dismissal.
    8 How. Stat. § 6783, requiring persons appealing from probate court to file in the circuit court, within 80 days, proof of service on the adverse party of notice of the appeal according to the order of the probate court, and providing that, upon failure to do so, the order appealed from shall stand as though no appeal had been taken,’unless the circuit court shall, upon application made within the first 10 days of the succeeding term, reinstate such appeal on a showing that appellant was prevented from perfecting .the same by circumstances not under his control, — is mandatory, and, where appellant fails to comply with its provisions, the circuit judge is bound, upon motion, to dismiss the appeal.
    3. Same — Notice—Sufficiency of Service.
    Where an order allowing an appeal from probate court requires notice to be given to certain persons “by delivering to them a certified copy of said order,” personal service upon each is necessary, and service by mail is insufficient.

      Mandamus by Julia Hosey and others to compel Frank D. M. Davis, circuit judge of Ionia county, to dismiss an appeal from probate court.
    Submitted May 2, 1899.
    Writ granted May 23, 1899.

      V. H. & H. H. Smith and Allen B. Morse, for relators.

      Chaddock & Scully ( George E. Nichols, of counsel), for respondent.
   Long, J.

Motion was made in the Ionia circuit court to dismiss an appeal from the allowance of a will by the probate court of that county, on the ground that no personal service was made on James Hosey, one of the heirs at law. It appears that the probate court allowed the appeal, and ordered notice to be given to Frank, Nicholas, James, and Julia Hosey “by delivering to them a certified copy of this order * * * within 30 days from the date of the order.” This notice was personally served on all the parties except James Hosey. The claim of appeal was filed March 25, 1898. On November 7th a motion was made to dismiss the appeal, on the ground, among others, that no sufficient service of notice was made on James. On November 12th proof was filed that the order was sent to James by mail. This proof consists of the affidavit of Elizabeth Abbott, which recites that on April 5, 1898, she “served a true and compared copy .of the annexed notice and order allowing appeal upon James Hosey, * * * by depositing the same in the post-office at the city of Ionia, Michigan, plainly addressed to ‘James Hosey, St. Joseph, Michigan,’ — that being the last place of residence of said James Hosey, — and with full legal postage prepaid.” The court below refused to dismiss the appeal, but made an order granting the parties 30 days’ additional time to make the proper personal service on James Hosey. Mandamus is asked to compel the circuit judge to vacate this order and dismiss the appeal.

The service made was not in compliance with the order of the probate court, which required personal service upon all the parties named. The statute (3 How. Stat. § 6782) requires that:

“Theperson appealing shall procure and file in the circuit court to which the appeal is taken, within thirty days after such appeal is taken, a certified copy of the record or proceedings appealed from, of the notice of and reasons for such appeal, and of the bond on appeal filed in the probate court, and of the order of the probate court directing notice to the adverse party, together with evidence that notice has been given to the adverse party according to the order of the probate court. And in case the record herein required to be filed in the circuit court shall not be filed in such court within the time herein directed, such appeal shall cease to be of effect, and the order or decree so appealed from shall stand as though such appeal had not been taken: * * * Provided, that the circuit court to which the appeal is taken shall have power, upon application within the first ten days of the term of court next succeeding the expiration of the said thirty days for filing said certified copy, to reinstate said appeal, when the party making the appeal has been prevented from perfecting the same by circumstances not under his.control.”

There was no application to reinstate the appeal. Two terms of court had passed from the time the order for the appeal was made before, motion was made to dismiss, and during that time no personal service was made on James Hosey. The statute requiring notice to the adverse party is mandatory, and, until the party is given such notice, the circuit court has no jurisdiction over the parties to the record. Merriman v. Jackson Circuit Judge, 95 Mich. 277. The order made by the probate court required personal service. The notice by mail was not sufficient notice. In McCaslin v. Camp, 26 Mich. 392, it was said:

“There is no rule of court authorizing service b3r mail ,of any papers in cases or upon persons not already before the court, and subject to its complete jurisdiction. There can be no mail service on parties or attorneys who have not appeared generally in the cause before the circuit court, and are not already in court.”

The statute directs that the probate court shall make an order directing the notice to the adverse part3r, but it also requires that proof of the same shall be filed in the circuit court within 30 days after the appeal is taken.

A very different question would have arisen had an application been made to the circuit court for leave to perfect the appeal, and a showing made that the party making it had been prevented from perfecting it by circumstances not under his control; but no claim of that kind is made.

The writ must issue as prayed.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE v. JONES.
    1. Fixtures — Malicious Injury — Information.
    An engine rested on a brick foundation, and was inclosed in a frame .building in such manner that it could not be removed without taking out a side of the building. In deeds and mortgages it had been treated as a part of the realty. The only testimony tending to show an intention to treat it as personalty was that of the owner, who stated that he ‘‘ had in mind ” the removal of the engine. Held, that an information charging an injury to the engine as a malicious injury to personal property was bad.
    2. Same — Severance—Intent.
    The “intent” which is of controlling influence in determining whether a fixture is or is not a part of the realty must relate either to the time of annexation or to some actual or constructive severance.
    Error to Berrien; Coolidge, J.
    Submitted May 3, 1899.
    Decided May 27, 1899.
    Lorenzo Jones and Andrew Goines were convicted of willful and malicious injury to personal property, and sentenced to nine months’ imprisonment in the state house of correction at Ionia.
    Reversed, and respondents discharged.

      Hardin W. Davis (O’Hara & O’Hara, of counsel), for appellants.
    G. M. Valentine, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondents were informed against under section 9167, 2 How. Stat., for willfully and maliciously injuring and destroying a stationary engine, claimed to be the personal property of Seeley McCord. The only question raised by the brief of respondents’ counsel is whether, under the evidence, the engine in question was personal or real property.

The engine in question rests on a brick foundation, is inclosed in a frame building, and could not be removed except by taking out one side of the building. There was unity of title as to the land and the engine. It has passed by deed of the land, and has been mortgaged as a part of the realty. The only testimony tending in any way to show an intention to treat the engine as personal property is the statement of the owner, as a witness, that he had in mind the removal of the engine. This does not show that he had formed the purpose to do so, much less does it show that, when the engine was annexed, he had any such purpose, or any intention of treating it as personalty. It is clear that the property described in the information was real estate. It is true the intent of the owner is often of controlling influence in determining whether a fixture is or is not a part of the real estate; but the intention must relate either to tho time of annexation or to some actual or constructive severance.

We need not discuss the question whether malicious injury to real property is punishable at common law, as the information charges malicious injury to personal property, and cannot be supported by evidence of a different offense.

The circuit judge should have directed a verdict. Judgment reversed, and respondents discharged.

The other Justices concurred.


author: Grant, C. J.

text:
    STEVENS v. McLACHLAN.

    1. Trading Partnership — Negotiable Paper — Issuance by Individual Partner.
    A member of a trading partnership has implied power to borrow money for the use of the firm, and to issue firm paper therefor.
    2. Same — Presumptions.
    One who loans money to a member of a trading partnership, on firm paper, is entitled to assume that the money is borrowed for the use of the firm.
    3. Same — Defense to Note — Misapplication of Proceeds.
    It is no defense to a trading firm’s note, taken.in good faith, for value, and before maturity, that the partner who issued it applied the money obtained thereby to his own use.
    4. Same — Partner as Payee — Notice.
    The fact that partnership paper is made payable to a member of the firm is no evidence that it is not a partnership transaction.
    5. Same — Action on Note — Burden of Proof.
    In an action upon notes or drafts issued by a trading partnership, the burden of proof is upon the defendants to show any fraud or lack of authority in the issue of the paper, or that it was not given for partnership purposes.
    6. Same.
    When defendants have made such a showing, plaintiff then has the burden of proving that he took the paper in good faith and for a valuable consideration.
    7. Same — Notice of Defense — Circumstances—Sufficiency.
    Circumstances sufficient merely to put a cautious naan on inquiry are insufficient to charge one taking a partnership note from one of the partners with knowledge of the fact that it was given in fraud of the rights of the other partners, but, to have that effect, the circumstances must be such as to show actual bad faith on his part.
    8. Same.
    Bad faith on the part of one seeking to enforce against a firm a note given by one of the partners may be established by evidence that he took the note with actual knowledge that it was given for other than partnership purposes.
    ' 9. Same.
    The fact that plaintiff had loaned money in other transactions individually to the partner issuing the paper is not evidence to charge him with bad faith; nor does it tend to show a misapplication of the money obtained on the firm note.
    10. Same — Renewals—Effect.
    The renewal of the notes of a trading partnership after the holder has been informed by one of the partners that the notes were issued without authority will not impair the holder’s right to recover from the firm.
    11. New Trial — Evidence.
    The fact that it was impossible to get a copy of the evidence given upon a former trial in time to read from it material evidence upon a second trial is not ground for a new trial, where the same stenographer took the testimony upon both trials, and could have read the portions of evidence desired.
    Error to Wayne; Lillibridge, J.
    Submitted January 4, 1899.
    Decided June 5, 1899.

      Assumpsit by Nathan H. Stevens^ against Duncan A. McLachlan, James Gourlay, and others, upon negotiable paper. From a judgment for plaintiff on verdict directed by the court, defendants McLachlan and Gourlay bring error.
    Affirmed.
    The declaration in this case is upon the common counts in assumpsit, with notice that the suit is based upon certain promissory notes and drafts, copies of which are attached to the declaration. The first was a draft of $1,641.07, dated Detroit, October 5, 1896, payable four months after date, signed,'“A. R. Linn, Broker,” payable to the order of himself, and addressed to D. A. McLachlan & Go., 34 Buhl Block, Detroit, Mich. It was indorsed: “A. R. Linn, Broker. James Gourlay.” Written across its face was the following: “Accepted October 5, 1896. D. A. McLachlan & Go.” A note for $965, dated October 21, 1896, signed, “D. A. McLachlan & Go.,” indorsed, “A. R. Linn, Broker. James Gourlay.” A like note for $1,500, dated November 11, 1896. A note for $645, dated October 30, 1896. A note dated November 2,1896, for $395. A note for $975, dated November 5, 1896. All these notes were signed the same, and indorsed the same, as the note first above described. Also, a draft for $635.17, dated Detroit, December 2, 1896, drawn in the same manner, with the same indorsement, and accepted in the same manner, as the draft above mentioned. Defendant Mc-Lachlan gave notice with his plea—
    (1) That the notes were neither signed nor indorsed by him in his individual or any other capacity, nor was the signing or indorsing authorized by him.
    (2) That they were negotiated without his consent or authority, and without any consideration received hy him, or paid to the firm of D. A. McLachlan & Co.
    (3) That neither he nor the firm of D. A. McLachlan & Co. received any moneys or any benefit by reason of the same.
    (4) That the firm name of D. A. McLachlan & Co. upon said notes was unauthorized and a fraud upon him.
    (5) That plaintiff, at the time of taking said notes, knew that they did not appertain to the business of D. A. McLachlan & Co., and were not given for the use of said firm.
    (6) That plaintiff was-interested with said Linn in other business enterprises, and that the proceeds of said notes were used in such enterprises.
    (7) That he is not liable thereon, because of the fraud of others, of which fraud plaintiff is chargeable with knowledge.
    Defendant Gourlay gave notice that he would show that the notes were used by Limmn his own business and in the business of the Anderson Safety Elevator Company, and not in the business of D. A. McLachlan & Co., sugar dealers, and that plaintiff had notice thereof.
    The court directed a verdict for the plaintiff.
    On March 16, 1896, McLachlan and Linn entered into a copartnership to do business in teas, sugars, molasses, etc., under the firm name of D. A. McLachlan & Co. McLachlan agreed to furnish $5,000 in cash, and such other assistance as he might deem necessary. Linn was intrusted with the entire management of the business; the agreement providing that “A. R. Linn shall buy and sell merchandise for the benefit of said firm, using all former names as indorsers when he can obtain the same. ” Profits were to be divided equally between them. The agreement was to continue until McLachlan should elect to alter or discontinue it. The business was carried on for some time, and profits made and divided. It finally became unprofitable. For some time prior to the date of this agreement, Linn had been engaged in business, had become involved, and did business under the name of “A. R. Linn, Broker,” and “A. R. Linn, Agent.” Gourlay had been one of his indorsers. Mr. Stevens resided in Chatham, Ontario. Mr. Linn applied to him for a loan of money for the firm of L>. A. McLachlan & Co., stating the purpose for which it was to be used. One Mattullath was also employed by Linn for the firm, and he negotiated some of these loans. The notes in suit were renewals of other notes. McLachlan insists that he knew nothing of the existence of these notes until October, 1896. He claims that the moneys received were neither borrowed nor used for the purposes of his firm, that the firm was an accommodation maker, and that Linn had no authority to sign them. He also makes the further defense that the firm, being an accommodation maker on the original notes, was discharged by the renewal of the notes extending the time. Any further necessary statement of facts will be found stated in the opinion.

      Gartner & Strieker, for appellant McLachlan.

      Harlow P. Davock, for appellant Gourlay.

      J. H. Cole {Geer & Williams, of counsel), for appellee.

       Rehearing denied July 11, 1899.

   Grant, C. J.

(after stating the facts). The rules of law applicable to the commercial paper here in controversy are well established. As briefly as I am able to state them, they are as follows:

1. D. A. McLachlan & Co. being a trading or commercial partnership, each member of the firm, and especially ■ the one intrusted with the transaction of its business, was authorized to bind his partner in all transactions pertaining to the business of the firm. Among these was the right to borrow money for the firm, and to issue notes therefor, or to draw drafts for the same purpose. The lender was entitled to assume that the money was borrowed for the use of the firm. Winship v. Bank, 5 Pet. 529; Stimson v. Whitney, 130 Mass. 591; Kimbro v. Bullitt, 22 How. 256; Dowling v. Bank, 145 U. S. 512; Smith v. Collins, 115 Mass. 388; Sherwood v. Snow, 46 Iowa, 481 (26 Am. Rep. 155); 4 Am. & Eng. Enc. Law (2d Ed.), 176; Feurt v. Brown, 23 Mo. App. 332. ;

2. If plaintiff took the paper in good faith, for value, before maturity, and without knowledge, either actual or constructive, that it was tainted with fraud, his title thereto is perfect. In such case it is no defense that the money was misapplied by one of the partners. Nichols v. Sober, 38 Mich. 678; Fuller v. Percival, 126 Mass. 381; Atlas Nat. Bank v. Savery, 127 Mass. 75 (34 Am. Rep. 345); First Nat. Bank v. Morgan, 73 N. Y. 593; Beal-Estate Investment Co. v. Smith, 162 Pa. St. 441; Phillips v. Stanzell, (Tex. Civ. App.) 28 S. W. 900; Whitaker v. Brown, 16 Wend. 505; Mechanics’ Bank v. Foster, 44 Barb. 87; Gale v. Miller, Id. 420.

3. The taker of a promissory note or bill of exchange may lawfully presume that it is a partnership transaction. Schwanck v. Davis, 25 Neb. 196; Doty v. Bates, 11 Johns. 544; Whitaker v. Brown, 16 Wend. 505; Haldeman v. Bank, 28 Pa. St. 440 (70 Am. Dec. 142); Littell v. Fitch, 11 Mich. 525; Carrier v. Cameron, 31 Mich. 373 (18 Am. Rep. 192).

4. The fact that such paper is payable to a member of the firm is no evidence that it is not a partnership transaction. Ihmsen v. Negley, 25 Pa. St. 297; Haldeman v. Bank, 28 Pa. St. 440 (70 Am. Dec. 142); Feurt v. Brown, 23 Mo. App. 332.

5. The onus probandi was upon the defendant to show any fraud, lack of authority, or that the paper was not given for partnership purposes. Littell v. Fitch, 11 Mich. 525; Carrier v. Cameron, 31 Mich. 373 (18 Am. Rep. 192); Doty v. Bates, 11 Johns. 544; Whitaker v. Brown, 16 Wend. 505; Sherwood v. Snow, 46 Iowa, 481 (26 Am. Rep. 155); Phillips v. Stanzell, (Tex. Civ. App.) 28 S. W. 900.

6. When such fraud is shown, the onus probandi then shifts to the plaintiff to show that he took the paper in good faith and for a valuable consideration. Vosburgh v. Diefendorf, 119 N. Y. 357 (16 Am. St. Rep. 836), and authorities there cited.

7. Proof of circumstances which would be sufficient to put a prudent man upon inquiry is not sufficient to defeat recovery. The circumstances must be such as to show mala, fides on the part of the holder. This may be shown by evidence of actual knowledge of the purposes for which the paper was given. Nichols v. Sober, 38 Mich. 678; New York Iron Mine v. Citizens’’ Bank, 44 Mich. 344; Miller v. Finley, 26 Mich. 249 (12 Am. Rep. 306); Borden v. Clark, 26 Mich. 410; Chapman v. Remington, 80 Mich. 552; Goodrich v. McDonald, 77 Mich. 486; Atlas Nat. Bank v. Savery, 127 Mass. 75 (34 Am. Rep. 345); Goodman v. Harvey, 4 Adol. & E. 870.

8. If the plaintiff was a bona fide holder of the original paper, his right -to recover is not defeated by renewals, and McLachlan was not released thereby. Tilford v. Ramsey, 37 Mo. 563; Preston Nat. Bank v. Pierson, 112 Mich. 435; Wilson v. Richards, 28 Minn. 337; Hopkins v. Boyd, 11 Md. 107.

We have cited only a few- of the authorities referred to in the briefs of counsel. Mr. McLachlan saw fit to enter into a trading partnership with Mr. Linn, which expressly provided for the borrowing of money, the making of promissory notes, and the procuring of indorsements. Mr. Linn, both by express contract and by implication, had the power to borrow the money and make the paper in controversy. If there is any competent evidence in the record that the money obtained from plaintiff was not used in the partnership business, it has escaped my attention. Mr. Linn testified that it was. The only testimony to the contrary is that of Mr. Gourlay on redirect examination, who testified that Mr. Linn, after the controversy over these notes had arisen, said to him that “he put fifteen thousand or twenty thousand dollars into the elevator scheme.” This testimony might be legitimate to impeach Mr. Linn if the proper foundation had been laid, but it is not affirmative evidence of a diversion of the money obtained upon these notes from the business of McLachlan & Go. If, however, there were such evidence, the record is barren of testimony tending to show that plaintiff was guilty of any mala fides in the transaction, or that he had any knowledge that the moneys obtained from him wereto be, or ever were, diverted from the partnership. Linn informed him of the partnership, told him what he wanted the moneys for, and plaintiff took the paper in full reliance upon Linn’s representations. In some cases he advanced the money; in others he indorsed the paper, and the money was obtained at the bank. When the notes became due, he paid them. The mere fact that he was engaged in other transactions, and had indorsed other paper, and had loaned other moneys to Linn and Mattullath, is no evidence of bad faith, and does not tend to show that any of these moneys were appropriated for other purposes. Upon the record, the court properly directed a verdict for the plaintiff.

Some of these notes were renewed after McLachlan had notified plaintiff by letter, repudiating his liability upon them, and stating that Linn had no authority to make them. The partnership at the time was in existence, and, under the authorities above cited, McLachlan was not relieved by the mere renewals. Having power to make them, he had also the power to renew them while the partnership lasted.

The only remaining question is whether the court erred in the exclusion of testimony. The defendants offered in evidence other notes of similar character to these, which are also in suit, and also certain letters which passed between the parties. There is nothing in them which could be construed to show notice to plaintiff of any of the defenses set up, or any knowledge thereof on his part. They were properly excluded.

Defendants made a motion for a new trial upon the ground that they had been deprived of certain evidence given by plaintiff upon a former trial. This evidence consisted of testimony which had been taken between the same parties in a suit tried just before the trial of the present case, which lasted nearly a week. The same attorneys tried that case; the same stenographer took the testimony. This testimony was subsequently written out, and the claim is now made that it was impossible for the defendants to have had a copy of it for use upon the present trial, and that plaintiff gave testimony upon the other trial material to the defense in this case. If this were so, the stenographer could easily have had his attention called to it, and the testimony read over, during the progress of this trial. We think the court properly refused to grant a new trial upon this showing.

Judgment affirmed.

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


text:
    STOCKMAN v. MICHELL.
    Reference — Accounts—Submission of Issues.
    The appointment of auditors under 2 How. Stat. § 7386, in cases involving the examination of accounts or of vouchers, is discretionary with the court; hut, where such auditors are appointed, no issue should he submitted to the jury until after the account is stated.
    Error to'Wayne; Donovan, J.
    Submitted January 25, 1899.
    Decided June 5, 1899.

      Assumpsit by Gustavus Stockman against Carl H. Michell for services rendered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Sloman & Groesbeck (.Benjamin Jacobson, of counsel), for appellant.

      Henry A. Haigh (F. L. Brooke, of counsel), for appellee.
   Montgomery, J.

This case has been before the court, and is reported in 109 Mich. 348. On the second trial the plaintiff was sworn as a witness, and his counsel attempted to prove by him what the profits of the business of the defendant were during the period of plaintiff’s employment. The court refused to permit the testimony, on the ground that this court had, in its previous decision, indicated that the case was a proper one for reference to an auditor to state the account, but offered to permit the plaintiff to take the verdict of the jury as to whether the contract declared upon really existed. The plaintiff’s counsel declined to try the case piecemeal, and a verdict was thereupon directed for the defendant. Plaintiff brings error.

It was not the intention of our former decision to convey the impression that the duty of submitting to auditors was imperative. It is a matter within the discretion of the court. Pierce v. Thompson, 6 Pick. 193. The trial judge was evidently of the opinion that this was a proper case for an auditor, and we have no reason to doubt the correctness of his views on this question. We think the practice does not justify a division of the issues, but that under the statute (section 7386, 2 How. Stat.) the reference to auditors should precede the verdict. The plaintiff sought to have the books of account of the defendant produced, and it is possible that their production might have shown a want of necessity for a reference to auditors. We are not quite able to understand why the books of account were not produced; and an opportunity afforded the court of determining whether such a necessity existed; but, in any view, we think the court was in error in directing a verdict for the defendant. It was within the power of the defendant to move for a reference to auditors. It was equally within the power of the court to direct it. The case was entirely within the control of the court; but we think it was not proper to compel the plaintiff to submit a single issue to the jury, and resort to another trial after the account is stated before he can obtain final judgment.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


text:
    IRION v. CITY OF SAGINAW.
    Defective Sidewalks — Personal Injuries — Contributory Negligence.
    A pedestrian is shown to have been guilty of contributory negligence, precluding her recovery for injuries sustained from a defective cross-walk, where she testifies that she had in mind the bad condition of the walk when she reached it, that it was light enough for her to see it, and that she knew if she passed over it she must exercise a great deal of care, but took the chance of passing over it in safety; there being a safe way at the side of the walk.
    Error to Saginaw; Snow, J.
    Submitted January 27, 1899.
    Decided June 5, 1899.
    Case by Mary Irion against tbe city of Saginaw for personal injuries. Prom a judgment for plaintiff, defendant brings error.
    Reversed.

      E. L. Beach, for appellant.

      Weadock & Purcell, for appellee.
   Long, J.

Plaintiff recovered in the court below, and defendant brings error. The cross-walk upon which the plaintiff was injured was one leading from the street curb to the sidewalk, was slanting, and the boards were loose. The stringers were rotten, and the boards lay upon the ground. As she attempted to cross this walk, and when she had put her right foot on one of the planks, it turned under her, tipped up, and she was thrown backward. She admits that when she arrived at this cross-walk if was light enough for her to see it. She also admits that she knew that this cross-walk was broken and in bad condition, and that if she attempted to cross it she must exercise great care. She was asked:

Q. When you got up to this sidewalk, you knew it was not nailed, and was in bad condition ?
“A. Yes.
“Q. You knew, if you went over that walk, you had got to exercise a great deal of care, didn’t you ?
“A. Yes, sir.
‘ ‘ Q. And when you got up there, you took the chances of going over there, and going over in safety ?
“A. Yes, sir.
Q. You knew that when you stepped on there ?
“A. Yes, I saw the sidewalk was bad.
Q. That is why you used extraordinary care in going over it ?
“A. Yes, sir.”

It appears also that by stepping one side a few feet she could have passed along without going over this walk.

Under these circumstances the court should have directed the verdict in favor of the defendant. The case is ruled by the following cases: In Black v. City of Manistee, 107 Mich. 60, the negligence complained of related to the construction of the walk, whereby it was claimed that the accumulation of ice and snow was increased, and made more dangerous than it would naturally have been upon a better located and constructed walk. The fall occurred in the daytime. Plaintiff admitted that she saw the ice before stepping upon the place where she fell; that she knew it was dangerous, but proceeded without taking hold of the hand-rail, because she had a book and a parcel in her hand, and Ayas afraid she would slip under the hand-rail to the ground, a distance of three or four feet below. Like the present case, there was another and safe way. It was said: •

“ "Where a person actually sees the danger before the accident, there is as great reason for him to avoid it as there is for the municipality to provide against it beforehand. She could as well judge of the safety of this icy walk from its appearance at the time as the authorities could anticipate the danger when the walk was constructed.”

The court below directed the verdict in favor of defendant on the ground of plaintiff’s contributory negligence, and the judgment was affirmed here.

That case was cited and approved in Grandorf v. Railway Co., 113 Mich. 496, in which Mr. Justice Montgomery, writing the opinion, said:

“Plaintiff cites the case of Laughlin v. Railway Co., 62 Mich. 220, and other cases, in which it is held that knowledge of an obstruction or defective condition of a street does not make it negligence per se for the plaintiff to continue to attempt to pass over such defective way; but none of these cases go the length required here, where the nature of the obstruction, and the steps necessary to avoid it, are both apparent and in the mind of the plaintiff at the very moment of the accident. If this had been a defect of which the plaintiff simply had had previous knowledge, and which knowledge was not in her mind at the time, or if her attention had been diverted from the obstruction, there would be ground for the plaintiff to stand upon. * * * She knew precisely the risk she assumed, and assumed it. The case falls within Black v. City of Manistee.”

The present case cannot be distinguished from the above cases. Here the plaintiff, by her own admission, as above stated, had in mind the bad condition of the walk when she reached it that night. It was light enough for her to see it, and she says she knew if she went over it she must exercise a great deal of care, and took the chances of going over in safety'. This certainly cannot be said to make a case for the. jury to pass upon.

The following cases lay down no rule which, under the facts of this case, would justify the court in submitting this case to the jury: In Lowell v. Township of Watertown, 58 Mich. 568, it appeared that the accident happened on a dark night, while the plaintiff was walking along the highway. He was familiar with the locality, and knew of the defect, which consisted of a hole about a foot square, made for the purpose of allowing the water from the highway to pass into an underground drain. Plaintiff testified that he was thinking of this hole from the time -he crossed the bridge until he stepped into it. He was trying to avoid it when he stepped into it, and it was held that the question of his contributory negligence was for the jury. The case would have been quite dnalo-. gous to the present if the plaintiff there had seen the hole, and attempted to step over it, or io jump across it, and had fallen in. He would then have taken his chances.

In Dundas v. City of Lansing, 75 Mich. 509 (5 L. R. A. 143), the plaintiff testified that she was not thinking of the hole in the walk, nor looking for it,. and that, if she - had been thinking about it, or looking for it, she would not have stepped into it. It was a dark, stormy night, with snow or mist falling, and she was hurrying along to get home. This cannot be likened to the present case, where the plaintiff, in approaching this broken walk, saw it, knew it yms in bad condition, and says she took her chances in going over it.

In Whoram v. Township of Argentine, 112 Mich. 20, it appeared that the plaintiff knew there was a hole in the highway the fall before, but supposed it had been remedied, and that when he approached the place he was not thinking about the hole being there. It was held that the case was ruled by Bouga v. Township of Weave, 109 Mich. 520. In that case it appeared that, while the plaintiff’s driver knew about the hole, he had forgotten about it when he approached it in the darkness of the night.

I have examined the original record in Harris v. Township of Clinton, 64 Mich. 447 (8 Am. St. Rep. 842), and it appeared that Sopher, who hired the horse of the plaintiff, drove over the highway about 1 "o’clock in the daytime, and found the water covering the approach to the bridge some seven or eight inches deep. He crossed in safety. On his return, about 7 o’clock in the evening, it was still light. He di-ove across the bridge, and, when he arrived at the approach at that end, he found the water a little higher than when he crossed at 1 o’clock. The approach was a narrow embankment, and had two or three curves. In going over at this time he drove too near the edge of the embankment, his horse slipped, fell in, and was drowned. He had no other way to recross the stream. He had recrossed the bridge, and arrived at the approach, when he found the water had risen since he passed before. He was familiar with the way, and had he kept upon the embankment, as he did in going over first, apparently he would have gone in safety. As said by the court. “The danger in this instance consisted in the liability of driving off the embankment because it was more or less obscured by the water flowing over it.” The question of the negligence of Sopher was held to he for the determination of the jury, and, I think, very properly. If, as in this case, however, there had been a perfectly safe way by the side of that embankment, and he had taken the one which might prove dangerous, can there be any question that, as matter of law, Sopher would have been held guilty of negligence ? If there had been another and a safe way, the case would have fallen within the rule in Black v. City of Manistee, supra, and the present case.

No case in this or in any other court, which I have been able to find, goes to the length of holding that a recovery may be had under the circumstances as stated in the present case.

The judgment must be reversed, and a new trial granted.

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


author: Moore, J.

text:
    BENNETT v. EDDY.

    1. Malicious Prosecution and False Imprisonment — Probable Cause — Evidence.
    In 1891 a company was formed to take charge of plaintiff’s newspaper, and plaintiff was given stock in the company, and made manager of the paper, at a weekly salary. In 1896 defendants, who were stockholders in the company, had plaintiff arrested for the alleged embezzlement of the funds of the company between February, 1895, and May, 1896. Plaintiff claimed that he really owned the paper; that defendants were merely assisting to maintain it, to reflect their political convictions; and that the funds alleged to be misappropriated had been used to pay debts which had been guaranteed by defendants. Held, in an action for malicious prosecution and false imprisonment, that plaintiff, on the issue of probable cause, could show his transactions with defendants from the time the company was organized, and was not limited to the period during which the misappropriations were alleged to have occurred.
    2. Same.
    Evidence as to what was done with the company’s property after certain mortgages thereon were foreclosed and plaintiff’s connection with the paper had ceased, and as to attachment suits commenced against the plaintiff by one of the defendants, was irrelevant, and should have been excluded.
    3. Same — Trial—Prejudicial Remarks of Court.
    Where the theory of the defense in an action for malicious prosecution and false imprisonment included the claim that defendants’ connection with iilaintiff’s arrest was on probable cause and by advice of counsel, it was prejudicial for the court to make a remark at the beginning of the trial, in the ■ presence of the jury, that ignored this claim, and indicated that, if defendants procured plaintiff’s arrest, it was conclusive of their liability.
    4. Same — Damages—Lack of Employment.
    The fact that the plaintiff in an action for malicious prosecution and false imprisonment remained idle after his arrest, during a period when many others were out of employment, cannot be ascribed to the arrest, and made an element of damages, unless there is evidence connecting it therewith.
    5. Same — Evidence.
    Where, in an action for malicious prosecution and false imprisonment, in which defendants deny any connection with the proceedings against plaintiff after stating the facts to the prosecutor, and upon his advice making the complaint, the plaintiff is permitted to show the circumstances attending his arrest in another State, it is error for the court to exclude the testimony of the prosecutor as to the directions given by him to the officer who made the arrest.
    6. Same — Advice of Prosecuting Attorney — Disclosure of Material Facts.
    In an action for malicious prosecution and false imprisonment it appeared that, after defendants had consulted the prosecuting attorney about proceeding against plaintiff for embezzlement, an expert bookkeeper was employed to examine plaintiff’s books, and report to the. prosecutor. Held, that the bookkeeper’s testimony as to what he learned and what he reported was admissible, as bearing upon the question whether all the material facts were submitted to the prosecuting attorney before the criminal case was commenced.
    7. Same.
    Defendants’ testimony as to what they told the prosecuting attorney was admissible for the same reason.
    8. Same.
    For the same reason, the prosecutor, who was present at the trial and heard all the testimony, should have been permitted to testify whether or not any testimony had been given relating to facts known by defendants and not disclosed to him before the criminal complaint was made.
    9. Trial — Witnesses—Cross-Examination—Control by Court-Abuse of Discretion.
    For the court arbitrarily to excuse a witness from further cross:examination before counsel, who shows no disposition to abuse the privilege, has had an opportunity to ask him with respect to material matters, is prejudicial error.
    Per Moore and Montgomery, JJ.; Grant, C. J., and Long, J., concurring in the reversal.
    Error to Bay; Maxwell, J.
    Submitted February 8 1899.
    Decided June 5, 1899.

      Case by Edwin T. Bennett against John F. Eddy, Edgar A. Cooley, and Edwin T. Carrington for malicious prosecution and false imprisonment. From a - judgment for plaintiff, defendants bring error.
    Reversed.

      C. L. Collins and Lyon & Pierce, for appellants.

      Fales & Kelley, for appellee.

       Rehearing denied July 11, 1899.

   Moore, J.

In November, 1896, defendants Carrington and Eddy swore to a complaint charging plaintiff with the embezzlement of money belonging to the Tribune Publishing Company. A warrant was issued, and by virtue thereof plaintiff was arrested. A nolle pros, was after-wards entered in the case. The plaintiff claimed that defendant Cooley acted with the defendants Eddy and Carrington, and sued all of them in an action for false imprisonment, and recovered a large judgment. The case is brought here by writ of error.

It was the claim of defendant CoOley that he had nothing to do with the arrest and imprisonment of the plaintiff. It is the claim of all the defendants that there was probable cause for the complaint, and that it was made without malice. It is also claimed that, before the complaint was made, a full and fair statement of all the facts possessed by them was submitted to the prosecuting attorney and the .assistant prosecuting attorney, who decided it was a proper case for criminal proceedings, and that the prosecuting attorney’s office had full charge of the case.

Error is assigned as to the conduct of counsel in his opening statement to the jury; as to the conduct of the judge in the trial of the cause; as to the admission and nonadmission of testimony; as to the charge of the judge, and his refusal to give certain charges offered by defendants, and his refusal to direct a verdict in favor of defendants.

Prior to August, 1891, plaintiff was the owner of the Bay City Tribune. He was considerably in debt, and Mr. Cooley was upon some of his paper as indorser. In August, 1891, a corporation was formed, known as the Tribune Publishing Company. Directors were elected. They were authorized by the stockholders to accept from the plaintiff the good’ will and all the business and assets of the Bay City Tribune in full payment of the capital stock, which was fixed at $50,000. The defendants and others became stockholders in the corporation. In Janu-' ary, 1892, a loan of nearly $10,000 was obtained through the agency of defendants and others, the payment of which was secured by plaintiff assigning stock at 50 cents on the dollar. In February, 1895, an arrangement was made by which preferred stock should be issued for one-half the capital stock, which should be entitled to a fixed dividend of 7 per cent, per annum. Common stock could be surrendered for preferred stock by paying in addition to the common stock one-half the face value of the preferred stock in money. This stock was to be surrendered upon certain conditions, the principal ones of which were that the debts of the company, for which defendants and others had become liable, were paid. After the company was organized, Mr. Bennett was appointed manager, 'and was to have a salary of $50 a week. The president and vice-president were authorized to borrow $5,000, which amount was afterwards increased to $6,000. In Februaiy, 1896, a committee made an examination and report of the business of the company, and recommended that the stockholders guarantee a credit of $4,000 upon condition that Mr. Bennett transfer to a trustee certain real estate and a life-insurance policy to indemnify the stockholders against loss. This was done, and the credit guaranteed. It is claimed that Mr. Bennett at this time 'represented the indebtedness to be less than $4,500, when it was in fact nearly $10,000 more than that amount. The business demanded more money, and in May, 1896, three chattel mortgages were given to a trustee to secure various debts, —among others, those due to employés of the paper, — and one chattel mortgage given to the First National Bank to secure $8,000. Shortly afterwards one of these mortgages was foreclosed, and the connection of the plaintiff with the paper ended. The defendants examined, or caused to be examined, the books of the, company, and say they came to the conclusion that between February, 1895, and May, 1896, plaintiff, as shown by the books and other evidence, had collected large sums of money belonging to the publishing company, and appropriated it to his own use.

Upon the trial of this cause the plaintiff was allowed to show the transactions relating to the first organization of the company, his relations to the shareholders and the subsequent transactions of the company, and the relations of defendants to it and the plaintiff, until his connection with the company ceased. It is the claim of defendants that this testimony should have been confined to what occurred between February, 1895, and May, 1896, the period of time during which it is alleged the embezzlement occurred. It is admitted by plaintiff that the books show, and the fact was, that he drew out of the company between February, 1895, and May, 1896, more than the amount of his salary, — $50 a week. His claim is that, though the business was nominally that of the publishing company, it was actually his, and was so understood, not only by himself and his office force, but' by defendants. His claim is they were anxious to have a paper maintained which should reflect their political convictions, and were willing to aid him in maintaining such a paper; that the organization of a company was a convenient form through which to carry out their purpose; and that what occurred, including the writings in the nature of defeasances, and the conveyance of the rea-1 estate and the life-insurance policy by him, shows that the business was his, and that the stock was held as security, and was to be returned to him when the debts were paid. It is his claim that it was expected he would draw out of the business more than his weekly wages, to make payments upon the debts which had been guaranteed or indorsed by the defendants, or some of them, and that all the amoúnts so drawn out by him had' been so appliéd, and some of the money paid to the defendants, and that they understood what was done, and the method of doing it, in many of the transactions, and that he did not embezzle any of the funds belonging to the company. We think this testimony was admissible, as bearing upon the question of whether the defendants Carrington and Eddy had probable cause to believe the plaintiff guilty of embezzlement, and for making the complaint, and whether it was made by them in good faith. Probable cause involves a consideration of what the facts are, and what are the reasonable deductions from the facts. It is therefore what is denominated a “mixed question of law and fact.” If the facts are not in dispute, the question is for the court. Upon the disputed facts the jury must be left to pass, but the court must determine, on the facts found, whether or not probable cause exists. Cooley, Torts (2d Ed.), 209. In this case there was a dispute between the plaintiff and defendants as to the manner in which the business was conducted, the knowledge the defendants had of the condition of the accounts, and the disposition made of the proceeds of the business, which made it necessary for the court to submit these facts to the jury.

The court allowed, over the objection of defendants, testimony to be given as to what was done with the property of the publishing company after the mortgages were foreclosed, and as to the organization of a new company. It also permitted the files to be introduced in evidence in an attachment suit commenced by Mr. Cooley against the plaintiff. This testimony did not throw any light upon . the issues involved in, this case, and was well calculated t« prejudice the jury against the defendants. If any injustice was done the plaintiff in those proceedings, it can not be litigated in this one. The admission of this testimony was error.

One of the first things done, after the trial was entered upon, was for the plaintiff to introduce evidence in relation to the organization of the company in 1891 and 1892. Objection was made to the admission of the testimony; the defendants claiming' the testimony should be confined to what occurred from February, 1895, to May, 1896, when it was alleged the embezzlement occurred. The court said:

“This evidence is addressed in another direction. If the defendants procured the arrest of the plaintiff in Chicago under that warrant, by the officer, they are liable, and I will so charge the jury; and this testimony may enormously enhance the damage, it seems to me.”

This was said before the testimony of the first witness for the plaintiff was completed. It anticipated and cut off the defense which defendants sought to make, and which they had a right to make if they could, — of probable cause, and that the complaint was made by the direction of the prosecuting officer after a full statement of the facts to him. This statement was prejudicial, and ought not to have been made.

The plaintiff was allowed to show he failed to get employment after his discharge, and that he had been idle nearly all the time from the timé of his arrest until this suit was commenced. Objection was made because it did not appear the situation arose from any act of defendants. The judge replied, “Well, the jury may think it did,” when the following occurred:

Q. Mr. Bennett, you may state what the treatment of the public and the people that you are acquainted with was, in this city, after your arrest. (Objected to by defendant's, unless he goes into it before the arrest as well as after.)
“The Court: He may answer. (The defendants excepted to the ruling of the court.)
“The Court: Now you may sit down. I can’t be bothered so much by objections.
“At Well, I was pointed out as an embezzler. I think many people thought I was a thief. My wife was shunned in the same way. Many of the best friends I had before went by and didn’t even speak to me.
Q. You may state, Mr. Bennett, as to whether you ever had been idle before this occurrence since the time you left school, when you were a boy.
“A. No, sir; never lost a day.”

Upon another occasion the court told counsel to sit down, and refused to allow him to state his objection to the testimony. If the defendants were liable at all, they were liable for such damage as was caused by them; but it does not follow that, because Mr. Bennett was out of work at a time when it is a matter of common knowledge that a great many people were out of work, defendants were responsible for his idleness. The treatment of the counsel was also well calculated to prejudice the cause of his client before the jury.

Mr. Bennett was a witness on his own behalf. Counsel for the defendants sought to cross-examine him in relation to an account which he claimed contained the items, or some of the items, showing his relations with the company. The court, upon his own motion, told him he need not answer, and afterwards arbitrarily excused him from further cross-examination, when counsel had not completed the cross-examination. A good deal of discretion should be allowed to the trial judge in directing the course of the trial, but it is very apparent from the record that the cross-examination was cut off by this action of the court before counsel had an opportunity to cross-examine the plaintiff in relation to matters that were material. The right to cross-examine is a valuable right, and, while the court has an undoubted right to prevent its abuse, there is no evidence here of any disposition on the part of counsel to abuse his right of cross-examination. Chandler v. Allison, 10 Mich. 460; Thompson v. Richards, 14 Mich. 172; O’Donnell v. Segar, 25 Mich. 367; People v. Barker, 60 Mich. 277 (1 Am. St. Rep. 501), and cases there cited.

While Mr. Gilbert, the prosecuting attorney, was testifying, it was sought to show what directions he had given the officer about going to Chicago and making the arrest. The court refused to allow this. We think this was error. It was the claim of defendants that they had nothing to do with the proceedings after the complaint was made. Mr. Carrington and Mr. Eddy claimed they had no knowledge it was proposed to arrest the plaintiff in Chicago, until after his arrest was made. As testimony was allowed to be given on the part of the plaintiff as to the arrest and what was done in Chicago, it was very proper to show who caused the arrest at Chicago to be made.

The testimony shows that, after the defendants consulted the prosecuting attorney about instituting the criminal proceeding, Mr. Marshall (an expert), at the suggestion of the prosecuting attorney, was employed by defendants to examine the books, and to learn what he could about the accounts, and report to the prosecuting attorney what he found. Mr. Marshall was examined as a witness. It was sought to show what he had learned, and what he reported to the prosecuting attorney that he.had learned. This testimony was excluded. It should have been admitted, as bearing upon the question of whether all the material facts had been submitted to the prosécuting attorney before the criminal case was commenced. This ruling will also apply to the refusal of the court to allow Mr. Carrington to testify what he informed the prosecuting attorney.

Mr. Collins, the assistant prosecuting attorney, was present during all the trial, and heard the testimony of the witnesses as to the knowledge possessed by the defendants of the facts connected with the business when the criminal complaint was made. He was asked to state what testimony, if any, he had heard relating to facts known by the defendants that were not detailed to him prior to the time criminal complaint was made. This testimony was excluded. The defendants claim they were protected by the advice of counsél. It was claimed on the part of plaintiff that they had not disclosed to counsel all the facts they knew. The law is that if one about to institute a criminal complaint takes advice of counsel learned in the law, and places all the facts before him, and acts upon his opinion, he will be protected, provided the disclosure appears to have been full and fair, and not to have withheld any of the material facts. Cooley, Torts (2d Ed.), 211. Mr. Collins should have been allowed to answer the question, as bearing upon the question as to whether all the material facts had been stated to him before the complaint was made.

It is claimed that the court should have directed a verdict upon the ground that defendants were protected by the advice of counsel. In the note to Cooley, Torts (2d Ed.), 212, it is said the mere fact of getting advice is not conclusive, in favor of the defendant (citing cases), and that the advice must be honestly given, and acted upon in good faith. In this case it is claimed defendants had such knowledge of facts that they did not believe Mr. Bennett was an embezzler, and that they did not communicate all the facts they knew to counsel. We are not prepared to say there was no proof bearing upon this claim, and that the court should have directed a verdict in favor of defendants. Harris v. Woodford, 98 Mich. 147.

We do not deem it necessary to discuss the other assignments of error. They are either not well taken or are not likely to occur again.

The judgment is reversed, and a new trial granted.

Montgomery, J., concurred with Moore, J. Grant, C. J., and Long, J., concurred in the result. Hooker, J., did not sit.


text:
    HEATH v. HEATH.
    Appeal — Conflicting Evidence — Review.
    A finding of fact in a chancery case, based upon the conflicting testimony of witnesses examined in open court, will not ordinarily be disturbed on appeal.
    Appeal from Tuscola; Beach, J.
    Submitted February 9, 1899.
    Decided June 5, 1899.
    Bill by Ezra Heath, administrator of the estate of Joshua A. Heath, deceased, against Selah Heath, to set aside a deed. From a decree for complainant, defendant appeals.
    Affirmed.
    Joshua A. Heath died December 1, 1895. Until August 14th of the same year he resided upon his farm in Fair-grove, Tuscola county. He was the owner of 120 acres of land. Complainant was appointed administrator. Claims were allowed against, the estate amounting to $594.95. On August 14, 1895, Joshua deeded to his son, the defendant, 80 acres of land, the consideration stated in the deed being $1. At the same time he deeded the other 40 acres to his son Emerson. The administrator found no property with which to pay the debts and expenses of administration, and filed this bill to set aside the deed to defendant on the ground that it was void as. against creditors. Defendant claimed that the deed was made in consideration of a debt due from his father to him, and an agreement to take care of him during the remainder of his life. Joshua was then 72 years old, in failing health, and expected to live but a short time. The 'claim of the administrator is that the deed was without consideration as against creditors, and that there was no consideration other than the promise to take care of his father. Defendant lived at Cheboygan, and, after the deed was made, took his father home .with'him. Proofs were taken in open court, and a decree entered for the complainant.

      John E. Kinnane, for complainant.

      T. W. Atwood, for defendant.
   Grant, C. J.

(after stating the facts). No legal questions are involved. The question is one of fact purely, and the result depends entirely upon the credit to be given to the testimony. On all the facts there is a direct and sharp conflict of evidence. It would be unprofitable to state it in detail. We see no occasion to disturb the con-' elusion reached by the circuit judge, who saw the witnesses, and was in a better position than we to judge of their credibility.

Decree affirmed, with costs.

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


author: Grant, C. J. Long, J.

text:
    PEOPLE v. LONGWELL.
    Intoxicating Liquors — Violation of Local Option Law — Illegal Sale by Druggist — Responsibility for Act of Clerk.
    Under section 16 of the local option law (3 How. Stat. §228365), providing for the punishment‘of “any person who himself, or by his clerk, agent, or, employe,” shall make sales of liquor in any county in which the law is in force, unless such sales are made by a druggist or registered pharmacist in compliance with the restrictions imposed by the general law, it is no defense to the prosecution of a druggist for selling to an intoxicated person, in violation of section 3 of the general law (3 How. Stat. § 2283c6), that the sale was made by a clerk in respondent’s absence, and contrary to his express instructions. Long, J., dissenting.

      Exceptions before judgment from Van Burén; Buck, J.
    Submitted February 10, 1899.
    Decided June 5, 1899.
    E. B. Longwell was convicted of violating the local
    option law.
    Affirmed.

      A. Lynn Free and Alfred J. Mills, for appellant.

      James E. Chandler, Prosecuting Attorney, for the people.

       As to one’s criminal liability for the act of his servant, partner, or agent in the sale of liquors, see note to Williams v. Hendricks, (Ala.) 41 L. R. A. 650.

   Grant, C. J.

The respondent, a druggist, was convicted of selling liquor contrary to Act No. 207, Pub. Acts 1889. His defense was that the sale was made by his clerk, contrary to his general instructions. Should this defense have been submitted to the jury? We think not. The statute provides that “any person who himself, or by his clerk, agent,, or employé, shall violate any of. the provisions,” etc. It is conceded, in statutory crimes* of this character, that the legislature may do away with | the intent as an ingredient of the offense, and make the {' act itself criminal, whether it is done by himself or by his/ clerk, agent, or employe. Chief Justice Cooley, in People v. Roby, 52 Mich. 577 (50 Am. Rep. 270), clearly draws the distinction between those cases where intent is a necessary ingredient of the crime and where it is not, and has cited numerous authorities. The first inquiry, then, is, What does the statute mean ? It is not a case for interpretation. The language is unequivocal, and makes the druggist liable for any violation of the law by his clerk, agent, or employé. It is pertinent to examine some prior decisions of this court which are relied upon.

The first is Faulks v. People, 39 Mich. 200 (33 Am. Rep. 374). That opinion does not cite the statute under which the conviction was had. An examination of the record of the case shows that it was Act No. 193, Pub. Acts 1877. That act does not contain the words, “or by his clerk, agent, or employé.” It is limited to the person actually making the sale.

In People v. Parks, 49 Mich. 333, respondent was convicted under section 12 of Act No. 259 of the Public Acts of 1881, which reads as follows: “All persons engaged in the business of selling or keeping for sale any of the liquors mentioned in sections 1 and 2 of this act, whether as owner, or as clerk, agent, or servant, shall be equally liable as principals for any violation of any of the provisions of this act.” By reference to section 2 of the same act it will appear that “the fact of selling, giving, or furnishing any of said liquors to any minor or to any intoxicated person * * * shall be a prima facie presumption of an intent on the part of the person so selling, giving, or furnishing such liquor to violate the law.” Two things are apparent under this act: (1) That it contains no language making the owner responsible criminally for the act of his clerk, agent, or servant, and (2) that, while the intent was an ingredient of the offense, that intent was to be presumed from the act of selling, etc., and cast the onus probandi upon the liquor seller to show the absence of intent.

In People v. Metzger, 95 Mich. 121, the point was not involved. What was said, therefore, is dicta. An examination, however, of section 13, Act No. 313, Pub. Acts 1887, under which the respondent was convicted, will show that the language is substantially the same as the act of 1881, and makes the act itself prima facie evidence of the intent. Section 24 provides that “any person or principal shall be liable for the acts of his clerk, servant, agent, or employé for any violation of the provisions of this act.” Where an ■ act contains provisions apparently in conflict, courts will construe them, if possible, so that both shall stand. It would undoubtedly, therefore, be properly held that section 24 did not take away the defense of want of intent, but left a respondent to show such want of intent on his part. It is manifest, therefore, that both the acts of 1881 and 1887 make an intentional participation an ingredient of the offense. They only shift the burden of proof.

Black cites the statutes of several States containing provisions like the one under which respondent was convicted, and states:

“It is held to be no defense to an indictment against the principal that the unlawful act was done without his knowledge or consent, or without his authority, or in his absence, or even that it was done in contravention of his express and bona fide orders.” Black, Intox. Liq. § 370, and authorities there cited.

Black closes the section with the following language:

“The object of these statutory provisions, in effect, is to require the principal to see to it, at his peril, that no unlawful sales aré made in his establishment. And, if it savors of severity to subject him to punishment for the acts of others which he had expressly forbidden, it must be remembered that he can escape liability by selecting servants and agents who will keep- within the law, and obey his orders, or by abandoning a business which exposes him to such hazards.”

The statute in unequivocal language makes the druggist responsible for the acts of his clerk in making these illegal sales. It is as easy for liquor dealers to employ clerks and agents who will carry out their instructions not to make prohibited sales as it is to employ those who will obey their instructions not to open their places of business contrary to law,

The conviction is affirmed.

Montgomery, Hooker, and Moore, JJ., concurred with Grant, O. J.

Long, J.

(dissenting). Respondent was indicted by a grand jury in Yan Burén county, charged with having, on the 3d day of December, 1897, as a druggist and registered pharmacist, sold and delivered to John Price,' who was intoxicated at the time, eight ounces of alcohol, contrary to the provisions of the local option law in force in that county. The indictment charges that the sale was made by the respondent personally. On the trial the people introduced testimony which, it is conceded, established that the local option law was in force in that county at the time of the alleged sale, and that respondent was a druggist, and had filed his bond as such, at that time. The testimony also tended to show that the sale was made by a clerk of the respondent, and not by the respondent himself; and that Price was intoxicated at the time. Respondent introduced testimony which tended to show that he (respondent) had warned and instructed his clerks, including the one who had sold the alcohol to Price, not to sell to -prohibited persons, during prohibited hours, or in violation of law, or otherwise than as a druggist legally might, and to obey strictly all the provisions of the law; and that he (respondent) was not present at the time when the sale was made to Price. At the close of the testimony, the court was asked to instruct the jury:

“1. If a clerk or agent, without the knowledge and against the instructions of his employer, sells intoxicating liquor to a person who is intoxicated at the time of the sale, the employer is not criminally responsible for the act; and although you should find from the evidence that the said John Price was intoxicated at the time of said sale, yet if you find that the respondent did not make the sale, but that it was made by the respondent’s clerk or clerks, and without the knowledge and against the instructions of the respondent, then the respondent is not criminally liable, and you should acquit him.
“2. If you are satisfied from'the evidence that the respondent instructed his clerks to carefully observe the local option law, and particularly not to sell liquor to a person intoxicated or under the influence of liquor, and that, on the evening of December 3d last, some clerk or clerks in his employ sold liquor, namely, alcohol, to John Price, without the knowledge or consent of -the respondent, and against his express orders, then the respondent cannot be convicted.”

The court refused these requests, and directed the jury, substantially, that if they found that the clerk made the sale to Price while he was intoxicated, and intoxicated to such an extent that the sale should not have been made, then the employer would be liable for the act of his clerk, notwithstanding the prohibition. The jury .found the respondent guilty, and the case comes into this court on exceptions before sentence.

Act No. 207, Pub. Acts 1889, by section 16 (3 How. Stat. § 2283b5), provides that:

“Any person who himself, or by his clerk, agent, or employé, shall violate any of the provisions of section 1 of this act, shall, for the first offense, be deemed guilty of a misdemeanor,” etc.

Section 1 (3 How. Stat. § 2283a) provides:

“It shall be unlawful for any person, directly or indirectly, himself, or by his clerk, agent, or employé, to manufacture, sell, keep for sale, give away, or furnish any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors * * ? in any'county of this State on and after the first day of May next following after the adoption by the board of supervisors of such county of a resolution prohibiting the same, as provided in section 13 of this act: * * * Provided, hoivever, that the provisions of this section shall not apply to druggists or registered pharmacists in selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State.”

The general law for the taxation and regulation of the manufacture and sale of spirituous and intoxicating liquors provides, by section 3, Act No. 313, Pub. Acts 1887 (3 How. Stat. § 2283c6), that no druggist shall, directly or indirectly, by his clerk, agent, or servant, sell such liquors to any person who is intoxicated at the time.

It is contended that the court was in error in not giving these requests to charge and in the charge as given. It is conceded by counsel for respondent that the rule has been laid down by this court in People v. Roby, 52 Mich. 577 (50 Am. Rep. 270), and in Wolcott v. Judge of Superior Court, 112 Mich. 311, that want of intent, or ignorance of the fact or state of things contemplated by the statute, does not constitute a defense. But counsel contend that these cases are clearly distinguishable from the present. In the Roby Case the respondent was convicted of the offense of keeping his saloon open on Sunday. In the Wolcott Case the respondent was convicted of the offense of selling liquor without having first filed the necessary bond. It is claimed by counsel for respondent that the reason for holding that the want of knowledge of the fact or state of things contemplated by the statute did not excuse the violation of - the statute was that the want of knowledge proceeded from carelessness, or a will to disobey the statute, or an indifference to its commands, while those elements do not enter into the present case; that the respondent had no intention of comrifitting the offense himself, or having his clerks commit it; that he was not present when it was committed, knew nothing about it, or that it was likely to be committed; that he neglected no duty, but, prompted by a desire to obey the law, he exercised every precaution within his power to see that it was obeyed.

I think counsel correct in their contentions. It was held in People v. Parks, 49 Mich. 333, that a liquor dealer was not criminally responsible for the sale of liquor by- his clerk to an habitual drunkard, such sale being made without the knowledge or consent of the respondent. The prosecution was had'in that case under Act No. 259, Pub. Acts 1881. That case followed and cited Faulks v. People, 39 Mich. 200 (33 Am. Rep. 374), in which it was held that it was a defense to a charge of selling liquor to a? minor that the dealer had reason to believe, and did believe, him to be of age; and in People v. Metzger, 95 Mich. 121, it was held that a saloon-keeper was not criminally liable for the act of his bartender in selling spirituous liquors without his knowledge or direction, and during his absence from the saloon, he having paid .the tax imposed on the business of selling malt liquors only. These were cases in which the want of knowledge of the facts on the part of the respondents was not the result of carelessness or negligence, or a desire to disobey the law, as in the Roby and Wolcott Cases. They are cases in which the respondents had no intention of committing the offenses themselves, or- to have them committed by their clerks, agents, servants, or other employés, and where the respondents were not present when they were committed, knew nothing about their being committed, or that they were likely to be committed. They are like the present case, though this case is much stronger in favor of the innocence of the respondent. Here it was attempted to show that sales were made by the clerk after he had been instructed by the respondent that such sales must not be made.

In 1 Bish. Cr. Law (7th Ed.), § 219, it is said:

“We shall see that the general doctrine of "the criminal law is the one which exempts the master or principal from responsibility for a crime by the servant or agent. Thus, under the statutes forbidding the sale of intoxicating drinks without license, and the former enactments against selling goods to slaves without the consent of their masters, it is sufficient in defense that the sale was made by the defendant’s clerk, unauthorized either absolutely or by implication.”

Even where the statutory words were “by an agent or otherwise,” it was held in Barnes v. State, 19 Conn. 398, that the servant’s want of authority would excuse the master.

In Com. v. Stevens, 153 Mass. 421 (25 Am. St. Rep. 647), it apppeared that the respondent was charged with unlawfully selling intoxicating liquors to a minor. The respondent was a druggist, and was authorized to sell to certain persons, but not to minors. One of his clerks made a sale to a minor, and the principal question at the trial was whether the respondent was criminally responsible therefor. There was evidence in the case that the respondent had instructed all his clerks not to make sales to minors, nor, indeed, to any person under 25 years of age. The learned judge who tried the case instructed the jury that, if they were satisfied that these instructions were given by the respondent, but that the clerks were to •determine the question of minority simply from the appearance of the customer, and the respondent authorized and permitted them to sell without further inquiry if they believed such persons to be 25 years of age or upwards, and that the clerk who made the sale in the case applied this test, and in good faith sold to the customer, then the respondent would be liable, even if he had no personal knowledge of the sale, because the servant in such case was carrying on the respondent’s business in the way he directed and obeying his instructions, and that, under such circumstances, the act of the servant would be the act of the master. The correctness of that instruction was the principal question in the case. The court said: “The instructions to the jury allowed them to convict the respondent, even though the jury should find that he had in good faith given instructions not to sell to minors.” The exceptions to the charge were sustained. It was further said in the case: “While a broader rule prevails in respect to a master’s civil responsibility for the acts of his servant or agent, ordinarily he is not held responsible criminally unless he in some way participates in, countenances, or approves the criminal act of his servant.”

In Anderson v. State, 22 Ohio St. 307, it appeared that the respondent was convicted for unlawful sales to a minor, in violation of a statute which declared it to be unlawful for “any person or persons, by agent or otherwise, to sell intoxicating liquors ” in the cases specified in the act. It was said by the court:

“To bring a person within the operation of the act, the elements which constitute the offense must attach to him. ITe must make the sale. It is immaterial whether he does it directly or indirectly. The object in using the phrase ‘ by agent or otherwise ’ was to show expressly and unequivocally that the act was intended to embrace every means that the person charged might employ in effecting the illegal sale. * * * The accused in such case has the right to rebut the presumption of prima facie agency which the evidence makes against him by showing, if he can, that the criminal act was in fact committed without his authority, and against his instructions.”

In Lathrope v. State, 51 Ind. 192, it was held that if a clerk in a saloon sell intoxicating liquor to one in the habit of getting intoxicated, without the knowledge and against the instruction of his employer, the latter is not criminally responsible for the act. The same rule is laid down in State v. Baker, 71 Mo. 475, and this is the general rule laid down by all the courts in construing similar statutes.

In the present case, however, the court below, in giving construction to the statute, applied the rule in civil cases, which holds the principal, as to third persons, liable for the acts of his agent done within the general scope of his authority, irrespective of actual instructions that were unknown to the person dealing with the agent. No such rule applies in criminal cases. The accused in a criminal case has the right to rebut the presumption of prima facie agency which the evidence makes against him by showing, if he can, that the criminal act was in fact committed without his authority, and against his instructions. That was what was shown in the present case, and the court was asked to direct the jury that, if they found that the sale was made without the respondent’s knowledge or consent, they must acquit him. The requests set out here should have been given.

I think the conviction should be reversed, and a new trial ordered.


text:
    BAUMGARTNER v. STURGEON RIVER BOOM CO.
    t. Waters — Stoppage oe Logs —Overflowed Lands — Action for Damages — Pleading.
    A declaration in an action against a boom company for damages resulting from an overflow of water caused by the stoppage of logs in a navigable stream need not allege that the company was negligent.
    2. Declaration — Meaning of Terms — ’’Growing Hay.”
    The term "growing hay,” used in a declaration alleging damages from an overflow of plaintiff’s land, means grass in its growing state, while the term “ hay ” would cover only that which is cut and dried.
    Error to Baraga; Haire, J., presiding.
    Submitted April 4, 1899.
    Decided June 5, 1899.
    Case by Philip G. Baumgartner against the Sturgeon River Boom Company for causing the flooding of plaintiff’s land. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff commenced this suit by filing and serving a declaration in a plea of trespass on the case, in which he alleged that the defendant maintained a boom on the Sturgeon river, four miles below his farm, which was situated along the banks of the river, for the purpose of stopping logs floating down the river; that during three years it did stop the logs, causing them to jam and accumulate for 15 miles up the river, and thereby caused the water to back up and overflow onto the plaintiff’s lands; that said waters would not have overflowed in any one year onto his lands were it. not for the said boom and said logs; that the natural and inevitable result of maintaining said boom and stopping said logs was to flood his land; that in so doing defendant had caused certain ditches of the plaintiff to be filled with sand and driftwood, and that said overflow “ did utterly destroy, in each year, hay of the said plaintiff then upon said land growing,” and alleged the amount each year. To this declaration defendant demurred: (1) That it did not state that the damage was caused by the negligence of defendant; (2) that it did not allege no contributory negligence on the part of the plaintiff. The demurrer was overruled. Defendant pleaded the general issue, and the case went to trial upon the merits, resulting in a verdict for the plaintiff. Upon the trial, defendant seasonably objected to any testimony .under the declaration for the same reasons as those stated in the demurrer. After the testimony closed, it requested the court to direct1 a verdict in its behalf for the further reason that the plaintiff had shown a loss of no hay which had been grown and matured into a marketable crop.

      Gray & Looney, for appellant.

      Button & Culver, for appellee.
   Grant, C. J.

(after stating the facts). 1. The rights of boom companies and others in driving logs down the navigable streams of this State were settled in Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308. Under that decision log drivers have no right to stop the logs flowing down the stream so as to interfere with the natural flow of the water with the running logs in it. If stopping the logs caused the water to overflow, the boom companies are responsible in damages for the overflow. In such cases the pleader need only allege the obstructions, the stoppage of the water, the consequent overflow and damage, to make his declaration sufficient. It is unnecessary to add the allegation that this was negligently done. The act speaks for itself, and carries with it the obligation to respond in damages. Negligence is not a necessary element of liability. It may be necessary to stop the logs in order to save them, and the boom company might be liable to the log owners for loss if it failed to stop them. But this necessity does not relieve the company from liability for tbe overflow. The demurrer was therefore properly overruled.

2. If the declaration had alleged the destruction of so many tons of hay each year, we think the position taken by the defendant would have been sound, because hay is not grass in a growing state, but the grass after it has been cut and dried for fodder. Webst. Diet.; Cent. Diet. But under the declaration in this case it is manifest that the word was not used in this sense, because it referred to it as growing upon the land, and described the injury as occurring to the “ growing hay.” We think there was no opportunity of being misled, and that the instruction to direct a verdict was properly refused.

Judgment affirmed.

The other Justices concurred.